Partly allowed

Nixon C.J. v. Nenmanikkara Grama Panchayat

Kerala HC15 Feb 2019WP(C)/2182/2019

Case brief

AI extract

What is this about?

The Court held that innocent purchasers of a sub-divided plot are not required to submit an application for a development permit before seeking a building permit. However, to protect local body revenue, the petitioners must pay fees for the specific extent of property they hold before their building permit is considered.

What did the court decide?

Directed the 2nd respondent to raise a demand for fees for the petitioners' extent of property within three weeks; upon payment, the building permit application shall be considered within one month wi

Nixon C.J. Vs Nenmanikkara Grama Panchayat — Property and Title | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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FRIDAY ,THE 15TH DAY OF FEBRUARY 2019 / 26TH MAGHA, 1940

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WP(C).No. 2182 of 2019

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PETITIONER/S:

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1 NIXON C.J., AGED 47 YEARS, S/O. C.T. JOSE, CHAKKUMPEEDIKA, P.O. PUTHUKKAD, THRISSUR DISTRICT, PIN-680 301.

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2 BEELA NIXON, AGED 41 YEARS, W/O. NIXON C.J., CHAKKUMPEEDIKA, P.O. PUTHUKKAD, THRISSUR DISTRICT, PIN-680 301.

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BY ADVS. SRI.C.A.CHACKO SMT.C.M.CHARISMA SMT.MEGHA K.XAVIER

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RESPONDENT/S:

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1 NENMANIKKARA GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, NENMANIKKARA, THRISSUR DISTRICT-680 301.

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2 THE SECRETARY, NENMANIKKARA GRAMA PANCHAYAT, NENMANIKKARA, THRISSUR DISTRICT-680 301.

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BY ADVS.

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R1 & R2 BY SRI.C.HARIKUMAR SRI.RENJITH RAJAPPAN

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No.2182 of 2019

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JUDGMENT

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Petitioners are the joint owners of an extent of 2.71 Ares of property comprised in Survey No.664 of Thrikkur Village in Mukundapuram Taluk. Petitioners have applied for a building permit with the Secretary of the 1^st respondent Grama Panchayat. However, petitioners were served with Ext.P3 notice dated 05.01.2019 by the 2^nd respondent, informing that a development permit is required in accordance with Rules 4 and 5 of the Kerala Panchayat Building Rules, 2011 (hereinafter referred to as 'the Rules, 2011'). It is thus challenging Ext.P3, this writ petition is filed.

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Respondents 1 and 2 have filed a detailed counter affidavit, justifying the stand adopted in Ext.P3. It is also submitted that, the application was handed over to the Assistant Engineer, LSGD for inspection and report, and the Engineer has submitted a report on 29.12.2018, stating that a development permit as contemplated under Rules 4 and 5 of Rules, 2011 is required for proceeding with the application. It was consequent to the said report, Ext.P3 communication was issued to the petitioners. It is also pointed out that, petitioners have purchased the land from a large extent

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W.P.(C) No.2182 of 2019

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of property, which was in the ownership of one Shajan

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and 11 others, who had preferred an application on

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17.11.2017 for development permit for subdividing

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246.50 cents of property comprised in Survey No.664 of Thrikkur Village. However, certain defects were found

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in the enquiry and they were directed to cure the defects and re-present the application. However, with a view to evade compliance of the statutory provisions,

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the erstwhile owners of the property have

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unauthorizedly subdivided the property, and sold it to several persons including the petitioners. Thereafter,

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all subsequent purchasers have approached the respondent Panchayat seeking issuance of building permit and all of them were duly informed to submit the development permit as per communication dated 17.01.2019.

