Anoop Paul vs State Of Kerala
2021 Latest Caselaw 3902 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

           THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

    WEDNESDAY, THE 03RD DAY OF FEBRUARY 2021 / 14TH MAGHA,1942

                      WP(C).No.11123 OF 2020(M)


PETITIONERS:

      1        ANOOP PAUL,
               S/O.PAUL VARGHESE, HOUSE NO.18, 2ND CROSS,
               MALLAPPALAYOUT, BABUSAPALYA, KALYAN NAGR POST,
               BANGALORE-560 043

      2        MRS. LISHA THOMAS,
               S/O.THOMAS, HOUSE NO.18, 2ND CROSS, MALLAPPALAYOUT,
               BABUSAPALYA, KALYAN NAGR POST, BANGALORE-560 043

               BY ADVS.
               SRI.BENOY K.KADAVAN
               SRI.SHYLESH KRISHNAN
               KUM.K.S.SREEKALA

RESPONDENTS:

      1        STATE OF KERALA,
               REP BY ITS SECRETARY TO GOVERNMENT, LOCAL SELF
               GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT,
               THIRUVANANTHAPURAM-695 001

      2        NEDUMBASSERY GRAMA PANCHAYATH
               KARIYAD, MEKKAD P.O., ERNAKULAM-683 589, REPRESENTED
               BY ITS SECRETARY

               R2 BY SRI.GEORGE SEBASTIAN,SC
               R1 BY ADV.K.J.MANURAJ, GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD            ON
03.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.11123 OF 2020(M)

                                       2




                       W.P.(C) No.11123 of 2020
                    -----------------------------------------


                              JUDGMENT

Petitioners have purchased an extent of land measuring

2.02 Ares within the limits of the second respondent Panchayat for the

purpose of putting up a residential building. After the purchase of the

land, the petitioners have applied to the second respondent for

building permit. The application preferred by the petitioners for

building permit has been rejected by the Secretary of the Panchayat in

terms of Ext.P3 communication stating that the plot purchased by the

petitioners is portion of a larger extent of land divided without

obtaining development permit from the Panchayat. Ext.P3 is under

challenge in the writ petition.

2. A statement has been filed on behalf of the second

respondent reiterating the stand in Ext.P3.

3. Heard the learned counsel for the petitioners and the

learned Standing Counsel for the second respondent.

4. Placing reliance on the decision of this court in

Nafeesa and Another v. Chavakkad Municipality and Others,

2018 (3) KHC 473, the learned counsel for the petitioners contended

that in so far as no activity which attracts 'development of land' WP(C).No.11123 OF 2020(M)

defined in the Kerala Panchayat Building Rules, 2019 (the Rules) is

involved in the construction proposed by the petitioners, the

Panchayat cannot refuse to grant the building permit applied for by the

petitioners.

5. Per contra, the learned counsel for the second

respondent submitted that Rule 11(i) of the Rules confers authority on

the Secretary of the panchayat to reject the application for building

permit, if the use of the site of the proposed building contravenes any

of the provisions of the Rules. It was pointed out by the counsel that

Rule 4 of the Rules which is plot specific mandates that development

permit shall be obtained for subdivision of the land. It was also pointed

out that in so far as the predecessor of the petitioners did not obtain

development permit for sub division of the land, the use of the site of

the proposed building would contravene Rule 4 of the Rules. The

decision of the Secretary of the panchayat in rejecting application for

building permit is therefore in order, submits the counsel.

6. It is seen that in Nafeesa, in an almost identical case,

this court held that a sale simpliciter, of a smaller portion of property,

from out of a larger extent of property owned by the vendor, will not

attract the definition of 'development of land' for the purposes of the

Rules, thereby necessitating the obtaining of a development permit. It

was also held by this court in the said case that unless in the hands of WP(C).No.11123 OF 2020(M)

the purchaser of the smaller portion of land, an activity which attracts

the definition of 'development of land', as noticed above, is involved,

there would be no requirement for a person purchasing a plot of land

for putting up a construction therein, to obtain a development permit

prior to applying for a building permit for the said construction. The

relevant portion of the judgment reads thus:

"In any event, inasmuch as in the instant cases, it is not established that the vendors of the property had resorted to a sub-division of the entire plot owned by them with a view to developing the said plot in their hands, prior to a sale of a small portion of that property to the petitioners herein, I am of the view that a sale simpliciter, of a smaller portion of property, from out of a larger extent of property owned by the vendor, will not attract the definition of 'development of land' for the purposes of the Rules, thereby necessitating the obtaining of a development permit. I note in this connection that by the judgment dated 10/04/2013 of this Court in W.P.(C). No. 20204/2012 and connected cases, a similar view, albeit without specific reference to the provisions, has been taken by another learned Single Judge while deciding an issue as to whether or not a development permit was required when garden lands were sub-divided by the vendor into small plots for sale to different individuals. I am of the view that unless in the hands of the purchaser of the smaller portion of land, an activity which attracts the definition of 'development of land', as noticed above, is involved, there would be no requirement for a person purchasing a plot of land for putting up a construction therein, to obtain a development permit prior to applying for a building permit for the said construction. I therefore allow these writ petitions, by quashing the orders impugned, and directing the respondent Municipality/Panchayat to consider the application for building permit submitted by the petitioners without insisting on a development permit. The Municipality/Panchayat shall consider and pass orders on the application for building permit, on merits, and in accordance with law, within a period of three weeks from the date of receipt of a copy of this judgment, after hearing the WP(C).No.11123 OF 2020(M)

petitioners."

The Panchayat has no case that any activity which attracts the

definition of 'development of land' defined in the Rules is involved in

the construction proposed by the petitioners.

In the circumstances, the writ petition is allowed, Ext.P3 order is

quashed and the second respondent is directed to grant the building

permit sought for by the petitioners, if the application of the

petitioners is otherwise in order. This shall be done within three weeks.

Sd/-

                                            P.B.SURESH KUMAR

Mn                                                JUDGE
 WP(C).No.11123 OF 2020(M)





                                APPENDIX
PETITIONER'S EXHIBITS:

EXHIBIT P1                  TRUE COPY OF THE SALE DEED DATED 29.08.2019
                            WITH NO.2560/2019 OF CHENGAMANAD SUB
                            REGISTRAR OFFICE

EXHIBIT P2                  TRUE COPY OF THE TAX RECEIPT WITH THANDAPER
                            NO.18330 ISSUED BY NEDUMBASSERY VILLAGE

EXHIBIT P3                  LETTER DATED 05.02.2020 ISSUED BY 2ND
                            RESPONDENT HAS REJECTING THE APPLICATION
                            FOR BUILDING PERMIT OF PETITIONERS
//TRUE COPY//
PA TO JUDGE