THE KERALA STATE COASTAL ZONE MANAGEMENT AUTHORITY versus THE STATE OF KERALA MARADU MUNICIPALITY & ORS. on 8 May 2019

O R D E R

1. Leave granted.

2. Applications for intervention are allowed.

3. The appeals have been filed by the Kerala State Coastal ZoneManagement Authority aggrieved by the judgment and order dated11.11.2016 passed by the High Court in Writ Appeal No.132 of 2013 andother connected appeals.

4. The appellant authority has been constituted by the Governmentof India in compliance with the directions issued by this Court inIndianCouncil for Enviro-Legal Actionv. Union of India[(1996) 5 SCC281] as well as in the exercise of the powers conferred under Section 3of the Environment Protection Act, 1986. The appellant authority isempowered to deal with the environmental issues relating to the notifiedCoastal Regulations Zones (in short, ‘CRZ’). Construction activities inthe notified CRZ areas can be permitted only in consultation with andprior concurrence of the appellant authority. It is the binding duty of thelocal self-Government, the competent authority before issuing buildingpermits to forward an application for building permission to the appellantauthority along with the relevant record. The appellant authority hasissued circulars to all Gram Panchayats, Municipalities, and MunicipalCorporations directing them to follow the provisions of CRZ notificationsand to act in accordance with the procedures provided in the notifications.

A

B

C

D

E

F

G

H

A

A5. The decision of this Court in Piedade Filomena Gonsalvesv.State of Goa[(2004) 3 SCC 445] has also been relied upon which explainsthe significance of CRZ notifications in the interest of protectingenvironment and ecology in the coastal area and the construction raisedin violation of the regulations cannot be lightly condoned. The constructionactivities of the respondent builders are on the shores of the backwatersBin Ernakulam in the State of Kerala which supports exceptionally largebiological diversity and constitutes one of the largest wetlands in India.

6. The area in which the respondents have carried out constructionactivities is part of the tidally influenced water body and the constructionactivities in those areas are strictly restricted under the provisions of theCCRZ Notifications. Uncontrolled construction activities in these areaswould have devastating effects on the natural water flow that mayultimately result in severe natural calamities. The expert opinions suggestthat the devastating floods faced by Uttarakhand in recent years andTamil Nadu this year are the immediate result of uncontrolled constructionDactivities on river shores and unscrupulous trespass into the natural pathof backwaters. The Coastal Zone Management Plan (in short, ‘CZMP’)has been prepared to check these types of activities and constructionactivities of all types in the notified areas. The High Court has ignoredthe significance of approved CZMP.

E7. As per the appellant, these constructions activities are takingplace in critically vulnerable coastal areas which are notified as CRZ-III. The panchayats have issued these permissions in violation of relevantstatutory provisions and CRZ notifications. The Vigilance Section ofLocal Self Government Department, Government of Kerala detectedthese violations and anomalies in the issue of building permits and henceFdirected the concerned bodies to revoke all the flawed building permitsexercising its powers under Rules 16 and 23 of the Kerala MunicipalityBuilding Rules, 1999 (in short, referred to as ‘the Rules of 1999’).

E

8. A show cause notice was issued under Rule 16 of the Rules of1999, asking the builders to show cause why the building permit issuedGto them be not cancelled. Writ Petitions were filed questioning the same.The learned Single Judge allowed the writ petitions. The Division Benchdismissed the appeals. The High Court has observed that the permitholders cannot be taken to task for the failure of local authorities in complying with the statutory provisions and notifications. Review petitionswere also dismissed. Hence, the appeals by special leave have beenpreferred.

9. After hearing the appeals for two days, we constituted theCommittee to hear the parties. Following is the order passed by thisCourt on 27.11.2018 :

“1. The writ petitions filed questioning the show cause notice dated4.6.2007 issued for the removal of the buildings, which accordingto show cause notice were falling within the prohibited area ofCRZ Category. Various violations were mentioned in the showcause notice. Without availing the remedy of filing reply to theshow cause notice, writ petitions were filed directly in the HighCourt. The Single Bench of the High Court vide its judgment andorder dated 10.09.2012, allowed the writ petition. Aggrievedthereby, the Municipality preferred writ appeals before the DivisionBench, which were dismissed by the impugned judgment and orderdated 02.06.2015.

