LI Network
Published on: December 29, 2023 at 21:40 IST
In a recent decision, the Kerala High Court clarified that the failure to inform the transfer of property, as mandated by Rules 19(1) or 19(2) of the Kerala Municipality Building Rules, 2019 (KMBR Rules, 2019), does not render an already issued building permit invalid if the construction has not commenced or been completed.
Rule 19(1) requires the transferor to inform the Secretary about the property transfer, while Rule 19(2) stipulates that the purchaser must also inform the Secretary and obtain permission to proceed with construction.
The Court emphasized that failure to inform the Secretary is a curable defect, and the prior owner and purchaser can apply to rectify this by notifying the transfer and requesting a change of name on the building permit.
Justice Bechu Kurian Thomas highlighted that invalidating a building permit solely due to a failure to inform the local authority about a property sale lacks rationale, especially when the construction adheres to the approved permit and plan.
The Court deemed the failure to notify as a curable defect rather than a substantial irregularity.
The case involved a petitioner who purchased a property with an existing building permit. The transfer was not communicated to the local authority, leading to the rejection of completion and occupancy certificate applications.
The Court ruled in favor of the petitioner, stating that the failure to inform the transfer is a directory provision, and the consequences mentioned in the rules apply only if the plot is divided by the sale.
Emphasizing that the Transfer of Property Act, 1886, governs property transfers, the Court held that the KMBR provisions cannot override this statute.
The judgment clarified that the property owner has the right to construct and use the property, subject to regulatory provisions, and failure to inform the transfer does not invalidate property ownership.
The Court directed that the petitioner, like the prior owner, could apply for the transfer of the building permit, and if the parties notify the Secretary and seek a change of name in the permit, the Secretary has the discretion to consider and approve the request.
The decision sets a precedent affirming the curability of the failure to notify property transfers and upholds the validity of building permits in such cases.
Case Title: Josepheena T.T. v. Thrissur Municipal Corporation & Anr
