Bina Mathew vs State Of Kerala on 28 May, 2025

[Cites 13, Cited by 0]

Kerala High Court

Bina Mathew vs State Of Kerala on 28 May, 2025

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 WA NO. 1944 OF 2023 4 2025:KER:38575 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 WA NO. 1944 OF 2023 5 2025:KER:38575 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 WA NO. 1944 OF 2023 6 2025:KER:38575 and directed the authorities to reconsider the application submitted by the appellant/petitioner and pass the order treating it to be an application for renewal as provided under Rule 15A of the KMBR, 1999.

7. On consideration of the matter, the Grama Panchayat vide communication dated 24.01.2022 (Ext.P7) rejected the application of the appellant/petitioner on the ground that as per the inspection of the Technical Department only a distance limit of 3.30 mtrs. is available from the lake boundary for the proposed construction and since the distance limit as per Rule 4(1)(vi) of the Wetlands (Conservation and Management) Rules, 2010, ('the Wetland Rules 2010' for short) is not complied with, it was not possible to renew the permit. It is the said order which was assailed before the Single Bench in the Writ Petition No.6890 of 2023 on various grounds.

8. The stand of the respondent Panchayat throughout had been that it is not conforming to the Wetland Rules, which were made applicable on the basis of the communication of letter dated 16.01.2014 issued by the Kerala Coastal Zone Management Authority (KCZMA), Thiruvananthapuram, which WA NO. 1944 OF 2023 7 2025:KER:38575 clearly provided that, the permit issued prior to the Coastal Regulation Zone (CRZ) Notification of 2011 i.e. 06.01.2011, will not attract the provisions of the Kumarakom Panchayat; reconstruction of the existing authorised structures can be permitted by the KCZMA subject to the condition that the plinth area of the existing structure shall not be increased and the existing FSI/FAR and density shall not be increased, with a further clarification that the guidelines regarding the provisions of setback distance for a Critically Vulnerable Coastal Area (CVCA) are yet to be issued by the Ministry of Environment and Forest, Government of India and therefore, till such time, the provisions of the Wetland Rules 2010 shall be made applicable, prohibiting new constructions within 50 mtrs from the High Flood Line (HFL) and for that the clearance is required to be taken from the Environment Department. Another condition was that the Vembanad Lake around Kumarakom has embankment in most of the places and therefore, the High Tide Lines (HTL) and the Low Tide Lines (LTL) coincides along with the embankment/bund and in the cases where embankments do not exist, the HTL shall be WA NO. 1944 OF 2023 8 2025:KER:38575 "fixed" based on the natural/geomorphic signatures.

9. The learned Single Bench dismissed the writ petition on the ground that the proposed construction is at a distance of only 3.30 mtrs from the boundary of Kayal and therefore there is violation of the Rule 4(1)(vi) of Wetland (Conservation and Regulation) Rules 2010, (Wetland Rules, 2020, for short) which mandates that any construction of the permanent nature except for boat jetties strictly within 50 mtrs from the mean High Flood Level (HFL) observed in the past ten years are restricted.

10. A Review Petition was filed bearing No.670 of 2023 stating therein that the stand of the respondent was with regard to the applicability of the Wetland Rules, 2010 from the letter dated 16.01.2014 issued by the KCZMA, but on perusal of the letter it was clear that the CRZ Notification of 2011 is not applicable to the permits issued prior to 06.01.2011. In other words, the provisions of the CRZ and as well as the Wetland regulation would not be applicable as the appellant had already been issued a permit in the year 2010, i.e., before CRZ notification of 2011 became effective from 06.01.2011.

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11. Learning Single Bench noticing all these facts dismissed the review petition by holding that the Wetland Rules, 2010 came into force with effect from 24.10.2010. Application of the petitioner for permit was submitted on 22.12.2010 and therefore the said application for permit could not be entertained.

12. Mr.Santhosh Mathew learned Senior Counsel assisted by Smt.Karthika Maria, learned counsel appearing on behalf of the appellant/petitioner submitted that the contents of the letter dated 16.01.2014 reveals that the CRZ Notification 2011 restricting the construction within the area prescribed therein, falling within the High Tide Line would not be applicable to the permits issued prior to coming into force of the notification i.e. with effect from 06.01.2011. The first permit was issued on 28.12.2010 which was valid for three years and then extended till 2016. The third application was rejected which was assailed before this Court and ultimately again rejected, leading to the filing of the Wit Petition bearing No.6890 of 2023.

13. As per the definition of 'Wetland' in the Wetland Rules 2010, wetland would mean "an area or of marsh, fen, peatland WA NO. 1944 OF 2023 10 2025:KER:38575 or water; natural or artificial permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas of marine water, the depth of which at low tide does not exceed six metres." But does not include main river channels, paddy fields and the coastal wetland covered under the notification of Government of India in the Ministry of Environment and Forest dated 19.02.1991 published in the Gazette notification of 20.02.1991. Though the 'protected wetlands' are defined under Section 3, which consists of Ramsar wetlands and there is a restriction on the activities within wetlands as provided under Rule 4 of reclamation, setting up of new industries and as per (vi) of Rule 4, any construction of permanent nature except for boat jetties within 50 mtrs from the mean High Flood Level (HFL) observed in the past ten years calculated from the date of the commencement of the Rules. By referring to the aforementioned Sub-Rule of Rule 4, it was submitted that the boat jetty is never based on a main land, it is always in the water and there is no land mark issued by any of the authorities either under the Wetland Rules 2010, Panchayat as well as the Coastal Regulation Zone WA NO. 1944 OF 2023 11 2025:KER:38575 authorities identifying the area of 50 mtrs from the mean High Flood Level. The fact remains that the process for identification of the wetlands under different category as provided in Rule 6 has so far not been undertaken by any of the authorities established under the Wetland Rules 2010 and subsequently amended Rules 2017.

