Panchayat:Repo18/Law Manual Page0334

Firma Investment and Trading (P) Ltd.'s case which was also noticed by the Apex Court in Para 31 of the judgment - M/s. Asset Homes Private Ltd. and Another v. State of Kerala and Another - 2011 (1) KHC 276: 2011 (1) KLT 257 : ILR 2011 (1) Ker. 310: 2011 (1) KLJ 351. [B.6 Holiday Resorts Pvt. Ltd. v. State of Kerala, 2003 KHC 170. [2003 (1) KLT 984; (Para 17); Commissioner of Municipal Corporation, Shimla v. Prem Lata Sood and Others, 2007 KHC 3720 : 2007 (11) SCC 40: JT 2007 (7) SC 336; (Paras 4, 15, 19); Howrah Municipal Corporation and Others v. Ganges Rope Co. Ltd. and Others, 2004 KHC 405 : 2004 (1) BCC 663: (Paras 4. 13, 14, 15, 19): Kuldeep Singh V. Govt. of NCT of Delhi, 2006 KHC 876 AIR 2006 SC 2652 : 2006 (5) SCC 702: JT 2006 (6) SC 199 : 2006 (3) KLT SN 92; (Para 17)S.B. International Ltd v. Asstt. Director General of Foreign Trade, 1996 KHC 712 : 1996 (2) SCC 439 : AIR 1996 SC 2921; (Para 15); State of W.B. v. Terra Firma Investment and Trading (P) Ltd, 1995 KHC 1213 : 1995 (1) SCC 125; (Para 13); Union of India v. Indian Charge Crome, 1999 KHC 1328: 1999 (7) SCC 314 : AIR 1999 SC 3504; (Para 15); Usman Gani J. Khatri v. Cantonment Board, 1992 KHC 881: 1992 (3) SCC 455 : AIR 1994 SC 233; (Para 13) - Referred to).

By virtue of the provisions contained in Chapter XXI, power to consider and pass orders on an application for building permit is exclusively conferred on the Secretary of the Panchayat. The Committee of the Panchayat gets jurisdiction to consider an application only in a case where reference is made to it under Section 235 K. If power is conferred on the Secretary, the same has to be exercised in the manner as provided under Section 185 B, which has to be done independently and solely by him and without any interference or influence by the Panchayat, the President or Chairman of the Standing Committee. In this case, while power is thus conferred exclusively on the Secretary, the Panchayat on its own, passed resolution resolving not to grant building permit. It is this decision which was repeated by the Panchayat again. Both the orders are without jurisdiction by virtue of the fact that power has been conferred by the Legislature on the Secretary of the Panchayat, which the secretary has to exercise independently as provided in Section 185B of the Act. If so, the conclusion of the Tribunal order cannot be held illegal. (Para 7): Dharmadom Paristhithi Samrakshna Samithi v. Dharmadom Grama Panchayat - 2010 (2) KHC 522 : 2010 (2) KLT 194 : ILR 2010 (2) Ker. 547.

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 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. (Para 6) - Usman P.K. v. Corporation of Calicut and Others – 2010 (1) KHC 386 : 2010 (1) KLT 367 : ILR 2010 (1) Ker. 477.

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-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 be Secretary. If there is severance of the property in relation to which the development or building permit was originally issued, the transfer of the portion of the permit can be effected in favor 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. - Usman P.K. v. Corporation of Calicut and Others - 2010 (1) KHC 386 : 2010 (1) KLT 367 : ILR 2010 (1) Ker. 477.80

Mode of service of notice in the ordinary course is personal service. When a notice is issued which has a bearing on rights of parties, for e.g. the rejection of a building permit, it has to be sent by registered post. The expenses for registration charges cannot be collected from the addressee. – M/s. BBP Properties Private Ltd. v. Chengamanadu Grama Panchayat and Another - 2010 (1) KHC 169.

Sub-rule (iii) of Rule 3, provides that, all developments and constructions existing or proposed in any village panchayat area to which the provisions of these Rules are extended, shall also be covered by the Kerala Municipality Building Rules. The Petitioners attack the said provision as ultra vires and

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