Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Ker) 179

IN THE HIGH COURT OF KERALA AT ERNAKULAM
S.MANIKUMAR, SHAJI P.CHALY, JJ.
Panjal Grama Panchayat, Represented By Its Secretary, P.O.Panjal – Appellant
Versus
Aneesh P., S/o.Kuttykrishnan Nair – Respondent
WA No. 185 of 2022
Decided on : 25-03-2022

Advocates:
Advocate Appeared:
For the Appellant : P.C.SASIDHARAN
For the Respondent: SRI.LINDONS C.DAVIS, SMT.SWATHY.A.P.

Point of Law: a purchaser of a small plot from a large extent of property is not liable to secure any land development permit in contemplation of the provisions of Rules, 2019.

Headnote:
Kerala Panchayat Building Rules 2019 - Building permission - Layout - A purchaser of a small plot from a large extent of property is not liable to secure any land development permit in contemplation of the provisions of Rules, 2019.
Finding of the Court :
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 - 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.
Result: Appeal dismissed

Judgement Key Points

Key Points: - The case held that a purchaser of a small plot from a larger extent is not required to secure a land development permit to obtain a building permit, under Rules 2019. (!) - Rules 2019 definitions of 'developer' and 'development of land' imply development permits are required when activities fall within those definitions, particularly for subdivision and layout, but not for mere sale of a small portion by a vendor who did not undertake development of the entire parcel. (!) (!) (!) - The court followed the precedent in Nafeesa v. Chavakkad Municipality, distinguishing situations where the purchaser seeks a building permit for a small plot from those where development of the entire larger parcel is pursued. (!) (!) - The writ petition and appeals were decided in favor of the writ petitioner/purchaser, quashing notices demanding a development permit and directing consideration of the building permit application without insisting on a development permit. (!) (!) - The Supreme/Court-style reiteration: if subdivision does not entail 'development of land' in the hands of the purchaser, a development permit may not be required for a building permit. (!) - The judgment notes that joint development by multiple plot purchasers would have a stronger basis for requiring development permits, which was not established in this case. (!)

What is the legality of requiring a land development permit for a purchaser of a small plot carved out from a larger extent under Kerala Panchayat Building Rules 2019?

What is the extent of the applicability of Kerala Panchayat Building Rules 2019 to subdivision of plots and development of land when a purchaser buys a small plot from a larger parcel?

What are the rights of a purchaser of a small plot to obtain a building permit without a prior development permit under Rules 2019, as interpreted by the Kerala High Court in this case?

JUDGMENT :

SHAJI P.CHALY, J.

This appeal is preferred by the respondents in W.P.(C) No.27104 of 2021, challenging the judgment of the learned Single Judge dated 10.12.2021, whereby the learned Single Judge allowed the writ petition, quashed Exhibits P6 and P7 notices issued by the 2nd appellant i.e., the Secretary, Panjal Grama Panchayat, Thrissur District and directed the appellants to take up the applications submitted by the writ petitioner for building permit, and consider the same and pass orders within one month from the date of receipt of a copy of the judgment. The subject issue arises under the Kerala Panchayat Building Rules 2019, hereinafter called Rules 2019

2. Exhibit P6 is a notice issued by the 2nd appellant dated 12.7.2021, whereby the writ petitioner was informed that since the property for which the building permit sought for is deemed to be an area where plot sub-division is required under rule 31(1) of the Rules, 2019, however, the writ petitioner has not submitted the documents related to lay out approval under rule 31(13) of Rules, 2019. Therefore, the writ petitioner was directed to produce the plot layout in accordance with rule 31(13) of Rules, 2019, within 7 days; whereas Exhibit P7 is a notice issued by the 2nd appellant dated 16.10.2021, informing the writ petitioner that the land development permit under rule 3(2) of the rules, 2019 for the land including the survey number in question is not available till date, and therefore, informed that the local body Secretary has only the power to regularise construction/land development activities, which have complied with rule 92 of the Rules, 2019, dealing with the power of the Secretary to regularise certain constructions.

3. The sum and substance of the case of the appellant Panchayat is that no land development permit was secured by the owner of the property to sub -divide the larger extent of property in his ownership and possession, from whom the writ petitioner has purchased an extent of 3.86 Ares in Panjal Village, Thrissur District as per Exhibit P1 sale deed dated 30.3.3021.

4. The learned Single Judge, after taking into account the rival submissions and pleadings, has followed the proposition of law laid down by a learned Single Judge of this Court in Nafeesa v. Chavakkad Municipality [2018(3) KLT 1] and held that a purchaser of a small plot from a large extent of property is not liable to secure any land development permit in contemplation of the provisions of Rules, 2019. In fact, the judgment in Nafeesa (supra)rendered by the learned Single Judge, is on the basis of the Kerala Panchayat Building Rules, 2011, however, the rules were typical in nature.

5. Brief material facts for the disposal of the writ appeal are as follows; the writ petitioner and his wife purchased 3.86 Ares of land in Panjal Village, Thrissur District as per Exhibit P1 sale deed dated 30.3.2021. Petitioner has filed an application on 5.7.2021 for building permit before the Secretary of the aforesaid Grama Panchayat-the 2nd appellant, however, petitioner was served with Exhibits P6 & P7 notices demanding to produce the plot development permit for considering the building permit application. According to the writ petitioner, he has purchased a small extent of dry land for constructing a residential building and he does not intend to develop land further in contemplation of the provisions of Rules, 2019. Therefore, according to the writ petitioner, there is no requirement for plot development permit and hence, the directions contained in Exhibits P6 & P7 notices are not legally sustainable.

6. Appellants have filed a detailed counter affidavit basically stating that whenever, there is a subdivision of plot, a development permit has to be secured from the Secretary of the Grama Panchayat, as required under the provisions of Rules, 2019; relying upon rule 2(ae), rule 4, rule 5, and rule 31 of the Rules, 2019 it is submitted that since development permit is a mandatory requirement in or

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