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2009 DIGILAW 1130 (KER)

Mather Projects Pvt. Ltd v. Government Of Kerala

2009-11-25

K.BALAKRISHNAN NAIR, P.BHAVADASAN

body2009
Judgment :- Balakrishnan Nair, J. In this batch of Writ Petitions, the petitioners, who are builders, are challenging the transitional steps taken by the Government after the extension of the Kerala Municipality Building Rules to the Thrikkakara Grama Panchayat and other Grama Panchayats in the State and also the instructions issued by the Government to the Local Bodies as to how the constructions progressing on the strength of NOC obtained from the Panchayats concerned, at the time of extension of Building Rules, should be dealt with. Though several reliefs are sought, the main reliefs pressed before us in these Writ Petitions are the following: (i) declare that Rule 3(iii) of the Kerala Municipality Building Rules which deals with the applicability of Building Rules to Grama Panchayats, being a rule framed under the Municipality Act, cannot have any application to the Panchayats and therefore, the said sub-rule is ultra vires. (ii) to set aside the provision, providing for collection of permit fee for buildings which are completed but not yet numbered, in paragraph 5 of Ext.P4(a) Circular dated 3.7.2007 (produced in WP(C) No.13085/09) issued by the Government. Most of the other grievances raised against Ext.P4(a) have been redressed by Ext.P4(b) Circular dated 3.4.2008, issued by the Government. 2. This Writ Petition is treated as the main case for the purpose of referring to the facts and the exhibits. The brief facts of the case are the following: The petitioners constructed a multi-storeyed residential complex, on the strength of the NOC issued by the Thrikkakara Grama Panchayat. The construction was almost complete, but the building numbers were yet to be allotted. At that stage, the Government issued Ext.P3 notification dated 6.11.2006, invoking its power under Section 274(1) of the Kerala Panchayat Raj Act, 1994, extending certain provisions of the Kerala Municipality Act, 1994 and all the provisions of the Kerala Municipality Building Rules, 1999 to the Thrikkakara Grama Panchayat. The Government also issued a notification, GO(Ms) No.150/2007/LSGD dated 6th June, 2007, extending certain provisions of the Kerala Municipality Act, 1994 and all the provisions the Kerala Municipality Building Rules, 1999 (for short, 'Building Rules') to all the Village Panchayats in the State. Later, the Government issued Ext.P4 Circular dated 20.6.2007 stating the guidelines to be followed by the Grama Panchayats at the transitional stage of implementation of the Building Rules. Later, the Government issued Ext.P4 Circular dated 20.6.2007 stating the guidelines to be followed by the Grama Panchayats at the transitional stage of implementation of the Building Rules. The guidelines to be followed while implementing the Building Rules in the Thrikkakara Grama Panchayat, were communicated by Ext.P4(a) Circular dated 20.7.2007. Paragraph 5 of Ext.P4(a) being relevant for the purpose of this case, its translation is quoted below for convenient reference. "For the buildings, the structure of which is completed but which has not so far been numbered, permit fee will be applicable". Later, the Government issued Ext.P4(b) Circular dated 3.4.2008, redressing many of the grievances pointed out by the petitioners against the conditions in Ext.P4 and P4(a), but the stipulation regarding collection of permit fee mentioned above remained as such and was applicable in the case of all the Grama Panchayats in the State. 3. The petitioners attack the above quoted stipulation regarding collection of permit fee, after the construction is over but before the building is numbered. They submit, the same is highly arbitrary and unjust. In many of the cases, the floor area ratio (for short, 'FAR') of their buildings exceeds three. The rate of fee leviable for such buildings is excessive and therefore, the impugned stipulation causes serious prejudice to the petitioners, it is submitted. 4. Identical grievances are raised in other writ petitions also. The concerned Panchayats and the Government have filed counter affidavits in some of the cases, supporting the demand of permit fee. 5. We heard the learned counsel on both sides. Sri.Mayankutty Mather, learned counsel for the petitioner, re-iterated the above mentioned contentions, regarding collection of permit fee for the buildings, the construction of which was completed in accordance with the NOC issued by the Grama Panchayat. The learned counsel also submitted that Rule 3(iii) of the Building Rules is unauthorised. Invoking the power under the Kerala Municipality Act, the Government cannot frame a subordinate legislation meant for the Grama Panchayats, it is submitted. Learned Counsel, Sri.C.K.Karunakaran, who appeared in the connected writ petitions supported the above submissions and further submitted that the Grama Panchayat has issued the NOC, under the provisions of Chapter XXI of the Kerala Panchayat Raj Act, 1994. All the usual formalities for submitting the application for building permit under the Building Rules have been followed while submitting the application for NOC to the Panchayat. All the usual formalities for submitting the application for building permit under the Building Rules have been followed while submitting the application for NOC to the Panchayat. The construction was undertaken only with the permission of the Panchayat, issued in the form of NOC. So, the builder has a vested right to complete the construction in accordance with the plan, submitted at the time of grant of NOC. There is no justification, therefore, to demand the permit fee payable as per the Building Rules, it is pointed out. 6. We heard Mr.Shanavas Khan, learned counsel appearing for the Thrikkakara Grama Panchayat. He supported the validity of the impugned provisions. The learned Special Government Pleader, Mr.C.M.Suresh Babu, also supported the actions of the Government and prayed for dismissal of the Writ Petitions. 7. Section 274 of the Kerala Panchayat Raj Act, 1994, empowers the Government to extend the provisions of the Municipal Laws and the Rules framed thereunder to the Grama Panchayats also. The said section reads as follows: "274. Extension of the provisions of the Municipal laws or of the Rules thereunder.-(1) The Government may, whether at the request of the Panchayat or otherwise, by notification in the Gazette, declare that any of the provisions of the law relating to Municipalities in the State in force for the time being or of any rules made thereunder, shall be extended to, and be in force, in a Panchayat area or any specified place therein. (2) The provisions so notified shall be construed with such alterations not affecting the substance as may be necessary or proper for the purpose of adopting them to the Panchayat area or any specified place therein." 8. In this case, Ext.P3 notification and also the notification dated 6.6.2007 were issued invoking the power of the Government under Section 274 of the Kerala Panchayat Raj Act, quoted above. The provisions under Chapter XXI of the Kerala Panchayat Raj Act deal, generally, with the buildings. Section 235A(i) of the Panchayat Raj Act enables the Government to frame building rules for the Grama Panchayats. Section 254(2)(xviii) also enables the Government to frame rules concerning regulation or restriction of construction of buildings and the use of building sites. The provisions under Chapter XXI of the Kerala Panchayat Raj Act deal, generally, with the buildings. Section 235A(i) of the Panchayat Raj Act enables the Government to frame building rules for the Grama Panchayats. Section 254(2)(xviii) also enables the Government to frame rules concerning regulation or restriction of construction of buildings and the use of building sites. But, the Government, instead of framing rules under the Kerala Panchayat Raj Act, decided to adopt the provisions of the Kerala Municipality Building Rules, invoking its power under Section 274 of the Kerala Panchayat Raj Act, which we have quoted above. Rule 3 of the Kerala Municipality Building Rules, 1999 reads as follows: "3. Applicability.- These rules shall apply to.- (i) any public or private building as described below, namely:- (a) where a building is newly erected, these rules shall apply to the designs and construction of the building; (b) where the building is altered, these rules shall apply to the altered portion of the building; (c) where the occupancy or use of a building is changed, these rules shall apply to all parts of the building affected by the change. (d) where addition or extension is made to a building, the rules shall apply to the addition or extension only, but for calculation of floor area ratio and coverage permissible and for calculation of required off street parking area to be provided, the whole building (existing and the proposed) shall be taken into account; (ii) all lands which is proposed to be developed or redeveloped for construction of building; (iii) all developments and constructions existing or proposed in any village panchayat area to which the provisions of these rules stand extended." (emphasis supplied) 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 unauthorised. But, we feel that even in the absence of the said provision, the Kerala Municipality Building Rules will apply to the notified Panchayats, if a notification to that effect is issued under Section 274 of the Kerala Panchayat Raj Act. Therefore, the challenge against that sub-rule is only a futile attempt. But, we feel that even in the absence of the said provision, the Kerala Municipality Building Rules will apply to the notified Panchayats, if a notification to that effect is issued under Section 274 of the Kerala Panchayat Raj Act. Therefore, the challenge against that sub-rule is only a futile attempt. Further, we are of the view that when a rule is framed, even if a wrong provision is quoted or a relevant provision is not quoted, still the rule is valid, if the Government have the power to frame the rule. The substance and not the form is important. In view of the provisions in Sections 235A and 254(2)(xviii) of the Kerala Panchayat Raj Act, the Government have the power to frame Building Rules for the Grama Panchayats. So, invoking that power, the Government can say that the Kerala Municipality Building Rules will apply to Grama Panchayats to which they are extended. So, sub-rule(iii) of Rule 3 of the Kerala Municipality Building Rules, 1999 is intra-vires and does not suffer from any infirmity. 