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IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION
REVIEW PETITION [CIVIL] NO. OF 2019 IN CIVIL APPEAL NO. 4784 - 4785 OF 2019
IN THE MATTER OF: -
ALFA VENTURES PVT. LTD. ...REVIEW PETITIONER VERSUS
THE KERALA STATE COASTAL ZONE MANAGEMENT AUTHORITY & ORS. …RESPONDENTS
IN THE MATTER OF:-
THE KERALA STATE COASTAL ZONE MANAGEMENT AUTHORITY …PETITIONER
VERSUS
MARADU MUNICIPALITY& ORS. …RESPONDENTS
PETITION FOR REVIEW OF THE COMMON ORDER DATED08.05.2019 PASSED BY THIS HON’BLE COURT IN CIVIL APPEAL NO. 4784-4785 OF 2019
PAPER - BOOK
(FOR INDEX KINDLY SEE INSIDE)
ADVOCATE FOR THE REVIEW PETITIONER
MOHAMMED SADIQUE T.A. 2225
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I N D E X
Page No. of part to Remarks which it belongs Part I Part II S.N. Particulars of Document (Contents (Content of Paper s of file Book) alone) (i) (ii) (iii) (iv) (v) Court Fees
1 O/R on Limitation A A
2 Cover page of Paper Book A – 3
3 Index of Record of Proceedings A – 4
4 Limitation Report Prepared by the A – 5 Registry
5 Defect List A – 6
6 Note Sheet NS1 to
7 Synopsis &List of Dates B -
8 Judgment under Review: 1 - Common Order dated 08.05.2019 passed by this Hon’ble Court in Civil Appeal No. 4784 - 4785 of 2019 [Special Leave Petition (C) No. 4227 - 4228 of 2016]
9 Review Petition with Affidavit
10. Annexure P-1: True copy of the letter dated 28.02.2019 issued by the MoEF to the State Government 11.
12. Vakalatnama
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IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION
REVIEW PETITION [CIVIL] NO. OF 2019 IN CIVIL APPEAL NO. 4784 - 4785 OF 2019
IN THE MATTER OF: -
ALFA VENTURES PVT. LTD. ...REVIEW PETITIONER VERSUS
THE KERALA STATE COASTAL ZONE MANAGEMENT AUTHORITY & ORS. …RESPONDENTS
IN THE MATTER OF:-
THE KERALA STATE COASTAL ZONE MANAGEMENT AUTHORITY …PETITIONER
VERSUS
MARADU MUNICIPALITY & ORS. …RESPONDENTS
OFFICE REPORT ON LIMITATION
1. The petition is within time.
2. The petition is barred by time and there is delay of _____ days in filing the same against the Order dated 08.05.2019 and an application for condonation of _____ days delay has been filed.
3. There is delay of __ days in re-filing the petition and petition for condonation of ___ days delay is re-filing has been filed.
[BRANCH OFFICER] NEW DELHI
FILED ON:
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SYNOPSIS
The instant Review Petition is being preferred under Article
137 of the Constitution of India seeking review of the Common
Judgment dated 08.05.2019 in Civil Appeal No. 4227 – 4228 of 2019 whereby this Hon’ble Court has allowed the Appeals and thereby set aside the Judgment of the Hon’ble High Court in Writ Appeal No.132 of 2013 dated 02.06.2015 and the Judgment passed by the Hon’ble
High Court in Review Petition No. 787 of 2015 dated 11.11.2015.
The principal grounds on which Review is being sought are as under:
I. The report of the Three – Member Committee appointed
by this Hon’ble Court vide Order dated 28.11.2018 is
legally and factually incorrect in as much as it relied
upon Map No. 33, 33A and 34 of Coastal Zone
Management Plan (“CZMP”) of 1996, which were
admittedly inaccurate and could not be relied upon to
ascertain with certainty, the category to which the
subject land belongs to. It is imperative to point out that
the State Government had admitted before the Hon’ble
Kerala High Court in Citizens Interest Agency v. Lakeshore
Hospital & Research Centre Ltd [(2003) 3 KLT 434] that
the CZMP prepared in the year 1996 was prepared inter
alia on the basis of Satellite images and it could not be
used to depict an area of 12 ½ thousand sq. kms in one
inch. It was further stated that to rectify the above issue,
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the State Government was preparing cadastral maps,
pursuant to which a fresh CZMP would be issued. It is
submitted that the abovesaid Judgment has become final
even qua the 1st Respondent herein, who was arraigned
as Respondent No. 4 therein.
Admittedly the abovesaid exercise was only
undertaken in the year 2014, when a draft CZMP was
prepared for Maradu Municipality by the National Centre
for Earth Science Studies. It is submitted that in the
abovesaid report Maradu Municipality has been
categorised as CRZ II, owing to the highly developed
nature of the area and because it has a built-up area of
more than 50%.
