Development Permit Not Needed For Residential Building In A Small Plot Just Because It Is Sub-Divided From A Large Plot : Kerala High Court

The Kerala High Court has ruled that a Panchayat cannot insist on the production of a development permit from an owner of a small portion of land, which is sub-divided from a large plot, to allow the construction of a residential building on his property as per Kerala Panchayat Building Rules, 2019.

A Division Bench of Chief Justice S. Manikumar and Justice Shaji P Chaly held that the Rules contemplate 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 had divided it into various plots and sold it or not.

"...the writ petitioner, an owner of a small extent of property not having the power or authority to seek a development permit for the entire property belonging to some other persons, cannot be compelled to secure a development permit for carrying out the construction of a residential building in his property. Moreover, merely because a larger area is divided into 56 plots and provided roads for ingress and egress to the purchasers, the Secretary of the Panchayat is not empowered under the Rules,2019 to insist on a development permit."

Upon purchasing some dry land for constructing a residential building, the petitioner filed an application for a building permit before the Grama Panchayat Secretary, but he was asked to produce the plot development permit for considering his application.

According to the petitioner, since he does not intend to develop the land further in contemplation of the Rules, there is no requirement for a plot development permit.

The Single Judge agreed with this submission based on the decision in Nafeesa v. Chavakkad Municipality [2018(3) KLT 1] held that a purchaser of a small plot from a large extent of property is not liable to secure any land development permit under the Rules. 

Challenging the legality of this judgment, the Panchayat and its Secretary moved an appeal. 

Advocate P.C.Sasidharan appearing for the appellants argued that whenever there is a subdivision of a plot, a development permit has to be secured from the Secretary as per Rules 2(ae), 4, 5, and 31.

It was further submitted that merely because a developer who subdivided the property and sold it has not secured a development permit before the sale of the plot, that will not disable the Panchayat to insist on the development permit before granting a building permit to the applicant.

Advocates Lindons C.Davis and Swathy A.P appeared for the petitioner and resisted the appeal. 

The Court took the view that the development and redevelopment of land and sub-division of plots should be read together with Rules 2(ad) and 2(ae) that define developer and development of land.

"Therefore, on a conjoint reading of the aforesaid provisions, it is clear that the development permit in contemplation of the rules is required when the activities as envisaged under the definitions of "developer and development of land" takes place."

The development or redevelopment of any parcel of land by subdividing into plots is an integrated activity by the developer in contemplation of the development of land, it said. 

It was further found that Rule 31 only deals with a situation where a specified area is required for a divided plot to carry out the construction of any residential building and the requirements contained thereunder are applicable when the plot is developed in accordance with Rule 2(ae).

As such, the Bench held that the Single Judge was right in following the judgement in Nafeesa (supra). Thererefore, it was found that the appellants had failed to make out a case of jurisdictional error or other legal infirmities, justifying our interference in the judgement. 

The appeal was accordingly dismissed. However, since the time period granted by the Single Judge for consideration of the application had already expired, it was extended for three weeks.

Case Title: Panjal Grama Panchayat & Anr. v. Aneesh P

Citation: 2022 LiveLaw (Ker) 147

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