Kerala High Court
Kollam Royal Park Hotel & Resorts Pvt. ... vs The State Of Kerala on 10 August, 2016
Author: Shaji P. Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 19TH DAY OF AUGUST 2016/28TH SRAVANA, 1938
WP(C).No. 403 of 2016 (A)
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PETITIONER(S):
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KOLLAM ROYAL PARK HOTEL & RESORTS PVT. LTD.,
HAVING ITS REGISTERED OFFICE AT "SREEVALSAM",
THEVALLYP.O., KOLLAM - 691 601,
REPRESENTED BY ITS DIRECTOR.
BY ADVS.SRI.M.GOPIKRISHNAN NAMBIAR,
SRI.P.GOPINATH MENON,
SRI.P.BENNY THOMAS,
SRI.K.JOHN MATHAI,
SRI.JOSON MANAVALAN,
SRI.KURYAN THOMAS.
RESPONDENT(S):
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1. THE STATE OF KERALA,
REPRESENTED BY THE SECRETARYTO GOVERNMENT,
DEPARTMENT OF SCIENCE & TECHNOLOGY,
SASTHRA BHAVAN, PATTOM, THIRUVANANTHAPURAM - 695 004.
2. THE KERALA COASTAL ZONE MANAGEMENT AUTHORITY,
SASTHRA BHAVAN, PATTOM, THIRUVANANTHAPURAM - 695 004,
REPRESENTED BY ITS MEMBER SECRETARY.
* ADDL. R3 IMPLEADED
3. KOLLAM CORPORATION,
REPRESENTED BY ITS SECRETARY,
CORPORATION OFFICE, KOLLAM-691 001.
* ADDL. R3 IS IMPLEADED AS PER ORDER DATED 10/08/2016
IN I.A. NO. 10428/2016.
R1 BY SR. GOVT. PLEADER SRI.PAUL VARGHESE.
R2 BY ADV. SRI.K.R.SUNIL, SC.
ADDL. R3 BY ADV. SRI.M.K.CHANDRA MOHAN DAS, SC.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 10/08/2016, THE COURT ON 19/08/2016 DELIVERED THE
FOLLOWING:
rs.
WP(C).No. 403 of 2016 (A)
APPENDIX
PETITIONER'S EXHIBITS:-
EXHIBIT-P1: TRUE COPY OF THE MEMORANDUM OF AGREEMENT
DATED 29.12.1985 EXECUTED BETWEEN HINDUSTAN PETROLEUM
CORPORATION LIMITED AND M/S.MELAYIL FISHERIES CORPORATION.
EXHIBIT-P2: THE NOTIFICATION ISSUED BY THE GOVERNMENT OF KERALA
WHICH WAS PUBLISHED KERALA GAZETTE DATED 23.12.1986
(PART-I).
EXHIBIT-P3: TRUE COPY OF LETTER NO.2402/A3/11/KCZMA/S&TD,
DATED 11.01.2012.
EXHIBIT-P4: TRUE COPY OF THE REPLYDATED 12.03.2013 SUBMITTED BY THE
MANAGING DIRECTOR OF THE PETITIONER.
EXHIBIT-P5: TRUE COPY OF THE NOTICE NO.2402/A3/11/KCZMA/S&TD
DATED 17.12.2015 FROM THE MEMBER SECRETARY (I/C),
KERALA COASTAL ZONE MANAGEMENT AUTHORITY.
EXHIBIT-P6: TRUE COPY OF THE REPLYDATED 01.01.2016 SUBMITTED BY
THE PETITIONER.
EXHIBIT-P7: TRUE COPY OF THE JUDGMENT DATED 28.09.2015 IN W.A.NO.974/2015
ON THE FILE OF THIS HON'BLE COURT.
EXHIBIT-P8: TRUE COPY OF THE JUDGMENT DATED 02.06.2015 IN
W.A.NO.132 OF 2013 ON THE FILE OF THIS HON'BLE COURT.
EXHIBIT P9 TRUE COPY OF THE NOTIFICATION BEARING
G.O.(MS) NO.146/2015/LSGD DATED 30/04/2015.
EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED 01/02/2016 IN
WP(C).NO.21527/2006.
EXHIBIT P11 TRUE COPY OF THE RECEIPT ISSUED BY THE KOLLAM MUNICIPAL
CORPORATION ON 04/03/2016 ACKNOWLEDGING RECEIPT OF
BUILDING TAX FOR 2015-2016.
RESPONDENT'S EXHIBITS:- NIL.
//TRUE COPY//
P.S.TO JUDGE
rs.
SHAJI P. CHALY, J.
