W.P.(C) No.28767 of 2023: O.A. KuriaKose and others v. Kozhikode Municipal Corporation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **MONDAY, THE 16[TH] DAY OF OCTOBER 2023 / 24TH ASWINA, 1945** ## **WP(C) NO. 28767 OF 2023** ## **PETITIONERS :** |**1**|**O.A. KURIAKOSE,**| |---|---| ||**AGED 61 YEARS, A10, CRESCENT COURT,**| ||**PANIKKAR ROAD, NADAKKAVU P.O.,**| ||**KOZHIKODE DISTRICT, PIN – 673 011**| |**2**|**SEJIL KURIAN,**| ||**AGED 34 YEARS,**| ||**KARIMBANAKKAL, RAROTH, KOZHIKODE,**| ||**PIN – 673 573**| |**3**|**RICHA KURIAKOSE,**| ||**AGED 31 YEARS,**| ||**A10, CRESCENT COURT, PANIKKAR ROAD,**| ||**NADAKKAVU P.O., KOZHIKODE DISTRICT,**| ||**PIN – 673 011**| |**4**|**JAYA KURIAKOSE,**| ||**AGED 56 YEARS,**| ||**A10, CRESCENT COURT,**| ||**PANIKKAR ROAD NADAKKAVU P.O.,**| ||**KOZHIKODE DISTRICT, PIN – 673 011**| |**5**|**IVIN KURIAKOSE,**| ||**AGED 23 YEARS, A10, CRESCENT COURT,**| ||**PANIKKAR ROAD, NADAKKAVU P.O.,**| ||**KOZHIKODE DISTRICT, PIN – 673 011**| **BY ADV C.M.SURESH BABU** ## **RESPONDENTS :** 1 **KOZHIKODE MUNICIPAL CORPORATION, REP. BY ITS SECRETARY, BEACH P.O., KOZHIKODE DISTRICT, PIN – 673 032** **WP(C) NO. 28767 OF 2023** 2 **2 THE SECRETARY, KOZHIKODE MUNICIPAL CORPORATION, BEACH P.O., KOZHIKODE DISTRICT, PIN – 673 032 3 EXECUTIVE ENGINEER, KOZHIKODE MUNICIPAL CORPORATION, BEACH P.O., KOZHIKODE DISTRICT, PIN – 673 032** **BY SRI.V KRISHNA MENON, SC** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING :** **WP(C) NO. 28767 OF 2023** 3 ## **BECHU KURIAN THOMAS, J.** =-=-=-=-=-=-=-=-=-=-=-=-=-= **W.P.(C) No.28767 of 2023** =-=-=-=-=-=-=-=-=-=-=-=-=-= **Dated this the 16[th] day of October, 2023** ## **JUDGMENT** Would the failure to intimate the transfer of property be detrimental to an application for building permit if the transfer took place while the application was pending consideration. The issue arises for consideration in this writ petition under Article 226 of the Constitution of India. 2. Petitioners had purchased a property on 18.07.2022 from Sri.Moidu. Prior to the execution of the sale deed, Sri.Moidu had submitted an application for building permit on 02.03.2022. Since even on the date of execution of the sale deed the application for building permit had not been considered, the sale deed stipulated that the permit can be transferred into the name of the petitioners to enable them to construct the building in the property. 3. Five months after the execution of the sale deed, the Corporation issued the building permit in the name of Sri.Moidu. Thereafter, petitioners commenced construction of the building and in the meantime applied on 08.03.2023 for transfer of the permit in their name. However, on 03.06.2023, the Corporation directed the petitioners to stop construction stating that the permit cannot be transferred/ granted since **WP(C) NO. 28767 OF 2023** 4 it was issued in the name of Sri.Moidu and the registration of the sale deed took place during the pendency of the application and hence there is a violation of Rule 19 of the Kerala Municipality Building Rules, 2019 (for short, 'the Rules'). Petitioners challenge the said order rejecting their application for permit. 4. Petitioners contend that the request for transfer of permit has been refused merely due to the non-intimation of transfer of property that took place during the pendency of consideration of the application for permit. It was contended that the reason to refuse the transfer of permit is without any legal basis. According to the petitioners, the transfer of a building permit can be declined only if such transfer would affect development or the construction of the building and since none of the materials indicate that the transfer of permit would affect the development or the construction, he was bound to transfer the permit in the name of the petitioners. 5. A statement has been filed on behalf of the respondents stating that the permit was issued to a person who was no longer the owner and therefore, the direction to stop the construction is legally valid. It was further stated that under Rule 19 of the Rules, petitioners were bound to inform the Secretary in writing of the transfer of property and the failure to do so is a violation of the said provision and therefore there is no infirmity in the impugned order. 