Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.4784-4785 OF 2019
(Arising out of SLP (C) Nos.4227-4228 of 2016)
THE KERALA STATE COASTAL ZONE MANAGEMENT AUTHORITY … APPELLANT
VERSUS
THE STATE OF KERALA MARADU MUNICIPALITY & ORS. … RESPONDENTS
WITH
CIVIL APPEAL NOS.4790-4793 OF 2019
(Arising out of SLP (C) Nos.4231-4234 of 2016)
AND
CIVIL APPEAL NOS.4786-4789 OF 2019
(Arising out of SLP (C) Nos.4238-4241 of 2016)
O R D E R
Leave granted.
Applications for intervention are allowed.
The appeals have been filed by the Kerala State Coastal Zone
Management Authority aggrieved by the judgment and order dated
11.11.2016 passed by the High Court in Writ Appeal No.132 of 2013
and other connected appeals.
The appellant authority has been constituted by the Government
of India in compliance with the directions issued by this Court in
Indian Council for Enviro-Legal Action v. Union of India [(1996) 5
Signature Not Verified
Digitally signed by
CHETAN KUMAR
Date: 2019.05.16
16:57:12 IST
Reason:
SCC 281] as well as in the exercise of the powers conferred under
Section 3 of the Environment Protection Act, 1986. The appellant
authority is empowered to deal with the environmental issues
2
relating to the notified Coastal Regulations Zones (in short,
‘CRZ’). Construction activities in the notified CRZ areas can be
permitted only in consultation with and prior concurrence of the
appellant authority. It is the binding duty of the local self-
Government, the competent authority before issuing building permits
to forward an application for building permission to the appellant
authority along with the relevant record. The appellant authority
has issued circulars to all Gram Panchayats, Municipalities, and
Municipal Corporations directing them to follow the provisions of
CRZ notifications and to act in accordance with the procedures
provided in the notifications.
The decision of this Court in Piedade Filomena Gonsalves v.
State of Goa [(2004) 3 SCC 445] has also been relied upon which
explains the significance of CRZ notifications in the interest of
protecting environment and ecology in the coastal area and the
construction raised in violation of the regulations cannot be
lightly condoned. The construction activities of the respondent
builders are on the shores of the backwaters in Ernakulam in the
State of Kerala which supports exceptionally large biological
diversity and constitutes one of the largest wetlands in India.
The area in which the respondents have carried out
construction activities is part of the tidally influenced water
body and the construction activities in those areas are strictly
restricted under the provisions of the CRZ Notifications.
Uncontrolled construction activities in these areas would have
devastating effects on the natural water flow that may ultimately
3
result in severe natural calamities. The expert opinions suggest
that the devastating floods faced by Uttarakhand in recent years
and Tamil Nadu this year are the immediate result of uncontrolled
construction activities on river shores and unscrupulous trespass
into the natural path of backwaters. The Coastal Zone Management
Plan (in short, ‘CZMP’) has been prepared to check these types of
activities and construction activities of all types in the notified
areas. The High Court has ignored the significance of approved
CZMP.
As per the appellant, these constructions activities are
taking place in critically vulnerable coastal areas which are
notified as CRZ-III. The panchayats have issued these permissions
in violation of relevant statutory provisions and CRZ
notifications. The Vigilance Section of Local Self Government
Department, Government of Kerala detected these violations and
anomalies in the issue of building permits and hence directed the
concerned bodies to revoke all the flawed building permits
exercising its powers under Rules 16 and 23 of the Kerala
Municipality Building Rules, 1999 (in short, referred to as ‘the
Rules of 1999’).
A show cause notice was issued under Rule 16 of the Rules of
1999, asking the builders to show cause why the building permit
issued to them be not cancelled. Writ Petitions were filed
questioning the same. The learned Single Judge allowed the writ
petitions. The Division Bench dismissed the appeals. The High
Court has observed that the permit holders cannot be taken to task
4
for the failure of local authorities in complying with the
statutory provisions and notifications. Review petitions were also
dismissed. Hence, the appeals by special leave have been
preferred.