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W.P.(C) No.403 of 2016
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Dated this the 19th day of August, 2016
JUDGMENT
This writ petition is filed by the petitioner, a company registered under the Indian Companies Act, 1956, seeking to quash Ext.P5, whereby the petitioner was directed to stop all activities by the 2nd respondent and to remove all illegal constructions made in the 'No Development Zone' notified under the Coastal Regulation Zone Regulations, and for other related reliefs. Material facts for the disposal of the writ petition are as follows:
2. Petitioner company operates a hotel in the name and style of 'Raviz Hotel', which is a Five Star Deluxe Hotel functioning since 2011. The construction of the hotel commenced about 10 years prior to its inauguration. The hotel employs about 500 persons. The land upon which the hotel is constructed was originally purchased by the present Chairman of the company in 1999 from M/s. Melayil Fisheries Corporation, a partnership firm which was engaged in processing and export of seafood products at the very same W.P.(C) No.403 of 2016 2 site, since about 1965. The land is comprised in Re-survey Nos.500/1, 500/1-3, 500/1-3-2, 501/1, 500/6, 500/7, 500/2, 500/8, 500/8-2 and 500/32 (old Survey Nos.7055, 7586, 7584, 7585, 7588 etc.) of Thrikkadavoor Village, Kollam District.
3. According to the petitioner, the vendor of the property was one of the leading seafood processing and exporting company till 1980's. They had constructed about seven buildings on the property and these buildings were allotted building numbers by the Thrikkadavoor Grama Panchayat. The buildings were originally comprised in Ward No.VIII of that Panchayat and were allotted building Nos.26, 27, 33, 34, 24, 25, 28, 28 1A and 28 1B. One of these buildings viz., (VIII-26) had a plinth area of 2506 square meters. The vendor of the property was maintaining a huge fleet of fishing boats and had extensive seafood processing facilities, workshops for repair and even had a full-fledged diesel dispensing pump and was a dealer of M/s. Hindustan Petroleum Corporation Ltd. A true copy of the partnership agreement is produced as Ext.P1. The building bearing Door No.VIII-26 (new No.XV-556) has been assessed to tax from W.P.(C) No.403 of 2016 3 1993-94 onwards. It is also stated that the assessment register for earlier years is not available in the Panchayat office, however the building was in existence from 1965 onwards.
4. The petitioner company is promoted by a Non-
Resident Indian Entrepreneur. The property on which the hotel is constructed has a total extent of 3.5 acres. During the construction of the hotel, the structures originally existing were not demolished and only renovation of roof structure, strengthening of wall etc. were carried out since the existing buildings were close to the water front. As per the provisions of the Coastal Regulation Zone (hereinafter called 'the CRZ), all areas that have already been developed up to or close to the shoreline and areas comprised in Municipal limits or other legally designated urban areas which are substantially built up will be categorized as CRZ-II enabling construction of buildings and other developmental activities on the landward side of existing buildings/roads/existing authorized structures etc. The land on which the hotel is constructed is part of the notified Master Plan for Quilon Town, which was approved by the Government of Kerala on 03.11.1986, evident from Ext.P2. W.P.(C) No.403 of 2016 4 Even though the land in question was originally part of the Grama Panchayat, as early as in 1986, two wards of the said Panchayat were made part of the development plan for Quilon Town and presently the entire Grama Panchayat is part of the Kollam Corporation.
5. The CRZ notification, 1991 was superseded by the CRZ Notification, 2011, where it is clearly specified that areas which have been developed up to or close to the shoreline and areas comprised in existing Municipal limits or other legally designated urban areas will be categorized CRZ-II, enabling constructions and developments towards landward side of the existing buildings or existing roads. The land on which the hotel is constructed was part of a legally designated urban area since the same was part of the Master Plan for Quilon Town, evident from Ext.P2 and after the Grama Panchayat merged with the Kollam Corporation, it is comprised within the existing Municipal limits and therefore the land cannot be categorized other than a CRZ-II area. It is also stated that, the preparation of plans under the CRZ Notification, 2011 is progressing and the same has not been finalized or notified as on date. According to the petitioner, since the area where the W.P.(C) No.403 of 2016 5 hotel is located, as part of a Municipal Corporation, the area can only be classified as CRZ-II in the plans being prepared under the CRZ Notification, 2011. Any other categorization would be ultra vires the Notification in view of the categorization Rules forming part of the Notification which specified that all areas within the designated Municipal limits will be categorized as CRZ-II.
