IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 13085 of 2009(E)
1. MATHER PROJECTS PVT.LTD
... Petitioner
2. NOOR MOHAMMED NOORISHA
Vs
1. GOVERNMENT OF KERALA
... Respondent
2. THRIKKAKARA GRAMA PANCHAYATH
For Petitioner :SRI.V.V.ASOKAN
For Respondent : No Appearance
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.BHAVADASAN
Dated :25/11/2009
O R D E R
"C.R."
K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ.
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W.P.(C) Nos.13085 of 2009
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, 16993/08,
13780/08, 17217/08, 17725/08, 37432/08,
8054/09 and 10993/09
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Dated this, the 25th day of November, 2009
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:
W.P(C) No.13085/09 and connected cases - 2 -
(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.
W.P(C) No.13085 of 2009:
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
W.P(C) No.13085/09
and connected cases – 3 –
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.
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.
W.P(C) No.13085/09 and connected cases - 4 -
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
W.P(C) No.13085/09
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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
W.P(C) No.13085/09
and connected cases – 6 –
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. 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.
W.P(C) No.13085/09 and connected cases - 7 -
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
W.P(C) No.13085/09
and connected cases – 8 –
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. 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;
W.P(C) No.13085/09
and connected cases – 9 –
(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
W.P(C) No.13085/09
and connected cases – 10 –
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. 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.
W.P(C) No.13085/09 and connected cases - 11 -
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,
W.P(C) No.13085/09
and connected cases – 12 –
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
W.P(C) No.13085/09
and connected cases – 13 –
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. 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
W.P(C) No.13085/09
and connected cases – 14 –
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.
Sd/-
K. Balakrishnan Nair,
Judge.
Sd/-
P. Bhavadasan,
Judge.
DK.
(True copy)