II. The finding of the Three Member Committee that the
CZMP applicable in Maradu Municipality is the one
prepared in the year 1996 is factually incorrect. It is
submitted that the Committee rendered the abovesaid
finding without adverting to MoEF’s letter to the State
Government dated 28.02.2019, wherein the MoEF has
approved the Draft CZMP prepared under the 2011
MoEF Notification. It is pertinent to point out that the
above CZMP was approved pursuant to the
recommendations of the National Coastal Zone
Management Authority in its 37th Meeting held on
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25.02.2019 and the recommendations of the Technical
Scrutiny Committee held at NCSCM, Chennai on
18.02.2019. In both the abovementioned meetings, representatives from State, particularly the KCZMA had participated.
In the aforesaid circumstances, this Review
Petition is being preferred before this Hon’ble Court.
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LIST OF DATES
19.09.2006 The Maradu Municipality (“2nd Respondent herein”)
issued a Building Permit to the Petitioner for
construction of a commercial multi-storied building in
accordance with the Kerala Municipal Building Rules,
1999 (“Municipal Rules”)
18.05.2007 A letter was addressed by the Government of Kerala to
the 2ndRespondent directing them to inter alia revoke
the Building Permits as per Rule 16 of the 1999
Municipal Rules of the list of buildings in respect of
which violations / anomalies were detected.
04.06.2007 The 2nd Respondent issued a show-cause notice to the
Petitioner herein under Rule 16 of the Municipal Rules
inter alia stating that CRZ-I violations have been
detected in the Building Permit issued and accordingly
sought an explanation as to why the Building Permit
should not be cancelled within 30 days.
23.07.2007 The Petitioner herein filed W.P. No. 22590 / 2007
before the Hon’ble High Court praying for the issue of
a Certiorari to quash the letter dated 18.05.2007 and
the Show Cause Notice dated 04.06.2007.
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The Kerala State Coastal Zone Management Authority
was impleaded as Respondent in the Writ Petition
31.07.2007 The Hon’ble High Court was pleased to pass an Order
in W.P. No. 22590 of 2007 staying all further
proceedings pursuant to the Show Cause Notice dated
04.06.2007.
10.09.2012 The Hon’ble High Court vide Judgment and Final Order
allowed W. P. No. 25948 of 2007 and quashed order
cancelling the Building Permit on the ground that the
State Government had no power to direct the 2nd
Respondent to issue Order for cancelling the Building
Permit.
19.09.2012 The Hon’ble High Court vide Order in W.P. No. 22590 /
2007 relying on its earlier Order dated 10.09.2012 in
W.P. No. 25948 / 2007 was pleased to allow the same
and quashed the Letter dated 18.05.2007 and Show
Cause Notice dated 04.06.2007.
14.12.2012 Aggrieved thereby the 2nd Respondent herein (Maradu
Municipality) filed W.A. No. 132 of 2013 before the
Hon’ble High Court.
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02.06.2015 The Hon’ble High Court vide impugned Order and final
Judgment dismissed W.A No. 132 of 2013.
10.09.2015 KCZMA preferred Review Petition No. 787 of 2015
against the impugned Judgment dated 02.06.2015,
notwithstanding the fact that it did not prefer an
Appeal against the Judgment of the Ld. Single Judge,
praying inter alia for review of Paragraph 19 and 20 of
the Impugned Judgment.
11.11.2015 The Hon’ble High Court vide Impugned Judgment and
Final Order dismissed Review Petition No. 787 of
2015.
14.12.2015 The 1st Respondent herein preferred the instant
Special Leave Petition.
28.11.2018 This Hon’ble Court was pleased to pass an Order in the
present SLP [SLP (C) No. 4227 – 4228 of 2016]
constituting a Three- Member Committee, which was
directed to hear the affected parties as well as the
KCZMA and send a report detailing the legality of the
construction and determining the category in which
the area in question is to be categorised.
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24.12.2018 The State Government vide G.O. (Rt) No.
3236/2018/LSGD constituted a technical team to
assist the Committee in the preparation of the report.
The abovesaid exercise was done, notwithstanding the
fact that the same was not contemplated by the order
of this Hon’ble Court dated 28.11.2018.
25.02.2019 The National Coastal Zone Management Authority in
its 37th Meeting accorded its approval to the CZMP
prepared under the 2011 CRZ Notification. The
abovesaid decision was based on the presentation
made by the KCZMA, who represented the State of
Kerala in the abovesaid meeting.
28.02.2019 The MoEF addressed a letter to the State Government
informing the latter that it had approved the CZMP
prepared under the 2011 Notification for various
districts Ernakulam District wherein the Maradu
Municipality is situated.
12.03.2019 The Three – Member Committee filed its report before
this Hon’ble Court stating inter alia that
1. The CZMP applicable at present in the State of
Kerala is the one approved in the year 1996 and
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it categorises the land as CRZ III.
2. Although the CZMP prepared as per the 2011
MoEFNotification categorises the land as CRZ II,
the same has not been approved by the MoEF.