14. As per Sub-Rule (3) of Rule 6 of the aforementioned Rules, a 'Brief Document' of each wetland for identification shall comprise of the following information:

"(i) broad geographic delineation of the wetland;

(ii) its zone of influence along with a map (accurate and to scale);

(iii) the size of the wetland;

(iv) account of pre-existing rights and privileges, consistent or not consistent with the ecological health of the wetland."

Till date no exercise has been undertaken to identify. In such circumstances, the schedule attached to the aforementioned Rules declaring the Vembanad Kayal wetland in Kerala, the entire island of Kumarakom cannot be declared as a wetland and the factum of not having undertaken the exercise of identifying the wetland is also evident from the contents of the letter dated 25.09.2023 issued by the Government of India, WA NO. 1944 OF 2023 12 2025:KER:38575 Ministry of Environment, Forests & Climate Change addressed to all the Member Secretaries of Wetlands Authorities of the States/Union Territories, wherein it has been mentioned that the exercise as provided under Sub-Rule (3) of Rule 6 would consist of not only the wetlands but also the Ramsar sites mentioned under Rule 3, meaning thereby the Ramsar sites cannot be taken out of the preview of the applicability of the provisions of Sub-Rule (3) of Rule 6 of the Wetland Rules 2010.

15. It was also contended that by way of I.A.No.1 of 2025 allowed by this Court on 27.05.2025, additional documents have been placed on record i.e. the revenue record pertaining to 2017 and as well as 2025 wherein the nature of the land under the Survey No.328/34 reflects to be 'purayidam' (garden land).

16. Thus, in the absence of any exercise having undertaken under Sub Rule (3) of Rule 6, the Panchayat authorities could not have rejected the application for granting the permit by taking into consideration of the contents of the letter dated 16.01.2024 and applying the provisions of the Wetland Rules, 2010 in a mechanical manner. The exercise for WA NO. 1944 OF 2023 13 2025:KER:38575 notifying the wetland is a sine qua non as it tantamounts to violation of the right to hold a land of a particular citizen. In support of the contention had relied upon the judgment of the Hon'ble Supreme Court in Goa Foundation v. Union of India and Others [(2014) 6 SCC 590]. Paragraphs 51 and 52 of the judgment read as follows:

"51. Apart from the powers of the Court to give a direction prohibiting mining activities up to a certain distance from the boundaries of national parks or wildlife sanctuaries, the Central Government has powers under Rule 5 of the Environment (Protection) Rules, 1986 to prohibit carrying on of mining operations in areas which are proximate to a wildlife sanctuary or a national park. Rule 5 of the Environment (Protection) Rules, 1986 is extracted hereinunder:

"5. Prohibitions and restrictions on the location of industries and the carrying on processes and operations in different areas.-- (1) The Central Government may take into consideration the following factors while prohibiting or restricting the location of industries and carrying on of processes and operations in different areas--

(i) Standards for quality of environment in its various aspects laid down for an area.

(ii) The maximum allowable limits of concentration of various environment pollutants (including noise) for an area.

(iii) The likely emission or discharge of environmental pollutants from an industry, process or operation proposed to be prohibited or restricted.

(iv) The topographic and climatic features of an area.

(v) The biological diversity of the area which, in the opinion of the Central Government, needs to be preserved.

(vi) Environmentally compatible land use.

(vii) Net adverse environmental impact likely to be caused by an WA NO. 1944 OF 2023 14 2025:KER:38575 industry, process or operation proposed to be prohibited or restricted.

(viii) Proximity to a protected area under the Ancient Monuments and Archaeological Sites and Remains Act, 1958 or a sanctuary, national park, game reserve or closed area notified as such under the Wild Life (Protection) Act, 1972, or places protected under any treaty, agreement or convention with any other country or countries or in pursuance of any decision made in any international conference, association or other body.

(ix) Proximity to human settlements.

(x) Any other factors as may be considered by the Central Government to be relevant to the protection of the environment in an area.

(2) While prohibiting or restricting the location of industries and carrying on of processes and operations in an area, the Central Government shall follow the procedure hereinafter laid down. (3)(a) Whenever it appears to the Central Government that it is expedient to impose prohibition or restrictions on the location of an industry or the carrying on of processes and operations in an area, it may by notification in the Official Gazette and in such other manner as the Central Government may deem necessary from time to time, give notice of its intention to do so.

(b) Every notification under clause (a) shall give a brief description of the area, the industries, operations, processes in that area about which such notification pertains and also specify the reasons for the imposition of prohibition or restrictions on the location of the industries and carrying on of processes or operations in that area.

(c) Any person interested in filing an objection against the imposition of prohibition or restriction on carrying on of processes or operations as notified under clause (a) may do so in writing to the Central Government within sixty days from the date of publication of the notification in the Official Gazette.

(d) The Central Government shall, within a period of one hundred and twenty days from the date of publication of the notification in the Official Gazette, consider all the objections received against such notification and WA NO. 1944 OF 2023 15 2025:KER:38575 may within one hundred and eighty days from such day of publication impose prohibition or restrictions on location of such industries and the carrying on of any process or operation in an area. (4) Notwithstanding anything contained in sub-rule (3), whenever it appears to the Central Government that it is in public interest to do so, it may dispense with the requirement of notice under clause (a) of sub-rule (3)."

