M.D. Unnikrishnan and Others v. State of Kerala and the Chottanikkara Grama Panchayath and Secretary, Chottanikkara Grama Panchayath

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN TUESDAY, THE 27[TH] DAY OF JUNE 2023 / 6TH ASHADHA, 1945** ## **WP(C) NO. 10307 OF 2014** ## **PETITIONER/S:** 1 M.D. UNNIKRISHNAN, S/O.LATE M.DAMODARA MENON, 'VYSAKH', MUNDAKKAL LANE, TRIPUNITHURA. 2 N.NANDAKUMAR, S/O.LATE E.K.K.MENON, MUNDAKKAL HOUSE, MUNDAKKAL LANE, TRIPUNITHURA. 3 AMBIKA UNNIKRISHNAN, W/O.M.D.UNNIKRISHNAN, 'VYSAKH', MUNDAKKAL LANE, TRIPUNITHURA. 4 MINI NANDAKUMAR, W/O.N.NANDAKUMAR, MUNDAKKAL HOUSE, MUNDAKKAL LANE, TRIPUNITHURA. BY ADV SRI.VPK.PANICKER ## **RESPONDENT/S:** 1 THE STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY, DEPARTMENT OF LOCAL SELF GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 THE CHOTTANIKKARA GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, PIN - 682 312. 3 THE SECRETARY, CHOTTANIKKARA GRAMA PANCHAYATH, CHOTTANIKKARA - 682 312. BY ADV SHRI.VINEETH KOMALACHANDRAN, SC, CHOTTANIKKARA GRAMA PANCHAYATH ## **OTHER PRESENT:** SMT. MARY BEENA JOSEPH -SR.GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 10307 OF 2014 ..2.. ## **JUDGMENT** The petitioners, partners of M/s.Royal Projects (Group) engaged in the development of property and construction of multi storied commercial and residential complexes, purchased 55.50 cents of property in Sy.No.76/1 in Kureekkad Village, Chottanikkara Panchayat for the purpose of constructing a 11 storied apartment complex, named as 'Royal Sopanam', for which Ext.P1 building permit was granted. As a condition for issuance of Ext.P1 building permit, the third respondent directed the petitioners to remit an amount of Rs.17,08,550/- as permit fee. The total built up area was 8391.90 m[2] and the plot area was 2246.085 m[2] . As per the rules in force during 2007, the floor area ratio to be maintained was 3 m[2] , whereby the maximum area permitted to be constructed in all the floors of the building put together without payment of additional fee was 6738.255 m[2] . Since the WP(C) NO. 10307 OF 2014 ..3.. proposed building had an additional area of 1688.335 m[2] , the petitioners were asked to deposit fee for the permitted area along with additional fee @ Rs.1,000/- per square metre for additional area and thus, the petitioners paid fee @ Rs.3/- per square metre amounting to Rs.20,215/- and for the additional area of 1688.335 m[2] , the petitioners remitted Rs.16,88,335/-, thus totalling to an amount of Rs.17,08,550/-. The building permit was issued for a period of three years from 31.10.2007. Though the construction of the building commenced in time, the construction could not be completed within three years from the date of issuance of Ext.P1 building permit. Hence, the petitioners submitted an application on 08.10.2010 before the third respondent well within the three years' time for extension of time stipulated in Ext.P1 building permit. The third respondent informed the petitioner that they have to remit Rs.4,50,336/- for extension of the period WP(C) NO. 10307 OF 2014 **==> picture [31 x 8] intentionally omitted <==** mentioned in Ext.P1 permit. Though the petitioner objected to this demand, they were forced to remit the amount since Ext.P1 permit was to expire by 30.10.2010 and under protest, the petitioners remitted an amount of Rs.4,50,336/- on 28.10.2010. Ext.P4 communication was also submitted raising protest for payment of Rs.4,50,336/-. On receipt of the extension fee, the second respondent extended Ext.P1 building permit for a further period of three years. Since there was no uniformity among the Local Self Government bodies in respect of the fee collected for issuance of occupancy certificates, granting of house numbers and fees for extension of building permits, the first respondent issued Ext.P6 Circular to all departments clarifying that for extension of existing building permit, in cases where construction was being carried out after obtaining valid permit, amendments made to the then rules need not be made applicable. Since Ext.P6 circular was not clear, the WP(C) NO. 10307 OF 2014 **==> picture [31 x 8] intentionally omitted <==** Secretary of the Maradu Grama Panchayat