Jayaprakash Balan and Reshmi Jayaprakash v. Varappuzha Grama Panchayat

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **WEDNESDAY, THE 29TH DAY OF JULY 2020 / 7TH SRAVANA, 1942** ## **WP(C).No.14643 OF 2020(E)** ## **PETITIONERS:** **1 JAYAPRAKASH BALAN AGED 41 YEARS S/O.P.G.BALAN, POOKKOTTIL HOUSE, KOTTAPPADI P.O., CHAVAKKAD, THRISSUR - 680 505. 2 RESHMI JAYAPRAKASH AGED 35 YEARS W/O.JAYAPRAKASH BALAN, POOKKOTTIL HOUSE, KOTTAPPADI P.O., CHAVAKKAD, THRISSUR - 680 505.** **BY ADVS. SRI.S.SHANAVAS KHAN SMT.S.INDU** ## **RESPONDENTS:** **1 THE VARAPPUZHA GRAMAPANCHAYAT OFFICE OF THE VARAPPUZHA GRAMA PANCHAYAT, VARAPPUZHA P.O., ERNAKULAM - 683 517 REPRESENTED BY ITS SECRETARY. 2 THE SECRETARY, VARAPPUZHA GRAMAPANCHAYAT OFFICE OF THE VARAPPUZHA GRAMA PANCHAYAT, VARAPPUZHA P.O., ERNAKULAM - 683 517.** **R1-2 BY SRI.ASHOK B.SHENOY, SC, VARAPUZHA GRAMA PANCHAYAT** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 W.P(C) No. 14643 of 2020 ALEXANDER THOMAS, J. -----------------------------------W.P(C) No. 14643 of 2020 -----------------------------------Dated this the 29[th ] day July, 2020 ## **JUDGMENT** ## The prayers in the above Writ Petition (C) are as follows: - _“(i) Call for the records leading to Ext. P7 and quash the same by issuing a Writ of Certiorari_ - _ii) Issue a Writ of mandamus or any other writ, order or direction directing the respondents to grant building permit to the petitioner as sought for in Exts.P5 and P6 without insisting for lay out approval and compliance of Rule 27(3) of Kerala Panchayat Building Rules, 2011_ - _iii) Issue a Writ of mandamus or any other writ, order or direction directing the respondents to reconsider Exts. P5 and P6 without again referring to the objections raised in Ext. P7 and_ - _iv) Pass such other orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.”_ 2. Heard Sri.S.Shanavas Khan, learned counsel appearing for the petitioners and Sri.Asok.B.Shenoy, learned Standing Counsel for the Varappuzha Grama Panchayat appearing for the respondents. 3. The case of the petitioners is that they have purchased a small plot of land having a limited extent of 2.58 Ares in Sy.No.262/4A-26 of Varappuzha Village, Kanayannoor Taluk, Ernakulam Revenue District and the subject property is dry land/purayidam as per the entry in the BTR. Further that the said 3 W.P(C) No. 14643 of 2020 plot of land having an extent of 2.58 Ares formed part of a larger extent of property having a total extent of about three Acres, which is owned by the property holder concerned. The said property holder had earlier made plot divisions and the land was divided into 42 plots with internal roads and out of the 42 plots, construction was effected by them in respect of 36 villas, which was completed and that the project is known by the name and style as ‘Royal Palms Garden’. Further that the petitioners happen to purchase one among the remaining plots, which is having only an extent of 2.58 Ares and he has now submitted Ext.P6 application dated 24-07-2019 for grant of building permit along with Ext.P5 plan to the 2[nd] respondent Secretary of the Varappuzha Grama Panchayat for grant of building permit to construct a residential building in the said small plot of land having an extent of 2.58 Ares. The complaint of the petitioners is that without any prior notice and without any prior reasonable opportunity of being heard to the petitioners the 2[nd] respondent Secretary of the Grama Panchayat has now issued Ext.P7 order dated 12-06-2020, ordering that the plea of the petitioners for grant of building permit can be considered only after they secures development permit as per the Panchayat Building Rules and after 4 W.P(C) No. 14643 of 2020 clearing the alleged deficiencies in respect of set of as envisaged in Rule 27(3) of the Kerala Panchayat Building Rules, 2011 and also to clarify the length of the road etc,. 