After hearing the appeals for two days, we constituted the
Committee to hear the parties. Following is the order passed by
this Court on 27.11.2018 :
“1. The writ petitions filed questioning the show
cause notice dated 4.6.2007 issued for the
removal of the buildings, which according to show
cause notice were falling within the prohibited
area of CRZ Category. Various violations were
mentioned in the show cause notice. Without
availing the remedy of filing reply to the show
cause notice, writ petitions were filed directly
in the High Court. The Single Bench of the High
Court vide its judgment and order dated
10.09.2012, allowed the writ petition. Aggrieved
thereby, the Municipality preferred writ appeals
before the Division Bench, which were dismissed
by the impugned judgment and order dated
02.06.2015.
2. Considering the peculiar facts and
circumstances of the case, as there is no
categorical finding recorded either by the Single
Bench or by the Division Bench that whether the
area in question is in CRZ Category-III,
Category-I or Category-II. It was claimed by the
petitioner before the Single Bench that they fell
within the CRZ Category-II, whereas the case set
up by Coastal Zone Management Authority in this
Court is that area is of CRZ CategoryIII. We deem
it appropriate to call for the findings on the
aforesaid aspect.
3. We constitute a Three-Member Committee
consisting of the Secretary to the Local Self
Government Department, the Chief Municipal
officer of the concerned Municipality and the
Collector of the District, to hear the objections
and to give a finding in terms of Notification
dated 19th February 1991.
5
4. Let the Committee hear the affected parties as
well as Kerala State Coastal Zone Management
Authority and State Government and consider the
matter as submitted by the parties and send a
report to this Court as to legality of
construction and precisely in which category the
area in question is to be categorized and whether
building is in prohibited zone. Let the exercise
be done within a period of two months and a
report be submitted to this Court.
5. Let the report be submitted covering the
aspect that may be urged by the parties as to the
legality of construction.”
The aforesaid order was passed in order to cut short the
litigation in respect of the show cause notice issued by the
authorities as the only question to be decided was as to whether
the area falls in CRZ-III of Coastal Zone Regulations. We have
heard the learned counsel at length again after receipt of the
report. The Committee consisted of the following members :
1. K. Gopalakrishna Bhat, IAS
Local Self Government (Rural)
In-Charge.
2. K. Mohammed Y. Safirulla, AIA,
District Collector,
Ernakulam.
3. Subhash P.K.,
Municipal Secretary,
Maradu Municipality.
The Committee has given the opportunity of hearing and has
dealt with the case set up by all the stakeholders in extensive
detail. Following findings and conclusion have been recorded by
the Committee :
“The Committee evaluated all arguments raised by
the parties and KCZMA, existing Rules and
6
Statutes and examined the Google map produced at
the time of the meeting.
The findings of the committee are as follows:
1) Marad Panchayat which was formed in 1953 was
upgraded into a municipality in November 2010.
2) The Coastal Zone Management Plan (CZMP of
Kerala currently applicable is the one that was
approved in 1996. As per the said CZMP, Marad
has been marked as Panchayat area and hence falls
in the Coastal Regulation Zone (CRZ) category of
CRZ-III. The area is represented in the Map
numbers 33, 33A and 34 of CZMP 1996. These maps
are attached as Annexure 1 and 2. A mosaic of
the three maps showing the Marad area is attached
as Annexure 3. Since the Panchayat has been
upgraded to Municipality in the year 2010, the
same has been shown as CRZ-II category in the
draft CZMP prepared as per the CRZ Notification
2011 and submitted to the MoEF&CC of Government
of India recently. Until the Government of
Kerala/KCZMA receives a communication from the
Government of India on the approval of the CZMP
draft submitted, the CZMP of 1996 stands valid.
