The Kerala High Court has disallowed construction of public crematorium in the dense mangroves forest area classified as CRZ – IA noting that it is an ecologically fragile coastal area that is meant to be protected from any disruptive activities.

The Court was considering an Appeal filed under under Section 5 of the Kerala High Court Act by Kerala Coastal Zone Management Authority.

A division-bench of Chief Justice Nitin Jamdar and Justice S Manu observed, "As of today, the area in question is covered with dense mangroves and is classified as CRZ – IA, which requires the highest level of protection. No construction of a crematorium is thus permissible. If we allow the appeals, we would effectively be permitting the Panchayat to undertake construction in an ecologically fragile coastal area that is meant to be protected from any disruptive activities. It will defeat the very essence of the Coastal Regulation Zone regulations enacted to safeguard these ecologically sensitive coastal areas. Therefore, considering the present classification of the area, as well as the larger public interest in environmental protection, we cannot allow the subject construction on the site which falls in the CRZ – IA area."

The Appellant was represented by Advocate M.P. Prakash while the Respondent was represented by Advocate (Senior) General K. Gopalakrishna Kurup.

Facts of the Case

Previously, a single-judge bench had quashed the permission granted by the Coastal Regulation Zone Authority to the Dharmadam Grama Panchayat to construct a public crematorium in a mangrove area. Despite the site lying in dense mangroves, Dharmadam Grama Panchayat had made a series of attempts to use it for a public crematorium. The same effort was joined-in by the Kerala Coastal Zone Management Authority with this appeal.

Petitioner’s case was that the Panchayat is proceeding to do the construction despite the prohibitions under the Kerala Conservation of Paddy Land and Wetland Act, 2008, and the Coastal Regulation Zone Notifications issued by the Government of India under the Environment Protection Act, 1986.

The Appellants had submitted that the impugned judgment incorrectly assumes that the area falls under CRZ-I. If the area is classified as CRZ-III, the construction of a crematorium would be permissible. The judgment errs in stating that the area falls under CRZ-I as of the date of Exhibit-P4 notification. The Coastal Zone Management Plan (CZMP) under the CRZ Notification, 2011 had not been published when Exhibit-P4 clearance was granted. According to the CZMP of 1996, the land was categorized as CRZ-III, and the subsequent correction was simply a rectification of a mistake. The judgment wrongly assumes that the opinion of experts and the presence of mangroves would remain relevant even after the areas were demarcated by the CZMP. The CRZ Authority did not change the category but merely corrected an error that was apparent on the record. Therefore, the impugned judgment should be quashed as it is against the public interest, which would be served by providing a crematorium for the local community. When the clearance was granted on 13 December 2018, the land was, in fact, in CRZ-III, and referring to it as CRZ-I was simply an error.

Reasoning By Court

The Court at the outset noted that the issue is not whether the CRZ Authority's appeal is maintainable but whether it should have filed an appeal. It stated that the Panchayat is the authority responsible for establishing the crematorium and it is not the statutory function of the CRZ Authority to ensure the construction of a crematorium; its role is to decide whether permission should be granted within the scope of the CRZ notification.

Citing Supreme Court's decision in Usman Gani J. Khatri v. Cantonment Board, the Court observed that if a permission validly granted is merely being rectified, it would be a different matter, however, in the case at hand, the permission was, on its face, an erroneous permission.

"There was no question of granting permission by the CRZ Authority when the permission itself indicated that the subject land fell in CRZ – I. It is important to note that when the Panchayat applied to the CRZ Authority on 21 June 2018, it referred to the property as CRZ – I. Subsequently, the CRZ clearance was granted, categorising the area as CRZ – I. Throughout the application, which is in the vernacular, the Panchayat consistently referred to the area as falling under CRZ – I. Further, the learned Single Judge rightly held that matters of environmental protection would be distinct from mere construction permits. The learned Single Judge is right in holding so following the decision of the Hon’ble Supreme Court in the case of Howrah Municipal Corporation v. Ganges Rope Co. Ltd.," the Court observed.

The Court was of the view that considering the presence of thick mangroves and the characteristics of the land falling within CRZ-IA, the CRZ Authority, entrusted with protecting these zones, should have carefully considered the implications of the “rectification” when the land was already categorised as CRZ-IA.

"By issuing the order of “rectification”, the CRZ Authority was effectively sanctioning the destruction of an area that, under the notification at the time, required the highest degree of protection being under CRZ-IA. We, therefore, find that the learned single judge was right in quashing the permissions," the Court stated.

The Appeal was accordingly dismissed.

Cause Title: Kerala Coastal Zone Management Authority vs. PM Sukhilesh (2024:KER:98315)

Appearances:

Appellant- Advocate M.P. Prakash

Respondent- Advocate (Senior) General K. Gopalakrishna Kurup, Advocate P.K. Ravishanker, Advocate M.P. Prakash

Click here to read/ download Judgement








Kerala High CourtChief Justice Nitin JamdarJustice S Manu

Sheetal Joon