K. Gopi v Kerala Coastal Zone Management Authority, Union of India, and C. V. Ravindra Nath

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN MONDAY, THE 6[TH] DAY OF MARCH 2023 / 15TH PHALGUNA, 1944 WP(C) NO. 4483 OF 2020** ## **PETITIONER/S:** K.GOPI, AGED 55 YEARS SON OF LATE SANKARAN, VNRA-131, PANGODE, THIRUMALA P.O.,THIRUVANANTHAPURAM-695 006. BY ADVS. P.B.SAHASRANAMAN SRI.T.S.HARIKUMAR **RESPONDENTS:** 1 KERALA COASTAL ZONE MANAGEMENT AUTHORITY, REPRESENTED BY ITS SECRETARY, DIRECTORATE OF ENVIRONMENT AND CLIMATE CHANGE, 4TH FLOOR, KSRTC BUS TERMINAL, THAMPANOOR, THIRUVANANTHAPURAM-695 001. 2 UNION OF INDIA, MINISTRY OF ENVIRONMENT, FOREST AND CLIMATE CHANGE, REPRESENTED BY ITS SECRETARY, INDIRA PARYAVARAN BHAWAN, JOR BHAGH, NEW DELHI-110 003. 3 C.V.RAVINDRA NATH, CHAIRMAN, KRISHNA BEACH RESORTS, PALLIYAMOOLA BEACH, CHALAD, KANNUR-670 003. BY ADVS. SRI.M.P.PRAKASH SRI.KRISHNADAS P.NAIR, CGC SRI.SHAJI THOMAS SRI.K.BABU SRI.JEN JAISON SRI.O.V.RADHAKRISHNAN (SR.) SRI.S.MANU,DSGI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) 4483 of 2020 :2: ## **JUDGMENT** ## **Murali Purushothaman, J.** The petitioner claims to be a social worker with great concern for protection of the environment of the State, especially coastal areas. He has filed this public interest writ petition seeking direction to the Kerala Coastal Zone Management Authority ('KCZMA', for short) to take action against the illegal constructions made by the 3[rd] respondent in the No-Development Zone of the Palliyamoola beach in Kannur District. 2. With regard to the _locus standi_ of the petitioner to file the writ petition, he states that, though he is residing in Thiruvananthapuram due to the employment of his wife, he is interested to settle and stay permanently in Kannur where he has many friends and relatives. 3. According to the petitioner, the 3[rd] respondent has a land in Survey Nos. 7/4, 6/2, 7/1 (TP10256) and 7/1 (TP10009) WP(C) 4483 of 2020 :3: of Pallikkunnu Village, Kannur District on eastern side of the Palliyamoola beach and in the approved CZMP, this area is marked as CRZ-III wherein no construction is possible in the No-Development Zone of 200 meters from the High Tide Line without consent from KCZMA. The petitioner states that the 3[rd] respondent has started construction of a beach resort under the name and style 'Krishna Beach Resort' in the No-Development Zone of the Palliyamoola beach having a plinth area of 14,566.88 sq.mts and already finished construction of some of the rooms and started occupation. No CRZ clearance or Environmental clearance has been obtained for such constructions. The petitioner states that, the Union of India, Ministry of Environment and Climate Change has issued “Coastal Regulation Zone Notification, 1991” on 19.02.1991 under Section 3 of Environment (Protection) Act, 1986 after considering the need for protecting the coastal areas and for ensuring that the use and activities in the coastal areas are WP(C) 4483 of 2020 :4: consistent with the principles and requirements of environmental conservation and has declared a restrictive distance of 500 meters from High Tide Line (HTL) for seashore, 200 meters as no development zone from HTL (in the case of Sea) and 100 meters in the case of tidally influenced water bodies from certain activities which include constructions. The CZMP prepared by the Government of Kerala was approved on 27.09.1996. The petitioner refers to Google earth images of the area and contends that constructions are being carried out in gross violation of the CRZ norms and despite various representations submitted before respondents 1 and 2, no action is taken. The petitioner states that the construction carried out by the 3[rd] respondent will have adverse effect on the coastal ecology. Accordingly, the petitioner prays for direction to the 1[st] respondent, KCZMA to take appropriate action against the illegal constructions made by the 3[rd] respondent in the NoDevelopment Zone of the Palliyamoola beach in Kannur WP(C) 4483 of 2020 :5: District and remove the constructions within a reasonable time and to take action against the persons/officers responsible for allowing the constructions. 