Suresh G.Poduval vs Pallippuram Grama ...
2021 Latest Caselaw 20405 Ker

W.P.(C) No. 20904/2010            :1:



                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

         FRIDAY, THE 1ST DAY OF OCTOBER 2021 / 9TH ASWINA, 1943

                         WP(C) NO. 20904 OF 2010

PETITIONER/S:

           SURESH G.PODUVAL
           KODAKKAT BUILDINGS, TEMPLE ROAD,, KADAVANTHRA,
           KOCHI-682 020.

           BY ADVS.
           SRI.T.V.GEORGE
           SRI.JIMMY GEORGE THADATHIL



RESPONDENTS:

     1     PALLIPPURAM GRAMA PANCHAYAT,
           REPRESENTED BY ITS SECRETARY,, PALLIPPURAM, CHERAI, KOCHI
           TALUK.
           (R1 IS DELETED VIDE ORDER DATED 28-7-10 IN IA 10488/10)

     2     UNION OF INDIA REPRESENTED BY ITS
           PRINCIPAL SECRETARY, MINISTRY OF, ENVIRONMENT AND FOREST,
           `PARYAVARAN BHAVAN', C.G.O.COMPLEX, LODI ROAD, NEW DELHI.

     3     STATE OF KERALA REPRESENTED BY ITS
           CHIEF SECRETARY, GOVERNMENT SECRETARIAT,,
           THIRUVANANTHAPURAM.

     4     KERALA COASTAL ZONE MANAGEMENT
           AUTHORITY, REPRESENTED BY ITS CHAIRMAN SCIENCE, TECHNOLOGY
           AND ENVIRONMENT COMMITTEE AND, EX.LOFFICIO PRINCIPAL
           SECRETARY, SCIENCE, TECHNOLOGY AND ENVIRONMENT
           DEPARTMENT, SASTHA, BHAVAN, THIRUVANANTHAPURAM.

     5     ADDL R5 IMPLEADED:
           KUZHUPILLY GRAMA PANCHAYATH
           REPRESENTED BY ITS SECRETARY, KUZHUPILLY,KOCHI TALUK.
           (ADDL R5 IS IMPLEADED AS PER ORDER DATED 28-07-10 IN IA
           10487/10)

           BY ADVS.
           T.R.RAJAN
 W.P.(C) No. 20904/2010           :2:


           SRI.PRAKASH C.VADAKKAN. J., SC, KCZMA
           R4 BY SRI.M.P.PRAKASH, SC, KCZMA
           R2 BY SRI. P. VIJAYAKUMAR, ASG


           R5 BY SRI. DHEERAJ GOVERNMENT PLEADER




      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON

01.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No. 20904/2010             :3:


              Dated this the 1st day of October, 2021.

                            JUDGMENT

The petitioner is the owner of an extent of 5.382 cents of

land in survey No. 284/16 of Kuzhuppilly village, Kochi Taluk within the

limits of the Kuzhuppilly Grama Panchayat.

2. Apparently, the petitioner has submitted an application

seeking a building permit before the Secretary of the Grama

Panchayat. The Secretary of the Grama Panchayat has rejected the

said application as per Ext. P3 order dated 22.02.2020 stating that

since the property is situated within the limits of Coastal Regulation

Zone Area, the building can be constructed leaving apart 10 meters

from the sea wall and that since the plan submitted by the petitioner is

violative of the said restrictive clause, the building permit cannot be

granted. It is, thus, challenging the legality and correctness of the Ext.

P3 order passed by the Secretary of the Grama Panchayat, the writ

petition was filed in the year 2010.

3. When the matter came up for admission, on 6 th July, 2010,

this Court, while admitting the matter, granted an interim direction as

prayed for, making it clear that the permit, thus, issued by the first

respondent would be provisional and the construction would be at the

risk of the petitioner. It was further made clear that the construction

shall be in accordance with CRZ-IV Regulations.

4. According to the petitioner, by virtue of the interim order

passed by this Court, he has completed construction and the building

was numbered by the Kuzhuppilly Grama Panchayat. It is also pointed

out that since the construction was completed on the basis of the

interim order passed by this Court and the building is numbered after

a lapse of 11 years, there can be no adverse consequence to the

petitioner and if any adverse orders are passed by this Court, it would

seriously prejudice the petitioner.

