IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 24TH MARCH 2009 / 3RD CHAITHRA 1931 WP(C).No. 35115 of 2008(E) ---------------------------------------- PETITIONER(S): ------------------------- 1. P.VASUDEVAN, SON OF P. APPUKUTTA MENON, RESIDING AT 223, SECTOR 15 A, NOIDA -201 301, UTTER PRADESH STATE. 2. GEETHA VASUDEVAN, WIFE OF P. VASUDEVAN, RESIDING AT 223, SECTOR -15A, NOIDE - 201 301, UTTER PRADESH STATE. BY ADVS. MR.P.B.SAHASRANAMAN, MR.K.JAGADEESH, MR.T.S.HARIKUMAR. RESPONDENT(S): --------------------------- CENTRE FOR EARTH SCIENCE STUDIES, REPRESENTED BY ITS DIRECTOR, AAKKULAM, THIRUVANANHAPURAM. BY ADVS. MR.E.K.MADHAVAN, MR.V.KRISHNA MENON, SMT.P.VIJAYAMMA, SMT.UMA GOPINATH, MR.DEVIDAS.U.K. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.35115/2008 E APPENDIX PETITIONER'S EXHIBITS: EXT.P1: SOME PHOTOGRAPHS OF THE SAID PROPERTY, BUND, SLUICE AND THE WATERBODY. EXT.P2: COPY OF THE NOTIFICATION ISSUED BY THE GOVERNMENT OF INDIA, MoEF, NO.J.17011/8/92-ID-III, DTD. 4TH JANUARY,1999. EXT.P3: COPY OF THE STATUS REPORT PREPARED BY THE RESPONDENT IN RESPECT OF THE PETITIONER'S PROPERTY IN MAY, 2008. EXT.P4: COPY OF THE REVIEW APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT, DTD. 30/06/2008. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss V.GIRI, J ------------------- W.P.(C).35115/2008 -------------------- Dated this the 24th day of March, 2009 JUDGMENT Petitioners are the owners and in possession of a land having a total extent of 6 acres 36 cents of property in Sy. Nos.85/7 A-B, 85/8, 85/9, 85/10, 87/1, 87/2, 87/3 of the Vayalar East Village in Alapuzha District. The property lies on the western side of the plassery kayal. According to the petitioners, there is an embankment which separates the property from the Kayal, and several coconut trees have been planted across the said embankment. It seems that a sluice was laid in the said embankment for the purpose of facilitating flow of water from the kayal along the western side of the petitioner's property. The property lies lower than the mean sea level and the embankment could have been constructed probably to prevent the flow of water from the water body into the property at the time of High Tide. 2. The main grievance raised by the petitioners relates to the manner in which the HTL has been fixed in relation to the property belonging to the petitioners, by the Centre for Earth Science Studies, which is admittedly a body competent to fix the said Line. Going by Ext.P3, the embankment constructed W.P.(C).35115/2008 2 by the petitioners on the western side of their property, which abuts the plassery kayal, should have been treated as HTL for the area in question, and since the area is treated as CRZ-III area, the no construction zone should have been measured as 100 metres from the said embankment. The team deputed by the respondent, after inspection of the property, found that bunds have been constructed inside the property and the water body flows from the western side into the property. Therefore, a line, along three sides of the property was drawn by the respondent as HTL. This will in effect mean that a large portion of the property would be liable to be treated as a no construction zone. 100 metres will have to be measured from three sides. Ext.P4 representation was submitted by the petitioners and they have pointed out the following aspects therein. The water body on the western side is Olathala Kayal and not Plasseri Kayal. The Plasseri Kayal is situated one kilometer south of the present property. The water body is actually a canal, wherein the salinity is less than 10ppt. The location of the land is in the latitude between N.9.44.6 and 9.43.30 and not on the one stated. W.P.(C).35115/2008 3 The bund separating the land was constructed in 2000 on experimental basis so as to conduct aquaculture operations and it was closed. Therefore, the determination of HTL on the basis of the said entering the brackish water in my property is incorrect. The land will not come within the Map 30A of the Coastal Zone Management Plan of the State. The land owned by me is garden land; there are coconut trees on the western side. 3. Present writ petition has been filed challenging the fixation of HTL for the property and for a further direction to the respondents to fix the HTL and the coastal zone mapping line in relation to the petitioners' property with reference to the revenue boundaries of the property. Writ petition has been filed praying for the following relief:- To issue a writ, direction or order in the nature of mandamus commanding the respondent to redraft Ext.P3 report taking into consideration the eastern boundary of the petitioners property as High Tide Line for the purpose of Coastal Regulation Zone Notification, 1991, within reasonable time with this Honourable Court deems think fit and necessary in the circumstances of the case. W.P.(C).35115/2008 4 4. I heard learned counsel for the petitioners and learned counsel for the respondent. Counter affidavit has been filed by the respondent. 5. If the water body which lies on the western side of the petitioners' property extents into the property, the tidal effects which are felt in the water body would be extended to an area within the property of the petitioners. The tidal effect would be stemmed only if there is a complete blockade of water which lies on the western side from flowing into the property. Learned counsel for the petitioners submits that this aspect was realised and it is therefore, that the sluices which were originally laid from the western kayal to the petitioners' property have been completely closed. He contends that there is no water body within the property and therefore, the tidal effects which are felt in the plassery kayal would be stemmed at the area where the property lies adjacent to the kayal. This obviously would require a change in certain physical characteristics of the property and according to the petitioner, same has been done. 6. Learned counsel for the respondent submits that even if the sluices have been closed, since the petitioners' property lies below the mean sea level, naturally the flow of W.P.(C).35115/2008 5 water and the tidal effects resulting there from, cannot be prevented. Learned counsel for the petitioners refers to paragraph 10 of the writ petition, in which a portion from the Coastal Zone Management Report is extracted and the same reads as follows:- The Kuttanad area, though low lying belong mean sea level, is protected from tidal effects (salt water influx) by the Thanneermukkom barrage and Thottappall spillway in the north and south respectively. Hence it is excluded from the purview of the notification. 7. I find force in the submission made by the learned counsel for the petitioners that the fact that the property belonging to the petitioners lies below the mean sea level does not mean that the property cannot ever be protected from the tidal effects (salt water influx). If the petitioners have been able to protect the property from the tidal effects (salt water influx) either by reason of existing physical boundaries or otherwise, then, the petitioners are entitled to take advantage of the approach made in this regard by the respondents, as regards certain areas in Kuttanad. These are matters on which the experts in the field alone would be able to give a clear opinion. But I am satisfied that a fresh W.P.(C).35115/2008 6 look in the matter is required. Accordingly, if the petitioners make a representation clearly detailing the manner in which proper steps have been taken by them to stem the tidal effects (salt water influx) from the kayal lying on the western side of the property, then, respondent shall act upon the said representation, and cause a fresh inspection of the property to be made. Respondent shall on the basis of the inspection so conducted, fix the High Tide Line afresh in relation to the petitioners' property. If the need arises, Ext.P3 shall be re-drafted. The entire process shall be completed within four months from the date on which a representation, as aforementioned, is submitted by the petitioners. Writ petition is disposed of as above. V.GIRI, Judge mrcs