4. A counter affidavit is filed on behalf of KCZMA wherein objection to the _locus standi_ of the petitioner to prefer the writ petition has been taken. It is also contended that the writ petition is bad for non joinder of necessary parties like the Local Self Government Institution. The relevant paragraphs of the counter affidavit read as follows:- "12. It is submitted that on 16.10.2019 a notice dated 11.10.2019 from the Advocate P.B.Sahasranaman was received by this respondent regarding the illegal construction. In the circumstances a reminder letter was issued by the Joint Secretary, KCZMA to the Secretary, Kannur Municipal Corporation as per letter dated 18.10.2019. The Secretary, Kannur Municipal Corporation by letter dated 23.10.2019 informed that a notice was issued to the Project Proponent based on the letter dated 07.08.2019 of KCZMA. It is also reported that the building had already constructed in the year 1987-1990 and at that time the CRZ rules were not in existence and the CRZ rules were made applicable only in 1996. 13. It is submitted that as per the Report submitted by the Secretary, Kannur Municipal Corporation, the No Objection Certificate (NOC for short) was issued for the residential building on 16.08.1989. It is seen that the Pallikunnu Grama Panchayath has given NOC for running service villas in WP(C) 4483 of 2020 :6: Krishna Beach Resort as per letter dated 21.08.2014. At that time the provisions of CRZ notification 2011 and CZMP 1996 is applicable to this area. 14.It is submitted that as per CZMP 1996 Pallikunnu Grama Panchayath is classified as CRZ III area. As per the provisions of CRZ Notification 2011, for purpose change in CRZ area prior clearance shall be obtained. In the circumstances it is not clear that whether prior clearance was obtained by the Pallikunnu Grama Panchayath for the above purpose change. On the basis of this contradiction in the report from the Secretary, Kannur Municipal Corporation, this respondent directed the Secretary,, Kannur Municipal Corporation to furnish an explanation regarding the illegal construction as per letter dated 23.12.2019. But no explanation from the Secretary, Kannur Municipal Corporation has received by this respondent. 15.With reference to the averments in paragraph 8, it is submitted that at the time of construction of the resort, the area was CRZ III category as per CZMP 1996. Hence provisions of CRZ Notification 1991/2011 were applicable. The Pallikunnu Grama Panchayath was classified as CRZ II in approved CZMP under CRZ 2011 and it is effective only from 28.02.2019, that is the date of approval of the CZMP as per CRZ Notification of 2011 by the MoEF &CC. 16.With reference to the averments in paragraphs 9 and 10, it is submitted that the area falls within No Development Zone and is classified as CRZ III in CRZ 1991 and CZMP 1996. Construction of Beach Resort is totally prohibited within 200 mts in the landward side of High Tide Line. It is submitted that the construction done by the 3rd respondent in CRZ area is illegal and in violation of CRZ Notification 1991 and 2011. If the construction is an illegal one the local authority and the District Collector is bound to take action against the illegal construction as per Section 5 and 19 of the Environment (Protection) Act 1986.” WP(C) 4483 of 2020 :7: 5. A Counter Affidavit is filed by the 3[rd] respondent wherein the _locus standi_ of the petitioner to file the writ petition is strongly objected to. It is stated that a public interest writ petition cannot be entertained at the behest of