In the High Court of Kerala at Ernakulam present:-
The Honourable the Acting Chief Justice Mr. P.K. Balasubramanyan
and
The Honourable Mr. Justice M. Ramachandran
Wednesday the 8th August, 2001/17th Sravana, 1923
O.P. No. 13341 of 2001-L
Reported in 1997(2) KLJ 153
Petitioner:-
Society for the Protection of Environment.
By Advs. Sri. P.B. Sahasranaman, Sri. K. Jagadeesh, & Sri. T.S. Harikumar.
Respondents:-
1. Directorate of Sports and Youth Affairs, represented by its Director, Thiruvananthapuram.
2. The District Collector, Kozhikode.
3. The Chief Executive Engineer, Kerala Water Authority, Kozhikode.
4. Kozhikode District Sports Council, represented by its Secretary near Stadium, Pavamani Road, Kozhikode.
5. National Coastal Zone Management Authority, Government of India, Ministry of Environment and Forests, represented by its Chairman, Addi-tional Secretary, Impact Assessment, Ministry of Environment and Forests, Paryavaran Bhavan, CGO Complex, Lodhi Road, New Delhi - 110 003.
R2 by Govt. Pleader Sri. C.K. Abdul Rahim.
R3 by Standing Counsel Smt. Chincy Gopakumar.
R4 by standing Counsel Sri. K.P.G. Menon.
This Original Petition having been finally heard on 8.8.2001, the Court on the same day delivered the following:-
P.K. Balasubramanyan, Ag. C.J. &
M. Ramachandran J.
O.P. No. 13341 of 2001-L.
Dated, this the 8th day of August, 2001
Judgment
Balasubramanyan, Ag. C.J.
Heard counsel for the petitioner, learned Government Pleader, counsel for the Water Authority and counsel for the Sports Council.
2. This Original Petition seeks a declaration that a Swimming Pool attempted to be constructed by respondents 1, 2 and 4 near the sea was in violation of the Coastal Zone Regulation, and that in spite of objections being raised, the construction was being proceeded with. It is seen that the petitioner had earlier approached this Court complaining of the violation of Coastal Zone Regulation. Admittedly the area involved is within CRZ-II Zone. A Division Bench of this Court in O.P. Nos. 25928 of 1999 and 26789 of 1999 directed the Kerala Coastal Management Authority to consider the objections raised and to take a decision thereon. It is said that the State Authority granted permission. According to the petitioner, it was without properly adverting to the relevant aspects. The petitioner, thereupon, filed an appeal before the National Coastal Zone Management Authority. That Authority called upon the petitioner and the others to submit relevant materials. According to the petitioner, the relevant materials were supplied. It is submitted that even the Port Officer had, by his communication dated 29.3.2000, taken serious objection tot he construction of the Swimming Pool at the location planned. It can also be seen from the Minutes of the meeting of the Kerala Coastal Zone Management Committee on 21.3.2000 that the decision was deferred.
The following is recorded:-
“As per provision contained in CRZ-II (ii) 6 (2) of Annexure 1 of CRZ Notification, the construction of building structure is permissible only if it is eastward of existing structures. This may be informed to the District Collector and Sports Council and to confirm whether the construction is eastward of existing structures. Collector is to clarify whether alternate places are not available for the construction of the swimming pool.”
It is, therefore, clear that even the committee felt that it will be better to have the swimming pool elsewhere than at the beach.
3. It is in this context that we have to consider the manner in which the National Coastal Zone Management Authority has disposed of the appeal filed by the petitioner. We think that the National Coastal Zone Management Authority should have given a personal hearing to the parties, including the petitioner and the Port authority and if necessary, ought to have also visited the site of the project before taking a final decision on the appeal. The communication, Exhibit P1, does not indicate that there has been any proper application of mind to the relevant matters. No other order is also made available to us to show that there was an independent order considering the relevant aspects. In any event, it is not seen that the petitioner was given an opportunity of being heard. There is also no reference to any inspection of the site. We think that, in the circumstances, the National Coastal Zone Management Authority should be directed to consider the appeal afresh and to take a proper decision in accordance with law after hearing the parties and giving them an opportunity to put forward their case and after considering the relevant materials and if necessary, after inspecting the site. The Authority must certainly bear in mind the need to protect the environment and the need to strictly enforce the Coastal Zone Regulations. In that view, we set aside the communication Ext. P1 and any decision that might have preceded that communication and direct the National Coastal Zone Management Authority to reconsider the appeal filed by the petitioner and dispose of the same afresh and in accordance with law. The National Coastal Zone Management Authority will take a decision as expeditiously as possible and at any rate, within three months from the date of receipt of a copy of this judgment. Obviously, the status-quo as on today will have to be maintained by all the respondents until a decision is taken on the appeal. The respondents are hence directed to maintain the status-quo as on today until the appeal is disposed off afresh as directed above.
The Original Petition is allowed to the above extent.
P.K. Balasubramanyan
Acting Chief Justice
M. Ramachandran
Judge
Order on C.M.P. 22726 of 2001 in C.M.P. 21241 of 2001 in O.P. 13341 of 2001-L
Closed as inexpedient.
Sd/- P.K. Balasubramanyan,
Acting Chief Justice.
8.8.2001.
Sd/- M. Ramachandran
Judge.
Order on C.M.P. 24154 of 2001 in C.M.P. 21241 of 2001 in O.P. 13341 of 2001-L
Dismissed.
Sd/- P.K. Balasubramanyan,
Acting Chief Justice.
8.8.2001.
Sd/- M. Ramachandran,
Judge.
true copy
Appendix
Petitioner’s Exhibits:-
Ext. P1 - True photostat copy of the Order
No. L-11011/18/2000-IA-III, dated 4th April, 2001 passed by the 5th respondent.
Ext. P2 - True Photostat copy of some of the newspapers, which has reported about the acute shortage of water.
Ext. P3 - True photostat copy of some newspapers which has reported about the said Inaugural Ceremony.
Ext. P4 - True photostat copy of the letter issued by the Director of Ports, Capt. S. Vijayan Pillai, dated 29.3.2000.
Ext. P5 - True photostat copy of the judgment of this Hon’ble Court in O.P. No. 26789 of 1999, dated 17th January, 2000.
Ext. P6 - True photostat copy of the Site Sketch of the Port Land prepared by the Senior Superintendent, Harbour Engineering Division, Calicut.
Exhibits produced along with C.M.P. 22726 of 2001:-
Ext. P4 - True photostat copy of the interim order passed by this Hon’ble Court in C.M.P. No. 21241 of 2001 dated 20.4.2001.
Ext. P5 - Some photostat copies of the newspaper reports.
Exhibits produced along with C.M.P. 24154 of 2001:-
Ext. P6 - True photostat copy of the newspaper reports also shown the pictures showing the digging operations in the area earmarked for Swimming Pool Stadium.
Ext. P7 - Some photographs showing the dumping of the debris in the Sea Cost
- true copy -