3. Until the MoEF approves the CZMP prepared
under the 2011 MoEF Notification is approved,
the CZMP prepared in the year 1996 stands
valid.
08.05.2019 This Hon’ble Court vide Impugned Judgment and Final
Order disposed of the instant SLP’s directing the
structures to be removed forthwith within a period of
one month.
05.10.2018 Aggrieved by the aforesaid Judgment dated
08.05.2019, the present Review Petition is being filed.
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IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION
REVIEW PETITION [CIVIL] NO. OF 2019 IN CIVIL APPEAL NO. 4784 - 4785 OF 2019
POSITION OF PARTIES IN REVIEW PETITION
In High Court In this Court
BETWEEN:-
1. Alfa Ventures Pvt Ltd, Alfa Towers, I.S. Press Road, Kochi – 682018, Represented Respondent Review by its Director, J. Paul Raj No. 3 Petitioner
AND
1. The Kerala State Coastal Zone Management Authority, Represented by its Member Secretary, Sastra Bhavan, Pattom, Thiruvananthapuram – Respondent Contesting 695001, Kerala. No. 2 Respondent No.1
2. Maradu Municipality, Maradu P.O., Represented by its Secretary, Kochi – 6822304, Appellant Contesting Kerala No.1 Respondent No.2
3. The Secretary, Maradu Municipality, Maradu Appellant Contesting P.O., Kochi 682304, Kerala No.2 Respondent No.3
4. Government of Kerala, Through the Principal Secretary to Government, Local Self Government (RB) Department, Secretariat,Thiruvananthapura Respondent Contesting m – 695001, Kerala No. 1 Respondent No.4
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POSITION OF PARTIES IN CIVIL APPEAL NO. 8529 OF 2018
In High Court In this Court
BETWEEN:-
1. The Kerala State Coastal Zone Management Authority, Represented by its Member Respondent Petitioner Secretary, Sastra Bhavan, No. 2 No. 1 Pattom, Thiruvananthapuram – 695001, Kerala.
AND
1. Maradu Municipality, Maradu P.O., Represented by its Secretary, Kochi – 6822304, Appellant Respondent Kerala No. 1 No. 1
2. The Secretary, Maradu Municipality, Maradu Appellant Respondent No. P.O., Kochi 682304, Kerala No. 2 2
3. Government of Kerala, Through the Principal Secretary to Government, Local Self Government (RB) Department, Petitioner Respondent No. Secretariat No. 3 3 Thiruvananthapuram – 695001, Kerala
4. Alfa Ventures Pvt. Ltd., Alfa Towers, I.S. Press Road, Respondent Respondent Kochi – 682018, Represented No.3 No. 4 by its Director, J. Paul Raj
To, Hon’ble the Chief Justice of India and His Companion Justices of the Hon’ble Supreme Court of India The humble petition of the Petitioners above named
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MOST RESPECTFULLY SHEWETH:-
1. The Review Petitioner herein is filing the instant Petition under
Article 137 of the Constitution of India read with Order XLVII Rule
1 of the Supreme Court Rules, 2013seeking review of the Common
Judgment dated 08.05.2019 passed by this Hon’ble Court in Civil
Appeal No. 4784 - 4785 of 2019 [Special Leave Petition (C) No.
4227 - 4228 of 2016] whereby this Hon’ble Court erroneously
allowed the Civil Appeal and set aside the Judgment passed by the
Hon’ble High Court in Writ Appeal No.132 of 2013 dated
02.06.2015 and the Judgment passed by the Hon’ble High Court in
Review Petition No. 787 of 2015 dated 11.11.2015.
2. That the Review Petitioners are constrained to prefer this Review
Petition against the Common Judgment dated 08.05.2019 passed
by this Hon’ble Court in Special Leave Petition (C) No. 4227 - 4228
of 2016 [converted to Civil Appeal No. 4784 - 4785 of 2019] on
account of certain errors which are apparent on the face of the
record.
3. The facts leading to the present Review Petition are as follows:
(i) The Maradu Municipality (“2nd Respondent herein”) issued
a Building Permit on 19.09.2006 to the Petitioner for
construction of a commercial multi-storied building in
accordance with the Kerala Municipal Building Rules, 1999
(“Municipal Rules”). The Notification dated 27.09.1996 was
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prevailing in respect of Maradu Panchayath which was
subsequently elevated to a Municipality.
(ii) A letter dated 18.05.2007 was addressed by the
Government of Kerala to the 2ndRespondent directing them
to inter alia revoke the Building Permits as per Rule 16 of
the 1999 Municipal Rules of the list of buildings in respect
of which violations / anomalies were detected.
(iii) The 2nd Respondent issued a show-cause notice dated
04.06.2007 to the Petitioner herein under Rule 16 of the
Municipal Rules inter alia stating that CRZ-I violations have
been detected in the Building Permit issued and accordingly
sought an explanation as to why the Building Permit should
not be cancelled within 30 days.
