Sood and Sood Builders Pvt Ltd. v. Chennai Metropolitan Development Authority

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:09.12.2009CORAM:THE HON’BLE MR.JUSTICE T.S.SIVAGNANAM W.P.No.19251 of 1998 & W.M.P.No.29179 to 29181/98 M/s.Sood and Sood Builders Pvt Ltd.Represented by its AuthorisedSignatory Mr.M.Hariharan3, Maneshst, T.Nagar, Chennai-17 ... PetitionerVsChennai Metropolitan DevelopmentAuthority, 8 Gandhi Irwin Salai,Egmore, Chennai – 600008, rep. Byits Member Secretary. ... Respondent Prayer : The Writ Petition filed under Article 226 of theConstitution of India for issue of Writ of Certiorarified mandamus tocall for the records comprised in the proceedings of the respondentdated 20.10.1998 and 26.11.1998 bearing No.Lr.No.C3/19511/97 andquash the said proceedings in so far as it pertains to demand foropen space reservation charges at Rs.49,40,000 and the Securitydeposit for proposed development at Rs.16,91,000 as illegal andunconstitutional and consequently direct the respondent to forthwithgrant planning permission sought for by application dated 23.09.1996in respect of Development at 115 Theagaraya Road, T.Nagar, Chennai-17without in and manner insisting upon payment of Open SpaceReservation Charges and Security Deposit for Development. For Petitioner : Mr.Rahul Balaji for Mr.Satish ParasaranFor Respondent : Mr.C.Kathiravan for CMDAO R D E RThe challenge is to an order passed by the Chennai MetropolitanDevelopment Authority, the sole respondent herein, which pertains toa demand for Open Space Reservation Charges at Rs.49,40,000/- andSecurity Deposit for the proposed development at Rs.16,91,000/- andconsequently, to direct the respondent to grant planning permissionsought for by application dated 23.09.1996 without insisting uponpayment of open space reservation charges and security deposit.2. It is brought to the notice of this Court that pursuant to aninterim order granted by this Court on 08.12.1998, which was modifiedon 24.12.1998 in W.P.M.P.No.30339/1998, a stay had been granted ofthe impugned demand subject to the condition that the petitionershould deposit 25% of the open space reservation charges and furnish https://hcservices.ecourts.gov.in/hcservices/ bank guarantee for the security deposit demand and on such condition,the planning permission to be processed. Therefore, learned counselappearing for the petitioner submits that the planning permission hassince been granted and all that is required to be adjudicated in thepresent writ petition is as to whether to the impugned demand islegally sustainable. 3. The facts leading to the filing of the writ petition are thatthe petitioner submitted an application on 23.09.1996 to therespondent for grant of planning permission for putting up the Hotelbuilding comprising of double basement floor, ground floor plus tenfloors at T.S.Nos. 4860, 7025 and 7026, Block No.113, Door No.115,Theagaraya Road, T.Nagar, Chennai – 17. It is stated that theproperty comprised in T.S.No.4860 and 7025 measuring 36416 sq. ft.faces Theagaraya Road and T.S.No.7026 measuring 11064 sq. ft. facesBoag Road. According to the petitioner, the property in question wasacquired by them by a registered sale deed dated 09.12.1994, whichtransaction was after the prior approval of the competent authorityunder the Income Tax Act.4. The petitioner would further submit that their applicationwas taken up for consideration, in terms of the Special Rules forMulti-Storeyed Buildings as contained in Annexure – IX framed underRule 17(a) of the Development Control Rules. According to thepetitioner, the Panel of Experts constituted under the said Rule hadcleared the petitioner planning proposal as on 23.12.1996 and basedon the report of the expert panel, the approval of grant of planningpermission by the Government was granted only on 02.01.1998.However, the first respondent by communication dated 20.10.1998,directed the petitioner to pay the development charges (DC), OpenSpace Reservation Charges (OSR), Security Deposit (SD) and SecurityDeposit for display board. A representation appears to have beensubmitted by the petitioner on 28.10.1998, requesting the respondentfor the reviewing the demand. It is stated that the respondentwithout properly appreciating the objections raised has passed theorder dated 26.11.1998, which is impugned in this Writ Petition.5. Mr. Rahul Balaji, learned counsel appearing for the petitionerwould assail the correctness of the order on several grounds.Firstly, the learned counsel contended that the demand for OSR iscontrary to the provisions of the Special Rule relating to Multi-Storeyed Buildings (hereinafter as refer to "the MSB"), since therespondent cannot take into account the roads and circulatory passageinside the property used for passage of vehicles and for parking tobe set back spaces under the DCR and they have to be excluded whilecalculating the open space and cannot be included for levying anyopen space reservation charges.6. The next contention being that the demand for OSR chargesshall be on the market value of the property as on the date of https://hcservices.ecourts.gov.in/hcservices/ submission of the planning permission and not on the market valueprevailing on the date of sanction. The third contention of thelearned counsel is that since the property in question faces bothBoag road and Theagaraya road, the market value in respect of thelands situated in Theagaraya road and Boag road should have beentaken while calculating the OSR charges and the respondent ought notto have adopted a uniform rate.7. Mr.C.Kathiravan, learned standing counsel appearing for therespondent would contend that the issue raised in the present writpetition has been settled by a Division Bench of this Court in adecision in Hotel Atlantic Private Limited Vs. State of Tamil Nadu,[CDJ 2007 MhC 409] and therefore, the writ petition has to bedismissed. The learned standing counsel by relying upon the avermentsmade in the counter affidavit would contend that there is no roadprovided by the petitioner and the set-back spaces, private parkingand driveaway spaces provided as per the requirement under DCR andretained by the petitioner for their enjoyment cannot be meant to bea road under Rule 17 of DCR r/w the Special Rules for MSBs. Inreply, the learned counsel appearing for the petitioner would contendthat this Court in Review Application No.28/1998 in W.P.7246/1998dated 11.05.1999 held that the petitioner therein is entitled forexclusion of road and other open spaces while computing the OSRcharges and therefore, the petitioner herein is also entitled toexclude the portion left as road. 8. I have carefully considered the submissions on either sideand perused the materials available on record.9. As stated above, the learned counsel appearing for thepetitioner has raised three contentions before this Court, as regardsthe validity of the impugned order, which are dealt with in thefollowing order. The second of such contention, being that whatwould be the appropriate value to be taken for the purpose ofcalculating the OSR charges. According to the petitioner theguideline value, which were prevailing on the date of submission ofthe application for planning permission alone shall be taken. Infact, this question came up for consideration before the Hon'ble Division Bench in the case of Atlantic Hotel Private Limited referredsupra on the Hon'ble Division Bench held: "6. If we accept the case of the petitioner that theguideline value prevailing on the date of application alonehas to be taken note of for the fixation of OSR charges, itwould lead to a situation that everyone would prefer to makeapplication without complying with the conditions. Merelybecause the Panel approved the recommendations of the CMDA, itcannot be claimed that the petitioner's application was inorder in all respects and it is entitled to planning https://hcservices.ecourts.gov.in/hcservices/ permission as of right. We have already referred to thevarious conditions to be fulfilled, and on receipt of NOCsfrom various authorities, the proposal was forwarded to theGovernment on 23.08.1998. In such circumstances, it cannot beclaimed that the delay was on the part of the respondent.Even if we accept that there is delay, it cannot be claimedthat the respondent is responsible for the same." Hence, in view of the above decision of the Hon'ble Division Bench,this contention raised by the learned counsel appearing for thepetitioner cannot be sustained.10. The next contention raised by the learned counsel appearingfor the petitioner is that the property in question falls in tworoads namely Boag road and Theagaraya road and the respondent oughtnot to have adopted uniform value while calculating the OSR charges.The respondent in the counter affidavit, have stated that the site inquestion is a reconstitution of three survey Nos. and two survey Nosface Theagaraya road and one faces North Boag road and for planningpurposes, the entire site is construed as a single site because ofthe reconstitution and the Theagaraya road has a width of more than18 metres, has been taken into consideration for permitting a Multi-storeyed Buildings in the reconstituted site and if the site facingNorth Boag Road had been reconstituted with the other site, thepetitioner would not be got the approval for a MSB. Thus, I amconvinced with the reasoning given by the respondent more so becauseTheagaraya road was taken into consideration for grant of approvaland the petitioner had an advantage of additional Floor Space Index(FSI) and therefore the petitioner cannot contend that the valuationprocedure as adopted was untenable. If the interpretation made bythe petitioner is to be accepted then the petitioner could not haveachieved FSI of 2.5 metres, since if the North Boag road is takeninto consideration, the petitioner would have been permitted an FSIof 1.5 metres only. Therefore, the petitioner cannot be permitted toapprobate and reprobate and attempt to take advantage of bothsituations. Hence, the third contention raised by the petitionerdoes not merit consideration. 11. The third contention raised by the learned counsel is thatwhile computing the OSR charges, the car parking area, the road andcirculatory area have to be excluded. In the counter affidavit, ithas been stated that there is no road provided as claimed by thepetitioner and only when a road is proposed and gifted to the localbody for the use of the public such road area will be deducted fromthe site extent. According to the respondent, the space referred toby the petitioner is a parking space with driveaway requirement whichforms part of minimum set-back space required to be provided betweenthe building and the site boundary as per Development Control Rulesand the side set-back spaces, private parking and driveaway spacescannot be construed as roads. https://hcservices.ecourts.gov.in/hcservices/

