Case: The Kerala State Coastal Zone Management Authority Vs. The State of Kerala Maradu Municipality and Ors

4. The Appellant authority has been constituted by the Government of India in compliance with the directions issued by this Court in Indian Council for Enviro-Legal Action v. Union of India [(1996) 5 SCC 281]  as well as in the exercise of the powers conferred Under Section 3 of the Environment Protection Act, 1986. The Appellant authority is empowered to deal with the environmental issues relating to the notified Coastal Regulations Zones (in short, CRZ). Construction activities in the notified CRZ areas can be permitted only in consultation with and prior concurrence of the Appellant authority. It is the binding duty of the local self-Government, the competent authority before issuing building permits to forward an application for building permission to the Appellant authority along with the relevant record. The Appellant authority has issued circulars to all Gram Panchayats, Municipalities, and Municipal Corporations directing them to follow the provisions of CRZ notifications and to act in accordance with the procedures provided in the notifications.The decision of this Court in Piedade Filomena Gonsalves v. State of Goa [(2004) 3 SCC 445]  has also been relied upon which explains the significance of CRZ notifications in the interest of protecting environment and ecology in the coastal area and the construction raised in violation of the Regulations cannot be lightly condoned. The construction activities of the Respondent builders are on the shores of the backwaters in Ernakulam in the State of Kerala which supports exceptionally large biological diversity and constitutes one of the largest wetlands in India.The area in which the Respondents have carried out construction activities is part of the tidally influenced water body and the construction activities in those areas are strictly restricted under the provisions of the CRZ Notifications. Uncontrolled construction activities in these areas would have devastating effects on the natural water flow that may ultimately result in severe natural calamities. The expert opinions suggest that the devastating floods faced by Uttarakhand in recent years and Tamil Nadu this year are the immediate result of uncontrolled construction activities on river shores and unscrupulous trespass into the natural path of backwaters. The Coastal Zone Management Plan (in short, CZMP) has been prepared to check these types of activities and construction activities of all types in the notified areas. The High Court has ignored the significance of approved CZMP.As per the Appellant, these constructions activities are taking place in critically vulnerable coastal areas which are notified as CRZ-III. The panchayats have issued these permissions in violation of relevant statutory provisions and CRZ notifications. The Vigilance Section of Local Self Government Department, Government of Kerala detected these violations and anomalies in the issue of building permits and hence directed the concerned bodies to revoke all the flawed building permits exercising its powers Under Rules 16 and 23 of the Kerala Municipality Building Rules, 1999 (in short, referred to as the Rules of 1999).A show cause notice was issued Under Rule 16 of the Rules of 1999, asking the builders to show cause why the building permit issued to them be not cancelled. Writ Petitions were filed questioning the same. The learned Single Judge allowed the writ petitions. The Division Bench dismissed the appeals. The High Court has observed that the permit holders cannot be taken to task for the failure of local authorities in complying with the statutory provisions and notifications. Review petitions were also dismissed. Hence, the appeals by special leave have been preferred.After hearing the appeals for two days, we constituted the Committee to hear the parties. Following is the order passed by this Court on 27.11.The writ petitions filed questioning the show cause notice dated 4.6.2007 issued for the removal of the buildings, which according to show cause notice were falling within the prohibited area of CRZ Category. Various violations were mentioned in the show cause notice. Without availing the remedy of filing reply to the show cause notice, writ petitions were filed directly in the High Court. The Single Bench of the High Court vide its judgment and order dated 10.09.2012, allowed the writ petition. Aggrieved thereby, the Municipality preferred writ appeals before the Division Bench, which were