Disposed

Sidhik v. State of Kerala

Kerala HC6 Feb 2017WP(C)/16184/2010

Case brief

AI extract

What is this about?

The court dismissed a writ petition challenging a demand for enhanced building permit fees after a rule amendment. It held that the amended rules apply to the revised plan issued later, but directed that previously paid fees be deducted from the total demand. The petition was disposed of without substantial grievance found.

What did the court decide?

The writ petition is disposed of; amount already paid shall be deducted from the additional permit fee payable.

Sidhik Vs State of Kerala — Service and Employment | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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MONDAY, THE 6TH DAY OF FEBRUARY 2017/17TH MAGHA, 1938

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WP(C).No. 16184 of 2010 (W) ----------------------------

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PETITIONER(S):

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1. SIDHIK, S/O MOITHUTTY HAJI, CHAKKIATH HOUSE, CHAVAKKADU MUNICIPALITY, SOUTH PALAYOOR KARA, CHAVAKKAD P.O., THRISSUR DIST. REP.BY HIS POWER OF ATTORNEY HOLDER, MR.SUJAVUDEEN,S/O.MR.NOORUDHEEN, RESIDING AT MANAPADATHU HOUSE HOUSE NO.583,WARD NO.XIX,ALUVA MUNICIPALITY, ALUVA P.O., ERNAKULAM-683101.

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2. MRS.MANAPADATHU NOORUDHEEN SHEENA, W/O.SIDHIK,CHAKKIATH (H), CHAVAKKAD MUNICIPALITY, SOUTH PALAYOOR KARA, CHAVAKKAD P.O., THRISSUR DIST., REP.BY HER POWER OF ATTORNEY HOLDER MR.SUJAVUDEEN,S/O.MR.NOORUDHEEN, RESIDING AT MANAPADATHU HOUSE HOUSE NO.583,WARD NO.XIX,ALUVA MUNICIPALITY, ALUVA P.O., ERNAKULAM-683101. BY ADVS.SRI.K.RAMAKUMAR (SR.) SRI.SMITHA GEORGE

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RESPONDENT(S):

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1. STATE OF KERALA, REP. BY THE SECRETARY TO LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. THE CHENGAMANAD GRAMA PANCHAYAT, PUTHUVASSERY, NEDUMBASSERY P.O., ERNAKULAM DISTRICT - 683585. R1 BY GOVERNMENT PLEADER SMT. VIDHYA A.C. R2 BY ADV. SRI.C.M.SURESH BABU

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 16184 of 2010 (W)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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P1 TRUE COPY OF THE BUILDING PERMIT NO.41/09-10 DATED 0.06.2009 ISSUED BY R2 P2 TRUE COPY FO THE CERTIFICATE NO.G1-10912/09 DATED 9.10.2009 ISSUED BY THE FIRE & RESCUE SERVICES, THIRUVANANTHAPURAM

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P3 TRUE COPY OF THE NO OBJECTION CERTIFICATE DATED 4.12.2009 ISSUED BY THE AIRPORTS AUTHORITY OF INDIA

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P4 TRUE COPY OF THE COMMUNICATION NO.A3-7858/10 DATED 16.4.2010 RECEIVED BY THE PETITIONER FROM R2

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RESPONDENT(S)' EXHIBITS

NIL

TRUE COPY

P.S. TO JUDGE

A.M.SHAFFIQUE

.................................................

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W.P.(C) No.16184 of 2010(W)

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...............................................

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Dated this the 6^th day of February, 2017

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JUDGMENT

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The petitioners challenge Ext.P4 by which the petitioners are called upon to pay a sum of Rs.26,91,635.35 towards permit fee for construction of a multi storied complex. The main contention urged by the petitioners is that the petitioners have applied for building permit initially for ground + two floors for which a building permit was already granted and the requisite fee was also paid, Ext.P1 is the said building permit. The petitioners thereafter sought for revising the plan by adding eight floors. According to them an application was submitted on 25.08.2009. While the matter was under consideration, an amendment was effected to the Kerala Municipality Building Rules, 1999 by which the permit fee has been enhanced considerably. The amendment had came into effect on 16.12.2009. Pursuant to the same, the Panchayat had demanded the enhanced permit fee in terms of Ext.P4 which was under challenge before this Court. During the pendency of the writ petition the petitioners were permitted to pay 50% of the demand and accordingly a revised building permit had been issued in their favour.

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W.P.(C) No.16184 of 2010(W)

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The learned counsel for the petitioners submits that insofar as the application for revised permit was filed as early as on 25.08.2009; the permit fee ought to have been computed as on the said date. Another argument raised is that even assuming that there is an obligation to pay higher permit fee after the amendment dated 16.12.2009, still as far as the two floors are concerned there should not have been any demand to pay additional fee on the basis of the enhanced permit fee.

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A counter affidavit has been filed by the respondent Panchayat inter alia stating that the petitioners on 25.08.2009 have submitted a revised plan for construction of a building with basement, ground floor and eight floors on the existing permit. Since the building came under the category of high rise building, direction was issued to the petitioners to submit No Objection Certificates from the Fire and Rescue Services, Airport Authority of India, consent from the Pollution Control Board, sanction from the Electrical Inspectorate etc., as provided under the Kerala Municipal Building Rules, 1999. No objection, was received from the Airport Authority of India only on 16.12.2009 along with NOC issued by the Fire and Rescue Services. The petitioners produced sanction order of the Electrical Inspectorate only on 01.02.2010. The Municipality Building Rules underwent an amendment, which came into force with effect from 16.12.2009

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W.P.(C) No.16184 of 2010(W)

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and since the petitioners produced the documents only on or after 16.12.2009 the provisions of the amended rules will apply, as a result of which Ext.P4 had been issued.

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Heard the learned counsel for the petitioners and the learned counsel for the Panchayat.

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The learned counsel for the respondent Panchayat placed reliance on judgment of the Apex Court in Howrah Municipal Corporation and others vs. Ganges Rope Co. Ltd. And others [(2004) 1 SCC 663] wherein the Apex Court had held that when a building permit is issued, the rules prevailing as on the date of sanction alone applies. It is apparent that the amendment had come into effect before issuance of the building permit and therefore the petitioners have the obligation to pay the fee, up to the present date on which the revised building permit had been issued. In other words the date of application has no relevance with reference to the provision that is made applicable as far as the grant of permit is concerned. The grant of permit should be based on the rule prevailing as on the said date.

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Coming to the other contentions raised by the petitioners that the permit fee had already been paid for ground and two floors

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W.P.(C) No.16184 of 2010(W)

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which should not have been calculated while issuing the revised plan, I do not think that such a contention is justifiable. When a revised plan is submitted, it takes care of additional features and the entire building permit requires complete change. Under such circumstances, the permit fee has to be paid on the basis of revised plan and the area has to be constructed based on such revised plan. However if any amount has already paid for the permit covered by Ext.P1, it has to be deducted from the total amount payable in terms of Ext.P4.

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In the light of the aforesaid facts and circumstances, I do not think that the petitioners have ventilated any grievance for interference by this Court. However it is made clear that the amount already paid shall be deducted from the amount payable by the petitioners as additional permit fee.

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With the above observation this writ petition is disposed of.

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sd/A.M.SHAFFIQUE, JUDGE

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AMV/15/02/2017

Sidhik v. State of Kerala

Case brief

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Sidhik v. State of Kerala

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