(iv) The Petitioner herein filed W.P. No. 22590 / 2007 before
the Hon’ble High Court praying for the issue of a Certiorari
to quash the Letter dated 18.05.2007 and the Show Cause
Notice dated 04.06.2007.
(v) The Hon’ble High Court was pleased to pass an Order dated
31.07.2007 in W.P No. 22590 of 2007 staying all further
proceedings pursuant to the Show Cause Notice dated
04.06.2007.
(vi) The Hon’ble High Court vide Judgment and Final Order
dated 10.09.2012 allowed W. P No. 25948 of 2007 and
quashed the Order cancelling the Building Permit on the
ground that the State Government had no power to direct
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the 2nd Respondent to issue Order for cancelling the
Building Permit.
(vii) The Hon’ble High Court vide Order dated 19.09.2012 in W.P.
No. 22590 / 2007 relying on its earlier Order dated
10.09.2012 in W.P. No. 25948 / 2007 was pleased to allow
the same and quashed the Letter dated 18.05.2007 and
Show Cause Notice dated 04.06.2007.
(viii) Aggrieved thereby the 2nd Respondent herein (Maradu
Municipality) filed W.A. No. 132 of 2013 before the Hon’ble
High Court.
(ix) The Hon’ble High Court vide impugned Order (in the SLP)
and final Judgment dated 02.06.2015 dismissed W.A. No.
132 of 2013.
(x) KCZMA, who was a party in both the Writ Petition and the
Writ Appeal, preferred Review Petition No. 787 of 2015
against the impugned Judgment dated 02.06.2015,
notwithstanding the fact that it did not prefer an appeal
against the judgment of the Ld. Single Judge, with a limited
prayer for review of Paragraph 19 and 20 of the Impugned
Judgment. It is also pertinent that the KCZMA did not even
file any Counter Affidavit in the Writ Petition.
(xi) The Hon’ble High Court vide Impugned Judgment and Final
Order dated 11.11.2015 dismissed Review Petition No. 787
of 2015.
(xii) The 1st Respondent herein preferred the instant Special
Leave Petition.
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(xiii) This Hon’ble Court was pleased to pass an Order dated
28.11.2018 in the present SLP [SLP (C) No. 4227 – 4228 of
2016] constituting a Three- Member Committee comprising
of the Principal Secretary, LSGD, Collector of Ernakulam
District and the Secretary, Maradu Municipal (two of whom
were parties in the present SLP), which was directed to
hear the Petitioner and other affected parties as well as the
KCZMA and send a report detailing the legality of the
construction and determining the category in which the
area in question is to be categorised.
(xiv) The State Government vide G.O. (Rt) No. 3236/2018/LSGD
dated 24.12.2018 constituted a technical team to assist the
Committee in the preparation of the report. The abovesaid
exercise was done, notwithstanding the fact that the same
was not contemplated by the Order of this Hon’ble Court
dated 28.11.2018.
(xv) The MoEF addressed a letter dated 28.02.2019 to the State
Government informing the latter that it had approved the
CZMP prepared under the 2011 Notification for various
districts Ernakulam District wherein the Maradu
Municipality is situated. A true copy of the letter dated
28.02.2019 issued by the MoEF to the State Government is
produced herewith and marked as ANNEXURE-P/1
(xvi) The NCZMA in its 37th Meeting accorded its approval to the
CZMP prepared under the 2011 CRZ Notification. The
abovesaid decision was based on the presentation made by
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the KCZMA, who represented the State of Kerala in the
abovesaid meeting.
(xvii) The Three – Member Committee filed its report dated nil filed
on12.03.2019 before this Hon’ble Court stating inter alia that:
1. The CZMP applicable at present in the State of
Kerala is the one approved in the year 1996 and it
categorises the land as CRZ III.
2. Although the CZMP prepared as per the 2011 MoEF
Notification categorises the land as CRZ II, the same
has not been approved by the MoEF.
3. Until the MoEF approves the CZMP prepared under
the 2011 MoEF Notification is approved, the CZMP
prepared in the year 1996 stands valid.
(xviii) This Hon’ble Court vide Impugned Judgment and Final
Order dated 08.05.2019 disposed of the instant Appeals
directing the structures to be removed forthwith within a
period of one month.
(xix) Aggrieved by the aforesaid Judgment dated 08.05.2019,
the present Review Petition is being filed.