Hence, as on date, Maradu area being a backwater
island the provisions as detailed below is
th
applicable after 6 January 2011 i.e., the date
on which Government of India published Coastal
Zone Management Plan (CZMP).
i) The islands within the backwaters shall have
50 mts width from the High Tide Line on the
landward side as the CRZ area;
ii) within 50 mts from the HTL of these
backwater islands existing dwelling units of
local communities may be repaired or
reconstructed however no new construction shall
be permitted;
iii) beyond 50 mts from the HTL on the landward
side of backwater islands, dwelling units of
local communities may be constructed with the
prior permission of the Grama panchayat;
iv) foreshore facilities such as fishing jetty,
fish drying yards, net mending yard, fishing
processing by traditional methods, boat building
yards, ice plant, boat repairs and the like, may
be taken up within 50 mts width from HTL of these
backwater islands.
7
CONCLUSION
The Coastal Zone Management Plan (CZMP) of Kerala
currently applicable is the one that was approved
in 1996. As per the said CZMP Maradu has been
marked as Panchayat area and hence falls in the
Coastal Regulation Zone (CRZ) category of CRZ
III. Maradu Panchayat has been upgraded to
Municipality in the year 2010 and hence in the
draft CZMP prepared as per CRZ Notification 2011,
it is shown as CRZ II category. The new draft
CZMP is submitted to MoEF & CC of Government of
India for approval. Until Government of India
approved the draft notification CZMP 1996 stands
valid."
It is apparent that at the relevant time when the construction
has been raised by the respondents in the matters, the area was
within CRZ-III. With respect to CRZ-III, the relevant notification
dated 19.2.1991 indicates that the area of 200 meters from the High
Tide Line is no development zone. No construction shall be
permitted within this zone except for repairs of the authorized
structures not exceeding existing FSI. The notification dated
19.02.1991 relating to CRZ-III is extracted below:-
“iii. The design and construction of buildings
shall be consistent with the surrounding
landscape and local architectural style.
i. The area up to 200 meters from the High Tide
Line is to be earmarked as “No Development Zone”.
No construction shall be permitted within this
zone except for repairs of existing authorised
structures not exceeding existing FSI, existing
plinth area, and existing density, and for
permissible activities under the notification
including facilities essential for such
activities. An authority designated by the State
Government/Union Territory Administration may
permit construction of facilities for water
supply, drainage, and sewerage for requirements
of local inhabitants. However, the following
8
uses may be permissible in this zone agriculture,
horticulture, gardens, pastures, parks,
playfields, forestry and salt manufacture from
sea water.
ii. Development of vacant plots between 200 and
500 meters of High Tide Line in designated areas
of CRZ-III with prior approval of Ministry of
Environment and Forests (MEF permitted for
construction of hotels/beach resorts for
temporary occupation of tourists/visitors subject
to the conditions as stipulated in the guidelines
at Annexure-II.
iii. Construction/reconstruction of dwelling
units between 200 and 500 meters of the High Tide
Line permitted so long it is within the ambit of
traditional rights and customary uses such as
existing fishing villages and gaothans. Building
permission for such construction/reconstruction
will be subject to the conditions that the total
number of dwelling units shall not be more than
twice the number of existing units; total covered
area on all floors shall not exceed 33 percent of
the plot size; the overall height of construction
shall not exceed 9 meters and construction shall
not be more than 2 floors ground floor plus one
floor. Construction is allowed for permissible
activities under the notification including
facilities essential for such activities. An
authority designated by State Government/Union
Territory Administration may permit construction
of public rain shelters, community toilets, water
supply, drainage, sewerage, roads, and bridges.
The said authority may also permit construction
of schools and dispensaries, for local
inhabitants of the area, for those panchayats the
major part of which falls within CRZ if no other
area is available for construction of such
facilities.
iv. Reconstruction/alterations of an existing
authorised building permitted subject to (I) to
(iii) above.”
