A Note On The Supreme Court Judgment Relating The Constructions Carried Out In Maradu

A Note On The Supreme Court Judgment Relating The Constructions Carried Out In Maradu

CONSTITUTION OF INDIA

Article 300 A of the Constitution of India states that no person shall be deprived of his property save by authority of law.

Entry 17 of List II of the Seventh Schedule of the Constitution of India – Water, that is to say water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of Entry 56 of List I.

Entry 56 of List I of the Seventh Schedule of the Constitution of India -Regulation and development of inter-State rivers and river valleys to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest.

ENVIRONMENT (PROTECTION) ACT, 1986

As per Section 3, the Central Government has the powers to take measures to protect and improve environment.

As per Section 3(2) (v), the Central Government can take measures with respect to restriction 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.

As per Section 3(3), the Central Government may, if it considers it necessary or expedient so to do for the purposes of this Act, by order, published in the Official Gazette, constitute an authority or authorities by such name or names as may be specified in the order for the purpose of exercising and performing such of the powers and functions (including the power to issue directions under section 5)of the Central Government under the Environment (Protection) Act, 1986 and for taking measures with respect to such of the matters referred to in Section 3 (2) as may be mentioned in the order and subject to the supervision and control of the Central Government

As per Rule 5 (3) of the Environment (Protection) Rules, 1986:

(a) whenever it appears to the Central Government that it is expedient to impose prohibition or restrictions on the locations of an industry or the carrying on of processes and operations in an area, it may by notification in the Official Gazette and in such other manner as the Central Government may deem necessary from time to time, give notice of its intention to do so.

(b) Every notification under clause (a) shall give a brief description of the area, the industries, operations, processes in that area about which such notification pertains and also specify the reason for the imposition of prohibition or restrictions on the locations of the industries and carrying on of process or operation in that area.

(c) Any person interested in filing an objection against the imposition of prohibition or restriction on carrying on of processes or operations as notified under clause (a) may do so in writing to the Central Government within sixty days from the date of publication of the notification in the Official Gazette.

(d) The Central Government shall, within a period of one hundred and twenty days from the date of publication of the notification in the Official Gazette, consider all the objections received against such notification and may (within five hundred and forty-five days) from such date of publication impose prohibition or restrictions on location of such industries and the carrying on of any process or operation in an area.

CRZ NOTIFICATION – 1991

The Central Government issued notification S.O.114(E) dated 19th February, 1991 declaring the coastal stretches of seas, bays, estuaries, creeks, rivers and backwaters, which are influenced by tidal action (in the landward side) up to 500 m from High Tide Line (HTL) and the land between the Low Tide Line (LTL) and the HTL as Coastal Regulation Zone (CRZ). This notification is issued 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 said notification mandates preparing of Coastal Zone Management Plan (CZMP) identifying and classifying the CRZ areas within the respective states and obtaining approval of the Central Government.

Annexure-I of the Notification dealt with Coastal Area Classification and Development Regulations.

CATEGORYII – CRZ-II

The areas that have already been developed up to or close to the shoreline. For this purpose, developed area is referred to as that area within municipal limits or in other legally designated urban areas which is already substantially built up and which has been provided with drainage and approach roads and other infrastructural facilities, such as water supply and sewage mains.

CATEGORY III – CRZ-III

Areas that are relatively undisturbed and those which do not belong to either category I or II. These will include coastal zone in the rural areas (developed and undeveloped) and also areas within Municipal limits or in other legally designated urban areas which are not substantially built up.

In CRZ-II, buildings are permitted on the landward side of the existing and proposed road or on the landward side of existing authorized structures and shall be subject to the existing local Town and Country Planning Regulations including the existing norms of Floor Space Index/Floor Area Ratio.

In CRZ-III, the area upto 200 metres from the High Tide Limit is to be earmarked as No Development Zone and no construction shall be permitted within this zone except for repairs of existing authorized structures not exceeding existing FSI, existing plinth area and existing density and for permissible activities under the Notification including facilities essential for such activities.

In accordance with the Notification, the Kerala State Government prepared a Coastal Zone Management Plan and got it approved on 27th September, 1996.