4. The petitioners do not have any serious complaint as against item No.3 of the defects and on merits petitioners would argue that the insistence for development permit for getting approved lay out as pointed out in item No.1 of Ext.P7 is illegal and ultra vires, for the simple reason that the extent of the property, in which the building permit is sought, is a small plot of land having an extent of only 2.58 Ares. Further that the insistence regarding set of in terms of Rule 27 (3) of the Kerala Panchayat Buildings Rules, 2011 will not apply in this case of the petitioners, as he is entitled to get the benefit of proviso to Rule.27(3). Rule 27(3) and its proviso of the Kerala Panchayat Building Rules, 2011 reads as follows: ## **“27. Exterior and interior open air spaces.-** (3) Every building up to 10 metres in height shall have a clear front yard of 3 metres depth. Provided that where this depth cannot be obtained laterally through out due to the peculiar shape of the plot, it shall suffice if the mean depth is not less than 3 metres with minimum depth at all points not less than 1.80 metres.” 5. After hearing both sides, it has been noted that this Court has already held in various decisions as in the case in _**Nafeesa v.**_ 5 W.P(C) No. 14643 of 2020 _**Chavakkad Municipality**_ [2018 (3) KLT 1] that where the plot of land is comparatively small, then there is no question of the development of the land as conceived as per the provisions of the Kerala Panchayat Building Rules and therefore the local body cannot insist that the party should necessarily obtain development permit in terms of the Kerala Panchayat Building Rules before the application for grant of building permit was considered. It will be profitable to refer Para Nos. 3 to 5 of the judgment of the Division Bench of this Court in _**Nafeesa v. Chavakkad Municipality**_ [2018 (3) KLT 1], which reads as follows: _“3. I have heard Sri.K.P.Vijayan, Sri.K.I.Sageer Ibrahim as also Sri.P.K.Sajeev, the learned counsel for the petitioners in all the Writ Petitions, Smt.Girija K.Gopal, the learned Standing counsel for the respondent Municipality, Sri.P.C.Sasidharan, the learned Standing counsel for the respondent Panchayat as also Sri.Paul Abraham Vakkanal, the learned Government Pleader for the official respondents in all the Writ Petitions._ _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_ 6 W.P(C) No. 14643 of 2020 _is enumerated thereafter. It is 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 pre-condition 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 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, play grounds and social amenities of the like, but does not include legal partitioning of family property among heirs.” _The malayalam definition reads as follows:_ _(v) '_ ഭ�വ�കസന� _'_ എന�ൽ ക�ർഷ�ക�വശ�ങൾകല ത� ഭ�മ�യ�� ജല�ശ�ങയ�� ന�കത� ഭ�മ���ത ഉപയ��ഗത�ൽ തക�ണ�വര�നയ�� തക�ണ�വര�ൻ ഉയ'ശ�ക�നയ�� ആ� മ�ഖ� മ�റ� അതല�ങ�ൽ ഭ�മ���ത ന�ലവ�ല�ള മ�ൻ ഉപയ��ഗത�ൽ മ�റ� വര�ത�തക�ണ. ത�ര�വ�കൾ _, ,_ ന പ��കൾ എന�വ കകമ1കര�ക�ക പ�ർപ� യ2�ട4കളക� യവണ� ഭ�മ� വ�ഭജ�ക�ക അതല�ങ�ൽ ഉൾത�ര�വ�ക�4ത കകമ1കരണ� _,_ ച��പ4 ന�ലങ��ൽ മ�റ� വര�ത�നത _,_ ഉല സഉദ��നങൾ _,_ ക��സലങൾ യപ�ല�ളവ��ത _._ വ�കസനങൾ എനര<മ�ക�ന� എന�ൽ അവക�ശ�കൾ �മ�ൽ ക� ��ബസ?ത ന��മ�ന�സ@�� ഭ�ഗ� വയക�നത _._ ഇ��ൽ ഉൾതപ �ന�ല� 7 W.P(C) No. 14643 of 2020 _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 sub-division 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_ 8 W.P(C) No. 14643 of 2020 _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.”_ 6. It is to be noted that this Court in yet another judgment rendered on 15-02-2019 in W.P(C) No.2182/2019 of the learned Single Judge, had relied on the dictum laid down by the Single Bench in _**Nafeesa’s case**_ (supra). Aggrieved thereby the respondents Panchayat therein had preferred Writ Appeal as W.A No.1288/2019 before the Division Bench of this Court. The Division Bench of this Court has rendered judgment dated 09-06-2019 dismissing W.A No.1288/2019 and thereby confirming the impugned judgment of the learned Single Judge and has also affirmed the correctness of the dictum laid down by the learned Single Judge in _**Nafeesa’s case**_ (supra). It will be profitable to refer Paragraph Nos. 3 to 5 of the judgment of the