Partly allowed

Grace Cherian, v. State of Kerala

Kerala HC4 Jan 2022WP(C)/27833/2020

Case brief

AI extract

What is this about?

The court examined a writ petition challenging the levy of an additional compounding fee for deficient parking. The court held that the fee levy was illegal as the petitioner provided sufficient parking space as per the sanctioned plan and applicable rules, and set aside the relevant communications.

What did the court decide?

Exts.P6 and P7 set aside to the extent of the assessment of additional compound fee for parking.

Grace Cherian, Vs State of Kerala — Municipal and Town Planning | Kerala HC (2022)

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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 N.NAGARESH

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TUESDAY, THE 4^TH DAY OF JANUARY 2022 / 14TH POUSHA, 1943

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WP(C) NO. 27833 OF 2020

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PETITIONER:

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GRACE CHERIAN, AGED 60 YEARS NEREVEETTIL HOUSE, VAZHAKKALA, THRIKKAKARA, KOCHI-21.

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BY ADVS. K.P.SANTHI SMT.TARA PREM

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RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.

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2 THE REGIONAL TOWN PLANNER, TOWN PLANNING OFFICE, CIVIL STATION, KAKKANAD.

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3 THE SECRETARY, THRIKKAKARA MUNICIPALITY, THRIKKAKARA, KOCHI-682021.

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4 ASSISTANT EXECUTIVE ENGINEER, THRIKKAKARA MUNICIPALITY, THRIKKAKARA, KOCHI-682021.

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BY ADV S.JAMAL,SC

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SMT.PRINCY XAVIER, SR.GOVERNMENT PLEADER SRI.G.G.MANOJ, SC R3

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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J U D G M E N T

~ ~ ~ ~ ~ ~ ~ ~ ~

Dated this the 4^th day of January, 2022

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The petitioner, who constructed a Building in Thrikkakara Municipal limits and applied for Occupation Certificate, is aggrieved by Ext.P6 communication of the Regional Town Planner, wherein the petitioner is found liable to pay a total Compounding Fee of ₹25,29,980/-.

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The petitioner owns 6.55 Ares of land in Thrikkakara Municipality. There was a building in existence, constructed in the year 1995, which is of 664.83 Square metres area. The petitioner was granted Ext.P1 Building Permit dated 22.02.2017 to construct a new Commercial Building having 645.54 Square metres area. Ext.P2 Sanctioned Plan required parking space for 5 Four-Wheelers and 8 Two-Wheelers. The construction was completed in

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2018 and the petitioner submitted Ext.P4 Completion Plan on 10.12.2018. The petitioner actually constructed only 256.5 square metres.

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The petitioner’s building was not numbered citing certain minor deviations. The petitioner therefore submitted Ext.P5 application dated 03.09.2019 for regularisation of the alleged unauthorised construction. The compounding fee payable by the petitioner was fixed as ₹25,29,980/- as per Ext.P6 dated 29.05.2020. Certain other defects were also pointed out in Ext.P7 communication. The petitioner is aggrieved by the defects at Serial Nos.5 and 9 mentioned in Ext.P7.

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Defect No.5 is that the entire building is to be considered as one unit to decide the question of unauthorised Construction. Defect No.9 is on levy of Compounding Fee for Parking Area, which is calculated under the amended Rule. In Ext.P6, it is stated that the required number of Parking Space is 12 and only 5 Parking Areas are provided. For the deficient seven Parking Areas, ₹24,50,000/- has been assessed as

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additional compound fee (parking).

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The counsel for the petitioner argued that in the sanctioned plan, the petitioner was required to provide only 131.01 Square metres of parking, which the petitioner has provided. The construction of the building was completed in the year 2018 and Compound Fee has been calculated as per the subsequently amended rule. The petitioner is required to provide only 75 Square metres of parking area as per Rule 34 of the Kerala Panchayat Building Rules, 1999 as even the combined area of the building is less that 1000 square metres. The petitioner has provided 131 Square metres parking area. Therefore, no additional Compound Fee (Parking) can be demanded.

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Respondents 3 and 4 contested the writ petition. Respondent 3 and 4 contended that the petitioner has committed gross violation of various provisions of KMBR and hence is not entitled to any relief in this writ petition. The learned Government Pleader submitted that the petitioner is not entitled to regularisation of unauthorised construction

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since the application is made and construction is completed subsequent to the cut off date.

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However, since the petitioner’s application is still under process as is evident from Exts.P6 and P7 and since the petitioner is challenging only the correctness of computation of additional compound fee (parking) applying the amended rules, this Court do not deem it necessary to adjudicate other issues.

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From the pleadings and arguments, it emerges that the petitioner applied for Building Permit and Ext.P1 permit was issued which required the petitioner to provide parking area for 5 Four-Wheelers and 8 Two-Wheelers. The petitioner has admittedly provided the same. As per the Sanctioned Plan, 131.01 Square metres had to be provided and the petitioner has satisfied the said requirement also. The issue arose when the petitioner submitted an application for regularisation. At that stage, respondents 3 and 4 noted that there was already an existing Building and hence a larger area for parking ought to have been provided by the petitioner,

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taking into account the combined area of the old and new buildings. One fails to understand how Ext.P1 Building Permit and Ext.P2 Sanctioned Plan could be issued by respondents 3 and 4, ignoring an existing building and prescribing a lesser parking area.

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Nevertheless, if statutory rules require larger parking area, the petitioner is bound to provide the same failing which the construction has to be regularised paying the prescribed compounding fee. In that case, the question is what will be the amount of Compound Fee and particularly, the additional Compound Fee (Parking).

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The learned Standing Counsel for respondents 3 and 4 submitted that the basic compound fee and the additional compound fee are prepared following Rule 3(1)(d) of the Kerala Municipal Building Rules, 1999 and Rule 13, Appendix 1 (2) of Kerala Muncipal Building (Regularization of Unauthorized Construction) Rules, 2018. Since the petitioner constructed the building violating the permit conditions, approved plan and Rules 34, 24(4) and 24 of the Rules, 1999,

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there is a lack of 7 parking space in the building.

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The learned Standing Counsel submitted that while preparing the basic compounding fee, there is a mistake happened in taking the unauthorized floor area. Rule 3(1)(d) says that in a case where addition or extension is made to a building, the rules shall apply to the addition or extension only, provided, for calculation of Floor Space Index, coverage, required set off, street parking area to be provided and width of access to the plot as well as minimum width of the street giving access to the plot from the main street, the whole building existing to be retained and proposed shall be taken into account. The petitioner completed the extension of be existing building by violating the permit plan. The total parking space required for the building as per Rule 34 of Rules, 1999 is 12 numbers. However, the petitioner provided only 5. So, there is lack of 7 parking space. Hence, additional compounding fee for deficient car parking in the case of violations for off-street parking is applicable and the compounding fee is calculated and prepared as per Rules,

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Since the available parking space is less than 50% of parking specified as per rules, ₹3,50,000/- will be levied per deficient car parking. So, the petitioner is bound to pay ₹24,50,000/- (7 x ₹3,50,000/-) as additional compound fee for deficient car parking under Rule 13 Appendix I (2) of Kerala Municipal Building (Regularisation of Unauthorised Construction) Rules, 2018. So, the total amount to be paid by the petitioner for regularisation of the unauthorised construction is ₹27,36,994/-.

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I have heard the learned counsel for the petitioner, the learned Government Pleader for respondents 1 and 2 and the learned Standing Counsel for respondents 3 and 4.

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The question is what was the parking area requirements under Rule 34 of the KMBR, 1999 when Ext.P1 Building Permit was issued.

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Ext.P1 Building Permit was issued on 22.02.2017. Ext.P1 Building Permit describes the building as “MercantileCum-Commercial”. The Building Permit shows total area as 1310.37 Square metres and extended area as 664.83 Square

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metres. Therefore, it is evident that the Building Permit was issued after taking into account the existing building. Ext.P2 is the Sanctioned Plan. Ext.P2 describes the building as “Residential Dormitory Building to Existing Commercial Building”. Ext.P2 also has taken into account the plinth area of existing building (664.83 Square metres) and the proposed construction is shown as 654.54 Square metres. Therefore, it is evident that the Building Permit as well as the Sanctioned Plan were issued taking into consideration the existing building also. The Sanctioned Plan states that the Parking Area needed is 4 and Parking Area provided is 5. The petitioner though was permitted to additionally construct 654.54 Square metres, she has actually constructed only 256.50 Square metres only. Therefore, when the petitioner submitted application for regularisation of construction to regularise any other deviation on construction, the parking area should not have been an issue because the petitioner had provided more parking area than the one prescribed in Ext.P2 Sanctioned Plan.