6. After the hotel was inaugurated, petitioner received Ext.P3 letter and the petitioner has submitted Ext.P4 reply stating that the consideration of the area as CRZ-III is untenable and as per the Master Plan for Quilon Town, the property situated at a distance of about 2 kms. from Kollam District Collectorate, KSRTC Bus stand etc. and therefore classification of the area can only be CRZ-II. That apart, it is stated that, the existing buildings were not demolished and they were only re-modelled for making them usable as a hotel and the main re-modelling was to the interiors of the existing buildings, and that all new constructions were on the landward side of the existing road/existing structures and therefore there is no violation of CRZ Notification, 1991. Thereafter also petitioner received two letters dated 11.09.2013 and W.P.(C) No.403 of 2016 6 26.03.2014 from the Grama Panchayat, requiring the petitioner to submit clearance from the 2nd respondent and the petitioner reiterated the stand taken in Ext.P4.
7. Now the petitioner is served with Ext.P5 notice purportedly issued in consequence of the meeting of the 2nd respondent on 23rd and 24th of April, 2015, informing that action will be initiated under the provisions of the Environment Protection Act, 1986, unless all activities in the complex are stopped and the alleged illegal constructions are removed from the 'No Development Zone'. Petitioner, on receipt of Ext.P5 on 23.12.2015, has submitted a reply on 01.01.2016 reiterating the contentions adopted in Ext.P4, a true copy of which is marked as Ext.P6. According to the petitioner, on 01.01.2016, it was informed that no further time will be granted and action will be taken in terms of Ext.P5 and none of the contentions raised by the petitioner can be considered at this stage. Therefore, this writ petition is filed by the petitioner challenging Ext.P5 notice contending that the action is legally unsustainable and Ext.P5 is issued under the mistaken impression that the area in question is classified as CRZ-III. W.P.(C) No.403 of 2016 7
8. Second respondent has filed a counter affidavit basically contending that the buildings are situated in the non development zone of CRZ-III, as per the approved coastal zone management plan of the State, where construction of buildings for activities which are not permissible in the CRZ notification, is prohibited. With the change of use of the buildings in CRZ-II is also violation of the existing norms of CRZ Notification. Even though the building sites were part of the Master Plan of Quilon Town, it was included in the CRZ-III category as per the approved coastal zone management plan and since the construction/re-construction of the buildings were made prior to 2011, CRZ Notification, 1991 and approved coastal zone management plan of 1995 were applicable for the Raviz project. It is also stated that the contention of the petitioner that classification of the area as CRZ-III is bad and the area can only be considered as CRZ-II cannot be sustained, since the area was originally part of the Grama Panchayat, which was categorized CRZ-III in the Kerala Coastal Management Plan prepared in 1995, which was approved by the Ministry of Environment and Forests in 1996. It is also stated that, even if the area was part of the Master W.P.(C) No.403 of 2016 8 Plan for Quilon Town, it was included in the CRZ-III in the existing approved coastal zone management plan. As per the information provided by the Grama Panchayat, the site is notified under Quilon Development Authority Development Plan, approved by State Government as per Ext.P2. However, in the 1996 coastal zone management plan, no such approval was given to that place and it is included as CRZ-III category. The categorization of an area purely depends upon ecological sensitiveness of the area as well as certain indicators of development. If any area is ecologically sensitive, it is included under the CRZ-I category, if it is a developed area, it is included in CRZ-II and under developed area is included as CRZ-III. For CRZ-III category, construction of new buildings can be made only after leaving 500 mtrs. or width of the 'Kayal' (lake) whichever may be less, from High Tide Line (HTL) of the 'Kayal'. Petitioner made construction within 100 mtr. HTL in the Non-development Zone, violating the provisions of the CRZ Notification. The contention of the petitioner with respect to the non demolition of the building and they were re-modelled for making usable as a hotel cannot be sustained, since re-construction of building even in CRZ-II W.P.(C) No.403 of 2016 9 can only be done without changing the existing use of the building. Therefore, according to the 2nd respondent, Ext.P5 notice is in accordance with law and the petitioner is bound to follow the instructions and stipulations contained thereunder.
9. That apart, it is also contended that, the developed area is referred to as that area within the Municipal limits or any other legally designated urban areas which are already substantially built up and which has been provided with drainage and approach roads and other infrastructural facilities such as water supply and sewerage means. It was considering the above indicators of development, the project site which was part of the Grama Panchayat was included as CRZ-III category in the Coastal Zone Management Plan prepared in 1995 and approved by the Ministry in 1996. It is also stated that, even if it is CRZ-II category, re-constructions are permissible only without changing the use of the building as per the CRZ Notification, 2011. It is also stated that the project proponent should have obtained prior permission before construction of the building in the CRZ from the Coastal Zone Management Authority and for that purpose, petitioner should have submitted applications accompanied by CRZ W.P.(C) No.403 of 2016 10 status report and CRZ maps of the project site prepared in Cadastral scale by an agency approved by the Ministry of Environment and Forests, and having not done so, the construction made in CRZ area is a violation of CRZ notification. Based on the decision of the Coastal Zone Management Authority, an expert committee inspected the site and prepared its report and it was after discussion of the report in the 69th meeting of the 2nd respondent, Ext.P5 notice was issued. Therefore, according to the 2nd respondent, the writ petition is unsustainable and therefore liable to be dismissed.
