Kerala High Court
Saju Thuruthikunnel vs The State Of Kerala on 12 April, 2023
Author: S. Manikumar
Bench: S.Manikumar, Murali Purushothaman
WP(C): 18232/2021 -:1:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
WEDNESDAY, THE 12TH DAY OF APRIL 2023 / 22ND CHAITHRA, 1945
WP(C) NO. 18232 OF 2021
PETITIONER:
SAJU THURUTHIKUNNEL, AGED 55 YEARS
S/O. THANKAPPAN, THURUTHIKUNNEL HOUSE,
VADAYAMPADY.P.O, PUTHENCRUZ, PIN-682308.
BY ADVS. SRI. ABRAHAM P.GEORGE
SMT. M. SANTHY
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY,
GOVERNMENT SECRETARIATE,
THIRUVANANTHAPURAM-695001.
2 THE DISTRICT COLLECTOR,
ERNAKULAM, OFFICE AT CIVIL STATION,
KAKKANAD-682030.
3 CORPORATION OF KOCHI
REPRESENTED BY ITS SECRETARY,
CORPORATION OFFICE,
NEAR BOAT JETTY, ERNAKULAM, PIN-682011.
4 KERALA COASTAL ZONE MANAGEMENT AUTHORITY - KCZMA
OFFICE AT KSRTC BUILDING, 4TH FLOOR, OVERBRIDGE,
THAMPANOOR, THIRUVANANTHAPURAM-695001.
5 THE EXECUTIVE ENGINEER
PWD, BUILDINGS DIVISION,
ERNAKULAM OFFICE AT EDAPALLY,
KOCHI-682024.
WP(C): 18232/2021 -:2:-
6 ASSISTANT EXECUTIVE ENGINEER
PWD BUILDINGS SUB DIVISION, ERNAKULAM,
OFFICE AT THRIKKAKARA, NEAR VILLAGE OFFICE,
THRIKKAKARA-682021.
7 THE ASSISTANT ENGINEER
PWD BUILDINGS SECTION, ERNAKULAM OFFICE AT REST
HOUSE BUILDING, ERNAKULAM, PIN-682011.
8 DISTRICT TREASURY OFFICER,
OFFICE AT CIVIL STATION, KAKKANAD, PIN-682030.
9 T.K.RAMAKRISHNAN CULTURAL CENTRE,
REG.NO.848/2006, LENIN CENTRE, AKG ROAD, KALOOR,
KOCHI-682017.
10 E.K.NARAYANAN SMARAKA TRUST,
OFFICE AT E.K.NARAYANAN SQUARE, PALLURUTHY.P.O,
KOCHI-682006.
11 KORU ASAN SMARAKA TRUST,
OFFICE AT KORU ASAN SQUARE, SUBASH CHANDRABOSE
ROAD, PONNURUNNY, VYTTILLA, KOCHI-682019.
* MR. M.S.ABRAHAM SKARIA, AGED 60 YEARS,
ADDL.R12 S/O. SKARIA, MUTHIRAMATTATHIL HOUSE,
KARUKAPPALLY P.O., KOLENCHERRY, PIN-682311.
ADDITIONAL 12TH RESPONDENT IS IMPLEADED AS PER
ORDER DATED 12.04.2023 IN I.A. NO.1 OF 2021.
BY ADVS. SHRI.N.MANOJ KUMAR, STATE ATTORNEY
SMT. V.P.REJITHA (PUZHAKKALIDOM)
R4 BY ADV. SRI. M.P. PRAKASH, SC, KCZMA
R9 & R11 BY ADV. SRI. N. SATHEESH
BY ADV. SRI.K.JANARDHANA SHENOY, SC, KOCHI
MUNICIPAL CORPORATION
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 12.04.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C): 18232/2021 -:3:-
JUDGMENT
S. Manikumar, CJ Instant Public Interest Litigation is filed by the petitioner for the following reliefs:
(i) Declare that 3 acres of land in Sy. No.843 of Ernakulam Village, described as puzha puramboke in the basic tax register maintained by the Village authorities, as reclaimed portion of backwaters, in the year 2000, as a part of Manaveeyam program by the State Government is under classification CRZ-II Zone, as defined under Coastal Regulation Zone Notification, 2011 and developmental activities and use of the same, if any, shall be in strict compliance of clauses (3) and (8) - II - CRZ -II(i) & (ii) of the said notification.
(ii) Call for the entire records leading to the issuance of Exhibit-P4 grant of CRZ clearance issued by the 4 th respondent and set aside the same by the issuance of a writ in the nature of certiorari or such other appropriate writ, order or direction, in the interest of justice.
(iii) Issue a writ of mandamus or such other appropriate writ, order or direction, commanding the respondents, not to proceed with any sort of construction in the above property, in violation of the Coastal Regulations Zone Notification, 2011, and further direct them to demolish and remove the constructions if any therein, already constructed in violation of the notification, within a period of time, as fixed by this Court.
2. Brief facts for the disposal of the writ petition are as under:
2.1. Central Government have issued Coastal Regulation Zone Notification, 2011, to declare the coastal structures of the country and water area upto its territorial water limit, including the Island of WP(C): 18232/2021 -:4:- Andaman and Nicobar, Lakshadweep and the marine areas surrounding these islands upto its territorial limits as Coastal Regulation Zone (CRZ) and restrict the setting up and expansion of any industrial operations or processes and manufacture and handling or storage or disposal of hazardous substances in the said area, with a view to ensure livelihood security to the fisher community and other local communities living in the coastal areas, to conserve and protect coastal stretches, its unique environment and its marine area, and to promote development through sustainable manner based on scientific principles, taking into account the dangers of natural hazards in the coastal areas, sea level rise, due to global warming etc. 2.2. Though the Central Government has issued revised Coastal Regulation Zone Notification of the year 2019, the preparation and notification regarding Coastal Zone Management Plan (CZMP) -
precondition for the implementation of new notification, is not complied with by the 4th respondent - State Coastal Zone Management Authority, so far. Hence, the coastal areas of the State of Kerala is still governed under the notification of the year 2011 in the related matters.
2.3. Petitioner has further stated that 3 acres of land in Sy.No. 843 of Ernakulam Village, described as puzha purampokku in the basic tax register WP(C): 18232/2021 -:5:- maintained by the Village authorities, is a reclaimed portion of backwaters, in the year 2000, in connection with Manaveeyam by the State Government. At that time, it was declared that the reclaimed portion will be utilized for development activities such as construction of multi model transport hub in the city. On reclamation of the property, State Water Transport Department has constructed a boat jetty at the western boundary and operating boat services to various destinations.
2.4. Petitioner has further stated that the above 3 acres of land is lying in Zone-II as per Coastal Zone Regulation Notification, 2011 and construction, if any, can be proceeded only as per clause 3(i)(a) and clause 8 II-CRZ-II (i) & (ii).
2.5. Petitioner has further stated that in the year 2000, as a part of Manaveeyam program, and as per the orders of the State Government, an area of about 3 acres of backwaters, at the western side of KSRTC Bus Stand (near the office of Kochi Corporation) was reclaimed, with an intention to utilize the same for developmental activities of Ernakulam city. Prior to the reclamation of the backwaters, the said area was lying as cleavage - part of backwaters, and it was used as Ernakulam Boat Jetty, and utilized as parking area for private and Government owned boats. The eastern boundary of the said portion is the bus stand, owned and WP(C): 18232/2021 -:6:- operated by the KSRTC, with direct access from the public road at its eastern side. The northern side is the Children's Park and southern side is Subash Chandrabose Park.
2.6. Petitioner has further stated that at the time of conversion of backwaters, the authorities concerned have declared that said converted land and the land in occupation of KSRTC together will be utilised for the construction of multi model transport hub. As per the classification of the Coastal Regulation Zone, CRZ-II is defined as the areas that have been developed upto or close to the shoreline. The explanation thereto states that for the purpose of expression - developed area, is referred as that area within the existing municipal limits or in other existing legally designated urban areas which are substantially built up and has been provided with drainage and approach roads, and other infrastructural facilities, such as water supply and sewerage mains. Thus, according to the petitioner, the reclaimed portion now in Sy. No.843 of Ernakulam village is in CRZ-II Zone.
2.7. Petitioner has also referred to clause (3) of CRZ notification which speaks about prohibited activities within CRZ. The Coastal Zone Regulation Notification was published in the year 1991 and it was implemented in the 1996 only. Thus, according to the petitioner, in order WP(C): 18232/2021 -:7:- to attract the benefit of the term "existing road" the same should be in existence on or before 1996.
2.8. Petitioner has further stated that on reclamation of backwaters, in the year 2000, a new boat jetty was constructed on the western side by the State Water Transport Department and boat services are conducting therein. For convenient use of the boat jetty by the public, roads were constructed inside the reclaimed portion. According to the petitioner, those roads and its effect use, cannot be construed as an existing road, contemplated under clauses 8, II(i) & (ii) of the Notification, for the reason that the very reclamation was done in the year 2000 and the reclaimed land and roads therein were not in existence, in the year 1996.
2.9. Petitioner has further stated that subsequently, the State Government and Cochin Corporation had abandoned the very declared purpose of the reclaimed portion of the land, viz., construction of multi model transport hub promoting water transport, and allotted 15 cents of land in favour of T.K.Ramakrishna Smaraka Trust, 4.2 cents of land to E.K.Narayana Smaraka Trust, and 4 cents of land to Koru Asan Smaraka Trust, on political considerations. All the above persons were leaders of Communist party in Kerala. It is contended that the above allotments of the plots, including that of the Government buildings, are illegal and in WP(C): 18232/2021 -:8:- violation of the Coastal Zone Regulation Notification, and therefore, liable to be stopped forthwith.
2.10. Pointing out the above, the petitioner has submitted questionnaires/representations etc., before the authorities concerned. However, the 4th respondent - Kerala Coastal Zone Management Authority, Thiruvananthapuram, has issued Exhibit-P4 clearance certificate, on condition that the road existing between the construction and the lake should be authorised and they should have been constructed prior to 1996. The Secretary, Kochi Corporation is also directed to ensure that the existing road is authorised and the said condition is satisfied.