6. I have heard Sri.C.M.Suresh Babu, the learned counsel for the **WP(C) NO. 28767 OF 2023** **==> picture [7 x 10] intentionally omitted <==** petitioners as well as Sri.V.Krishna Menon, the learned Standing Counsel for the respondents. 7. The right to sell a property is an inherent right that vests with an owner of property. The said right cannot be subjected to any condition restraining such a right. Section 10 of the Transfer of Property Act stipulates that any condition restraining alienation in a sale deed is void. The right of sale being absolute that inheres in every owner of a property, can no doubt be subjected to reasonable statutory restrictions. 8. In this context, reference to Rule 19 of Rules is relevant and it reads as follows :- _**19. Transfer of plots to be intimated.-** (1) Every person holding development permit or building permit shall, unless the work has been executed in full and development or occupancy certificate obtained, inform the Secretary, every transfer of the whole or part of any property involved in the permit together with the name and address of the transferee and his intention to transfer or otherwise of the permit._ _(2) Every person, in whose favour any property is transferred along with a development or building permit by the transferor, shall before commencing or continuing the work obtain permit of the Secretary in writing._ _(3) The request for permission to commence or continue work shall be submitted in white paper along with documents regarding the ownership and possession certificate and fee of Rs.100._ _(4) The Secretary shall, if convinced that the transfer will not in any way badly affect the development or construction, issue permission in writing, transferring the permit and allowing the commencement or continuation of work, within 15 days from the date of receipt of the_ **WP(C) NO. 28767 OF 2023** 6 _request._ _(5) Permit issued becomes invalid if part of the plot included in the approved plan is transferred/ sold to any other person._ 9. A reading of the above extracted provision makes it clear that there is an obligation on every owner of a property to intimate the Secretary about the transfer of a property. The section stipulates that it is the obligation of the owner of a development permit or the holder of a building permit to first inform the Secretary in writing about the transfer and also obliges the transferee to obtain permit from the Secretary in writing before commencing or continuing the construction work. Once an application is received from the transferee for permission to commence or continue the work, if the development or construction shall not in any way be badly affected by the transfer, the permit shall be transferred within 15 days from the date of receipt of the application. 10. The obligation for intimating the transfer of property is upon the transferor. Failure of the transferor to intimate the transfer cannot under any circumstances affect the right of the transferee as an owner of property from constructing on the property. The procedure prescribed for intimating the transfer and for a permit to continue the construction is only a mode in which the Secretary can assess or verify whether the transfer will affect the development or construction. The feasibility for constructing and developing are factors already verified at the initial stage when the development permit or the permit for construction of a **WP(C) NO. 28767 OF 2023** **==> picture [7 x 10] intentionally omitted <==** building was granted. Therefore the procedure prescribed under Rule 19(1) of Rules cannot be treated as a mandatory requirement so as to vitiate any pending proceeding for the grant of building permit or even a permit that has already been granted. 