10. Petitioner has filed a reply reiterating the stand adopted in the writ petition. It is further contended that, as per CRZ Notification, 1991, all areas which are substantially developed and part of any legally designated urban areas can be categorized only under CRZ-II category and as per Ext.P2 notification, the lands belonging to the petitioner were included in the Master Plan for Development of Quilon Town and the land in question were all substantially developed and it is clear that the area was incorrectly classified as CRZ-III category. Ext.P9 notification dated 30.04.2015 is also produced whereby W.P.(C) No.403 of 2016 11 the areas of the erstwhile Thrikkadavoor Grama Panchayat was included in the Kollam Municipal Corporation. So also, it is contended that, Kovalam in Thiruvananthapuram District was originally part of Vizhinjam Panchayat and now the same is merged with Thiruvananthapuram Corporation and in the Maps prepared for Thiruvananthapuram District, the entire Kovalam area has been classified as CRZ-II category on the ground that the area is presently part of a Municipal area. Ext.P10 judgment of this Court in W.P.(C) No.21527 of 2006 is produced to canvass the proposition that such areas can only be classified in CRZ-II category. Both under Notifications 1991 and 2011, areas included within the boundaries of Municipalities or other legally designated urban areas have to be classified as CRZ-II and any other classification will be ultra vires the provisions of the notification. However, while preparing Coastal Zone Management Plan for Kerala in 1995, the area was designated as a CRZ-III area, which is totally incorrect in the circumstances stated in the writ petition. It is also contended that, even though petitioner has submitted a reply adopting the stand that the area can be classified only as CRZ-II, 2nd respondent has chosen to issue Ext.P5 notice. W.P.(C) No.403 of 2016 12 Ext.P11 building tax receipt is produced by the petitioner in order to establish that building tax is paid to the 3rd respondent Municipal Corporation on 04.03.2016 for the period 2015-16.
11. Heard learned counsel for the petitioner, learned Government Pleader and learned Standing Counsel appearing for respondents 2 and 3, perused the documents on record and the pleadings.
12. As discussed above, the prime contention advanced by learned counsel for the petitioner is that, even though the land in question situated earlier in Thrikkadavoor Grama Panchayat, same was a part of an urban area in view of Master Plan of Kollam, evident from Ext.P2. That apart, it is also contended that, there is no construction or re-construction of the existing buildings carried out by the petitioner in the premises in question, but the existing buildings were re- modelled and interiors were done so as to suit to run the hospitality business. That apart, it is also contended that, the categorization of the land in question done as CRZ-III can only be a mistake in view of Ext.P2 Government Order where the land with Survey No.7005 of Thekkumbhagam Village was included in the Quilon Development Authority Master Plan. W.P.(C) No.403 of 2016 13 According to the learned counsel, Survey No.7055 is one of the survey numbers in which the properties of the petitioner are situated and therefore the same is clear authority to establish that even as per 1991 CRZ Notification, the property was situated in an urban area. It is also contended that, since the property in question comes under CRZ-II category, construction is permissible to the landward site of the existing buildings, roads, existing authorized structures etc. According to the learned counsel, no constructions were carried out by the petitioner in violation of either 1991 Notification or 2011 Notification.
13. Learned counsel has also invited my attention to Ext.P10 judgment of this Court, wherein it was noted that, the coastal zone area classification is now being prepared under the 2011 Notification. It is also contended that, in Ext.P10 judgment, a direction was issued by this Court to classify the area where the hotel of the petitioner therein situates as CRZ- II in accordance with 2011 notification. So also, learned counsel has invited my attention to Ext.P7 Division Bench judgment of this Court in W.A.No.974 of 2015 dated 28.09.2015, to canvass a proposition that once a person is W.P.(C) No.403 of 2016 14 permitted to put up a construction that has to be taken as a grant for putting up a construction for occupation. That apart, Division Bench (consisting of Justice Antony Dominic and myself) judgment of this Court (Ext.P8) was pressed into service, and invited my attention specifically to paragraph 19, which read thus:
"19. The Standing Counsel for the Kerala Coastal Zone Management Authority brought to our notice the provisions of Rule 23(4) of the Kerala Municipality Building Rules and also the provisions of the letter dated 17.06.2006 issued by the Kerala Coastal Zone Management Authority. Rule 23(4) requires that construction shall be in accordance with the CRZ notification and the letter dated 17.06.2006 requires local authorities to forward applications for building permit and plans to the Authority for their clearance. Even according to the Authority, Coastal Zone Management Plan, which is stated to have been published in 1996, action for its revision is only in progress. In so far as 1996 plan is concerned, in the judgment in 'Citizens Interest Agency v. Lakeshore Hospital and Research Centre Pvt. Ltd.' [2003 (3) KLT 424], the incorrectness of the plan was conceded by the State itself and the same has been recorded in paragraph 32 of the judgment".
14. Per contra, Learned counsel for the 2nd respondent contended in terms of the counter affidavit filed which is W.P.(C) No.403 of 2016 15 recited above in detail, and contended that, since the properties in question were situated within the limits of the Grama Panchayat and since the same was an under-developed area, as per 1991 notification, included in CRZ-III category. It is also stated that, since the area is ecologically sensitive, construction and re-construction is not permissible in the said area and therefore 2nd respondent was fully justified in issuing Ext.P5, especially due to the fact that Ext.P5 was issued after discussing a report drawn by a committee of experts.
15. Taking into account the rival submissions made across the Bar and perusal of the documents, the question to be considered is whether Ext.P5 notice requires any manner of interference by exercising the power of judicial review under Article 226 of the Constitution of India. As discussed above, from Ext.P2 notification issued by the State Government, it is seen that one of the survey numbers of the property in question is included in the Master Plan for Quilon Town. True, the properties in question are lying in other survey numbers also. However, so far as the contention with respect to the nearness of the properties in question, to the Kollam Collectorate and KSRTC Bus stand, and the Kollam town is not W.P.(C) No.403 of 2016 16 disputed by the 2nd respondent. That apart, evident from Ext.P9, the entire area of Thrikkadavoor Grama Panchayat is included in the 3rd respondent Corporation. That apart, the contention with respect to the inclusion of two wards of Thrikkadavoor Grama Panchayat in Ext.P2 Master Plan is also not disputed. Learned Standing Counsel for the 2nd respondent has also stated that the coastal management plan with respect to 2011 notification is not prepared by the 2nd respondent. It is also not disputed by the 2nd respondent that as per 2011 notification, if a plan is prepared, since the property in question is included in the 3rd respondent Municipal area, comes under CRZ-II categorization. Even though petitioner has sought for quashing of Ext.P5, I do not propose to do so at this stage. Learned counsel for the petitioner also has chosen to confine his prayer to relief No.(iv) in the writ petition, which read thus:
"(iv). issue a writ of mandamus or any other appropriate writ, order or direction, commanding the respondents to consider the area where the petitioner's Hotel is located as a CRZ-II area while preparing Coastal Zone Management Plan under the Coastal Regulation Zone Notification, 2011 in view of the fact that the area is now part of Kollam Corporation." W.P.(C) No.403 of 2016 17
16. In that view of the matter, I am of the considered opinion that the 2nd respondent can be directed to ascertain whether petitioner's Hotel is located in CRZ-II area while preparing Coastal Zone Management Plan under the CRZ Notification, 2011, in view of the fact that the area is now part of Kollam Corporation. While doing so, I take note of Ext.P8 Division Bench judgment of this Court, wherein the inconclusiveness of the Cadastral Plan is referred to.
17. Therefore, leaving open the liberty of the petitioner to challenge the other aspects raised in the writ petition, if required, in due course, this writ petition is allowed in part, directing the 2nd respondent to consider inclusion of the properties in question belonging to the petitioner under CRZ-II categorization while Coastal Zone Management Plan is prepared in accordance with CRZ Notification, 2011, also bearing in mind Ext.P10 judgment rendered by this Court in W.P.(C) No.21527 of 2006 dated 01.02.2016, and Ext.P8 Division Bench judgment of this Court.
18. It is made clear that, all other questions raised in the writ petition by the petitioner are left open. Until such time a decision is taken as directed above, proceedings W.P.(C) No.403 of 2016 18 pursuant to Ext.P5 shall be kept in abeyance, since when this writ petition came up for admission, status quo was directed to be maintained which was extended for a period of one month on 02.02.2016.
The writ petition is allowed in part accordingly.
Sd/-
SHAJI P. CHALY JUDGE //true copy// P.S. to Judge St/-
16.08.2016