2.11. Petitioner has further stated that the existing road is passing through the eastern side of KSRTC Bus Stand. The backwaters on the western side was reclaimed in the year 2000 and it does not have any direct access to the public road. Roads are constructed, within the reclaimed portion for effective enjoyment of the newly constructed boat jetty. Now, an attempt is made to proceed with the construction of the buildings on the eastern side of the newly constructed roads, describing the same as the existing road.
2.12. Petitioner has further stated that Exhibits-P3, P6, and P8 would show that steps are taken for the construction of Government WP(C): 18232/2021 -:9:- buildings, viz., for Village Office and Treasury. He apprehends that it is an attempt in disguise, so that nobody would object the construction of Government buildings therein and in future, quoting the above construction as an example that respondents 9 to 11 can also construct buildings, in violation of CRZ Notification in their allotted plots. In such circumstances, the petitioner has approached this Court by filing the instant writ petition, for the reliefs stated supra.
3. Grounds on the basis of which submissions made by the petitioner, are as under:
A. The Coastal Regulation Zone Notification has been issued with a view to ensure the livelihood security to the fisher community and other community living in the coastal area to conserve and protect coastal structures and to promote development through sustainable manner based on scientific principles taking into account the dangers of natural hazards in the coastal areas sea level rise due to global warming. IN order to achieve the above objects a strict implementation of the notification is necessary. Hence, any violation by the Government agencies or the individuals, warrants intervention of this Court in the above matter in order to restrain them. B. The 3 acres of land in Sy. No. 843 of Ernakulam Village described as puzha purampokku in the basic tax register maintained by the Village is a portion of reclaimed backwaters in the year 2000 as part of Manaveeyam program of the State Government. The said property is lying in Zone-II as per the Coastal Regulation Zone Notification, 2011 and construction if any can be proceeded only as per clause 8 of the notification - Regulation of activities permissible. Hence, only those constructions which are exempted as per clause 3 (i) (a), WP(C): 18232/2021 -:10:- clause 8 II - CRZ-II (i) & (ii) are permissible and all other constructions are totally prohibited.
C. The existing road in clause 8-II-CRZ-II (i) & (ii) means, an existing road as on 1996 for the reason that the notification was implemented in the year 1996. Since the above described land was only reclaimed in the 2000, the roads constructed thereafter if any within the reclaimed year 2 portion for the effective enjoyment of the same and to provide direct access to the public road at the eastern side will not satisfying the definition of the existing road in clause 8 and hence the proposed construction of buildings by the 9th respondent and government departments for village office and treasury are illegal and liable to be restrained.
D. The 4th respondent ought to have rejected the application submitted by the 9th respondent invoking the provisions under the notification. Forwarding CRZ clearance but with conditions is only with a mala fide intention to dilute the conditions therein by the officials in the local bodies who are acting as per the orders of their political masters providing a chance of corruption defeating the very purpose of the notification.
4. Refuting the averments made in the writ petition and the reliefs sought for, the Secretary, Kochi Municipal Corporation - respondent No.3, has filed a counter affidavit dated 04.10.2021, wherein it is, inter alia, contended as under:
A. Mr. C.N. Mohanan had submitted an application for construction of Cultural Centre in the name of T.K.Ramakrishnan, who was the former Minister, State of Kerala. The area where the building permit has been sought, is one situated where Coastal Zone Management Regulations are applicable.
B. It is further contended that the application submitted by respondent No.9 to the 4 th respondent - Kerala Coastal Zone Management Authority, was placed in the WP(C): 18232/2021 -:11:- 107th Committee, held on 26.02.2020, as Agenda Item No.107.03.08 [Ext-R3(a)], wherein it is stated that as per the approved Coastal Zone Management Plan, 2011, an authorised road is existing between HTL of tidal influenced water body and the proposed construction site. Based on Ext-R3(a), the 4th respondent has decided to grant CRZ clearance to the said proposal by Ext-P4. C. Respondent No.3 has further contended that subsequently, on 24.07.2020, the 4th respondent in its 109th Meeting, as Agenda Item No.109-03-07, File No.1338/A2/2020/KCZMA has decided that the roads shown in the approached Coastal Zone Management Plan (CZMP) shall be treated as authorised and any coastal road not present in the CZMP, but shown in the application for CRZ approval, must be explicitly verified to determine if it has been approved by KCZMA after publication of CZMP as per CRZ Notification, 2011. D. Respondent No.3 has further contended that even though Exhibit-P4 clearance was issued on 12/03/2020, respondent No.9 has produced No Objection Certificate issued by the Department of Fire & Rescue Services on 30.01.2021. Subsequently, the 3rd respondent has issued site approval and building permit on 10.02.2021.
5. The District Treasury Officer, Ernakulam - respondent No.8, has filed a statement, wherein it is contended as under:
A. It is respectfully submitted that 10 Cents of land in Sy. No. 843 of Ernakulam Village, Kanayannur Taluk earmarked as puramboke in the Basic Tax Register has been handed over to the Department of Treasuries for constructing Treasury Complex as per G.O.(Ms) No. 150/11/Revenue dated 08.03.2011 guided by land transfer rules between two service departments. B. Sub Treasury Ernakulam, Additional Sub Treasury Ernakulam, and Pension Payment Sub Treasury, Ernakulam, which comes under the control of District Treasury Officer, Ernakulam are presently functioning WP(C): 18232/2021 -:12:- at the ground floor of old District Court Complex premises, Ernakulam. Lack of space, leakages from roof, irregular water supply, frequent disruption in power and intermittent supply are the many problems faced by these Treasuries. Considering the heritage value and historical importance of this old building, no renovation or alteration work is permissible according to Public Works Department Authorities (PWD). For finding a permanent solution to these problems faced by these Treasuries was to find a suitable land for constructing a Treasury Complex and accommodating the above said Treasuries.
C. It is further submitted that possession certificate for the above said land was issued in favour of the Treasury Department by the Ernakulam Village Officer vide Order No. 1214/16 dated 04.03.2016. Thereafter, building permit for constructing a compound wall has been obtained from Kochi Municipal Corporation on 26.05.2018.
D. It is further submitted that INKEL Ltd. has been entrusted with the planning and construction of the Treasury Complex and they have completed the preliminary soil test for the site.
E. It is further submitted that the 10 Cents of land in Sy. No. 843 of Ernakulam Village proposed for construction of the Treasury complex is 35 Mtrs. away from Vembanad Lake. In this context, for obtaining a special No Objection Certificate (NOC) from KCZMA (Kerala Coastal Zone Management Authority) necessary documents, viz., Form 1, Budget Estimate, Scrutiny fee based on budge estimate with the attestation of Engineer from INKEL Ltd., site plan showing authorized building, year of construction of authorized building, plan of building with actual plinth area, land sketch, Government Order as demanded by KCZMA, on 16.09.2020, have been forwarded to KCZMA through the Kochi Municipal Corporation. However, NOC has not been obtained from KCZMA, and therefore, the construction work of Treasury Complex could not be commenced.
WP(C): 18232/2021 -:13:-F. It is further submitted that the present treasury building is in miserable condition which is the prime reason for the construction of a new building. The old aged and sick pensioners and other stake holders visiting the Treasury is finding it really difficult to cope us with the precarious state of the building. Even these s necessity including waiting rooms could not be provided to the old aged pensioners due to shortage of space. Being an Archaeological monument any construction work in the present building is almost impossible. We have also complied with regulations and have submitted for permission from KCZMA and have not started any work in this regard since the required permission from KCZMA is yet to be received. For the foregoing reasons, respondent No.8 prayed for dismissal of the writ petition.
6. That apart, the 5th respondent - Executive Engineer, PWD, Buildings Division, Ernakulam, has filed a counter affidavit, wherein it is contended that as per administrative sanction vide G.O.(Rt.) No.2454/2017/RD dated 30.05.2017 for Rs.1,00,00,000/- of Revenue (F) Department and technical sanction vide TS No. 2006/2018-19 dated 27.07.2018, the work of construction of a new building for Village Office, Ernakulam was tendered vide tender No. 48/EE/BLD/EKM/2018-19 dated 27.07.2018 and Sri. Abraham Skaria, Muthiramattathil House, Karukapally P.O., Kolenchery was selected as L1 Bidder. Accordingly, agreement was executed on 21.12.2018 and the site for the work was handed over to the contractor on 09.01.2019. As per the agreement, the time for completion of the above work was 12 months from the date of handing over the site WP(C): 18232/2021 -:14:- to the contractor (ie., 08.01.2020). Materials for commencing the work has been stacked by the contractor at the site.
7. The 5th respondent has further contended that, normally hindrance free land is handed over by the client department (here Revenue) to the Public Works Department for construction of works. On being informed about CRZ restrictions on the site, the Office had informed the Village authorities to take necessary steps to obtain permission from the CRZ authorities for the above work as it was reclaimed land from the backwater. As such, relevant documents has been submitted before the Kochi Municipal Corporation Office for obtaining construction permit for New Village Office, Ernakulam.
8. It was further contended that, the Kochi Municipal authorities informed that, further action could be taken in this regard only after verifying the ownership of land and KMBR violation if any etc. The undersigned office has informed the matter to the Assistant Development Commissioner, Collectorate, Ernakulam on 4.2.2021. Further, as per the directions of the Assistant Development Commissioner, the matter was brought to the notice of the Finance Nodal Centre (B) Department, Thiruvananthapuram vide C10-3324/17 dated 09.04.2021. However, no reply was received. Due to the lack of permissions from the concerned WP(C): 18232/2021 -:15:- authorities, the construction work of new building for Village Officer, could not be proceeded further. Hence, he also prayed for dismissal of the writ petition.