LAKESHORE CASE JUDGMENT AND ITS IMPACT

In Citizens Interest Agency v. Lakeshore Hospital and Research Center Pvt. Ltd. reported in 2003 (3) KLT 424, construction carried out in Kundanoor area, falling within the jurisdiction of Maradu Grama Panchayat, was the subject matter.In the said Writ Petition, the State Government submitted before the Division Bench that Coastal Zone Management Plan of the State is prepared in 1:12,500 scale on a base map enlarged from Survey of India, top sheets of 1:50,000 scale with the use of aerial photograph and satellite imageries and it will be difficult to arrive at exact conclusions on the CRZ status of the disputed area.The Court was further informed that vide letter dated 4th January 1999, the Ministry of Environment and Forests has directed the State Government to prepare local level CRZ Maps in cadastral scale (1:3960 or the nearest scale) to ascertain the Coastal Regulation Zone.The Division Bench further observed that the 1991 Notification applies to the bays, estuaries and backwaters and that it is clear that canals are outside the purview of the notification.Therefore, the canal on the side of which the construction is carried out is not covered by CRZ Notification. The Division Bench recorded the submission made by Additional Advocate General on behalf of the State Government that the original plan was prepared on the basis of the plan given by the Survey of India and the satellite imageries and these plans are prepared in 1:12,500 and 1:50,000 scale. It was further pointed out that depicting an area of 12 ½ thousand sq. kms. in one inch is a difficult job. Similarly, in the case of the scale prepared in the ratio 1:50,000, it is even more difficult. It was submitted that the Government is preparing cadastral plans.

Thus, it is crystal clear that the area upto 200 metres from the High Tide Line has not been marked by the Coastal Zone Management Authority in the Coastal Zone Management Plan and therefore, 'no development zone' has not been demarcated by including the present area.Therefore, till date,the 'no development zone' in Maradu area has not been demarcated in the Coastal Zone Management Plan by the KCZMA.The area where constructions have been carried out has not been included as No Development Zone in CRZ-III.Thus, it was admitted before the Court that the procedure in accordance with Rule 5(3) of the Environment (Protection)Rules has not been followed by the KCZMA and, therefore, no restrictions could be imposed on the right of the property owners to utilize their property without following the procedure prescribed under Rule 5(3).

MARADU AS A PART OF THEGREATER COCHIN DEVELOPMENT AUTHORITY-A LEGALLY DESIGNATED URBAN AREA

Greater Cochin Development Authority (GCDA) came into existence on 24-1-1976, under the Madras Town Planning Act of 1920 and Travancore Town Planning Act 4 of 1108,as per G.O (Ms) No.19176/LA & SWD dated 23-1-1976. The jurisdiction of GCDA covers an area of 732 sq.kms. consisting of the Kochi Corporation, 9 Municipalities and 21 Panchayats. The Maradu Grama Panchayat was part of the Greater Cochin Development Authority and hence comes within legally designated urban area as per the 1991 Notification.

MARADU AS PART OF KOCHI CENTRAL CITY STRUCTURE PLAN

Considering the urban nature and rapid growth in the area, the Structure Plan of Kochi was extended to the Maradu Grama Panchayat.The Kerala Municipality Building Rules were also made applicable to the Maradau Grama Panchayat. The Government of Kerala notified the Revised Structure Plan for Central City of Kochi and the same is made applicable to Maradu area.

BUILDING PERMITS ISSUED BY THE MARADU PANCHAYAT

Building Permits were issued by the Secretary of the Maradu Grama Panchayat for construction of a residential flat on 18.8.2006 (M/s. Holy Faith Builders and Developers Private Limited) and on 19.9.2006 (Alpha Venture Private limited) for construction of an apartment complex.

As per Rule 23(4) of the Kerala Municipality Building Rules, any land development or redevelopment or building construction in any area notified by the Government of India as a Coastal Regulation Zone under the Environment (Protection)Act, 1986 and rules made thereunder shall be subject to the restrictions contained in the Notification as amended from time to time.

No prior approval was required to be obtained from the Kerala Coastal Zone Management Authority since the area where construction was proposed was not demarcated as 'No Development Zone' under CRZ-III by the KCZMA.