5. On the other hand, the learned counsel appearing for the

Kerala Coastal Zone Management Authority submitted that the area in

question comes under the CRZ and covered by the notification of

2011. It was also pointed out that the interim order passed by this

Court on 6th July, 2010 is not absolute in nature and character, since

the learned single Judge has specifically made it clear that the permit

issued should be provisional in nature and the construction will be at

the risk of the petitioner. It is also pointed out that in the order, it was

made clear that the construction shall be in accordance with the CRZ-

IV Regulations. Whatever that be, the learned Standing Counsel for

the Kerala Coastal Zone Management Authority also submitted that on

06.03.2018, a clause was added in the CRZ notification, 2011 namely

4.3 as per which, a post facto clearance can be sought for, if the

construction was not otherwise illegal.

6. Having heard the learned counsel for the petitioner Sri. T.V.

George and the learned Standing Counsel for the Kerala Coastal Zone

Management Authority Sri M.P. Prakash, I deem it fit to dispose of the

writ petition with suitable directions, taking note of the developments

that have taken place during the pendency of the writ petition from the

year 2010. Now that by virtue of the interim order passed by this

Court, the petitioner has secured a permit from the Secretary of the

Kuzhuppilly Grama Panchayat and completed construction in

accordance with the building permit and the plan approved by the

Grama Panchayat. It was also submitted that the building was

numbered.

7. However, in my considered opinion, when the interim order

was passed by this Court, this Court had made it clear that the permit

granted by the Secretary of the Grama Panchayat would be

provisional, and therefore, whatever developments that have taken

place consequent to that order can only be said to be provisional in all

respects under the provisions of the Kerala Panchayat Raj Act, 1994

and the Kerala Panchayat Raj Building Rules, 2011, which was the rule

prevalent and in force during the period in question.

8. After the construction is complete, the next step to be taken

by the petitioner is to submit an application seeking occupancy

certificate with appropriate documents, which is the stage at which

the Secretary of the Grama Panchayat can take into account all the

factual and legal circumstances and identify whether the construction

was carried out by the petitioner in accordance with law.

9. Therefore, I am of the considered opinion that the petitioner

can be given an opportunity to submit an application before the

Secretary of the Grama Panchayat with all supporting documents

seeking issuance of occupancy certificate within a time frame.

Accordingly, the petitioner is directed to file a suitable application

seeking occupancy certificate along with supporting documents within

one month from the date of receipt of a copy of this judgment.

10. Since the learned Standing Counsel for the Kerala Coastal

Zone Management Authority submitted that as per clause 4.3 of the

CRZ Notification, 2011, even though with certain riders, the petitioner

is having a remedy for regularising the construction carried out, he will

be at liberty to file a suitable application before the Secretary of the

Grama Panchayat accordingly also.

11. In the event of the petitioner making an application as

specified above, the Secretary of the Grama Panchayat shall take

necessary steps forthwith and at any rate within a week to forward the

application for regularisation of construction to the 4th respondent

namely the Kerala Coastal Zone Management Authority, who on receipt

of the said application, shall consider it at the earliest possible and at

any rate within three months from the date of receipt of a copy of the

application from the Secretary of the Grama Panchayat and issue

necessary communication to the Secretary at the earliest possible

time.

12. The Secretary, on receipt of the orders from the Kerala

Coastal Zone Management Authority as directed above, shall take

steps to consider the application submitted by the petitioner seeking

occupancy certificate and finalise the proceedings at the earliest and at

any rate within a month thereafter, after providing an opportunity of

participation to the petitioner. Till such time, there shall be no coercive

action.

With the above observations and directions, this writ petition is

disposed of.

sd/-

SHAJI P. CHALY, JUDGE.

Rv

APPENDIX OF WP(C) 20904/2010 (K)

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF BASIC TAX RECEIPT FOR THE YEAR 2010-

2011 ISSUED BY KUZHUPPILLY VILLAGE.

Exhibit P2 TRUE COPY OF APPLICATION DATED 22.12.2009 PREFERRED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.

Exhibit P3 TRUE COPY OF REJECTION ORDER DATED 22.02.2010 PASSED BY THE SECRETARY OF THE 1ST RESPONDENT- PANCHAYAT.

Exhibit P4 TRUE COPY OF CRZ NOTIFICATION ISSUED BY THE GOVT. OF INDIA DATED 15.12.1990.

Exhibit P5 TRUE COPY OF CRZ NOTIFICATION ISSUED BY THE 2ND RESPONDENT DATED 19.02.1991 AS AMENDED AS ON DATE.

Exhibit P6 TRUE COPY OF INTERIM ORDER DATED 03.04.2009 IN W.A 776/09 PASSED BY A DIVISION BENCH OF THIS HON'BLE COURT.

Exhibit P7 TRUE COPY OF INTERIM ORDER DATED 15.06.2020 IN W.P NO.18489/10 PASSED BY A LEARNED SINGLE JUDGE OF THIS HON'BLE COURT.

RESPONDENT'S EXHIBITS: NIL

/True Copy/

P.S to Judge.

rv