W.P.(C) Nos. 4204/2020, 4289/2020 and 4381/2020

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 17TH DAY OF FEBRUARY 2020 / 28TH MAGHA, 1941** ## **WP(C).No.4204 OF 2020(A)** ## **PETITIONER:** **BABURAJ AGED 51 YEARS S/O. VENU, PERAMANGALATH HOUSE, NO V/57 KAIPARAMBU, P.O MUNDUR, THRISSUR 680 541** **BY ADVS. SRI.A.R.NIMOD SRI.M.A.AUGUSTINE SRI.C.T.SHAJI** ## **RESPONDENT:** ## **AVANOOR GRAMA PANCHAYATH** **REP BY ITS SECRETARY, VALAPPAYA P.O MEDICAL COLLEGE, THRISSUR 680 596** **R1 BY ADV. SRI.C.A.ANOOP R1 BY ADV. SMT.R.KRISHNA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.02.2020, ALONG WITH WP(C).4289/2020(I), WP(C).4381/2020(W), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)Nos.4204/2020 & con.cases 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 17TH DAY OF FEBRUARY 2020 / 28TH MAGHA, 1941** ## **WP(C).No.4289 OF 2020(I)** ## **PETITIONER:** **SONIYA K.A AGED 31 YEARS W/O. A JOMON, KOCHUKUDIYATTIL HOUSE, VILAMANA, IRITTY, KANNUR DISTRICT 670 703.** **BY ADVS. SRI.JACOB SEBASTIAN SRI.K.V.WINSTON SMT.ANU JACOB** ## **RESPONDENTS:** **1 MALAMPUZHA GRAMAPANCHAYAT MALAMPUZHA, PALAKKAD DISTRICT, 678 005, REPRESENTED BY ITS SECRETARY.** **2 THE SECRETARY, MALAMPUZHA GRAMA PANCHAYAT, MALAMPUZHA, PALAKKAD DISTRICT 678 005.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.02.2020, ALONG WITH WP(C).4204/2020(A), WP(C).4381/2020(W), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)Nos.4204/2020 & con.cases 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 17TH DAY OF FEBRUARY 2020 / 28TH MAGHA, 1941** ## **WP(C).No.4381 OF 2020(W)** ## **PETITIONER:** **PREMAN, AGED 69 YEARS** **S/O. KRISHNAN, CHANNASSERY HOUSE, VADANAPPILLY P.O, THRISSUR 680 614** ## **BY ADV. SRI.BINOY VASUDEVAN** ## **RESPONDENTS:** **1 KOLAZHI GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, KOLAZHI , MULAGUNNATHUKAVU P.O, THRISSUR DISTRICT 680 581 2 SECRETARY, KOLAZHI GRAMA PANCHAYAT, KOLAZHI, MULAGUNNATHUKAVU P.O, THRISSUR DISTRICT 680 581** **R1-2 BY SRI. SANTHOSH P.PODUVAL, SC, KOLAZHY GRAMA PANCHAYAT** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.02.2020, ALONG WITH WP(C).4204/2020(A), WP(C).4289/2020(I), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C)Nos.4204/2020 & con.cases 4 ## **ALEXANDER THOMAS, J.** ------------------------------------------- W.P.(C)Nos.4204, 4289 & 4381 of 2020 ---------------------------------------------Dated this the 17[th] day of February, 2020 ## **JUDGMENT** The prayers in Writ Petition (Civil) No.4204/2020 are as follows:- _“(i) call for the records leading to the passing of Ext.P2 and quash the same by the issue of a writ of certiorari or other appropriate writ, order or direction._ _(ii) issue a writ in the nature of mandamus directing 1[st] respondent to reconsider petitioner's application for building permit dehors development permit;..”_ 2. The prayers in Writ Petition (Civil) No.4289/2020 are as follows:- _“I. quash exhibit-P3 issuing a writ in the nature of certiorari; II. issue a writ in the nature of mandamus commanding the respondents to consider the application for building permit submitted by the petitioner without insisting on a development permit to be obtained by her assignor; and..”_ 3. The prayers in Writ Petition (Civil)No.4381/2020 are as follows:- _“i. Issue a Writ of Certiorari or other appropriate Writs, Orders or Directions to call for the records leading upto Exhibit P-4 and to quash the same;_ _ii. Issue a Writ of Mandamus or other appropriates writs, orders of directions commanding the 2[nd] respondent to consider the application for building permit submitted by the petitioner without insisting for a development permit as expeditiously as possible at any rate within a time frame to be fixed by this Hon'ble Court.”_ 4. Heard Sri. A.R. Nimod, learned counsel appearing for the petitioner and Sr. C.A. Anoop, learned Standing Counsel appearing for R1 5 W.P.(C)Nos.4204/2020 & con.cases Avanur Grama Panchayat in W.P.(C)No.4204/2020, Sri. Jacob Sebastian, learned counsel appearing for the petitioner in W.P.(C)No.4289/2020 and Sri. Binoy Vasudevan, learned counsel appearing for the petitioner and Sri.Santhosh P. Poduval, learned Standing Counsel appearing for the respondent Kolazhi Grama Panchayat in W.P.(C)No.4381/2020. 5. After hearing both sides, it is seen that the matter in issue is covered by the legal principles laid down by this Court in the judgment in _**Nafeesa**_ v. _**Chavakkad Municipality**_ [2018(3) KLT 1], wherein it has been held that the definition of “development of land” would clearly indicate that, in the context of sub-division of land, a mere sub-division of land per se, without anything more, would not attract the definition of “development of land” for the purposes of the Kerala Municipality Building Rules as well as the Kerala Panchayat Building Rules. It has been held that the definition is unambiguous, when it states that the sub-division of land for residential plots or for other uses including the 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. It has been further held therein that unless in the hands of the purchaser of the smaller portion of land, activity which attracts the definition of “development 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 a development permit prior to applying for a building permit for the W.P.