a stranger and that the petitioner is only acting as a proxy of some business rivals of the 3[rd] respondent. It is stated that the 3[rd] respondent and other co-owners of the property comprised in Re-Survey No. 6/2 applied for building permit for construction of building in Ward No.V in Survey No.6/2 of Pallikkunnu Village for running Resort and Ext. R3(e) building permit dated 25.09.1987 was issued. It is stated that in Ext.R3(e) permit, the construction of the building was required to be completed within three years from 25.09.1987 and building was completed within the said period and the completion was approved by the Special Grade Secretary, Pallikkunnu Grama Panchayath. It is further contended that the aforesaid co-owners applied for building permit for construction of residential cottages on 11.08.1989 WP(C) 4483 of 2020 :8: and Ext. R3 (f) building permit dated 16.08.1989 was issued which was valid up to 15.08.1992 and was renewed and revalidated up to 15.08.1999. The 3[rd] respondent and other coowners of the property in re-survey No. 7/4 of Pallikkunnu village applied for building permit for construction of residential flat and Ext. R3 (i) building permit dated 16.08.1989 valid up to 15.08.1992 was granted and it was renewed and revalidated up to 15.08.2002. Based on Ext. R3(i) permit, the ground floor of the twin flats building was completed by December, 1990, its first floor was completed by December, 1991 and the 2nd floor was completed by December, 2001. Building Nos. 407B and 407C were allotted to the ground floor of the twin flats, building Nos. 407D and 407E were allotted to the first floor and building Nos. 407F and 407G were allotted to the 2nd floor. According to the 3[rd] respondent, all the building permits for construction of buildings in the aforesaid properties were issued prior to issuance of CRZ notification, 1991 and WP(C) 4483 of 2020 :9: CRZ rules which were made applicable in 1996. The 3[rd] respondent further contends that the classification of the area in Pallikkunnu under CRZ-III in the Coastal Zonal Notification, 1991 does not have retrospective operation and cannot have any relevance or application in respect of building permit already issued prior to the date of CRZ notification, 1991. 6. Heard Sri. P.B. Sahasranaman, the learned counsel for the petitioner, Sri. M.P. Prakash, the learned counsel for the 1[st] respondent, Sri. S. Manu, the learned DSGI for the 2[nd] respondent and Sri. O.V. Radha Krishnan, the learned senior counsel for the 3[rd] respondent. 7. Sri. Sahasranaman argued on lines with the averments in the writ petition. Sri. Prakash, the counsel for the 1[st] respondent submitted that the term of KCZMA constituted on 30.03.2019 had since expired. Sri. Prakash contends that the petitioner has no _locus standi_ to file the writ petition. Relying on the decision of the Apex Court in **Ayaaubkhan Noorkhan Pathan** _**v**_ **. State** WP(C) 4483 of 2020 :10: **of Maharashtra** [(2013) 4 SCC 465], the learned senior counsel for the 3[rd] respondent submits that, the petitioner, being a total stranger and a resident of Thiruvananthapuram, has absolutely no _locus standi_ to file the public interest litigation and that he is not a 'person aggrieved' and has no legal right to invoke the writ jurisdiction of this Court. The learned senior counsel also submits that the constructions in the properties in question were carried out based on building permits issued by the concerned Panchayat before the CRZ notification, 1991. The learned senior counsel also referred to paragraph 12 of the affidavit filed by KCZMA wherein the letter of the Secretary of the Kannur Municipality (after merger) addressed to KCZMA states that the buildings were constructed during the period when CRZ rules were not in existence. It is further contended that the classification of the area in Pallikkunnu