Sunday, June 4, 2023

Kerala High Court dismisses PIL seeking direction to Kerala coastal zone management authority against illegal construction in the No-development zone

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The Kerala High Court dismissed a Public Interest Litigation (PIL) filed  seeking direction to the Kerala Coastal Zone Management Authority (KCZMA) to take action against the illegal constructions made by the Private Respondent in the No-Development Zone of the Palliyamoola beach in Kannur District.

With regard to the locus standi of the petitioner to file the petition, he stated before the High Court that, though he is residing in Thiruvananthapuram due to the employment of his wife, he is interested to settle and stay permanently in Kannur where he has many friends and relatives.   
According to the petitioner, the Private Respondent has a land in  Pallikkunnu Village, Kannur District on eastern side of the Palliyamoola beach and in the approved  Coastal Zone Management Plans(CZMP)  , this area is marked as Coastal Regulation Zone(CRZ)-III wherein no construction is possible in the No-Development Zone of 200 meters from the High Tide Line without consent from KCZMA. The petitioner states that the  Private Respondent  has started construction of a beach resort under the name and style ‘Krishna Beach Resort’ in the No-Development Zone of the Palliyamoola beach having a plinth area of 14,566.88 sq.mts and already finished construction of some of the rooms and started occupation. No CRZ clearance or Environmental clearance has been obtained for such constructions. The petitioner states that, the Union of India, Ministry of Environment and Climate Change has issued “Coastal Regulation Zone Notification, 1991” on 19.02.1991 under Section 3 of Environment (Protection) Act, 1986 after considering the need for protecting the coastal areas and for ensuring that the use and activities in the coastal areas are consistent with the principles and requirements of environmental conservation and has declared a restrictive distance of 500 meters from High Tide Line (HTL) for seashore, 200 meters as no development zone from HTL (in the case of Sea) and 100 meters in the case of tidally influenced water bodies from certain activities which include constructions. The CZMP prepared by the Government of Kerala was approved on 27.09.1996. 
The petitioner referred to Google earth images of the area and contends that constructions are being carried out in gross violation of the CRZ norms and despite various representations submitted before Kerala Coastal Zone Management Authority (respondents 1)  and Union of India (respondent 2) , no action is taken. The petitioner states that the construction carried out by the 3rd respondent will have adverse effect on the coastal ecology. Accordingly, the petitioner prays for direction to the 1st respondent, KCZMA to take appropriate action against the illegal constructions made by the 3rd respondent in the NoDevelopment Zone of the Palliyamoola beach in Kannu District and remove the constructions within a reasonable time and to take action against the persons/officers responsible for allowing the constructions.
A counter affidavit is filed on behalf of KCZMA wherein objection to the locus standi of the petitioner to prefer the petition has been taken. It is also contended that the  petition is bad for non joiners of necessary parties like the Local Self Government Institution.  A Counter Affidavit is filed by the Private respondent wherein the locus standi of the petitioner to file the petition is strongly objected to. It is stated that a public interest writ petition cannot be entertained at the behest of a stranger and that the petitioner is only acting as a proxy of some business rivals of the  Private respondent .
M.P. Prakash, the counsel for the 1st respondent   submitted that the term of KCZMA constituted on 30.03.2019 had since expired. Sri. Prakash contends that the petitioner has no locus standi to file the writ petition. Relying on the decision of the Apex Court in Ayaaubkhan Noorkhan Pathan v. State of Maharashtra [(2013) 4 SCC 465], O.V. Radha Krishnan the senior counsel for the Private respondent submits that, the petitioner, being a total stranger and a resident of Thiruvananthapuram, has absolutely no locus standi to file the public interest litigation and that he is not a ‘person aggrieved’ and has no legal right to invoke the writ jurisdiction of the Court. 
The  senior counsel also submits that the constructions in the properties in question were carried out based on building permits issued by the concerned Panchayat before the CRZ notification, 1991. The learned senior counsel also referred to paragraph 12 of the affidavit filed by KCZMA wherein the letter of the Secretary of the Kannur Municipality (after merger) addressed to KCZMA states that the buildings were constructed during the period when CRZ rules were not in existence. It is further contended that the classification of the area in Pallikkunnu under CRZ-III in the Coastal Zonal Notification, 1991 does not have retrospective operation.
While considering the PIL , the Division Bench of Chief Justice S.Manikumar and Justice Murali Purushothaman observed that the questions as to whether the buildings were constructed on the basis of permits issued before issuance of the CRZ notification, 1991, whether any constructions have been carried out in the property after the CRZ Rules were made applicable in the area and when exactly the constructions were carried out, are disputed questions of fact which cannot be gone into in a petition under Article 226 of the Constitution of India. Materials are not available before the High Court for any interpretation either way. The Local Self Government Institution is not made a party to the writ petition. Accordingly, the High Court  declined to entertain the  petition.

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