The Kerala High Court dismissed a Public Interest Litigation (PIL) seeking declaration that 3 acres of land 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.
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 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.
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 are still governed under the notification of the year 2011 in the related matters.
Petitioner has further stated that 3 acres of land in of Ernakulam Village, described as puzha purampokku in the basic tax register 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.
THe 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 a parking area for private and Government owned boats. The eastern boundary of the said portion is the bus stand, owned and operated by the KSRTC, with direct access from the public road at its eastern side. The northern side is the Children’s Park and the southern side is Subash Chandrabose Park.
The Petitioner submitted 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 of Ernakulam village is in CRZ-II Zone.
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 1991 and it was implemented in 1996 only. Thus, according to the petitioner, in order to attract the benefit of the term “existing road” the same should be in existence on or before 1996.
The 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.
It is contended by the Petitioner 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 a Trust, and 4 cents of land to another 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 violation of the Coastal Zone Regulation Notification, and therefore, liable to be stopped forthwith.
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 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.
Petitioner has asserted 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.
The Petitioner highlighted that steps are taken for the construction of Government 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 trusts 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.
The Division Bench of Chief Justice S Manikumar and Justice Murali Purushothaman noted that 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 Hazardous Substances (Handling, Management and Trans-boundary Movement) Rules, 2009 in the aforesaid CRZ.
The main contention revolves around CRZ clearance issued by the Kerala Coastal Zone Management Authority/4th respondent, dated 12.03.2020. As the above-mentioned land is situated in an area where Coastal Zone Management Regulations are applicable, the trust has submitted an application for clearance, for the construction of above-mentioned buildings , the Bench further noted.
On Perusal of the minutes of the 107th meeting of KCZMA held on 26.02.2020 , the Bench noted that an inspection has been done on 14.01.2020 and a 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 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.
Thus, the Court observed 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.
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 4th respondent. In the approved plan, it is shown that a 12 metres wide road is present between High Tide Line of the lake and the proposed building.
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 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 dated 10.02.2021 have been issued. Giving due consideration to the facts and circumstances, and the material on record, the Court is of the view that the petitioner has not made out a case for granting any relief sought for.