2. Considering the peculiar facts and circumstances of the case,as there is no categorical finding recorded either by the SingleBench or by the Division Bench that whether the area in questionis in CRZ Category-III, Category-I or Category-II. It was claimedby the petitioner before the Single Bench that they fell within theCRZ Category-II, whereas the case set up by Coastal ZoneManagement Authority in this Court is that area is of CRZCategoryIII. We deem it appropriate to call for the findings on theaforesaid aspect.

3. We constitute a Three-Member Committee consisting of theSecretary to the Local Self Government Department, the ChiefMunicipal officer of the concerned Municipality and the Collectorof the District, to hear the objections and to give a finding in termsof Notification dated 19th February 1991.

4. Let the Committee hear the affected parties as well as KeralaState Coastal Zone Management Authority and State Governmentand consider the matter as submitted by the parties and send areport to this Court as to legality of construction and precisely in A

B

C

D

E

F

G

H

Awhich category the area in question is to be categorized and whetherbuilding is in prohibited zone. Let the exercise be done within aperiod of two months and a report be submitted to this Court.

5. Let the report be submitted covering the aspect that may beurged by the parties as to the legality of construction.”B

10. The aforesaid order was passed in order to cut short thelitigation in respect of the show cause notice issued by the authorities asthe only question to be decided was as to whether the area falls in CRZ-III of Coastal Zone Regulations. We have heard the learned counsel atlength again after receipt of the report. The Committee consisted of theCfollowing members :

1. K. Gopalakrishna Bhat, IASLocal Self Government (Rural)In-Charge.

2. K. Mohammed Y. Safirulla, AIA,DDistrict Collector,Ernakulam.

3. Subhash P.K.,Municipal Secretary,

Maradu Municipality.

E11. The Committee has given the opportunity of hearing and hasdealt with the case set up by all the stakeholders in extensivedetail. Following findings and conclusion have been recorded by theCommittee :

“The Committee evaluated all arguments raised by the partiesand KCZMA, existing Rules and Statutes and examined the GoogleFmap produced at the time of the meeting.

The findings of the committee are as follows:

1) Marad Panchayat which was formed in 1953 was upgradedinto a municipality in November 2010.

G

2) The Coastal Zone Management Plan (CZMP of Keralacurrently applicable is the one that was approved in 1996. As perthe said CZMP, Marad has been marked as Panchayat area andhence falls in the Coastal Regulation Zone (CRZ) category ofCRZ-III. The area is represented in the Map numbers 33, 33A

H

and 34 of CZMP 1996. These maps are attached as Annexure 1and 2. A mosaic of the three maps showing the Marad area isattached as Annexure 3. Since the Panchayat has been upgradedto Municipality in the year 2010, the same has been shown asCRZ-II category in the draft CZMP prepared as per the CRZNotification 2011 and submitted to the MoEF&CC of Governmentof India recently. Until the Government of Kerala/KCZMAreceives a communication from the Government of India on theapproval of the CZMP draft submitted, the CZMP of 1996 standsvalid. Hence, as on date, Maradu area being a backwater islandthe provisions as detailed below is applicable after 6[th] January2011 i.e., the date on which Government of India published CoastalZone Management Plan (CZMP).

i) The islands within the backwaters shall have 50 mts width fromthe High Tide Line on the landward side as the CRZ area;

ii) within 50 mts from the HTL of these backwater islands existingdwelling units of local communities may be repaired orreconstructed however no new construction shall be permitted;

iii) beyond 50 mts from the HTL on the landward side of backwaterislands, dwelling units of local communities may be constructedwith the prior permission of the Grama panchayat;

iv) foreshore facilities such as fishing jetty, fish drying yards, netmending yard, fishing processing by traditional methods, boatbuilding yards, ice plant, boat repairs and the like, may be takenup within 50 mts width from HTL of these backwater islands.

