Court mandates refund of excess fees despite lack of statutory provision, upholding jurisdiction under Article 226.

JUDGMENT

This writ petition is filed with the following prayers:-

“i) Call for the records leading to Exhibit-P5 and quash it issuing a writ in the nature of certiorari;

ii) Declare that the first respondent can collect and retain only the permit fee and FSI charges based on the revised plan approved by Exhibit-P3 building permit;

iii) Issue a writ in the nature of mandamus commanding the respondents to refund forth with the extra permit fee of Rs.18,84,248/ collected from the Petitioner and held by them;

iv) Dispense with the translated copies of the documents in vernacular; and v) Issue such other writ, order or direction is this Hon’ble Court may deem fit and proper on the facts and circumstances of the case and in the interest of justice.” SIC)

2. The petitioner is building a multi storied apartment in one of its properties in Palakkad-III Village, is the submission. He obtained necessary building permits after paying requisite fee and later revised the site plan, which has been duly approved by the 1^st respondent. According to the petitioner, an excess of permit fees of Rs.18,84,248/- has been collected and is to be refunded by the respondents. The petitioner applied for revised site plan before the commencement of the construction. The petitioner submitted a refund application as evident by Ext.P4, but the respondents by Ext.P5 communication denied the same. Aggrieved by the same, this writ petition is filed.

3. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the Municipality.

4. The learned counsel for the petitioner submitted that it is an admitted fact that an excess amount is collected by the Municipality and the same is to be returned.

5. The learned Standing Counsel appearing for the Municipality submitted that it is true that an excess amount is collected, but there is no provision to refund. The learned counsel takes me through a statement filed by the respondents. It will be better to extract paragraph 9 to 11 of the statement, which reads as follows:-

“9. Since the permit had been revised the additional fee to be remitted for FSI is Rs.27,28,000/- only. This is calculated as Rs.5000/- per sq.feet for 545.60 sq.mtr. The amount is Rs.17,61,650/-less than the original permit fee. Since the built up area is reduced from 12013.56 to 11196.24 sq.mtr., there is a reduction under that head also of Rs.1,22,598/-.

10. It is submitted that thereafter the petitioner preferred Exhibit P-4 request for refund of the excess permit fee paid. There is no provision either in the Kerala Municipality Act ,1994 or the Kerala Municipality Building Rules ,2019 which enables to refund the excess fee paid.

11. In the above facts and circumstances, the Municipality by Exhibit P-5 informed the petitioner that there is no provision which enables to refund the amount already paid. As there is no provision to refund the amount already paid the request was turned down by Exhibit P-5.”

6. I am of the considered opinion that when an excess amount is collected by the Municipality, even if there is no provision, it is the duty of a local authority to return the same.

7. The learned Standing Counsel submitted that when the statute does not provide for a refund, the Municipality is not in a position to refund the same. This cannot be accepted at all. If such preposition is accepted, then a person who has mistakenly deposited an excess amount without knowledge of the provisions, would not be entitled to a refund. Such contention cannot be taken by the Municipality. If there is no Rule in the statute, this Court can exercise an extraordinary jurisdiction under Article 226 of the Constitution of India to refund the amo