Supreme Court - Daily Orders
The Commissioner Poonamalee ... vs M/S Golden Homes Private Limited on 20 April, 2022
Bench: Sanjiv Khanna, Surya Kant
1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No(s). 3034 of 2022
(@SLP(C) No.28356/2018)
THE COMMISSIONER POONAMALEE MUNICIPALITY Appellant(s)
VERSUS
M/S GOLDEN HOMES PRIVATE LIMITED & ORS. Respondent(s)
WITH
Civil Appeal No(s). of 2022
(@SLP(C) No.1214/2019)
O R D E R
Leave granted.
The respondent-builder had applied for permission for the construction of a new building in the village of Poonamalee, which falls under the jurisdiction of the Poonamalee Municipality.
The permission was granted vide order dated 21.08.2012, under Sections 200 and 201 of the Tamil Nadu District Municipalities Act, 1920 (hereinafter referred to as “the Act”), and was valid for the period between 21.08.2012 to 20.08.2015.
In terms of the permission order, the respondent-builder had made payment totaling to Rs.61,08,136/- (Rs.40,78,504/- as building licence fee, Rs.18,28,632/- as Vacant Land Tax for the year 2006- Signature Not Verified 07, Rs.27,000/- towards the formation of road, and Rs.1,74,000/- Digitally signed by Indu Marwah Date: 2022.04.26 17:04:05 IST towards rainwater harvesting).
Reason:
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Paragraph 3 of the said order reads as under:
“If the construction is not completed within the time limit granted in the licence, no construction work shall be proceeded further without submitting an application once again, along with the required drawings and obtaining permission. To seek for the permission, appropriate application shall be made at least 30 days prior to the actual time granted in the licence. If any construction was proceeded without getting the permission, the owner will be prosecuted and the unauthorised construction will be removed.” The respondent-builder could not complete construction within the stipulated period and applied for renewal of the licence, whereupon the appellant-municipality raised a demand of Rs. 79,70,000/- as building licence fee and Rs. 88,74,800/- as construction workers’ welfare fund from the respondent-builder. The demand of Rs. 79,70,000/- was computed on the basis of Resolution No. 390 dated 31.12.2012, which had revised the fees for issuance of building licence by Poonamalee Municipality.
The respondent challenged the demand, stating that payments had already been made earlier in 2012, and the respondent is not liable to pay a fee on renewal. Thus, no amount was due.
The writ petition filed by the respondent was allowed by order dated 17.04.2017, inter-alia relying upon Section 204 read with sub-section (9-A) to Section 321 of the Act.
The appeal preferred by the appellant-municipality was dismissed vide impugned order dated 13.06.2018, and the view taken by the Single Judge of the High Court was endorsed.
Sections 197, 204, and 321 (2), 321 (9-A) of the Act read as follows:3
“197. Application to construct or reconstruct building- (1) If any person intends to construct or reconstruct a building other than a hut, he shall send to the executive authority
(a) an application in writing for the approval of the site, together with a site plan of the land; and
(b) an application in writing for permission to execute the work together with a ground-plan, elevations and sections of the, building, and a specification of the work.
[Explanation.- ‘Building’ in this sub-section shall includes a wall or fence of whatever height bounding or abutting on any public street.] (2) Every document furnished under sub-section (1) shall contain such particulars and be prepared in such manner as may be required under rules or by- laws.
xxx xxx xxx
204. Lapse of permission.- If the construction or reconstruction of any building is not completed within the period specified, the permission shall lapse and a fresh application shall be made before the work is continued.
xxx xxx xxx
321. General provisions regarding licences and permissions._ (1) Every licence and permission granted under this Act or any rule or by-law made under this Act shall specify the period, if any, for which, and the restrictions, limitations and conditions, subject to which the same is granted, and shall be signed by the executive authority. (2) Save as otherwise expressly provided in or may be prescribed under this Act, for every such licence or permission, fees may be charged on such units and at such rates as may be fixed by the Municipal Council.
xxx xxx xxx (9-A) Save as otherwise expressly provided in or may be prescribed under this Act, every application for a licence or permission or for registration of the renewal of a licence or permission or registration, 4 shall be made not less than thirty and not more than ninety days before the commencement of the year or of such less period as is mentioned in the application.” Resolution No. 390 dated 31.12.2012 reads as under:-
“True copy of the resolution No. 390 dated 31.12.2012 by the Ponamalee Municipality Since the fees levied by the Ponamallee Municipality for issuing Building Licence is very low subject is placed for the consideration and approval of the Council to revise the same on annual basis and to be charged for three years.
S. Particular Old rates New rates
No. (Rs.) (Rs.)
1. Ground floor 0.60 0.75
2. 1st floor 1.20 1.50
3. 2nd floor 2.40 3.00
4. Bathroom 100 150
5. Toilet 100 150
6. Well 100 150
7. Compound Wall Drawing Fee 4 5
8. Additional Drawing Fee 300 200
9. Inspection fee 200 200
10. Road Development Charge 40 50 above
40 fts.
Old rate
Rs. 100
new rate
Rs. 130
11. Plot sub division per cent 200 1000
12. Street light Fees 5000 7000
Office note
Subject may be approved by the Council Resolution No.390 dated 31.12.2012: resolved to approve.” Section 197 mandates that a person who intends to construct or reconstruct a building, other than a hut, shall send the proposals 5 to the executive authority along with a written application for approval and a site plan or map. Certain documents such as ground plan, elevations and sections of the building, and a specification of the work are also required to be submitted.
