Research › Search › Judgment

Kerala High Court · body

2019 DIGILAW 410 (KER)

Nenmanikkara Grama Panchayat v. Nixon

2019-06-03

C.K.ABDUL REHIM, R.NARAYANA PISHARADI

body2019
JUDGMENT : C.K. Abdul Rehim, J. Question arising for consideration is, whether there is any requirement for a person purchasing a plot for putting up a construction therein, to obtain a ‘development permit’ prior to applying for the building permit for the said construction, as required under Rule 31 of the Kerala Panchayat Building Rules, 2011 (hereinafter referred to as ‘the Rules’). 2. The 1st respondent Grama Panchayat in W.P.(C) Nos.37998 of 2018 and 2182 of 2019, is the appellant herein, challenging the judgments of the learned Single Judge directing consideration of the building permit applications put in by the respective writ petitioners. The petitioners in the Writ Petitions approached this Court when the appellant Panchayat failed to consider their individual building permit applications, by insisting upon production of ‘development permit’. Contention raised by them seems to be that, they are bona fide purchasers of small extent of land with intention for putting up residential buildings therein and that they themselves have not made any developments in the respective plots. Therefore, it was contended that the insistence for procuring a ‘development permit’ is absolutely unnecessary. On the other hand, the appellant Panchayat took the contention that, the erstwhile owner of the land, who sub-divided the land into plots, had in fact applied for a development permit, in which the appellant Panchayat had issued Ext.R2(a) letter (in W.A.No.1288 of 2019) requiring them to rectify certain defects noted in the application. But the case of the appellant Panchayat is that, without taking necessary steps for rectifying the defects in the application and without procuring necessary development permit, they sub-divided the plots and sold it to various persons. Since the development was carried out without obtaining proper permit, the building permit applied for by the individual owners cannot be granted, is the stand taken by the Grama Panchayat. 3. Learned Single Judge found that, the writ petitioners, being purchasers of small extent of property sub-divided from a larger extent, cannot be insisted upon for production of ‘development permit’ in accordance with Rules 4 and 5. it was found that, when the property is sold to other persons, the purchasers become entitled to develop the plot purchased by them in accordance with law. They have no right over other properties so as to submit any application for ‘development permit’. it was found that, when the property is sold to other persons, the purchasers become entitled to develop the plot purchased by them in accordance with law. They have no right over other properties so as to submit any application for ‘development permit’. Therefore the local bodies are not entitled as of right to insist for a ‘development permit’, as per-conditions for consideration of their building permit applications. For taking such a stand, the learned Single Judge had relied upon another decision of this Court in Nafeesa v. Chavakkad Municipality, 2018 (3) KLT 1 . it was held therein 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 purpose of the Rules, thereby necessitating obtainment of a ‘development permit’, while deciding the case in Nafeesa (supra), the learned Judge had relied upon another judgment of this Court in W.P.(C) No.20204 of 2012, dated 10.04.2013. It was held therein that, unless in the hands of the purchaser of the smaller portion of land, an activity which attracts the definition of ‘development of land’ is involved, there will 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. 4. We are of the considered opinion that the principle enunciated about will squarely apply in the case at hand. If the erstwhile owner had developed the land in question without obtaining the requisite ‘development permit’, it was left open to the appellant Panchayat to have resisted or obstructed such illegal development, in other words, appropriate legal action if any ought to have been taken against the wrongdoer, as permissible under law. But the fact that any such action could have been taken against the erstwhile owner, will not entitle the Panchayat to refuse consideration of the application for building permit submitted by the subsequent purchaser of a small plot, in which he is not intending to do any development activities other than construction of the building. 5. Hence, we are inclined to confirm the impugned judgment by denying interference. 5. Hence, we are inclined to confirm the impugned judgment by denying interference. Moreover, we take note of the fact that the learned Single Judge had protected the interest of the appellant Grama Panchayat by insisting upon the individual petitioners to make payment of the requisite fee for obtaining ‘development permits’ as enumerated in Schedule 1 of the Rules. Under the above mentioned circumstances, Writ Appeals are devoid of any merit and the same are hereby dismissed.