IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 31ST MARCH 2010 / 10TH CHAITHRA 1932 RP.No. 273 of 2010(J) --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.35936/2009 Dated 01/03/2010 .................... REVIEW PETITIONER(S): APPELLANT ------------------------------- P.T.ROY,S/O.AGED 42 YEARS, S/O.THEYOCHAN,RESIDING AT PALACKAL HOUSE,SEE VIEW WARD,ALAPPUZHA,REPRESENTED BY HIS POWER OF ATTORNEY HOLDER,P.T.SEBASTIAN,S/O.THEYOCHAN, PALACKALJ HOUSE,SEA VIEW WARD,ALAPPUZHA. BY ADV. SRI.E.D.GEORGE RESPONDENT(S): RESPONDENT ------------------------- THE SECRETARY,ALAPPUZHA MUNICIPALITY, ALAPPUZHA. ADV. SRI.M.K.CHANDRA MOHAN DAS, SC, M.C.,ALP THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 31/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ANTONY DOMINIC, J. -------------------------------------------------- R.P.NO.273 OF 2010 IN W.P.(C) NO.35936 OF 2009 (J) -------------------------------------------------- Dated this the 31st day of March, 2010 O R D E R Writ petition (Civil) No. 35936 of 2009 was disposed of by judgment dated 1st of March 2010, directing the respondent Municipality to expedite the proceedings pending before the Coastal Regulation Zone Management Authority and on that basis, to consider the application made by the petitioner to number the building constructed by him and to issue occupancy certificate. It is seeking review of this judgment that the review petition is filed. 2. As will be seen from the judgment in the writ petition, the request of the petitioner to direct the Municipality to number his building and to issue occupancy certificate was declined by this Court for the reason that, according to the Municipality, although the building has been constructed on the strength of a permit and an approved plan, the site in question is situated within the Coastal Regulation Zone (CRZ). It was contended that in view of this, the Municipality had sought clarification from the R.P.No.273/2010 :2 : Coastal Zone Management Authority, and that the clarification was awaited. It was in view of this stand that this court has disposed of the writ petition with the above directions. In the judgment, the statement made by the Municipality that it is taking steps against the existing and on going constructions within the Coastal Regulation Zone was also taken note of. 3. Subsequently, this Review Petition has been filed by the petitioner mainly with the following contentions: (1) That even now the Municipality is permitting construction of buildings in and near to the place where the petitioner has constructed his residential building. (2) That several buildings have been constructed in the same place with the assistance of the Municipality for Tsunami affected persons. (3) That by Annexure A1, petitioner sought information regarding the permits granted by the Municipality, for construction within 200 meters on either side of the petitioners building, and that in reply, the petitioner has been given a list containing details including permit numbers, issued in favour of R.P.No.273/2010 :3 : 43 persons. (4) That the aforesaid 43 persons are occupying the buildings which have all been numbered and Occupancy Certificates have been issued by the Municipality. (5) That during the pendency of the writ petition, buildings constructed by one Prasannan and M. Babu have been numbered and that Resort has been established and is functioning in this area. (6) That one Sudharma has constructed a multi storied building within 2-3 meters from sea wall and is conducting business there. 4. Subsequently, petitioner has filed a statement producing Annexures A5 and A6 containing the details of the numbers assigned to the buildings of T.T. Shanu and Shereef, which were numbered after the filing of the Review Petition. Petitioner has also made reference to the resorts that are functioning in the area. On this basis petitioner contented that he has been singled out and is discriminatorily treated for political reasons. R.P.No.273/2010 :4 : 5. Respondent Municipality had filed a counter affidavit where it is contended that they have taken action against unauthorized constructions. It is also stated that most of the structures mentioned in Annexure A1 have been constructed under the Tsunami Rehabilitation Scheme. It is stated that Annexures R1, R2 and R3 notices have been issued against three resorts which have been established in violation of the CRZ norms. Counsel further pointed out that they are still awaiting clarification from the Coastal Zone Management Authority to consider the application made by the petitioner. 6. During the hearing petitioner's counsel contended that the petitioner has invested his entire savings on the building that was constructed for his residential purpose and that there is no reason why the Municipality should not treat him on par with others who have constructed residential houses and resorts in the neighbourhood. On the other hand, Municipality submits that unless the clarification is received they cannot take further action on the application made by the petitioner. R.P.No.273/2010 :5 : 7. In the judgment under review itself, this court has expressed its distress about the conduct of the Municipal Officers irresponsibly issuing building permits and which made people like the petitioner invest their hard earned money on buildings, only to be later told that their buildings will not be numbered for reasons such as violation of CRZ norms. If there is violation of CRZ norms, though the Municipality cannot be faulted for taking action, but then since Municipality is responsible for issuing the permit, on the basis of which construction is made, the Municipal Officers cannot escape from the liability for their negligence and they cannot claim any immunity from proceedings for damages and from departmental proceedings. 8. In this case, it is the specific case of the petitioner that he constructed the building in accordance with the permit and plan approved by the Municipality. It is also his specific case that several constructions are there in the neighbourhood. In fact the petitioner even went on to express his willingness to take out a commission for ascertaining and reporting this fact. Though reluctantly, the Municipality has accepted this as a reality, but R.P.No.273/2010 :6 : they seek to justify their conduct, firstly by saying that most of the constructions were made as part of Tsunami Rehabilitation Scheme. When this contention was urged, the counsel was specifically asked whether there is any exemption from CRZ norms in so far as tsunami rehabilitation projects are concerned and he could not point out any such exemption either in the Tsunami Rehabilitation Scheme or in the CRZ notification issued by the Government of India. If that be so, such constructions could not have been permitted by the Municipality and the rehabilitation scheme is no justification. As far as the steps taken against the existing and ongoing projects are concerned, apart from issuing notices, no concrete action has been taken. 9. Counsel for the Municipality vehemently contended that even if law has been breached by the Municipality or its officers, this court should not issue any direction resulting in perpetuation of illegalities. In other words, contention of the Municipality appears to be that we will go on violating the law but you shall not ask us to number the building of the petitioner. In my view there cannot be such a blanket license for the R.P.No.273/2010 :7 : Municipality to shower favours on its favourites and to be hostile to others. That an illegality cannot be perpetuated is too well settled a principle, it needs no reiteration. However, this is not a defense available to an offender and on the other hand, this is a principle adopted by the courts to deny relief to an undeserving litigant. Therefore I cannot accept this contention of the Municipality and justify its conduct. 10. In this case, positive averments have been made by the petitioner that after the filing of the writ petition and even this review petition, Municipality has numbered buildings and there is no satisfactory explanation from the Municipality, persuading me not to act upon the said averments. If numerous buildings and resorts in the neighbourhood can be numbered, I wonder why the petitioner alone should be declined same treatment. For these reasons, I feel that at least to a limited extend, relief ought to have been granted to the petitioner. Therefore, while I preserve the right of the Municipality to take appropriate action against the building constructed by the petitioner on receipt of the clarification from the Coastal Zone R.P.No.273/2010 :8 : Management Authority along with other similar buildings, in modification of the directions in the judgment, it is directed that the Municipality shall assign building number and issue occupancy certificate to the building constructed by the petitioner. This shall be done forthwith. Petitioner may produce a copy of this order before the respondent Municipality for compliance. (ANTONY DOMINIC) JUDGE vi/