A permit for construction cannot be denied based solely on distance regulations if prior approvals were given without compliance to newer guidelines, highlighting the importance of proper land classification.

JUDGMENT :

Amit Rawal, J.

Appellant/petitioner is stated to be absolute owner in the absolute possession and enjoyment of 27.44 Ares about 70 cents of land in Survey Nos.328/34, 328/35, 328/33 and 328/4-1 in Kumarakom Village, Kottayam Taluk, Kottayam District.

2. On 22.12.2010, appellant submitted an application for building permit for 5.73 cents of land in Survey No.328/34 for the purpose of construction of a residence.

3. The Panchayat at the relevant point of time, to whom only the Kerala Municipality Building Rules, 1999 (‘KMBR, 1999’ for short) was applicable with effect from 1998, granted the permit vide Ext.P1 order dated 28.12.2010 valid up to 27.12.2013, i.e., for a period of three years on 131.37 sq. mtrs. for residential purposes. It was stated that the proposed constructions would be in accordance with the approved plan. Since the construction could not be completed, another application was submitted for extension of the permit on the same piece of land on same Survey number, which was granted for a period of another three years up to 27.12.2016 vide Ext.P3, with a condition that the construction is restricted to Survey No.328/34.

4. Since the provisions of Rule 15A of the KMBR envisages for issuance of permit for three years after that upto maximum 9 years, another application was submitted on 23.12.2016 vide Ext.P3(a) to the Kumarakom Grama Panchayat. However, when the application was not taken up, the petitioner approached this Court vide Writ Petition No.13097 of 2020 for seeking a mandamus and direction to the concerned respondent for consideration of the application for renewal of the aforementioned permit. This Court vide order dated 02.07.2020, disposed of the writ petition with a direction to the Panchayat to take a call on the aforementioned application.

5. Vide order dated 30.10.2020 (Ext.P5), Kumarakom Grama Panchayat rejected the application for extension of the permit. The main ground for rejection was that as per the notification dated 11.01.2005 published in Kerala Gazette of Conservation and Preservation of Areas - Ordinance 2005 of Kerala Tourism, Kumarakom area has been recorded as the Special Tourism and therefore, there cannot be any permission for erection of the residential house for the reason that a 25 mtrs. Foreshore set back from the water body is required to be kept free from the construction as per the guidelines as Kumarakom bird sanctuary needed to be protected.

6. The aforementioned order was assailed in this Court in Writ Petition No.27272 of 2020. During the pendency of the aforementioned writ petition, the appellant/petitioner was directed to submit a fresh application as per the order dated 01.11.2021, accordingly an application dated 08.11.2021 was submitted which was rejected vide order dated 30.11.2020 on the ground that as per the technical inspection conducted by the Local Self Government Department Engineer, the proposed construction does not have the required distance from the back-waters and also relied upon the notification dated 11.01.2005 pertaining to declaring the tourism zone. Accordingly the aforementioned writ petition was amended by assailing the said order dated 30.11.2020. This Court vide judgment dated 16.11.2022 quashed the aforementioned orders i.e., orders dated 30.11.2021 and as well as 30.10.2020 and