4. The aforesaid judgment is sought to be reviewed on the grounds
stated hereunder:
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GROUNDS
THE REPORT OF THE THREE MEMBER COMMITTEE DID NOT CONSIDER THE
JUDGMENT IN CITIZENS INTEREST AGENCY V. LAKESHORE HOSPITAL
A. That this Hon’ble Court erred in not appreciating that State
Government itself had admitted before the Kerala High Court
in Citizens Interest Agency v. Lakeshore Hospital & Research
Centre Pvt Ltd [2003 KHC 1133] inter alia the Map Numbers
33A of the CZMP prepared in the year 1996, in which the
Subject Land is represented was inaccurate and that the
Government was contemplating the preparation of cadastral
plans to address the same. It is submitted that even in
Lakeshore the Kerala High Court was faced with a question as
to whether Map 33A in the CZMP of 1996 was factually correct
or not. In that context the admission made by the Government
is extracted as under:
“33. Mr. Rajan Joseph, learned Additional Advocate General appearing for the official respondents, states that the original plan was prepared on the basis of the plan given by the Survey of India and the Satellite imageries. These plans are prepared in 1:12,500 and 1:50,000 scale. He points out that depicting an area of 12 1/2 thousand sq. kms. in one inch is a difficult job. Similarly, in the case of the scale prepared in the ratio 1:50,000, it is still more difficult. In view of this situation, the Government is preparing cadastral plans. Thereafter, a fresh plan and map shall be issued. In view of the factual position, learned Counsel states that the three petitions are premature.”
It is submitted that in view of the abovesaid admission made
by the Government that they were in the process of preparing
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cadastral maps, the Writ Petitions were dismissed with liberty
to approach the Court when the occasion arises. It is submitted
that the abovesaid judgment has become final, even qua the
KCZMA, who were the 4th Respondent therein.
B. That this Hon’ble Court erred in not appreciating that the even
the Technical Team appointed by the Three-Member
Committee, whose report was adopted by the Committee,
relied upon Map No. 33, 33A and 34 of the CZMP prepared in
the year 1996, which was as admitted by the State Government
in Lakeshore case, not accurate enough to classify the area. In
view of the above this Hon’ble Court ought to have noted that
the report of the Three- Member Committee in so far as it
relied upon the report of the Technical team, who themselves
relied upon Map No. 33, 33A and 34 of the CZMP of 1996 is
unsustainable.
C. That this Hon’ble Court failed to appreciate that the CZMP of
Maradu Municipality prepared in the year 1996 by the KCZMA
does not comply with the standards prescribed and therefore
cannot be relied upon to arrive at any conclusion as regards
the category to which the land belongs. It is submitted that the
Draft CZMP prepared as per the 2011 MoEF which categorises
the Subject Land as being CRZ II, subsequently approved by the
MoEF in its letter dated 28.02.2019, is one which complies
with all the requisite standards. It is submitted that the in the
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2011 MoEF Notification the preparation of CZMP’s is elaborately dealt with in Paragraph 5. It was stated in the
2011 MoEF Notification that:
a. The CZMPs may be prepared by the coastal State
Government or Union territory by engaging reputed and
experienced scientific institution(s) or the agencies
including the National Centre for Sustainable Coastal
Management (hereinafter referred to as the NCSCM) of
MoEF and in consultation with the concerned
stakeholders.
b. Mapping of the hazard line shall be carried out in
1:25,000 scale for macro level planning and 1:10,000
scale or cadastral scale for micro level mapping and the
hazard line shall be taken into consideration while
preparing the land use plan of the coastal areas.
c. The coastal States and Union Territory were to prepare
within a period of twenty-four months, draft CZMPs in
1:25,000 scale map identifying and classifying the CRZ
areas within the respective territories in accordance
with the guidelines given in Annexure-I of the
notification, which involve public consultation.
d. As per Annexure I of the 2011 MoEF Notification, Local
level CZMP’s shall be prepared on a Cadastral scale in
accordance with CZMP’s approved by the Central
Government.
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D. That this Hon’ble Court erred in not appreciating that
admittedly no mapping as contemplated in the Lakeshore
judgment was done of the area in question until the year 2014.
It is submitted that a Draft CZMP for Maradu Municipality was
prepared by the National Centre for Earth Science Studies as
per the CRZ Notification 2011 in 1:25000 scale in the month of
May, 2014. In the abovementioned report it was concluded
inter alia that Maradu Municipality being a highly developed
area is liable to be categorised as CRZ II. The relevant portion
of the report is extracted herein below:
“Maradu Municipality is highly developed with a very high potential for further development, the CRZ in the Municipality, other than CRZ I, CRZ IV and open spaces such as parks and play grounds is considered to have built up area more than 50% and hence categorized as CRZ II”
KCZMA WAS AWARE THAT THE MOEF HAD APPROVED THE CZMP PREPARED
UNDER THE 2011 CRZ NOTIFICATION
E. That this Hon’ble Court failed to appreciate that the KCZMA
was aware of the fact that MoEF had vide letter dated
28.02.2019 approved the CZMP prepared under the 2011 CRZ
Notification inter alia for the District of Ernakulam. It is
submitted that a copy of the abovementioned letter was sent to
the Member Secretary, KCZMA. The MoEF had based its
decision inter aliaon the recommendations of the National
Coastal Zone Management Authority (“NCZMA”) in its 37th
Meeting held on 25.02.2019. It is submitted that the Joint
Secretary of KCZMA, who was deputed by the State
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Government vide G.O (Rt) No. 18/2019/EVNT dated
23.02.2019, represented the Government in the aforesaid
meeting. It is therefore submitted that although the approval
granted by the MoEF to the CZMP prepared under the 2011
CRZ Notification was within the knowledge of the KCZMA, for
reasons best known to it, the KCZMA did not bring the same to
the attention of this Hon’ble Court.
