2007 ANDM.P. NO. 2 OF 2007 The Member SecretaryChennai Metropolitan Development AuthorityNo.1 v. 1. The United Colony Flat Owners Welfare Association

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 19.12.2007CORAMTHE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYAANDTHE HONOURABLE MR. JUSTICE M.VENUGOPALW.A. NO. 1124 OF 2007ANDM.P. NO. 2 OF 2007The Member SecretaryChennai Metropolitan Development AuthorityNo.1, Gandhi Irwin RoadEgmore, Chennai 600 008... Appellant- Vs -1. The United Colony Flat Owners Welfare Association rep. by Power Agent A.Periakaruppan West Avenue, Kamaraj Nagar Thiruvanmiyur, Chennai 600 041.2. The Corporation of Chennai rep. by its Commissioner Rippon Building, Chennai 600 003... RespondentsWrit Appeal filed against the order dated 22.02.2007 passed bylearned single Judge in W.P. No.19769/06, filed under Article 226 of theConstitution of India to issue a writ of certiorarified mandamus callingfor records of the 1st respondent comprised in letter No. C3/6590/2006dated 9.5.2006, quash the same in so far it pertains to condition No.1 ofthe impugned order as illegal, arbitrary, ultravires the provisionscontained in the Development Control Rules and consequently direct the 1strespondent herein to process the application of petitioner dated 28.3.2006and issue planning permission as long in accordance with DevelopmentControl Rules applicable to mixed residential zone for putting upIT/commercial building. https://hcservices.ecourts.gov.in/hcservices/ For Appellant: Mr. P.S.Raman, AAG, for Mr. KathiravanFor Respondents: Mr. R.Muthukumaraswamy, SC, for Mr. S.Ramesh for R-1 Mr. A.Mohamed Ghouse for R-2JUDGMENTS.J.MUKHOPADHAYA, J.This appeal has been preferred by the Chennai Metropolitan DevelopmentAuthority, (hereinafter referred to as 'CMDA') against order dated 22ndFeb., 2007, passed by learned single Judge in W.P. No.19769/06. By thesaid order, learned single Judge set aside the objection as was raised byCMDA, vide reason No. (i), cited in the impugned order dated 9th May, 2006,and the respondent United Colony Flat Owners Association (hereinafterreferred to as 'Association') was directed to resubmit the planningpermission application before the CMDA after complying with the otherconditions contained in the said order dated 9th May, 2006 from S. Nos.2 to12. The CMDA, in its turn, has been directed to examine the same inaccordance with law with particular reference to Rule 17 (e) read withAnnexure XV to the Development Control Rules and to pass appropriateorders thereon.2. The first respondent is a registered Association whose members hadpurchased residential flats from the Tamil Nadu Housing Board in the landin survey field No.168, old survey No.41/5B, 41/2AB and 41/6AB, bearingDoor No.M38-A to M38-L, 39-A to 39-F and 40-A to 40-L, West Avenue,Kamaraj Nagar, Thiruvanmiyur, Chennai. The total extent of land overwhich all those tenements are constructed and sold by Tamil Nadu HousingBoard is 2,634 sq. mtrs. The members of the association joined togetherand decided collectively to demolish all the units and to develop anInformation Technology Park and application in this regard was made beforethe CMDA on 23rd Aug., 2005. Initially, by a communication dated 3rd Feb.,2006, CMDA informed the association that the site in question falls under'Mixed Residential Use Zone' and since the site was in Tamil Nadu HousingBoard approved residential layout, a multi-storied building (MSB) orbuilding for Information Technology was not permissible. However, it wasstated in the same letter that the ordinary buildings (ground floor +first floor) and special buildings (ground + 3 floors or stilt + 4 floors)on road of 10 mtrs., for IT/Commercial/Retail and Shopping/Residentialuses are permissible subject to the satisfaction of the road widthrequirement and Development Control Rules. The association was asked toobtain 'No Objection Certificate' from Tamil Nadu Housing Board as a pre-requisite condition for approval of ordinary/special building in the siteunder reference.At that stage, the association preferred a writ petition, W.P.No.1198/06 for a direction on the CMDA to entertain, consider and grant https://hcservices.ecourts.gov.in/hcservices/ approval for demolition and construction of a new building, withoutinsisting on production of NOC from the Tamil Nadu Housing Board. Thesaid writ petition was disposed of on 14th Feb., 2006, in favour of theassociation with a direction to CMDA to receive the application forbuilding plan for approval and to process the same on merits withoutinsisting on production of NOC from