V.R. Manikandan v. The Secretary, Akathethara Grama Panchayat & Akathethara Grama Panchayat

**WP(C) NO. 16948 OF 2022** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 2[ND] DAY OF JUNE 2022 / 12TH JYAISHTA, 1944 WP(C) NO. 16948 OF 2022** ## **PETITIONER/S:** V.R.MANIKANDAN AGED 60 YEARS S/O RAMAKRISHNAN, M.K. BHAVAN, VALAYAKKAD NOCHIPPULLY, PALAKKAD DISTRICT, PIN - 678 592. BY ADVS. RAJESH SIVARAMANKUTTY VIJINA K. ## **RESPONDENT/S:** 1 THE SECRETARY AKATHETHARA GRAMA PANCHAYAT, AKATHETHARA GRAMA PANCHAYAT OFFICE, PALAKKAD, PIN- 678 008. 2 AKATHETHAR GRAMA PANCHAYAT REP. BY ITS SECRETARY, AKATHETHARA GRAMA PANCHAYAT OFFICE, PALAKKAD, PIN- 678 008. BY ADV U.BALAGANGADHARAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 16948 OF 2022** **2** ## **P.V.KUNHIKRISHNAN, J** **-------------------------------------------W.P.(C.) No. 16948 of 2022 -------------------------------------Dated this the 2[nd] day of June, 2022** ## **JUDGMENT** The above writ petition is filed with following prayers : (i) Issue of Writ of Certiorari or any other Writ order or direction calling for records leading to Ext.P3 order passed by the 1[st] respondent and quash the same. (ii) Issue of Writ of mandamus or any other Writ in the like nature direction or order commanding the 1[st] respondent to pass orders on the building permit application acknowledged vide Ext.P2 receipt by the 2[nd] respondent within a time frame that may be fixed by this Hon'ble Court sans the objections raised in Exhibit P3. (iii) Pass such other orders deemed fit and proper in the facts and circumstances of the case and that may be prayed hereafter.”[SIC] 2. The petitioner seeks to quash the order passed by the 1[st] respondent rejecting the building permit mainly for the reason that 1[st] respondent insist the development permit. **WP(C) NO. 16948 OF 2022** **3** Ext.P3 is the order passed by the respondent. 3. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the respondents. 4. The counsel for the petitioner submitted that Ext.P3 order will not sustain in the light of the judgment of this Court in **Panjal Grama Panchayat, Thrissur** v. **Aneesh P. and anr.** [2022 (2) KLT 653]. The counsel submitted that the point is considered by the Division Bench of this Court in the above decision in detail and said that a purchaser of a small plot from a large extent of the property is not liable to secure any land development permit in contemplation of the provisions of Rules, 2019. The Standing Counsel on the other hand submitted that the petitioner is having 7 cents of land and it is applicable only to small plots. The counsel also submitted that the application is taken up before the District Town Planner also. This Court considered the contentions of the petitioner and the respondents. The point raised by the petitioner in this case is squarely covered in **Panjal Grama Panchayat's** case (supra). It will be better to extract the relevant portion of the **WP(C) NO. 16948 OF 2022** **4** ## judgment: “13. In our view, the development and redevelopment of land and sub- division of plots referred to in the aforesaid rules will have to be read together with rule 2(ad), rule 2(ae), defining developer and development of land. Therefore, on a conjoint reading of the aforesaid provisions , it is clear that the development permit in contemplation of the rules is required when the activities as envisaged under the definitions of “developer and development of land”” takes place. Learned counsel has relied upon rule 5 of Rules, 2019 and submitted that even a person other than a Central or State Government department, who intends to develop or redevelop any parcel of land by subdividing into plots, shall apply in writing to the Secretary in the form in Appendix A3. This would also clearly exemplify that development or redevelopment of any parcel of land by subdividing into plots is an integrated activity by the developer in contemplation of the development of land as defined under Rules, 2019. 14. The learned counsel has also relied upon rule 31 dealing with land subdivision and plot developments wherein it is stipulated that all new land subdivisions and plot developments shall be subject to, (i) the area of any newly subdivided plot, reconstituted plot or building plot shall be not less than 125 sq. metres with an average width of 6 metres. 15. In our considered opinion, that only deals with a situation where a specified area is required for a divided plot in order to carrying out construction of any residential building and the rest of the provisions under rule 31 would show that the requirements contained thereunder are required when the plot **WP(C) NO. 16948 OF 2022** **5** is developed in accordance with the 'development of land' as prescribed under rule 2(ae) of Rules, 2019. 16. Therefore, on a reading of the rules discussed above conjointly, we have no hesitation to hold that it contemplates an entirely different situation from the purchase of a small plot of land by an individual from a larger area, whether the owner of the property has divided the same into various plots and sold it or not. Learned counsel for appellants in that regard submitted that, if that is the situation, any owner of a larger area can easily dilute the provisions of the Rules, 2019. However, in our considered opinion, no such contingency arises in the context for the reason that, the purchaser of a small plot viz., the writ petitioner, has filed an application seeking building permit to carry out construction of a residential building in his plot, since he is not conferred with any other rights by the owner of the larger extent of property. Thus to say otherwise, the case projected by the appellants definitely would have had much force if the individual purchasers of the plots made a joint application for development of the plots. But there is no case for the appellants that any such joint effort is made by the different plot owners . 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 **WP(C) NO. 16948 OF 2022** **6** 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 writ petition. It is better to extract relevant portion of the judgement 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, subdivision 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 sub-division 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 **WP(C) NO. 16948 OF 2022** **7** 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.” 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 **WP(C) NO. 16948 OF 2022** **8** 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 intoaccount 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. 5. In the light of the same, it is clear that the building permit cannot be rejected for want of development permit, if the building permit is requested in small plots. In such circumstances, in the light of the **Panjal Grama Panchayat's** case (supra), the Panchayat has to reconsider the matter. To reconsider the matter in the light of the same, Ext.P3 can be set aside. Therefore, this writ petition is disposed of with the **WP(C) NO. 16948 OF 2022** **9** ## following directions : - 1) Ext.P3 is set aside. - 2) The 1[st] respondent is directed to reconsider the building permit in the light of the judgment of this Court in **Panjal Grama Panchayat's** case (supra). - 3) I make it clear that the Panchayat is free to take follow up action based on the request made to the District Town Planner. SD/- **P.V.KUNHIKRISHNAN** ## **JUDGE** SKS **WP(C) NO. 16948 OF 2022** **10** ## **APPENDIX OF WP(C) 16948/2022** PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE REGISTERED SALE DEED NO. 815/2022 OF SRO, OLAVAKKODE DATED 24-32022. Exhibit P2 TRUE COPY OF THE ACKNOWLEDGEMENT RECEIPT DATED 21-4-2022 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. Exhibit P3 TRUE COPY OF THE ORDER DATED 28-4-2022 IN NO. A4-2167 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. RESPONDENT EXHIBITS Exhibit R1(A) TRUE COPY OF THE LETTER DATED 30/05/2022 ISSUED BY THE 1ST RESPONDENT TO THE DISTRICT TOWN PLANNER, PALAKKAD Exhibit R1(B) TRUE COPY OF THE LETTER DATED 30/05/2022 ISSUED BY THE 1ST RESPONDENT TO THE DEPUTY DIRECTOR OF PANCHAYATH