CONCLUSION

The Coastal Zone Management Plan (CZMP) of Keralacurrently applicable is the one that was approved in 1996. As perthe said CZMP Maradu has been marked as Panchayat area andhence falls in the Coastal Regulation Zone (CRZ) category ofCRZ III. Maradu Panchayat has been upgraded to Municipalityin the year 2010 and hence in the draft CZMP prepared as perCRZ Notification 2011, it is shown as CRZ II category. The newdraft CZMP is submitted to MoEF & CC of Government of Indiafor approval. Until Government of India approved the draftnotification CZMP 1996 stands valid.”

A

B

C

D

E

F

G

H

A

A12. It is apparent that at the relevant time when the constructionhas been raised by the respondents in the matters, the area was withinCRZ-III. With respect to CRZ-III, the relevant notification dated19.2.1991 indicates that the area of 200 meters from the High Tide Lineis no development zone. No construction shall be permitted within thiszone except for repairs of the authorized structures not exceeding existingBFSI. The notification dated 19.02.1991 relating to CRZ-III is extractedbelow:- “iii. The design and construction of buildings shall be consistentwith the surrounding landscape and local architectural style.

i. The area up to 200 meters from the High Tide Line is to beearmarked as “No Development Zone”. No construction shallbe permitted within this zone except for repairs of existingauthorised structures not exceeding existing FSI, existing plintharea, and existing density, and for permissible activities under thenotification including facilities essential for such activities. Anauthority designated by the State Government/Union TerritoryAdministration may permit construction of facilities for watersupply, drainage, and sewerage for requirements of localinhabitants. However, the following uses may be permissible inthis zone agriculture, horticulture, gardens, pastures, parks,playfields, forestry and salt manufacture from sea water.

C

D

E

ii.Development of vacant plots between 200 and 500 meters ofHigh Tide Line in designated areas of CRZ-III with prior approvalof Ministry of Environment and Forests (MEF permitted forconstruction of hotels/beach resorts for temporary occupation ofFtourists/visitors subject to the conditions as stipulated in theguidelines at Annexure-II.

iii. Construction/reconstruction of dwelling units between 200 and500 meters of the High Tide Line permitted so long it is within theambit of traditional rights and customary uses such as existingfishing villages and gaothans. Building permission for suchconstruction/reconstruction will be subject to the conditions thatthe total number of dwelling units shall not be more than twice thenumber of existing units; total covered area on all floors shall notexceed 33 percent of the plot size; the overall height of construction G

H

shall not exceed 9 meters and construction shall not be more than2 floors ground floor plus one floor. Construction is allowed forpermissible activities under the notification including facilitiesessential for such activities. An authority designated by StateGovernment/Union Territory Administration may permitconstruction of public rain shelters, community toilets, watersupply, drainage, sewerage, roads, and bridges. The said authoritymay also permit construction of schools and dispensaries, for localinhabitants of the area, for those panchayats the major part ofwhich falls within CRZ if no other area is available for constructionof such facilities.

iv. Reconstruction/alterations of an existing authorised buildingpermitted subject to (I) to (iii) above.”

13. It is also relevant to take note of Rule 23(4) of the Rules of1999 which is extracted below:- “23(4) Any land development or redevelopment or buildingconstruction or reconstruction in any area notified by theGovernment of India as a coastal regulation zone under theEnvironment (Protection) Act, 1986 (29 of 1986) and rules madethereunder shall be subject to the restrictions contained in the saidnotification as amended from time to time.”

14. It is necessary for the local authority to follow the restrictionsimposed by the notification, as amended from time to time. Thus, it wasnot open to the local authority, i.e., Panchayat, in view of the notificationof 1991 to grant any kind of permission without the concurrence of KeralaState Coastal Zone Management Authority. Admittedly, Panchayat hasnot forwarded any such applications for building permissions and thereis no concurrence or permission granted by the Kerala State CoastalZone Management Authority. As such, we find that once a due inquiryhas been held by the Committee, there is no escape from the conclusionthat the area fell within CRZ-III, it was wholly impermissible andunauthorised construction within the prohibited area. We also takejudicial notice of recent devastation in Kerala which had taken placedue to heavy rains compounded by such unbridled construction activitiesresulting in colossal loss of human life and property due to suchunauthorised activity.

