BEFORE THE NATIONAL GREEN TRIBUNAL SOUTHERN ZONE, CHENNAI Appeal No. 1 of 2013 (SZ)
In the matter of: Shri K. 4/150, Panchalingapuram Mahadhanapuram Kanyakumari District-624702
..
Appellant
-versus-
1. The Member Secretary Tamil Nadu Coastal Zone Management Authority and Director Department of Environment Ground Floor, Panagal Building Saidapet, Chennai-600 015
2. The District Environmental Engineer, Tamil Nadu Pollution Control Board No.30, Keasari Street Mathias Nagar, Nagercoil Kanniyakumari District. ..
Respondents
Counsel appeared for appellant: M/s. V. Suthakar and K.S. Viswanathan
Counsel appeared for respondents: Shri M.K. Subramanian and M.R. Gokul Krishnan for respondent No.1 and Shri A.Ilango for respondent No.2).
ORDER/JUDGEMENT
PRESENT : Hon’ble Mr. Justice Dr. P. Jyothimani Judicial Member Hon’ble Prof. Dr. R. Nagendran Expert Member
______________________________________________________________ Dated: August, 07, 2013
Hon’ble Justice Dr. P. Jyothimani
1. This appeal is filed for challenging the order of communication of the 1 st respondent dated 20.11.2012 addressed to the 2 nd respondent. In the said impugned communication the request made by the appellant for approval for putting up a residential house in 0.4 ha of land situated in Survey No. 606/15, Kanyakumari Village, Agastheeswaram Taluk, Kanyakumari District came to be rejected on the ground that the same is situated in Coastal Regulation Zone Notification 2011. 2. The brief facts leading to the passing of the impugned order are that originally in respect of the same extent of land, the appellant wanted to put up a beach resort and a hotel and that came to be rejected on the ground the extent of land namely 0.4 ha is not sufficient for the purpose of putting up a resort or hotel. It was thereafter the appellant has made modified application form No. 1 for the purpose of putting up a residential house and he applied in the above said form to the District Coastal Joint Management Authority for clearance.
3. It appears that the District Authority has recommended the same and sent it to the 1st respondent for approval. On a direction from the 1 st respondent, the District Committee has also directed the applicant to pay necessary fees of Rs.50,000/- (Rupees fifty thousand) only and the applicant has also forwarded a demand draft for the said amount and were placed before the 1 st respondent for taking a decision.
4.
However, thereafter the matter was placed before the Committee of the 1 st
respondent and the 1st respondent in the impugned order having observed that there is no bar for the purpose of putting up construction of house in the said area as stated by the District Committee, however has rejected the application on the basis that it has violated the CRZ notification. It also states that the applicant having put up a construction has approached the authority and therefore it is an irregularity and that cannot be cured. It is further stated that in the alleged violation committed by the applicant with reference to the Tourism and Recreation Extension Scheme, action is directed to be taken against the applicant.
5. This order is mainly challenged on the ground that the applicant has already approached the Town and Country Planning Authority and the authority has already contemplated the Town and Country Planning Act, after following the entire procedure for giving permission for putting up the construction and in as much as the building permission was already available, there is no question of any deviation especially, when it is admitted even by the impugned order that putting up house construction in the said area is not against CRZ notification.
6. It is seen on record that by a communication dated 16.2.1012 addressed to st the 1 respondent, the District Committee forwarded the application of the applicant for the said construction along with the minutes of the meeting of the District Committee and it has, in fact, considered the merits of the case and found that the applicant is entitled for such permission. It is also seen that at the request of the 1st respondent, the District Committee has permitted the applicant to pay the necessary fees of Rs.50,000/- (Rupees fifty thousand) only and the applicant has also complied with by sending a demand draft for the said amount.