11. It is relevant to bear in mind that commencement of construction without a building permit is not an illegality but is only an irregularity which can be regularised even subsequently. Therefore the failure to intimate the transfer of property while an application for building permit is pending consideration cannot vitiate the permit as and when granted. If the subsequent owner of the property wants to commence construction or continue the construction, he can request for permission and when such permission is sought for, the failure on the part of the prior owner to intimate the transfer cannot governs such an application. The only look out of the Secretary when an application is filed by the subsequent transferee to commence or continue the construction is to verify whether the said transfer would seriously affect the development or construction. 12. In this context, the judgment of this Court in **George Joseph** ## **v. Pala Municipality [2014 SCC Online Ker 17590]** wherein it was observed that failure to obtain sanction from the Municipality for continuing the construction is only an irregular exercise which can be regularised on a formal application. Similarly, in WP(C) No.31433 of 2017 ( **P.Beeran v. Tirur Municipality)** , it was observed by a learned **WP(C) NO. 28767 OF 2023** 8 Single Judge that omission on the part of the transferor to discharge the obligation of intimating the transfer cannot be a reason to reject an application for the transfer of the building permit since under the scheme of the said provision, the power to transfer a permit is independent of the need for intimating the transfer. Further in the decision in **T.Rajagopal** ## **v. The Chief Town Planner & Member Secretary [2017 SCC Online** **Ker 1182]** , relying upon the policy guidelines of the rule making authority, it was observed that the application for transfer of the building permit ought to be considered on a liberal basis and unless the competent authority is convinced that the transfer will badly affect the development or construction in question, permit is to be formally transferred in favour of the new transferee. 13. On a reading of the statutory provision, it is evident that the power to intimate the transfer is independent of the power to grant or transfer the building permit. The failure of the transferor to intimate the transfer as required under Rule 19(1) cannot be a reason to reject the transfer of the building permit to the transferee after execution of the sale deed. 14. Viewed in the above perspective, the failure of the transferor to intimate the transfer cannot affect the application for building permit that was under process. 15. Since subsequent to the transfer, petitioners have in the instant case requested for transfer of the building permit and the **WP(C) NO. 28767 OF 2023** **==> picture [7 x 10] intentionally omitted <==** Secretary has no case that the transfer will affect the development or construction, the communication dated 03.06.2023 produced as Ext.P5 directing to stop construction is hereby quashed. The Secretary shall consider the application for transfer of the building permit issued in the name of Sri. Moidu to the petitioners, as expeditiously as possible, at any rate, within a period of thirty days from the date of receipt of a copy of this judgment, bearing in mind the observations made above. The writ petition is allowed as above. Sd/- **BECHU KURIAN THOMAS, JUDGE** RKM **WP(C) NO. 28767 OF 2023** 10 ## **APPENDIX OF WP(C) 28767/2023** ## **PETITIONER'S EXHIBITS :** **Exhibit-P1 TRUE COPY OF THE SALE DEED NO.1312/ 2022 DATED 18/7/2022 OF S.R.O WEST HILL, KOZHIKODE. Exhibit-P2 TRUE COPY OF THE BUILDING PERMIT ISSUED IN THE NAME OF MOIDU WITH NO.TP8/17333/2022 DATED 22/12/2022. Exhibit-P3 TRUE COPY OF THE NO OBJECTION CERTIFICATE FOR BUILDING PERMIT DATED 21/5/2022 ISSUED BY THE DEPARTMENT OF FIRE AND RESCUE SERVICES, GOVERNMENT OF KERALA. Exhibit-P4 TRUE COPY OF THE CONSENT TO ESTABLISH CERTIFICATE DATED 15/10/2022 ISSUED BY THE POLLUTION CONTROL BOARD. Exhibit-P5 TRUE COPY OF THE SAID COMMUNICATION DATED 03/06/2023 ISSUED BY THE EXECUTIVE ENGINEER. Exhibit-P6 TRUE COPY OF THE SAID EXPLANATION DATED NIL SUBMITTED TO THE 3RD RESPONDENT.**