A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

15. This Court in Vaamika Island (Green Lagoon Resort) vs.Union of India & Ors. [(2013) 8 SCC 760], has observed:- “26. The petitioner had affected the construction in violation ofthe provisions of 1991 and 2011 Notifications as well as MapNo.32-A, so found by the High Court. The factual details of thesame and where actually the portion of some of the properties ofthe petitioner in Vettila Thuruthu will fall has been elaboratelydealt with by the High Court in its judgment in paras 109 to 119.We notice that the High Court has dealt with the issue pointingout that so far as buildings which have been constructed by thepetitioner during the currency of the Notification issued in 1991are concerned, they are clearly in violation of this notification,hence, action has to be taken for the removal of the same. TheDirector of Panchayat also vide letters dated 7.3.1995, 17.7.1996directed all the panchayats to strictly follow the provisions of CRZnotification which it was found not followed by granting permission.The High Court has also found on facts that reconstruction workappeared to have been done during the currency of the 2011Notification and two buildings (193/D and 193/E) were alsoconstructed illegally. The High Court has also noticed anothernew construction underway. These all are factual findings whichcall for no interference by this Court. The High Court has clearlynoticed that reconstruction work has been done contrary to 1991as well as 2011 Notifications and the report of the ExpertCommittee constituted by the Kerala State Committee on SciencesTechnology and Environment (KSCSTE) was accepted.

27. We are of the considered view that the above direction wasissued by the High Court taking into consideration the larger publicinterest and to save Vembanad Lake which is an ecologicallysensitive area, so proclaimed nationally and internationally.Vembanad Lake is presently undergoing severe environmentaldegradation due to increased human intervention and, as alreadyindicated, recognising the socio-economic importance of thiswaterbody, it has recently been scheduled under “vulnerablewetlands to be protected” and declared as CVCA. We are of theview that the directions given by the High Court are perfectly inorder in the abovementioned perspective.

28. Further, the directions given by the High Court in directingdemolition of illegal construction effected during the currency ofthe 1991 and 2011 CRZ Notifications are perfectly in tune withthe decisions of this Court in Piedade Filomena Gonsalves v.State of Goa [(2004) 3 SCC 445], wherein this Court has heldthat such notifications have been issued in the interest of protectingenvironment and ecology in the coastal area and the construction”raised in violation of such regulations cannot be lightly condoned.

16. In Piedade Filomena Gonsalves vs. State of Goa & Ors.[(2004) 3 SCC 445], this Court has observed :

“4. We do not think that any fault can be found with the judgmentof the High Court and the appellant can be allowed any relief inexercise of the jurisdiction conferred on this Court under Article136 of the Constitution. Admittedly, the construction which theappellant has raised is without permission. Assuming it for a momentthat the construction, on demarcation and measurement afreshand on HTL being determined, is found to be beyond 200 metersof HTL, it is writ large that the appellant has indulged intomisadventure of raising a construction without securing permissionfrom the competent authorities. That apart, the learned counselfor the respondent, has rightly pointed out that the direction of theHigh Court in the matter of demarcation and determination ofHTL is based on the amendment dated 18.8.1994 introduced inthe notification dated 19.2.1991 entitled the Coastal RegulationZone notification issued in exercise of the power conferred bysection 3(1) and Section 3(2)(v) of the Environment ProtectionAct, 1986, while the appellant’s construction was completed beforethe date of the amendment and, therefore, the appellant cannottake benefit of the order dated 25.9.96 passed in writ petition No.102 of 1996.

5. It is pertinent to note that during the pendency of the writ petition,the appellant had moved two applications, one of which is dated11.7.1995, for the purpose of regularisation of the construction inquestion. Goa State Coastal Committee for Environment-the then-competent body constituted a subcommittee which inspected thesite and found that the entire construction raised by the appellantfell within 200 meters of the HTL and the construction had been A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

carried out on existing sand dunes. The Goa State CoastalCommittee for Environment, in its meeting dated 20.10.1995, tooka decision inter alia holding that the entire construction put up bythe appellant was in violation of the Coastal Regulation ZoneNotification.

