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Judgment
V. Ramasubramanian, J.—By an order dated, 17.08.2007, the Executive Officer of Kanyakumari Special Grade Town Panchayat granted a licence to one M. Chandran, the right to maintain a park for a period of three years from 17.08.2007 to 16.08.2010 on an annual lease amount of Rs. 16,000/-. The licence was granted to the said person after conducting a tender and after a resolution passed by the Town Panchayat.
Thereafter, the District Collector, Kanyakumari, issued an order, dated 20.09.2007, granting permission to the Town Panchayat to entrust the beautification and maintenance work of two parks viz., (i) Beach Road Park opposite to Tamil Annai Park and (ii) Sunset Town Park, which was till then maintained by the Town Panchayat.
Challenging the order of the Executive Officer of the Town Panchayat, dated 17.08.2007, and that of the District Collector, dated 20.09.2007, an organisation by name "Indian National Trust for Art and Cultural Heritage and the Sunset Bazaar Viyabarikal Nala Sangam" joined together and filed a Writ Petition in W.P.(MD). No. 4422 of 2008. The main contention of the petitioners in the Writ Petition was that the area in question comes within the Coastal Regulation Zone-1 (for short ''CRZ-I'') and that no construction activity nor any kind of activity is permissible in the area, which would destroy the ecology of the place.
On 07.05.2008, notice was ordered in W.P.(MD). No. 4422 of 2008 and an interim direction to maintain status quo was issued, in view of the allegation that construction activities were being carried on.
However, on the basis of an inspection conducted by the District Collector and the advice allegedly tendered by him, on 05.03.2008, the Executive Officer of the Town Panchayat issued a notice, dated 06.03.2008, to the licensee M. Chandran asking him to stop further work in the park. Aggrieved by the said notice, the licensee filed a Writ Petition in W.P.(MD). No. 2923 of 2008. While ordering notice of motion in the said Writ Petition, an interim stay was also granted on 28.03.2008.
However, the District Collector passed an order dated 07.05.2008 cancelling the licence granted under the orders, dated 17.08.2007 and 20.09.2007. Consequently, the Executive Officer issued proceedings, dated 07.05.2008, revoking the licence earlier granted. Aggrieved by the revocation of the licence by the order dated 07.05.2008, the licensee M.Chandran filed a second Writ Petition in W.P.(MD). No. 5306 of 2008. The same was admitted, on 18.06.2008, and an interim stay was also granted pending disposal of the Writ Petition.
Subsequently, W.P.(MD). No. 2923 of 2008 arising out of the notice, dated 06.03.2008, was withdrawn by the licensee in view of the subsequent development namely the revocation of the licence.
In view of the fact that there was already a Writ Petition in W.P.(MD). No. 4422 of 2008 filed in public interest seeking cancellation of the licence granted on 17.08.2007 and 20.09.2007, the Writ Petition filed by the licensee in W.P.(MD). No. 5306 of 2008 was tagged along with the same and both the Writ Petitions were taken up for disposal together.
We have heard Mr. T. Arul, the learned Counsel appearing for the petitioners in W.P.(MD). No. 4422 of 2008, Mr. N.R. Chandran, the learned Senior Counsel appearing for the licensee, who is the fifth respondent in W.P.(MD). No. 4422 of 2008 and the petitioner in W.P.(MD). No. 5306 of 2008 and Mr. C. Arul Vadivel @ Sekar, the learned Assistant Solicitor General, appearing for the Ministry of Environment, the Government of India, who is the sixth respondent, Mr. R. Janakiramalu, the learned Special Government Pleader appearing for the respondents 1 and 2 in both the Writ Petitions, Mr. K.M. Vijayakumar, the learned Additional Government Pleader for the Executive Officer, who is the third respondent in both the Writ Petitions and Mr. R. Ramanlal, the learned standing counsel appearing for the Pollution Control Board, the fourth respondent in W.P.(MD). No. 4422 of 2008.
Even at the outset, we are of the considered view that nothing survives for adjudication in W.P.(MD). No. 4422 of 2008 for two reasons, namely, (a) that their prayer for setting aside the orders dated 17.08.2007 and 20.09.2007, does not survive in view of the cancellation of those orders by the District Collector and the Executive Officer and (b) that even in the other Writ Petition W.P.(MD). No. 5306 of 2008 arising out of the revocation of the licence, we do not propose to go into disputed questions of fact and adjudicate them. Therefore, W.P.(MD). No. 4422 of 2008 is closed.
Insofar as W.P.(MD). No. 5306 of 2008 is concerned, it is seen that several disputed questions of fact have arisen from out of affidavits, counter affidavits and reports of the respective parties. These disputed issues of fact can be summarized as follows:
(i) While the District Collector and the petitioners in the public interest litigation claim that the area in question is in CRZ-I, the first respondent and the sixth respondent, the licensee and the Executive Officer claim that the area was only in CRZ-II and latter fell under CRZ-III.
(ii) While the licensee and the Executive Officer claim that the licence granted was only for the maintenance of an existing park, the petitioners in the public interest litigation claim that there was no park.
(iii) While the licensee claims that no construction activities were undertaken by him and that he had only renovated and maintained the park, the District Collector has taken a stand that the licensee was putting up some constructions in violation of the conditions of the licence.
(iv) While the licensee claims that under the notification issued by the Ministry of Environment, the establishment and maintenance of a park or play field is a permitted activity requiring no clearance irrespective of the Zonal classification, the District Collector and the petitioners in the public interest litigation claim that the permission of the District Coastal Management Committee ought to have been maintained.
What we have listed above are only a sample of the crucial disputed issues of fact that have arisen in the Writ Petition challenging the validity of the order revoking the licence. There are also several other issues into which we need not go for the present.
It is seen from the order, dated 07.05.2008, passed by the Executive Officer that he had cancelled the licence issued by him on 17.08.2007, in view of the order of cancellation passed by the District Collector on the very same day, namely, 07.05.2008. The order of the District Collector, dated 07.05.2008, as well as the order of the Executive Officer, dated 07.05.2008, do not contain any reference to any notice issued to the petitioner before canceling the licence. It is interesting to note that the order of the Collector as well as the order of the Executive Officer, both of which are dated 07.05.2008 contain a reference to each other. But, they do not contain any reference to any notice issued to the licensee. The body of the orders passed by the Collector and the Executive Officer also do not refer to any notice issued before cancellation of licence.
There are references to notices dated 06.05.2008 issued by the Collector as well as the Executive Officer, just one day before the impugned orders of cancellation were passed. In order to see the purport those notices, dated 06.05.2008, we directed the Executive Officer to produce the files. The files contain a notice dated 06.05.2008 issued by the District Collector to the Executive Officer whereby he has merely directed the licensee to stop further work. Consequently, the Executive Officer has also issued another notice, dated 06.05.2008, to the licensee for stopping the work. Both these notices do not even give any indication of any opportunity provided to the licensee before his licence was sought to be cancelled.
As a matter of fact, the order of the District Collector also refers to a meeting of the District Coastal Management Authority held on 06.05.2008. The licensee was not put on notice even of the deliberations of the said Authority.
The orders impugned in the Writ Petitions filed by the licensee as well as the files make it clear that before the cancellation of the licence, no show cause notice for cancellation of licence was issued to the licensee, though a notice to stop work was issued. The licensee has actually disputed even the receipt of notice, dated 06.05.2008, asking him to stop work.
Be that as it may, it is borne out by records and also not disputed by the learned Special Government Pleader as well as the counsel for Panchayat that no opportunity was granted to the licensee before revocation of the licence. Thus, it is clear that there has been a violation of the principles of natural justice.
Despite the violation of natural justice, we would have hesitated to interfere with an order passed for the maintenance of environment and ecology, if it was a case where there was no disputed questions of fact. If violations of the environmental law are borne out so obviously from records, we may even go to the extent of holding that the compliance with natural justice may not be so essential.
But, unfortunately, in this case, as we have pointed out earlier, several disputed issues have arisen. The District Collector who passed the order, dated 07.05.2008, has actually found fault with her Predecessor for granting a licence on 20.09.2007. She has a filed a counter affidavit raising very serious issues even with regard to the grant. Her Successor has also filed a counter affidavit in the Writ Petition, after inspecting the property in question in pursuance of an order passed by this Court. This report also contains serious questions.
But, if the counter affidavit filed by the first respondent who happens to be the Convener of the State Coastal Regulation Management Committee and the counter affidavit of the Ministry of Environment are perused, the averments contained therein run contrary to the findings recorded by the District Collector in the counter affidavits filed after inspection.
Therefore, this is not a case where the requirement of principles of natural justice could be so easily dispensed with, for the purpose of preserving the environment and ecology in the absence of a clear picture regarding the violations.
Therefore, we are of the considered view that the impugned order revoking the licence should be set aside on the short ground that it is in violation of the principles of natural justice. After setting aside the order, the next question to be considered is as to whether the matter should be remitted back to the District Collector himself. The District Collector has taken a stand in the counter affidavit as well as in the order impugned in the Writ Petition that the clearance of the District Coastal Management Authority was not obtained before the licence was granted.
But, it is the stand of the licensee that for the maintenance of a park, no such clearance is necessary. In the light of this disputed fact, it may not be possible for us to remit the matter back to the District Collector for a fresh disposal after complying with the principles of natural justice. We, therefore, deem it fit to direct the District Collector to place it before the Committee for appropriate orders after granting an opportunity of hearing to the licensee.
In view of the above, the Writ Petition in W.P.(MD). No. 5306 of 2008 is allowed, the order impugned in the Writ Petition is set aside. The District Collector shall convene a meeting of the District Coastal Zone Management Committee within a period of three weeks from the date of receipt of a copy of this order, place the entire records before the Committee and make the Committee inspect the place in question. After perusal of all the records, the District Committee shall issue notice to the licensee before conducting an inspection, so that the licensee may be present at the time of inspection. After inspection, the District committee shall go into all the disputed questions, namely,
(a) Whether the area in question falls under CRZ-I, II or III?
(b) Whether there was a park in existence at the time of grant of licence?
(c) Whether the activities carried on by the licencee were in tune with the permitted activities?
(d) Whether any action needs to be taken in the light of the various regulations relating to preservation of Environment?
(e) Whether any clearance is required even for the establishment of park?
The District Committee shall then issue a notice to the licensee, give opportunity to him to present his case and thereafter, take appropriate decision in the light of the findings recorded on all the above issues.
Till a District Committee passes an order, the licensee shall not carry on any activities in the place except routine maintenance work as would have been carried out if the Town Panchayat itself had been allowed to carry on. The District Collector shall ensure that the entire exercise as directed above shall be completed in total within a period of three months from the date of receipt of a copy of this order. He shall also ensure that the character and features of the land in question are not altered by the licensee by taking advantage of this interim arrangement. Consequently, connected M.Ps are closed. No costs.