SHOW-CAUSENOTICE ISSUED BY THE MARADU PANCHAYAT

The Principal Secretary to Government as per letter dated 18-5-2007 sent a communication to the Secretary, Maradu Grama Panchayat forwarding a list of Building Permit cases in which violations/anomalies were detected during the inspection of Senior Town Planner (Vigilance) and directed the Secretary to revoke all the listed Building Permits as per Rule 16 of the Kerala Municipality Building Rules, 1999 and report to the Government.Accordingly, on 4-6-2007,a show-cause notice was issued by the Secretary of the Maradu Grama Panchayat under Rule 16 of the Kerala Municipality Building Rules, requiring the parties to show cause as to why action should not be initiated under Rule 16 for suspension and revocation of the Building Permits.

WRIT PETITIONS FILED BEFORE THE HIGH COURT OF KERALA

Challenging the show-cause notices, Writ Petitions were filed before the Hon'ble High Court of Kerala, contending that the Show-cause notices issued by the Panchayat are arbitrary and illegal.It was specifically contended in the Writ Petition that Maradu Grama Panchayat being a developed area which is part of the Greater Cochin Development Authority is included as CRZ-II and therefore, the assumption that the area is included as CRZ-III was factually incorrect. The impugned notices were stayed and the Single Judge granted liberty to the Panchayat to initiate fresh proceedings including the issuance of a Stop Memo. No fresh proceedings were initiated either by the Panchayat or the KCZMA during the pendency of the Writ Petition. Applications for numbering the building were filed in 2012 after completion of the constructions and the learned Single Judge directed the numbering of the building in accordance with law, making it clear that it will be subject to the result of the Writ Petition.

STAND OF THE MARADU GRAMA PANCHAYAT IN THE WRIT PETITION

In W.P(C) No. 22590/2007, a counter affidavit was filed by the Maradu Grama Panchayat specifically stating that Maradu Grama Panchayat is an area situated between Cochin Corporation and Thripunithura Municipality and that 3 National Highways and other State Highways pass through the Panchayat.The best of Health Care Centres/Hospitals/Educational Institutes, international vegetable commodity market, 5 star and other category hotels, and housing projects are situated within the Panchayat. It was specifically stated that the Maradu Grama Panchayat area is substantially built up close to the shore lines and all infrastructural provisions such as roads, water supply, drainage, etc. are provided in the entire Panchayat area and that commercial and other buildings are already existing on the shorelines.It was also admitted that the Structure Plan for Cochin City was extended to Maradu Grama Panchayat and the Kerala Municipality Buildings Rules were also made applicable to the Panchayat. The specific case of the Maradu Grama Panchayat was that it was a developed area, falling within CRZ-II category and the Panchayat had already submitted a representation to the Coastal Zone Management Authority to rectify the anomaly in the categorization on the Panchayat under the CRZ scheme.

It was further pointed out that W.P(C) No. 19287/2007, which was filed by Agnus Holdings Private limited for a declaration that classification of Maradu Grama Panchayat as CRZ-III was arbitrary, was disposed of on 13-8-2007with a direction to the Kerala Coastal Zone Management Authority to consider and pass orders on the representation made by the Maradu Panchayat within three months from the date of receipt of a copy of the Judgment.

STAND OF THE KERALA COASTAL ZONE MANAGEMENT AUTHORITY

The Kerala Coastal Zone Management Authority was impleaded as the 4th respondent in W.P(C) No.22590/2007. No counter affidavit was filed by the Kerala Coastal Zone Management Authority repudiating the stand taken by the Maradu Grama Panchayat stating that classification of Maradu Grama Panchayat was in CRZ-II as per the 1991 Notification and not in CRZ-III.The KCZMA did not produce any document to show that revised Coastal Management Plan as directed in the Lakeshore Judgment was prepared and 'No development' Zone was demarcated and the constructions in question were included in the No Development Zone.

JUDGMENT OF THE LEARNED SINGLE JUDGE

The learned Single Judge as per Judgment dated 10th September, 2012 in W.P(C) No.25948 of 2007 specifically took note of the Counter Affidavit filed by the Maradu Grama Panchayat stating that the Panchayat is a fully developed area and it comes within the classification of CRZ-II. The learned Single Judge also took note of the contention that the Maradu Grama Panchayat is a fully developed area situated close to the rapidly developing Corporation of Cochin and comes within the meaning of "developed area" as described in Category-II of the Coastal Area Classification and Development Regulations. The learned Single Judge observed that for invocation of power under Rule 16, the Secretary has to be satisfied that there is a violation and the State Government cannot direct the Secretary of the Panchayat to invoke the power conferred by Rule 16 and accordingly, the learned Single Judge set aside the direction issued by the State Government compelling the Secretary of the Panchayat to cancel the Building Permits.Consequently,the show-cause notices issued by the Secretary of the Panchayat solely based on the direction issued by the State Government were also set aside. Following this Judgment, W.P(C) No. 23046/2007 was disposed of by the learned Single Judge by setting aside the impugned orders.On 19-9-2012, W.P(C) 22590/2007 was also disposed of, setting aside the impugned orders. In the said Writ Petition, the Kerala Coastal Zone Management Authority was also a respondent.During the pendency of the Writ Petitions,Maradu Panchayat was classified as a Municipality and Maradu Municipality was also impleaded in the Writ Petitions.

WRIT APPEALS FILED BY THE MARADU MUNICIPALITY

Writ Appeal Nos. 132, 148, 150, 151 and 199 of 2013 were filed by the Maradu Municipality and the Secretary of MaraduGrama Panchayat.All the Writ Appeals were jointly heard and disposed of as per common Judgment dated 2-6-2015. The contention of the appellants was that the impugned orders were only show-cause notices issued under Rule 16 of the Kerala Municipality Building Rules, 1999 (KMBR) and the Writ Petitions were premature and if any invalidity is found in the proceedings that were initiated, the learned Single Judge ought to have given liberty to the appellants to initiate fresh proceedings in accordance with law.The Division Bench observed that the reason stated in the show-cause notice does not come within one of the four grounds mentioned in Rule 16 of the KMBR and the whole proceedings are fundamentally erroneous and for that reason, the impugned order could not have been sustained.Regarding the liberty/permission sought for initiating fresh proceedings, the Division Bench specifically observed that during the pendency of the Writ Petition, despite liberty being granted by the Court, no Stop Memo was issued by the Panchayat or the KCZMA and the construction of the building was allowed to be completed and the building has been numbered and innocent purchasers have occupied the building.The Secretary of the Municipality,i.e. the 2nd appellant,himself has categorically, on the eve of the filing of the Writ Appeal, as evidenced by Annexure A, stated that he has found that alleged violations of KMBR do not exist and in such circumstances, the Division Bench saw no reason to remit the matter back to the Secretary since it would be nothing but an exercise in futility.

The Division Bench took note of the submission made by KCZMA relying on Rule 23(4) of the KMBR and also provisions of the letter dated 17-6-2006 issued by the KCZMA. The Division Bench took note of the fact that as far as 1996 Coastal Zone Management Plan is concerned, in Citizens Interest Agency v. Lakeshore Hospital and Research Center Pvt. Ltd. reported in 2003 (3) KLT 424, the incorrectness of the Plan was conceded by the State itself which was recorded in paragraph 32 of the Judgment.Therefore, the Bench observed that Rule 23 (4) could not be pressed into service in the absence of a proper Coastal Zone Management Plan.

As far as Circular dated 17-6-2006 is concerned, the Division Bench observed that as per the Circular,the local authority may forward applications to the Coastal Zone Management Authority "for the activities for which clearance from Coastal Zone Management Authority is required after proper verification of the records". The Bench observed that the obligation is on the local authority to forward the same to the Coastal Zone Management Authority while processing the applications for Building Permit and if the local authority has failed in complying with the requirements of the circular, the permit holders cannot be taken to task.