52. Sub-rule (1) of Rule 5 lists the number of factors, which the Central Government has to take into consideration while prohibiting or restricting the carrying on of processes and operations in different areas. Sub-rule (2) of Rule 5 provides that before prohibiting the processes and operations in the area the Central Government has to follow the procedure laid down in sub- rule (3). The procedure in sub-rule (3) of Rule 5 of the Environment (Protection) Rules, 1986 includes giving notice of the intention of the Central Government to prohibit the carrying on of processes and operations in the reserved area, giving brief description of the area, the operations and processes in that area relating to which the notification pertains and also specifying the reasons for the imposition of the prohibition on carrying on of the processes or operations in that area, and an opportunity to the persons interested in filing an objection against the imposition of such prohibition on carrying on of processes or operations by the Central Government. These procedural checks have been made in Rule 5 because a notification issued by the Central Government prohibiting an operation or a process will have serious consequences on the rights of different persons. For example, persons who are carrying on the process or operation and those who are directly or indirectly employed in the process or the operation may be affected by the proposed prohibition of the process or the operation in the entire area. Therefore until the Central Government takes into account various factors mentioned in sub-rule (1), follows the procedure laid down in sub-rule (3) and issues a notification under Rule 5 prohibiting mining operations in a certain area, there can be no prohibition under law to carry on mining activity beyond 1 km of the boundaries of national parks or wildlife sanctuaries."

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17. By reading out paragraph 52, it was contended that the procedural checks as provided in the notification issued by the Central Government, for getting an operation or a process will have serious consequences on different persons and therefore, it is necessary for the Government to undertake the exercise by notifying the intention to declare the area of wetland by inviting the objections. Since the aforementioned exercise has not been taken as evident from the memo dated 25.09.2023, the land as per the latest revenue records is garden land and therefore cannot be treated as wetland to be covered under the provisions of the Wetland Rules 2010 much less 2017 Rules for denying the permit to the petitioner.

18. It was next contended that Rule 15A of the KMBR 1999 deals with only extension of permit, therefore the application submitted during the pendency of the writ petition under the orders of the court cannot be treated to be a fresh application for consideration for issuance of a fresh permit. It is an extension and renewal as under the erstwhile Panchayat Act. There is no such provision prescribed for issuing an NOC in a particular format specifying the conditions in tandem with WA NO. 1944 OF 2023 17 2025:KER:38575 the provisions of the KMBR 1999. The first NOC was issued by the Panchayat. The 'NOC' in the offline and ordinary dictionary would also mean 'a permit'. In support of the contention, also relied upon the ratio decidendi culled out in the judgment reported in Gulf Goans Hotels Company Limited and Another v. Union of India and Others [(2014) 10 SCC 673] to contend that convention as per the promulgation of the Rules cannot be treated to be a magna carta until and unless the exercise as required under the Rules is undertaken. In support of the contention, relied upon paragraphs 22, 25 and 26 of the aforesaid judgment which read as follows:

"22. It is also essential that what is claimed to be a law must be notified or made public in order to bind the citizen. In Harla v. State of Rajasthan [1951 SCC 936 : AIR 1951 SC 467 : 1952 Cri LJ 54] while dealing with the vires of the Jaipur Opium Act, which was enacted by a resolution passed by the Council of Ministers, though never published in the Gazette, this Court had observed:

(AIR p. 468, para 8) "8. ... Natural justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some recognisable way so that all men may know what it is, or, at the very least, there must be some special rule or regulation or customary channel by or through which such knowledge can be acquired with the exercise of due and reasonable diligence. The thought that a decision reached in WA NO. 1944 OF 2023 18 2025:KER:38575 the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives, liberty and property by the mere passing of a resolution without anything more, is abhorrent to civilised man.

23. xxxx xxxx xxxx

24. xxxx xxxx xxxx

25. If the guidelines relied upon by the Union of India in the present case fail to satisfy the essential and vital parameters/requirements of law as the trend of the above discussion would go to show, the same cannot be enforced to the prejudice of the appellants as has been done in the present case.

For the same reason, the issue raised with regard to the authority of the Union to enforce the guidelines on the coming into force of the provisions of the Environment (Protection) Act so as to bring into effect the impugned consequences, adverse to the appellants, will not require any consideration.

26. An argument had been offered by Shri Parikh, learned counsel appearing for the respondent, Goa Foundation, that while dealing with issues concerning ecology and environment, a strict view of environmental degradation, which Shri Parikh would contend has occurred in the present case, should be adopted having regard to the rights of a large number of citizens to enjoy a pristine and pollution free environment by virtue of Article 21 of the Constitution. We cannot appreciate the above view. Violation of Article 21 on account of alleged environmental violation cannot be subjectively and individually determined when parameters of permissible/impermissible conduct are required to be legislatively or statutorily determined under Sections 3 and 6 of the Environment (Protection) Act, 1986 which has been so done by bringing into force the Coastal Regulation Zone (CRZ) Notification w.e.f. 19-2-1991."

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18. Jal Mahal Resorts Private Limited v. K.P.Sharma and Others [(2014) 8 SCC 804] was cited to contend that the State of Rajasthan had leased out an artificial lake and mining of 300 Acres, out of which 2 Acres of the land were submerged in the water. A public litigation was filed challenging the aforementioned exercise undertaken by the Government and the matter reached the Supreme Court in the judgment cited supra and it was held in paragraph 148 that the land which is a part of the leasehold area barring 2 chunks of land and the rest of the land was not submerged in the water thus held to be not a wetland. Therefore the grant of the lease was upheld and the judgment of the Rajasthan High Court was set aside. The provisions of the Environment Act and the Rules framed thereunder would not be applicable as it is only confined to the commercial/industrial activities.

