High Court Kerala High Court

P.K.Usman vs Corporation Of Calicut on 18 December, 2009

Kerala High Court
P.K.Usman vs Corporation Of Calicut on 18 December, 2009
       

  

  

 
 
  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