IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 1ST JANUARY 2009 / 11TH POUSHA 1930 WP(C).No. 35277 of 2008(Y) -------------------------- PETITIONERS: --------------- 1. FR.BERNADINE.M.LOUIS, BETHSAIDA HERMITAGE, PULINKUDI, CHOWARA P.O. 2. FREDERICK THOMAS, BETHASAIDA HERMITAGE, PULINKUDI, CHOWARA P.O. BY ADV. SRI.P.B.SAHASRANAMAN SRI.K.JAGADEESH SRI.T.S.HARIKUMAR RESPONDENT(S): --------------- KOTTUKAL GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY KOTTUKAL, THIRUVANANTHAPURAM. ADV.SRI.S.V.PREMAKUMARAN NAIR SRI.R.T.PRADEEP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No.35277/2008 1 APPENDIX PETITIONERS EXHIBITS: EXT.P1: COPY OF THE APPLICATIONS SUBMITTED BY THE 1ST PETITIONER BEFORE THE RESPONDENT IN RESPECT OF FOUR BUILDINGS, DATED 31.8.2007. EXT.P2: COPY OF THE APPLICATIONS SUBMITTED BY THE 1ST PETITIONER BEFORE THE RESPODNENT, IN RESPECT OF FOUR BUILDINGS, DATED 31.08.2007. EXT.P3: COPY OF THE APPLICATIONS SUBMITTED BY THE 1ST PETITIONER BEFORE THE RESPONDENT, IN RESPECT OF FOUR BUILDINGS DATED 31.08.2007. EXT.P4: COPY OF THE APPLICATIONS SUBMITTED BY THE 1ST PETITIONER BEFORE THE RESPONDENT, IN RESPECT OF FOUR BUILDINGS, DATED 31.08.2007. EXT.P5: PHOTOGRAPHS OF THE SITE AND THE MATERIALS COLLECTED BY THE PETITIONER. EXT.P6: COPY OF THE STOP NOTICE ISSUED BY THE RESPONDENT DATED 11.11.2008. EXT.P7: COPY OF THE ORDER NO.A3/2938/08, DATED 18.11.2008. EXT.P8: COPY OF THE JUDGMENT IN (P.A.FAZAL GAFOOR VS. STATE OF KERALA AND OTHERS) OF THE HON'BLE SUPREME COURT OF INDIA IN SPECIAL LEAVE TO APPEAL (CIVIL) NO.5038/2002, DATED 25.04.2003. EXT.P9: COPY OF THE REPLY GIVEN BY THE PETITIONERS TO THE RESPONDENT, DATED 26.11.2008. EXT.P10: COPY OF THE SAID LIST OF PAPER. EXT.P11: COPY OF THE LETTER DATED 17.06.2006 ISSUED BY THE KERALA COASTAL ZONE MANAGEMENT AUTHORITY NO.048/ENV/2006/CZMA. DATED 17.06.2006, ISSUED TO ALL THE PANCHAYATS/MUNICIPALITIES/CORPORATIONS. EXT.P12: COPY OF THE APPLICATION SUBMITTED BY THE PETITIONERS BEFORE THE RESPONDENT, DATED 16.12.2008. RESPONDENT'S EXHIBITS: EXT.R1(a): COPY OF THE REPORT OF THE ASISSTANT ENGINEER DT.17.11.2008. EXT.R1(b): COPY OF THE UNDERTAKING DATED 15/11/2008 SUBMITTED BY THE PETITIONERS. EXT.R1(c): COPY OF EXPLANATION DATED 26.11.2008. EXT.R1(d): .DO. DATED 1.12.2008. W.P.(C).No.35277/2008 3 EXT.R1(e): COPY OF APPLICATION FOR PERMIT/REGULARISATION SUBMITTED BY THE PETITIONER DT.6.9.07. EXT.R1(F): DO. DO. DT.6.9.07. EXT.R1(g): DO. DO. DT.6.9.07. EXT.R1(h): DO. DO. DT.6.9.07. TRUE COPY P.A.TO JUDGE S.SIRI JAGAN, J - - - - - - - - - - - - - - - - - - - - - - - W.P(C)No.35277 of 2008 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of January, 2009 J U D G M E N T The petitioners are aggrieved by the order of the 1st respondent Panchayat whereby the petitioners have been directed to demolish a construction made in the petitioners' property allegedly in violation of the Coastal Regulation Zone (CRZ) notification 1991. Petitioners' contention is that the 1st respondent Panchayat has no jurisdiction to decide as to whether the construction made by petitioners is in violation of the CRZ notification and it is the exclusive function of the Coastal Zone Management Authority. The petitioners point out that this has been made abundantly clear by the Supreme Court in Ext.P8 judgment. The petitioners therefore seek the following relief: “ i. To issue a writ of certiorari calling for the records leading to Exhibits P.6 and P.7 and quash the same;” 2. This is opposed by the counsel for the 1st respondent who would submit that the Panchayat has powers to see whether the construction made by anybody is in violation of the CRZ notification. 3. In Ext.P8 judgment, the Supreme Court has held as follows: W.P(C)No.35277 of 2008 - 2 - “ The appellant challenges the judgment of a Division Bench of Kerala High Court in O.P. No. 13094/1998. The appellant sought permission to construct a residential building at Calicut and according to the appellant he completed the construction of the building on 28.10.1996. The appellant received a notice from the Secretary of the local Panchayat to the effect that construction of the building made by the appellant was in violation of the decision of this Court dated 12.12.1994 and the building had been constructed within 500 metres of high tide line from the sea shore and is against the Coastal Regulations Zone Notification. By the impugned notice the appellant was directed to demolish the building. The appellant challenged the same in the Writ Petition, but the High Court declined to interfere with the same. The counsel for the respondents points out that the proper authority to decide such question is the Coastal Zone Management. Authority constituted by the State. According to the appellant the Coastal Regulations Zone Notification is not applicable to the construction made by the appellant. Any way, that aspect can also be considered by the Coastal Zone Management Authority. The appellant may file an application before the Coastal Zone Management Authority within a period of six weeks from today and on furnishing such application, the Coastal Zone Management Authority shall decide the dispute as to whether the construction made by the appellant is in contravention of the Regulation or not. The authority shall give notice to both the parties before the decision is taken. The authority can also consider whether the Coastal Zone Regulation itself is applicable to the construction made by the appellant or not. If the appellant fails to make any application within six weeks from today, the respondent, Panchayat would be at liberty to pursue the matter on the basis of impugned notice. The appeal is disposed of.” 4. The facts of this case are very similar to the facts in Ext.P8 judgment as is clear from the facts stated therein. Therefore, I am satisfied that this writ petition can be disposed of in terms of Ext.P8 judgment. In the above circumstances, I dispose of this writ petition with the following directions: W.P(C)No.35277 of 2008 - 3 - The respondent Panchayat shall forward Ext.P12 application submitted by the petitioners before the Panchayat, to the Coastal Zone Management Authority within a period of one week from today. On receipt of that application, the Coastal Zone Management Authority shall decide the dispute as to whether the construction made by the petitioners is in contravention of the CRZ notification or not and the Authority shall give notice to both the petitioners as well as the Panchayat before the decision is taken. The authority can also consider whether the Coastal Zone Regulation itself is applicable to the construction made by the petitioners or not. In the meanwhile, status quo as on today shall be maintained in respect of the construction in question. The Coastal Zone Management Authority shall pass final orders as directed above within one month from the date of receipt of the application from the respondent Panchayat. S.SIRI JAGAN, JUDGE rhs