Radhakrishnan K.B vs State Of Kerala
2021 Latest Caselaw 20602 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
     TUESDAY, THE 5TH DAY OF OCTOBER 2021 / 13TH ASWINA, 1943
                        WP(C) NO. 18918 OF 2021
PETITIONER:

          RADHAKRISHNAN K.B
          AGED 60 YEARS
          S/O.BALAN NAIR, KALLAT HOUSE, 14/523,
          KUTOOR, THRISSUR-680 013

          BY ADV RAJIT


RESPONDENTS:

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

    2     KOLAZHY GRAM APANCHAYAT,
          THIROOR P.O., MG KAVU, THRISSUR-680 581

    3     THE SECRETARY,
          KOLAZHY GRAMA PANCHAYAT, THIROOR P.O., M.G KAVU,
          THRISSUR-680 581

          SRI.RIYAL DEVASSY, GP
          SRI.SANTHOSH P.PODUVAL, SC


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
05.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 18918 OF 2021

                                          2




                                  JUDGMENT

This writ petition is filed seeking the following prayers:

"(i) Call for the records leading upto Ext.P6 and issue a writ of certiorari or any other appropriate writ order or direction quashing Ext.P4 and Ext.P6 orders issued by the 3 rd respondent to the extent it requires the petitioner to produce the development permit with the regard to the property of the petitioner.

(ii) Issue a writ of mandamus or any other appropriate writ order or direction commanding the 3 rd respondent to immediately pass positive orders in the application filed by the petitioner for issuance of building permit in the property consisting total of 2.03 Ares of land comprised in Re-Survey No.3/3 and Re-Survey No.3/6 of Kuttore Village of Kolazhy Grama Panchayat which was purchased by the petitioner as per the Sale deed no.2454/2013 of SRO Ayyanthole within such time as directed by this Hon'ble Court.

(iii) Declare that the petitioners are not required to produce development permit for consideration of the application for building permit."

2. Heard the learned counsel for the petitioner, the learned

Government Pleader as well as the learned Standing Counsel appearing

for the respondent Panchayat.

3. It is submitted by the learned counsel for the petitioner that the

petitioner is the owner in possession of 2.03 Ares of land in Re-survey WP(C) NO. 18918 OF 2021

No.3/3 and Re-Survey No.3/6 in Kuttore Village coming under the

jurisdiction of the respondent Panchayat. It is submitted that the

petitioner had submitted an application for a building permit on

07.06.2019. However, the respondents refused to consider the same on

the ground that the plot is a part of a larger extent of property and that

a development permit is required for the consideration of the

application for building permit.

4. The learned counsel for the petitioner places reliance on a decision

of this Court in Nafeesa v. Chavakkad Municipality [2018 (3) KLT 1]

wherein this Court had considered the issue in extenso and had held that

unless activity which attracts the definition of 'development of land' is

made by the purchaser of a small extent of land, the applications for

building permits cannot be rejected on the ground that the original

owner of the property or the developer had not obtained development

permit in respect of the entire property. The learned counsel for the

petitioner, therefore, seeks consideration of the application for building

permit without insisting on a development permit.

5. A statement has been placed on record by the respondents. It is

submitted at paragraph 2 as follows :-

WP(C) NO. 18918 OF 2021

"2. The development of land has been defined in Section 2(ace) of Kerala Panchayat Building Rules, 2019 which includes sub- division of land for residential plots including layout of internal streets. Rule 4 of the above said rules insist that no person shall develop any parcel of land without obtaining a development permit. Rule 5 lays down the matters that should be taken note of while considering the application for development permit. The said provisions are mandatory in nature. Rule 31 contains the requirements to be satisfied for grant of development permit. Rule 31(1)(x) was amended as per G.O.P.No.56/2020/LSGD dated 24/9/20 whereby it is made clear that only in case of layout for subdivision of land where the number of residential plot is less than 10 and plot area less than 0.5 hectare, approval from the Secretary is not required. In all other cases a development permit is required. The decision of this Hon'ble Court in Nafeesa v. Chavakkad Municipality referred to in the writ petition does not apply to the facts of this case since it is clear that the plot of the petitioner is one among the sub-divided plot coming under a development activity."

It is further stated that the developers are duty bound to remit

specified fee and to obtain development permits before developing

properties and selling them as small plots.

6. I have considered the contentions advanced and also taken note of

the findings of this Court in the reported judgment in Nafeesa v.

Chavakkad Municipality as well as in Ext.P5 judgment. The petitioner is

admittedly the owner of small plot of land sold to him. It is evident that

there has been no activity which can be defined as 'development of land'

at the hands of the petitioner after purchasing the property. The failure WP(C) NO. 18918 OF 2021

of the developer of the land to obtain a development permit or pay fees

to the Panchayat cannot be a reason to contend that the petitioner is

required to obtain a development permit for the purpose of

consideration of his application for building permit. In the above view of

the matter, I am of the opinion that the findings of this Court in Nafeesa

v. Chavakkad Municipality apply with all force to this case. The

petitioner, being purchaser of the small extent of land, cannot be

required to submit a development permit in order to consider his

application for building permit.

In the above view of the matter, the writ petition is liable to be

allowed. There will, accordingly, be a direction to the 3 rd respondent to

take up the application submitted by the petitioner for building permit

without insisting on the production of development permit, at the

earliest, at any rate, within one month from the date of receipt of a copy

of this judgment.

Sd/-

ANU SIVARAMAN JUDGE NP WP(C) NO. 18918 OF 2021

APPENDIX OF WP(C) 18918/2021

PETITIONER'S/S EXHIBITS:

Exhibit P1 TRUE COPY OF THE SALE DEED NO.2454/2013 OF SRO AYYANTHOLE

Exhibit P2 TRUE COPY OF THE TAX RECEIPT DATED 25.05.2019

Exhibit P3 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 11.12.2019

Exhibit P4 TRUE COPY OF THE LETTER DATED 22.07.2019 ISSUED BY THE 3RD RESPONDENT

Exhibit P5 A TRUE COPY OF THE JUDGMENT DATED 05.02.2020 IN WP C NO.1379/2020 OF THIS HON'BLE HIGH COURT

Exhibit P6 A TRUE COPY OF THE ORDER DATED 08.02.2021 ISSUED BY THE RESPONDENT KOLAZHY GRAMA PANCHAYATH

Exhibit P7 A TRUE COPY OF THE ORDER DATED 24.06.2021 IN CON.CASE (C) NO.814/2021 OF THIS HON'BLE HIGH COURT

RESPONDENT'S/S EXHIBITS: NIL