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2022 Supreme(Online)(KER) 64278
HIGH COURT OF KERALA
N. NAGARESH, J
DINESH KUMAR @ DINESH KUMAR HARIHARAN – Appellant
Versus
THIRUVILWAMALA GRAMA PANCHAYATH – Respondent
WP(C) 39650/2022
R.SREEHARI HAMZA A.V.
A Development Permit is unnecessary for residential building construction that does not involve the subdivision of land per the Kerala Municipal Building Rules.
Headnote:
Permit - Building Permit - Kerala Municipal Building Rules - Sections 4, 5 - The Court held that a Development Permit is not required for constructing a residential building that does not involve land subdivision, affirming the prior judgments that support this interpretation.
Fact of the Case:
The petitioner challenged the insistence of respondents on a Development Permit for a residential building, having purchased land without plans for subdivision.
Finding of the Court:
The court found that previous rulings established the requirement for a Development Permit only when land is subdivided, which was not applicable in this case.
Issues: The main issue was whether the respondents were justified in requiring a Development Permit/Layout Approval for a residential building not involving land subdivision.
Ratio Decidendi: The court reiterated that without the subdivision of land, a Development Permit is not necessary, reinforcing interpretations of the Kerala Municipal Building Rules.
Final Decision: The writ petition is allowed; respondents must consider the Building Permit application without requiring the Development Permit.
J U D G M E N T
Dated this the 21st day of December, 2022 The petitioner has approached this Court aggrieved by the insistence made by the respondents on obtaining Development Permit for the purpose of grant of Building Permit. The petitioner challenges Ext.P5.
2. Standing Counsel entered appearance on behalf of the respondents and contested the writ petition. The Standing Counsel submitted that there was an earlier application for Development Permit and Layout Approval submitted by the previous owner of the land and the respondents had granted Layout Approval. But, the applicant submitted a revised application for Layout Approval. Pending such application, the petitioner, who has purchased a portion of the land, cannot be granted Building Permit, urged the Standing Counsel for the respondents.
3. The petitioner would submit that the petitioner has purchased 4.05 Ares of land from the property owner and the petitioner does not propose to make any development of the land. The sole intention of the petitioner is to construct a residential building. The counsel for the petitioner pointed out that the issue involved in this case is covered by various judgments of this Court.
4. I have heard the learned counsel for the petitioner and the learned Standing Counsel representing the respondents.
5. The question arising for consideration in this writ petition is whether the respondents are justified in insisting for obtaining Development Permit/Layout Approval from the petitioner for construction of a residential building. This Court inPhilip Thomas v. Geologist [ 2021 (5) KLT 227 ] held that the Kerala Municipal Building Rules do not provide for issuance of Land Development Permit in cases where building construction does not involve sub division of plots. A Development Permit under Rules 4 and 5 of the Kerala Municipal Building Rules , 2019 is required only when there is development of land by dividing land into plots. In the petitioner's case, the petitioner does not intend to sub divide any land into plots.
6. In Nafeesa v. Chavakkad Municipality [2018 (3)
KLT 1], this Court held that unless in the land of the purchaser of the smaller portion of the land, activity which attracts the definition of 'development of land' is involved, there would be no requirement of obtaining Development Permit prior to applying for a Building Permit.
In view of the binding precedents of this Court, the petitioner is entitled to succeed in the writ petition. The writ petition is allowed. The respondents are directed to consider the application for Building Permit submitted by the petitioner without insisting for Development Permit/Layout Approval and grant the petitioner Building Permit, if the petitioner is otherwise eligible. To enable the respondents to reconsider the issue, Ext.P5 is set aside. Orders on the application for Building Permit shall be passed within a period of one month.
Sd/-
N. NAGARESH, JUDGE smm APPENDIX OF WP(C) 39650/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE REGISTERED SALE DEED NO.179/2022 OF SRO PAZHAYANNUR DATED
22/01/2022, IN FAVOUR OF THE PETITIONER.
Exhibit P2 TRUE COPY OF THE BASIC TAX RECEIPT ISSUED BY THE VILLAGE OFFICER THIRUVILLWAMALA IN FAVOUR OF THE PETITIONER DATED 04/05/2022 FOR THE PERIOD 2022-2023 .
Exhibit P3 TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER THIRUVILLWAMALA IN FAVOUR OF THE PETITIONER WITH NO.227/22(1) DATED
25/05/2022 Exhibit P4 TRUE COPY OF THE APPLICATION FOR BUILDING PERMIT WITH SITE PLAN SUBMITTED BY THE PETITIONER BEFORE THE
1ST RESPONDENT ON 27/05/2022, THROUGH E-FILING MODE WITH REGISTRATION NO.1702066 .
Exhibit P5 TRUE COPY OF THE NOTICE DATED
22/06/2022 WITH NO.400687/BPRL01/GPO/2022/878(1) ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER .
Exhibit P6 TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF KERALA REPORTED IN 2018 (3) KLT 1 [NAFEESA AND ANOTHER -VS- CHAVAKKAD MUNICIPALITY AND OTHERS]
Exhibit P7 TRUE COPY OF THE A TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH
