High Court of KeralaSingle Judge2024-03-13The writ petition is disposed of as above.

BINOY ITTY KURIAN and ANISHA SUSAN ELIAS v. ATHIRAMPUZHA GRAMA PANCHAYAT, THE SECRETARY ATHIRAMPUZHA GRAMA PANCHAYAT, THE STATE OF KERALA, and THE DISTRICT TOWN PLANNER

Case / Petition Number:WP(C) NO. 41617 OF 2023

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Murali Purushothaman
Judgment Date: 2024-03-13
Court Decision / Holding: The writ petition is disposed of by setting aside Ext. P4. The 2nd respondent is directed to consider the petitioners’ application for a building permit without insisting on a development permit or lay-out approval, as expeditiously as possible, within six weeks, provided the application is otherwise in order. The petitioners shall produce a copy of the writ petition and judgment when presenting the application. The court clarifies that this judgment will not prevent the Panchayat from proceeding against the vendor for any development undertaken in contravention of law.
Final Disposition: The writ petition is disposed of as above.

Parties to the Case

Appellants / Petitioners

BINOY ITTY KURIAN
ANISHA SUSAN ELIAS

Respondents

Athirampuzha Grama Panchayat, Kottayam, Athirampuzha, Kerala represented by its Secretary
The Secretary, Athirampuzha Grama Panchayat, Kottayam, Athirampuzha, Kerala
The State of Kerala represented by its Chief Secretary, Government Secretariat, Thiruvananthapuram, Kerala
The District Town Planner, District Town Planning Office, Kottayam District, Kerala (Addl R3 and R4 impleaded as per order dated 24/01/2024 in IA No. 01 of 2024 in WP(C) 41617/2023)

Legal Representation & Advocates

Counsels for Petitioners

• Luke J Chirayil

Counsels for Respondents

• Varughese M. Easo
• Smt. Amminikutty (Senior Government Pleader)

Case Synopsis & Summary

This writ petition challenges the decision of the Athirampuzha Grama Panchayat denying a building permit for a residential construction on a 4.05 ares plot. The petitioners contend that for a small plot, constituting less than 0.5 hectares, a development permit is not required, and that they should be allowed to proceed with building permit applications under the Kerala Panchayat Building Rules, 2019. The Panchayat rejected by Ext. P4 on the ground that development permit and lay-out approval are prerequisites under Rule 31(1)(xii) and the proviso to Rule 3(1)(D). The petitioners rely on prior Kerala High Court rulings, notably Panjal Grama Panchayat v. Aneesh P and Nafeesa v. Chavakkad Municipality, which had held that development permits are not mandatory for construction on small plots when no subdivision or development of land is involved. The court found merit in the petitioners’ interpretation and set aside Ext. P4, directing the 2nd respondent to consider the building permit without insisting on a development permit or layout approval, within six weeks, if the application is otherwise in order. The judgment clarifies that it does not bar the Panchayat from pursuing action against the vendor for any unlawful development. The matter is disposed of accordingly, following the cited precedents.

Provisions of Law Cited

Kerala Panchayat Building Rules, 2019 – proviso to Rule 3(1)(D)Kerala Panchayat Building Rules, 2019 – Rule 31(1)(xii)

Legal Doctrines & Maxims

Development of land doctrine under Kerala Panchayat Building Rules, 2019
Small plot exemption for residential construction per Nafeesa v. Chavakkad Municipality and Panjal Grama Panchayat v. Aneesh P

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners submit that for a small plot (less than 0.5 hectares) intended for a residential building, obtaining a development permit is not necessary. They rely on Nafeesa v. Chavakkad Municipality and Panjal Grama Panchayat v. Aneesh P to contend that development permission is not triggered where the activity does not amount to 'development of land' or subdivision, and thus a building permit should be granted expeditiously without prior layout approval.

