Beena A.K. v. Akathethara Grama Panchayat; Ajeesh Babu M. v. Akathethara Grama Panchayat; Haridas K. v. Akathethara Grama Panchayat

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 19TH DAY OF MARCH 2020 / 29TH PHALGUNA, 1941** ## **WP(C).No.8843 OF 2020(E)** ## **PETITIONER:** **BEENA.A.K. AGED 49 YEARS W/O JAYAPRAKASH.K, KRISHNAKRIPA, ALAMGODIL, OLAVAKKOTT PALAKKAD – 678 002** **BY ADV. SMT.T.V.NEEMA** ## **RESPONDENT:** **1. AKATHETHARA GRAMA PANCHAYAT, OLAVAKODE MALAMPUZHA ROAD, AKATHETHARA, PALAKKAD DISTRICT-678008, REPRESENTED BY ITS SECRETARY.** **2. THE SECRETARY, AKATHETHARA GRAMA PANCHAYATH, OLAVAKODE MALAMPUZHA ROAD, AKATHETHARA, PALAKKAD DISTRICT-678008.** ## **OTHER PRESENT:** ## **SRI.U.BALAGANGADHARAN, SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.03.2020, ALONG WITH WP(C).8738/2020(N), WP(C).8742/2020(P), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C). Nos. 8843, 8738 & 8742 of 2020 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 19TH DAY OF MARCH 2020 / 29TH PHALGUNA, 1941** **WP(C).No.8738 OF 2020(N)** ## **PETITIONER:** **AJEESH BABU M., AGED 36 YEARS S/O. MOIDUTTY H., KHADEEJA MANZIL, DHONI P.O., EMS NAGAR, PALAKKAD-678009.** **BY ADV. SMT.T.V.NEEMA** ## **RESPONDENTS:** **1 AKATHETHARA GRAMA PANCHAYAT, OLAVAKODE MALAMPUZHA ROAD, AKATHETHARA, PALAKKAD DISTRICT-678008, REPRESENTED BY ITS SECRETARY. 2 THE SECRETARY, AKATHETHARA GRAMA PANCHAYATH, OLAVAKODE MALAMPUZHA ROAD, AKATHETHARA, PALAKKAD DISTRICT-678008.** ## **OTHER PRESENT:** **SRI.U.BALAGANGADHARAN, SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.03.2020, ALONG WITH WP(C).8742/2020(P), WP(C).8843/2020(E), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C). Nos. 8843, 8738 & 8742 of 2020 3 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 19TH DAY OF MARCH 2020 / 29TH PHALGUNA, 1941** **WP(C).No.8742 OF 2020(P)** ## **PETITIONER:** **HARIDAS.K. AGED 49 YEARS S/O.KESAVAN, KURUPPATH VEEDU, KALLEPPILLY, AALAMPALLAM, PALAKKAD DISTRICT.** **BY ADV. SMT.T.V.NEEMA** ## **RESPONDENT/S:** **1 AKATHETHARA GRAMA PANCHAYAT OLAVAKODE MALAMPUZHA ROAD, AKATHETHARA, PALAKKAD DISTRICT-678 008, REPRESENTED BY ITS SECRETARY. 2 THE SECRETARY, AKATHETHARA GRAMA PANCHAYAT, OLAVAKODE MALAMPUZHA ROAD, AKATHETHARA, PALAKKAD DISTRICT-678 008.** ## **OTHER PRESENT:** ## **SRI.U.BALAGANGADHARAN, SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.03.2020, ALONG WITH WP(C).8738/2020(N), WP(C).8843/2020(E), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C). Nos. 8843, 8738 & 8742 of 2020 4 ## **ALEXANDER THOMAS, J.** **================================ W.P(C). Nos. 8843, 8738 & 8742 of 2020 ================================ Dated this the 19[th] day of March, 2020** ## **JUDGMENT** These cases are disposed of, on the basis of common judgment as the main issue raised in these case is identical. 2. The prayers in the Writ Petition (Civil ) No. 8843 of ## 2020 are as follows: _(i)To issue a Writ of mandamus or any other appropriate Writ or order or direction directing Respondents to consider and pass orders on Ext.P4 application for building permit within a time frame to be fixed by this Hon'ble Court._ _(ii) To issue a Writ of mandamus or any other appropriate Writ or order or direction directing Respondents to grant building permit without insisting for production of land development permit._ _(iii) To issue a Writ of mandamus or any other appropriate Writ or order or direction directing the Respondents to grant approval of plan for construction of a residential building within a time frame to be fixed by this Hon'ble Court;_ _(iv) To grant such other relief as this Hon'ble Court deem fit to grant in the interest of justice._ 3. The prayers in the Writ Petition (Civil ) No. 8738 of ## 2020 are as follows: _(i)To issue a Writ of mandamus or any other appropriate Writ or order or direction directing Respondents to consider and pass orders on Ext.P4 application for building permit within a time frame to be fixed by this Hon'ble Court_ W.P(C). Nos. 8843, 8738 & 8742 of 2020 5 _(ii) To issue a Writ of mandamus or any other appropriate Writ or order or direction directing Respondents to grant