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'KCZMA Misled Court'; Another Builder Approaches SC For Review Of Demolition Order Against Kochi Flats [Read Petition]

Live Law News Network
7 Jun 2019 12:52 PM GMT
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As the one month deadline set by the Supreme Court for demolition of three apartments in Maradu, Kochi for CRZ violations is nearing, another builder - Alfa Ventures Pvt Ltd - has approached the Supreme Court seeking review of the May 8 judgment.

The petition filed through Advocate Mohammed Sadique contends that the Court was misled by the Kerala Coastal Zone Management Authority (KCZMA) into concluding that the constructions were made in violation of Coastal Regulation Zone notifications. According to the review petitioner, the Kerala Coastal Zone Management Authority was aware that the constructions are legal now, as the area is categorized as CRZ-II (where such constructions are permissible) in the Coastal Zone Management Plan prepared as per the 2011 CRZ notification. Though this plan was approved by the Union Ministry of Environment and Forests in February 2019, this was not brought to the notice of the Court by KCZMA  "for reasons best known to it", the petition states. 

The builder has also placed reliance on Para 4.3 of the 2011 notification introduced as per amendment in March 2018, which allows the Government to give post-facto clearance for activities which are otherwise permissible.  Since the building is situated in CRZ-II area as per the current CZMP, it is completely legal. The procedural lapses are curable as per law, and they should not be cited as a reason to demolish the apartments, which will affect nearly 400 families, the builder submits. 

The construction started in the year 2006 based on a building permit issued by the Maradu Grama Panchayath, which was later upgraded as Municipality. Based on an instruction from the State Government, the Panchayath issued a show-cause notice for revoking the building permit, citing CRZ violations. This was challenged in the High Court of Kerala. The High Court stayed the notices, and construction was carried out on the strength of Court's interim order. Later, the writ petitions by builders were allowed by the Court on the ground that Government had no power in law to issue instructions to a local self government authority. 

This was challenged by the KCZMA in the Supreme Court, in which orders were passed on May 8. The bench of Justices Arun Mishra and Navin Sinha passed the order based on the report of a three-member committee appointed by the Court which stated that when the constructions were made, the area was designated as CRZ-III, where such constructions are prohibited. The Court had also noted that Panchayat had granted the building permits without the concurrence of the Coastal Zone Management Authority, which was mandatory. According to the bench, the relevant issue was whether the constructions were legal when they were made, and not whether they are permissible now.

The review petitioner contends that KCZMA is estopped from challenging the construction, as it had not taken any action while the construction activities were progressing. It did not challenge the building permits or the interim orders granted by the High Court. After keeping silent all this while, it cannot all of a sudden spring into action, especially so when all the units have been sold off to private parties and families have started residing there after spending their hard earned money, the review petition submits.

The review petition alleges that the 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 had not heard all affected parties before submitting the report.

Holy Faith Builders Pvt Ltd, builder of another apartment, has also filed a review petition.

Click here to download Review Petition


Read Petition


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