It is also relevant to take note of Rule 23(4) of the Rules of
1999 which is extracted below:-
“23(4) Any land development or redevelopment
or building construction or reconstruction in any
9
area notified by the Government of India as a
coastal regulation zone under the Environment
(Protection) Act, 1986 (29 of 1986) and rules
made thereunder shall be subject to the
restrictions contained in the said notification
as amended from time to time.”
It is necessary for the local authority to follow the
restrictions imposed by the notification, as amended from time to
time. Thus, it was not open to the local authority, i.e.,
Panchayat, in view of the notification of 1991 to grant any kind of
permission without the concurrence of Kerala State Coastal Zone
Management Authority. Admittedly, Panchayat has not forwarded any
such applications for building permissions and there is no
concurrence or permission granted by the Kerala State Coastal Zone
Management Authority. As such, we find that once a due inquiry has
been held by the Committee, there is no escape from the conclusion
that the area fell within CRZ-III, it was wholly impermissible and
unauthorised construction within the prohibited area. We also take
judicial notice of recent devastation in Kerala which had taken
place due to heavy rains compounded by such unbridled construction
activities resulting in colossal loss of human life and property
due to such unauthorised activity.
This Court in Vaamika Island (Green Lagoon Resort) vs. Union
of India & Ors. [(2013) 8 SCC 760], has observed :-
“26. The petitioner had affected the construction
in violation of the provisions of 1991 and 2011
Notifications as well as Map No.32-A, so found by
the High Court. The factual details of the same
and where actually the portion of some of the
properties of the petitioner in Vettila Thuruthu
will fall has been elaborately dealt with by the
10
High Court in its judgment in paras 109 to 119.
We notice that the High Court has dealt with the
issue pointing out that so far as buildings which
have been constructed by the petitioner during
the currency of the Notification issued in 1991
are concerned, they are clearly in violation of
this notification, hence, action has to be taken
for the removal of the same. The Director of
Panchayat also vide letters dated 7.3.1995,
17.7.1996 directed all the panchayats to strictly
follow the provisions of CRZ notification which
it was found not followed by granting permission.
The High Court has also found on facts that
reconstruction work appeared to have been done
during the currency of the 2011 Notification and
two buildings (193/D and 193/E) were also
constructed illegally. The High Court has also
noticed another new construction underway. These
all are factual findings which call for no
interference by this Court. The High Court has
clearly noticed that reconstruction work has been
done contrary to 1991 as well as 2011
Notifications and the report of the Expert
Committee constituted by the Kerala State
Committee on Sciences Technology and Environment
(KSCSTE) was accepted.
27. We are of the considered view that the above
direction was issued by the High Court taking
into consideration the larger public interest and
to save Vembanad Lake which is an ecologically
sensitive area, so proclaimed nationally and
internationally. Vembanad Lake is presently
undergoing severe environmental degradation due
to increased human intervention and, as already
indicated, recognising the socio-economic
importance of this waterbody, it has recently
been scheduled under “vulnerable wetlands to be
protected” and declared as CVCA. We are of the
view that the directions given by the High Court
are perfectly in order in the abovementioned
perspective.
28. Further, the directions given by the High
Court in directing demolition of illegal
construction effected during the currency of the
1991 and 2011 CRZ Notifications are perfectly in
tune with the decisions of this Court in Piedade
Filomena Gonsalves v. State of Goa [(2004) 3 SCC
445], wherein this Court has held that such
notifications have been issued in the interest of
protecting environment and ecology in the coastal
area and the construction raised in violation of
11
such regulations cannot be lightly condoned.”