F. That this Hon’ble Court erred in not appreciating that it was
the representatives of the State Government, who made a
presentation on the CZMP’s prepared under the 2011 CRZ
Notification in respect of the 10 coastal districts of Kerala
before the NCZMA in its 37th Meeting dated 25.02.2019. It is
submitted that the State Government had vide G.O (Rt) No.
18/2019/EVNT dated 23.02.2019, deputed the officials of the
KCZMA, to represent it before the NCZMA. It is submitted that
it is only upon the presentation made by the representatives of
the KCZMA that the NCZMA recommended its approval for the
CZMP prepared under the 2011 CRZ Notification. It is
submitted that the KCZMA, although privy to the aforesaid
information, did not bring the same to the attention of this
Hon’ble Court.
CONSTRUCTION OF THE SUBJECT BUILDING CANNOT BE SAID TO BE
UNAUTHORIZED
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G. That this Hon’ble Court ought to have considered that the
present construction cannot be said to illegal and without the
knowledge of the KCZMA. It is submitted that the Petitioner
has effected construction of the Subject Building only pursuant
to a valid building permit issued in its favour and proceeded
with the same only on the strength of the Interim Order passed
by the Kerala High Court in W.P No. 22590 of 2007 dated
25.07.2007 wherein the High Court was pleased to stay all
proceedings pursuant to the show cause notice dated
04.06.2007. Furthermore, the High Court in the abovesaid
order granted a specific liberty to the Respondents herein to
issue a fresh show – cause notice, which admittedly was not
availed of. It is therefore submitted that the construction of the
Subject Building was within the knowledge of the Respondents
herein and under the protection of the Orders of the Hon’ble
High Court. It is pertinent to note that the buildings were
complete in all respects and occupied before the instant SLP
was preferred by the 1st Respondent herein before this Hon’ble
Court.
H. That this Hon’ble Court ought to have taken into account the
fact that the Maradu Municipality being concerned with
inaccurate classification of the ‘developed area’ had in its
meetings dated 09.03.2006, 12.09.2006 and 05.06.2007 passed
repeated resolutions seeking redressal of the said deficiencies
in the classification of the area in question. It is imperative to
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note that the Municipality had in its Counter Affidavit filed
before the Hon’ble High Court in W.P No. 22590 of 2007
admitted that the land in question comes within CRZ II and
that it was mistakenly classified as being under CRZ I and CRZ
III.
I. That this Hon’ble Court ought to have appreciated that the
KCZMA was estopped from raising any objections to the
construction of the Subject Building by its conduct. This
Hon’ble Court ought to have noted that the KCZMA, who was
arraigned as Respondent No. 4 in W.P (C) No. 22590 of 2007
preferred by the Petitioner herein, did not choose to file any
appeal against the judgment by which W.P No. 22590 of 2007
was allowed. The KCZMA neither choose to file any Counter
Affidavit before the Hon’ble High Court in W.P No. 22590 of
2007 nor objected to the affidavit of the Petitioner herein or
the Maradu Municipality.
J. That this Hon’ble Court ought to have appreciated that both
the Ld. Single Judge and the Division Bench of the Hon’ble High
Court had concurrently found fault only with the actions of the
Maradu Municipality. It is submitted that it was the
Municipality who was obligated to forward the application for
building permits to the 1st Respondent, which they failed to do
for reasons not attributable to the Petitioner herein. It is
pertinent to note that Petitioner herein had obtained all other
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clearances/permissions from every authority as prescribed by
the Municipality.
K. That this Hon’ble Court ought to have appreciated that the land
in which the subject building is situated has admittedly been
categorized as CRZ II. It is submitted that in view of the
amendment dated 06.03.2018 to the 2011 MoEF Notification,
the Government can even grant post-facto clearance for
permissible activities. Denial of such an opportunity to the
Petitioner has resulted in gross injustice.Para 4.3 of the CRZ
Notification, 2011 is reproduced herein below:
“4.3 Post facto clearance for permissible activities.- (i) all activities, which are otherwise permissible under the provisions of this notification, but have commenced construction without prior clearance, would be considered for regularisation only in such cases wherein the project applied for regularization in the specified time and the projects which are in violation of CRZ norms would not be regularised; (ii) the concerned Coastal Zone Management Authority shall give specific recommendations regarding regularisation of such proposals and shall certify that there have been no violations of the CRZ regulations, while making such recommendations; (iii) such cases where the construction have been commenced before the date of this notification without the requisite CRZ clearance, shall be considered only by Ministry of Environment, Forest and Climate Change, provided that the request for such regularisation is received in the said Ministry by 30th June, 2018.”