REVIEW PETITIONS FILED BY THE COASTAL ZONE MANAGEMENT AUTHORITY

Review Petitions were filed by the Coastal Zone Management Authority to review paragraph 20 of the Judgment wherein, after referring to the Circular dated 17-6-2006, the Court held that the obligation under the Circular is on the local authority and that if the local authority has failed in complying with the requirements of the letter, the permit holders cannot be taken to task.The KCZMA contended that as a result of the misconduct by the local authority, illegal construction was permitted and requested for deletion of the last sentence wherein it was stated that if the local authority failed in complying with the requirements of the circular, the permit holders cannot be taken to task. The Division Bench held that the finding entered into by the Bench thatthe permit holders cannot be taken to task for the failure of the local authority in complying with the Circular was a conscious finding entered into by the Court and therefore the Bench could not find any error justifying entertainment of the Review Petitions and accordingly the Review Petitions were dismissed.

SPECIAL LEAVE PETITIONS FILED BEFORE THE SUPREME COURT

The Kerala Coastal Zone Management Authority filed Special Leave Petitions before the Hon'ble Supreme Court challenging the Judgment of the Division Bench dismissing the Writ Appeals and the Review Petitions. On 27-11-2018, an Order was passed by the Hon'ble Supreme Court observing that there is no categorical finding recorded either by the Single Judge or by the Division Bench as to whether the area in question is in Category-III and Category-I or Category-II, and constituting a 3 Member Committee consisting of Secretary to the Local Self Government Department, the Chief Municipal Officer of the concerned Municipality and the Collector of the District to hear objections and to give a finding in terms of Notification dated 19th February, 1991. The Committee was directed to hear the affected parties as well as the Kerala Coastal Zone Management Authority and the State Government and submit a Report before the Court as to the legality of the construction,as to the category in which the area in question is to be categorized, and as to whether the building is in the prohibited zone.

APPROVAL OF KERALA COASTAL ZONE MANAGEMENT PLAN BY THE CENTRAL GOVERNMENT

The CZMPs prepared, based on the 1991 notification, throughout the country has been the subject matter of criticism. The Central Government appointed a committee headed by Dr.M.S.Swaminathan to have a re look on the same.On the basis of the said recommendations, the Central Government issued a new notification, namely S.O. 19(E), on 06-01-2011. The new notification gives a special status to the backwater islands in Kerala. The new notification contains separate guidelines for the preparation of the CZMP.

A direction was issued by the National Green Tribunal in O.A.No.11/2014 and 424/2016 on 22.11.2017 to all the states including Kerala to finalise the preparation of CZMPs in the state and submit them to the Central Government by 30.04.2018. It was also directed in the said order that the State Governments shall be liable for a cost of Rs.5 lakhs which should be recovered from the salary of the defaulting officer, in case of failure to comply with the order.

In the new notification, Clause 5 (v), (vi) and (vii) mandates the preparation of maps. The relevant clauses are extracted below for easy reference

(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 of this notification, draft CZMPs in 1:25,000 scale map 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;

The following procedure was adopted by the KCZMA.

"IV. Public Views on the CZMP.

a) The draft CZMPs prepared shall be given wide publicity and suggestions and objections received in accordance with the Environment (Protection) Act, 1986. Public hearing on the draft CZMPs shall be held at district level by the concerned CZMAs.

b) Based on the suggestions and objections received, the CZMPs shall be revised and approval of MoEF shall be obtained.

c) The approved CZMP shall be put up on the website of MoEF, concerned website of the State or Union Territory CZMA and hard copy made available in the Panchayat office, District Collector office and the like."

Rule 5(2) and 5(3) of the Environment (Protection) Rules prescribe a procedure for publishing any draft notifications and inviting public objections. As per the same, brief description of the area, nature of restrictions/regulations, and the reason for such restriction shall be published in the gazette notification. 60 days' time is to be given for the affected parties/public to make objections.

As per the notification, the KCZMA was authorized by the Central Government to conduct public hearing on the draft CZMPs at District Level in the state of Kerala. The purpose of the above clauses is that the people's participation should be ensured so that all mistakes can be corrected at the draft stage of the Maps itself. The KCZMA started the preparation of the draft CZMPs. The National Centre for Earth Science Studies, Thiruvananthapuram has been authorized by the KCZMA to prepare the CZM maps. As per the notification, there are two CZM maps to be prepared, one is of 1:25000 scale and the other one is of 1:3960 scale. The relevant clause in the notification is extracted below for easy reference.