the Tamil Nadu Housing Board. It isonly thereafter the CMDA rejected the claim setting out 12 reasons, firstof which reads as follows :-"The site under reference lies in an approved residentiallayout, wherein the proposed activity (IT Park) is notpermissible."3. Similar ground was taken by CMDA before the writ court as was shownin the order dated 9th May, 2006, as also before this Court. According tothem, the site under reference lies in an approved residential layout,wherein the proposed activity, viz., IT park was not permissible. Layoutplan was also produced before learned single Judge to show that there is aThiruvanmiyur neighbourhood scheme as approved in LPS/DTP No.28/74 and49/74. Therefore, according to CMDA, that being the admitted position asthe site under reference falls under an approved residential layout, itcannot be allowed for development of IT park.4. We have heard the parties and noticed the submission as made bylearned Addl. Advocate General, particularly, the ground that no IT Parkcould be allowed in an approved residential layout. Such submission wasmade under reference to Rule 4 of the Development Control Rules of CMDA,particularly clause (iii) (a) of 2nd Explanation to said Rule 4.Rule 4 relates to designation of use of master plan or detaileddevelopment plan which prescribe that where the use of site or premises isspecifically designated under the development plan, it shall be used onlyfor the purpose so designated. Where the use of site or premises is notspecifically designated under the development plan, it can be developed inconformity with the users permissible in the zone in which such sitefalls. Under clause (iii) (a) of 2nd Explanation to Rule 4, provision hasbeen made in respect of an area where detailed layout plan or developmentplan prepared and approved by the authority or the competent body, asquoted hereunder :-"(iii) (a) Where for an area a detailed layout plan ofland development has been prepared and approved by theAuthority or such other Executive Authority or local bodyor Agency or person which the power has been delegated bythe Authority the zoning shown on such layout plan shallbe applicable and the developments in the Area shall beregulated according to these rules."Part-III of the Development Control Rules containing generalprovisions deals with building of special character, using foreconomically weaker section, 'Information Technology Park', etc. Rule 17 https://hcservices.ecourts.gov.in/hcservices/ (e) of the said rule specifically deals with development of land andbuilding 'for the purpose of information technology', which reads asfollows :-"17. (e) Information Technology Park (ITP)The development of land and building for the purposes toaccelerate the growth of Information Technology includingthe manufacture of the hardware, development of softwareand its associated computer-communication technologyapplications shall conform to the rules for InformationTechnology Park given in Annexure XV."Annexure XV contains rule for 'Information Technology Park', asdetailed hereunder :-"ANNEXURE – XVRULES FOR INFORMATION TECHNOLOGY PARK(See rule 17(e) of the Development Control Rules)1. (a) The development of land and building for thepurpose of development of Information Technology Park,Software and its associated, computer technology shall becertified by the appropriate authority designated by theGovernment for the purpose and shall be in the followinguse zones as indicated below:-i) Primary Residential use zone;ii) Mixed Residential use zone;iii)Commercial use zone;iv) Institutional use zone;v) Light Industrial use zone;vi) General Industrial use zone.(b) Areas: The proposed development shall be permitted inthe whole of Chennai Metropolitan Area, subject to theprovision of adequate water supply and sewerage disposalarrangements to the satisfaction of the Authority inconsultation with the Chennai Metropolitan Water Supply andSewerage Board, Tamil Nadu Pollution Control Board, Localbody as the case may be.2. Activities: Manufacture of Hardware, development ofsoftware and its associated computer-communicationtechnology application, including offices, conference hallsand projection theatres connected therewith, only shall bepermitted. No showrooms, other offices, residential usesand activities of similar nature shall be permitted.Provided that incidental activities such as staff canteen,staff recreational area, guest accommodation, watchmenquarters, and the like not exceeding 10 percent of the https://hcservices.ecourts.gov.in/hcservices/ total floor area shall be permitted. Provided further