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L. That this Hon’ble Court ought to have considered that the
Report filed on 12.03.2019 by the Three-Member Committee
appointed by this Court is factually incorrect in as much as it
states that the CZMP currently applicable in the District of
Ernakulam, wherein Maradu Municipality is situated is the one
approved in 1996. It is submitted that the MoEF vide letter
addressed to the State of Kerala on 28.02.2019, approved the
CZMP as prepared under the MoEF Notification dated
06.01.2011 (“2011 MoEF Notification”). It is submitted that as
per the CZMP prepared under the 2011 MoEF Notification, the
area wherein the Subject Building is situated has been
categorised as CRZ II and therefore the construction of the
same is a permissible one.
M. That this Hon’ble Court ought to have considered that the
factual scenario as contemplated by the Report of the Three-
Member Committee has itself come into fruition. It is
submitted that even as per the Report of the Three-Member
Committee the CZMP prepared in the year 1996 would stand
until only until the CZMP as prepared as per the CRZ
Notification of 2011 is approved. It is submitted that the MoEF
has vide letter dated 28.02.2019 has approved the CZMP
prepared under the 2011 CRZ Notification and has thereby
categorised the Subject Land as CRZ II. At any rate even as per
the 2011 MoEF Notification, issued in supersession of the
MoEF Notification dated 19.02.1991 (“1991 MoEF
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Notification”), the CZMP prepared under the 1991 MoEF
Notification would be valid only until the CZMP prepared
under the 2011 MoEF Notification is approved.
N. The Three-Member Committee had ignored the direction of
this Hon’ble Court to consider the matter as submitted by the
parties and to find out the legality of construction. The Report
submitted is silent on this aspect. The Three-Member
Committee, like the KCZMA in the entire litigation, has not
made any observation/finding as to whether the constructions
effected by the Review Petitioner herein is legal or not. The
Report of the Three-Member Committee does not provide any
specific details to arrive at a conclusion as to the legality of the
constructions. The Three-Member Committee did not consider
the submissions made by the Review Petitioner herein in this
regard.
THE THREE-MEMBER COMMITTEE VIOLATED THE PRINCIPLES OF NATURAL
JUSTICE
O. That this Hon’ble Court ought to have appreciated that the
Three-Member Committee violated the principles of natural
justice and that the report of the Committee was made at the
behest of the KCZMA. It is submitted that this Hon’ble Court
vide order dated 27.11.2018 constituted the Three-Member
Committee and directed it to hear both the KCZMA as well as
the Review Petitioner herein, pursuant to which it was to file a
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report ascertaining the legality of the construction and the
category of the area in which the building is located. It is
submitted that although the Committee was envisaged to be an
unbiased fact-finding body, by hearing affected parties, they
did not consider any aspects placed before them by the parties
and instead adopted the report submitted by the Technical
Team.
P. That this Hon’ble Court failed to appreciate that the reports of
the Three-Member Committee suffer from non- application of
mind and its findings are a mere reproduction of the report of
the Technical Team constituted by the Local Self-Government
Department. It is further submitted that the affected parties
were not made aware of the fact that a Technical Team was
constituted, and that they briefed the three-member
committee in the absence of the affected parties on 16.01.2019.
As such the Petitioner herein was unable to respond to the
factual/legal infirmities in the report of the Technical Team.
This briefing/deliberations between the three member
committee and the technical team was subsequently
reproduced verbatim as a Report which was filed before this
Hon’ble Court.
Q. That this Hon’ble Court failed to appreciate that the Three –
Member Committee functioned on various dates without
having proper quorum. It is submitted that the principal
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secretary, LSGD, Govt. of Kerala, without the leave of this
Hon’ble Court, did not participate in the adjudication and
instead deputed one Gopalakrishna Bhat, Secretary, Personal
and Administrative Department, Govt. of Kerala for the same.
Moreover, on 28.01.2019, the hearing was conducted in the
absence of the District Collector.
CONSTITUTION AND COMPOSITION OF THE TECHNICAL TEAM VIOLATED THE
PRINCIPLES OF NATURAL JUSTICE
R. That this Hon’ble Court ought to have appreciated that the
Three-Member Committee ought not have placed undue
reliance on the report of the Technical Team, whose
constitution was not contemplated at all. It is submitted that
the appointment of the Technical Team prior to the sitting of
the Committee was not contemplated by the Order of the
Supreme Court dated 27.11.2018. The Committee ought not to
have delegated the power conferred upon it by this Hon’ble
Court, especially when such delegation was not contemplated
by this Hon’ble Court at all. The principle of delegate potestas
non potest delegari squarely applies.