9. The Secretary of 9th respondent - T.K.Ramakrishna Cultural Centre, has filed a counter affidavit dated 06.10.2021, wherein it is, inter alia, contended as under:
A. It is submitted that the writ petition is not maintainable and the petitioner has no locus standi to file this writ petition, which is having no public interest. Even if, any one has grievance on any proceedings or order of the Coastal Management Authority, passed under the provisions of CRZ Notification, which has been issued under Sections 3 and 5 of the Environment (Protection) Act, 1986, the petitioner is having efficacious alternative remedy before the National Green Tribunal (NGT) under Sections 14 and 16 of the Green Tribunal Act, especially when the matter involves a question of fact. B. Sri. T. K. Ramakrishnan was a well-known public worker, who held the office of Minister for Home, Minister for Culture, Minister for Co-operation, and Minister for Fisheries, on various occasions in the Council of Ministers of State of Kerala. As the Minister for Fisheries, lot of welfare schemes and projects were introduced for the upcoming of fishermen community. C. It is further submitted that historically, the fisher folk has their unique cultural heritage. They are having their special local information, knowledge and beliefs, with regard to the fishing activities and the nature of the sea. Moreover, as he hails from Ernakulam District and he had lot of influence especially among the people of Kochi, they decided to form a trust in the name of Sri. T.K. Ramakrishnan Cultural Centre as a memorial to him. On request made by the trust, by Order No. GO(MS) No. WP(C): 18232/2021 -:16:- 146/2010/Revenue dated 24-4-2010, Government of Kerala have accorded sanction to grant 15 Cents of land comprised in Sy. No. 843 in Ernakulam Village, Kanayanoor Taluk, on lease, for a period of 30 years. A true copy the order No. GO(MS) No. 146/2010/Revenue, dated 24-4-2010 the Government of Kerala according sanction to grant 15 Cents of land comprised in Sy No. 843 in Ernakulam Village, Kanayanoor Taluk on lease for a period of 30 years is produced herewith and marked as Exhibit R9(a)with English translation. D. It is further submitted that the above said 15 cents of land has been allotted to the 9th respondent for the purpose of construction of Head Office and Dormitory cum hall to create facilities to conduct cultural activities, discussions, museum and a library for the empowerment of the fishermen community, ensuring the participation of the fishers and public at large. As the above-mentioned land is situated in an area were Coastal Zone Management Regulations are applicable, the 9 th respondent submitted an application for CRZ clearance for the construction of the above mentioned building to the 4th respondent. After having necessary inspections, the 4 th respondent decided to grant CRZ clearance by Exhibit-P4, Exhibit P4 CRZ clearance was granted as per the decision taken in the 107th meeting of KCZMA (Kerala Coastal Zone Management Authority) held on 26-2-2020, as agenda item No. 107.03.08. In the minutes of 107th meeting of KCZMA, it is evident that initially CRZ clearance was denied to the 9th respondent, but, on subsequent application, the request was considered by the authority and clearance was granted, finding that there exists an authorized road in between HTL of Tidal Influenced Water body and the proposed construction site, as per approved Coastal Zone Management Plan, 2011 (CZMP 2011). Copy of the relevant pages of minutes 107 meeting of KCZMA held on 26-2-2020 as per agenda item No. 107.03.08 is produced herewith and marked as Exhibit R9(b). E. Exhibit-R9(b) minutes show that the 4 th respondent authority has given Exhibit-P4 CRZ clearance, after WP(C): 18232/2021 -:17:- considering the fact that, as per the Coastal Management Plan, 2011, there is an authorized road between the proposed construction of Head Office and assembly hall for Sri. T.K. Ramakrishnan Cultural Centre, and HTL of Tidal Influential Water Body.
F. Exhibit-R9(b) minutes further show that Exhibit-P4 CRZ clearance was granted on the fact that as per Coastal Zone Management Plan 2011, there is an authorized road in between a proposed construction and the HTL of Tidal Influence Water Body. The issue with regard to the existence of road had been considered by the 4 th respondent in its 109th meeting held on 24-7-2020 as agenda item No. 109.03.07 and decided that the roads shown in the approved Coastal Zone Management Plan shall be treated as authorized and any coastal road not present in the CZMP but shown in application for CRZ approval must be explicitly verified to determine if it has been approved by KCZMA after publication of CZMP as per CRZ notification 2011. Copy of the relevant pages of 109th meeting of KCZMA on 24-7-2020 as agenda item No. 109.03.07 is produced as Exhibit R9(c).
G. It is also pertinent to note that CRZ notification 2011 dated 06-01-2011 was issued superseding the CRZ Notification 1991. Coastal Zone Management Plan, 2011 has been issued under CRZ Notification, 2011, which was in force at the relevant time of Exhibits P4 and R9(c). H. It is further submitted that as per Ext. R9(c) the 4 th respondent authority has took a final decision regarding existence of the road in between the construction and lake that if there is a road in the Coastal Zone Management Plan, 2011 it is authorized.
I. Therefore, Exhibit-P4 CRZ clearance is a valid one and in order. After considering all the above aspects, the 3 rd respondent Corporation has given site approval and building permit by Exhibit-R9(d) order No.150/MOP1/ COC/33997/20219 dated 10.02.2021. For the foregoing reasons, the 3rd respondent prayed for dismissal of the writ petition.
WP(C): 18232/2021 -:18:-
10. The Member Secretary of Kerala Coastal Zone Management Authority (KCZMA), Thiruvananthapuram, has filed a counter affidavit dated 23.10.2021, wherein it is contended as under:
A. It is submitted that the above writ petition has been filed as a Public Interest Litigation, inter alia, seeking to quash Exhibit-P4 clearance issued by the Kerala Coastal Zone Management Authority - respondent No.4. The petitioner has an alternate remedy of approaching the National Green Tribunal, and therefore, the subject writ petition is not maintainable. Further, the petitioner has not established any habitat loss or ecological damage/ destruction, while issuing Exhibit-P4, in order to maintain the instant writ petition on larger public interest. B. It is further submitted that pursuant to the decision taken at the United Nations Conference on the Human Environment held at Stockholm in 1972, the Parliament, in order to provide provisions for protection and Improvement and for connected matters, enacted the Environment (Protection) Act, 1986 (the Act for brevity). Section 3(2)(v) of the Act provides that the Central Government shall have power to take all such measures as it deems necessary and expedient for the purpose of protecting and improving the quality of the environment and preventing, controlling and abating environmental pollution, including to impose restrictions of areas in which any industries, operations or processes or class of industries, operations or processes shall not be carried out or shall be carried out subject to certain safeguards. C. It is further submitted that in exercise of the powers under the Act, Government of India as per Notification S.O.114(E) dated 19.02.1991 published in the Gazette of India dated 20.02.1991, imposed prohibitions/restrictions on the location of an industry or on the carrying on or of processes and operations on the coastal stretches of seas, bays, estuaries, creeks, rivers, and backwaters, which are influenced by tidal action, and certain restrictions were WP(C): 18232/2021 -:19:- imposed on the setting up and expansion of industries, operations, processes, etc., in the said Coastal Regulation Zone (referred as CRZ, for brevity). On the basis of the above CRZ 1991 Notification, Coastal Zone Management Plans (CZMP, for short) were prepared demarcating the High Tide Line (HTL for short) and were approved in 1996. D. It is further submitted that Government of India, in suppression of CRZ 1991 Notification, declared certain areas as Coastal Regulation Zone and imposed certain restrictions on the setting up and expansions, operations or processes and the like in CRZ, by Notification S.O.19(E) dated 06.01.2011 (hereinafter referred to as the CRZ 2011 for brevity). Coastal Zone Management Plans (CZMPS) under CRZ 2011 were prepared and approved by the Government of India on 28.02.2019.
E. It is further submitted that CZMP under CRZ 2011 is applicable in the case on hand. As per CZMP under CRZ 2011, land in Survey No. 843 of Ernakulam Village is in CRZ II.
F. It is further submitted that the Secretary, Corporation of Kochi Municipal Corporation, as per letter No. MOP1/24629/2019 dated 17.01.2020 forwarded an application for CRZ clearance for construction of Assembly building (T.K.R Cultural Centre), which was received in the office of the 4th respondent. In the approved plan, it is shown that 12 metres wide road is present between HTL of the lake and proposed building. G. It is further submitted that the above application was discussed in the 107th meeting of the KCZMA held on 26.02.2020 and that, the KCZMA, as per decision No. 107.03.08, granted clearance, since the proposed construction falls in CRZ II and lies on the landward of existing road subject to the following conditions:
(i) The purpose of the construction shall not be altered under any circumstances.
(ii) The construction shall have a proper septic tank.
(iii) The road existing between the construction of WP(C): 18232/2021 -:20:- lake should be authorised and they should have been constructed prior to 1996. The Secretary, Kochi Municipal Corporation should ensure that existing road is authorised & aforesaid conditions are satisfied.
(iv) The construction should be subject to the existing local town and country planning regulations, including the existing norms of Floor Space Index or Floor Area Ratio.
(v) The clearance issued on the basis of the details furnished by the Secretary, Kochi Municipal Corporation and he should ensure that all conditions are satisfied. If any violation noticed, Secretary, Kochi Municipal Corporation shall be responsible.
H. It is further submitted that the above decision was communicated to the Secretary, Kochi Municipal Corporation, as well as the project proponent by letter dated 12.03.2020.
I. It is further submitted that no application for construction of Village Office is received in the office of the 4th respondent. The office of the 4th respondent has received an application for CRZ clearance for construction of treasury building along with letter No. ISO/MOPI- 001357/2019 dated 02.08.2019 of the District Treasury Officer. The application was incomplete and the proponent was directed to submit further details as per KCZMA letter No. 1654/A1/2019/KCZMA dated 16.09.2020 However, the project proponent has not furnished the details sought for.
J. It is further submitted that as per CRZ Notification 2011, construction of new building or reconstruction of an existing building is permissible on the landward side existing road or on the landward side of existing authorised structure. As per Clause 8.II (ii) of CRZ 2011, buildings permitted on the landward side of the existing and proposed roads or existing authorised structure shall be subject to the existing local town and count planning WP(C): 18232/2021 -:21:- regulations, as modified from time to time, except the Floor Space Index or Floor Area Ratio, which shall be as per 1991 level. For the foregoing reasons, 4 th respondent prayed for dismissal of the writ petition.
11. Heard the learned counsel counsel for the parties and perused the material on record.
` 12. In exercise of the powers conferred by sub-section (1) and clause (v) of sub-section (2) of Section 3 of the Environment (Protection) Act, 1986, the Central Government, with a view to ensure livelihood security to the fisher communities and other local communities, living in the coastal areas, to conserve and protect coastal stretches, its unique environment and its marine area and to promote development through sustainable manner based on scientific principles taking into account the dangers of natural hazards in the coastal areas, sea level rise due to global warming, does hereby, declare the coastal stretches of the country and the water area upto its territorial water limit, excluding the islands of Andaman and Nicobar and Lakshadweep and the marine areas surrounding these islands upto its territorial limit, as Coastal Regulation Zone (hereinafter referred to as the CRZ) and restricts the setting up and expansion of any industry, operations or processes and manufacture or handling or storage or disposal of hazardous substances as specified in the WP(C): 18232/2021 -:22:- Hazardous Substances (Handling, Management and Trans-boundary Movement) Rules, 2009 in the aforesaid CRZ.
13. In exercise of powers also conferred by clause (d) and sub-rule (3) of Rule 5 of the Environment (Protection) Act, 1986 and in supersession of the notification of Government of India in the Ministry of Environment and Forests, number S.O.114(E), dated the 19 th February, 1991 except as respects things done or omitted to be done before such supersession, the Central Government hereby declares the following areas as CRZ and imposes with effect from the date of the notification the following restrictions on the setting up and expansion of industries, operations or processes and the like in the CRZ,-
(i) the land area from High Tide Line (hereinafter referred to as the HTL) to 500mts on the landward side along the sea front.
(ii) CRZ shall apply to the land area between HTL to 100 mts or width of the creek whichever is less on the landward side along the tidal influenced water bodies that are connected to the sea and the distance upto which development along such tidal influenced water bodies is to be regulated shall be governed by the distance upto which the tidal effects are experienced which shall be determined based on salinity concentration of 5 parts per thousand (ppt) measured during the driest period of the year and distance upto which tidal effects are experienced shall be clearly identified and demarcated accordingly in the Coastal Zone Management Plans (hereinafter referred to as the CZMPs).
WP(C): 18232/2021 -:23:-Explanation.- For the purposes of this sub-paragraph the expression tidal influenced water bodies means the water bodies influenced by tidal effects from sea, in the bays, estuaries, rivers, creeks, backwaters, lagoons, ponds connected to the sea or creeks and the like.
(iii) the land area falling between the hazard line and 500mts from HTL on the landward side, in case of seafront and between the hazard line and 100mts line in case of tidal influenced water body the word 'hazard line' denotes the line demarcated by Ministry of Environment and Forests (hereinafter referred to as the MoEF) through the Survey of India (hereinafter referred to as the SoI) taking into account tides, waves, sea level rise and shoreline changes.
(iv) land area between HTL and Low Tide Line (hereinafter referred to as the LTL) which will be termed as the intertidal zone.
(v) the water and the bed area between the LTL to the territorial water limit (12 Nm) in case of sea and the water and the bed area between LTL at the bank to the LTL on the opposite side of the bank, of tidal influenced water bodies."
14. Clause (3) of the CRZ Notification 2011 speaks about prohibited activities within CRZ and it reads thus:
"3. Prohibited activities within CRZ,- The following are declared as prohibited activities within the CRZ,-
(i) Setting up of new industries and expansion of existing industries except,-
(a) those directly related to waterfront or directly needing foreshore facilities; Explanation: The expression "foreshore facilities" means those activities permissible under this notification and they require waterfront for their operations such as ports and harbours, jetties, quays, wharves, erosion control measures, breakwaters, pipelines, lighthouses, navigational safety facilities, coastal police stations and the like.;WP(C): 18232/2021 -:24:-
(b) projects of Department of Atomic Energy;
(c) facilities for generating power by non-conventional energy sources and setting up of desalination plants in the areas not classified as CRZ-I(i) based on an impact assessment study including social impacts.;
(d) development of green field Airport already permitted only at Navi Mumbai;
(e) reconstruction, repair works of dwelling units of local communities including fishers in accordance with local town and country planning regulations.
(ii) manufacture or handling oil storage or disposal of hazardous substance as specified in the notification of Ministry of Environment and Forests, No. S.O.594 (E), dated the 28th July 1989, S.O.No.966(E), dated the 27th November, 1989 and GSR 1037 (E), dated the 5 th December , 1989 except,-
(a) transfer of hazardous substances from ships to ports, terminals and refineries and vice versa;
(b) facilities for receipt and storage of petroleum products and liquefied natural gas as specified in Annexure-II appended to this notification and facilities for regasification of Liquefied Natural Gas (hereinafter referred to as the LNG) in the areas not classified as CRZ-
I(i) subject to implementation of safety regulations including guidelines issued by the Oil Industry Safety Directorate in the Ministry of Petroleum and Natural Gas and guidelines issued by MoEF and subject to further terms and conditions for implementation of ameliorative and restorative measures in relation to environment as may be stipulated by in MoEF.
Provided that facilities for receipt and storage of fertilizers and raw materials required for manufacture of fertilizers like ammonia, phosphoric acid, sulphur, sulphuric acid, nitric acid and the like, shall be permitted within the said zone in the areas not classified as CRZ-I(i). (iii) Setting up and expansion of fish processing units including warehousing except hatchery and natural fish drying in permitted areas:
WP(C): 18232/2021 -:25:-
(iv) Land reclamation, bunding or disturbing the natural course of seawater except those,-
(a) required for setting up, construction or modernisation or expansion of foreshore facilities like ports, harbours, jetties, wharves, quays, slipways, bridges, sealink, road on stilts, and such as meant for defence and security purpose and for other facilities that are essential for activities permissible under the notification;
(b) measures for control of erosion, based on scientific including Environmental Impact Assessment (hereinafter referred to as the EIA) studies
(c) maintenance or clearing of waterways, channels and ports, based on EIA studies;
(d) measures to prevent sand bars, installation of tidal regulators, laying of storm water drains or for structures for prevention of salinity ingress and freshwater recharge based on carried out by any agency to be specified by MoEF.
(v) Setting up and expansion of units or mechanism for disposal of wastes and effluents except facilities required for,-
(a) discharging treated effluents into the water course with approval under the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974);
(b) storm water drains and ancillary structures for pumping;
(c) treatment of waste and effluents arising from hotels, beach resorts and human settlements located in CRZ areas other than CRZ-I and disposal of treated wastes and effluents;
(vi) Discharge of untreated waste and effluents from industries, cities or towns and other human settlements.
The concerned authorities shall implement schemes for phasing out existing discharge of this nature, if any, within a time period not exceeding two years from the date of issue of this notification.
(vii) Dumping of city or town wastes including construction debris, industrial solid wastes, fly ash for the WP(C): 18232/2021 -:26:- purpose of land filling and the like and the concerned authority shall implement schemes for phasing out any existing practice, if any, shall be phased out within a period of one year from date of commencement of this notification.
Note:-The MoEF will issue a separate instruction to the State Governments and Union territory Administration in respect of preparation of Action Plans and their implementation as also monitoring including the time schedule thereof, in respect of paras (v), (vi) and (vii).
(viii) Port and harbour projects in high eroding stretches of the coast, except those projects classified as strategic and defence related in terms of EIA notification, 2006 identified by MoEF based on scientific studies and in consultation with the State Government or the Union territory Administration.
(ix) Reclamation for commercial purposes such as shopping and housing complexes, hotels and entertainment activities.
(x) Mining of sand, rocks and other sub-strata materials except,-
(a) those rare minerals not available outside the CRZ area,
(b) exploration and exploitation of Oil and Natural Gas.
(xi) Drawl of groundwater and construction related thereto, within 200mts of HTL; except the following:-
(a) in the areas which are inhabited by the local communities and only for their use.
(b) In the area between 200mts-500mts zone the drawl of groundwater shall be permitted only when done manually through ordinary wells for drinking, horticulture, agriculture and fisheries and where no other source of water is available. Note:-Restrictions for such drawl may be imposed by the Authority designated by the State Government and Union territory Administration in the areas affected by sea water intrusion.
(xii) Construction activities in CRZ-I except those specified in para 8 of this notification.WP(C): 18232/2021 -:27:-
(xiii) Dressing or altering the sand dunes, hills, natural features including landscape changes for beautification, recreation and other such purpose.
(xiv) Facilities required for patrolling and vigilance activities of marine/coastal police stations."
15. Clause (5) of the CRZ Notification 2011, speaks about preparation of Coastal Zone Management Plans and it reads thus:
"(i) The MoEF may obtain the CZMPs prepared through the respective State Government or Union territory;
(ii) The CZMPs may be prepared by the coastal State Government or Union territory by engaging reputed and experienced scientific institution(s) or the agencies including the National Centre for Sustainable Coastal Management (hereinafter referred to as the NCSCM) of MoEF and in consultation with the concerned stakeholders;
(iii) The hazard line shall be mapped by MoEF through SoI all along the coastline of the country and the hazard line shall be demarcated taking into account, tide, waves, sea level rise and shoreline changes;
(iv) For the purpose of depicting the flooding due to tides, waves and sea level rise in the next fifty and hundred years, the contour mapping of the coastline shall be carried out at 0.5m interval normally upto 7km from HTL on the landward side, and the shoreline changes shall be demarcated based on historical data by comparing the previous satellite imageries with the recent satellite imageries;
(v) Mapping of the hazard line shall be carried out in 1:25,000 scale for macro level planning and 1:10,000 scale or cadastral scale for micro level mapping and the hazard line shall be taken into consideration while preparing the land use plan of the coastal areas;
(vi) The coastal States and Union Territory will prepare within a period of twenty four months from the date of issue this notification, draft CZMPs in 1:25,000 scale map WP(C): 18232/2021 -:28:- identifying and classifying the CRZ areas within the respective territories in accordance with the guidelines given in Annexure-I of the notification, which involve public consultation;
(vii) The draft CZMPs shall be submitted by the State Government or Union territory to the concerned CZMA for appraisal, including appropriate consultations, and recommendations in accordance with the procedure(s) laid down in the Environment (Protection) Act, 1986;
(viii) The State Government or Union territory CZMA shall submit the draft CZMPs to MoEF along with its recommendations on the CZMP within a period of six months after incorporating the suggestions and objections received from the stakeholders;
(ix) MoEF shall thereafter consider and approve the CZMPs within a period of f o u r months from the date of receipt of the CZMPs complete in all respects;
(x) All developmental activities listed in this notification shall be regulated by the State Government, Union Territory Administration, the local authority or the concerned CZMA within the framework of such approved CZMPs as the case may be in accordance with provisions of this notification;
(xi) The CZMPs shall not normally be revised before a period of five years after which, the concerned State Government or the Union territory may consider undertaking revision of the maps following the above procedures;
(xii) The CZMPs already approved under CRZ notification, 1991 shall be valid for a period of twenty four months unless the aforesaid period is extended by MoEF by a specific notification subject to such terms and conditions as may be specified therein."
16. G.O.(MS) No.146/2010/Revenue dated 24.04.2010 issued by the State Government reads as under:
WP(C): 18232/2021 -:29:-
"Government of Kerala Abstract Revenue Department - Leasing out of 15 cents of land in Sy. No.843 in Ernakulam Village, Kanayanoor Taluk, Ernakulam District to T.K.Ramakrishnan Cultural Centre for construction of its Headquarters for 30 years - Order issuing of
-------------------------------------------------------------------
Revenue (A) Department G.O.(MS) No.146/2020/Revenue Thiruvananthapuram dated 24-04-2010
------------------------------------------------------------------- References:- 1. Representation dated 2.12.2006 from Sri. Gopi Kottamurikkal, Secretary, T.K.Ramakrishnan Cultural Centre
2. Letter No. L.1-56635/06 dated 21-04-2007 of District Collector, Ernakulam.
3. Representation dated 01-10-2009 of the Secretary, T.K.Ramakrishnan Cultural Centre.
4. Report No. L.1-58910/07 dated 27-02-2009 of the District Collector, Ernakulam.
ORDER As per reference No.1 cited, Shri Gopi Kottamurikkal, Secretary, T.K. Ramakrishnan Cultural Centre, had requested the Government to accord sanction for the land exclusively for the T.K. Ramakrishnan Cultural Centre either at Survey No. 323, in Block No. 10, lying adjacent to Hill Palace on the right side of the CRL Road or 2.5 Hectare ling at the northern side of the Hill Palace Muvattupuzha Road in Thiruvankulam Village, Kanayanoor Taluk, Emakulam District.
But, the District Collector, vide reference No. 2 has reported that as per the Village records, the land in possession of the Hill Palace Exhibition museum is recorded in the Land Tax Register as puramboke land and that the land requested in the application is the land under the possession of the Archaeology WP(C): 18232/2021 -:30:- Department and therefore, records cannot he prepared on the representation to the Secretary, T.K. Ramakrishnan Cultural Centre.
Thereafter, the Secretary, Cultural Centre had submitted a representation to the Government vide reference 3rd cited, requesting to assign 15 cents of land as Survey No. 843 in Ernakulam Village, Kanayanoor Taluk, Ernakulam District to T.K. Ramakrishnan Cultural Centre. Vide reference 4 th cited, it was reported by the District Collector that about 2 Acres of puramboke land in Survey No. 843 in Ernakulam Village, was found as reclaimed land and being a puramboke land, the land is vested with Cochin Corporation and that the said land was reclaimed by the Water Transport Department.
It was informed by the Water Transport Department that the land comprised in Sy. No. 843 was not reclaimed by the Water Transport Department and that for Tourism Development by the Central Public Works Department.
The Government have examined the above mentioned matter in detail. For the construction of the Headquarters for T.K. Ramakrishnan Cultural Centre, sanction is hereby accorded to lease out 15 Cents of land in Sy. No. 843, in Ernakulam Village, Kanayanoor Taluk, Ernakulam District for thirty years at the rate of Rs. 100/- per one Are per year.
Further following up action on the above mentioned matter will be taken by the District Collector.
By Order of the Governor Dr. Niveditha P. Haran, Principal Secretary."
17. Relevant pages of the minutes of 107 th Meeting of KCZMA held on 26.02.2020 as per Agenda item No. 107.03.08 is reproduced hereunder: WP(C): 18232/2021 -:31:-
"107th meeting of KCZMA on 26.02.2020 - Agenda ...inspection. He conducted site inspection on 14.01.2020 and submitted site inspection report.
The site inspection report is placed as Annexure IV. KCZMA May please discuss Agenda Item No. 107.03.08 File No: 297/A1/2020/KCZMA Construction of Assembly Building (Cultural Centre) by Sri. C. N. Mohan, T.K.Ramakrishnan Cultural Centre, Reg. No.848/06, Lenin Centre, AKG Road, Kaloor, Kochi, Ernakulam Name of Applicant : Sri. C.N.Mohanan, T.K.Ramakrishnan Cultural Centre, Reg. No. 848/06, Lenin Centre, AKG Road, Kaloor, Kochi, Ernakulam-682017 Application details : Lr. No. MOP1/24629/19 dated 17.01.2020 from the Secretary, Kochi Municipal Corporation.
Project Details & : Construction of assembly building Activities (Cultural Centre) with plinth area of 491.5 m2, Plot area of 6.07 ares, G+3 Floor, FAR: 0.15, Height: 11.57m.
Location Details : Sy. No.843 Part of Ernakulam Village, Kochi Municipal Corporation, Ernakulam District. The construction is at a distance of 35.40m from the HTL of Lake.
Project cost : 1 Crores CRZ of the area : The area is in CRZ II.
Provisions of CRZ : As per CRZ notification, 2011 Clause 8 II Notifications (i) & (ii) buildings shall be permitted only on the landward side of the existing road, or on the landward side of existing authorised structures;
buildings permitted on the landward side of the existing and proposed roads or existing authorised structures shall be subject to the existing local town and country planning regulations including WP(C): 18232/2021 -:32:- the 'existing' norms of Floor Space Index or Floor Area Ratio: Provided that no permission for construction of buildings shall be given on landward side of any new roads which are constructed on the seaward side of an existing road.
Comments : The proposal of Sri. C. N. Mohanan, T.K. Ramakrishna Convention Centre for CRZ Clearance for the construction of Dormitory Cum Hall with plinth area of 488.79 m2 in Sy.No.843/part, Ernakulam Village was placed in the 87 th meeting of KCZMA and vide decision No. 87.03.14 Authority decided to depute Dr.M.I.Andrews and Adv.
Prakash C. Vadakkan for conducting site inspection. The site inspection was conducted on 23.02.2018 and submitted report. The site inspection report was placed in the 93rd meeting of KCZMA and vide decision No. 93.04.01 declined the CRZ Clearance for the construction of Dormitory-cum-hall as the proposed site does not lie on the landward side of the authorised building/ road.
Now Sri. C.N. Mohanan submitted an application for CRZ Clearance for the construction of Assembly building (Cultural Centre) The applicant paid scrutiny fee for an amount of Rs.2 lakhs for scrutinizing the earlier application. But, the applicant has not paid scrutiny fee for scrutinizing the present CRZ application.
As per approved CRMP, 2011, an authorised road is existing between HTL of tidal influenced waterbody and the proposed construction site. Hence, KCZMA may decide on its approval.
Note: KCZMA declined the application earlier based on the site inspection report. If a fresh site inspection is being proposed to solve the issue.WP(C): 18232/2021 -:33:-
Hence, the proposal is placed before KCZMA meeting.
Agenda Item No.107.03.09 File No: 2665/A1/2019/KCZMA Regularisation of constructions in CRZ area As per the Amendment in CRZ Notification No. SO 1002 (E) dated 06.03.2018, the project proponents had an opportunity to submit the applications before MOEF & CC for CRZ Clearance for the regularisation of the constructed project in CRZ area up to 30.06.2018 and also as per Clause 4.2 (ii) the concerned Coastal Zone Management Authority shall give specific recommendations regarding regularization of such proposals and shall certify that there have been no violations of the CRZ regularizations, while making such recommendations. But several applications are being received in KCZMA after the abovesaid period for regularisation Upto 105 th Meeting held on 13.12.2019, KCZMA regularised all constructions which were permissible under the provisions of CRZ Notification 2011, but have commenced constructions without prior clearance.
The 106th meeting of KCZMA discussed the matter regarding the regularisation of construction in CRZ area and KCZMA decided to obtain a legal opinion on the matter of regularisation.
But from 87th meeting to 105th meeting of KCZMA, a total of 628 number of constructions were regularised permissible under the provisions of CRZ Notification 2011, but have commenced constructions without prior clearance from KCZMA. Out of this 628 applications which were considered by KCZMA for regularisation, 450 applications were received from the traditional local community/local inhabitant ie, approximately 72% applications were received from traditional coastal community. Now a number of applications for regularisation are pending in KCZMA. This will..............."
Agenda Item No.109.03.05 File No: 1284/A2/20/KCZMA Comprehensive Development of Muzhappilangad Beach, Kannur by the Director, Department of Tourism, Parkview, Thiruvananthapuram WP(C): 18232/2021 -:34:- Decision: Deferred, the project proponent is directed to make detailed presentation in the forthcoming meeting of KCZMA and also directed to remit scrutiny fee as per the budget estimate.
