IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 24TH MAY 2011 / 3RD JYAISHTA 1933 WA.No. 419 of 2011 -------------------- (AGAINST THE JUDGEMENT/ORDER IN WPC.26221/2010 Dated 16/03/2011) .................... APPELLANT/ PETITIONER ------------------------ ALPHONSA STREEDER, W/O.MARTIN STREEDER, MANGALATH HOUSE, KOONAMMAVU P.O., VALLUVALLI MURI, KOTUVALLI VILLAGE, PARAVOOR TALUK, PIN - 683 518, REPRESENTED BY HER POWER OF ATTORNEY HOLDER SMT.ROSY VARGHESE. BY ADV. SRI.P.B.SAHASRANAMAN RESPONDENTS/RESPONDENTS -------------------------- 1. PALLIPURAM GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, PALLIPURAM, CHERAI - 683 614. 2. KERALA COASTAL ZONE MANAGEMENT AUTHORITY REPRESENTED BY ITS SECRETARY, SASTHRA BHAVAN, PATTOM, THIRUVANANTHAPURAM - 695004. R1 BY ADV. SRI.T.A.SHAJI R2 BY ADV SRI.S.RAMESH,SC,COASTAL ZONE MANAGEMENT THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J. CHELAMESWAR, CJ & P.R. RAMACHANDRA MENON, J. .............................................................................. W.A.No.419 OF 2011 ......................................................................... Dated this the 24th May, 2011 J U D G M E N T P.R. Ramachandra Menon, J. Whether changing of 'Asbestos roof' to 'Concrete roof' will amount to any 'construction' so as to attract the 'Ban' in respect of 'CRZ III' under the Coastal Regulation Zone Notification issued by the Government of India, is the issue involved in this appeal. 2. The appellant/petitioner, who is the owner of the building/rooms numbered by the first respondent Panchayat/local authority as XI/1017-A,B,C,D and E respectively owns 19.58 cents of land in Sy.No. 26/I of Kuzhuppilly Village, situated in the coastal belt of Kerala in Vypeen Islands. The petitioner is running a small restaurant in the downstairs of the building complex numbered separately, while the aforesaid 5 rooms are situated upstairs and have been numbered as separate buildings. In fact, the above 5 rooms in the upstairs are having an 'Asbestos' roofing, which according to the petitioner has been W.A.No.419 OF 2011 2 damaged and is leaking at different places. The petitioner wanted to change the same, to be replaced by 'Concrete' roofing and Ext. P2 application was filed in this regard before the first respondent for sanction. After considering the said application, the first respondent rejected the same as per Ext. P3 order dated 02.08.2010, on the ground that the building is situated in the CRZ area, as such, sanction of the second respondent (CRZ Management Authority) was necessary to have the application considered favourably. 3. The petitioner approached this Court challenging Ext. P3, contending that the idea and understanding of the first respondent Panchayat as to the scope of CRZ Notification and nature of the work sought to be done by the petitioner, for which sanction was sought for as per Ext. P2, was quite wrong and misconceived. It is stated that the buildings in question were there in existence even much before the issuance of the Notification and as such, no permission or sanction of the second respondent or any other authority is required under the 'CRZ Notification'. It is stated that changing of Asbestos roof by W.A.No.419 OF 2011 3 Concrete roof is only a 'repair', which does not involve any re- construction of the building to attract the 'Ban' under the Notification. 4. On receipt of the notice, the first and second respondents have filed separate counter affidavits pointing out that the petitioner had effected some construction in the nearby property quite unauthorisedly, after coming into force of the Notification and when steps were being taken to have the same demolished, the petitioner had approached this Court earlier, finally culminating in Ext.P4 judgment passed by a Division Bench of this Court, in the concerned Writ Appeal. Taking note of the specific observation made by a Division Bench of this Court as per the judgment reported in 2006(3) KLT 734 (Parthan vs. Nayarambalam Grama Panchayat), that the second respondent had already moved the Government of India seeking modification of the 'CRZ Notification' in so far as it related to Vypeen group of islands and that the Government was still to take a decision (as observed in paragraph No.4 of the judgment), the relief was moulded, intercepting the demolition W.A.No.419 OF 2011 4 of the building constructed by the petitioner in the said nearby property; but the regularisation and numbering of the building was made subject to the decision to be taken by the Government as to the proposed amendment to the 'CRZ Notification'. 5. The second respondent in their counter affidavit has pointed out in paragraph No.8, that the Government of India have revised the CRZ Notification 1991 and have issued CRZ Notification 2011, which does not allow repairs/renovation of any unauthorised buildings. 6. However, the so called 'unauthorised building' is in respect of the cause of action projected in W.A. No.1612 of 2009 forming the subject matter of Ext.P4 judgment, situated in the nearby property and is not in relation to the five rooms involved herein, situated on the upstairs of another building and already numbered as XI/1017-A,B,C,D and E. There is no case for the respondents that the buildings bearing No.XI/1017- A,B,C,D and E are unauthorised buildings or that the said buildings were constructed after the Notification issued in 1991. 