In Piedade Filomena Gonsalves vs. State of Goa & Ors. [(2004)
3 SCC 445], this Court has observed :
“4. We do not think that any fault can be found
with the judgment of the High Court and the
appellant can be allowed any relief in exercise
of the jurisdiction conferred on this Court under
Article 136 of the Constitution. Admittedly, the
construction which the appellant has raised is
without permission. Assuming it for a moment that
the construction, on demarcation and measurement
afresh and on HTL being determined, is found to
be beyond 200 meters of HTL, it is writ large
that the appellant has indulged into misadventure
of raising a construction without securing
permission from the competent authorities. That
apart, the learned counsel for the respondent,
has rightly pointed out that the direction of the
High Court in the matter of demarcation and
determination of HTL is based on the amendment
dated 18.8.1994 introduced in the notification
dated 19.2.1991 entitled the Coastal Regulation
Zone notification issued in exercise of the power
conferred by section 3(1) and Section 3(2)(v) of
the Environment Protection Act, 1986, while the
appellant's construction was completed before the
date of the amendment and, therefore, the
appellant cannot take benefit of the order dated
25.9.96 passed in writ petition No. 102 of 1996.
5. It is pertinent to note that during the
pendency of the writ petition, the appellant had
moved two applications, one of which is dated
11.7.1995, for the purpose of regularisation of
the construction in question. Goa State Coastal
Committee for Environment-the then competent body
constituted a sub-committee which inspected the
site and found that the entire construction
raised by the appellant fell within 200 meters of
the HTL and the construction had been carried out
on existing sand dunes. The Goa State Coastal
Committee for Environment, in its meeting dated
20.10.1995, took a decision inter alia holding
that the entire construction put up by the
appellant was in violation of the Coastal
Regulation Zone Notification.
12
6. The Coastal Regulation Zone notifications
have been issued in the interest of protecting
the environment and ecology in the coastal area.
Construction raised in violation of such
regulations cannot be lightly condoned. We do not
think that the appellant is entitled to any
relief. No fault can be found with the view taken
by the High Court in its impugned judgment.”
Further, reference has also been made to a decision of the
Kerala High Court in Ratheesh v. State of Kerala [2013 (3) KLT
840] . The same is extracted below :
“98. However, we would rather rest our decision
without pronouncing on the validity of the
permits as such. We have found that the
Notification is applicable to the island, the
island falls in CRZ-I and construction is
impermissible. By merely getting a permit under
the Building Rules, it cannot be in the region of
any doubt that the company cannot arrogate to
itself, the right to flout the terms of the
Notification. We have already noticed Rule 23(4)
of the Kerala Municipality Building Rules, 1999
and Rule 26(4) of the Kerala Panchayat Building
Rules, 2011. In this case, we may also note that
there is no permission sought from the authority.
It is apposite to note that paragraph 3 (v)
clearly mandates that for investment of Rs.5
crores and above, permission must be obtained
from the Ministry of Environment
WP(C).NO.19564/11 & CON.CASES 21 and Forest. In
this case, the investment of the company is far
above Rs.5 crores. In respect of investments
below Rs.5 crores, for activities which are not
prohibited, permission must be obtained from the
concerned authority in the State. The company has
not made any such attempt at getting permission.
That apart, this is a case where, even if
permission had been applied for, the terms of the
Notification would stand in the way of any such
permission being granted in so far as the island
is treated as falling in CRZ-I. Construction of
buildings as has been done by the company was
absolutely impermissible. The fact that in a
situation where the construction activity was
permissible under the Notification and if the
company had obtained permit from the local body,
would have made its activities legal, cannot
13
avail the company for the reason that under the
terms of the Notification, such permit obtained
from the panchayat will be of little avail to it
in the light of the nature of the restrictions
brought about by the Regulations in respect of
CRZ-I in which zone the island falls. According
to the WP(C).NO.19564/11 & CON.CASES 22
panchayat, no doubt, the conditions have been
imposed also as recommended by the Assistant
Engineer who is alleged to have even visited the
island. Whatever that be, as observed by us, in
the light of the view we have taken, namely that
the 1991 Notification applies to the island, it
is squarely covered by the same being included in
CRZ-I and the constructions were begun even
during the currency of the 1991 Notification. The
conclusion is inescapable that it is in the teeth
of the prohibition contained in the 1991
Notification and, therefore, it is palpably
illegal.
