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M/s. Samira Beach Castle Resort (Private) Limited represented by its Managing Director, Shibu Thomas v/s Sivakmar Director, Mausumi Resorts Karala Private Limited & Others

    W.A. Nos. 190, 288 & 314 of 2017 In WP(C) No. 25739 of 2012

    Decided On, 12 June 2017

    At, High Court of Kerala

    By, THE HONOURABLE CHIEF JUSTICE MR. NAVANITI PRASAD SINGH & THE HONOURABLE MR. JUSTICE V. RAJA VIJAYARAGHAVAN

    For the Appellant: G.S. Reghunath, Advocate. For the Respondents: B.S. Swathy Kumar, SC, Anitha Ravindran, T. Reshma, Harisankar N. Unni, S. Sikky, J. Prakash C. Vadakkan, SC, KCZMA, Beena Sarasan, Party In Person, M.A. Asif, Sr. Government Pleader, K.P. Santhi, Advocates.



Judgment Text

Navaniti Prasad Singh, C.J.

1. All these three intra court appeals are by M/s.Samira Beach Resorts (Pvt.) Ltd. They arise out of a common judgment of a learned Single Judge of this Court passed in W.P.(C) Nos.5482 of 2007, 11186 of 2012 and 25739 of 2012. These Writ Petitions are the offshoots of a proceeding which was initiated by Mrs. Beena Sarasan, the 6th respondent in W.A. No.190 of 2017.

2. In the year 2004 Mrs. Beena Sarasan had filed a writ petition, being W.P.(C) No.19547 of 2004, inter alia against M/s.Azhimala Beach Resorts (Pvt.) Ltd. in respect of certain constructions which were being undertaken by them. Her grievance was that she was immediate neighbour of the land of the said company. The land of the Company fell within the Coastal Regulation Zone (for short 'CRZ') III i.e. within 200 meters of the High Tide Line and as such within the prohibited zone/No Development Zone. At the interlocutory stage, this Court by order dated 13.10.2004, in W.P.(C) No.19547/04, had restrained M/s.Azhimala Beach Resorts Private Ltd. from carrying out any constructions within 200 metres of the high tide line until further orders. The Writ Petition was finally disposed of, after hearing the parties, by judgment and order dated 08.11.2005. A learned Single Judge of this Court having appreciated the facts ruled that the Coastal Zone Authority would conduct a proper survey. If upon survey, it is found that the construction being sought to be done by the Resort Company is within the No Development Zone of CRZ III, then they would remove the same forthwith and if it is not done, the concerned Panchayat would direct to remove it, failing which the Panchayat shall remove the structures within one month and charge the cost to the Resort. This judgment became final in the sense that the only thing challenged in several subsequent proceedings and appeals was 'correctness of the measurement' by the Coastal Zone authorities.

3. It will be apposite to mention at this juncture that Mausami Resorts Private Ltd. purchased the properties owned by M/s.Azhimala Beach Resorts (P) Ltd. in the year 2008 and thereafter the appellant herein, M/s. Samira Beach Castle Resort (Private) Ltd., purchased the resort property in the year 2014.

4. A series of writ petitions were also preferred by the original owner and the subsequent purchaser at various stages and a brief reference to those litigations will be relevant. W.P.(C) No.5482 of 2007 was filed by Nobert Lawrence, the Managing Director of M/s.Azhimala Beach Resorts Private Ltd. challenging the proceedings initiated by Kottukal Grama Panchayat ordering the demolition of the constructions carried out, contending that the High Tide Line (HTL) was not demarcated as directed by the Division Bench of this Court in W.A.No.1611 of 2006, which was preferred against the judgment and order in W.P.(C) No.5482 of 2007. W.P.(C) No.1186 of 2012 was filed by Smt.Prasanna Kumari, the Managing Director of Mausumi Resorts challenging the order passed by the Ombudsman for Local Self Government Institutions ordering the cancellation of the mutation effected in respect of the buildings purchased by her and the consequential order issued by the Panchayat. W.P.(C) No.25739 of 2012 was filed by Sivakumar, Director, Mausumi Resorts Kerala Private Ltd. challenging the order passed by the Tribunal for Local Self Government Institutions upholding the order of the Panchayat ordering the demolition of the unauthorised constructions carried out in violation of the judgment in W.P.(C) No.19547 of 2004. It has to be noticed that there was a peremptory direction as early as in the month of October, 2004 prohibiting construction of any nature within 200 metres of the High Tide Line. However, we find that constructions were carried out and the Resort continued its operation in violation of law.

5. When this Court took up these three appeals, in order to solve the controversy, we gave detailed directions to the Kerala Coastal Zone Management Authority, vide order dated 07.04.2017. Now the said authority has scientifically determined the 200 meter line from the High Tide Line and submitted detailed report. The report clearly shows that except one construction, the rest of the Resort is in the No Development Zone and is in gross violation of the Coastal Regulation Notification issued thereof under the Environment Protection Act, 1986. The Notification is of the year 1991.