thatwithin, the above ceiling of 10 percent each of the aboveincidental activities should not exceed 5 percent of thetotal floor area.3. Road width: The proposed development shall eitherabout on a public road of not less than 18 metres in widthor gain access from a passage of not less than 18 metreswidth which connects to a public road of not less than 18metres width.4. Site extent: The minimum site extent shall be not lessthan 2000 square metre.5. Height: If the proposal relates to multi-storeyedbuilding, the maximum permissible height of the buildingshall not exceed two times, the width of the abutting roador 60 metres, whichever is higher and for non-multistoryedbuilding it should conform to the requirements asprescribed in the respective Development Control Rules.Development charges for multi-storeyed building shall bedouble if the height of the multi-storeyed building exceeds2 times of the width of the abutting road.6. Floor Space Index: The Floor Space Index for suchdevelopment shall be allowed at 1.5 times of the FloorSpace Index ordinarily permissible in Development ControlRules, if such proposals falls within the categories listedin the sub rule (a) above.7. Caution Deposit: (a) 10 percent of the guideline valueof the total land, or 20 percent of the guideline value ofthe land area equal to which additional floor area isavailed, whichever is higher, shall be remitted by DemandDraft, drawn on any scheduled Bank in Chennai City, infavour of the Member Secretary, Chennai MetropolitanDevelopment Authority as a refundable interest bearingCaution Deposit before issue of the Planning Permission.(b) The Caution Deposit paid is refundable after a periodof five years from complete occupation and commencement ofcommercial operation, subject to confirmation by acertificate from the designated authority certifying thatthe construction is put into continuous usage forInformation Technology Parks for the said five year.(c) If the building is utilised for any other purposeduring this period, the caution deposit shall be forfeited.(d) The rate of interest for the caution deposit would be https://hcservices.ecourts.gov.in/hcservices/ on par with the State Bank of India's Five year periodfixed deposit rate, which is in force on the date of drawalof the demand draft.(e) The caution deposit referred to above shall bedifferent from, and over and above, the security deposit tobe paid in the normal course of issue of planningpermission.8. Car Parking Standards: The covered Car Parking spaceupto 50 percent over and above the rules of DevelopmentControl Rules will be allowed upto and inclusive of firstfloor and the same shall not be included in the floor spaceIndex.9. Other Parameters: Except for the abovesaid rules, thedevelopments shall conform to the Development Control Rulesin respect of all other parameters."5. From the aforesaid Rule 17 (e) read with Annexure XV enclosed tothe said rule, it will be evident that the development of land andbuilding for the purpose of development of information technology park,software and its associated computer technology in a "Mixed ResidentialUse Zone" is permitted under the said rule. As a matter of fact, the saidrule promotes development of Information Technology Park, software and itsassociated computer technology, etc., even in other zones, includingprimary residential use zone.6. Mr.P.S.Raman, Addl. Advocate General, tried to suggest that Rule 17(e) and Annexure XV is contradictory to clause (iii) (a) of the 2ndExplanation to Rule 4, but such submission has no legs to stand as evidentfrom clause (iii) (a) of 2nd Explanation to Rule 4 and quoted above.Therefore, we are of the opinion that the reasons contained in theimpugned order of the appellant, as also highlighted before this Court, isnot in conformity with the rules and annexures to the Development ControlRules as referred to and quoted above and, thereby, no interference iscalled for with the order passed by learned single Judge.7. There being no merit, the writ appeal is dismissed. Consequently,connected miscellaneous petition is also dismissed. But there shall be noorder as to costs.sd/-Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ GLNTo1. The Member Secretary Chennai Metropolitan Development Authority No.1, Gandhi Irwin Road Egmore, Chennai 600 008.2. The Commissioner Corporation of Chennai Rippon Building, Chennai 600 003.+ one cc to Mr. C. Kathiravan, Advocate, SR.75210.+ Three ccs to Mr. S. Ramesh, Advocate, SR. 75109 & 71680+ one cc to Mr. A. Mohamed ghouse, Advocate, SR.75528.SCD(CO)RP 20.12.2007. W.A. NO. 1124 OF 2007