19. On the other hand, Mr.Prakash, learned counsel appearing on behalf of the additional impleaded respondent No.3 State Wetland Authority, Kerala submitted that the Ramsar Sites as provided under Rule 3 of the Wetland Rules 2010 as amended in 2017 do not require identification as WA NO. 1944 OF 2023 20 2025:KER:38575 prescribed in Sub-Rule 3 of Rule 6 of the Wetland Rules 2010. Therefore, the CRZ Notification 2011 would have a direct application. It was next contended that as per the memo dated 27.02.2024 filed before this Court on 02.03.2024, the distance of the area where the appellant/petitioner intends to raise the construction is 17.35 mtrs from the wetland boundary Map annexed as Annexure-I, and therefore the provisions of Sub- Rule (vi) of Rule 4 are squarely attracted.

20. In support of the aforesaid, relied upon paragraph 23 of the interim order of the Supreme Court in Balakrishnan M. K. and Others v. Union of India and Others [2017 KHC 4450] : [(2017) 7 SCC 805] to contend that already an exercise has been undertaken by mapping 2,01,503 wetlands by the Union of India in compliance with the provisions of Rule 4 of the Wetland Rules 2010 and further exercise has been undertaken and noticed by the Supreme Court. The aforementioned order has also been addressed to the High Court of Kerala and there is one Public Interest Litigation pending. He also relied upon the ratio to the judgment of the Supreme Court in Kapico Kerala Resorts Private Limited v.

WA NO. 1944 OF 2023 21 2025:KER:38575 State of Kerala and Others [(2020) 3 SCC 18] to contend that in the judgment under challenge before the Supreme Court in the aforementioned cited judgment, in Paragraph 12.7, this Court had held that the restriction and regulation on the right of the property through procedure established by law, cannot be taken to be a negation of the right guaranteed under Article 300-A, meaning thereby, if the land is brought in the purview of the provisions of the Rules and as well as the CRZ Notification, there would not be any violation to the rights guaranteed under Article 300-A of the Constitution of India.

21. Vide O.M. dated 08.03.2022, the order of the Supreme Court passed in the aforementioned matter was communicated to all the authorities for undertaking the exercise of identifying the wetland.

22. Mr.Athul Shaji, the learned counsel appearing on behalf of the Panchayat/2nd respondent controverted the aforementioned argument by submitting that the action of the Panchayat in rejecting the permit had been in tandem with the stand taken by the additional 3 rd respondent and as well as, as per the provisions of the Wetland Rules 2010. The distance WA NO. 1944 OF 2023 22 2025:KER:38575 from the wetland boundary map is 17.35 i.e., not less than 50 mtrs. as provided under Sub-Rule (vi) of Rule 4 of the Wetland Rules 2010, therefore, the permit sought by the appellant/petitioner for raising the residential construction was rightly declined.

23. We have heard the counsel for the parties and appraised the paper book.

24. The long and short of the reasoning assigned in the impugned judgment as well as the judgment rendered in the review petition had been that the first application submitted by the appellant/petitioner for obtaining a permit was of 28.12.2010 whereas the regulation 2010 came into force from 24.10.2010 (in fact came into force on 04.12.2010). Therefore, the permit was rightly rejected by the Panchayat. There had been always a series of litigation on promulgation of the notifications issued by the Ministry of Environment, Forests & Climate Change restricting the users of the land where the presence of the wild life, bird sanctuaries etc. within the prohibitory zones viz-a-viz the wetland exists. The Wetland Rules 2010 came into force for the first time with effect from WA NO. 1944 OF 2023 23 2025:KER:38575 04.12.2010. The definition of 'wetland' provided under Rule 2(g) is worth extraction. Similarly Rule 3, Rule 4 and Rule 6 are also required to be extracted. Rules 2(g), 3, 4 and 6 of the Wetland Rules 2010 read as follows:

"2. Definitions.--

     (1)     xxxx           xxxx             xxxx
     (a)     xxxx           xxxx             xxxx
     xxxx    xxxx              xxxx          xxxx
     xxxx    xxxx              xxxx          xxxx

(g) "wetland" means an area or of marsh, fen, peatland or water;

natural or artificial, permanent or temporary, with water that is static or flowing, fresh, brackish or salt, including areas of marine water, the depth of which at low tide does not exceed six metres and includes all inland waters such as lakes, reservoir, tanks, backwaters, lagoon, creeks, estuaries and manmade wetland and the zone of direct influence on wetlands that is to say the drainage area or catchment region of the wetlands as determined by the authority but does not include main river channels, paddy fields and the coastal wetland covered under the notification of the Government of India in the Ministry of Environment and Forest, S.O. No.114(E), dated the 19 th February, 1991 published in the Gazette of India, Extraordinary, Part II, Section 3, sub-section (ii) of dated the 20th February, 1991;

     (h)     xxxx       xxxx           xxxx
     (2)     xxxx       xxxx          xxxx

3. Protected wetlands.-- Based on the significance of the functions performed by the wetlands for overall well being of the WA NO. 1944 OF 2023 24 2025:KER:38575 people and for determining the extent and level of regulation, the following wetlands shall be regulated under these rules, namely:--

(i) wetlands categorised as Ramsar Wetlands of International Importance under the Ramsar Convention as specified in the Schedule;

(ii) wetlands in areas that are ecologically sensitive and important, such as, national parks, marine parks, sanctuaries, reserved forests, wildlife habitats, mangroves, corals, coral reefs, areas of outstanding natural beauty or historical or heritage areas and the areas rich in genetic diversity;

(iii) wetlands recognised as or lying within a UNESCO World Heritage Site;

(iv) high altitude wetlands or high altitude wetland complexes at or above an elevation of two thousand five hundred metres with an area equal to or greater than five hectares;

(v) wetlands or wetland complexes below an elevation of two thousand five hundred metres with an area equal to or greater than five hundred hectares;

(vi) any other wetland as so identified by the Authority and thereafter notified by the Central Government under the provisions of the Act for purposes of these rules.

4. Restrictions on activities within wetlands.--(1) The following activities within the wetlands shall be prohibited, namely:--

(i) reclamation of wetlands;

(ii) setting up of new industries and expansion of existing industries;

(iii) manufacture or handling or storage or disposal of hazardous substances covered under the Manufacture, Storage and Import of Hazardous Chemical Rules, 1989 notified vide S.O. No. 966(E), dated the 27th November, 1989 or the Rules for Manufacture, Use, Import, Export and Storage of Hazardous Micro-organisms/ WA NO. 1944 OF 2023 25 2025:KER:38575 Genetically engineered organisms or cells notified vide GSR No. 1037(E), dated the 5th December, 1989 or the Hazardous Wastes (Management, Handling and Transboundary Movement) Rules, 2008 notified vide S.O. No. 2265(E), dated the 24 th September, 2008;

(iv) solid waste dumping: Provided that the existing practices, if any, existed before the commencement of these rules shall be phased out within a period not exceeding six months from the date of commencement of these rules;

(v) discharge of untreated wastes and effluents from industries, cities or towns and other human settlements: Provided that the practices, if any, existed before the commencement of these rules shall be phased out within a period not exceeding one year from the date of commencement of these rules;

(vi) any construction of a permanent nature except for boat jetties within fifty metres from the mean high flood level observed in the past ten years calculated from the date of commencement of these rules;

(vii) any other activity likely to have an adverse impact on the ecosystem of the wetland to be specified in writing by the Authority constituted in accordance with these rules. (2) The following activities shall not be undertaken without the prior approval of the State Government within the wetlands, namely:--

(i) withdrawal of water or the impoundment, diversion or interruption of water sources within the local catchment area of the wetland ecosystem;

(ii) harvesting of living and non-living resources;

(iii) grazing to the level that the basic nature and character of the biotic community is not adversely affected;

(iv) treated effluent discharges from industries, cities or towns, WA NO. 1944 OF 2023 26 2025:KER:38575 human settlements and agricultural fields falling within the limits laid down by the Central Pollution Control Board or the State Pollution Control Committee, as the case may be;

(v) plying of motorized boat, if it is not detrimental to the nature and character of the biotic community;

(vi) dredging, only if the wetland is impacted by siltation;

(vii) construction of boat jetties;

(viii) activities within the zone of influence, as per the definition of wetlands, that may directly affect the ecological character of the wetland;

(ix) facilities required for temporary use, such as pontoon bridges, that do not affect the ecological character of the wetland;

(x) aquaculture, agriculture and horticulture activities within the wetland;

(xi) repair of existing buildings or infrastructure including reconstruction activities;

(xii) any other activity to be identified by the Authority. (3) Notwithstanding anything in sub-rule (1) or sub-rule (2), the Central Government may permit any of the prohibited activities or non-wetland use in the protected wetland on the recommendation of the Authority.

(4) The State Government shall ensure that a detailed Environment Impact Assessment is carried out in accordance with the procedures specified in the notification of the Government of India in the Ministry of Environment and Forests, S.O. No. 1533(E), dated the September 14th, 2006 as amended from time-to-time. (5) No wetland shall be converted to non-wetland use unless the Central Government is satisfied on the recommendation of the Authority that it is expedient in the public interest and reasons justifying the decision are recorded.

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     5.     xxx         xxxx          xxx

6. Process for identification of wetlands under different categories.--

(1) Wetlands covered under item (i) of Rule 3 specified under Schedule shall be the wetland to be regulated under these rules. (2) The State Government shall prepare, within a period of one year from the commencement of these rules, 'Brief Document' identifying and classifying the wetlands within their respective territories in accordance with the criteria specified under Rule 3 and submit the same to Authority.

(3) The 'Brief Document' of each wetland for identification shall comprise of following information, namely:--

(i) broad geographic delineation of the wetland;

(ii) its zone of influence along with a map (accurate and to scale);

(iii) the size of the wetland;

(iv) account of pre-existing rights and privileges, consistent or not consistent with the ecological health of the wetland.

(4) The Authority, shall on receipt of the 'Brief document' under sub-

rule (2), if consider it necessary refer in consultation with the State Government to a research institute or university having relevant multi-disciplinary expertise related to wetlands, to conduct a comprehensive survey of the wetland within a period of thirty days:

Provided that the institute or university to which the matter has been referred under sub-rule (4) shall submit a report within next ninety days from the date of such reference to Authority, which WA NO. 1944 OF 2023 28 2025:KER:38575 shall contain information with respect to the criteria specified under rule 3.

(5) The Authority shall, thereafter, arrive at a decision in consultation with the State Government, on the proposal, within a period of ninety days from the date of receipt of the report under sub-rule (4).

(6) The Central Government shall on the receipt of the recommendation of the Authority notify the area of wetlands as recommended by the Authority for public information inviting objections and suggestions from the general public likely to be affected to make representation to the Central Government within a period of sixty days.