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It is also submitted that, in accordance with

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Rule 4(1) of the Rules, 2011, whenever there is a subdivisioning, an applicant is duty bound to submit a development permit. That apart, it is submitted that, 'development of land' is defined as per Rule 2(ac) of Rules, 2011, means; any material change on the use of

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land other than for agricultural purpose and legal partitioning brought about by changing from

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W.P.(C) No.2182 of 2019

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existing/former use of the land, layout of streets and

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includes sub-division of land. Therefore, the sum and substance of the contention advanced by learned counsel

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for the Panchayat is that, the stand adopted by the Panchayat in Ext.P3 is in accordance with law, and

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there is no arbitrariness or illegality on the part of the Panchayat, justifying interference of this Court under Article 226 of the Constitution of India.

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I have heard respective counsel across the Bar

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and perused the pleadings and the documents on record.

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The sole question to be considered is, whether

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a purchaser of a small extent of property sub-divided from a larger extent is liable to produce any 'development permit' in accordance with Rules 4 and 5 of the Rules, 2011, for consideration of a building permit application. It is true, the development of land as defined under Rules, 2011, takes in all

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developments other than for agricultural operations and legal partitioning. Here is a case where petitioners

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are innocent purchasers of a small extent of property and there should be a way out. So far as development

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of property by subdividing the larger extent is concerned, it is the look out of the owner of the larger extent of property to secure the development

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W.P.(C) No.2182 of 2019

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permit. Once a portion of the property is sold to

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other persons, then the purchaser of the property, as of right, is entitled to develop the plot purchased by him, in accordance with law. It is also to be borne in mind that the purchaser of the small extent of property is having any right over other properties so as to submit any application for development permit, and at the most, the purchaser of smaller extent will get right over the internal roads to have access to the property purchased.

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The said issue was considered by this Court in ' Nafeesa v. Chavakkad Municipality ' [2018 (3) KLT 1]

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and held that, said purchasers are not liable to submit any application for development permit and the local body is not entitled as of right to insist for a 'development permit' for consideration of a building permit application submitted by such persons. I am in respectful agreement with the said judgment.

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However, in my considered view, the revenue of the local body is to be protected. Schedule-I of the Rules, 2011, prescribe reasonable fees to be paid for development permits in accordance with the extent of the property. At that point of time, learned counsel for the petitioners submitted that, petitioners are

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prepared to pay the same. In that view of the matter, I think it is only just and proper, the 2^nd respondent is directed to raise a demand for the extent of the property held by the petitioners, within three weeks from the date of receipt of a copy of this judgment, and if the petitioners are paying the amount demanded, the building permit application submitted by the petitioners shall be considered in accordance with law, without insisting for any development permit, at the earliest possible, and at any rate, within one month from the date of payment made, as directed above.

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The writ petition is allowed to the above extent.

Sd/-

SHAJI P.CHALY

JUDGE

St/16.02.2019

W.P.(C) No.2182 of 2019

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF PETITIONERS' SALE DEED DATED 23/1/2018 OF SRO, NELLAYI. EXHIBIT P2 TRUE COPY OF LAND RECEIPT DATED 10/4/2018 ISSUED FROM VILLAGE OFFICE, THRIKKUR. EXHIBIT P3 TRUE COPY OF COMMUNICATION DATED 5/1/2019 OF 2ND RESPONDENT. EXHIBIT P4 TRUE COPY OF JUDGMENT OF THIS HON'BLE COURT DATED 17/12/2018 IN WP(C) NO. 37998/2018. RESPONDENTS' EXHIBITS: EXHIBIT R2(A) THE TRUE COPY OF THE NOTICE ISSUED TO ONE OF THE ERSTWHILE OWNER OF THE PROPERTY, MR. SHAJAN, DATED 12.01.2018. EXHIBIT R2(B) THE TRUE COPY OF THE CIRCULAR NO.64804/R.A1/2013/LSGD DATED 27.11.2013.

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//TRUE COPY//

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P.S. TO JUDGE

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St/-

Nixon C.J. v. Nenmanikkara Grama Panchayat

Case brief

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Nixon C.J. v. Nenmanikkara Grama Panchayat

Case brief

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