Kerala High Court
P.M.Sukhilesh vs State Of Kerala on 12 November, 2020
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
THURSDAY, THE 12TH DAY OF NOVEMBER 2020 / 21ST KARTHIKA, 1942
WP(C).No.34712 OF 2019(L)
PETITIONER/S:
P.M.SUKHILESH, AGED 41 YEARS, S/O.SURENDRAN B., J. S.
NIVAS, MELUR POST, KANNUR DISTRICT, PIN - 670 661.
BY ADV. SRI.P.K.RAVI SANKAR
RESPONDENT/S:
1 STATE OF KERALA, REPRESENTED BY AGRICULTURAL
PRODUCTION COMMISSIONER, THIRUVANANTHAPURAM-695 001.
2 STATE LEVEL MONITORING COMMITTEE,
REPRESENTED BY ITS CONVENOR, AGRICULTURAL PRODUCTION
COMMISSIONER, THIRUVANANTHAPURAM - 695 001.
3 DISTRICT COLLECTOR, KANNUR, PIN - 670 001.
4 LOCAL LEVEL MONITORING COMMITTEE,
DHARMADAM, REPRESENTED BY ITS CONVENOR / AGRICULTURAL
OFFICER, KRISHI BHAVAN, DHARMADAM, PALAYAD POST,
KANNUR DISTRICT, PIN - 670 661.
5 KERALA COASTAL ZONE MANAGEMENT AUTHORITY,
REPRESENTED BY ITS MEMBER SECRETARY, 4TH FLOOR,
K.S.R.T.C. BUS TERMINAL, THIRUVANANTHAPURAM-695 001.
6 DHARMADAM GRAMA PANCHAYAT, REPRESENTED BY ITS
SECRETARY, DHARMADAM, KANNUR DISTRICT, PIN-670 106.
7 SECRETARY, DHARMADAM GRAMA PANCHAYAT, DHARMADAM,
KANNUR DISTRICT, PIN - 670 106.
R5 BY ADV. SRI.M.P.PRAKASH
R6-7 BY ADV. SRI.GRASHIOUS KURIAKOSE (SR.)
R6-7 BY ADV. SRI.PRANOY K.KOTTARAM
R6-7 BY ADV. SRI.GEORGE MATHEWS
BY SENIOR GOBVERNMENT PLEADER, SRI.V MANU
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
04.11.2020, THE COURT ON THE 11.11.2020 DELIVERED THE FOLLOWING:
WP(C).No.34712/2019 2
JUDGMENT
Dated this the 12th day of November 2020 The Dharmadam Grama Panchayat purchased a land in the year 2008 to establish a public crematorium within the Panchayat. The land is having an extent of 20 cents in Dharmadam Village at Melur desom on the banks of the river Anjarakandy. The land was described as 'wetland' in the revenue records. In the settlement register, description of the land was shown as 'Nanja'. Under the Village Manual, 'Nanja' in Malabar area represents 'wetland'.
2. One Jinachandran A., a resident of Melur Village approached this Court in W.P.(C) No.11762/2010 alleging that no actions were taken by the District Collector against illegal reclamation of the land by the Panchayat in violation of the Kerala Conservation of Paddy Land and Wetland Act, 2008 (for short, the 'Paddy Act'). This Court directed the District Collector and the Revenue Divisional Officer to consider the complaint. An interim order passed in the case against reclamation was retained to continue till the decision is taken pursuant to the direction as WP(C).No.34712/2019 3 above.
3. As directed by this Court, the District Collector heard the matter. The District Collector noting that the land in question is a wetland and no permission was obtained by the Panchayat from the Government as mandated under Section 10 of the Paddy Act, ordered the restoration of the reclaimed land.
4. The Panchayat moved the Government for permission. The Government has necessary power under Section 10 of the Act to reclaim any paddy land for any public purpose. It is to be noted that the Government has no power under Section 10 to grant permission for the reclamation of wetland. The power referred under Section 10 has to be understood in the light of the prohibition of conversion of the paddy land under Section 3 of the Paddy Act. under Section 11, there is a complete embargo against reclamation of any wetland.
5. The Government considered the matter and allowed the request of the Panchayat to reclaim the land. According to the Government, cemetery being coming under the public purpose it can very well permit the Panchayat to reclaim WP(C).No.34712/2019 4 the land for the public purpose.
6. It is to be noted that the proceedings of the District Collector, as well as the Government, were without adverting to the fact that whether the land has been included in the data bank or not. Exts.R7(d) and (e) are the notifications of the data bank within Dharmadam Grama Panchayat. The data bank would show that the land is not included as a paddy or wetland.