Division Bench of this Court in W.A No.1288/2019 which reads as follows: _“3. Learned Single Judge found that, the writ petitioners, being purchasers of small extent of property subdivided from a larger extent, cannot be insisted upon for production of 'development permit' in accordance with Rules 4 and 5. It was found that, when the property is sold to other persons, the purchasers become entitled to develop the plot purchased by them in accordance with law. They have no right over other properties so as to submit any application for 'development permit'. Therefore the local bodies are not entitled as of right to insist for a 'development permit', as per-_ 9 W.P(C) No. 14643 of 2020 _conditions for consideration of their building permit applications. For taking such a stand, the learned Single Judge had relied upon another decision of this Court in_ _**Nafeesa v. Chavakkad Municipality [2018(3) KLT 1]** . It was held therein 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 purpose of the Rules, thereby necessitating obtainment of a 'development permit'. While deciding the case in_ _**Nafeesa** (supra), the learned Judge had relied upon another judgment of this Court in W.P.(C) No.20204 of 2012, dated 10.04.2013. It was held therein that, unless in the hands of the purchaser of the smaller portion of land, an activity which attracts the definition of 'development of land' is involved, there will 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._ _4. We are of the considered opinion that the principle enunciated about will squarely apply in the case at hand. If the erstwhile owner had developed the land in question without obtaining the requisite 'development permit', it was left open to the appellant Panchayat to have resisted or obstructed such illegal development. In other words, appropriate legal action if any ought to have been taken against the wrongdoer, as permissible under law. But the fact that any such action could have been taken against the erstwhile owner, will not entitle the Panchayat to refuse consideration of the application for building permit submitted by the subsequent purchaser of a small plot, in which he is not intending to do any development activities other than construction of the building._ _5. Hence, we are inclined to confirm the impugned judgment by denying interference. Moreover, we take note of the fact that the learned Single Judge had protected the interest of the appellant Grama Panchayat by insisting upon the individual petitioners to make payment of the requisite fee for obtaining 'development permits' as enumerated in schedule 1 of the Rules.”_ 7. In the instant case, the plot of land covered by Ext.P6 building permit is admittedly only 2.58 Ares and even though the 10 W.P(C) No. 14643 of 2020 property formed part of larger extent of about 3 Acres owned by the previous owners, will not be relevant and what is relevant is to examine as to whether at the hands of the petitioners the subject property having a small extent of 2.58 Ares would require any development as conceived as per the Kerala Panchayat Building Rules and therefore whether development permit as per the said rules is required before the grant of building permit. The answer is have been issued affirmatively and conclusively in favour of the petitioners in the aforesaid Single Bench judgments as well as the judgments of the Division Bench of this Court. Hence it is held that the defect No.1 of Ext.P7 is not sustainable and legal and the same will stand quashed. As regards defect No.2, it is to be noted that the factual aspects may also be appreciated and therefore it may not be right and proper for this Court to enter into the merits of the controversy at this stage. However, since Ext.P7 has been rendered without hearing the petitioners, the rejection order as per Ext.P7 will stand quashed and the matters in relation to defect Nos.2 and 3 will stand remitted to the 2[nd] respondent Secretary of the Grama Panchayat for consideration and decision afresh. 