7. In the reply filed by the 2nd respondent, while the 2nd respondent reiterating the contents of the impugned order passed by the 1 st respondent would also state that the applicant is entitled to put up a residential house in the said area. However, the reading of the reply shows that a fault is found on the applicant’s conduct namely that the applicant having put up the construction has approached the authorities and therefore the same cannot be approved. It is also stated clearly in the reply that there is provision for construction of house building in the said area. However, the reply continues to state that the site is covered by the Tourism and Recreation
Extension Scheme and therefore, there is no provision for construction of house in the above said area. 8. Shri K.S. Viswanathan, the learned counsel appearing for the appellant would submit that once the authority contemplates under the Town and Country Planning Act who is empowered to grant building permit has gone into the entire aspects relating to including the CRZ notification, especially when the 1st respondent itself has categorically stated that the place concerned is entitled to be permitted for putting up housing construction, there is no rationale behind rejecting the application on the repeated ground that the place is earmarked for the purpose of Tourism and Recreation Extension Scheme. 9. On the other hand, it is the contention of the learned counsel appearing for the Tamil Nadu Pollution Control Board that the irregularity cannot be rectified. It is unfortunate that the 1st respondent who has passed the impugned order has not chosen to file any reply except adopting the 2 nd respondent’s reply. However, the 1st respondent has chosen to produce the minutes of the meeting. 10. After hearing the learned counsel for the appellant and respondents and after perusing the entire records including the minutes of the meeting produced by the learned counsel appearing for the respondents, we are of the view that once the Authority contemplated under the Town and Country Planning Act has given permission for putting up house construction in the area whatever in the circumstances that when it is admitted by the respondents themselves that the area concerned is entitled for putting up housing unit, there is absolutely no justification on the part of the respondents in rejecting the claim. Moreover, even as per the CRZ notification 2011, it is not in dispute that the site wherein the house is sought to be put up by the applicant is facing road and therefore there is absolutely no violation in this regard and that the certificate is also available which is issued by the Special Grade Town Panchayat. The Town Panchayat in the said certificate (in vernacular) clearly say as follows: 1. “It is certified that the Survey No. 608/15 near Kanyakumari Special Grade Town Panchayat is a road under National High Ways; 2. It is certified that the building plan for the proposed construction is satisfying the building rules.”
11. This shows that the building which is sought to be constructed in Survey No. 608/15 is in compliance with the building regulations and it is nobody’s case that the site is not abutting to the road and therefore the same is within the ambit of the CRZ notification. There is yet another aspect which is relevant to this case. The applicant has clearly stated that after the application was forwarded by the District Committee, the 1st respondent has called the applicant to appear on a date for the purpose of explaining the project. The applicant has clearly stated that on that date the applicant along with experts were present for the purpose of explaining the project to 1 st respondent. However, he was not at all called upon for explaining the project and while this fact stands uncontroverted by the respondents in the reply affidavit and one has to take the plea raised by the applicant in this regard as correct and uncontroverted. 12.
In such circumstances, without even having been explained the project to the
authorities, it is not known also how the authorities have come to the decision of closure. This is in our view violation of the principles of natural justice. In spite of the same, it is not know as to why the 1st respondent has not chosen to file a reply. The attitude of the 1st respondent in not assisting the Tribunal in proper manner is an incorrigible attitude which has to be deprecated. Be that as it may be, now that it is an admitted fact that housing site can be put up even by the impugned order, we do not see any reason or justification on the 1st respondent to reject the claim of the applicant. But it remains a fact that it is always open to the authority under the Town and Country Planning Act, if there is any violation committed by the applicant to take appropriate action while putting up the construction and this power is always available to the competent authority. In such view of the matter, giving liberty to the competent authority under the Town and Country Planning Act to supervise as to whether the applicant acts in accordance with the permit granted. Subject to the above conditions, the appeal is allowed and the impugned order is set aside. No costs. Justice Dr. P. Jyothimani Judicial Member Prof. Dr. R. Nagendran Expert Member Chennai, 07th August 2013
