M/s.Arihant Foundation and Housing Ltd. v. Member Secretary, Chennai Metropolitan Development Authority

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 24.6.2009CORAMTHE HONOURABLE MR. JUSTICE R.SUDHAKARWrit Petition No.4368 of 2002M/s.Arihant Foundation and Housing Ltd.,represented by its Managing Director, Mr.Navratan Lunawath, Old No.182, New No.271, Poonamallee High Road, Kilpauk, Chennai-600 10. ... Petitioner vs. Member Secretary, Chennai Metropolitan Development Authority,8, Gandhi Irwin Road, Chennai-600 008. ... Respondent Writ Petition is filed under Article 226 of the Constitution of India to issue a Writ of Certiorari calling for records pertainingto Letter No.ESI/22019/95 dated 21.12.2001 received on 06.02.2002 ofthe respondent and quash the same as illegal, arbitrary, withoutjurisdiction of law. For Petitioner : Mr.K.VenkatasubramanianFor Respondent : Mr.I.Paranthaman, Additional Government Pleader-----

O R D E RThis Writ Petition is filed praying to issue a Writ of Certiorari calling for records pertaining to Letter No.ESI/22019/95dated 21.12.2001 received on 06.02.2002 of the respondent and quashthe same as illegal, arbitrary, without jurisdiction of law.

The brief facts for disposal of this writ petition is asfollows:- (i) The petitioner is a construction company. Petitionerapplied for Planning Permission to the respondent Chennai https://hcservices.ecourts.gov.in/hcservices/ Metropolitan Development Authority for construction of basement +ground floor + 13 floors at Door No.71, Anna Salai bearing S.No.23.Respondent granted sanctioned plan in Permit No.19719 dated29.3.1996. Petitioner was directed to furnish a bank guarantee forRs.7,95,000/- towards security deposit in terms of the DevelopmentControl Rules as applicable. The said amount was deposited by way ofbank guarantee. Petitioner based on the planning permissionconstructed the building. (ii) On 6.8.1997 the respondent issued a show-cause noticesetting out several deviation in the construction and called upon thepetitioner to state as to why the bank guarantee furnished assecurity deposit should not be encashed.

The contention of the learned counsel for the petitioner isthat most of the deviations alleged in the show-cause notice and theinspection report are not correct. In any event, petitionersubmitted an application to the respondent authority forregularisation of the deviation alleged and the revised plan on29.5.1999 vide Registration No.3516 as stated earlier. Learnedcounsel for the petitioner contended that the respondent authorityhas not taken into consideration the detailed reply submitted to theshow-cause notice and the calculation made in the Annexures to thereply. Therefore there is total non-application of mind. Therefore, the impugned order has to be set aside.

Mr.I.Paranthaman, learned Additional Government Pleaderappearing for the respondent submitted that from the stand taken bythe petitioner is that the petitioner has approached the respondentfor relief under the Regularisation Scheme in respect of thedeviation pointed out by the respondent authority. The contention ofthe petitioner that there is no deviation cannot be accepted. Sincethe completion certificate is not issued, the respondent authorityhas the power to enforce the bank guarantee given as a securitydeposit by way of forfeiture. He pointed out Rule 28 which dealswith Special rules for multi-storeyed Buildings, particularly, clause 14 relates to security deposits and reads as follows:-"(14) Security deposits:- The applicantshall deposit a sum at the rate of Rs.100 persquare metres of floor area as a refundable non-interest earning security and earnest deposit. The deposit shall be refunded on completion ofdevelopment as per the approved plan as certifiedby Chennai Metropolitan Development Authority; ifnot, it would be forfeited. "Since the completion certificate has not been issued in view of thedeviation and also considering the plea for regularisation, thelearned Additional Government Pleader submitted that the petitioneris not entitled to challenge the proceedings of the authority. Therefore, forfeiture is in order. https://hcservices.ecourts.gov.in/hcservices/

In the show-cause notice issued by the respondent authority, several deviations have been pointed out by the respondent authority. No doubt, the petitioner has given some explanation for the same. One of the deviations pointed out by the authority, in particular, iswith regard to Floors Space Index(FSI). According to thepetitioner, the construction is well within the FSI permissible. According to the respondent department, the petitioner exceeded theFSI Limit. This court will not go into the details as to how thecalculation with regard to the FSI has been arrived at. Further, realising that there is some deviation, the petitioner has on his ownsubmitted an application under the Regularisation Scheme. This isnot disputed. The revised plan for regularisation has been submittedon 29.5.1999 (i.e.) after issuance of the show-cause notice dated6.8.1997 and the Form-II notice dated 25.3.1999. It, therefore, follows that the petitioner is not clear whether he has completed thebuilding according to the sanctioned plan. Since the petitionerapproached the respondent authority for regularisation by way of arevised plan, the contention of the respondent authority that thepetitioner has deviated the planning permission has to be accepted astenable. Since the completion certificate has not been issued theforfeiture in terms of clause 14 of Rule 28 is in order. 6. The respondent is justified in invoking the bank guaranteegiven as security deposit. This court is unable to find any goodreason as to why the order of the respondent authority should beinterfered with, particularly, when most of the points raised arequestions of fact and disputed.

Learned counsel for the petitioner pleaded that thepetitioner's application for regularisation should be considered bythe respondent authority at the earliest in accordance with law. Such prayer is not before this court. Further, if the applicationfor regularisation has been submitted as per the provisionsapplicable and if there is no other restraint, the authority is atliberty to proceed on such application and decide the issue on itsown merit.

In the result, the Writ Petition fails and is dismissed. No order as to costs. Sd/- Asst. Registrar/true copy/ Sub Asst. Registrarts https://hcservices.ecourts.gov.in/hcservices/ ToMember Secretary, Chennai Metropolitan Development Authority,8, Gandhi Irwin Road, Chennai-600 008. +1 cc to Mr.K.Venkatasubramanian, Advocate, SR.No.25919 Order in W.P.No.4368 of 2002BV {CO}TP/9.7.2009.