S. That this Hon’ble Court failed to appreciate that members of
the Technical Team were persons who are in the current
employment of the 1st Respondent herein. It is submitted that
Dr. Hari Narayanan, one of the members of the Technical Team,
is an active member of the 1st Respondent herein. It is further
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submitted that Shri Balraj, who is presently the Joint Director,
Urban Affairs Department, Government of Kerala and a
member of the Technical team was formerly a Member
Secretary of the 1st Respondent. In view of the above, a
Technical Team comprised of the above members cannot be
said to be one which is unbiased.
T. That this Hon’ble Court failed to appreciate that Maradu
Municipality being a ‘developed area’ could not be categorised
as CRZ III. It is submitted that even as per the 1991 MoEF
Notification CRZ II has been defined to be ‘areas that have
already been developed upto or close to the shoreline’.
Developed area has been further clarified to mean the ‘area
within the municipal limits or in other legally designated urban
areas which is already substantially built up and which has been
provided with drainage and approach roads and other
infrastructural facilities, such as water supply and sewerage
mains.’ Going by the abovesaid definition Maradu Municipality,
which fulfils the abovesaid conditions cannot be categorized as
CRZ III. The abovesaid fact is confirmed by the CZMP prepared
in the year 2014, which states inter alia that Maradu
Municipality ‘is considered to have built up area more than 50%
and hence categorized as CRZ II’.
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U. That this Hon’ble Court erred in not appreciating that the
reason for Kerala Floods cannot be attributed to the
construction of the Subject Building. It is submitted that in
view of the Report submitted by the Amicus Curie in W.P No.
2651 of 2019 that the main reason for the deluge was
identified as the extremely high rainfall received by the State
between 15th and 17th August, 2018. The other causes which
contributed for the worsening of the flood include inter alia the
following
a. None of the 79 dams in Kerala were used/operated for
the purpose of flood control/moderation, despite the
obligations cast under the National Water Policy and
other directives.
b. Dams in Kerala did not maintain effective Flood Control
Zone and the Flood Cushion maintained was not as
mandated by the BIS Report
c. Most of the major reservoirs were almost full before the
extreme rainfall that occurred on 14th – 16th of August,
2018 and they did not have the capacity to accommodate
the additional flow generated by extreme rainfall.
d. Sudden release of water simultaneously from different
reservoirs during extreme rainfall aggravated the
damage.
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In view of the above, it is submitted that the finding of this
Hon’ble Court that Kerala Floods were a result of the
construction of the Subject Building is factually incorrect.
V. That this Hon’ble Court failed to appreciate that the show-
cause notice issued by Maradu Municipality to the Petitioner
on 04.06.2007 was merely to show cause as to why the
Building Permit issued to them should not be cancelled. It is
submitted that it was not the case of the 1st Respondent herein
nor the Municipality that the Subject Building should be
demolished as is evident from the case set up by them before
the Single Judge as well as the Division Bench of the Hon’ble
Kerala High Court.
W. Any other Ground, with the permission of this Hon’ble Court.
PRAYER:
It is therefore most respectfully prayed that this Hon’ble Court
may graciously be pleased to:
A. Review the Common Order dated 08.05.2019 passed by
this Hon’ble Court in Civil Appeal No. 4784 - 4785of 2019
and hear the appeal afresh on merits and set aside the
same; and
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B. pass any other order as this Hon’ble Court may deem fit
and proper in the facts and circumstances of the case.
AND FOR THIS ACT OF KINDNESS THE REVIEW PETITIONERS SHALL DUTY BOUND FOR EVER PRAY.
FILED BY
NEW DELHI MOHAMMED SADIQUE T. A. DATED: ADVOCATE FOR THE PETITIONERS
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IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION
REVIEW PETITION [CIVIL] NO. OF 2019 IN CIVIL APPEAL NO. 4784 - 4785 OF 2019
IN THE MATTER OF: -
ALFA VENTURES PVT. LTD. ...REVIEW PETITIONER VERSUS
THE KERALA STATE COASTAL ZONE MANAGEMENT AUTHORITY & ORS. …RESPONDENTS
IN THE MATTER OF:-
THE KERALA STATE COASTAL ZONE MANAGEMENT AUTHORITY …PETITIONER
VERSUS
MARADU MUNICIPALITY & ORS. …RESPONDENTS
CERTIFICATE
Certified that the Review Petition is confined only to the pleadings before this Hon‘ble Court whose Order is challenged and the other documents relied upon in those proceedings. No additional facts, documents or grounds have been taken herein or relied upon in the Review Petition. It is further certified that the copies of the documents/annexures attached to the Review Petition are necessary to answer the question of law raised in the petition or to make out grounds urged in the Review Petition for consideration of this Hon’ble Court. This certificate is given on the basis of instructions given by the Review Petitioner/person authorised by the Review Petitioner whose affidavit is filed in support of this Review Petition.
(MOHAMMED SADIQUE T.A.) ADVOCATE FOR REVIEW PETITIONERS
Filed on: