Kerala High Court

Anoop vs The Secretary on 1 July, 2022

WP(C) NO. 18519 OF 2022                   1



                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                        PRESENT
             THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
       FRIDAY, THE 1ST DAY OF JULY 2022 / 10TH ASHADHA, 1944
                            WP(C) NO. 18519 OF 2022
PETITIONER/S:

               ANOOP
               AGED 36 YEARS
               S/O. VIJAYAN, PARALI, VELLINIZHI, KALLUVAZHY,
               PALAKKAD DISTRICT 679 514.

              BY ADVS.
              RAJESH SIVARAMANKUTTY
              VIJINA K.
              ARUL MURALIDHARAN



RESPONDENT/S:

      1        THE SECRETARY
               AKATHETHARA GRAMA PANCHAYAT, AKATHETHARA GRAMA
               PANCHAYAT OFFICE, PALAKKAD 678 008.

      2        AKATHETHARA GRAMA PANCHAYAT ,
               REP. BY ITS SECRETARY, AKATHETHARA GRAMA PANCHAYAT
               OFFICE, PALAKKAD 678 008.

              BY ADV U.BALAGANGADHARAN




       THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON   01.07.2022,          THE   COURT    ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 WP(C) NO. 18519 OF 2022              2




                       P.V.KUNHIKRISHNAN, J
               --------------------------------------------
                      W.P.(C) No.18519 of 2022
                  --------------------------------------
                 Dated this the 1st day of July, 2022


                               JUDGMENT

The above writ petition is filed with following prayers :

"i. Issue a Writ of Certiorari or any other Writ order or Direction calling for records leading to Exhibit P3 order passed by the 1st respondent and quash the same. ii. Issue of Writ of mandamus or any other Writ in the like nature direction or order commanding the 1 st respondent to pass orders on the building permit application acknowledged vide Exhibit P2 receipt by the 2 nd respondent within a time frame that may be fixed by this Hon'ble Court sans the objections raised in Ext.P3.

iii. Pass such other orders deemed fit and proper in the facts and circumstances of the case and that may be prayed hereafter." [SIC]

2. The petitioner is the absolute owner of 0.0656

hectares of land as per Ext.P1 sale deed. The petitioner

submitted an application for building permit before the 2 nd

respondent on 26.5.2022 as evident by Ext.P2. Ext.P2 is

rejected Ext.P3 mainly for the reason that development permit

is not produced. Aggrieved by the same, this writ petition is

filed.

3. Heard the learned counsel for the petitioner and the

learned counsel appearing for the Panchayat.

4. The counsel for the petitioner submitted that this

point is considered in detail by this Court earlier and found in

favour of the petitioner. He relied the judgment of this Court in

Panjal Grama Panchayat v. Aneesh P. [2022 (2) KLT 653].

The counsel for the Panchayat submitted that there is nothing

to interfere with Ext.P3 order, because it is an order in

accordance to law. After hearing both sides, I think the point

raised by the petitioner is covered in favour of the petitioner.

The relevant portion of the judgment in Panjal Grama

Panchayat's case (supra) is extracted hereunder :

17. "Therefore, the writ petitioner, an owner of a small extent of property not having the power or authority to seek a development permit for the entire property belonging to some other persons,

cannot be compelled to secure a development permit for carrying out construction of a residential building in his property . Moreover, merely because a larger area is divided into 56 plots and provided roads for ingress and egress to the purchasers, the Secretary of the Panchayat is not empowered under the Rules, 2019 to insist for a development permit. In our view this was exactly the question considered by a learned Single Judge in Nafeesa (supra), which was relied upon by the learned Single Judge to allow the writ petition. It is better to extract relevant portion of the judgement in Nafeesa supra, which reads as follows:

"5. The question that essentially arises for consideration is whether the petitioners, who have purchased small parcels of land from the vendors, who had larger parcels of land, from which a smaller portion was sold to the petitioners, are required to produce a development permit in respect of the lands purchased by them as a pre- condition for effecting the constructions proposed, through the building permit sought by them. It is relevant in this connection to notice the definition of 'development' as obtaining under the Kerala Municipality Building Rules, 1999/Kerala Panchayat Building Rules, 2011. The definition of 'development of land' in Rule 2(v) reads as under:

"(v). 'development of land' means any material change on the use of land other than for agricultural purpose brought about or intended to be brought about by filling up of the land and/or water bodies or changing from the existing former use of the land, layout of streets and foot paths, sub-division of land for residential plots or for other uses including layout of internal streets, conversion of wet land, and developing parks, playgrounds and social amenities of the like, but does not include legal partitioning of family property among heirs." ...

The definition is similar under the Kerala Panchayat Building Rules also. An analysis of the said definition of

'development of land' would clearly indicate that, in the context of sub-division of land, a mere subdivision of land per se, without anything more, would not attract the definition of 'development of land' for the purposes of the Rules. The definition is unambiguous, when it states that the sub-division of land for residential plots or for other uses including layout of internal streets, must be such as brings about or is intended to bring about any material change on the use of the land. The reference to 'land' here must necessarily be to the land in the hands of the person who resorts to the sub-division of the land. In my view, the subdivision of land, so as to amount to a development of land, must be in the hands of the owner of the larger parcel of land, and the land so sub-divided, together with the layout of internal streets, must result in the development of the entire parcel of land. The position is the same even in the case of the Kerala Panchayat Building Rules, save that in the said Rules, a layout of internal streets is not contemplated. 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 10.4.2013 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 petitioners.""