(7) The Authority shall consider all the representations which the Central Government may receive under sub-rule (6) and submit its recommendation on such representations to Central Government within a period of sixty days for final notification.

(8) The Central Government shall on receipt of the recommendations of the Authority under sub-rule (7) issue a final notification notifying therein the area of the wetland its category or classification to be regulated under these rules and display the said notification in public places in English and vernacular languages.

(9) The Authority may, suo moto or on application made to it, review any decision under these rules or issue direction for inclusion of wetland under these rules."

25. No doubt as per the definition of the wetland, there has to be an identification of land the depth of which at low WA NO. 1944 OF 2023 29 2025:KER:38575 tide does not exceed 6 mtrs but would not be included in main river channels, paddy fields, coastal wetland covered under the notification of the Government of India.

26. Protected wetlands including the Ramsar Convention have been referred to under Rule 3. However, the restrictions in Rule 4 as noticed above, particularly (vi) thereof, prohibits the construction of permanent nature except for boat jetties within 50 mtrs from the mean High Flood Level.

27. The mean High Flood Level is conspicuously absent in any of the stand taken by the respondent No.3 and as well as respondent No.2. The document dated 26.02.2024 relied by the State Wetland Authority is worth extraction, the same reads as under:

"State Wetland Authority Kerala (SWAK) th 4 Floor, KSRTC Bus Terminal Complex, Thampancor, Thiruvananthapuram-695001 Ph: +91471-2326264(Off): (Dir. Envt & Climate Change) E-mail: [email protected]. [email protected] SWAK/A1/8/2024 26.02.2024 W.A.No.1944/2023-filed by Ms. Bina Mathew High Court of Kerala, Ernakulam The geocoordinates (lat- 9.569143 and long. 76416248) as provided by 2nd respondent, Secretary, Kumarakom Grama Panchayat is just 17.35 m from the wetland boundary (Map annexed). As per Rule 4 of Wellands (Conservation and Management) Rules, 2017, any construction of a WA NO. 1944 OF 2023 30 2025:KER:38575 permanent nature except for jetties within 50 metres from mean high flood level observed in the past 10 years calculated from the date of commencement of these rules is restricted.

Sd/-

Member Secretary Annexure 1: Google earth image showing the distance of the location provided by the respondent from the wetland boundary.

SUNEEL PAMIDI IFS Member Secretary State Wetland Authority Kerala Thiruvananthapuram-01. "

28. On perusal of the above, it is evident that the reason for rejecting the permit of the appellant/petitioner was that it is just 17.35mtrs from the wetland boundary map.

30. The map annexed as Annexure 1 do not disclose the landmark of mean high flood level for the purpose of measuring or calculating the distance of 50 mtrs of construction except by granting exemption for boat jetties, whereas the distance of 17.35 mtrs as mentioned above has been from the geo- coordinates prepared by the Grama Panchayat of Kumarakom.

31. It is now settled law that by causing a notification by promulgation of a Rule such as the Wetland Rules 2010, the same would have an applicability and force, had there not been a provision in the nature like Sub-Rule 3 of Rule 6 of the WA NO. 1944 OF 2023 31 2025:KER:38575 Wetland Rules 2010, which empowered the State Authorities from the promulgation of the Rules within one year from the commencement of these rules to prepare brief documents identifying and classifying the wetlands within their respective territories in accordance with the criteria specified under Sub Rule 3. These documents would include certain acts as extracted above. However, the aforementioned acts have not been taken as evident from the contents of the letter dated 25.09.2023, the same reads hereunder:

"F.No.J-22012/36/2020-CS(W) Government of India Ministry of Environment, Forests & Climate Change (Wetland Division) Indira Pryavaran Bhawan, Aliganj. Jor Bagh Road, New Delhi-110003 Date 25.09.2023 Office Memorandum Subject: Notification of Wetlands under provisions of Wetlands (Conservation and Management Rules) 2017.

Consequent to notification of Wetlands (Conservation and Management) Rules 2017 (Rule 2017), Ministry has issued guidelines for implementation of the provisions under the said rules including Rule (7).

The notification of the wetlands shall be based on the ground truthing of the information provided in the Atlas-2021 published by Space Applications Centre (SAC)- ISRO. Further, provision of Rules 2017 WA NO. 1944 OF 2023 32 2025:KER:38575 stipulates that the Brief Documents for all notified wetlands and Ramsar sites must be prepared within one year from the date of notification of the above referred rules.

Considering the enormous numbers of wetland suggested in the said Atlas, all States/UTs were requested to expedite the process of preparation of brief documents and its notification. Secretary, MoEFCC vide DO. по 10.08.2021 (copy enclosed) has also emphasized to expedite the process of preparation of brief documents and consequent notification of all identified wetlands for compliance of Hon'ble NGT order in the matter O.A. 351/2019 dt. 25.11.2021.

To aggregate the work carried out by States/UTs in this regard, MoEFCC has launched a webportal (www.indianwetlands.in) wherein wetland Authorities can upload the work carried out in this regard.

In view of above, it is requested that work completed with regard to inventory of wetlands including their brief documents shall be uploaded on the web portal on priority. Compliance report on the above referred Hon'ble NGT order is to be submitted by MoEF&CC on regular basis.

This issue with the approval of competent authority (Sundeep) Scientist F To All Member Secretaries of Wetlands Authorities of States/Union Territories."

32. On perusal of the aforementioned, it is evident that there has not been even a fringe of an exercise for preparation of brief documents for notifying the 'wetlands including Ramsar sites'. Thus the argument of Mr.Prakash that the wetlands defined under Sub Rule 3 i.e., ramsar site does not merit acceptance, hereby rejected.

WA NO. 1944 OF 2023 33 2025:KER:38575

33. The contention of Mr.Mathew with regard to the exercise to be undertaken under Sub Rule 3 of Rule 6 is in tandem with the ratio decidendi culled out by the Supreme Court in paragraphs 51 and 52 of the Goa Foundation supra.

34. On perusal of the aforementioned ratio, it is evident that as and when any notification is published, there has to be an exercise for inviting the objection from the persons interested for achieving the purpose and the object, by giving an opportunity to the affected parties. However no such exercise in this area has been undertaken. Even otherwise, as per the geographical area of the Kumarakom, there are many houses of the fishermen in and around of the back-waters and even adjacent to the various resorts and we are on the impression that they have also been erected under the permission issued by the Grama Panchayat before or even after the promulgation of the Rules. The said material has not been placed on record, therefore we would refrain from delving further. The point to be pondered is, the Panchayat applied the applicability of the Wetland Rules 2010 though came into force on 04.12.2010 only with effect from 16.01.2014. The contents WA NO. 1944 OF 2023 34 2025:KER:38575 of the letter dated 16.01.2014 is worth extraction, the same reads as follows:

"KERALA COASTAL ZONE MANAGEMENT AUTHORITY Νο100/A3/14/KCZMA/S&TD Science & Technology (A) Dept. Sasthra Bhavan, Pattom.

Thiruvananthapuram, Dated: 16-01-2014.

From The Member Secretary, KCZMA.

To The Secretary, Kumarakam Grama Panchayat Sir. Sub :- S&T Department - KCZMA CRZ status with respect to Kumarakam Grama Panchayat - Clarification furnishing of- Reg.

I am to furnish herewith following clarification regarding the CRZ status with respect to the Kumarakom Grama Panchayath as per the provision of CRZ Notification for information and necessary action.

1. The validity of the permits issued prior to the CRZ Notification 2011 (i.e. 6th January, 2011) will not attract the provisions therein for the Kumarakom Panchayat.

2. Re-construction of the existing authorized structures can be permitted by KCZMA subject to the conditions that the plinth area of the existing structure shall not be increased; the existing FSI/FAR and density shall not be increase; the existing FSI/FAR and density shall also not be increased.

3. The guidelines regarding the provisions of setback distance for Critically Vulnerable Coastal Area (CVCA) are yet to be issued by Ministry of Environment and Forest, Government of India. Hence, the provisions of Wetland Rules 2010 shall be applied wherein there shall not be any new construction within 50 meters from the High Flood Line. Towards this, clearance shall be obtained from Environment Department.

WA NO. 1944 OF 2023 35 2025:KER:38575

4. Since the Vembanad Lake around Kumarakom has embankment in most of the places, the HTL and LTL coincides along the embankment/bund. In cases where embankments do not exist, the HTL shall be fixed based on the natural/geomorphic signatures.

Yours faithfully, (V A Mohanlal) Joint Secretary to Government, For Member Secretary, KCZMA approved for issue.

Sd/-

SECTION OFFICER.

Copy to:

1. Additional Secretary to the Chief Secretary

2. P.A to the Principal Secretary, LSGD,

3. P.A to the Chairman, KCZMA

4. PA to the Member Secretary, KCZMA"

34. The stand of respondent No.3 with regard to the coverage of the area under CRZ Notification i.e., Coastal Regulation Zone Notification 2011 would have no force for the reason that it came into force only with effect from 06.01.2011 and will not be applicable to any valid permit issued like the one in the present case, which was issued in 28.12.2010. Intriguingly Paragraph 3 of the aforementioned letter also empowers the issuance of a guidelines for declaring the Critically Vulnerable Coastal Area (CVCA). The CVCA had been WA NO. 1944 OF 2023 36 2025:KER:38575 also a matter of ponderance in the judgment cited by respondent No.3 in Kapico Kerala Resorts Private Limited (Supra) wherein in Paragraph 39, the Supreme Court had an occasion to draw a distinction between the areas to be declared as CVCA in CRZ Notification 2011 viz-a-viz 2019 notification. The same reads as under:

"39. Therefore, it is not as though the reduction of the distance parameter to 20 m from HTL is intended to confer a benefit upon persons like the appellants. Moreover, even the CRZ 2019 Notification places Vembanad Lake in the category of CVCA in Para 3.1 but with a different reach. There is a world of difference between the 2011 and 2019 Notifications, insofar as CVCAs are concerned. This can be summarised as follows:

39.1. In Para 8(V)(4) of the CRZ 2011 Notification, areas to be declared as CVCAs were identified but Para 8(V)(4)(b) mandated that those identified areas can be declared as CVCAs through a process of consultation. Para 8(V)(4)(c) required guidelines to be developed and notified by MoEF in consultation with the stakeholders, for identifying, planning, notifying and implementing CVCAs. Integrated management plans were also required to be prepared for CVCAs under Para 8(V)(4)(d) of the 2011 Notification.

39.2. But under Para 3.0 of the CRZ 2019 Notification, certain coastal areas are accorded special consideration for the purpose of protecting the critical coastal environment and the difficulties WA NO. 1944 OF 2023 37 2025:KER:38575 faced by local communities. Para 3.1 identifies the critically vulnerable coastal areas. They include Vembanad Lake. While the words contained in Para 8(V)(4)(b) of the 2011 Notification are: "...

shall be declared as CVCA through a process of consultation with the fisher and other communities inhabiting the area ...", the words contained in Para 3.1 of the 2019 Notification are "... shall be treated as CVCA and managed with the involvement of coastal communities including fisher folk"."