Agenda Item No. 109.03.06 File No.1265/A1/2020/KCZM xxxxxxxxxxxxxxxxx Agenda Item N.109.03.07 File No:1338/A2/2020/KCZMA Year of construction of authorised road in the case of CRZ II area Decision: The suggestions made by the Member, KCZMA discussed in detail and decided that the roads shown in the approved Coastal Zone Management Plan (CZMP) shall be treated as authorised and any coastal road not present in the CZMP but shown in application for CRZ approval by KCZMA after publication of the CZMP as per CRZ Notification 2011.
xxxxxxxxxxxxxxxxx"
18. Exhibit-P4 is the CRZ Clearance issued by the 4 th respondent dated 12.03.2020, obtained by the petitioner under the Right to Information Act from the Kochi Corporation, and it reads thus:
"KERALA COASTAL ZONE MANAGEMENT AUTHORITY Directorate of Environment and Climate Change No.297/A1/2020/KCZMA Thiruvananthapuram, Dated: 12.03.2020 Kerala Coastal Zone Management Authority (KCZMA) decided to grant CRZ clearance to the following proposal as per the provisions of CRZ Notification 2011, subject to the conditions laid down below:
1 Name and Address of : Sri. C.N.Mohanan, T. K. applicant (with Ramakrishnan Cultural district) Centre, Reg. No.848/06, Lenin WP(C): 18232/2021 -:35:- Centre, AKG Road, Kaloor, Kochi, Ernakulam-682017.
2 Reference No. & Date : 1) Letter No.MOP1/24629/19 dated 17.01.2020 from the Secretary, Kochi Municipal Corporation.
2) Decision in item No.
107.03.08 of 107th meeting of
the KCZMA held on
26.02.2020.
3 Name of Dist., Village : Ernakulam, Ernakulam
& Sy. No. village & Sy. No.843.
4 Categorization of the : CRZ II, 35.40m from the HTL
area of Lake
5 Name of Corporation : Kochi
6 Details of Construction
a) Purpose of : Assembly building (Cultural
construction Centre)
b) Nature of construction : Construction
c) Plinth area proposed : Plinth area sanctioned:
491.51 m2 491.51 m 2
d) Height proposed: : Height Sanctioned : 11.57m
11.57m
Conditions
1. The purpose of construction shall not be altered in any circumstances.
2. The construction shall have a proper septic tank.
3. The road existing between the construction of Lake should be authorised and they should have been constructed prior to 1996. The Secretary, Kochi Municipal Corporation should ensure that existing road is authorised & aforesaid conditions are satisfied.
4. The construction should be subject to the existing local town and country planning regulations, including the 'existing' norms of Floor Space Index or Floor Area Ratio.WP(C): 18232/2021 -:36:-
5. The clearance issued on the basis of the details furnished by the Secretary, Kochi Municipal Corporation and he should ensure that all conditions are satisfied. If any violation noticed, Secretary, Kochi Municipal Corporation shall be responsible.
The Secretary, Kochi Municipal corporation shall furnish a compliance report to the above effect in due course.
Sd/-
MIR MOHAMMED ALI IAS Member Secretary, KCZMA"
19. Exhibit-R9(d) is the site approval and building permit granted by the Kochi Municipal Corporation - respondent No.3 and it reads thus:
"KOCHI MUNICIPAL CORPORATION APPENDIX-B2 [See Rule 6(17) and 9(4)] SITE APPROVAL AND BUILDING PERMIT No.150/MOPI/COC/33997/2019 Date: 10/02/2021 Ref:- Application dated 15.11.2019 from Sri./Smt. T.K.RAMAKRISHNAN CULTURAL CENTRE.
Site Approval & Permission is granted for the Construction / Re-Construction / Erection / Re-Erection / Addition / Alteration of Building / Hut / Digging of Well/Compound Wall /..........New.......... (specify the construction) in Building No. Div.62 or near the Building No................ In Survey / Re-survey No.843PT Village ERNAKULAM Taluk KANAYANOOR District ERNAKULAM for Assembly Building (group-D) (specify the occupancy) purpose subject to the conditions stated below:
(1) Adequate safety measures shall be ensured for protection against damage to health, life, buildings and property of the workers and inhabitants around, during and after building construction. The owner and the developer shall be solely responsible for any such damages.
(2) Permit fee 7400/- remitted as per receipt No. 120020108920 WP(C): 18232/2021 -:37:- (3) Dtd. 10/02/2021.
(4) This permit is valid only for five years from 10/02/2021
(a) Setbacks (mtrs) (Minimum & Average) Building-1 Front Rear Side Side-1 Side-2 11.41m 2.60m 3.28m 2.51m (B) Plot Area (Sq. Mtr): 607m2 (C) FAR: 0.77 Coverage: 33.5380 (D) Details of Proposed Buildings Building No.1 Occupancy: Assembly Building (Group D) Floors Height of the building: 11.55 m Use Building Area Area provided for parking inside the Building (Sq. m) Cellar Floor Basement Floor Ground Floor Assembly 203.68 m2 (Dining) First Floor " Passage 35.73 m2 Second Floor " Com Hall 203.68 m2 Third Floor " Passage 34.71 m2 Fourth Floor " T/F 13.67 m2 Total 491.47 m2 Assistant Executive Engineer Kochi Municipal Corporation Kochi-11 Signature & Name of Secretary"
20. Perusal of the material on record discloses that wayback in 2010, Government by G.O.(MS) No.146/2010/Revenue dated 24.04.2010, WP(C): 18232/2021 -:38:- have accorded sanction to grant 15 cents of land, comprised in Kanayannur Taluk on lease for a period of thirty years. The above 15 cents of land have been allotted to the 9 th respondent for the purpose of construction of Head Office and Dormitory-cum-Hall to create facilities to conduct cultural activities, discussions, museum and a library for the empowerment of the fishermen community, ensuring the participation of the fishers and public at large.
21. Said allotment made in the year 2010 has not been challenged by way of writ or certiorari. Now, after nearly 11 years, a prayer in the nature of mandamus, as stated supra, is sought for.
22. There is unreasonable delay and laches on the part of the petitioner. At this juncture, let us consider a few decisions on delay and laches.
(i) In State of M.P. v. Bhailal Bhai reported in AIR 1964 SC 1006, the Hon'ble Supreme Court held that unreasonable delay denies to the petitioner, the discretionary extraordinary remedy of mandamus, certiorari or other relief.
(ii) In P.S. Sadasivaswamy v. State of Tamil Nadu [AIR 1974 SC 2271], the Hon'ble Supreme Court, at paragraph 2, held as under:
"2... A person aggrieved by an order or promoting a junior over his head should approach the Court at least within six months or at the most a year order of suspension such promotion; it is not that there is any period of limitation of the Courts to exercise their powers under Article 226 nor is WP(C): 18232/2021 -:39:- it that there can never be a case where the Courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the Courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters. The petitioner's petition should, therefore, have been dismissed in limine. Entertaining such petitions is a waste of time of the Court. It clogs the work of the Court and impedes the work of the Court in considering legitimate grievances as also its normal work. We consider that the High Court was right in dismissing the appellant's petition as well as the appeal."
(iii) In State of M.P. v. Nandlal Jaiswal reported in (1986) 4 SCC 566, the Hon'ble Supreme Court, at paragraph 24, held as under:
"24. Now, it is well settled that the power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. The evolution of this rule of laches or delay is premised upon a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy under the writ jurisdiction because it is likely to cause confusion and public inconvenience and bring in its train new injustices. The rights of third parties may intervene and if the writ jurisdiction is exercised on a writ petition filed after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. When the writ jurisdiction of the High Court is invoked, unexplained delay coupled with the creation of third party rights in the meanwhile is an important factor which always weighs the High Court in deciding whether or not to exercise such jurisdiction. We do not think it necessary to burden this judgment with reference to WP(C): 18232/2021 -:40:- various decisions of this Court where it has been emphasised time and again that where there is inordinate and unexplained delay and third party rights are created in the intervening period, the High Court would decline to interfere, even if the State action complained of is unconstitutional or illegal. .........Of course, this rule of laches or delay is not a rigid rule which can be cast in a strait jacket formula, for there may be cases where despite delay and creation of third party rights the High Court may still in the exercise of its discretion interfere and grant relief to the petitioner. But, such cases where the demand of justice is so compelling that the High Court would be inclined to interfere in spite of delay or creation of third party rights would by their very nature be few and far between. Ultimately it would be a matter within the discretion of the court; ex hypothesi every discretion must be exercised fairly and justly so as to promote justice and not to defeat it."
(iv) In G.C. Gupta v. N.K. Pandey [AIR 1988 SC 654], the Hon'ble Supreme Court, at paragraph 16, held as under:
"16. Inordinate delay is not merely a factor for the Court to refuse appropriate relief but also a relevant consideration it be so minded not to unsettle settled things."