Section 321 states that every licence and permission granted under the Act or any rule or by-law shall specify the period for which the permission is granted, and such a licence for permission can impose restrictions, limitations, and conditions. Sub-section (2) to Section 321 states that for the grant of every licence or permission, the municipality would be liable to charge fee on such units and at such rates as may be fixed by the Municipal Council.
Sub-section (2) may not apply where an exclusion is expressly provided or prescribed under the Act. It is not the case of the respondent-builder that there is an express exclusion prescribed under the Act. Sub-section (9-A) to Section 321 states that every application for renewal for a licence or permission or restriction shall not be made less than thirty or more than ninety days before the commencement of the year or such other period as may be mentioned in the application.
Sub-Section (9-A) prescribes the period during which the application for renewal of the licence or permission or registration is to be filed. It is clear to us that the objective of sub-section (9-A) to Section 321 is not to bar or prohibit the Municipality from charging fee for the renewal of a licence or permission or registration. If the application for renewal is not made within the said period, it would be treated as a fresh application. Sub-section (9-A) to Section 321 neither expressly nor 6 by necessary implication states that only one time fee shall be charged. The matter is put beyond doubt by the Resolution No. 390 dated 31.12.2012, which prescribes that building construction fee shall be charged on annual basis and for a three-year period. Old and new rates are specified. Thus, we are in agreement with the stand taken by the appellant-municipality that the respondent- builder would be liable to pay fee in terms of sub-section (2) to section 321, when the respondent-builder had made an application for renewal of permission. Sub-section (2) to Section 321 would equally apply to applications made for renewal of licence or permission or registration.
Accordingly, the respondent-builder would be liable to pay the renewal fee in terms of Resolution No. 390 dated 31.12.2012 on the application made for renewal of licence/permission for construction.
For the aforesaid reasons, the present appeal is allowed, and the impugned judgment is set aside. The writ petition filed by the respondent would be treated as dismissed. In case the respondent has not paid the fee payable in terms of resolution number 390 dated 31.12.2012, the same would be paid within the period of six weeks in terms of the Act and applicable rules and by-laws.
Pending application(s), if any, stand disposed of. Civil Appeal No. of 2022 (@SLP(C) No. 1214/2019) Leave granted.
Learned counsel for the parties agree that the impugned judgment be set aside and the matter is remanded to the Division 7 Bench of the High Court to decide Writ Appeal No. 2182 of 2018 and C.M.P. Nos. 16919 & 16920 of 2018, in view of the judgment in the case of The Commissioner Poonamalee Municipality vs. M/S Golden Homes Private Limited & Ors.
The appeal is allowed in the aforesaid terms. We clarify that we have not commented on the merits. Further, it will be open to the parties to raise all issues and contentions before the High Court.
To cut delay, the parties are directed to appear before the Division Bench of the High Court on 09.06.2022, when the date for hearing would be fixed.
Pending application(s), if any, stand disposed of.
. . . . . . . . . . . . . J.
(SANJIV KHANNA) . . . . . . . . . . . . . J.
(SURYA KANT) NEW DELHI;
APRIL 20, 2022.
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ITEM NO.6 COURT NO.16 SECTION XII
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No.28356/2018 (Arising out of impugned final judgment and order dated 13-06- 2018in WA No.719/2017 passed by the High Court of Judicature at Madras) THE COMMISSIONER POONAMALEE MUNICIPALITY Petitioner(s) VERSUS M/S GOLDEN HOMES PRIVATE LIMITED & ORS. Respondent(s) (IA No. 152180/2018 - EXEMPTION FROM FILING O.T.) WITH SLP(C) No. 1214/2019 (XII) FOR EXEMPTION FROM FILING O.T. ON IA 6313/2019 IA No. 6313/2019 - EXEMPTION FROM FILING O.T.) Date : 20-04-2022 These matters were called on for hearing today. CORAM :
HON'BLE MR. JUSTICE SANJIV KHANNA HON'BLE MR. JUSTICE SURYA KANT For parties Mr. Jayant Muthuraj, Sr. Adv.
Mr. P.S. Sudheer, Adv.
Mr. Malavika J., Adv.
Mr. Rishi Maheshwari, Adv.
Ms. Anne Mathew, Adv.
Mr. Bharat Sood, Adv.
Ms. Shruti Jose, Adv.
Mr. V. Krishnamurthy, AAG Mr. V. Balachandran, Adv.
Mr. P. Srinivas, Adv.
Mr. Siddharth Naidu, Adv.
Mr. Pratap Venugopal, Adv.
Ms. Surekha Raman, Adv.
Mr. Akhil Abraham Ray, Adv.
Mr. Vijay Vasan, Adv.
M/S. Ksn & Co., AOR M/S. K J John And Co, AOR Mr. P. S. Sudheer, AOR Mr. K. V. Vijayakumar, AOR 9 UPON hearing the counsel the Court made the following O R D E R Leave granted.
The appeals are allowed in terms of the signed order. Pending application(s), if any, stand disposed of.
(BABITA PANDEY) (DIPTI KHURANA)
COURT MASTER (SH) COURT MASTER (NSH)
(Signed order is placed on the file)