Kerala High Court
Shreya Joseph vs Kerala Coastal Zone Management ... on 10 May, 2022
WP(C) NO. 23352 OF 2021 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
TUESDAY, THE 10TH DAY OF MAY, 2022 / 20TH VAISHAKA, 1944
WP(C) NO. 23352 OF 2021
PETITIONER:
SHREYA JOSEPH
AGED 40 YEARS, W/O. RIAD JOSEPH,
PANAVELIL HOUSE, FORBES BUNGALOW,
VELI ROAD, FORT COCHIN, KOCHI - 682 001.
BY ADV SRI MILLU DANDAPANI
RESPONDENTS:
1 KERALA COASTAL ZONE MANAGEMENT AUTHORITY - KCZMA
SCIENCE AND TECHNOLOGY DEPARTMENT,
SASTHRA BHAVAN, PATTOM,
THIRUVANANTHAPURAM - 695 004.
2 DISTRICT LEVEL COMMITTEE,
KERALA COASTAL ZONE MANAGEMENT AUTHORITY,
CIVIL STATION, ALAPPUZHA - 688 013,
REPRESENTED BY ITS CHAIRMAN -
DISTRICT COLLECTOR, ALAPPUZHA.
3 DISTRICT TOWN PLANNER,
CIVIL STATION ANNEXE,
OPPOSITE BOAT JETTY, ALAPPUZHA - 688 013.
4 MARARIKULAM SOUTH GRAMA PANCHAYATH,
PO KALAVOOR, ALAPPUZHA - 688 546,
REPRESENTED BY ITS SECRETARY.
BY ADV M.P.PRAKASH (SC)
SRI.RAJEEV JYOTHISH GEORGE, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
09.02.2022, THE COURT ON 10.5.2022 DELIVERED THE FOLLOWING:
WP(C) NO. 23352 OF 2021 2
T.R. RAVI, J.
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W. P. (C). No. 23352 of 2021
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Dated this the 10th day of May, 2022
JUDGMENT
The petitioner, owner of 7.95 Ares of property in Sy.No.31/16
& 31/9 in Kattoorkara in Kalavoor Village coming within the limits of
the 4th respondent Panchayat, had applied for reconstruction of a
building bearing No.22/113A with plinth area of 142 M 2, which had
been assessed as early as in 1993. The petitioner had purchased
the property along with the building as per Sale Deed No.1446 of
2010 dated 23.04.2010 of SRO, Mararikulam.
2. The site where the building is located admittedly comes
within the Coastal Regulatory Zone III and the distance from the
High Tide Limit is stated to be 52 metres. The application
submitted by the petitioner was rejected as per Ext.P3 stating that
construction can be permitted within No Development Zone only for
fisherman/local inhabitant. Ext.P3 shows that there was an existing
building bearing No.22/113A assessed in 1993 having a plinth area
of 142 M2. The petitioner challenged the rejection before this
Court, which resulted in Ext.P6 judgment in W.P.(C).
No.24704/2019. In Ext.P6, this Court extracted the relevant
provisions of the Coastal Zone Regulation and held that the CRZ III
(ii) has two parts. The first part refers to repair or reconstruction of
an existing authorised structure and the second part relates to
construction or reconstruction by traditional coastal communities
including fisherfolk. This Court specifically found that the case of
the petitioner comes under the first part ie; repair or reconstruction
of an existing authorised structure. On the above finding, this
Court disposed of the writ petition setting aside the rejection of the
petitioner's application and directing the 4th respondent Panchayat
to forward the entire records of the existing authorised structure
along with the report and certificate certifying the authorised
structure in the land, to the CRZ authority. There is a further
direction to the CRZ authority to consider the application in the light
of the provisions contained in the CRZ III(ii).
3. Pursuant to the judgment, the Secretary of the 4 th
respondent Panchayat addressed the 1 st respondent as per Ext.P7
dated 30.11.2020 forwarding the assessment details of the
building. Ext.P8 is the certification given by the 4 th respondent
which says that the petitioner had been assessed for the building
No.113A in Ward No.22 from 1993. It is stated that it was earlier
assessed as Building No.5/34 in the name of one Allesh Panezhath
and on 29.01.2008 the ownership was changed to the name of one
Jacob Chavara and thereafter on 21.12.2010, it was further
changed to the name of the petitioner, after re-fixing the tax. It is
certified that the existing building has 142M 2 plinth area. Even
though this Court had specifically held that the case of the
petitioner comes under the first category relating to repair or
reconstruction of an existing authorized building, by Ext.P11 dated
17.07.2021 the first respondent wrote to the 4 th respondent stating
that the application submitted by the petitioner has been
considered at the meeting of the KCZMA held on 02.07.2021 and
03.07.2021 and it was decided not to grant CRZ clearance as the
applicant does not belong to the traditional coastal community or
local inhabitant criteria. By Ext.P12, the 4 th respondent informed
the petitioner about the decision of the 1 st respondent. The
petitioner has challenged the rejection and has filed this writ
petition.
4. A mere reading of Ext.P11 will show that the order has
been issued without considering any of the relevant aspects and is
per se arbitrary and unreasonable. In Ext.P6 judgment, this Court
had categorically held that the petitioner's case is to be considered
under the first limb of CRZ III(ii) which is concerned only with
repair or reconstruction of an existing authorised structure and is
not dependent on whether or not the applicant belongs to the
traditional coastal community or a local inhabitant criteria. It is in
the above circumstances that this Court had directed the 4 th
respondent to forward the details of the existing authorised
structure to the 1st respondent. The 1st respondent was a party to
the writ petition, which was disposed of by Ext.P6 and hence is
bound by the judgment. Even otherwise, the 1st respondent cannot
take a stand that the applicant in a case coming under the first limb
of CRZ III(ii) should also satisfy the criteria of being a traditional
fisherman community member or a local inhabitant. Even though a
counter affidavit has been filed on behalf of the 1 st respondent, this
aspect has not been answered. In the above circumstances, the
petitioner is entitled to succeed in this writ petition.
The writ petition is hence allowed. Exts.P11 and P12 are
quashed. The 1st respondent is directed to consider and allow
Ext.P1 application based on the information already supplied by the
4th respondent that there is an authorized structure in the area
which had 142 M2 plinth area and which had been existing from
1993 onwards. Necessary orders shall be issued within one month
from the date of receipt of a copy of this judgment.
Sd/-
T.R. RAVI
JUDGE
Pn
APPENDIX OF WP(C) 23352/2021
PETITIONER'S EXHIBITS
Exhibit P1 THE TRUE COPY OF THE APPLICATION ALONG WITH THE
PLAN.
Exhibit P2 THE TRUE COPY OF THE MINUTES OF THE MEETING OF THE
2ND RESPONDENT COMMITTEE.
Exhibit P3 TRUE COPY OF THE RELEVANT PAGE OF ANNEXURE 2
APPENDED TO THE MINUTES OF THE MEETING DATED
16.2.2019.
Exhibit P4 TRUE COPY OF 3RD RESPONDENT'S COMMUNICATION ON
5.3.2019 BEARING NO.C/852/2018 TO THE 4TH
RESPONDENT.
Exhibit P5 TRUE COPY OF COMMUNICATION DATED 22.6.2019 BEARING
NO.A4-4519/19 ISSUED BY THE 4TH RESPONDENT.
Exhibit P6 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT
DATED 6.11.2020 IN WP(C) NO.24704 OF 2019.
Exhibit P7 TRUE COPY OF THE LETTER ISSUED BY THE 4TH
RESPONDENT DATED 30.11.2020 BEARING NUMBER
A4.4519/2018.
Exhibit P8 TRUE COPY OF THE AFFIDAVIT OF THE 4TH RESPONDENT
AFFIRMING PETITIONER'S TITLE OVER THE PROPERTY.
Exhibit P9 TRUE COPY OF THE LETTER ISSUED BY THE 1ST
RESPONDENT BEARING NO.1757/A2/2019/KCZMA DATED
6.1.2021.
Exhibit P10 THE LETTER BEARING NO.A4-4519/2018 DATED 28.1.2021
ISSUED BY THE 4TH RESPONDENT TO THE 1ST RESPONDENT.
Exhibit P11 THE TRUE COPY OF THE LETTER DATED 17.7.2021 BEARING
NO.1757/A2/2020/KCZMA ISSUED BY THE 1ST RESPONDENT.
Exhibit P12 TRUE COPY OF THE LETTER BEARING NO.A4-4519/19 DATED
14.9.2021