(v) In State of Maharastra v. Digambar (AIR 1995 SC 1991), the Hon'ble Supreme Court, considered a case, where compensation for the acquired land was claimed belatedly, and, at paragraphs 12, 18 and 21, held as under:
"12. How a person who alleges against the State of deprivation of his legal right, can get relief of compensation from the State invoking writ jurisdiction of the High Court under article 226 of the Constitution even though, he is guilty of laches or undue delay is difficult to comprehend, when it is well settled by decision of this Court that no person, be he a citizen or otherwise, is entitled to obtain the equitable relief under Article 226 of the Constitution if his conduct is blame-worthy because of laches, undue delay, acquiescence, waiver and the like. Moreover, how a citizen claiming discretionary relief under Article 226 of the Constitution against a State, could be relieved of his obligation to establish his unblameworthy conduct for getting such relief, where the State WP(C): 18232/2021 -:41:- against which relief is sought is a welfare State, is also difficult to comprehend. Where the relief sought under Article 226 of the Constitution by a person against the welfare State is founded on its alleged illegal or wrongful executive action, the need to explain laches or undue delay on his part to obtain such relief, should, if anything, be more stringent than in other cases, for the reason that the State due to laches or undue delay on the part of the person seeking relief, may not be able to show that the executive action complained of was legal or correct for want of records pertaining to the action or for the officers who were responsible for such action not being available later on. Further, where granting of relief is claimed against the State on alleged unwarranted executive action, is bound to result in loss to the public exchequer of the State or in damage to other public interest, the High Court before granting such relief is required to satisfy itself that the delay or laches on the part of a citizen or any other person in approaching for relief under Article 226 of the Constitution on the alleged violation of his legal right, was wholly justified in the facts and circumstances, instead of ignoring the same or leniently considering it. Thus, in our view, persons seeking relief against the State under Article 226 of the Constitution, be they citizens or otherwise, cannot get discretionary relief obtainable thereunder unless they fully satisfy the High Court that the facts and circumstances of the case clearly justified the laches or undue delay on their part in approaching the Court for grant of such discretionary relief. Therefore, where a High Court grants relief to a citizen or any other person under Article 226 of the Constitution against any person including the State without considering his blame-worthy conduct, such as laches or undue delay, acquiescence or waiver, the relief so granted becomes unsustainable even if the relief was granted in respect of alleged deprivation of his legal right by the State.
xx xxx xxxx
18. Laches or undue delay, the blame-worthy conduct of a person in approaching a Court of Equity in England for obtaining discretionary relief which disentitled for grant of such relief was explained succinctly by Sir Barnes Peacock, long ago, in Lindsay Petroleum Co.WP(C): 18232/2021 -:42:-
v. Prosper Armstrong (1874) 5 PC 221) thus:
"Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation, in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute or limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of Justice or injustice in taking the one course or the other, so far as it relates to the remedy."
xx xxx xxxx
21. Therefore, where a High Court in exercise of its power vested under Article 226 of the Constitution issues a direction, order or writ for granting relief to a person including a citizen without considering his dis-entitlement of such relief due to his blameworthy conduct of undue delay or laches in claiming the same, such a direction, order or writ becomes unsustainable as that not made judiciously and reasonably in exercise of its sound judicial discretion, but as that made arbitrarily."
(vi) In State of Rajasthan v. D. R. Laxmi reported in (1996) 6 SCC 445, the Hon'ble Supreme Court observed that though the order may be void, if the party does not approach the Court, within a reasonable time, which is always a question of fact and have the order invalidated or acquiesced or waived, the WP(C): 18232/2021 -:43:- discretion of the Court has to be exercised in a reasonable manner.
(vii) Though reasonable time is not prescribed in the rules framed under Article 226 of the Constitution of India, the words "reasonable time", as explained in Veerayee Ammal v. Seeni Ammal (AIR 2001 SC 2920), at paragraph 13, are extracted hereunder:
"13. The word "reasonable" has in law prima facie meaning of reasonable in regard to those circumstances of which the person concerned is called upon to act reasonably knows or ought to know as to what was reasonable. It may be unreasonable to give an exact definition of the word "reasonable". The reason varies in its conclusion according to idiosyncrasy of the individual and the time and circumstances in which he thinks. The dictionary meaning of the "reasonable time" is to be so much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case. In other words it means, as soon as circumstances permit. In P. Ramanatha Aiyar's The Law Lexicon it is defined to mean:
"A reasonable time, looking at all the circumstances of the case; a reasonable time under ordinary circumstances; as soon as circumstances will permit; so much time as is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space than "directly"; such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea."
(viii) In Board of Secondary Education of Assam v. Mohd. Sarifuz Zaman [(2003) 12 SCC 408], the Hon'ble Supreme Court observed as under:
"12. Delay defeats discretion and loss of limitation destroys the remedy itself. Delay amounting to laches results in benefit of discretionary power being denied on principles of equity. Loss of limitation resulting into depriving of the remedy, is a principle based on public policy and utility and not equity alone......."WP(C): 18232/2021 -:44:-
(ix) In Karnataka Power Corporation Limited v. K. Thangappan and Another [AIR 2006 SC 1581: (2006) 4 SCC 322], the Hon'ble Supreme Court, at Paragraph 6, held as under:
"6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party."
(x) In Chairman, U. P. Jal Nigam and Another v. Jaswant Singh reported in AIR 2007 SC 924, the Hon'ble Supreme Court, after considering a catena of decisions, on the aspect of delay, at paragraph 13, held as under:
"13........Therefore, whenever it appears that the claimants lost time or while away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the Court should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted."
(xi) In Virender Chaudhary v. Bharat Petroleum Corporation reported in (2009) 1 SCC 297, the Hon'ble Supreme Court held as under:
"The court exercises its jurisdiction only upon satisfying itself that it would be equitable to do so. Delay and/or laches, indisputably, are the relevant factors.
"15. The Superior Courts, times without number, applied the equitable principles for not granting a relief and/or a limited relief in favour of the applicant in a case of this nature. While doing so, the court although not oblivious of the fact that no period of limitation is provided for filing a writ petition but emphasize is laid that it should be filed within a reasonable time. A WP(C): 18232/2021 -:45:- discretionary jurisdiction under Article 226 of the Constitution of India need not be exercised if the writ petitioner is guilty of delay and laches."
Some of the decisions considered by the Hon'ble Apex Court in Virender Chaudhary's case (cited supra), are reiterated as follows:
"16. In Uttaranchal Forest Development Corporation and Anr. v. Jabar Singh and Ors. [(2007) 2 SCC 112], the Hon'ble Apex Court held as under:
"It is not in dispute that the effective alternative remedy was not availed of by many of the workmen as detailed in paragraphs supra. The termination order was made in the year 1995 and the writ petitions were admittedly field in the year 2005 after a delay of 10 years. The High Court, in our opinion, was not justified in entertaining the writ petition on the ground that the petition has been filed after a delay of 10 years and that the writ petitions should have been dismissed by the High Court on the ground of laches."
17. In New Delhi Municipal Council v. Pan Singh and Ors. [(2007) 9 SCC 278], the Hon'ble Apex Court held as under:
"16. There is another aspect of the matter which cannot be lost sight of. The respondents herein filed a writ petition after 17 years. They did not agitate their grievances for a long time. They, as noticed herein, did not claim parity with the 17 workmen at the earliest possible opportunity. They did not implead themselves as parties even in the reference made by the State before the Industrial Tribunal. It is not their case that after 1982, those employees who were employed or who were recruited after the cut-off date have been granted the said scale of pay. After such a long time, therefore, the writ petitions could not have been entertained even if they are similarly situated. It is trite that the discretionary jurisdiction may not be exercised in favour of those who approach the court after a long time. Delay and laches are relevant factors WP(C): 18232/2021 -:46:- for exercise of equitable jurisdiction. (See Govt. of W.B. v. Tarun K. Roy [(2004) 1 SCC 347], U.P.Jal Nigam v. Jaswant Singh [(2006) 11 SCC 464] and Karnataka Power Corpn. Ltd. v. K.Thangappan [(2006) 4 SCC 332])
17. Although, there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, ordinarily, writ petition should be filed within a reasonable time. (See Lipton India Ltd. v. Union of India [(1994) 6 SCC 524] and M.R.Gupta v. Union of India [(1995) 5 SCC 628])"
(xii) In S.S.Balu v. State of Kerala reported in (2009) 2 SCC 479, following the judgment in NDMC v. Pan Singh (AIR 2007 SC 1365), at paragraph 17, the Hon'ble Supreme Court held as under:
"17. It is also well-settled principle of law that "delay defeats equity". The Government Order was issued on 15-1-2002. The appellants did not file any writ application questioning the legality and validity thereof. Only after the writ petitions filed by others were allowed and the State of Kerala preferred an appeal thereagainst, they impleaded themselves as party-respondents. It is now a trite law that where the writ petitioner approaches the High Court after a long delay, reliefs prayed for may be denied to them on the ground of delay and laches irrespective of the fact that they are similarly situated to the other candidates who obtain the benefit of the judgment. It is, thus, not possible for us to issue any direction to the State of Kerala or the Commission to appoint the appellants at this stage."
(xiii) In Vijay Kumar Kaul v. Union of India [(2012) 7 SCC 610], following the earlier judgment relating to delay and laches, the Hon'ble Supreme Court held that belated approach in filing writ petition is impermissible and at paragraphs 26 and 27, it is held as under:
"26. From the aforesaid pronouncement of law, it is manifest that a litigant who invokes the jurisdiction of a Court for WP(C): 18232/2021 -:47:- claiming seniority, it is obligatory on his part to come to the Court at the earliest or at least within a reasonable span of time. The belated approach is impermissible as in the meantime interest of third parties gets ripened and further interference after enormous delay is likely to usher in a state of anarchy.
27. The acts done during the interregnum are to be kept in mind and should not be lightly brushed aside. It becomes an obligation to take into consideration the balance of justice or injustice in entertaining the petition or declining it on the ground of delay and laches. It is a matter of great significance that at one point of time equity that existed in favour of one melts into total insignificance and paves the path of extinction with the passage of time."
(xiv) In Tukaram Kana Joshi v. Maharashtra Industrial Development Corporation [AIR 2013 SC 565], the Hon'ble Supreme Court, at paragraphs 12 and 14, held as under:
"12. Delay and laches is adopted as a mode of discretion to decline exercise of jurisdiction to grant relief. There is another facet. The Court is required to exercise judicial discretion. The said discretion is dependent on facts and circumstances of the cases. Delay and laches is one of the facets to deny exercise of discretion. It is not an absolute impediment. There can be mitigating factors, continuity of cause action, etc. That apart, if the whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no third-party interest is involved. Thus analysed, the petition is not hit by the doctrine of delay and laches as the same is not a constitutional limitation, the cause of action is continuous and further the situation certainly shocks judicial conscience.
..........
14. No hard-and-fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour WP(C): 18232/2021 -:48:- of a party who moves it after considerable delay and is otherwise guilty of laches. Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of laches. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of a non- deliberate delay. The Court should not harm innocent parties if their rights have in fact emerged by delay on the part of the petitioners."