C. Local level CZM Maps

Local level CZM Maps are for the use of local bodies and other agencies to facilitate implementation of the Coastal Zone Management Plans

13. Cadastral (village) maps in 1:3960 or the nearest scale, shall be used as the base maps.

14. These maps are available with revenue authorities and are prepared as per standard norms.

15. HTL (as defined in the CRZ notification) and LTL will be demarcated in the cadastral map based on detailed physical verification using coastal geomorphological signatures or features in accordance with the CZM Maps approved by the Central Government.

16. 500 metre and 200metre lines shall be demarcated with respect to the HTL thus marked.

17. HTL (as defined in the CRZ notification, 1991) and LTL will also be demarcated along the banks of tidal influenced inland water bodies with the help of geomorphological signatures or features.

18. Classifications shall be transferred into local level CZM maps from the CZM Plans.

The draft Plan prepared by the KCZMA was published on the website of the Kerala State Pollution Control Board.The maps prepared in 1:25000 and 1:3960 scale were made available in the public domain. The Kerala State Pollution Control Board published draft CZMP for various districts in Kerala.The public hearing for Ernakulam District was conducted in mid-2018 and the notices were published in English and Malayalam.

The Technical Scrutiny Committee in its meeting held on 18-2-2019 considered the CZMPs and submitted its recommendation.

The CZMPs prepared for Ernakulam district and other districts in Kerala were considered by the National Coastal Zone Management Authority in its meeting held on 25-2-2019 and recommended for approval.

Accordingly, as per letter dated 28-2-2019, Coastal Zone Management Plan of Kasaragod, Kannur, Kozhikode, Malappuram, Thrissur, Ernakulam, Kottayam, Alappuzha, Kollam and Thiruvananthapuram was approved by the Ministry of Environment, Forest and Climate Change. Therefore, the fact is that the Coastal Zone Management Plan prepared as per CRZ Notification 2011 has been approved by the Ministry as per Notification dated 28-2-2019.

PROCEEDINGS BY THE COMMITTEE CONSTITUTED BY THE SUPREME COURT

Prior to the sitting of the Committee, a Technical Team was constituted by the Government vide Government Order dated 24-12-2018 consisting of the following Members:

1. Smt. Girija, Chief Town Planner.

2. Dr.K.K. Ramachandran, Group Head, Atmospheric & Geo – Information Division, CESS, Thiruvananthapuram.

3. Dr. Hari Narayanan, Scientist, KSCSTE.

4. Shri. Balraj, Joint Director (Urban Affairs).

The Technical Team met in the Chamber of the Special Secretary to Government on 16-1-2019 and submitted a Report. The Technical Team blindly relied on the Coastal Zone Management Plan approved in 1996 and failed to bring to the notice of the Committee the Judgment of the Division Bench of the Hon'ble High Court of Kerala in Citizens Interest Agency v. Lakeshore Hospital and Research Center Pvt. Ltd. reported in 2003 (3) KLT 424, in which the State Government undertook to prepare a fresh Coastal Zone Management Plan after admitting that there was no proper management plan prepared for the Maradu area. The Technical Committee also failed to include in the report that Maradu area, being part of Greater Cochin Development Authority and the Kochi Structure Plan, is a developed area which is substantially built up and which has been provided with drainage and approach road and other infrastructural facilities such as water supply and sewage mains and hence was to be included in Category-II (CRZ-II). The Technical Team informed the Committee that since Maradu Grama Panchayat has been upgraded to a Municipality in the year 2010, the same has been shown as CRZ Category-II as per the CRZ Notification 2011 and until the Government of Kerala/KCZMA receives a communication on the approval of CZMA Draft Plan submitted recently to the MoEF&CC of Government of India, the Coastal Zone Map of 1996 is valid.