(C)Nos.4204/2020 & con.cases 6 said construction. It will be profitable to refer to paragraph No.5 of the above said judgment of this Court in **Nafeesa's case (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, 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) `qhnIk\w F നനൽ ImÀjnImhiy§Ä¡ലനsX `qantbm Pemib§tfm \nI¯n `qanbpsS D]tbmK¯n ൽ sIm ണhcp നtXm കകനണphcm³ Dt±in¡p നXm Bb apJy amäw A കല¦n ൽ `qanbpsS \nehnepÅ ap³ D]tbmK¯n ൽ amäw hcp¯ns¡m ണv sXcphpIÄ, \S¸mXIÄ F നനh {IaoIcn¡pI, ]mÀ¸nS t¹m«pIÄ¡pth ണണ `qan hn`Pn¡pI A കലങനൽ DÄsXcphpIfpsS {IaoIcWw, NXp¸v \ne§fn ൽ amäw hcp¯ൽ, D ലനtkmZym\§Ä, IfnØe§Ä t]mepÅhbpsS hnIk\§Ä F നÀ°amIp ന F നനൽ AhIminIÄ X½n ൽ IpSpw_kz¯v \nbam\pkrXw `mKw hbv¡p നനXv CXn ൽ D ൾs¸Sp നX 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 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_ W.P.(C)Nos.4204/2020 & con.cases 7 _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. ”_ 6. Accordingly, it is ordered that the matter would requires serious reconsideration at the hands of the respondents concerned in these three cases. The matter will stand remitted to the respondent local authority concerned for consideration and decision afresh. In W.P.(C)No.4204/2020 and W.P.(C)No.4381/2020, the respondents have been duly served. Accordingly, it is ordered that the impugned orders in those writ petitions will stand set aside and the matter will stand remitted to the competent authority of the respondent local authority concerned for consideration and decision afresh, in the light of the legal principles laid down by this Court in 8 W.P.(C)Nos.4204/2020 & con.cases paragraph No.5 of the judgment in _**Nafeesa's case (supra)**_ . So also, the matter in relation to W.P.(C)No.4289/2020 will stand remitted to the competent authority of the respondent Malampuzha Panchayath therein for consideration and decision afresh, in the light of the above said legal principles laid down by this Court in _**Nafeesa's case (supra).**_ Fresh orders in the matter should be duly rendered by the competent authority of the respondent local authority concerned in these three cases, after affording reasonable opportunity of being heard to the respective petitioners through their authorised representative/counsel, if any, and in the light of the above said legal principles laid down by this Court in _**Nafeesa's case (supra),**_ without much delay preferably within a period of 2-3 weeks from the date of production of a certified copy of this judgment. The Registry will forward a copy of this judgment to the respondent Malampuzha Grama Panchayat in W.P.(C)No.4289/2020 for necessary information and further action. With these observations and directions, the above three writ petitions will stand finally disposed of. _Sd/-_ ## **ALEXANDER THOMAS, JUDGE.** acd W.P.(C)Nos.4204/2020 & con.cases 9 ## **APPENDIX OF WP(C) 4204/2020** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE SALE DEED NO 263/1/2014 DATED 20-01-2014 EXHIBIT P2 TRUE COPY OF THE ORDER NO. A3-8957/2019 ISSUED BY THE FIRST RESPONDENT DATED 2101-2020 EXHIBIT P3 TRUE COPY OF JUDGMENT IN W.P(C) 78346/2015 DATED 08-07-2015 EXHIBIT P4 TRUE COPY OF JUDGMENT IN W.P(C) 26204/2019 DATED 14-10-2019** W.P.(C)Nos.4204/2020 & con.cases 10 ## **APPENDIX OF WP(C) 4289/2020** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF REGISTERED SALE DEED NUMBER 1638/2019 OF THE SRO, OLAVAKKODE.** **EXHIBIT P2 A TRUE COPY OF THE POSSESSION CERTIFICATE RELATING TO THE PLOT DATED 29.8.2019. EXHIBIT P3 A TRUE COPY OF THE ORDER DATED OCTOBER 4, 2019 ISSUED BY THE SECOND RESPONDENT. EXHIBIT P4 A TRUE COPY OF THE INFORMATION PROVIDED BY THE FIRST RESPONDENT PANCHAYATH, DATED OCTOBER 19, 2019.** W.P.(C)Nos.4204/2020 & con.cases 11 ## **APPENDIX OF WP(C) 4381/2020** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF DOCUMENT NO. 6649/2008 OF S.R.O THRISSUR EXHIBIT P2 TRUE COPY OF THE LAND TAX RECEIPT DATED 1- 11-2019 ISSUED BY THE VILLAGE OFFICER KOLAZHI VILLAGE EXHIBIT P3 TRUE COPY OF THE POSSESSION CERTIFICATE DATED 26-11-2019 ISSUED BY THE VILLAGE OFFICER KOLAZHI VILLAGE EXHIBIT P4 TRUE COPY OF THE COMMUNICATION DATED 31-012020 ISSUED BY THE 2ND RESPONDENT EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN NAFEESA VS. CHAVAKKAD MUNICIPALITY (2018 3 KLT 1) EXHIBIT P6 TRUE COPY OF THE JUDGMENT DATED 16-10-2019 IN W.P(C) NO. 21040 OF 2012**