raised a query and by Ext.P7, the first respondent clarified that at the time of extension of permit, additional fee paid for FAR need not be collected. Thereafter, the petitioner submitted requests dated 19.7.2011 and 26.9.2011, before the third respondent to recalculate the fee payable for extension of Ext.P1 permit and to refund the excess amount collected from them. The third respondent issued Ext.P8 reply, stating that the fee collected as per Ext.P3 was calculated as per G.O(MS) No.128/N/LSGD dtd.21.6.2010 and Ext.P7 Circular was issued after the permit had been granted and informed that the excess extension fee collected from the petitioners could not be reconsidered or reopened. Thereafter, the first respondent vide Ext.P9 issued directions to the Chief Town Planner directing him to prepare and furnish a draft circular clarifying that the additional FAR fee is meant as a one time fee for additional FAR WP(C) NO. 10307 OF 2014 **==> picture [31 x 8] intentionally omitted <==** and is charged at a much higher rate and having been paid once, it need not be again counted at the time of extension of the period of permit. On the basis of Ext.P9 clarification, the petitioner submitted a fresh request as per Ext.P10 for refund of the excess amount collected by respondents 2 and 3. Non consideration of Ext.P10 resulted in filing WP(C) No.22497/2012 and as per Ext.P11 judgment dated 28.2.2013, this Court directed the third respondent to consider and pass orders on Ext.P10. Since the respondents did not comply with Ext.P11 judgment, the petitioner filed Contempt Case (C) No.143 of 2014 and thereafter, the third respondent filed affidavit, contending that they had passed Ext.P12 order dated 09.05.2013, wherein it is stated that the renewal fee of Rs.4,50,336/- was charged in accordance with rules and hence, the request of the petitioner for refund cannot be granted. Thereafter, the petitioners again applied for extension since the extension granted by Ext.P6 WP(C) NO. 10307 OF 2014 **==> picture [31 x 8] intentionally omitted <==** was about to lapse by 01.11.2013, however, they were directed to remit an amount of Rs.3,123/- towards permit renewal fee for the period 2013- 14. The payment of Rs.4,50,336/- paid towards fee for the extension of the building permit is under challenge in this writ petition. 2. Heard. Learned Standing Counsel for the respondent Panchayat entered appearance. In spite of the direction by this Court on 07.06.2023 to the respondent Panchayat to file a statement showing calculations in respect of the demand raised by them, no statement or counter affidavit has been filed. 3. The issue to be decided in this case is whether the petitioners are liable to pay fee for 2 the additional area of 1688.335 m , for extension of Ext.P1 building permit. 4. The learned counsel for the petitioners submits that the collection of extension fee of Rs.4,50,336/- from the petitioners is illegal and they are not liable to remit any amount towards WP(C) NO. 10307 OF 2014 **==> picture [31 x 8] intentionally omitted <==** additional FAR, since they have already paid an amount of Rs.16,88,335/- towards additional FAR at the time of issuance of the building permit. Moreover, it was submitted that while passing Ext.P12 order, the third respondent has not considered as to whether the petitioner was liable to pay renewal fee as provided under GO(MS)No.249/2009/LSGD dated 16.12.2009 and GO(MS)No.128/2010/LSGD dated 21.06.2010. The learned counsel further submitted that by Ext.P6 Government Circular, the first respondent had issued clarification that the amount payable towards extension fee is leviable at the time of issuance of the original permit and that the subsequent amendments to the building rules were not applicable. It is also submitted that in Ext.P9 order, the first respondent had made it clear that the additional FAR fee is meant as a one time fee for additional FAR and having paid it once, the fee remitted under that head need not be again reckoned at the time of extension. WP(C) NO. 10307 OF 2014 **==> picture [31 x 8] intentionally omitted <==** 5. For a better appreciation of the issues raised, it is relevant to refer to Rule 15A(3) of the Kerala