under CRZ-III in the Coastal Zonal Notification, 1991 does not have retrospective operation. WP(C) 4483 of 2020 :11: The questions as to whether the buildings were constructed on the basis of permits issued before issuance of the CRZ notification, 1991, whether any constructions have been carried out in the property after the CRZ Rules were made applicable in the area and when exactly the constructions were carried out, are disputed questions of fact which cannot be gone into in a petition under Article 226 of the Constitution of India. Materials are not available before this Court for any interpretation either way. The Local Self Government Institution is not made a party to the writ petition. Accordingly, we decline to entertain the writ petition. Writ petition is dismissed, leaving open the contentions of the parties. **Sd/S.MANIKUMAR CHIEF JUSTICE** **Sd/-** **MURALI PURUSHOTHAMAN JUDGE** spc/ WP(C) 4483 of 2020 :12: ## **APPENDIX OF WP(C) 4483/2020** ## PETITIONER EXHIBITS |EXT P1|TRUE PHOTOCOPY OF THE COASTAL ZONE MANAGEMENT| |---|---| ||MAP OF KERALA NO.66, PALLIYAMOOLA-AZHIKKAL.| |EXT P2|TRUE GOOGLE EARTH IMAGE OF THE SITE WHERE THE| ||KRISHNA BEACH RESORT IS CONSTRUCTED AS ON| ||2020.| |EXT P3|TRUE GOOGLE EARTH IMAGE OF THE SITE WHERE THE| ||KRISHNA BEACH RESORT IS NOW CONSTRUCTED AS ON| ||12.03.2003.| |EXT P4|TRUE PHOTOCOPY OF THE LAWYERS NOTICE ISSUED| ||TO THE 1ST RESPONDENT DATED 11.10.2019.| |EXT P5|TRUE PHOTOCOPY OF THE RELEVANT PORTION OF THE| ||3RD INTERIM REPORT ON CRZ VIOLATIONS PREPARED| ||BY THE COMMITTEE CONSTITUTED BY THE| ||GOVERNMENT OF KERALA AS PER GO(RT) NO.98/2019| ||DATED 16.10.2019 DATED 20.12.2019.| |EXT P6|TRUE PHOTOSTAT COPY OF THE NO OBJECTION| ||CERTIFICATE ISSUED BY THE PALLIKKUNNU GRAMA| ||PANCHAYAT, DATED 21.08.2014| |EXT P7|TRUE PHOTOCOY OF THE CONSENT TO ESTABLISH| ||ISSUED BY THE KERALA STATE POLLUTION CONTROL| ||BOARD, DATED 12.04.218| |EXT P8|TRIE PHOTOCOPY OF THE LETTER APPROVING THE| ||COASTAL ZONE MANAGEMENT PLAN OF KERALA ISSUED| ||BY THE 2ND RESPONDENT ON 28.02.2019| |EXT P9|SOME PHOTOGRAPHS OF THE CONSTRUCTIONS MADE BY| ||THE 3RD RE SPONDENT, UPLOADED IN THEIR WE| ||SITE, <ACCESSED ON 20.02.2020>| |EXT|TRUE PHOTOSTAT COPY OF THE ORDER OF THE| |P10|SUPREME COURT OF INDIA, DATED 25.04.2003| ||TRUE PHOTOSTAT COPY OF THE INFORMATION GIVEN| |EXT<br>P11|UNDER THE RIGHT TO INFORMATION ACT, 2005 BY<br>THE 1ST RESPONDENT TO MR.A.YADUNATH NAMBIAR,<br>DATED 29.08.2019, ALONG WITH ENG.TRANSLATION.| ## RESPONDENT EXHIBITS EXT PHOTOCOPY OF THE SALE DEED NO.1338/1987 DATED WP(C) 4483 of 2020 :13: |R3(a):|29/05/1987.| |---|---| |EXT|PHOTOCOPY OF THE SALE DEED NO.311/1987 DATED| |R3(b):|02/02/1987.| |EXT|PHOTOCOPY OF THE BASIC TAX RECEIPT DATED| |R3(c):|21/12/1998 FOR THE PERIOD 1998-99 ISSUED BY| ||THE PALLIKKUNNU VILLAGE OFFICE.| |EXT|PHOTOCOPY OF THE BASIC TAX RECEIPT DATED| |R3(d):|12/07/2018 FOR THE PERIOD 2018-19 ISSUED BY| ||THE PALLIKKUNNU VILLAGE OFFICE.| |EXT|PHOTOCOPY OF THE BUILDING PERMIT DATED| |R3(e):|25/09/1987 ISSUED BY THE SPECIAL GRADE| ||OFFICER, PALLIKKUNNU PANCHAYATH.| |EXT|PHOTOCOPY OF THE BUILDING PERMIT DATED| |R3(f):|16/08/1989 ISSUED BY THE SPECIAL GRADE| ||EXECUTIVE OFFICEWR, PALLKKUNNU PANCHAYATH.| |EXT|PHOTOCOPY OF THE SALE DEED NO.1741/1988 DATED| |R3(g):|14/07/1988.| |EXT|PHOTOCOPY OF THE SALE DEED NO.2268/1988 DATED| |R3(h):|22/09/1988.| |EXT|PHOTOCOPY OF THE BUILDING PERMIT DATED| |R3(i):|16/08/1989 ISSUED BY THE SPECIAL GRADE| ||EXECUTIVE OFFICER, PALLIKKUNNU PANCHAYATH.| |EXHIBI|PHOTOCOPY OF THE NOTICE DATED 30/04/2019| |T|ISSUED BY THE ASSISTANT ENGINEER, KANNUR| |R3(j):|MUNICIPAL CORPORATION.| |EXT|PHOTOCOPY OF THE LETTER DATED 23/10/2019| |R3(k):|ADDRESSED TO THE JOINT SECRETARY, KERALA| ||COASTAL REGULATION MANAGEMENT COMMITTEE.| |EXT|PHOTOCOPY OF THE LETTER DATED 11/01/2021| |R3(l):|ISSUED BY THE ASSISTANT ENGINEER, KANNUR| ||MUNICIPAL CORPORATION.|