A hearing was conducted by the Committee during which the Judgment of the Division Bench in Lakeshore Hospital and Research Center Pvt. Ltd. case was brought to its notice. The counter affidavit filed by the Maradu Grama Panchayat in W.P(C) 22590/2007 categorically affirming that MaraduGrama Panchayat is in CRZ-II was also placed before the Committee. It was also pointed out that Coastal Zone Management Authority, who was the 4th respondent in W.P(C) 22590/2007, has not disputed the assertion of the Writ Petitioner and the MaraduGrama Panchayat that the Maradu Grama Panchayat is categorized as CRZ-II since it is a highly developed area.The Committee concluded that the Coastal Zone Management Plan (CZMP) currently applicable is the one that was approved in 1996, and as per the CZMP,Maradu has been marked as Panchayat area and hence falls in the Coastal Regulation Zone (CRZ) category of CRZ-III.It is further stated that Maradu Grama Panchayat has been upgraded to Municipality in the year 2010 and the draft CZMP prepared as per CRZ Notification 2011 showsit as CRZ II category and that the new draft of CZMP is submitted to MoEF&CC of the Government of India for approval and until Government of India approves the draft notification, CZMP 1996 is valid.This report was submitted before the Hon'ble Supreme Court on 12-3-2019.The Committee failed to take note of the specific finding rendered by the Division Bench in Lakeshore case that the CZMP prepared in 1996 for Maradu area was not proper and therefore the conclusion arrived at by the committee placing reliance on the CZMP prepared in 1996 that Maradu comes under CRZ-III is erroneous.The Committee also failed to take note of the fact that the CZMP for Ernakulam District has been approved by the MoEF and the anomaly of incorrect classification of Maradu in CRZ-III instead of CRZ-II has been rectified.

JUDGMENT OF THE HON'BLE SUPREME COURT

The Hon'ble Supreme Court relying on the Report submitted by the Committee concluded that the area is coming under CRZ-III and directed demolition of the constructions carried out. The entire basis of the conclusion made by the Hon'ble Supreme Court was due to the failure on the part of the Committee to bring to the notice of the Hon'ble Supreme Court that the Coastal Zone Management Plan prepared based on 2011 Notification has been approved by the Ministry of Environment Forest and Climate Change and that the Maradu Municipality is included in CRZ-II Category.

REMEDY AVAILABLE

The specific case put up in the Writ Petition was that the inclusion of MaraduGrama Panchayat in CRZ-III was erroneous since, as per the 1991 Notification itself, developed area in legally designated urban area which is already substantially built up and which has been provided with drainage and approach roads and other infrastructural facilities such as water supply and sewage mains was to be included in category II (CRZ-II). The specific case of the Maradu Panchayat before the Single Judge was that the Maradu Panchayat is to be included in category II (CRZ-II).This assertion has not been denied by the Kerala Coastal Zone Management Authority,who was also a respondent before the learned Single Judge and this was specifically recorded by the Learned Single Judge. The objection regarding the incorrect classification of Maradu Grama Panchayat in CRZ-III was considered by the authorities and the anomaly was rectified and Maradu has been included in CRZ-II in the revised Coastal Zone Management Plan and the same has been approved by the Ministry of Environment, Forest and Climate Change.

In the Notification issued by the Central Government on 6-1-2011, it has been clearly stated that the said Notification is issued in supersession of the notification of the Government of India dated 19th February, 1991. The Coastal Zone Management Plans prepared based on the 1991 notification which was approved by the Ministry of Environment and Forest was valid upto 31st July, 2018 or till when approval is given by the Ministry to the fresh Coastal Zone Management Plan made as per the 2011 Notification.In view of the fact that on 28-2-2019, approval has been granted to the Coastal Zone Management Plan prepared for Ernakulam District which includes Maradu area in CRZ-II, by rectifying the mistake committed earlier wherein which it was incorrectly included as CRZ-III, the constructions carried out in Maradu have to be evaluated as if the same is done in CRZ-II where construction is permissible upto building line on the landward side of existing authorized structures.Since this crucial aspect has not been considered by the Hon'ble Supreme Court, a Review Petition has to be filed before the Hon'ble Supreme Court, pointing out the fact that the Committee omitted to bring to the notice of the Hon'ble Supreme Court the fact that Coastal Zone Management Plan prepared as per Coastal Regulation Zone Notification 2011 has been approved and the Maradu area is included in CRZ–II and, therefore, the constructions carried out are strictly in accordance with law.