Contentions of Respondents

The respondents contend that development of land or subdivision of land into plots requires a development permit under the Kerala Panchayat Building Rules, 2019. They argue that the property is part of a larger extent and its subdivision would necessitate a development permit; failure to obtain such permit results in loss of revenue to the Panchayat.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Panjal Grama Panchayat v. Aneesh P	2022 (2) KLT 653	Positive	The court relies on Panjal to support the proposition that a development permit is not required for construction on a small plot and that a building permit can be considered without a development permit in such cases.
Nafeesa v. Chavakkad Municipality	2018 (3) KLT 1	Positive	The court reiterates the doctrine that unless the activity qualifies as 'development of land', a development permit may not be required for building a residential structure on a small plot; the decision is used as a guiding principle for disposal.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN WEDNESDAY, THE 13[TH] DAY OF MARCH 2024 / 23RD PHALGUNA, 1945** ## **WP(C) NO. 41617 OF 2023** ## **PETITIONERS:** **1 BINOY ITTY KURIAN, AGED 36 YEARS SON OF KURIAN THOMAS, KOCHERIL HOUSE, VAKATHANAM P.O., VAKATHANAM, PUTHANCHANTHA P.O., KOTTAYAM DISTRICT, KERALA, PIN - 686538 2 ANISHA SUSAN ELIAS, AGED 34 YEARS WIFE OF SRI. BINOY ITTY KURIAN, VAKATHANAM P.O., VAKATHANAM, PUTHANCHANTHA P.O., KOTTAYAM DISTRICT, KERALA, PIN - 686538** ## **BY ADV LUKE J CHIRAYIL** ## **RESPONDENTS:** - **1 ATHIRAMPUZHA GRAMA PANCHAYAT KOTTAYAM, ATHIRAMPUZHA, KERALA REPRESENTED BY ITS SECRETARY, PIN - 686562** - **2 THE SECRETARY ATHIRAMPUZHA GRAMA PANCHAYAT, KOTTAYAM, ATHIRAMPUZHA, KERALA, PIN - 686562** - ***3 THE STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM, KERALA.** - **4 THE DISTRICT TOWN PLANNER. DISTRICT TOWN PLANNING OFFICE KOTTAYAM DISTRICT, KERALA. [*ADDL R3 AND R4 IMPLEADED AS PER ORDER DATED 24/01/2024 IN IA NO. 01 OF 2024 IN WP(C) 41617/2023]** **BY ADVS. ADV VARUGHESE M EASO R BY SR.GP SMT.AMMINIKUTTY** ## **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON** **13.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO. 41617 OF 2023 : 2 :** ## **JUDGMENT** The petitioners are the owners in possession of an extent of 4.05 Ares of land covered by Ext.P1 sale deed. The petitioners submitted an application for building permit for the construction of a residential building in the said property before the 2[nd] respondent. The 2[nd] respondent, by Ext.P4, rejected the said application stating that as per the proviso to Rule 3(1)(D) of the Kerala Panchayat Building Rules, 2019 (hereinafter referred to as 'the Rules' for short), building permit can be issued only if the site is authorised and the petitioners have to obtain development permit from the District Town Planner in terms of Rule 31(1)(xii) of the Rules. The petitioners state that they have purchased only a **WP(C) NO. 41617 OF 2023 : 3 :** small extent of land which is less than 0.5 Hectares for the construction of a residential building and there is no need to obtain a development permit or approval of lay out from the District Town Planner under 31(1)(xii) of the Rules. 2. A counter affidavit has been filed on behalf of respondents 1 and 2 wherein it is stated that the property owned by the petitioners is a part of large extent of property and subdivision of larger extent of property requires the obtaining of development permit under Rule 31(1)(xii) of the Rules. It is stated that before the property was subdivided, no development permit has been obtained. 3. Heard the learned counsel for the petitioners, the learned standing counsel for the respondents 1 and 2 and the learned Government **WP(C) NO. 41617 OF 2023 : 4 :** Pleader. 4. The learned counsel for the petitioners relies on the decisions of this Court in **Panjal Grama Panchayat** v. **Aneesh.P** [2022 (2) KLT 653) and **Nafeesa** v. **Chavakkad Municipality** [2018 (3) KLT 1] and submits that in respect of small extent of property, where a person intends to construct a residential building, there is no necessity for obtaining a development permit. Sri.Easo, the learned counsel for the Panchayat submits that development of land without obtaining development permit has resulted in loss of revenue to the Panchayat. 5. A development permit, under the Kerala Panchayat Building Rules, 2019 is required only when there is development of land or sub division of **WP(C) NO. 41617 OF 2023 : 5 :** land into plots. For the purpose of construction of residential building in a small plot of land, a development permit is not required. In **Nafeesa** (supra), this Court held as follows: “5.... 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.” 6. **Nafeesa** (supra) was referred to and the dictum laid down therein was reiterated by the Division Bench in **Panjal** (supra). 7. In the light of the decisions in **Panjal** and **WP(C) NO. 41617 OF 2023 : 6 :** **Nafeesa** (supra), I set aside Ext.P4. There will be a direction to the 2[nd] respondent to consider the application of the petitioners for building permit, without insisting for development permit or lay out approval, as expeditiously as possible, at any rate, within a period of six weeks from the date of receipt of a certified of this if the copy judgment, application is otherwise in order. The petitioners shall produce a copy of this writ petition along with a copy of the judgment before the 2[nd] respondent for due compliance. 8. It is made clear that this judgment will not impede the Panchayat from proceeding against the vendor/predecessor in interest of the petitioners who had done the alleged development of land, in accordance with law. **WP(C) NO. 41617 OF 2023 : 7 :** The writ petition is disposed of as above. **Sd/MURALI PURUSHOTHAMAN JUDGE** SB **WP(C) NO. 41617 OF 2023 : 8 :** ## **APPENDIX OF WP(C) 41617/2023** ## **PETITIONER EXHIBITS** **Exhibit P1 TRUE COPY OF THE SALE DEED DATED 13.12.2022 NUMBERED AS DOCUMENT NO. 3111/2022 OF ETTUMANOOR S.R.O.** **Exhibit P2 THE TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT DATED 27.07.2023 HAVING FILE NO. 400476/BPRL01/GPO/2023/8585 ISSUED BY THE 1ST RESPONDENT** - **Exhibit P3** - **TRUE COPY OF THE RECEIPT DATED 17.06.2023 HAVING RECEIPT NO. KL05030408784/2023 ISSUED IN THE NAME OF THE PETITIONERS** **Exhibit P4** - **THE TRUE COPY OF THE ORDER DATED 22.08.2023 NUMBERED AS 400476/BPRL01/GPO/2023/858/(1) ISSUED BY THE 2ND RESPONDENT** - **Exhibit P5 THE TRUE COPY OF THE JUDGEMENT DATED 16.08.2023 IN W.P. (C) NO. 21868 OF 2023 ON THE FILES OF THE HONOURABLE HIGH COURT OF KERALA** - **Exhibit P6 THE TRUE COPY OF THE JUDGEMENT DATED 12.04.2023 IN W.P. (C) NO. 13134 OF 2023 ON THE FILES OF THE HONOURABLE HIGH COURT OF KERALA** - **Exhibit P7 THE TRUE COPY OF THE COMMON JUDGEMENT DATED 02.02.2023 IN W.P. (C) NO. 1507 OF 2023 AND W.P. (C) NO. 1498 OF 2023 ON THE FILES OF THE HONOURABLE HIGH COURT OF KERALA**