35. On perusal of the aforementioned paragraph, it is evident that in both the notifications an exercise for declaring the CVCA has to be undertaken by involvement of the coastal communities including the fisher folk. However the reply of respondent No.3 and as well as the Panchayat is bereft of any such exercise undertaken. Therefore, the finding of the Single Bench that protecting the area from the impact of the environment cannot be a ground for violation of the Article 300-A, would not have any force. Be that as it may. We cannot remain unmindful of the fact that the nature and character of the land as it is today is still a garden land. The English translation of the documents placed on record is extracted hereunder:

 WA NO. 1944 OF 2023                       38                  2025:KER:38575




                       "GOVERNMENT OF KERALA

                     LAND REVENUE DEPARTMENT

                                      RECEIPT

     District: Kottayam                    Receipt

     No.KL05031303873/2025

     Taluk : Kottyam                            Village: Kumarakom

RECEIPT FOR PAYING TAX UNDER THANDAPER NUMBER 5661 Item Sub- Amoun Period Description Item t Basic Land Current Rs.360 2025- Block:012, Thandaper No.5661, Tax Year 2026 Details of Pattayam Holders

1)Bina Mathew, W/o.Philip Mathew, Manorama House, Tevara, Elamkulam Village.

Re.Sy. & Sub No., Extent, Nature

1)328/34, 2Ares, 30sq.m.,Purayidam

2)328/35, 2Ares, 66sq.m., Purayidam

3)328/4-1,20Ares,39sq.m.,Nilam

4)328/33,2Ares,9sq.m.,Purayidam Total Extent:27 Ares, 44sq.m.

     Agricultural   current   Rs.14    2025-
     Workers        year               2026
     Welfare
     Fund

     Total Amount             Rs.374

As per the above, Rs.374/- (Rupees Three Seventy Four Only) has been received and is placed on the accounts of the village on this 20th day of May, 2025.

Place : Kumarakom Date : 20.05.2025.

 WA NO. 1944 OF 2023                       39                      2025:KER:38575




                      GOVERNMENT OF KERALA
                   KUMARAKOM VILLAGE OFFICE
                      POSSESSION CERTIFICATE
     No.24842117
     Date:23.05.2017



      Name of Person to whom                    BINA MATHEW
      certificate is issued

      Name of Guardian                          PHILIP MATHEW

      Address                                   MANORAMA, 53/1420,
                                                THEVARA

      Post Office with PIN Code                 THEVARA, 682013

      District                                  Ernakulam

Certified that land shown in the schedule below are in possession and enjoyment of the person.



     Taluk/      Old Survey   Re-Survey   Re-Survey   Extend in     Thandappe   Class of
     Village     No.          Block       No.         Ha            r           Land

     Kottayam/                   12       328/35-1      0.0266        5661      purayidam
     Kumarakom

     Kottayam/                   12        328/33       0.0209        5661      purayidam
     Kumarakom

     Kottayam/                   12        328/34       0.0230        5661      purayidam
     Kumarakom

     Kottayam/                   12        328/4-1      0.2039        5661        nilam
     Kumarakom




      Certificate Issued Date                   23.05.2017

      Designation of the Issuing officer        VILLAGE OFFICER

      Purpose for which the certificate         SBI Thevara
 WA NO. 1944 OF 2023                          40                   2025:KER:38575




      is issued for

This certificate is issued based on the details given in the application, local enquiry, facts and records produced.

Security Code:XL09D Signature valid Digitally signed by SUNIL T Date:2017.05.23 : 16:41:06 IST"

36. If at all any exercise as per the contention of the respondents and as per the provisions of the Wetland Rules 2010 or much less the declaration of the Critical Vulnerable Zone had undertaken, there would have been a reflection of the same in the revenue records. The revenue record is of the year 2025. In such circumstances, once there is no entry in the revenue record reflecting the nature and character of the land to be wetland, it has to be treated as a garden land and this aspect has never been pointed out/noticed by the Panchayat in any of the orders under challenge before the authorities rejecting the issuance of building permit.

37. Even the learned Single Bench had also not been able to refer all these facts, the one we have noted much less the OMs and other aspects. Accordingly, we set aside the judgments of the Single Bench and as well as the order of review and allow the writ petition and issue a direction to the WA NO. 1944 OF 2023 41 2025:KER:38575 Panchayat to issue the permit in terms of the observation recorded hereinabove, within the period of two months from the receipt of the certified copy of the judgment subject to fulfillment of the condition by depositing the statutory fees.

Sd/-

AMIT RAWAL, JUDGE Sd/-

MURALEE KRISHNA S., JUDGE DSV/-

 WA NO. 1944 OF 2023              42              2025:KER:38575




                      APPENDIX OF WA 1944/2023

RESPONDENT ANNEXURES

Annexure R2 (a)        True   copy   of   the   Accordingly   geo

coordinates of the subject matter property has been obtained and a report in this regard ANNEXURE MAP MENTIONED IN THE REPORT PETITIONER ANNEXURES Annexure A TRUE COPY OF THE TAX RECEIPT OF THE PETITIONER BEARING NO. KL05031303873/2025 DATED 20.05.2025 ALONG WITH A TRANSLATED COPY.

Annexure B TRUE COPY OF THE POSSESSION CERTIFICATE OF THE PETITIONER BEARING NO. 24842117 DATED 23.05.2017.

Annexure C A true copy of the correct translation of the letter issued by the Secretary of the 2nd Respondent Panchayath dated 30.11.2021

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