Suresh v. Akathethara Grama Panchayath

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **THURSDAY, THE 12TH DAY OF MARCH 2020 / 22ND PHALGUNA, 1941** ## **WP(C).No.23225 OF 2019(C)** ## **PETITIONER:** **SURESH AGED 44 YEARS** **S/O.DEVADASAN, PERINGATTUKAVU HOUSE, KIZHAKKUMURI, ELAVANCHEIR-678 508.** **BY ADV. SMT.T.V.NEEMA** ## **RESPONDENTS:** **1 AKATHETHARA GRAMA PANCHAYAT OLAVAKODE MALAMPUZHA ROAD, AKATHETHARA, PALAKKAD DISTRICT-678 008, REPRESENTED BY ITS SECRETARY,** **2 THESECRETARY, AKATHETHARA GRAMA PANCHAYAT, OLAVAKODE MALAMPUZHA ROAD, AKATHETHARA, PALAKKAD DISTRICT-678 008.** **BY ADV. SRI.U.BALAGANGADHARAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12.03.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C). No. 23225 of 2019 2 ALEXANDER THOMAS, J. -----------------------------------W.P(C). No. 23225 of 2019 -----------------------------------Dated this the 12[th] day of March, 2020 ## **JUDGMENT** The case set up in this writ petition (C) is as follows: The petitioner is the owner is in possession and enjoyment of the property of 1.54 Ares in Re-Sy No.186/11 of Akathethara Village, Olavakkode in Palakkad District evident from Ext.P1. Ext.P2 is the tax receipt and Ext.P3 is possession certificate. The petitioner had applied for a building permit. But by Ext.P4 Panchayath had insisted to grant building permit stating that the petitioner did not obtain land development permit. Actually the petitioner in having small extent of land there is no need to obtain land development permit. The inaction on the part of the respondents is illegal, and unlawful. The petitioner would contend that insisting for production of land development permit in respect of small plot of land hardly to the extent of 1.54 Ares (3.80 cents), as a condition precedent for considering the grant of building permit, is absolutely illegal, arbitrary and unenforceable etc,. It is in the light of these averments and contentions, the petitioner has filed this Writ petition (C) W.P(C). No. 23225 of 2019 3 ## seeking the following prayers: _i) To issue a writ of certiorari or any other appropriate writ or order or direction calling for the records leading to Ext.P4 and quash the same._ _ii) To issue a writ of mandamus or any other appropriate writ or order or direction directing the respondents to grant building permit without insisting for 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 Honourable Court._ _iv) To grant such other relief as this Honourable Court deem fit to grant in the interest of justice_ 2. It is beyond any doubt that the extent of land possessed by the petitioner is a small plot of the land hardly having to the extent of 1.54 Ares (around 3.80 cents). It is the subject matter of application for building permit submitted by the petitioner before the respondent Grama Panchayath and which has now been rejected by the respondent Panchayath as per Ext.P4 order dated 09-07-2019. The main ground of rejection of Ext.P4 is that the said extent of land of the petitioner formed part of a larger extent of land owned by the previous owner, who has sold the said property in various small plots to various persons concerned but without obtaining development permit under Rule 31 of the Kerala Panchayat Building Rules etc,. 3. The matter in issue is no longer _res integra_ and it is covered W.P(C). No. 23225 of 2019 4 in favour of the petitioner, as per judgment rendered by this Court in a series of cases as in _**Nafeesa v. Chavakkad Municipality**_ [2018 (3) KLT 1]. Further it has been held 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 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. It will be profitable to refer Paragraph No.5 of the abovesaid judgment of this Court in _**Nafeesa’s case**_ (supra)[2018 (3)KLT 1] 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_ W.P(C). No. 23225 of 2019 5 _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� _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 subdivision 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_ W.P(C). No. 23225 of 2019 6 _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 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.”_ 4. It may be true that the abovesaid plot of land having an W.P(C). No. 23225 of 2019 7 extent of 1.5 Ares owned by the petitioner, the subject matter of the application for building permit may be formed part of the large extent of the land owned by the previous land owner and that the said previous land owner may have sold the said property in smaller parts to various persons, without obtaining development permit in terms of Rule 31. But what is relevant to be examined for deciding as to whether development permit is mandatory is the extent of land in the hands of the applicant, who submits the application for building permit. In the instant case it is beyond any doubt that the total extent of land of the petitioner for the building permit was sought for it is hardly an extent of 1.5 Ares (3.80 cents). Therefore the dictum laid down by this Court in _**Nafeesa’s case**_ (supra) would apply with all vigour and hence the petitioner cannot be denied consideration of grant of building permit merely on account of the facts that the previous owner had not obtained development permit before he had sold out the large extent of land etc,. Further now it is really improper and absurd if it is insisted that the party like the petitioner should seek development permit of the competent authority concerned for a small plot of the land having an extent of 1.5 Ares (3.80 cents). W.P(C). No. 23225 of 2019 8 5. In that view of the matter it is ordered that, the impugned Ext.P4 rejection order dated 09-07-2019 issued by the respondent Akathethara Grama Panchayath will stand set aside. Consequently, the application submitted by the petitioner for grant of building permit will stand remitted to the 2[nd] respondent, for consideration and decision afresh. The 2[nd] respondent will afford reasonable opportunity of being heard to the petitioner and should take decision on the plea of the petitioner for grant of building permit in accordance with the building rules, without much delay preferably within a period of three weeks from the date of production of the certified copy of this judgment. 6. It is made clear and reiterated that the application of the petitioner for grant of building permit cannot be rejected by the respondent Grama Panchayath by stating the grounds in Ext.P4 rejection order as it is already quashed by this Court. With these observations and directions the above Writ Petition (Civil) will stand finally disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** KAS W.P(C). No. 23225 of 2019 9 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ASSIGNMENT DEED DATED 04.06.2018. EXHIBIT P2 TRUE COPY OF BASIC TAX RECEIPT DATED 11.06.2018 OF AKATHETHARA VILLAGE OFFICER. EXHIBIT P3 POSSESSION CERTIFICATE DATED 13.06.2018 ISSUED BY THE VILLAGE OFFICER, AKATHETHARA VILLAGE. EXHIBIT P4 TRUE COPY OF THE COMMUNICATION DATED 09.07.2019 FROM THE SECRETARY, AKATHETHARA. EXHIBIT P5 TRUE COPY OF PERMIT DATED 31.10.2018. EXHIBIT P6 TRUE COPY OF THE APPROVED PLAN. EXHIBIT P7 TRUE COPY OF THE APPLICATION FOR DEVELOPMENT PERMIT SUBMITTED BY THE PETITIONER.** ## **RESPONDENT'S/S EXHIBITS: NIL**