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However, the respondents have sought to levy ₹24,50,000/- as Additional Compound Fee (Parking), stating that the Parking required is 12 numbers and the petitioner has provided only five. It is surprising to note that when Ext.P2 Sanctioned Plan was approved by the respondents taking note of the existing building also and requiring only four parking places, when the petitioner has approached for regularisation of other deviations, the respondents are demanding compounding fee for parking.

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Table 5.2 under Rule 34 of the Kerala Municipal Building Rules, 1999 (KMBR, 1999) provides for the requirements of parking, loading and unloading spaces. Rule 34 as it stood amended as on 16.12.2009 provides that for Group F-Mercantile/Commercial building exceeding 75 Square metres, the Parking requirement is One parking space for every or fraction of 75 Square metres of carpet area for building having total carpet area up to 1000 Square metres and 50 Square metres of carpet area for the total carpet area in excess of 1000 Square metres. The total carpet area

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(inclusive of old building) of the petitioner, as per Ext.P2 Sanctioned Plan is 1046.10 Square metres. The petitioner has constructed in a lesser area and the total constructed area is less than 1000 Square metres. Therefore, the required parking area is 75 Square metres. The petitioner has provided 131.01 Square metres as parking place as per the Sanctioned Plan.

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In the afore circumstances, this Court finds that assessment of Additional Compound Fee (Parking) as contained in Ext.P6 is illegal. As the petitioner has provided more parking space than the requirement as per Ext.P2 Sanctioned Plan and as per Rule 34 of the KMBR, 1999, the respondents are not legally justified in demanding Compound Fee (Parking) from the petitioner. Exts.P6 and P7 are set aside to the above extent.

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Writ petition is disposed of as above.

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Sd/- N. NAGARESH, JUDGE

aks/01.10.2021

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APPENDIX OF WP(C) 27833/2020

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PETITIONER'S EXHIBITS

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EXHIBIT P1	TRUE COPY OF	THE	BUILDING PERMIT DATED
	22.2.2017 ISS	UED	BY THE 4TH RESPONDENT.
EXHIBIT P2	TRUE COPY OF	THE	SANCTIONED PLAN.
EXHIBIT P3	TRUE COPY OF 14.11.1995 IN NOS.2/147 AND	THE RES 2/1	TAX RECEIPT DATED PECT OF THE BUILDING 48.
EXHIBIT P4	TRUE COPY OF RECEIPT DATED 3RD RESPONDEN	THE 10. T.	COMPLETION PLAN AND 12.2018 ISSUED BY THE
EXHIBIT P5	TRUE COPY OF 3.9.2019 SUBM	THE ITTE	APPLICATION DATED D BY THE PETITIONER.
EXHIBIT P6	TRUE COPY OF AND LETTER DA RESPONDENT.	THE TED	CALCULATION STATEMENT 29.5.2020 OF THE 3RD
EXHIBIT P7	TRUE COPY OF OF THE SENIOR	THE TOW	LETTER DATED 29.9.2020 N PLANNER, ERNAKULAM.
EXHIBIT P8	TRUE COPY OF	THE	CERTIFICATE DATED
	10.2.1997 OF GRAMA PANCHAY	THE AT.	SECRETARY, THRIKKAKAR
EXHIBIT P9	TRUE COPY OF OF THE DISTRI	THE CT T	LETTER DATED 20.1.2021 OWN PLANNING OFFICER.

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RESPONDENT EXHIBITS NIL

Grace Cherian, v. State of Kerala

Case brief

What is this about?

What did the court decide?

Grace Cherian, v. State of Kerala

Case brief

What is this about?

What did the court decide?

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