Kerala High Court
Jafar vs District Collector on 22 May, 2020
Author: Shaji P.Chaly
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 22ND DAY OF MAY 2020 / 1ST JYAISHTA, 1942
WA.No.509 OF 2020
AGAINST THE JUDGMENT IN WP(C) 39626/2015(C) OF HIGH COURT OF
KERALA
APPELLANT/PETITIONER:
JAFAR
AGED 45 YEARS
S/O ABDULLA,KALAMULATHU VEEDU,VANIMEL.P.O,
KOZHIKODE-673506.
BY ADVS.
SMT.K.S.SANTHI
SMT.LATHA SUSAN CHERIAN
RESPONDENTS:
1 DISTRICT COLLECTOR
KANNUR-670001.
2 KERALA COASTAL ZONE MANAGEMENT AUTHORITY,
REPRESENTED BY ITS CHAIRMAN,
SASTHRA BHAVAN,PATTOM.P.O,
THIRUVANANTHAPURAM-695004.
3 THALASSERY MUNICIPALITY,
REPRESENTED BY ITS SECRETARY,
THALASSERY.P.O,KANNUR-670101.
4 C.K.ESSA PARTNER,
M/S.HIRISE BUILDERS AND DEVELOPERS,2ND FLOOR,
KANAK COMPLEX,KAYYATH ROAD,
(P.O)THALASSERY-670104.
5 ADDL.R5 THE PUBLIC WORKS DEPARMENT,
REPRESENTED BY ITS SECRETARY.
6 ADDL.R6 C.P.MASHOOD,
AGED 58 YEARS
S/O.P.K.USMANKUTTY,MANAGING PARTNER,
WA.No.509 OF 2020 2
HIGH RISE DEVELOPERS,
KONAK COMPLEX,KAYYATH ROAD,
THALASSERY-670101.
7 ADDL.R7 HAMEED KIDANHI,
AGED 53 YEARS
S/O MAMMED,KINDANHI.P.O,
KANNUR DISTRICT-670675.
SR.GP SRI.SURIN GEORGE IPE FOR R1 AND R5,
SRI.M.P.PRAKASH, SC FOR R2,
SRI.S.SREEKUMAR(SR) FOR ADDL.R6 AND R7
SRI.I.V.PRAMOD FOR R3
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
22.05.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WA.No.509 OF 2020 3
JUDGMENT
SHAJI P.CHALY,J.
Instant Writ Appeal is filed by the petitioner in W.P.(C) No.39626/2015, challenging the judgment of a learned Single Judge dated 10.10.2019, by which, the learned Single Judge dismissed the writ petition. The relief sought for by the appellant in the writ petition are as follows:
i) Issue a writ of certiorari or any other appropriate writ, order or direction quashing Ext.P5 clearance by the 2nd respondent and Ext.P1 building permit issued by 3rd respondent.
ii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the 2nd respondent not to permit construction of building on the seaward side by the 4th respondent.
iii) Issue a writ of mandamus or any other appropriate writ, order or direction directing the 2nd and 3rd respondents not to permit construction within 40 meters of the sea boundary.
iv) Pass such other orders as this Hon'ble Court deems fit and proper in the facts and circumstances of the case, and
v) award costs of the proceedings to the petitioner.
2. Taking into account the counter affidavit/statement filed by the Kerala Coastal Zone Management Authority, the Thalassery Municipality and the Builder, the learned Single Judge has dismissed the writ petition holding WA.No.509 OF 2020 4 that there are no grounds made out by the writ petitioner to interfere with Ext.P5 CRZ clearance issued by the Kerala Coastal Zone Management Authority.
3. The subject issue relates to construction of multistoried residential apartment having a total plinth area of 9732.26M 2 within the limits of Thalassery Municipality. The categorisation of the area by the Kerala Coastal Zone Management Authority is CRZ II. Ext.P5 certificate is issued by the Coastal Zone Management Authority taking into account the stipulations contained under CRZ Notification, 2011. According to the appellant, who is a resident within the Thalassery Municipality, the Authority has issued Ext.P5 clearance in violation of the Notification, 2011 issued by the Coastal Zone Management Authority and the construction is being done within 40 meters of high tide line on the seaward side whereas as per the Notification, 2011 the buildings shall be permitted only on the landward side of existing road or on the landward side of existing authorised structures.
4. Taking into account the disputed questions of facts and law, the learned Single Judge has found that the clearance issued by the Pollution Control Board is in accordance with Notification, 2011 for proposed building, which are within the CRZ II and within 500 meters of the high tide line wherein construction is permissible towards the landward portion of the authorised buildings which were existing in February, 1991. WA.No.509 OF 2020 5
5. The counter affidavit filed by the Kerala Coastal Zone Management Authority makes it clear that the permission granted as per Ext.P5 is in accordance with Notification, 2011. However, there is no material placed by the appellant before the learned Single Judge or before this Court to show that there is no building already in existence in accordance with the notification issued by the Coastal Zone Management Authority.
6. Thalassery Municipality has issued the building permit on the basis of Ext.P5 clearance issued by the Kerala Coastal Zone Management Authority, which according to us, is the consequential action on the basis of the clearance. There is no case for the appellant that the Thalassery Municipality has issued permit in violation of any of the provisions of the Kerala Municipality Building Rules, 1994. From the statement dated 22.7.2019 filed for and on behalf of the Kerala Coastal Zone Management Authority it is clear that, a two member expert committee consisting of eminent personalities from the National Centre for Earth Science Studies and the Scientific Officer of the KSCSTE visited the site on 7 th May, 2015 and submitted a report before the Authority. The observations stated in the site inspection report are as follows:
• Th cliff has been carved out on the southern side of the plot nearly to 6m.
• The northern side of the plot has been raised upto 1.2m by filling WA.No.509 OF 2020 6 • The foundation (raft) has been done in the excavated area. • The construction of the building has been done in the excavated area. • The construction of the building was initiated and work is stopped.
7. The report further stated that the said area was in CRZ II category and lies in the landward side of the imaginary line of the existing building.
Thereafter the Kerala Coastal Zone Management Authority discussed the site inspection report in its 70th meeting held on 27th May, 2015 and decided to grant CRZ clearance for construction of residential apartment in Re.Sy No.40/1 of Thalassery Village in Kannaur District having 16 floors including basement floors and having a height of 62.55m and having a plinth area of 9732.26M2 and the copy of the minutes is produced as Ext.R2(a). It was based on the decision of the Kerala Coastal Zone Management Authority, Ext.P5 clearance certificate is issued by the Secretary of the 2nd respondent.
8. Taking into account all these factual and legal aspects, we are of the considered opinion that, the appellant has not placed any material before this Court so as to controvert the factual and legal aspects taken into account by the Kerala Coastal Zone Management Authority in the matter of granting Ext.P5 clearance certificate. While considering an appeal filed under section 5 of the Kerala High Court Act, this Court only need to look into whether there is any legal infirmity on the part of the learned Single Judge while exercising the discretionary jurisdiction conferred under Article WA.No.509 OF 2020 7 226 of the Constitution of India. However, we are of the considered view that it was taking into account all the inputs provided by the respective parties judgement was rendered and there are no reasons for us to interfere with any of the findings arrived at by the learned Single Judge.
Needless to say, writ appeal fails and accordingly it is dismissed.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P.CHALY
smv JUDGE