dismissed by the impugned judgment and order dated 02.06.2015.Considering the peculiar facts and circumstances of the case, as there is no categorical finding recorded either by the Single Bench or by the Division Bench that whether the area in question is in CRZ Category-III, Category-I or Category-II. It was claimed by the Petitioner before the Single Bench that they fell within the CRZ Category-II, whereas the case set up by Coastal Zone Management Authority in this Court is that area is of CRZ Category-III. We deem it appropriate to call for the findings on the aforesaid aspect.We constitute a Three-Member Committee consisting of the Secretary to the Local Self Government Department, the Chief Municipal officer of the concerned Municipality and the Collector of the District, to hear the objections and to give a finding in terms of Notification dated 19th February 1991.Let the Committee hear the affected parties as well as Kerala State Coastal Zone Management Authority and State Government and consider the matter as submitted by the parties and send a report to this Court as to legality of construction and precisely in which category the area in question is to be categorized and whether building is in prohibited zone. Let the exercise be done within a period of two months and a report be submitted to this Court.Let the report be submitted covering the aspect that may be urged by the parties as to the legality of construction.The aforesaid order was passed in order to cut short the litigation in respect of the show cause notice issued by the authorities as the 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 at length again after receipt of the report. The Committee consisted of the followingK. Gopalakrishna Bhat,>2. K. Mohammed Y. Safirulla, AIA,District Collector,Ernakulam.. The Committee has given the opportunity of hearing and has dealt with the case set up by all the stakeholders in extensive detail. Following findings and conclusion have been recorded by theCommittee evaluated all arguments raised by the parties and KCZMA, existing Rules and Statutes and examined the Google map produced at the time of thefindings of the committee are asMarad Panchayat which was formed in 1953 was upgraded into a municipality in NovemberThe Coastal Zone Management Plan (CZMP of Kerala currently applicable is the one that was approved in 1996. As per the said CZMP, Marad has been marked as Panchayat area and hence falls in the Coastal Regulation Zone (CRZ) category of CRZ-III. The area is represented in the Map numbers 33, 33A and 34 of CZMP 1996. These maps are attached as Annexure 1 and 2. A mosaic of the three maps showing the Marad area is attached as Annexure 3. Since the Panchayat has been upgraded to Municipality in the year 2010, the same has been shown as CRZ-II category in the draft CZMP prepared as per the CRZ Notification 2011 and submitted to the MoEF&CC of Government of India recently. Until the Government of Kerala/KCZMA receives a communication from the Government of India on the approval of the CZMP draft submitted, the CZMP of 1996 stands valid. Hence, as on date, Maradu area being a backwater island the provisions as detailed below is applicable after 6th January 2011 i.e., the date on which Government of India published Coastal Zone Management PlanThe islands within the backwaters shall have 50 mts width from the High Tide Line on the landward side as the CRZwithin 50 mts from the HTL of these backwater islands existing dwelling units of local communities may be repaired or reconstructed however no new construction shall bebeyond 50 mts from the HTL on the landward side of backwater islands, dwelling units of local communities may be constructed with the prior permission of the Gramaforeshore facilities such as fishing jetty, fish drying yards, net mending yard, fishing processing by traditional methods, boat building yards, ice plant, boat repairs and the like, may be taken up within 50 mts width from HTL of these backwaterCoastal Zone Management Plan (CZMP) of Kerala currently applicable is the one that was approved in 1996. As per the said CZMP Maradu has been marked as Panchayat area and hence falls in the Coastal Regulation Zone (CRZ) category of CRZ III. Maradu Panchayat has been upgraded to Municipality in the year 2010 and hence in the draft CZMP prepared as per CRZ Notification 2011, it is shown as CRZ II category. The new draft CZMP is submitted to MoEF & CC of Government of India for approval. Until Government of India approved the draft notification CZMP 1996 stands valid."