7. The 'Coastal Regulation Zone Notification', by W.A.No.419 OF 2011 5 virtue of the specific stipulation therein, exempted all the existing authorised buildings, while intercepting with further constructions. As a matter of fact, the Notification for regulating the development activities classified the coastal stretches within 500 metres of High Tide Line on the Landwardside into four categories, viz., Category I, (CRZ-I), Category II (CRZ II), Category III (CRZ III) and Category IV (CRZ IV). The property involved herein comes within the Category III (CRZ III), which constitutes areas that are relatively undisturbed and those which do not belong to either Category I or II and includes coastal zone in the rural area (developed and undeveloped) and also areas within Municipal limits or other legally designated urban areas which are not substantially built up. The norms for regulating the activities in CRZ III are extracted below, to the extent it is relevant to the case in hand : “ CRZ - III (i) The area upto 200 metres from the High Tide Lime is to be earmarked as 'No Development Zone'. W.A.No.419 OF 2011 6 [Provided that such area does not fall within any notified port limits or any notified Special Economic Zone] [No construction shall be permitted within this zone except for repairs of existing authorized structures not exceeding existing FSI, existing plinth area and existing density, and for permissible activities under the notification including facilities essential for such activities]. However, the following uses/activities may be permissible in this zone - agriculture, horticulture, gardens, pastures, parks, play fields, forestry, [projects relating to the Department of Atomic Energy] [mining of rare minerals], salt manufacture from sea water and [facilities for receipt and storage of petroleum products and liquefied natural gas as specified in Annexure III appended to this notification and facilities for regasification of liquefied natural gas subject to the conditions as mentioned in para 2 (ii), facilities for generating power by non conventional energy sources, desalination plants, weather radars and construction of airstrips and associated facilities in the Islands of Lakshadweep and Andaman and Nicobar] xx xx xx xx xx (iv) Reconstruction/alterations of an existing authorised building permitted subject to (i) to (iii) W.A.No.419 OF 2011 7 above.” The learned Counsel for the petitioner with specific reference to the pleadings and proceedings submits that the request made by the petitioner for sanction as per Ext. P2 application was only for the purpose of changing 'Asbestos roof' by 'Concrete roof', which does not involve any reconstruction, but 'repair'. The learned Counsel further submits that the repair of an existing building stands specifically excluded from the restriction/Ban imposed by the norms, as aforesaid, and as such, no permission of the second respondent is necessary. It is also pointed out that the 'plinth area' of the building is not intended to be increased, nor is there any change in the existing 'FSI' and that there is no change in the existing density as well. This being the position, the 'roof changing' sought to be sanctioned vide Ext.P2 is clearly outside the purview of the second respondent and as such, Ext.P3 order passed by the first respondent rejecting Ext.P2 application is liable to be set aside; submits the learned Counsel. It is in the above circumstance, that the verdict passed by the W.A.No.419 OF 2011 8 learned Single Judge, holding it to the contrary, declining interference in the writ petition, is sought to be intercepted . 8. With regard to a query made by this Court as to fixation of tax liability under the Kerala Building Tax Act and satisfaction of the same, the learned Standing Counsel for the first respondent, on instruction, submits that the buildings bearing No.XI/1017-A,B,C,D and E have already been assessed under the relevant provisions of the 'Act' and the tax has already been realised, reckoning the 'plinth area' of the building; which remains the same. 9. After hearing both the sides, this Court finds that the plea raised by the petitioner that there is no increase in the plinth area or FSI or density of the existing buildings stands unrebutted and that the above buildings are already numbered by the local authority, which are put to use by the petitioner, paying the 'taxes'. So also there is no case for the respondents that the present buildings (XI/1017-A,B,C, D and E) situated on the upstairs of the restaurant run by the petitioner is part of any unauthorised building having been constructed subsequent to W.A.No.419 OF 2011 9 the Notification (unlike the case of the building involved in Ext.P4 judgment, situated in the nearby property of the petitioner). On analysing the facts and figures, it is clear that changing of 'Asbestos roof' by 'Concrete roof' does not involve any increase in the existing plinth area or FSI of the building and that it is only a 'repair' of the existing authorised structure. In so far as there is no case for the respondents that the existing structure is unauthorised, the change in the 'Asbestos roof', replacing the same by a 'Concrete roof' cannot have any adverse effect with regard to the scope and object of the Coastal Zone Regulation Notification and the norms prescribed therein. 10. In the above circumstance, Ext. P3 order passed by the first respondent is not correct or sustainable in the eye of law and hence the same is set aside. The first respondent is directed to re-consider Ext. P2 application preferred by the petitioner, in accordance with law, without insisting for any consent or concurrence from the second respondent. The proceedings shall be finalised as above, passing appropriate orders on Ext. P2 application, as expeditiously as possible, at W.A.No.419 OF 2011 10 any rate within one month from the date of receipt of a copy of the judgment. The judgment in the Writ Petition stands set aside and the writ appeal is allowed to the above extent. No cost. J. CHELAMESWAR, CHIEF JUSTICE. P.R. RAMACHANDRA MENON, JUDGE. lk