Sivakumar vs State of Kerala

P.N. Ravindran, J.—The Petitioners put up a residential building within the local limits of Vadakara Municipality after obtaining Ext.Pl

building permit dated 12.5.2006. The permit was valid up to 11.5.2009. The construction of the building was completed before that date. After

the building was completed, the Petitioners submitted a completion plan before the Secretary of Vadakara Municipality for the issuance of a

completion certificate. At that stage, the Secretary of Vadakara Municipality issued Ext.P2 memo dated 29.1.2010 calling upon the Petitioners to

submit a revised plan for regularising the additional constructions made by them. The Petitioners thereupon submitted a revised plan accompanied

by Ext.P3 letter dated 22.2.2010. The Secretary of Vadakara Municipality thereupon issued Ext.P4 memo dated 22.3.2010 calling upon the

Petitioners to remit the sum of Rs. 8,480/- for considering the application for regularisation. The Petitioners thereupon submitted Ext.P5

representation dated 20.4.2010 objecting to the demand made in Ext.P4 memo. They contended that as per Rule 145 of the Kerala Municipality

Building Rules, 1999, the compounding fee payable is only twice the amount of the permit fee and that in the case of deviation or additional

constructions, only the area so deviated or added shall be considered for collection of the compounding fee. In this Writ Petition the Petitioners

challenge Ext.P4 and seek a direction to Respondents 2 and 3 not to collect compounding fee in excess of the prescribed limits.

A counter affidavit dated 9.8.2010 has been filed on behalf of Respondents 2 and 3 justifying the levy of fee at the rate stipulated in Ext.P4. It is

contended that as the application for regularisation was submitted only oh 1.6.2009, after the validity of Ext.Pl permit expired, twice the amount of

the permit fee for the entire building which has an area of 274.16 Sq.metres (rounded off to 275 Sq.metres) was demanded as the compounding

fee. Respondents 2 and 3 have in the counter affidavit attempted to justify the levy of compounding fee at the rate claimed in Ext.P4, on that

ground.

I heard Smt. Nikhila Soman, learned Counsel appearing for the Petitioners, Smt. K.R. Deepa, learned Government Pleader appearing for the

first Respondent and Sri. V. Vijay Mohan, learned standing counsel appearing for Respondents 2 and 3.I have also gone through the pleadings and

the materials on record. As per Ext.Pl permit, the total plinth area of the proposed building is 265.66 Sq.metres. Ext.Pl building permit was valid

up to 11.5.2009. It is not in dispute that a building was put up on the strength of Ext.Pl permit within that period and thereafter an application was

submitted on 1.6.2009 for an occupancy certificate. Along with the application, Petitioners had submitted a revised plan as per which the area of

the completed building was 274.16 sq.metres. The difference in the plinth area as per the said plan was approximately 10 sq.metres. The short

question that arises for consideration in this Writ Petition is whether for regularising the said deviation, which deviation according to the

Respondents can be regularised under Rule 143 of the Kerala Municipality Building Rules, the compounding fee payable is twice the amount of the

permit fee payable in respect of the entire building or in respect of the additional construction namely, 10 Sq.metres.

Rule 145 of the Kerala Municipality Building Rules stipulates that the application fee on an application for regularisation shall be as specified in

Schedule I. The application fee claimed in the instant case namely, Ext.P4, is only Rs. 30/-. Going by Schedule I, the said demand is in order. Rule

146 of the Kerala Municipality Building Rules deals with levy of permit fee and compounding fee. Rule 146 is extracted below for reference.

Decision to be intimated:

(1) The Secretary shall by written order either grant or refuse to grant regularisation.

(2) The Secretary shall, if the decision is to grant regularisation intimate the fact to the applicant in writing specifying the amount to he remitted as

compounding fee and the period within which the amount has to be remitted.

(3) The Secretary shall, on receipt of the compounding fee, and compliance of the condition, if any specified, issue order as in Appendix-I

absolving the person from all liabilities and regularising the construction, and record the details thereof in a register to be kept as a permanent

documents in the form in Appendix-J.

(4) The compounding fee shall be double the amount of the permit fee in force:

Provided that in the case of deviated or additional construction only the area so deviated or added shall be considered for the calculation of

compounding fee.

(5) The Secretary shall, if the decision is to refuse regularisation, intimate the fact to the applicant specifying the reasons for such refusal and the

period within which such building or part of building has to be demolished or the well filled up:

Provided that an application for regularisation shall be refused only on such grounds on which approval of site or permission may be refused.

(emphasis supplied)

Sub-rule (4) of Rule 146 stipulates that the compounding fee shall be double the amount of the permit fee in force. The proviso to Sub-rule (4)

stipulates that in the case of deviated or additional construction, only the area so deviated or added shall be considered for the calculation of the

compounding fee. It is thus evident from Sub-rule (4) of Rule 146 that in the case of deviations or additional constructions, the deviated area or

additional area alone can be taken into account for the purpose of computing the compounding fee, which is double the amount of the permit fee in

force. In the instant Case, it is not in dispute that the area of the completed building is 274.16 Sq.metres. Ext.Pl permitted the construction of a

building having an area of 265.66 Sq.metres. I am therefore of the opinion that applying Sub-rule (4) of Rule 146 of the Kerala Municipality

Building Rules, the Municipality can levy only compounding fee, which is double the amount of the permit fee in relation to the additional

construction made by the Petitioner namely 10 Sq.metres. It has therefore to be necessarily held that the demand made in Ext.P4 for permit fee

and compounding fee cannot be sustained. Rules 145 and 146 permit only levy of application fee and compounding fee. It does not permit the levy

of permit fee as was done by the Respondents. I accordingly hold that besides the application fee, site fee and postage charges mentioned in

Ext.P4, the Petitioners are liable to pay only twice the amount of the permit fee in relation to the additional construction effected by them namely,

twice the amount of the permit fee payable for 10 Sq.metres, as the compounding fee.

In the result, I allow the Writ Petition, quash Ext.P4 and direct Respondents 2 and 3 to issue a revised memo in the aforesaid terms. The

Respondents shall, on receipt of the compounding fee from the Petitioners, consider the application for regularisation and take an appropriate

decision thereon in accordance with law expeditiously and in any event within one month from the date on which the Petitioners remit the

compounding fee.