9. The next point to be considered is whether the collection of permit fee stipulated in paragraph 5 of Ext.P4(a) is valid or not. It is true that fee is collected for a service rendered. There should be quid pro quo, but the same should not be weighed in golden scales. If there is some nexus with the service provided, normally, the courts will uphold the levy. In this case, the NOC issued by the Panchayat, did not touch upon the structural plan for which detailed provisions are contained in the Kerala Municipality Building Rules. They provide, inter alia, what should be the total coverage of the building with reference to the total area of the land. For the constructions of the nature involved in this case, it is 65%. The floor area ratio, which is a ratio between the area of the plot and total plinth area of the building is also governed by the restrictions under the Building Rules. For constructions of this nature, the FAR allowed is three. It may go up to four. There are specific provisions concerning the width of the access to the building, open space on all sides of the building, the parking area to be provided, the size of the rooms, ventilation etc. For constructions of this nature, the FAR allowed is three. It may go up to four. There are specific provisions concerning the width of the access to the building, open space on all sides of the building, the parking area to be provided, the size of the rooms, ventilation etc. The provisions of Chapter XXI of the Kerala Panchayat Raj Act are totally silent on those details. In other words, the said field was not occupied by any pre-existing rules. The builders were free to build, according to their volition. But, once the Kerala Municipality Building Rules are enforced in Panchayats, the construction can be made only in accordance with the Building Rules. Normally, the builders have to apply and obtain a building permit and further construction can be proceeded with only in accordance with the same. If that be so, they would have to pay the permit fee, and also modify the plan wherever necessary and they cannot build beyond the FAR and coverage permitted. But, in this case, we notice that while the Government issued instructions to the local authorities, no such stipulations were made. The Government was very liberal, beyond the requirement of law, in issuing instructions to the officers of the Grama Panchayat. But, the Government told that there cannot be any waiver of permit fee. We think, the Circulars issued by the Government, are in fact, full of concessions granted to the builders, who are facing serious difficulties as a result of the enforcement of the Building Rules in the Panchayat area. We feel that, they have no reason to demur against them. Apparently, the above directions have been issued, invoking the power of the Government under Chapter XVIII of the Kerala Panchayat Raj Act. But, in the case of certain builders, who have exceeded the FAR beyond three, there is some grievance. But, that grievance cannot be a ground to interfere with the directions issued by the Government, most of which, we feel, are heavily in favour of the builders. Therefore, we are not inclined to interfere with the directions of the Government to the Panchayats to collect permit fee. But, of course, it is a matter for the Government to consider whether any relief can be granted to the petitioners. Therefore, we are not inclined to interfere with the directions of the Government to the Panchayats to collect permit fee. But, of course, it is a matter for the Government to consider whether any relief can be granted to the petitioners. The learned counsel for the petitioners submitted that they have already moved the Government and the matter is within the seisin of the Government. If that be so, the petitioners can pursue the matter before the Government. Subject to the liberty given to the petitioners to pursue their representations before the Government, the Writ Petition is dismissed. W.P.(C) Nos.35282/07, 38032/07, 38049/07, 2241/08, 5222/08, 5325/08, 5326/08, 5493/08, 5522/08, 5524/08, 5624/08, 6330/08, 6649/08, 6650/08, 7202/09, 7274/08, 7375/08, 7775/08, 8388/08, 8403/08, 8751/08, 8752/08, 12406/08, 12541/08, 13780/08, 16993/08, 17217/08, 17725/08, 37432/08, 8054/09 and 10993/09:- The judgment in W.P.(C) No.13085 of 2009 will govern these writ petitions also. Accordingly, these Writ Petitions are also dismissed.