(xv) In State of Uttaranchal v. Shiv Charan Singh Bhandari reported in (2013) 12 SCC 179, following the judgment in P.S. Sadasivaswamy v. State of Tamil Nadu, [(1975) 1 SCC 152], the Hon'ble Supreme Court observed that in case a junior is promoted over his head, the senior must challenge it, at least within six months or at the most a year of such seniority and that anyone who sleeps over his right is bound to suffer. At paragraph 24, it is held as under:
"24. There can be no cavil over the fact that the claim of promotion is based on the concept of equality and equitability, but the said relief has to be claimed within a reasonable time. The said principle has been stated in Ghulam Rasool Lone v. State of Jammu and Kashmir, [(2009)15 SCC 321].
............
27. We are absolutely conscious that in the case at hand the seniority has not been disturbed in the promotional cadre and no promotions may be unsettled.... the respondents chose to sleep like Rip Van Winkle and got up from their slumber at their own leisure, for some reason which is fathomable to them only. But such fathoming of reasons by oneself is not countenanced in law. Anyone who sleeps over his right is bound to suffer.WP(C): 18232/2021 -:49:-
28. Remaining oblivious to the factum of delay and laches and granting relief is contrary to all settled principles and even would not remotely attract the concept of discretion. We may hasten to add that the same may not be applicable in all circumstances where certain categories of fundamental rights are infringed. But, a stale claim of getting promotional benefits definitely should not have been entertained by the Tribunal and accepted by the High Court."
(xvi) In Chennai Metropolitan Water Supply and Sewerage Board v. T.T.Murali Babu reported in (2014) 4 SCC 108, at paragraphs 16 and 17, the Hon'ble Supreme Court held as under:
"16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the Court would be under legal obligation to scrutinize whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the Court. Delay reflects inactivity and inaction on the part of a litigant - a litigant who has forgotten the basic norms, namely, "procrastination is the greatest thief of time" and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis.
17. In the case at hand, though there has been four years' delay in approaching the court, yet the writ court chose not to address the same. It is the duty of the court to scrutinize whether such enormous delay is to be ignored without any justification. That apart, in the present case, such belated approach gains more significance as the respondent- employee being absolutely careless to his duty and nurturing a lackadaisical attitude to the responsibility had remained WP(C): 18232/2021 -:50:- unauthorisedly absent on the pretext of some kind of ill health. We repeat at the cost of repetition that remaining innocuously oblivious to such delay does not foster the cause of justice. On the contrary, it brings in injustice, for it is likely to affect others. Such delay may have impact on others' ripened rights and may unnecessarily drag others into litigation which in acceptable realm of probability, may have been treated to have attained finality. A court is not expected to give indulgence to such indolent persons - who compete with 'Kumbhakarna' or for that matter 'Rip Van Winkle'. In our considered opinion, such delay does not deserve any indulgence and on the said ground alone the writ court should have thrown the petition overboard at the very threshold."
23. On the facts and circumstances of this case and in the light of the decisions stated supra, prayer No. (i) cannot be granted.
24. The main contention revolves around Exhibit-P4 CRZ clearance issued by the Kerala Coastal Zone Management Authority/4 th respondent, dated 12.03.2020. As the above mentioned land is situated in an area where Coastal Zone Management Regulations are applicable, the 9 th respondent has submitted an application for clearance, for the construction of above-mentioned buildings.
25. Perusal of the minutes of 107th meeting of KCZMA held on 26.02.2020 shows that an inspection has been done on 14.01.2020 and report submitted. The area falls within CRZ II. The provision for CRZ Notification taken note of by the Kerala Coastal Zone Management Authority is, as per CRZ Notification, 2011 clauses 8 II (i) and (ii), buildings WP(C): 18232/2021 -:51:- shall be permitted only on the landward side of the existing road, or on the landward side of the existing authorised structures; buildings permitted on the landward side of the existing and proposed roads or existing authorised structures shall be subject to the existing local town and country planning regulations including the 'existing' norms of Floor Space Index or Floor Area Ratio: Provided that, no permission for construction of buildings shall be given on landward side of any new roads which are constructed on the seaward side of an existing road.
26. Thereafter, the Committee deliberated the comments as under:
"The proposal of Sri. C. N. Mohanan, T. K. Ramakrishna Convention Centre for CRZ Clearance for the construction of Dormitory Cum Hall with plinth area of 488.79 m2 in Sy. No.843/part, Ernakulam Village was placed in the 87th meeting of KCZMA and vide decision No. 87.03.14 Authority decided to depute Dr. M. I. Andrews and Adv. Prakash C. Vadakkan for conducting site inspection. The site inspection was conducted on 23.02.2018 and submitted report. The site inspection report was placed in the 93rd meeting of KCZMA and vide decision No. 93.04.01 declined the CRZ Clearance for the construction of Dormitory-cum-hall as the proposed site does not lie on the landward side of the authorised building/ road.WP(C): 18232/2021 -:52:-
Now Sri. C.N. Mohanan submitted an application for CRZ Clearance for the construction of Assembly building (Cultural Centre) The applicant paid scrutiny fee for an amount of Rs.2 lakhs for scrutinizing the earlier application. But, the applicant has not paid scrutiny fee for scrutinizing the present CRZ application.
As per the approved CRMP, 2011, an authorised road is existing between HTL of tidal influenced water body and the proposed construction site. Hence, KCZMA may decide on its approval."
27. Thus, it could be seen that the Kerala Coastal Zone Management Authority has noticed the existing road, and they have decided that the road in the approved Coastal Zone Management Plan(CZMP) is authorised.
28. Secretary of the Kochi Municipal Corporation, as per letter dated 17.01.2021 forwarded the application for CRZ clearance for construction of Assembly building (T.K.Ramakrishna Cultural Centre), which was received in the office of the 4 th respondent. In the approved plan, it is shown that 12 metres wide road is present between High Tide Line of the lake and the proposed building.
29. Admittedly, a road is in existence. Whether the road is in existence on or before 1996, it is for the petitioner to prove. One, who WP(C): 18232/2021 -:53:- puts up a case that the road was not in existence, has to prove. In the case on hand, the petitioner has not produced any evidence. Site approval and building permit vide Exhibit-R9(d) dated 10.02.2021 have been issued.
30. Giving due consideration to the facts and circumstances, and the material on record, this Court is of the view that the petitioner has not made out a case for granting any relief sought for.
Writ petition is dismissed.
Sd/-
S. MANIKUMAR CHIEF JUSTICE Sd/-
MURALI PURUSHOTHAMAN JUDGE Krj //TRUE COPY// P.A. TO C.J.
WP(C): 18232/2021 -:54:-APPENDIX PETITIONER'S EXHIBITS:
P1 PHOTOCOPY OF THE SKETCH PREPARED BY THE VILLAGE OFFICE, ERNAKULAM SHOWING THE LIE OF THE RECLAIMED PORTION AND ITS ALLOTMENT FOR VARIOUS PURPOSES OBTAINED UNDER RIGHT TO INFORMATION ACT FROM KOCHI CORPORATION DATED 5.2.2021.
P2 PHOTOCOPY OF THE QUESTIONNAIRES SUBMITTED BEFORE THE 3RD RESPONDENT,KOCHI CORPORATION DATED 6.8.2020.
P2(A) TRUE ENGLISH TRANSLATION OF EXT.P2.
P3 PHOTOCOPY OF THE REPLY DATED 12.8.2020 ISSUED BY THE 3RD RESPONDENT TO EXT.P2.
P3(A) TRUE ENGLISH TRANSLATION OF EXT.P3.
P4 PHOTOCOPY OF THE CRZ CLEARANCE ISSUED BY THE 4TH RESPONDENT DATED 12.3.2020 OBTAINED BY THE PETITIONER UNDER RIGHT TO INFORMATION ACT FROM KOCHI CORPORATION(5.2.2021).
P5 PHOTOCOPY OF THE QUESTIONNAIRE DATED 6.8.2020 SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT.
P5(A) TRUE ENGLISH TRANSLATION OF EXT.P5.
P6 PHOTOCOPY OF THE REPLY DATED 9.9.2020 ISSUED BY THE 5TH RESPONDENT TO EXT.P5 QUESTIONNAIRE.
P6(A) TRUE ENGLISH TRANSLATION OF EXT.P6.
P7 PHOTOCOPY OF THE QUESTIONNAIRE DATED 6.8.2020 SUBMITTED BEFORE THE 8TH RESPONDENT, THE DISTRICT TREASURY OFFICER.
P7(A) THE TRUE ENGLISH TRANSLATION OF EXT.P7. P8 PHOTOCOPY OF THE REPLY DATED 17.8.2020 ISSUED FROM THE OFFICE OF THE 8TH RESPONDENT TO EXT.P7.
P8(A) TRUE ENGLISH TRANSLATION OF EXT.P8.
P9 PHOTOCOPY OF THE LAWYER NOTICE DATED 23.2.2021 ISSUED BY THE PETITIONER TO THE RESPONDENTS 2 TO 8 AND OTHERS.WP(C): 18232/2021 -:55:-
P10 PHOTOCOPY OF THE RELEVANT PAGE OF THE APPLICATION SUBMITTED BY THE 9TH RESPONDENT BEFORE THE 4TH RESPONDENT DATED NIL.
P10(A) TRUE ENGLISH TRANSLATION OF EXT.P10.
RESPONDENTS' EXHIBITS:-
R9(A):- COPY OF THE ORDER NO.GO(MS) NO.146/2010/REVENUE DATED 24.04.2010 ISSUED BY THE GOVERNMENT OF KERALA (WITH ENGLISH TRANSLATION) R9(B):- COPY OF THE RELEVANT PAGES OF MINUTES OF 107TH MEETING OF KCZMA HELD ON 26.02.2020.
R9(C):- COPY OF THE RELEVANT PAGES OF 109TH MEETING OF KCZMA ON 24-07- 2020.
R9(D):- COPY OF THE ORDER NO.150/MOP1/COC/33997/20219 DATED 10.02.2021 ISSUED BY THE 3RD RESPONDENT.
//TRUE COPY// P.A. TO C.J.