XXX XXX XXX
107. At this stage, we must deal with the
argument raised before us by the company. It is
submitted that a world-class resort has been put
up which will promote tourism in a State like
Kerala which does not have any industries as such
and where tourism has immense potential and jobs
will be created. It is submitted that the Court
may bear in mind that the company is eco-friendly
and if at all the Court is inclined to find
against the company, the Court may, in the facts
of this case, give direction to the company and
the company will strictly abide by any safeguards
essential for the preservation of environment.
108. We do not think that this Court should be
detained by such an argument. The Notification
issued under the Environment (Protection) Act is
meant to protect the environment and bring about
sustainable development. It is the law of the
land. It is meant to be obeyed and enforced. As
held by the Apex Court, construction in violation
of the Coastal Regulation Zone Regulations are
not to be viewed lightly and he who breaches its
WP(C).NO.19564/11 & CON.CASES 24 terms does so at
his own peril. The fait accompli of constructions
being made which are in the teeth of the
Notification cannot present, but a highly
vulnerable argument.”
14
We find that the view taken by the Kerala High Court in the
aforesaid decision is appropriate.
In the instant case, permission granted by the Panchayat was
illegal and void. No such development activity could have taken
place in prohibited zone. In view of the findings of the Enquiry,
Committee, let all the structures be removed forthwith within a
period of one month from today and compliance be reported to this
Court.
The appeals are, accordingly allowed with aforesaid direction.
Interlocutory applications, if any, stand disposed of.
………………………………………………………,J.
(Arun Mishra)
………………………………………………………,J.
(Navin Sinha)
New Delhi;
May 08, 2019
ITEM NO.60 COURT NO.4 SECTION XI-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 4227-4228/2016
(Arising out of impugned final judgment and order dated 02-06-2015
in WA No. 132/2013 11-11-2015 in RP No. 787/2015 02-06-2015 in WPC
No. 22590/2007 11-11-2015 in WA No. 132/2013 passed by the High
Court Of Kerala At Ernakulam)
THE KERALA STATE STATE COASTAL ZONE
MANAGEMENT AUTHORITY Petitioner(s)
VERSUS
THE STATE OF KERALA MARADU MUNICIPALITY AND ORS. Respondent(s)
WITH
SLP(C) No. 4231-4234/2016 (XI-A)
SLP(C) No. 4238-4241/2016 (XI-A)
Date : 08-05-2019 These petitions were called on for hearing today.
CORAM : HON'BLE MR. JUSTICE ARUN MISHRA
HON'BLE MR. JUSTICE NAVIN SINHA
For Petitioner(s) Mr. Romy Chacko, AOR
Mr. Shapti Chand J., Adv.
Mr. Vishant Singh, Adv.
For Respondent(s) Mr. Ranjan Kumar, AOR
Mr. V. Giri, Sr. Adv.
Mr. Jayanth Muthraj, Sr. Adv.
Mr. Mohammed Sadique T.R., AOR
Mr. Ranjan Kumar, Adv.
Mr. Anu K. Joy, Adv.
Mr. Amith Krishnan, Adv.
Mr. Alim Anvar, Adv.
Mr. G. Prakash, AOR
Mr. Jishnu M.L., Adv.
Mrs. Priyanka Prakash, Adv.
Mrs. Beena Prakash, Adv.
Mr. M. T. George, AOR
Mr. Avishkar Singhvi, Adv.
Mr. Nipun Katyal, Adv.
UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
Applications for intervention are allowed.
The appeals are allowed in terms of the signed order.
Interlocutory applications, if any, stand disposed of.
(GULSHAN KUMAR ARORA) (JAGDISH CHANDER)
COURT MASTER COURT MASTER
(Reportable order is placed on the file)