Rule 12(9) Of Kerala Wetland Rules Prima Facie Ultra Vires To Extent It Charges Fee Depending On Area Of Proposed Building: Kerala High Court

Justice PB Suresh Kumar made this declaration on Tuesday, upon a writ petition filed by Abad Builders.

Facts

The petitioner-builder owns land within the limits of Kochi Corporation (the Corporation) measuring 17.62 Ares, of which 6.93 Ares was shown earlier in the revenue records as 'nilam' (wet land). This 6.93 Ares of land was however not notified as paddy land or wetland under the Act. Therefore, it became land described as 'un-notified' in terms of the provisions of the Act.

Section 27A of the Act allows a person to apply to the Revenue Divisional Officer to utilise 'un-notified' land for other purposes. In light of this provision, predecessors of the petitioner were granted permission under Section 27A(1) of the Act to utilise this land for other purposes.

Following this, the said land was reclassified in revenue records as 'purayidom' (dry land).

Later, the petitioner purchased the land, obtaining a building permit from the Corporation for construction of a building in the land, having an area of 670.78 square meters. Subsequently, they submitted an application before the Corporation for a revised building permit for construction of a building having an area of 9274.44 square meters in the said land. The petitioner averred that since a portion of the land where the petitioner proposes to put up the building is an unnotified land in terms of the Act, the petitioner is obliged to pay Rs.100/- per square foot for the area of the building exceeding 3000 square feet in terms of Rule 12(9) of the Rules.

The petitioner alleged that the Corporation is now insisting on a payment of fee for for the area of the building exceeding 3000 square feet as well as for processing their application. Aggrieved, the petitioner challenged Rule 12(9) to the extent it provides for levy of fee, arguing that it is ultra vires the provisions of the Act. As an interim relief, the petitioner had sought a direction to the Corporation to process the application without insisting payment of fee.

Rule 12(9) and Section 27A of the Act

Rule 12 (9) prescribes the fee payable for grant of permission under Section 27A (1) of the Act to utilize lands falling under the definition of 'un-notified land' for residential, commercial or other purpose. Rule 12(9) read with the schedule provides that fee shall be payable at the rate of Rs.100/- per square foot for the area of building exceeding 3000 square feet proposed in the land.

Submissions

The petitioner's counsel Advocate BG Haridranath argued that since Section 27A empowered the competent authority to permit the utilization of un-notified lands for other purposes, levying a fee based on the area of the proposed building was not consistent with Section 27A or contemplated by the legislature. Therefore, the levy under Rule 12(9) on the basis of the area of the proposed building was ultra vires the Act.

The Additional Advocate General emphasized that the Rule 12(9) was within the scope of Section 27A of the Act. He then pointed out that the predecessors of the petitioner were granted permission under Section 27A (1) of the Act subject to the condition that they would pay fee for the same as provided for under Rule 12(9) of the Rules. Since the petitioner's predecessors had accepted the conditions under Section 27A and acted upon the same to get their land reclassified in revenue records, the petitioner was estopped from seeking the declaration sought for by them in the writ petition.

The Court's holding

To determine whether the petitioner was entitled to interim relief, the Court decided to conduct a prima facie examination of constitutionality of the fee levy under Rule 12(9).

Justice Suresh Kumar agreed that Section 27A of the Act is a provision intended to permit owners of un-notified lands to utilise the same for residential or commercial or other purposes.

"The grant of permission provided for under Section 27A of the Act being a service rendered by Government officials to individuals, though not as a privilege, levy of a fee for the same cannot be said to be ultra vires the provisions of the Act. But, the pointed question is as to whether such a fee could be levied having regard to the area of the building proposed in such lands", the Court posed.

Holding that the requirement of a fee based on the building's area was extraneous the purpose of Section 27A, the Court explained,

"The permission contemplated under the said provision being a permission for utilisation of un-notified lands for residential or commercial or other purposes, after ensuring that user of the same would not in any manner undermine the object of the Act, the area of the building, if any, proposed by the applicant in the land is irrelevant and extraneous in the context of the statute, and levy of a fee for such permission on the basis of the area of the building proposed in the land cannot therefore be construed as one consistent with Section 27A and one contemplated by the legislature."

With this reasoning, the Court proceeded to take a prima facie view that the requirement for a fee for area of buildings exceeding 3000 square feet in un-notified lands was ultra vires.

With respect to the Additional Advocate General's contention relating to estoppel, the Court said,

"…it is now settled that no estoppel can legitimate an action which is ultra vires, and the rule of estoppel is not available in respect of ultra vires acts of statutory body/authority.."

Therefore, the Court allowed the petitioner's interim relief, directing the Corporation to process the builder's application without insisting upon a fee.

"True, every rule is presumed to be intra vires and in a challenge against the rule on the ground that the same is ultra vires, an interim order is normally not issued. But, it is settled that if the Court finds that the rule is ex facie ultra vires the provisions of the Act, there cannot be an impediment in granting an interim relief in the matter," the Court reasoned.