Kumaran v. Development Dept

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 03.08.2009CORAMTHE HONOURABLE MR.JUSTICE S. RAJESWARANW.P.No.5317 of 2009 and M.P.Nos.1, 2 and 3 of 2009Kumaran ..Petitioner Vs1. State of Tamil Nadu, Rep. by the Secretary to Government, Housing and Urban Development Dept., Secretariat, Fort St. George, Chennai 600 009.2. The Chennai Metropolitan Development Authority, Rep. by its Member Secretary, Gandhi Irwin Road, Egmore, Chennai 8. ..RespondentsWrit petition is filed under Article 226 of theConstitution of India for issuance of a Writ of CertiorarifiedMandamus, calling for the records of the second respondent comprisedin his letter dated 12.12.2008 in Lr.No.B1/18415/2007 and quash thesame in so far as it relates to the demand of a sum of Rs.95,50,000/-towards charges for Open Space Reservation Charges in respect of thepetitioner's proposed development commercial building consisting ofstilt + 4 floors in the petitioner's land comprised in T.S.No.13/280,Block No.21, Urur Village, Chennai and consequently direct the secondrespondent to issue planning permission in respect of the saiddevelopment without insisting on payment towards Open SpaceReservation Charges.For Petitioner : Mr.Satish Parasaran For Respondent-1 : Mr.R.Neelakandan, G.A. For Respondent-2 : Mr.D.Veerasekaran https://hcservices.ecourts.gov.in/hcservices/ O R D E R The case of the petitioner is as follows:The petitioner is challenging the action of the secondrespondent/C.M.D.A. in demanding a sum of Rs.95,50,000/- towards OpenSpace Reservation Charges as a precondition for grant of planningpermit in respect of the proposed development of Commercial buildingin petitioner's land.2. M/s.Salem Murasu (P) Ltd. purchased an extent of 21cents of lands from a former Maharaja of Travancore in Urur Village,Saidapet Taluk under a Deed of Sale dt.30.04.1985. The landsmeasuring an extent of 21 cents were part of a larger extent of landmeasuring 3 acres and 41 cents owned by the former Maharaja SalemMurasu (P) Ltd. in 1986 applied for planning permission and buildingpermit for a commercial building to be put up on the lands. TheCorporation of Chennai sanctioned the planning permission andbuilding permit in March 1987 after collecting all necessary charges.Thereafter, a commercial building was constructed and the said landsof 27 cents together with the building was sold to oneMr.S.Balasubramanian under a sale deed dt.19.3.1987. The petitionerpurchased the above said property from the said Balasubramanian undera sale deed dt.27.03.2000. In 2004, the petitioner submitted anapplication to the Corporation for demolition of the building as heproposed to put up stilt + 4 floors commercial building in thesubject property. The Corporation granted the permission fordemolition on 26.8.2004 and the petitioner also obtained an approvalfor re-classification of the site as mixed residential use zone.Thereafter, he submitted an application for planning permission tothe second respondent, but the second respondent by letterdt.12.12.2008 called upon the petitioner to remit the chargesmentioned therein within 30 days as a precondition for consideringhis application. Of the various charges mentioned in the letterdt.12.12.2008, the petitioner is objecting to the demand of a sum ofRs.95,50,000/- towards Open Space Reservation charges which accordingto him is illegal. As the representations sent by him in this regardwere not considered positively, he has filed the above writ petitionfor the aforesaid relief.3. The second respondent entered appearance through theircounsel and filed a counter affidavit opposing the writ petition.4. I have heard the learned counsel appearing for thepetitioner and the learned counsel for the first respondent and thelearned counsel for the second respondent. I have perused the entiredocuments made available by the parties.5. The learned counsel for the petitioner submits thatalready in the year 1986 itself the second respondent issued planning https://hcservices.ecourts.gov.in/hcservices/ permission for the very same land and therefore, they cannot demandOpen Space Reservation Charges now. Relying on the DevelopmentControl Rules, he submits that O.S.R. Charges is inapplicable in acase of development involving an area less than 3000 sq.m. Hepoints out that in the present case, the land in question ismeasuring an extent of 851.322 sq.m. He further urges that it is notopen to the C.M.D.A. to question the grant of planning permission inthe year 1986 and therefore, he prays for allowing the writ petition.6. Per contra, the learned counsel for the secondrespondent, the contesting respondent, while reiterating theaverments contained in the counter affidavit submits that the grantof plan and the building permit on 13.03.1987 was by the Corporationand not by the second respondent. Therefore, they can very wellraise the issue now if it appears that it was not properly granted.He further points out that the Corporation of Chennai is a necessaryparty. According to the learned counsel for the second respondentthe entire action beginning from purchasing the property on30.04.1985 and ending in selling the property to Mr.S.Balasubramanianon 19.03.1987 and thereafter to the petitioner on 27.03.2000 appearsto be dubious and the same has been done only to avoid O.S.R.charges. He further contends that no O.S.R. charges were paid in1987 when the Corporation granted the building permit. Therefore,according to him, O.S.R. charges have been ascertained now as perrules and therefore there is no illegality in the demand made by thesecond respondent towards O.S.R. charges. 7. I have considered the rival submissions carefully.8. The following facts are not in dispute and in factadmitted by the second respondent also.(i) The former Maharaja of Travancore owned a large extentof land in old Survey No.57/1 and he sold an extent of 25.67 cents toM/s.Salem Murasu (P) Ltd., (ii) Thereafter, Salem Murasu (P) Ltd., applied forapproval for planning and building permit to the Corporation ofChennai and the Corporation of Chennai granted the permission on13.03.1987.(iii) Thereafter, the property along with the building wassold to Mr.S.Balasubramanian, and (iv) From Mr.S.Balasubrmanian, the petitioner purchased thesubject property.9. From the above, it is very clear that the Salem Murasu(P) Ltd., purchased the property and obtained approval of planningand building permit in the year 1987 itself. The petitioner is the https://hcservices.ecourts.gov.in/hcservices/ present owner of the property who now wants to put up a newcommercial building on the subject property after demolishing the oldbuilding. When he sought for planning permission on 01.08.2007, thesecond respondent is now demanding a sum of Rs.95,50,000/- towardsO.S.R. charges as a precondition along with other charges. 10. The main reason adduced by the second respondent fordemanding Rs.95,50,000/- towards O.S.R. charges is that the propertyis to be treated as a part of an unauthorised sub division. When itwas pointed out by the petitioner that the erstwhile owner of theproperty obtained planning and building permit in the year 1987itself, the stand taken by the second respondent is that they havenot sanctioned the planning and building permit in the year 1987 andit was only the Corporation of Chennai which granted the approval.Therefore, the second respondent maintains that this issue could beraised now and their demand is in order and justified.11. I am unable to accept the stand of the secondrespondent in questioning the planning permission and building permitgranted by the Corporation of Chennai in the year 1987 itself bytotally disassociating itself.12. As rightly pointed by the learned counsel for thepetitioner, the Corporation of Chennai has been delegated with thepowers by the second respondent during the relevant point of time.It is an admitted fact that a valid planning permission was grantedin the year 1987 to the erstwhile owner of the property. When it isnot established before this Court that the grant of approval in theyear 1987 is tainted with illegality, it is not open to the secondrespondent to assume and presume so many things in the year 2008 toquestion the grant of valid planning permission granted by theCorporation of Chennai. When the approval was granted in the year1987, the legal presumption is that the same has been granted inaccordance with the rules and regulations and after complying withall the formalities. To rebut that legal presumption, sufficient andcogent evidence should be produced, that too, within a reasonableperiod. In the present case, not only second respondent isquestioning the approval granted by the Corporation of Chennai, thedelegated authority, in the year 1987, after 21 years, but failed toestablish their stand that all is not well in the grant of theapproval in the year 1987. The second respondent cannot disassociatethemselves from the granting of the approval by the Corporation inthe year 1987 and contend that the Corporation is a necessary partyto come before this Court to explain how it granted the approval 21years back.13. From the records, I find that the petitioner is thelawful owner of the property and after obtaining the permission todemolish the existing superstructure he pulled down the buildingwhich was in existence. Further, he has been repeatedly knocking the https://hcservices.ecourts.gov.in/hcservices/ doors of C.M.D.A. but his request for removing the O.S.R. Charges wasturned down mainly on the ground that there was no proper subdivision in the year 1986.14. Therefore, I am of the considered view that the demandof the first respondent, demanding a sum of Rs.95,50,000/- towardsO.S.R. charges alone is not sustainable and therefore the same is setaside.15.Consequently, I direct the second respondent toconsider issuing planning permission to the petitioner in respect ofthe subject property, namely, the petitioner's land comprised inT.S.No.13/280 Block No.21, Urur Village, Chennai, where thepetitioner proposed to put up a commercial building consisting ofstilt + 4 floors within a period of 30 days from the date of receiptof a copy of this order.16. In the result, the writ petition is allowed. No cost.Consequently connected M.P.No.1,2,3 of 2009 are closed.sd/-Asst.Registrar/true copy/Sub Asst.Registrar vaanTo1. The Secretary to Government, Housing and Urban Development Dept., Secretariat, Fort St. George, Chennai 600 009.2. The Member Secretary, Chennai Metropolitan Development Authority, Gandhi Irwin Road, Egmore, Chennai 8.+ 1 c.c. to Mr. D. Veerasekaran, Advocate. S.R.No.33893.+ 1 c.c. to Mr. Satish Parasaran, Advocate. S.R.No.34179.+ 1 c.c. to The Government Pleader. S.R.No.35365. Order in W.P.No.5317 of 2009 andM.P.Nos.1, 2 and 3 of 2009MBS (CO)GSK 07.08.2009.