12. Special Rules for Multi-Storeyed Buildings have been framedunder Rule 17 (a) of the Development Control Rules. Rule 3 of theSpecial Rules deals with Set-back spaces, which are around and aboutthe building and shall be permanently open to sky forming on integralpart of the site and minimum extent specified in the Rule betweeneach of the boundaries of the site and building proposed within thesite. In terms of Rule 3 (c) the set-back space shall be kept opento sky and free from any projection of any building other than afence or compound wall provided that these open yards may be used forthe provision of access ways to buildings/parking facilities. Rule 5of the Special Rules deals with parking and parking facility for theuse of the occupants and persons visiting the premises, conforming tothe standards specified in Annexure XIII under Rule 20 of theDevelopment Control Rules. 13. In terms of Rule 5(1)(b) provision shall be made forcirculation of vehicles gaining access to and from the parking spacesand the premises, into the street. These parking spaces andfacilities provided shall be maintained as such to the satisfactionof the Commissioner and conforming to any bye-law that may be made bythe Corporation of Chennai. Rule 11 of the Special Rules deals withReservation of land for communal and recreational purposes and thearea to be reserved depends upon the extent of site. The extent ofthe site in the present case is more than 3000 sq. metres and lessthan 10000 sq. metres and in terms of clause b of Rule 11, thepetitioner is required to reserve 10% of the area excluding roads orin the alternative, they shall pay the market value of the equivalentland excluding the first 3,000 square metres as per the valuation ofthe Registration Department. The space so reserved shall bemaintained for communal and recreational purposes.14. In terms of explanation (3) to Rule 11, the reservationshall be exclusive of the set-back spaces provided in terms of Rule3. Therefore, what is contemplated under the Rule is reservation of10% area, which shall exclude roads and in terms of the explanation-3 such reservation shall be exclusive of set-back spaces asprescribed in Rule 3. Thus, I am unable to accept the contention ofthe learned counsel appearing for the petitioner that the circulatoryarea or the pathway around the building which would essentially bepart of the side set-back as provided under Rule -3, should be takeninto consideration for the purpose of computing the area to bereserved under Rule 11. As already noted the set-back spaces aroundthe building could be used for provision of access way to thebuilding/parking facility in terms of Rule 3(c), and therefore suchaccess ways cannot be termed to be a road under the scheme of theTamil Nadu Town and Country Planning Act, Development Control Rulesand the Special Rules for Multi-Storeyed Buildings.15. The learned counsel appearing for the petitioner by placingreliance on the unreported Judgment of this Court in Review https://hcservices.ecourts.gov.in/hcservices/ Application No. 28 of 1998 dated 11.05.1999 would contend that thearea of the road has to be excluded. It is true that in terms ofclause b of Rule 11 the area to be reserved by the petitioner shallbe 10% of the area excluding roads. The question as to whether thereis a road in existence is a question of fact to be decided by theplanning authorities on the application submitted by the petitioner.In fact in the counter affidavit, it has been specifically statedthat the petitioner has confused the side set-back spaces anddriveaway and parking spaces with that of a public road.16. Admittedly, the development by the petitioner is not ahousing layout, but a multi-storeyed building for establishing aHotel. There is no document to prove that apart from the side set-back spaces access ways and parking facility, any road has beenprovided by the petitioner on site. The Tamil Nadu Town and CountryPlanning Act and the Development Control Rules are a complete andself contained code for regulating the development. Therefore, theterm "road" has to be interpreted bearing in mind the interim ofstatue and if such interpretation is made, the answer would be, aroad to mean a public road which has been specifically set apart andhanded over to the local authority for management and control and tobe preserved as such. It is to be noted that under Rule 11 thereservation of land contemplated as for communal and recreationalpurposes, meant to be used and enjoyed by the public. For computingsuch area, roads are excluded. It is not the case of the petitionerthat apart from the side set back spaces, which are used as accessways and parking lot, a road has been provided for. Therefore thecontention raised by the petitioner cannot be acceded. 17. However, from the facts of the present case, I do not findany such public road on the site, which has been developed by thepetitioner. Therefore, the first contention raised by the learnedcounsel appearing for the petitioner does not merit acceptance.18. In the result, the Writ Petition fails and accordingly the same is dismissed. However, there will be no orders as to costs.Consequently, connected miscellaneous petition are also dismissed.Sd/Assistant Registrar/True Copy/Sub Assistant RegistrarpbnToThe Member Secretary.Chennai Metropolitan DevelopmentAuthority, 8 Gandhi Irwin Salai,Egmore, Chennai – 600008, https://hcservices.ecourts.gov.in/hcservices/ +1 CC to M/s.Satish Parasaran, Advocate, Sr.67666+1 CC to Mr.C.Kathiravan, Advocate, Sr.67629W.P.No.19251 of 1998LA (CO)SRA 17/12/2009