Bina Mathew vs State Of Kerala
2023 Latest Caselaw 6672 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
          THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 20TH DAY OF JUNE 2023 / 30TH JYAISHTA, 1945
                 WP(C) NO. 6890 OF 2023
PETITIONER:

         BINA MATHEW
         AGED 69 YEARS
         W/O SHRI PHILIP MATHEW 53/1420,
         MANORAMA HOUSE, THEVARA, KOCHI, PIN - 682013

         BY ADVS.
         MILLU DANDAPANI
         RONIT ZACHARIAH


RESPONDENTS:

    1    STATE OF KERALA
         REPRESENTED BY SECRETARY TO THE LOCAL SELF
         GOVERNMENT INSTITUTIONS GOVERNMENT SECRETARIAT,
         THIRUVANANTHAPURAM -, PIN - 695001

    2    KUMARAKOM GRAMA PANCHAYAT
         KUMARAKOM PO, KOTTAYAM REPRESENTED BY ITS
         SECRETARY, PIN - 686563


         BY SMT.AMMINIKUTTY, SR. GOVERNMENT PLEADER

     THIS WRIT PETITION (CIVIL) HAVING COME UP          FOR
ADMISSION ON 20.06.2023, THE COURT ON THE SAME          DAY
DELIVERED THE FOLLOWING:
 W.P.(C) No.6890/2023
                                       :2:




                           N. NAGARESH, J.

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                       W.P.(C) No.6890 of 2023

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                Dated this the 20th day of June, 2023


                            JUDGMENT

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Aggrieved by Ext.P7 rejection of application for

renewal of building permit, the petitioner is before this Court.

2. The petitioner states that he is owner of 27 Ares

and 44 square metres of land in Kumarakam Village of

Kottayam Taluk. The petitioner wanted to develop a part of

the said property and the 2 nd respondent issued Ext.P2

Building Permit on 28.12.2010. Ext.P2 was valid up to

27.12.2013. The said Building Permit was renewed up to

27.12.2016 as per Ext.P3. The petitioner could not complete

the construction before the stipulated date. The petitioner

therefore submitted an application for renewal of the Building

Permit on 23.12.2016.

W.P.(C) No.6890/2023

3. As the respondents refused to renew the Building

Permit, the petitioner filed W.P.(C) No.13097/2020 before

this Court. This Court, as per Ext.P4 judgment, directed the

2nd respondent to consider renewal application. The 2 nd

respondent thereupon passed Ext.P5 order stating that a

fresh permit cannot be granted to the petitioner for any

construction activities.

4. The said Ext.P5 order was challenged by the

petitioner filing W.P.(C) No.27272/2020. This Court directed

the petitioner to submit a fresh application for Building

Permit. The respondents again rejected the said application

on 30.11.2021 as per Ext.R5(a). In the pending W.P.(C)

No.27272/2020, this Court found that the application for

Building Permit submitted by the petitioner could not have

been rejected stating that the area of the proposed building

comes under a residential zone. This Court found certain

inconsistencies in the order of the respondents.

Consequently, W.P.(C) No.27272/2020 was disposed of

setting aside Exts.P6 and P10 therein and directed the W.P.(C) No.6890/2023

respondents to reconsider the application treating it as an

application for renewal which has been filed within time.

5. The respondents rejected the application again as

per Ext.P7 communication. The petitioner states that Ext.P7

communication is not sustainable because the original

application for renewal of permit was made when the Kerala

Municipality Building Rules, 1999 was in force. The

petitioner would urge that the Wetland (Conservation and

Regulation) Rules, 2010 had come into force on 24.10.2010,

prior to the issuance of Ext.P2 Building Permit. Had there

been any violation of the above Rules, the 2 nd respondent

ought not have issued Ext.P2 Building Permit. The 2 nd

respondent had renewed the Building Permit earlier also, as

per Ext.P3. The respondent is therefore now restrained from

refusing renewal of permit citing the Rules, 2010.

6. I have heard the learned counsel for the petitioner,

the learned Government Pleader representing the 1 st

respondent and the learned Standing Counsel for the 2 nd

respondent.

W.P.(C) No.6890/2023

7. The petitioner was granted a Building Permit

which was valid up to 27.12.2013. The said Building Permit

was renewed as per Ext.P3 up to 27.12.2016. The Building

Permit was not renewed thereafter in spite of the application

submitted by the petitioner.

8. It is evident from Ext.P5(a) communication that the

petitioner submitted a fresh application for Building Permit

which was rejected on 30.11.2021 as per Ext.P5(a). In

Ext.P6 judgment in W.P.(C) No.27272/2020, this Court set

aside the rejection of application for Building Permit finding

certain inconsistencies in the order. This Court directed the

respondents to treat the application as one for renewal and

to pass orders.

9. Pursuant to the direction of this Court, the

respondents have passed Ext.P7 order. Ext.P7 states that

the proposed construction is at a distance of only 3.30

metres from the boundary of Kayal and hence it violates Rule

4(1)(vi) of the Wetland Rules, 2010. W.P.(C) No.6890/2023

10. Rule 4(1)(vi) mandates that any construction of a

permanent nature except for Boat Jetties within 15 metres

from the mean high flood level observed in the past 10 years

calculated from the date of commencement of the Wetland

(Conservation and Management) Rules, 2010 are restricted.

The Building Permit application of the petitioner was

subsequent to the promulgation of the Rules, 2010.

Therefore, the respondents are justified in rejecting the

Building Permit application / Building Permit renewal

application, as per Ext.P7.

The writ petition therefore fails and it is hence

dismissed.

Sd/-

N. NAGARESH, JUDGE aks/17.06.2023 W.P.(C) No.6890/2023

APPENDIX OF WP(C) 6890/2023

PETITIONER'S EXHIBITS

Exhibit P1 TRUE COPY OF THE BUILDING PLAN SUBMITTED BY THE PETITIONER, APPROVED BY THE 2ND RESPONDENT Exhibit P2 TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER BEARING NO. A4/113/10 DATED 28.12.2010 Exhibit P3 TRUE COPY OF THE BUILDING PERMIT BEARING NO. A4/113/10 DATED 28.12.2010 ISSUED BY THE 2ND RESPONDENT EXTENDING VALIDITY OF THE PERMIT UP TO 27.12.2016 Exhibit P3(a) TRUE COPY OF RECEIPT BEARING NO.

4087762 DATED 23.12.2016 ISSUED BY 2ND RESPONDENT TO THE PETITIONER ACKNOWLEDGING SUBMISSION OF APPLICATION FOR RENEWAL OF BUILDING PERMIT Exhibit P4 TRUE COPY OF THE JUDGEMENT DATED 02.07.2020 IN W.P.(C) NO. 13097/2020 OF THE HON'BLE HIGH COURT OF KERALA Exhibit P5 TRUE COPY OF THE ORDER BEARING NO. A3-

2435/2020 DATED 30.10.2020 ISSUED BY THE 2ND RESPONDENT Exhibit P5(a) TRUE COPY OF THE ORDER DATED 30.11.2021 PASSED BY THE 2ND RESPONDENT Exhibit P6 TRUE COPY OF THE JUDGEMENT DATED 16.11.2022 IN W.P.(C) NO. 27272/2020 OF THE HON'BLE HIGH COURT OF KERALA Exhibit P7 TRUE COPY OF THE LETTER BEARING NO.

A3-2435/2021 DATED 24.01.2022 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER