Vipin vs Kolazhy Grama Panchayat
2021 Latest Caselaw 19360 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
           THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
  THURSDAY, THE 16TH DAY OF SEPTEMBER 2021 / 25TH BHADRA, 1943
                    WP(C) NO. 16349 OF 2021
PETITIONERS :-

    1     VIPIN, AGED 31 YEARS
          S/O. AMBIKA, CHOLAYIL HOUSE, THALAVANIKKARA,
          NENMANIKKARA VILLAGE, KONIKKARA P.O.,
          THRISSUR DISTRICT-680 306.

    2     RAJI, AGED 26 YEARS
          W/O. VIPIN, CHOLAYIL HOUSE, THALAVANIKKARA,
          KONIKKARA P.O., THRISSUR DISTRICT-680 306.

          BY ADVS.
          ANWIN JOHN ANTONY
          K.R.MONISHA


RESPONDENTS :-

    1     KOLAZHY GRAMA PANCHAYAT,
          REPRESENTED BY ITS SECRETARY, KOLAZHI,
          MULANGUNNATHUKAVU P.O., THRISSUR DISTRICT-680 581.

    2     THE SECRETARY,
          KOLAZHY GRAMA PANCHAYAT, KOLAZHI,
          MULANGUNNATHUKAVU P.O., THRISSUR DISTRICT-680 581.

          BY ADV SRI. SANTHOSH P.PODUVAL, SC


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
16.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 16349 OF 2021

                                       -: 2 :-


                                   JUDGMENT

Dated this the 16th day of September, 2021

This writ petition is filed seeking the following reliefs :-

"i. issue a writ of certiorari or other appropriate writs, orders or directions to call for the records leading upto Exhibit P3 and to quash the same.

ii. issue a writ of mandamus or other appropriate writs, order or direction commanding the 2nd respondent to consider the application for building permit dated 06.01.2021 submitted by the petitioners without insisting for a development permit as expeditiously as possible at any rate within a time frame to be fixed by this Hon'ble Court.

iii. issue a writ of mandamus or any other writ, order or direction commanding the 2nd respondent to grant building permit to the petitioner as applied for."

2. Heard the learned counsel for the petitioners and the

learned Standing Counsel appearing for the respondent Panchayat.

3. It is submitted by the learned counsel for the petitioners

that the petitioners are the owners in possession of 2.02 Ares of land

in Re-survey No.61/9 in Pottor Village, Thrissur Taluk coming under

the jurisdiction of the respondent Panchayat. It is submitted that the

petitioners had submitted an application for a building permit on

6.1.2021. However, the respondents are refused to consider the WP(C) NO. 16349 OF 2021

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. The learned

counsel for the petitioners 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

petitioners, therefore, seeks consideration of the application for

building permit without insisting on a development permit.

4. A statement has been placed on record by the respondents.

It is submitted at paragraph 2 as follows :-

"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 WP(C) NO. 16349 OF 2021

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 sub- division 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 a part of 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.

5. 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.P4 judgment.

The petitioners are admittedly owners of small plots of land sold to

them. It is evident that there has been no activity which can be

defined as 'development of land' at the hands of the petitioners after

purchasing the property. The failure 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 petitioners require to obtain a

development permit for the purpose of consideration of their WP(C) NO. 16349 OF 2021

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

petitioners being purchasers of the small extent of land cannot be

required to submit a development permit which they have no legal

requirement to obtain, in order to consider their 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 2 nd

respondent to take up the application submitted by the petitioners

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

Jvt/18.9.2021 WP(C) NO. 16349 OF 2021

APPENDIX OF WP(C) 16349/2021

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE SALE DEED DATED 24/07/2020.

Exhibit P2 TRUE COPY OF THE CASH RECEIPT DATED 06/01/2021 ISSUED BY THE 1ST RESPONDENT.

Exhibit P3 TRUE COPY OF THE COMMUNICATION DATED 19/03/2021 ISSUED BY THE 2ND RESPONDENT.

Exhibit P4 TRUE COPY OF THE COMMON JUDGMENT DATED 17/02/2020 IN WPC NO. 4204/2020.