6. The Coastal Regulation Zone notifications have been issued inthe interest of protecting the environment and ecology in the coastalarea. Construction raised in violation of such regulations cannotbe lightly condoned. We do not think that the appellant is entitledto any relief. No fault can be found with the view taken by the”High Court in its impugned judgment.

17. Further, reference has also been made to a decision of theKerala High Court in Ratheesh v. State of Kerala [2013 (3) KLT 840].The same is extracted below :

“98. However, we would rather rest our decision withoutpronouncing on the validity of the permits as such. We have foundthat the Notification is applicable to the island, the island falls inCRZ-I and construction is impermissible. By merely getting apermit under the Building Rules, it cannot be in the region of anydoubt that the company cannot arrogate to itself, the right to floutthe terms of the Notification. We have already noticed Rule 23(4)of the Kerala Municipality Building Rules, 1999 and Rule 26(4) ofthe Kerala Panchayat Building Rules, 2011. In this case, we mayalso note that there is no permission sought from the authority. Itis apposite to note that paragraph 3 (v) clearly mandates that forinvestment of Rs.5 crores and above, permission must be obtainedfrom the Ministry of Environment WP(C).NO.19564/11 &CON.CASES 21 and Forest. In this case, the investment of thecompany is far above Rs.5 crores. In respect of investments belowRs.5 crores, for activities which are not prohibited, permissionmust be obtained from the concerned authority in the State. Thecompany has not made any such attempt at getting permission.That apart, this is a case where, even if permission had beenapplied for, the terms of the Notification would stand in the wayof any such permission being granted in so far as the island istreated as falling in CRZ-I. Construction of buildings as has beendone by the company was absolutely impermissible. The fact that in a situation where the construction activity was permissible underthe Notification and if the company had obtained permit from thelocal body, would have made its activities legal, cannot avail thecompany for the reason that under the terms of the Notification,such permit obtained from the panchayat will be of little avail to itin the light of the nature of the restrictions brought about by theRegulations in respect of CRZ-I in which zone the island falls.According to the WP(C).NO.19564/11 & CON.CASES 22panchayat, no doubt, the conditions have been imposed also asrecommended by the Assistant Engineer who is alleged to haveeven visited the island. Whatever that be, as observed by us, inthe light of the view we have taken, namely that the 1991Notification applies to the island, it is squarely covered by thesame being included in CRZ-I and the constructions were beguneven during the currency of the 1991 Notification. The conclusionis inescapable that it is in the teeth of the prohibition contained inthe 1991 Notification and, therefore, it is palpably illegal.

XXXXXXXXX

107. At this stage, we must deal with the argument raised beforeus by the company. It is submitted that a world-class resort hasbeen put up which will promote tourism in a State like Keralawhich does not have any industries as such and where tourismhas immense potential and jobs will be created. It is submittedthat the Court may bear in mind that the company is eco-friendlyand if at all the Court is inclined to find against the company, theCourt may, in the facts of this case, give direction to the companyand the company will strictly abide by any safeguards essentialfor the preservation of environment.

108. We do not think that this Court should be detained by such anargument. The Notification issued under the Environment(Protection) Act is meant to protect the environment and bringabout sustainable development. It is the law of the land. It is meantto be obeyed and enforced. As held by the Apex Court,construction in violation of the Coastal Regulation Zone Regulationsare not to be viewed lightly and he who breaches itsWP(C).NO.19564/11 & CON.CASES 24 terms does so at hisown peril. The fait accompli of constructions being made which A

B

C

D

E

F

G

H

638SUPREME COURT REPORTS

Aare in the teeth of the Notification cannot present, but a highly”vulnerable argument.

18. We find that the view taken by the Kerala High Court in theaforesaid decision is appropriate.

19. In the instant case, permission granted by the Panchayat wasBillegal and void. No such development activity could have taken place inprohibited zone. In view of the findings of the Enquiry, Committee, letall the structures be removed forthwith within a period of one monthfrom today and compliance be reported to this Court.

20. The appeals are, accordingly allowed with aforesaid direction.CInterlocutory applications, if any, stand disposed of.

Devika Gujral

Appeals allowed.

D

E

F

G

H