Bina Mathew vs State Of Kerala

N. Nagaresh, J

Aggrieved by Ext.P7 rejection of application for renewal of building permit, the petitioner is before this Court.

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 2nd 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.

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 2nd respondent thereupon passed Ext.P5 order stating that a fresh permit cannot be granted to the petitioner for any construction activities.

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 respondents to reconsider the application treating it as an application for renewal which has been filed within time.

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

I have heard the learned counsel for the petitioner, the learned Government Pleader representing the 1st respondent and the learned Standing Counsel for the 2nd respondent.

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.

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.

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.

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.