7. The land is situated on the banks of Anjarakandy river. As seen from the reports of the Senior Scientist made available before this Court that the area of the land is covered with mangroves, spreading to more than 1000M2. The description of the area as reported in Ext.R5 would show that satellite imageries revealed the area was paddy fields upto 2004 and after the reclamation, mangroves started spreading. Admittedly, the area comes under the Coastal Regulation Zone (CRZ). For the purpose of conserving and protecting Coastal Regulation Zone, Ministry of Environment, Forest and Climate Change issued a notification. The said notification was issued invoking the power referrable to the Central Government under WP(C).No.34712/2019 5 Section 3 of the Environment (Protection) Act, 1986. The notification enumerates the permitted activities and the prohibited activities in the area notified as CRZ.
8. The Secretary of the Dharmadam Grama Panchayat submitted an application before the Kerala Coastal Zone Management Authority (for short, the 'CRZ Authority') as per its letter dated 09.07.2013. At that time, CRZ notification 2011 was in force. CRZ Authority, after considered the site inspection report, noted that the area came under CRZ-I(i) and decided to reject the permission sought.
9. The Secretary of the Grama Panchayat again represented to CRZ Authority by a letter dated 03.10.2016 to reconsider the decision. CRZ Authority deputed Dr.P. Harinarayanan, Senior Scientist, KSCSTE, to conduct an inspection and report. It is seen that Dr.P.Harinarayanan gave an opinion since the proposed activity is a prohibited activity, CRZ Authority may take up the matter with the Ministry of Environment, Forest and Climate Change for permission as a special consideration. CRZ Authority appears to have moved the ministry for clearance by the WP(C).No.34712/2019 6 letter dated 12.01.2017.
10. No response was received from the ministry. Again the Secretary of the Panchayat represented to CRZ Authority. CRZ Authority granted permission to clearance with certain conditions. Ext.P4 is the clearance.
11. The writ petition was filed challenging Ext.P3 order dated 06.4.2013 of the Government under the Paddy Act to reclaim the wetland and also challenging clearance granted by CRZ Authority as per Ext.P4.
12.It was specifically urged in the writ petition that CRZ Authority having noted in the clearance, the area comes under CRZ-I under 2011 notification, it could not have granted permission for crematorium. Under CRZ-I, in 2011 notification, certain activities are permitted in the area between LTL and HTL, which are not ecologically sensitive. But this does not include the crematorium. However, in the same notification in CRZ-III, the crematorium is permissible for local inhabitants.
13. This writ petition was filed on 17.12.2019 challenging the order of the Government and the clearance granted by CRZ Authority as above. By the time, CRZ 2019 WP(C).No.34712/2019 7 was notified with effect from 18.1.2019. As per the draft coastal zone management plan, this area is included in CRZ- I. Submissions were made before this Court by CRZ Authority stating that they are proposing to re-categorise the area. This Court permitted CRZ Authority to consider re-categorization without prejudice to the contention of the petitioner by its order dated 12.12.2020. The matter was considered by CRZ Authority. CRZ Authority was of the view that clearance given earlier treating the area as CRZ- I was wrong and instead of CRZ-I, it should be treated as CRZ-III. Accordingly, Ext.P6 was issued granting clearance by re-categorizing the area as CRZ-III as per its order dated 10.03.2020. Admittedly, by that time the area has been approved as CRZ-I under 2019 notification. The purported act of CRZ Authority is therefore to relate the change of categorisation for clearance under 2011 notification. This decision produced as Ext.P6, is also challenged by way of an amendment.
14. The challenge in regard to the Government Order dated 6.4.2013 is on the ground that the land is a wetland and the Government could not have granted any permission WP(C).No.34712/2019 8 under Section 10 of the Act to reclaim the wetland. The Paddy Act allows reclamation of paddy land for the purpose of putting up a residential building as referrable under Section 9 or for any public purpose as referred under Section 10. However, there is a complete prohibition on reclamation of wetland under Section 11. The land is described as Nanja, as a wetland. However, it is to be seen from the records made available before this Court that the land is not included as a wetland in the data bank. If the wetland was reclaimed prior to 12.8.2008 and it is not included in the data bank as a wetland, there is no embargo under law to utilise the land for any lawful purposes. In the light of the fact that the land is not included in the data bank, any permission granted by the Government under Section 10 is a redundant exercise. In the light of the fact that the land is not included in the data bank, the remedy of the petitioner is to approach for inclusion of the land in the data bank and no purpose will be served challenging an order which has no legal basis. Therefore, I decline the challenge made by the petitioner to the Government Order.
