V S GOPALAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner is the trustee of Ahalya Foundation which owns a parcel of land in Re - survey No. 40/50 of Chavakkad Taluk. The petitioner had put up a building therein for the purpose of running an Ayurvedic hospital. The building was put up after obtaining the necessary permission from the local authority. It is stated that the construction was made after leaving vacant space of more than 200 metres from the high tide line and therefore there is no violation of Coastal Regulation Zone Notification. Upon the local authority insisting that the petitioner should obtain a No Objection Certificate from the Centre for Earth Science Studies in view of the applicability of the Coastal Regulation Zone Notification, the petitioner moved the second respondent authority. When the second respondent authority did not take any action in the matter, he filed WP (C) No. 2323 of 2008 in this Court. By Ext. P4 judgment delivered on 29/01/2008, this Court directed the second respondent authority to consider the request made by the petitioner and take a decision thereon within six weeks. Pursuant to the said direction, Ext. P5 order was passed on 10/06/2008 holding that the construction made by the petitioner is in violation of the CRZ Notification, 1991. The District Collector, Thrissur and the Secretary of the local authority were directed to take appropriate action against the unauthorised construction. Ext. P5 is under challenge in this writ petition.

(2.) Though a large number of contentions are raised, when this writ petition came up for hearing today Sri. P. B. Sahasranaman, learned counsel for the petitioner submitted that Ext. P5 which is described as a Government order is an order passed by the Chairman of the Kerala State Coastal Zone Management Authority and not by the authority as such. He submitted that Ext. P5, is styled as a Government order and is issued in the name of the Governor of Kerala and therefore it cannot be said to be an order passed by the Kerala Coastal Zone Management Authority. Relying on Ext. R5(a) which is a notification issued by the Government of India under S.3 of the Environment (Protection) Act, 1986, the learned counsel for the petitioner contended that the Kerala Coastal Zone Management Authority was last constituted on 21/07/2008 for a period of three years, that it consists of 12 members, that the Ex - officio Chairman of the said committee is the Principal Secretary to Government of Kerala, Science and Technology Department and that the mere fact that the Principal Secretary to Government of Kerala, Science and Technology Department is the Chairman of the Kerala Coastal Zone Management Authority does not empower the said officer to act on his own and issue a Government order of the kind of Ext. P5 rejecting the petitioner's request. The learned counsel for the petitioner submitted that in such circumstances Ext. P5 may be set aside and the Kerala Coastal Zone Management Authority may be directed to reconsider the matter and take an appropriate decision thereon after affording the petitioner a reasonable opportunity of being heard.

(3.) Per contra, the learned counsel for the second respondent submitted that Ext. P5 is not really a Government order and that it is an order passed by the Chairman of the Kerala Coastal Zone Management Authority acting on behalf of the Kerala Coastal Zone Management Authority. We are afraid the said submission cannot be accepted. Ext. P5 is styled as an order issued by the Government of Kerala. It is described as GO (Rt) No. 48/08 / S&TD dated 10/06/2008. It is also one issued in the name of the Governor of Kerala. A mere look at Ext. P5 would show that it is a Government order and not an order issued by the Kerala Coastal Zone Management Authority. The second respondent has not placed on record any material to show that before the said Government order was issued, a decision was arrived at by the Kerala Coastal Zone Management Authority constituted as per Ext. R5(a) and that based on the said decision though erroneously a Government order was issued. The only averment in the counter affidavit filed on behalf of respondents 1 and 2 is that Ext. P5 order is one issued by the Principal Secretary to Government of Kerala, Science and Technology Department who is also the Chairman of the Kerala Coastal Zone Management Authority. In the light of the stand taken by the respondents in their counter affidavit and on the terms of Ext. P5 itself we have no doubt in our minds that Ext. P5 is a Government order and not an order issued by the Kerala Coastal Zone Management Authority. The stand of the respondents that it is not a Government order cannot bear scrutiny in the light of Art.166 of the Constitution of India which reads as follows: