WP(C). No. 27248 of 2012 (E). Case: Antony A.V. Vs Corporation of Cochin. High Court of Kerala (India)
| Case Number | WP(C). No. 27248 of 2012 (E) |
| Counsel | For Appellant: Gopakumar G. (Aluva) and Anupama Johny, Advs.and For Respondents: Dileesh John, SC, P.K. Soyuz, SC, Prakash C. Vadakkan. J., SC, Nalini Chidambaram, Sr., M. Gopikrishnan Nambiar, P. Gopinath, P. Benny Thomas, K. John Mathai, Joson Manavalan and Saji Varghese Kakkattumattathil, Advs. |
| Judges | A.V. Ramakrishna Pillai, J. |
| Issue | Property Law |
| Citation | 2015 (5) FLT 332, ILR 2015 (1) Kerala 476 , 2014 (4) KLJ 851, 2015(1)KLT178 |
| Judgement Date | December 08, 2014 |
| Court | High Court of Kerala (India) |
Judgment:
A.V. Ramakrishna Pillai, J.
-
The petitioner, who is residing on the western side of Chilavannur lake/kayal (backwaters), has come up with this writ petition alleging that the 4th respondent has constructed a multi storeyed building within a distance of 100 metres from the High Tide Line (HTL) of the said lake violating Coastal Regulation Zone Notification (CRZ Notification).
-
The petitioner alleges that as per CRZ Notifications, 1991 and 2011, construction is not permissible within the distance of 100 metres from the side of Chilavannur lake. The petitioner further alleges that he has submitted several complaints to respondents 1 to 3 alleging that the 4th respondent has constructed the building in violation of the CRZ Notification. However, they have not taken any steps to stop the alleged construction. It is the definite case of the petitioner that the 4th respondent has not produced 'No Objection Certificate' (NOC) from the Kerala Coastal Zone Management Authority (KCZMA) (3rd respondent) along with the application for permit.
-
It is further alleged that the committee constituted by the KCZMA has directed the Secretary of the Corporation of Cochin (1st respondent) through Ext. P6 to verify the on going constructions on either side of the backwaters and to issue stop memo to those who violate the provisions of CRZ Notification, 1991 with respect to their position/location. However, the 1st respondent has not taken any steps to implement the direction.
-
The 3rd respondent informed the petitioner as per Ext. P7 letter dated 22.02.2011 that the 3rd respondent had issued directions to the 1st respondent to stop the unauthorised construction violating the CRZ Notification. The petitioner further alleges that after receiving Ext. P7, though he submitted Exts. P10, P11 and P12 applications to the Secretary, Cochin Corporation, requesting to take steps to stop the construction of the buildings by the 4th respondent and to demolish the constructions which violated the CRZ norms, the 1st respondent has not taken any steps to dispose of the applications. It is with this background, the petitioner has come up before this Court.
-
The 1st respondent though entered appearance has not filed any counter affidavit.
-
The 3rd respondent filed counter affidavit stating as follows:
According to the 3rd respondent, the construction in the areas covered by CRZ Notification could be made only with the prior approval of the KCZMA/Ministry of Environment and Forest (MoEF), Government of India. According to them, the Chilavannur lake is connected to Vembanad backwaters through a network of canals. The water body has tidal influence from the sea. The banks of the backwater have Coastal Regulation Zone as per the Coastal Zone Management Plan of the State. The CRZ in the area is 100 metres from the HTL of the backwaters. The area where the construction was made has CRZ I and II as per the CRZ Notification.
It was further contended that the development site was part of low-lying areas such as filtration pond/paddy field, which were reclaimed before 2009. Reclamation of another small portion was also carried out after 2009 as per the report submitted by Centre for Earth Science Studies (CESS) in September, 2011. It was further contended that the reclamation is a prohibited activity as per CRZ Notifications 1991 and 2011 and amounts to violation of provisions of CRZ Notification, 1991. They would further contend that CRZ clearance for the project has not been issued till date and construction was started without CRZ clearance.
It was further contended that the construction is made after reclaiming the wetland-pokkali field which was classified as CRZ I (i) areas that are ecologically fragile. The total plinth area of construction was above 20000m2 and, therefore, it requires Environmental Impact Assessment (EIA) clearance. The 100 metres from HTL of backwater landward in the area on both sides are declared as Coastal Regulated Zone and constructions are regulated in the area. The KCZMA had constituted a three member committee to inspect the site and submitted a report. While the committee had inspected, the construction was in progress after reclamation without any clearance from MoEF/ KCZMA.
The KCZMA in its 40th meeting held in September 2010 had recommended compliance of certain conditions to MoEF. The CESS had conducted a study as directed by the KCZMA to verify the compliance of the said conditions during 2011, wherein it was found that the area was reclaimed during 2006-07 period. The 4th respondent submitted CRZ map superimposed with the project layout prepared by the Institute of Remote Sensing (Anna University) during December, 2012. This was found in variance with the map prepared by the CESS earlier, in respect of HTL. Subsequently, the KCZMA had forwarded, as recommended by its 40th meeting, with all relevant documents, including the CESS report and the said superimposed building layout CRZ map to MoEF for further necessary action. It was further contended that KCZMA has no further intimation on the clearance to the project. The KCZMA had constituted a sub committee much before the complaint was filed by the petitioner based on the request from the 4th respondent for CRZ clearance. The committee submitted a report on the construction. Another committee was constituted for verifying the facts in the complaint and this committee have also submitted its report and action has been taken by the KCZMA based on the report.
It was further contended that the KCZMA based on the report has directed the Cochin Corporation to furnish details of the permits issued for construction on the banks of Chelavannur backwater since 1996 and accordingly, the Cochin Corporation submitted the details, including the construction of the 4th respondent. The construction was permitted by the Cochin Corporation without following the provisions of CRZ Notification; it was contended. They would further contend that building permits were issued in violation of the CRZ Notification, 1991 and the authorities of the Corporation had violated the law of the land by issuing building permits in CRZ area. According to them, as per the notification, all constructions which are having investment above ` 5 crores or more requires CRZ clearance from the MoEF, Government of India. They would contend that the KCZMA has issued instructions to the Local Self Government concerned as well as the District Collectors to initiate action against the proponent under the Environment (Protection) Act, 1986. They would also contend that the construction made in violation of the CRZ Notification cannot be regularised.
-
The 4th respondent filed a counter affidavit wherein it was contended as follows:
As the main grievance of the petitioner is that the 1st respondent has not taken action with regard to the alleged violation of the Building Rules, the petitioner ought to have approached the Tribunal for Local Self Government to have his grievance...
To continue reading
Request your trial