Municipality Building Rules, 1999 (for short, “the Rules”), which reads thus; “(3) The fee for extension of period of permits shall be ten per cent of the development permit fee or building permit fee as the case may be, in force at the time of granting extension.” Rule 31(2) & (3) of the Rules as it stood at the time of issuance of the building permit in question reads thus; “(2) The percentage of coverage and the F.A.R. value of building under different occupancies shall not exceed the maximum specified in Table 2 below. (3) For permitting of FAR shown in column (5) of Table 2, an additional fee at the rate of Rs.1000 per square metre exceeding the area permissible under column (4) shall be paid. ## **TABLE 2 Coverage and Floor Area Ratio (F.A.R.)** |Sl.<br>No.||Building and<br>Occupancy|Maximum<br>permissible<br>Coverage<br>(percentage<br>of plot<br>area)|Maximum<br>permissible<br>F.A.R.<br>without<br>additional<br>fee|Maximum<br>permissible<br>F.A.R. with<br>additional<br>fee| |---|---|---|---|---|---| |(1)||(2)<br>(3)<br>(4)<br>(5)|||| |1<br>2|Residential A1<br>xxxxxxxx||65|3.00a|4| WP(C) NO. 10307 OF 2014 **==> picture [37 x 8] intentionally omitted <==** 6. The petitioners had remitted a total amount of Rs.17,08,550/- at the time of issuance of building permit. The said amount includes Rs.20,215/- being fee @ Rs.3/- per square metre for the permitted area and Rs.16,88,335/- being additional fee @ Rs.1,000/- for the additional area of 1688.335 m2. The building permit was issued as per Ext.P1 on 31.10.2007 and it was valid for a period of three years and accordingly, became due for extension in the year 2010. When the petitioners approached the authorities for extension of building permit during the permit period, they were directed to remit an amount of Rs.4,50,336/-. Therefore, the petitioners submitted Ext.P4 before the third respondent, stating that the petitioners have to remit only 10% of the permit fee already paid as per Rule 15A(3) of the Rules since they had already applied for the extension within the permit period. However, the said amount of WP(C) NO. 10307 OF 2014 **==> picture [37 x 8] intentionally omitted <==** Rs.4,50,336/- was remitted by the petitioners under protest. In Ext.P6 circular issued by the Government of Kerala, it is stated that since the petitioners have already obtained the building permit and started construction, the modified building rules are not applicable. Further, Ext.P7 clarification was issued by the Deputy Secretary to the Government, clarifying that the additional fees paid for FAR need not be collected at the time of extension of the existing building permit. After the issuance of Ext.P7 clarification, the petitioner requested for refund of the excess extension fee paid by the petitioner. Ext.P7 clarification came only after payment by the petitioners on 28.10.2010. It was further informed them that the renewal fee collected was according to GO(MS)No.128/10/LSGD dated 21.06.2010. Further, as per Ext.P9, the Government have further clarified that the additional FAR fee is meant as a one time fee for additional FAR and is charged at a much higher WP(C) NO. 10307 OF 2014 **==> picture [37 x 8] intentionally omitted <==** rate and having been paid once, it need not be again collected at renewal or for extension of permit; and for extension of permit, 10% of the building fee as per Rule 15A(3) of the Rules need be charged. Thereafter, in 2013, the Government amended Rule 15A(3) of the Rules by inserting 'excluding fee for the additional FAR'. However, the intention of the legislature was to collect fee for the additional FAR as a one time payment and it is clear from the circulars issued by the Government. The fee for construction of area upto the FAR was Rs.3/-, whereas the fee for additional FAR was Rs.1,000/- per square metre as per the clarifications issued. Since a doubt was persisting among the officers while charging fee for extension/renewal of the building permit, clarifications were issued by the Government, clarifying that the fee for additional FAR is a one time payment and having been paid it once, need not be again counted at renewal. 