IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 33397 of 2009(T)
1. P.K.USMAN, MANAGING PARTNER, P.K. & SONS
... Petitioner
Vs
1. CORPORATION OF CALICUT,
... Respondent
For Petitioner :SRI.K.P.DANDAPANI (SR.)
For Respondent :SRI.K.D.BABU,SC,KOZHIKODE CORPORATION
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :18/12/2009
O R D E R
THOTTATHIL B. RADHAKRISHNAN, J.
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W.P.(C).No.33397 of 2009-T
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Dated this the 18th day of December, 2009.
JUDGMENT
“CR”
Is the Secretary of a Municipality empowered to
issue permission, transferring a development
permit or a building permit in part and allowing
the commencement or continuation of the work
following such transfer?
1.The petitioner obtained a development and
building permit. Later, respondents 2 and 3
purchased a portion of the land involved in that
permit and the semi-finished structures standing
thereon, with the right to continue to build that
portion. The Secretary of the first respondent
Corporation issued Ext.P8 taking the view that
the permit cannot be transferred in part. Hence,
this writ petition.
WPC33397/09 -: 2 :-
2.Rule 21 of the Kerala Municipality Building
Rules, 1999, hereinafter referred to as the
“KMBR”, deals with intimation regarding transfer
of plots. Sub-rule 1 thereof provides that every
person holding development or building permit
shall, unless the work has been executed in full
and development or occupancy certificate
obtained, inform the Secretary, every transfer of
the whole or part of any property involved in the
permit together with the name and address of the
transferee and his intention to transfer, or
otherwise, the permit. This provision itself is
sufficient intrinsic tool, by way of statutory
material, to hold that there is no prohibition
for transfer of a part only, of any property
involved in a development or building permit. All
that is required is that the transfer of the
property, whether in whole or in part, has to be
intimated to the Secretary. The transferor shall
also intimate to the Secretary his intention to
transfer the permit or not. Therefore, this sub-
WPC33397/09 -: 3 :-
rule itself is sufficient indicator of the fact
that there is no embargo for the owner of the
land under development, or the building under
construction, to transfer only a part of it. Such
transfer does not require the permission of the
Secretary. The transfer is to be intimated to the
Secretary. If the transferor informs the
Secretary of his intention to transfer the
permit, he essentially informs his consent for
the transfer, following which the Secretary can
proceed with any request for transfer of the
permit on such basis.
3.Sub-rule 2 of Rule 21 provides that every person
in whose favour any property is transferred along
with a development or building permit shall,
before commencing or continuing the work, obtain
permit of the Secretary in writing. This
provision specifically amplifies the fact that
the rules envisage that the Secretary can
recognize transfer of the property, however that,
the transferee shall not commence or continue the
WPC33397/09 -: 4 :-
work without obtaining permit of the Secretary.
4.Sub-rule 4 of Rule 21 provides that, if convinced
that the transfer will not in any way badly
affect the development or construction, the
Secretary shall issue permission in writing,
transferring the permit and allowing the
commencement or continuation of the work. The
said sub rule prescribes 15 days for the
Secretary to issue the permission from the date
of receipt of the request for it.
5.The conjoint effect of sub-rules 1 and 4 of Rule
21 is that the holder of a development or
building permit is entitled to transfer the
property involved in the permit either in whole,
or in part, and the Secretary is empowered to
issue permission transferring the permit in
accordance with such transfer, if convinced that
the transfer will not, in any way, badly affect
the development or construction. Therefore, if
there is severance of the property in relation to
WPC33397/09 -: 5 :-
which the development or building permit was
originally issued, the transfer of the portion of
the permit can be effected in favour of
transferee, to facilitate further construction.
But, this could be only made depending on, and
fully in terms with, the lay out as approved in
relation to the original permit and licence. By
virtue of sub rule 2 of Rule 21 of KMBR, such
application can be considered by the Secretary
and permit that the Secretary would issue in
terms of Rule 21(2) is a permit to continue the
work in terms of the approved lay out and the
building permit/development permit already
granted.
6.The issue in hand can be looked at from a
different angle also. Even if it were that the
original grantee of the development or building
permit completes the construction, there is no
law which prohibits the transfer of the whole or
a part of the completed building. Therefore, it
would be unreasonable to say that such transfer
WPC33397/09 -: 6 :-
cannot be made before the completion. The very
provision in Rule 21(1), casting statutory
responsibility on the transferor to inform, by
itself provides the statutory clue that transfer
before completion is not forbidden. Logically,
therefore, even in cases where the work is yet to
be executed in full, the grantee of the licence
is entitled to transfer any part of the property
in relation to which the permit is granted and
also to express his intention; thereby meaning,
consent, to transfer the permit. Such transfer of
the permit shall be in terms of the order of the
Secretary in consonance with Rule 21(2) in
relation to the portion of the property covered
by the transfer without, in any manner, impairing
the lay out fixed originally, in relation to the
development or building permit, as issued
initially to the transferor.
In the light of what is stated above, the
impugned Ext.P8 order taking the view that there
cannot be a partial transfer of permit is quashed
WPC33397/09 -: 7 :-
and the first respondent is directed to take up
the request of the petitioner and that the
respondents 2 and 3 may make, for transfer of the
portion of Ext.P7 development/building permit in
terms of what is stated above. Let this be done
within a period of two weeks from the date of
receipt of a copy of this judgment. Writ petition
ordered accordingly.
THOTTATHIL B.RADHAKRISHNAN,
JUDGE.
Sha/0601