building permit without insisting for production of land development permit._ _(iii) To issue a Writ of mandamus or any other appropriate Writ or order or direction directing the Respondents to grant approval of plan for construction of a residential building within a time frame to be fixed by this Hon'ble Court;_ _(iv) To grant such other relief as this Hon'ble Court deem fit to grant in the interest of justice._ 4. The prayers in the Writ Petition (Civil ) No. 8742 of 2020 are as follows: _(i) To issue a Writ of mandamus or any other appropriate Writ or order or direction directing Respondents to consider and pass orders on Ext.P4 application for building permit within a time frame to be fixed by this Hon'ble Court._ _(ii) To issue a Writ of mandamus or any other appropriate Writ or order or direction directing Respondents to grant building permit without insisting for production of land development permit._ _(iii) To issue a Writ of mandamus or any other appropriate Writ or order or direction directing the Respondents to grant approval of plan for construction of a residential building within a time frame to be fixed by this Hon'ble Court;_ _(iv) To grant such other relief as this Hon'ble Court deem fit to grant in the interest of justice._ 5. Heard Smt. T. V. Neema, learned counsel appearing for the petitioners in these cases and Sri. U. Balagangadharan, learned Standing Counsel appearing for the respondents (Akathethara Grama Panchayat) in these cases. 6. According to the petitioners each of them are owners in W.P(C). Nos. 8843, 8738 & 8742 of 2020 6 possession and enjoyment of small property having an extent of 1.46 Ares, 1.46 Ares & 1.50 Ares respectively as evidenced from Ext. P1 sale deeds produced in these cases and Ext. P2 basic tax receipt issued by the Village Officer concerned and Ext. P3 possession certificate issued by the Village Officer etc. According to the petitioners, they submitted Ext.P4 application dated 01.02.2020 to the Secretary of the respondent Grama Panchayat along with the plan seeking for grant of building permit in terms of the provisions contained in the Kerala Panchayat Building Rules. Complaint of the petitioners is that they have been orally informed by the officials of the respondent Grama Panchayat that so long as land development building permit has not been issued in relation to the larger extent of land of which these properties form smaller part, the Secretary of the respondent Grama Panchayat is not in a position to consider the request of the petitioners as per Ext.P4 for the grant of building permit etc. The matter issued was no longer res integra and covered by a series of judgments as in _**Nafeesa vs. Chavakkad Municipality**_ [2018 (3) KLT 1]. Further it has been held that the 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 W.P(C). Nos. 8843, 8738 & 8742 of 2020 7 attract the definition of “development of land” for the purposes of the building rules and that the said 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. Further it has been held that unless in the hands of the purchaser of the smaller proportion of land, an activity with attracts the definition of land is involved, there would be no requirement for a person purchasing a plot of land for putting up a construction therein, to obtain development permit prior to applying for a building permit for the said construction. Paragraph Nos. 4 & 5 of the abovesaid judgment of this Court in _**Nafeesa’s case**_ (supra)[2018 (3)KLT 1] read as follows: _“4. On a consideration of the facts and circumstances of the case as also the submissions made across the bar, I find from a perusal of the Kerala Municipality Building Rules 1999, which contain provisions akin to the Kerala Panchayat Building Rules, 2011, that as per Rule 4 of the said Rules, every person intending to develop or redevelop any parcel of land or cause the same to be done, cannot do so without first obtaining a permission for each such development or redevelopment from the Secretary of the local authority concerned. Similarly, every person intending to construct or reconstruct or make addition or extension or