7. In **Sree Sankaracharya University of** WP(C) NO. 10307 OF 2014 ..13.. **Sanskrit & Others** v. **Dr.Manu & Another** [2023 LiveLaw (SC) 468], the apex court has held that while it was well established that a clarification or an explanation to clear any ambiguity or correct any glaring omissions in a statute would be applicable retrospectively, it had to consider the question of how such a clarification/explanation to a statute could be identified and distinguished from a substantive amendment to a statute. A clarification must not have the effect of saddling any party with an unanticipated burden or withdrawing from any party an anticipated benefit. A circular, which is issued for clarification, only clarifies relevant provision applicable and does not bring in anything new by clarifying the provision. In this case, the Government has clarified that the fee for additional FAR collected at the time of issuance of building permit is a one time payment and no fee for additional FAR need be collected for every extension thereafter. The petitioner, WP(C) NO. 10307 OF 2014 **==> picture [37 x 8] intentionally omitted <==** at the time of issuance of building permit, had paid Rs.16,88,335/- for the additional FAR, calculated at Rs.1,000/- per square metre. Hence, as per the circulars issued by the Government, it is clear that fee for additional FAR was one time payment and the petitioner is not liable to pay any amount towards additional FAR for renewal or extension of Ext.P1 building permit. 8. Hence, on a consideration of the entire facts of the case, I am of the opinion that the respondents are not liable to collect fee for the additional FAR shown in the building permit while applying for extension of building permit and are liable to refund the amount illegally collected. Accordingly, the writ petition is disposed of, as follows; a)Respondents 2 & 3 are directed to recalculate the actual amount payable by the petitioner while applying for extension of the building permit in the year 2010 and shall refund the excess amount paid by the petitioner within a WP(C) NO. 10307 OF 2014 **==> picture [37 x 8] intentionally omitted <==** period of three months from the date of receipt of a certified copy of this judgment. b)Before such orders are passed, respondents 2 & 3 shall afford the petitioner an opportunity of being heard. The petitioner shall produce a certified copy of the judgment along with the copy of the writ petition before respondents 2 and 3 for compliance. **Sd/-** **SHOBA ANNAMMA EAPEN** **JUDGE** bka/- WP(C) NO. 10307 OF 2014 ..16.. ## **APPENDIX OF WP(C) 10307/2014** PETITIONER EXHIBITS EXHIBIT P1. A TRUE COPY OF THE BUILDING PERMIT DATED 31.10.2007 BEARING NO.A2.344/07/175. EXHIBIT P2. A TRUE COPY OF THE RECEIPT BEARING NO.14 DATED 31.10.2007, ISSUED BY THE 2ND RESPONDENT. EXHIBIT P3. A TRUE COPY OF THE RECEIPT BEARING NO.94 DATED 28.10.2010, ISSUED ON BEHALF OF THE 2ND RESPONDENT. EXHIBIT P4. A TRUE COPY OF THE COMMUNICATION DATED 28.10.2010 RAISING THE PROTEST, SUBMITTED BY THE PETITIONERS TO THE 3RD RESPONDENT. EXHIBIT P5. A TRUE COPY OF THE BUILDING PERMIT DATED 02.11.2010 BEARING NO.A2.344/07/175. EXHIBIT P6. A TRUE COPY OF THE CIRCULAR ISSUED BY THE 1ST RESPONDENT BEARING NO.31019/A1/11/LSGD DATED 22.06.2011. EXHIBIT P7. A TRUE COPY OF THE CIRCULAR NO.28461/RD2/2011/LSGD DATED 04.10.2011. EXHIBIT P8. A TRUE COPY OF THE COMMUNICATION DATED 02.11.2011 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONERS. EXHIBIT P9. A TRUE COPY OF THE ORDER NO.73925/RD2/2011/LSGD DATED 14.05.2012 ISSUED ON BEHALF OF THE 1ST RESPONDENT. WP(C) NO. 10307 OF 2014 **==> picture [37 x 8] intentionally omitted <==** EXHIBIT P10. A TRUE COPY OF THE REQUEST DATED 23.08.2012 SUBMITTED BY THE PETITIONERS TO THE 3RD RESPONDENT. EXHIBIT P11. A TRUE COPY OF THE JUDGMENT DATED 28.02.2013 IN WP(C)NO.22497/2012 OF THE HONOURABLE HIGH COURT OF KERALA. EXHIBIT P12. A TRUE COPY OF THE ORDER DATED 09.05.2013 BEARING NO.A43049/2013 OF THE 2ND RESPONDENT. EXHIBIT P13. A TRUE COPY OF THE RECEIPT BEARING NO.47866 DATED 16.11.2013 ISSUED BY THE CHOTTANIKARA GRAMA PANCHAYAT IN THE NAME OF THE PETITIONERS. EXHIBIT P14. A TRUE COPY OF THE BUILDING PERMIT NO.A2-344/07/175 DATED 02.11.2013 ISSUED BY THE CHOTTANIKARA GRAMA PANCHAYAT IN THE NAME OF THE PETITIONERS.