WP(C).No.34712/2019 9
15. In regard to the challenge to Exts.P4 and Ext.P6, at the outset, I must say the petitioner made out a case for interference. Ext.P4 clearance was given by CRZ Authority categorizing the area as CRZ-I. Under 2011 notification, in CRZ-I, areas between LTL and HTL which are not ecologically sensitive, after ensuing necessary safety measures. CRZ authority can permit the following activity which is for the common utility of traditional local inhabitants. CRZ-I (iii)(b) refers to the activity as follows:
"Construction of dispensaries, schools, public rainshelter, community toilets, bridges, roads, jetties, water supply, drainage, sewerage which are required for traditional inhabitants living within the biosphere reserves after obtaining approval from concerned CZMA."
The crematorium is not included as an activity. Therefore, clearance could not have been granted for a crematorium in an area under CRZ-I. The learned Standing Counsel for the CRZ Authority submits that crematorium is being an activity relating to common utility for local inhabitants, it can also be permitted within CRZ-I. WP(C).No.34712/2019 10
16. I am afraid to accept this argument of the counsel for CRZ Authority. Once activities are enumerated and the exhaustive list is given under different zone, it is not open for the court or any authority to tinker the same by including any other activity. Therefore, the only question now to be considered is that the alleged correction carried out by Ext.P6 on 10.3.2020 categorizing the area as CRZ-III is valid or not.
17. In 2011 notification, the crematorium is permissible under CRZ-III A (iii)(j). It is to be noted that this correction was carried out when an exercise of mapping this area based on 2019 notification has been completed. Ext.P8 is the coastal zone management plan approved for the Dharmadam Grama Panchayat. The area comes under CRZ-IA treating it as mangroves. Under 2019 notification, in CRZ-IA areas are ecologically most sensitive and generally, no activities are permitted except for eco-tourism or the activity related to mangroves or construction of roads on stilts or reclamation for defence or strategic purposes. CRZ-IA is treated as the most ecologically sensitive area. It is in this background, WP(C).No.34712/2019 11 Ext.P6 order of clearance dated 10.3.2020 has to be reviewed.
18. This Court has to consider first, the basis for correction or rectification. Ext.P4 clearly states that category of the area is CRZ-I, where no crematorium can be constructed. However, overlooking this, clearance was granted. It is only when a challenge is made before this Court the CRZ Authority chosen to categorize it as CRZ-III.
19. Ext.P6 clearance, apparently, has been issued by CRZ Authority overlooking the report of the Senior Scientist Dr.P.Harinarayanan. He observed the growth of mangroves during 2009 itself. In the second report also he has stated that the area has mangroves and hence the area is in CRZ-I(A) and CRZ-IV. He opined that without permission granted by the Ministry of Environment, Forest and Climate Change, no new construction can be permitted. The CRZ Authority took up the matter with the ministry. No response was received from the ministry. There was no basis for changing the category from CRZ-I to CRZ-III. Assuming that 2019 notification would not apply, the correction would have been possible only on existence of factual WP(C).No.34712/2019 12 criteria related to categorization as CRZ-I is required to be reviewed or rectified. In the absence of any materials to change the category as CRZ-III instead of CRZ-I, CRZ Authority could not have rectified Ext.P4 order.
20. There cannot be any dispute if an rectification is made it relates back to the date of the original order. The original order of clearance was on 13.12.2018 much before 2019 notification. However, in the context of construction, it has to be viewed differently. The construction regulates the activity of the present and future. The regulation in CRZ in relation to the construction intends to preserve and conserve on the land as on the date of notification. If such activities are not permissible as per the present law, a rectification cannot be made in an order issued prior to the regulation to enable a construction in violation of the existing regulation. The law relates to the construction is clear. Any permission or clearance can be given only with respect to the law, that is applicable as on the date of commencement of the construction. The applicant has no vested right to consider the application based on the law not in existence as on the date of rectification of any WP(C).No.34712/2019 13 clearance or permission. The applicant for construction has no right to seek rectification of clearance or permission in-derogation of law that exists as on the date of granting clearance or permission. (See the Apex Court judgment in Howrah Municipal Corporation and Others v. Ganges Rope Co. Ltd. and Others [(2014) 1 SCC 663].
21. In Howra Municipal's case (supra), after placing reliance on Usman Gani J. Khatri v. Cantonment Board [(1992) 3 SCC 455], observed in paragraph 30 as follows:
"This Court, thus, has taken a view that the Building Rules or Regulations prevailing at the time of sanction would govern the subject of sanction and not the Rules and Regulations existing on the date of application for sanction. This court has envisaged a reverse situation that if subsequent to the making of the application for sanction, the Building Rules, on the date of sanction, have been amended more favourably in favour of the person or party seeking sanction, would it then be possible for the Corporation to say that because the more favourable Rules containing conditions came into force subsequent to the submission of application for sanction, it would not be available to the person or party applying."
22. It was further observed that in the matter of WP(C).No.34712/2019 14 sanction of the building for construction, the paramount consideration is public interest and convenience and not the interest of the particular persons or party. Therefore, in the light of CRZ regulation which gives consideration to the conservation and preservation as on the date of such notification, CRZ Authority cannot rectify the earlier order passed and re-categorize the area overlooking the existing law as on the date of the order of the rectification.
23. The learned Standing Counsel, Sri.Prakash N.P. placing reliance on the judgment of the Apex Court in M.Nizamudeen v. Chemplast Sanmar Limited and Others [(2010) 4 SCC 240] submitted that when an approval relates back to an anterior date any subsequent change of law will not have an impact on the approval already granted. According to him, since rectification dates back to an act done pursuant to 2011 notification, any draft plan approved under 2019 notification may not have relevance. The Apex Court in M.Nizamudeen's case(supra) considered the matter related to setting up of the project for manufacturing polyvinyl chloride(PVC) at Semmankuppam Village in Cuddalore WP(C).No.34712/2019 15 District(Tamil Nadu). The company, namely, M/s.Chemplast Sanmar Limited had obtained approval based on a plan prepared in the year 1996 consequent upon CRZ 1991 notification. Thereafter, the company made investment more than 600 crores. The question that was considered whether amendments to the plan dated 29.12.1998 and 21.5.2002 in 1991 notification could have any impact upon approval already granted in the year 1996. The Apex Court held that subsequent amendments have no bearing on approval already granted.
24. No doubt, the judgment in M.Nizamudeen's case(supra) would have an application in this case if the clearance was granted prior to 2019 notification treating this area as category-III. The clearance was given treating the area as CRZ-I where the construction of crematorium is impossible. Rectification was made during the pendency of the writ petition when challenge has been mounted on an order granting clearance. Any valid clearance or permission granted cannot be interfered merely based on the subsequent amendments. However, an act which would have been illegal cannot be saved through a process of rectification WP(C).No.34712/2019 16 overlooking the existing law in the matter.
25. The learned counsel for CRZ Authority also argued that the petitioner has no locus standi and he placed reliance on the judgment of Apex Court in Ayaaubkhan Noorkhan Pathan v. State of Maharashtra and Others [2012 KHC 4653]. That was a case related to issuance of the caste certificate. The environmental protection is for all and to protect the community living in coastal areas. Any person who is aggrieved by a wrong order by CRZ Authority can question such decision. The petitioner is the resident of Melur in Dharmadom Village. He has every right to question the decision of the CRZ Authority. This case shows that an authority entrusted with the protection of coastal areas themselves have chosen to violate the law. It is also important to note that in draft coastal zone management plan prepared under 2019 notification, this area has been categorized CRZ-I(A) ecologically most sensitive area. Despite CRZ Authority wants to perpetuate an illegality already committed by granting permission as per Ext.P4. This Court has to look at this attitude of CRZ Authority with dismay and disapproval. Accordingly, Ext.P4 and P6 WP(C).No.34712/2019 17 are set aside. The Panchayat is restrained from using the land for construction of crematorium without valid clearance in accordance with law from the Ministry of Environment, Forest and Climate Change.
The writ petition is allowed. No costs.
Sd/-
A.MUHAMED MUSTAQUE JUDGE ln WP(C).No.34712/2019 18 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 PHOTOGRAPH OF THE LAND OWNED BY THE 6TH RESPONDENT.
EXHIBIT P2 TRUE COPY OF THE ORDER NO.REF.L3.10/20875/13 DATED 4.11.2011 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE G.O.(MS) NO.109/2013/AGRICULTURE DATED 6.4.2013 ISSUED BY THE 1ST RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE PROCEEDINGS NO.5754/A3/2016/KCZMA DATED 13.12.2018 ISSUED BY THE 5TH RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE AADHAR CARD ISSUED TO THE PETITIONER.
EXHIBIT P6 TRUE COPY OF THE ENGLISH TRANSLATION OF EXHIBIT P2 EXHIBIT P7 TRUE COPY OF THE ENGLISH TRANSLATION OF EXHIBIT P3 RESPONDENT'S/S EXHIBITS:
EXHIBIT R7(A) TRUE PHOTOSTAT COPY OF THE ASSIGNMENT DEED NO.1400/2008 DATED 21.06.2008.
EXHIBIT R7(B) THE TRUE COPY OF ENGLISH TRANSLATION OF MALAYALAM EXHIBIT R7(A).