alteration to any building or who causes the same to be done has to first obtain a separate building permit for each such work from the Secretary. S.5 deals with the application for development permit in cases where it is required, and the procedure to be followed by the applicant for development permit is enumerated thereafter. It is_ W.P(C). Nos. 8843, 8738 & 8742 of 2020 8 _not in dispute in these cases that the petitioners, who intend to construct buildings on the property purchased by them, will be required to obtain a building permit from the local authority as a percondition for putting up the said building in that property. As a matter of fact, in all these Writ Petitions, the petitioners had preferred applications for building permit which were refused by the orders impugned in these Writ Petitions._ _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 land purchased by them as a percondition for effecting he 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, play grounds and social amenities of the like but does not include legal partitioning of family property among heirs.”_ 7. Accordingly, it is only to be held that the respondent Grama Panchayat authorities are not legally entitled to insist that the petitioners who now own and possess only a small extent of land as abovesaid, can get their application for building permit considered only if land development permits have been secured in respect of the larger extent of property owned by the predecessor W.P(C). Nos. 8843, 8738 & 8742 of 2020 9 from whom small parts have been purchased by the petitioners, etc. 8. Accordingly the possession in that regard is declared and ordered. The Secretary of the respondent Grama Panchayat will immediately take up the request made by the petitioners in Ext. P4 applications and after affording reasonable opportunity of being heard to the petitioners, should pass orders on the said request for grant of building permit and for approval for the building plan appended thereto in accordance with provisions contained in the Kerala Panchayat Building Rules and without insisting for the petitioner to produce land development permit etc. and necessary orders are duly passed by the Secretary of the respondent Grama Panchayat without much delay, preferably within a period of one month from the date of production of the certified copy of this judgment. With these observations and directions the above Writ Petitions (Civil) will stand finally disposed of. ## **(Sd/-) ALEXANDER THOMAS, JUDGE** LU W.P(C). Nos. 8843, 8738 & 8742 of 2020 10 ## **APPENDIX OF WP(C) 8843/2020** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE SALE DEED NO.732/1/19 DATED 02/04/2019.** **EXHIBIT P2** **TRUE COPY OF THE BASIC TAX RECEIPT DATED 03.11.2018 of AKATHETHARA VILLAGE OFFICER.** **EXHIBIT P3** **TRUE COPY OF THE POSSESSION CERTIFICATE DATED 12.11.2018 ISSUED BY THE VILLAGE OFFICER, AKATHETHARA VILLAGE;** **EXHIBIT P4** **TRUE COPY OF THE APPLICATION DATED 01.02.2020 SUBMITTED BY THE PETITIONER BEFORE THE SECRETARY AKATHETHARA GRAMA PANCHAYAT WITH PLAN** W.P(C). Nos. 8843, 8738 & 8742 of 2020 11 ## **APPENDIX OF WP(C) 8738/2020** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.732/1/19 DATED 02/04/2019. EXHIBIT P2 TRUE COPY OF BASIC TAX RECEIPT DATED 11/04/2019 OF AKATHETHARA VILLAGE OFFICER. EXHIBIT P3 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 16/04/2019 ISSUED BY THE VILLAGE OFFICER, AKATHETHARA VILLAGE. EXHIBIT P4 TRUE COPY OF THE APPLICATION DATED 01/02/2020 WITH PLAN SUBMITTED BY THE PETITIONER BEFORE THE SECRETARY, AKATHETHARA GRAMA PANCHAYAT.** W.P(C). Nos. 8843, 8738 & 8742 of 2020 12 ## **APPENDIX OF WP(C) 8742/2020** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.742/1/19 DATED 02/04/2019. EXHIBIT P2 TRUE COPY OF BASIC TAX RECEIPT DATED 11.06.2018 OF AKATHETHARA VILLAGE OFFICER. EXHIBIT P3 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 15.02.2019 ISSUED BY THE VILLAGE OFFICER, AKATHETHARA VILLAGE. EXHIBIT P4 TRUE COPY OF THE APPLICATION DATED 01.02.2020 SUBMITTED BY THE PETITIONER BEFORE THE SECRETARY, AKATHETHARA GRAMA PANCHAYAT WITH PLAN.** // True Copy // PA to Judge