6. Learned counsel for the appellants fairly concedes that now no grievance can be made with regard to the findings given by the experts concerning the place of construction. In other words, he concedes ultimately that except for one building, the rest of the construction would be in contravention of the notification with regard to No Development Zone under CRZ III. He has raised desperate last minute technical pleas. Referring to the judgment of learned Single Judge in W.P.(C) No.5482 of 2007 and analogues matters, it is submitted that the learned Single Judge did not direct for demolition of illegal structures and did not direct the Panchayat to order for demolition. The Coastal Zone Authority had no authority to direct the Panchayat to order demolition of the illegal construction. We have noted these only to reject it for the reason that the litigation did not start in the year 2007. The litigation as noted above started with W.P.(C) No.19547 of 2004 which was disposed of on 08.11.2005 wherein this Court had clearly directed re-measurement and its consequence. This Court had clearly held that the grant of licence by the Panchayat was made on the strength of the undertaking given by the 2nd respondent that the area does not come under the CRZ notification and that in case it is found to be coming under the said notification, the constructions would be removed without demur. The Kerala Coastal Zone Management Authority was directed to inspect the property of the 2nd respondent and demarcate the area coming within 200 metres of the High Tide Line with notice to the parties concerned within a period of one month. It was further ordered that if it was found that the construction is in the No Development Zone, being situated in CRZ III then, the Resort would have to remove the construction forthwith within one month failing which, the Panchayat would direct them to do so and if they fail to do so, the Panchayat itself would demolish those constructions at the cost of the Resort. This judgment had become final. The only dispute that was raised and is still being raised is what is the correct measurement. Now, the said dispute has also been put to rest. The result is that the Resort does not now dispute that it is in the No Development Zone within CRZ III and all but one of its construction is in contravention to the notification prohibiting construction. The consequence would be that by virtue of judgment dated 08.11.2005 in the writ petition filed by Smt.Beena Sarasan, the effect is to be given which effect is demolition. Thus, Ext.P5 the directions of the Coastal Zone authority to the Panchayat to take action and get the buildings demolished cannot be now questioned nor the consequential order of the Panchayat be questioned. They have all attained finality.

7. The submission on behalf of the Resort is, in view of the judgment of the Apex Court in the case of Bhopal Gas Peedith Mahila Udyog Sangathan and others v. Union of India and others [(2012) 8 SCC 326] and in particular what is said in paragraphs 40 and 41, the matter ought to be transferred to the National Green Tribunal. We are not impressed. The National Green Tribunal came by virtue of the National Green Tribunal Act, 2010 which came to be enforced with effect from 18.10.2010. It's jurisdiction is to settle disputes as per Section 14 thereof over all civil cases where substantial question relating to environment (including enforcement of any legal right relating to environment) is involved. Now, if we see the judgment of the Apex Court as referred to above and in particular what is said in paragraphs 40 and 41, it is pending matters which were sought to be referred to the Tribunal. We may refer to observations found in paragraph 42 where their Lordships have clearly held that where there was no controversy left to be decided, those matters, the Apex Court itself, did not refer to the Tribunal. In the present case the matter was set at rest in the year 2005 itself. The only remaining question was, where is the 200 meter line. The only question was of assessing this position and no other issue was left. That being so, there was no complex issue of environment or environmental concern pending adjudication. All that was required was administrative supervision for proper execution of the order of the Court. Once that issue has been decided by the authorities as per direction of this Court and those findings are not challenged by the Resort, the consequences automatically flow from the judgment of this Court dated 08.11.2005 passed in W.P.(C) No.19547 of 2004. Nothing remains for this Court to do.

8. All pleas at different stages have been considered and have been negatived. They have all attained finality. The only plea remaining was as to correctness of measurement which now have been concluded and which has not been challenged. The consequences already indicated would follow. Those consequences are demolition of the offending structure, being i

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n gross violation, and in defiance of the law, failing which it would be open to the Panchayat concerned to get the same demolished at the cost of the Resort. These are consequential orders which by no stretch of imagination can be said to be illegal. 9. We have purposefully not traced the history of this litigation as this litigation has already taken up 12 years and the offending structures remain there in defiance of law for over 10 years. The earlier judgments have noted the facts in detail. We have noted only those relevant facts which are necessary for disposal of these appeals. Accordingly, we hope that this is the end of this prolonged litigation by which Resort has benefited for these many years. We would accordingly expect that the Panchayat concerned would now carry out the orders of this Court that were issued as far back as on 08.11.2005. Exts.P5 and P6 being nothing more and in conformity with those orders. Thus these three writ appeals merit no consideration. They are dismissed accordingly.
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