EXHIBIT R7(C) THE TRUE PHOTOSTAT COPY OF THE JUDGMENT DATED 07.06.2010 IN W.P.(C) NO.11762/2010 OF THE HONOURABLE HIGH COURT OF KERALA.
EXHIBIT R7(D) TRUE PHOTOCOPY OF THE RE-NOTIFICATION OF THE DATE BANK OF CULTIVABLE PADDY LAND AND WET LAND DATED 6.4.2019.
EXHIBIT R7(E) THE TRUE COPY OF ENGLISH TRANSLATION OF MALAYALAM EXT.R7(D).WP(C).No.34712/2019 19
EXHIBIT R7(F) TRUE PHOTOSTAT COPY OF THE ORDER DATED, 11.09.2015 OF THE DISTRICT COLLECTOR, KANNUR.
EXHIBIT R7(G) THE TRUE ENGLISH TRANSLATION OF MALAYALAM EXT.R7(F).
EXHIBIT R7(H) THE TRUE PHOTOSTAT COPY OF THE APPLICATION NO.A5/725/11 DATED, 19.07.2013 SUBMITTED BY THE 7TH RESPONDENT BEFORE THE KERALA COASTAL ZONE MANAGEMENT AUTHORITY.
EXHIBIT R7(I) THE TRUE ENGLISH TRANSLATION OF MALAYALAM EXT. R7(H).
EXHIBIT R7(J) THE TRUE PHOTOSTAT COPY OF THE ORDER DATED 13.12.2018 OF THE COASTAL ZONE MANAGEMENT AUTHORITY NO.5754/A3/2016/KCZMA DATED 28.05.2018.
EXHIBIT R7(K) TRUE PHOTOCOPY OF THE ORDER DATED, 02.08.2019 OF THE DISTRICT COLLECTOR, KANNUR.
EXHIBIT R7(L) THE TRUE COPY OF ENGLISH TRANSLATION OF MALAYALAM EXT. R7(K).
EXHIBIT R7(M) THE TRUE PHOTOSTAT COPY OF THE ORDER DATED, 18.06.2019 ISSUED BY KERALA STATE POLLUTION CONTROL BOARD.
EXHIBIT R7(N) TRUE PHOTOSTAT COPY OF THE DETAILED ESTIMATE FOR 2011-2012 DATED 31.1.2012. EXHIBIT R7(O) THE TRUE COPY OF ENGLISH TRANSLATION OF MALAYALAM EXT. R7(N).
EXHIBIT R7(P) THE TRUE COPY OF THE DETAILED ESTIMATE FOR 2018-2019 DATED 29.10.2018.
EXHIBIT R7(Q) THE TRUE COPY OF ENGLISH TRANSLATION OF MALAYALAM EXT.R7(P).
EXHIBIT R7(R) THE TRUE PHOTOCOPY OF THE AGREEMENT BETWEEN THE 6TH RESPONDENT AND MR.AJEENDRAN.
EXHIBIT R7(S) THE TRUE COPY OF ENGLISH TRANSLATION OF MALAYALAM EXT.R7(R).
WP(C).No.34712/2019 20EXHIBIT R7(T) THE PHOTOGRAPHS (2 NUMBERS) SHOWING THE (I)&T(II) PROPOSED SITE BEFORE COMMENCEMENT OF THE WORK OF CREMATORIUM.
EXHIBIT R7(U) THE PHOTOGRAPH SHOWING THE STAGE OF WORK AT THE TIME OF FILING OF THE ABOVE WRIT PETITION.
EXHIBIT R7(V) THE COASTAL ZONE MANAGEMENT PLAN SHOWING THE PROPOSED SITE PUBLISHED BY NATIONAL CENTRE FOR HEALTH SCIENCE STULTIFIES, DEPARTMENT OF ENVIRONMENT, GOVERNMENT OF KERALA.
EXHIBIT R5(1) TRUE COPY OF THE LETTER DATED 28.2.2019 OF THE MOEF&CC, GOVERNMENT OF INDIA.
EXHIBIT R5(2) TRUE COPY OF THE INSPECTION REPORT. EXHIBIT R5(3) TRUE COPY OF THE INSPECTION REPORT. EXHIBIT R5 (4) TRUE COPY OF THE MINUTES OF THE 107TH MEETING OF THE KCZMA.
EXHIBIT R5 (5) TRUE COPY OF THE LETTER ADDRESSED TO THE 7TH RESPONDENT.
EXHIBIT R5 (6) TRUE COPY OF THE GOVERNMENT OF INDIA NOTIFICATION DATED 31.03.2015.