Sabna M.S. v. Nedumangad Municipality

W.A.No.1812 of 2022 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY, THE 13[TH] DAY OF DECEMBER 2022 / 22ND AGRAHAYANA, 1944** **WA NO. 1812 OF 2022** **AGAINST THE JUDGMENT IN WP(C) 18035/2022 OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS:** **1 NEDUMANGAD MUNICIPALITY., NEDUMANGAD P.O., THIRUVANANTHAPURAM 695541 REPRESENTED BY ITS SECRETARY . 2 THE SECRETARY, NEDUMANGAD MUNICIPALITY, NEDUMANGAD P.O., THIRUVANANTHAPURAM.** **BY ADV THOMAS ABRAHAM** ## **RESPONDENT/PETITIONER:** **SABNA.M.S., AGED 34 YEARS D/O MUMTHAZ, SACHU MANZIL, PUTHUKULANGARA P.O., THIRUVANANTHAPURAM DISTRICT 695541.** **ADV.AJAS FOR R1** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON** **13.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A.No.1812 of 2022 2 ## **J U D G M E N T Dated this the 13[th] day of December, 2022** ## **S.MANIKUMAR, CJ.** Appellants are the respondents in the writ petition. The reliefs sought for in ## the writ petition are as follows: i) Issue a writ of certiorari or any appropriate writ, order or direction to call for the records leading to Exhibit P-3 and quash the same, in the interest of justice; ii) Issue a writ of mandamus or such other appropriate writ, order or direction commanding the 2nd respondent to re-consider the application for building permit dated 08 04.2022 submitted by the petitioner afresh without insisting to submit plots subdivision details expeditiously within a time frame fixed by this Honourable court; iii) Issue a writ of mandamus or such other appropriate writ, order or direction commanding the 2nd respondent to grant building permit to thye petitioner as applied for. 2.Short facts leading to the filing of the writ appeal are as follows: 2.1 According to the writ pettioner, she is the owner in possession and enjoyment of 2.83 ares of property comprised in Block No.36, Re-Sy No.219/1-6 of Nedumangad Village, Nedumangad Taluk. The said property was obtained by her by virtue of Sale Deed No.751/2022 dated 18.03.2022 of SRO Nedumangad. The petitioner applied for a building permit on 08.04.2022 for the construction of a W.A.No.1812 of 2022 3 residential building on the said property and the said application was rejected by Exhibit P3 communication stating the reason that plot sub-division details are not submitted. 2.2 It is submitted that the stand taken by the the Secretary, Nedumangad Municipality – the 2nd respondent/2nd appellant herein, is illegal and against the law laid down by this Court. According to the petitioner, the respondents cannot demand plot sub-division details from the petitioner, who only owns a small extent of land for the purpose of issuing building permit. Hence, the writ petition. 3. Writ court, after hearing the learned counsel on both sides and considering the legal provisions, and the decision of this Court in **Nafeesa v. Chavakkad Municipality [2018(3)KLT 1],** vide judgment dated 10.6.2022 in W.P(C).No.18035 of 2022, ordered thus: “6. The construction of the petitioner does not involve any land development. There is no requirement of subdivision of plots either. A Development Permit is required only when there is a need to subdivision of plots. In the circumstances, in the light of the judgments of this Court, the writ petition is to be allowed. 7. From Ext.P4 judgment, it is discernible that in similar circumstance, a learned Single Judge of this Court following the judgment in Nafeesa v. Chavakkad Municipality (supra) has directed the respondent-Municipality therein to take up application submitted by the petitioners for Building Permit without insisting on the production of Development Permit. Therefore, following the judgment in Nafeesa v. Chavakkad Municipality (supra) and Ext.P4 judgment in W.P.(C) W.A.No.1812 of 2022 4 No.16349 of 2021, the writ petition is disposed of directing the respondents to consider the Building Permit application submitted by the petitioner without insisting for sub devision of plots or Development Permit and grant Building Permit to the petitioner, if the petitioner is otherwise eligible. A decision in this regard shall be taken within a period of one month." ## 4. Being aggrieved, instant writ appeal is filed, inter alia on the following grounds: “B. It was without considering the crucial aspects highlighted by the appellant Municipality that the judgment was passed by the Learned Single Judge. Therefore, the impugned judgment is liable to be set aside by this Hon'ble Court. C. The Learned Single Judge failed to see that judgment in **Nafeesa'** s case pertains to a scenario where the application for building permit was rejected by the Municipality requiring the petitioner therein to produce the development permit of the land from which a smaller extent was purchased by the petitioner therein. In the instant case, as can be seen from Exhibit P3, the application was rejected on the reason that the drawing was not in format and that the plot division details were not furnished. D. A perusal of the Kerala Town and Country Planning Act, 2016 would reveal that the same was enacted to "provide for promotion of planned development and regulation of growth of urban and rural areas in the State with focus on scientific spatial planning and to secure to their present and future inhabitants, sanitary conditions, amenity and convenience etc. In the instant case, petitioner seeks to undertake construction of a new residential building at W.A.No.1812 of 2022 5 Sector Arasuparambu. This Municipality has received similar applications for new constructions in the same 'Re-Survey Number. If individual applicants are granted exemptions from the rigours of the Kerala Municipality Building Rules and are allowed to effect constructions without adhering to the Master plan/Town planning scheme/layout approval, the very purpose of the Kerala Town and Country Planning Act, 2016 would be defeated. The Learned Single Judge failed to appreciate this vital aspect E. Regardless of whether it is a case of the developer sub-dividing the land and constructing the houses or the sub-divided plots being purchased by individuals who construct houses, the requirements stipulated under the Kerala Municipality Building Rules, 2019 have to be satisfied. An individual buyer cannot evade from the statutory requirements by contending that he has no connection with the development of the other plots in the region. Depending on where the plot is situated, area might be required to be carved out of his property to ensure that the street junctions are rounded off or to ensure frontage of 4 mts from the street etc. Unless layout approval/plot division details are submitted by the petitioner, these facets cannot be verified. Building permit for construction of a house can be granted only after considering all vital aspects. The Learned Single Judge lost sight of this crucial aspect. F. The plot division details sought by the Municipality are vital because the same would throw light on crucial aspects like usage of the plot and layout of the building etc. Sub Rule 6 of Rule 5 of KMBR stipulates that 'while issuing approval for plot sub division layouts or usage of plot, the District Town Planner or Chief Town Planner shall consider the following aspects: "(a) Usage of Plot: Usage of plot shall be governed by the provisions of the Master Plan / Detailed Town Planning Scheme / Interim Development Order in force under the Kerala Town and Country Planning Act 2016 (9 of 2016) W.A.No.1812 of 2022 6 prevailing in the area. In the absence of such a plan / scheme / order. approval for usage of the plot is determined in consideration of the following: (i) The surrounding developments. (ii) Availability of infrastructure facilities (iii) Physical aspects of the plot (iv) Impact on the surrounding area (b) Layout of Building: Approval for layout of building(s) is determined in consideration of the following: (i) Access to the plot and building (ii) Alignment of the internal roads (in) General setting of the building (iv) Parking arrangements and manoeuvrability (v) Aspects related to FAR and Coverage (vi) Different uses within building (vii) Provisions of the Master Plan / Detailed Town Planning Scheme/ Interim Development Order, if any, in force under the Kerala Town and Country Planning Act, (9 of 2016) 2016. Without considering these aspects, permission cannot be granted to construct a building. It is for this reason that in Exhibit P3 objection letter,it was noted that the plot division details had not been made available by the petitioner. G The Learned Single Judge failed to see that the reasons stated for rejection in Exhibit P3 i.e. shortfall in information regarding plot division and drawing not being in format are valid reasons for rejection. The judgment in Nafeesa's case was rendered taking note of the fact that "it was 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". The Municipality does W.A.No.1812 of 2022 7 not have the powers to conduct roving enquiries into the lie and extent of all the land within its jurisdiction. It is only when applications are submitted for development permit or as in the instant case, a building permit, that necessary inspections can be conducted to ascertain the details necessary. The onus is on the person proposing to effect construction to produce all the necessary documents required for the consideration of the application submitted. H. The Learned Single Judge failed to appreciate that Rule 31 of KMBR stipulates the minimum width of the plot, frontage of not less than 4 meters on any abutting street, motorable street having the prescribed width etc. Further in Rule 31(1)(v) of KMBR, it is stated that where 10 or more plots have been developed and area exceeds 0.5 hectares, 10% of the area would have to be set apart as an open space for recreation of the residents. Yet another requirement is that the street junctions are to be splayed or rounded off to give sufficient turning radii and sight distance for vehicles and minimum width of the spay is also prescribed. To ensure these aspects, Clause (vii) of Rule 31(1) stipulates that the layout or subdivision proposal shall be in conformity with the provisions of Master Plan/Detailed Town Planning Scheme/Interim Development order if any under the Kerala Town and Country Planning Act, 2016. To ascertain whether provisions have been made to satisfy all these requirements, layout approval/plot division details etc. are mandatory. l. The reasons stated for rejection in Exhibit P3 i.e., shortfall in information regarding plot division and drawing not being in format are valid reasons for rejection. If construction is permitted to take place without complying with statutory requirements, the Kerala Town and Country Planning Act, 2016 as well as the Kerala Municipality Building Rules, 2019 will virtually be rendered ineffective. However, owing to the official constraints in working out its legal remedies, the rigour of Contempt was certain to occur and therefore, the implementation of the judgment had to be done, although the entire scheme envisaged under the Municipalities Act and Town Planning Scheme would be W.A.No.1812 of 2022 8 frustrated by conceding to such a direction. The appellants have also taken steps to bring to the notice of the Government the serious ramifications of the grant of such permits to holders of small extents in larger plots which as per the law in existence requires development permit. - J. The statutory as well as Constitutional rights vested in the appellant Municipality will be infringed if the impugned judgment is allowed to sustain.” 5. The question which arises for consideration is whether the writ petitioner/respondent herein, who has purchased small parcels of land from the vendors, who had larger parcels of land, from which a smaller portion was sold to the respondent, is required to produce a development permit in respect of the lands purchased by her as a pre-condition for effecting the constructions proposed, through the building permit sought by her. ## 6. On an earlier occasion, this court in **Panjal Grama Panchayat, Thrissur and Another v. Aneesh P** reported in **[2022 (2) KHC 775]** held thus: “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 W.A.No.1812 of 2022 9 writ petition. It is better to extract relevant portion of the judgment 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 subdivision 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, W.A.No.1812 of 2022 10 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.” 18. That apart a similar view was taken by learned Single Judges prior to Nafeesa (supra) in the judgments in W.P.(C) No.23281 of 2011 dated 20th October, 2011, W.P.(C) No.20204 of 2012 dated 10th April, 2013 and W.P. (C) No.4853 of 2016 dated 18th July 2016, interpreting the typical W.A.No.1812 of 2022 11 provisions of the Kerala Panchayat Building Rules 2011. Taking into account the factual and legal circumstances discussed above, we have no hesitation to hold that the learned Single Judge was right in following the judgement in Nafeesa supra. We are also in respectful agreement with the proposition of law laid down in Nafeesa by the learned Single Judge. Taking into account the aforesaid circumstances, we do not think the appellants have made out a case of jurisdictional error or other legal infirmities, justifying our interference in the judgement of the learned Single Judge in an intra court appeal filed under section 5 of the High Court Act, 1958. Needless to say, the writ appeal fails, accordingly, it is dismissed. However, since the time period granted by the learned Single Judge for consideration of the application has already expired, it would stand extended for a period of three weeks from today.” Decision cited supra, squarely applies to the case on hand. Following the same, instant writ appeal is dismissed. Sd/- **S.MANIKUMAR, CHIEF JUSTICE** Sd/- smv **SHAJI P. CHALY, JUDGE**