Reasoning: 12. It is apparent that at the relevant time when the construction has been raised by the Respondents in the matters, the area was within CRZ-III. With respect to CRZ-III, the relevant notification dated 19.2.1991 indicates that the area of 200 meters from the High Tide Line is no development zone. No construction shall be permitted within this zone except for repairs of the authorized structures not exceeding existing FSI.It is necessary for the local authority to follow the restrictions imposed by the notification, as amended from time to time. Thus, it was not open to the local authority, i.e., Panchayat, in view of the notification of 1991 to grant any kind of permission without the concurrence of Kerala State Coastal Zone Management Authority. Admittedly, Panchayat has not forwarded any such applications for building permissions and there is no concurrence or permission granted by the Kerala State Coastal Zone Management Authority. As such, we find that once a due inquiry has been held by the Committee, there is no escape from the conclusion that the area fell within CRZ-III, it was wholly impermissible and unauthorised construction within the prohibited area. We also take judicial notice of recent devastation in Kerala which had taken place due to heavy rains compounded by such unbridled construction activities resulting in colossal loss of human life and property due to such unauthorised activity.Further, reference has also been made to a decision of the Kerala High Court in Ratheesh v. State of Kerala [2013 (3) KLT 840 ]. The same is extractedHowever, we would rather rest our decision without pronouncing on the validity of the permits as such. We have found that the Notification is applicable to the island, the island falls in CRZ-I and construction is impermissible. By merely getting a permit under the Building Rules, it cannot be in the region of any doubt that the company cannot arrogate to itself, the right to flout the terms of the Notification. We have already noticed Rule 23(4) of the Kerala Municipality Building Rules, 1999 and Rule 26(4) of the Kerala Panchayat Building Rules, 2011. In this case, we may also note that there is no permission sought from the authority. It is apposite to note that paragraph 3 (v) clearly mandates that for investment of Rs. 5 crores and above, permission must be obtained from the Ministry of Environment WP(C). No. 19564/11 & CON. CASES 21 and Forest. In this case, the investment of the company is far above Rs. 5 crores. In respect of investments below Rs. 5 crores, for activities which are not prohibited, permission must be obtained from the concerned authority in the State. The company has not made any such attempt at getting permission. That apart, this is a case where, even if permission had been applied for, the terms of the Notification would stand in the way of any such permission being granted in so far as the island is treated as falling in CRZ-I. Construction of buildings as has been done by the company was absolutely impermissible. The fact that in a situation where the construction activity was permissible under the Notification and if the company had obtained permit from the local body, would have made its activities legal, cannot avail the company for the reason that under the terms of the Notification, such permit obtained from the panchayat will be of little avail to it in the light of the nature of the restrictions brought about by the Regulations in respect of CRZ-I in which zone the island falls. According to the WP(C). No. 19564/11 & CON. CASES 22 panchayat, no doubt, the conditions have been imposed also as recommended by the Assistant Engineer who is alleged to have even visited the island. Whatever that be, as observed by us, in the light of the view we have taken, namely that the 1991 Notification applies to the island, it is squarely covered by the same being included in CRZ-I and the constructions were begun even during the currency of the 1991 Notification. The conclusion is inescapable that it is in the teeth of the prohibition contained in the 1991 Notification and, therefore, it is palpably7. At this stage, we must deal with the argument raised before us by the company. It is submitted that a world-class resort has been put up which will promote tourism in a State like Kerala which does not have any industries as such and where tourism has immense potential and jobs will be created. It is submitted that the Court may bear in mind that the company is eco-friendly and if at all the Court is inclined to find against the company, the Court may, in the facts of this case, give direction to the company and the company will strictly abide by any safeguards essential for the preservation of environment.We do not think that this Court should be detained by such an argument. The Notification issued under the Environment (Protection) Act is meant to protect the environment and bring about sustainable development. It is the law of the land. It is meant to be obeyed and enforced. As held by the Apex Court, construction in violation of the Coastal Regulation Zone Regulations are not to be viewed lightly and he who breaches its WP(C). No. 19564/11 & CON. CASES 24 terms does so at his own peril. The fait accompli of constructions being made which are in the teeth of the Notification cannot present, but a highly vulnerable argument.We find that the view taken by the Kerala High Court in the aforesaid decision is