8. The petitioners would undertake that they would take 11 W.P(C) No. 14643 of 2020 necessary steps to comply with the requirements to rectify the defect No.3 of Ext.P7, without any further delay. Therefore the remit will be essentially only for consideration of the matter in relation to defect No.2 of Ext.P7. 9. In that regard, the 2[nd] respondent Secretary of the Grama Panchayat may ensure that the conduct of inspection by the Buildings Inspector of the Panchayat with due prior notice to the petitioners to ascertain the factual details relating to the applicability or otherwise of Rule 27(3) and its proviso and after inspection Building Inspector should give the cogent and precise details as to the applicability of Rule 27A and also as to whether petitioners could be factually entitled for the benefit of the proviso thereto etc, and copy of the inspection report should be given to the petitioners in advance and thereafter the 2[nd] respondent Secretary of the Grama Panchayat will afford reasonable opportunity of being heard to the petitioners and should take a considered decision on the matters in relation to defect No.2 of Ext.P7 relating to Rule 27(3), without much delay preferably within a period of one month from the date of production of a certified copy of this judgment. The abovesaid process of inspection should be duly completed by the Buildings Inspector within two 12 W.P(C) No. 14643 of 2020 weeks, so that the overall time limit of one month could be strictly adhered to by the 2[nd] respondent. In the meanwhile, petitioners shall ensure that the defect in terms of item No.3 of Ext.P7 is duly rectified and remedied. 10. The petitioner will produce a certified copy of the judgment along with a copy of the memorandum of W.P(C) with all the Exhibits before the 2[nd] respondent Secretary of the Grama Panchayat for necessary information and further action. With these observations and directions the above Writ Petition (Civil) will stand disposed of. ## **Sd/-** ## **ALEXANDER THOMAS** **JUDGE** KAS 13 W.P(C) No. 14643 of 2020 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.1685/2017 OF ALANGAD SUB REGISTRY OFFICE.** - **EXHIBIT P2 TRUE COPY OF TAX RECEIPT DATED 03/07/2020 EVIDENCING THE PAYMENT OF TAX BY PETITIONERS.** - **EXHIBIT P3 TRUE COPY OF THE PHOTOGRAPH EVIDENCING THE EXISTENCE OF VILLAS.** - **EXHIBIT P3(A) TRUE COPY OF THE PHOTOGRAPH EVIDENCING THE EXISTENCE OF VILLAS.** - **EXHIBIT P3(B) TRUE COPY OF THE PHOTOGRAPH EVIDENCING THE EXISTENCE OF VILLAS.** - **EXHIBIT P3(C) TRUE COPY OF THE PHOTOGRAPH EVIDENCING THE EXISTENCE OF VILLAS.** - **EXHIBIT P3(D) TRUE COPY OF THE PHOTOGRAPH EVIDENCING THE EXISTENCE OF VILLAS.** - **EXHIBIT P3(E) TRUE COPY OF THE PHOTOGRAPH EVIDENCING THE EXISTENCE OF VILLAS.** - **EXHIBIT P3(F) TRUE COPY OF THE PHOTOGRAPH EVIDENCING THE EXISTENCE OF VILLAS.** - **EXHIBIT P3(G) TRUE COPY OF THE PHOTOGRAPH EVIDENCING THE EXISTENCE OF VILLAS.** - **EXHIBIT P3(H) TRUE COPY OF THE COPIES OF THE PHOTOGRAPHS EVIDENCING THE EXISTENCE OF VILLAS.** - **EXHIBIT P3(I) TRUE COPY OF THE PHOTOGRAPH EVIDENCING THE EXISTENCE OF VILLAS.** - **EXHIBIT P4 TRUE COPY OF THE PHOTOGRAPH OF THE PETITIONERS' PLOT.** **EXHIBIT P4(A) TRUE COPY OF THE PHOTOGRAPH OF THE PETITIONERS' PLOT.** 14 W.P(C) No. 14643 of 2020 **EXHIBIT P4(B) TRUE COPY OF THE PHOTOGRAPH OF THE PETITIONERS' PLOT.** **EXHIBIT P5 TRUE COPY OF THE PLAN IN RESPECT OF PROPOSED RESIDENTIAL BUILDING OF PETITIONERS.** **EXHIBIT P6 TRUE COPY OF THE BUILDING PERMIT APPLICATION DATED 24/07/2019 ALONG WITH CHECK LIST INFORMATION.** **EXHIBIT P7 TRUE COPY OF THE COMMUNICATION DATED 12/06/2020 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P8 TRUE COPY OF THE JUDGMENT DATED 07/09/2010 IN W.P.(C) NO.22338 OF 2010 OF THIS HON'BLE COURT.** **EXHIBIT P9 TRUE COPY OF THE JUDGMENT DATED 20/10/2011 IN W.P.(C) NO.23281 OF 2011 OF THIS HON'BLE COURT.** **EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED 10/04/2013 IN W.P.(C) NO.20204/2012 OF THIS HON'BLE COURT.** **RESPONDENT'S/S EXHIBITS: NIL** **//TRUE COPY//** **PA TO JUDGE**