Full Text
Civil Appeal Nos. 5642-5643 of 2019
(@SLP (C) Nos. 31274-31275 of 2014)
Chennai Metropolitan Development Authority …Appellants
Rep. by its Member- Secretary & Anr
JUDGMENT
1 These appeals arise from a judgment of a Division Bench of the High Court of Judicature at Madras in a Writ Appeal, affirming the judgment of a learned Single Judge in proceedings under Article 226 of the Constitution. The High Court set aside a demand raised by the appellant for revised charges on account of (i) Infrastructure and Amenities[1]; and (ii) Premium Floor Space Index[2]. I & A
2 The respondent submitted an application on 22 March 2011 for planning permission to construct a multi-storeyed building complex at Ayyappan Thangal Village, Thiruperumbudur Taluk. The Housing and Urban Development Department of the Government of Tamil Nadu, to which the application was forwarded for approval in terms of the Development Regulations[3], accorded its approval to the recommendation of the Multi-storeyed Building Panel.
3 On 5 January 2012, the State government in a letter to the appellant approved the recommendation, subject to the following conditions: “(i) Chennai Metropolitan Development Authority should ensure that the applicant gifts the road widening portions marked in the plan to the Chennai Metropolitan Development Authority along with OSR spaces before issue of Planning Permission.
(ii) The applicant shall furnish ‘No Objection Certificate’ from Chennai Metropolitan Water Supply and Sewerage Board for using their land in S. Nos. 51/1B[2] and 1C[2] for access before issue of Development Charges advice.
(iii) Subject to other usual condition.”
The letter stated that before the issuance of planning permission, an undertaking should be obtained from the respondent to fulfill
(i) The provisions contained in the DR; and
(ii) The conditions imposed by the Director of Fire and Rescue Service and other Departments. Premium FSI DR The appellant, as the planning authority, was requested to take up further action for issuance of a planning permission.
4 The appellant, which is a planning authority under the provisions of the Tamil Nadu Town & Country Planning Act 1971[4], was required to consider the application for the grant of planning permission under Section 49. The Chennai Metropolitan Water Supply and Sewerage Board[5] addressed a letter on 6 February 2012 to the respondent stating that it would consider the issuance of its No Objection Certificate[6] subject to the acceptance of the following conditions:
5 On 2 March 2012, the respondent addressed a communication to the appellant, stating that it had accepted the conditions imposed by Sewerage Board by its letter dated 18 February 2012 and that a formal NOC was expected shortly. The appellant was requested to process the planning permission and to issue a notice of demand for development charges in order to enable the respondent to arrange for the funds required. The respondent, in its above letter dated 2 March 2012 stated: “Now we expect the formal NOC from CMWSSB very shortly. In view of the above progress on the NOC, we request that the processing of Planning Permit and the notice for development charges may kindly be issued to assess the fees amount involved and also to make arrangement for the funds required. We further assure you that before the payment of fees is effected by us the formal NOC from CMWSSB will be submitted.”
6 On 7 March 2012, the appellant requested the Sub-Registrar, Chennai South to furnish the guideline value of urban land for the survey numbers where development was proposed by the respondent for assessing the Premium FSI charges in relation to the development proposal. This was furnished by the Sub-
7 On 27 March 2012, the appellant issued a demand notice requiring the respondent to deposit the following charges in order to facilitate the processing of its application: “ i) Development charge for land and building under Sec. 59 of the T&CP Act, 1971 Rs. 63,10,000/- (Rupees sixty three Lakh and ten Thousand Only) ii) Balance Scrutiny Fee Rs. 50,000/- (Rupees fifty Thousand only) iii) Regularisation charge for unauthorized sub division & amalgamation Rs. 25,10,000/- (Rupees twenty five lakh and ten thousand only) iv) Security Deposit (For Building) Rs. 4,64,15,000/- (Rupees four crore sixty four lakh and fifteen thousand Only) v) Security Deposit for Display Board Rs. 10,000/- (Rupees Ten vi) Security Deposit for STP Rs. 27,15,000/- (Rupees twenty seven lakh and fifteen Thousand Only) vii) Infrastructure & Amenities Charges Rs. 8,34,40,000/- (Rupees eight crore thirty four lakh and forty viii) Premium FSI charge for 78690.55 sq.m. Rs. 44,75,88,000/- (Rupees Forty four crore and seventy five lakh eighty thousand only).” The appellant also required the respondent to comply with the following requisitions: “a. Furnish the letter of your acceptance for the following conditions stipulated by virtue of provisions available under DR 4(i) d of Annexure III:-
(i) The construction shall be undertaken as per sanctioned plan only and no deviation from the plans should be made without prior sanction. Construction done in deviation is liable to be demolished.
(ii) In cases of Multi-storied Building both qualified
Architect and qualified structural Engineer who should be a Class-I Licensed Surveyor shall be associated and the above information to be furnished.
(iii) A report in writing shall be sent to Chennai
Metropolitan Development Authority by the Architect/Class-I Licensed Surveyor who supervises the construction just before the commencement of the erection of the building as per the sanctioned plan, similar report shall be sent to CMDA when the building has reached up to plinth level and thereafter every three months at various stages of the construction/development certifying that the work so far completed is in accordance with the approved plan. The Licensed Surveyor and Architect shall inform this Authority immediately if the contract between him/them and the owner/developer, has been cancelled or the construction is carried out in deviation to the approved plan.
(iv) The owner shall inform Chennai Metropolitan
Development Authority of any change of the Licensed Surveyor/Architect. The newly appointed Licensed Surveyor/Architect shall also confirm to CDMA that he has agreed for supervising the work under reference and intimate the stage of construction at which he has taken over. No construction shall be carried on during the period intervening between exit of the previous Architect/Licensed Surveyor and entry of the new appointee.
(v) On completion of the construction the applicant shall intimate CDMA and shall not occupy the building or permit it to be occupied until a completion certificate is obtained from CMDA.
(vi) While the applicant makes application for service connection such as Electricity, Water Supply, Sewerage he should enclose a copy of the completion certificate issued by CMDA along with his application to the concerned Department/Board/Agency. (vii)When the site under reference is transferred by way of sale/lease or any other means to any person before completion of the construction, the party shall inform CMDA of such transaction and also the name and address of the persons to whom the site is transferred immediately after such transaction and shall bind the purchaser to those conditions to the Planning Permission.
(viii) In the Open space within the site, trees should be planted and the existing trees preserved to the extent possible;
(ix) If there is any false statement, suppression or any misrepresentation of acts in the applicant, planning permission will be liable for cancellation and the development made, if any will be treated as authorized.
(x) The new building should have mosquito proof overhead tanks and wells.
(xi) The sanction will be revoked, if the conditions mentioned above are not complied with. (xii)Rainwater conservation measures notified by CMDA should be adhered to strictly. (a). Undertaking (in the format prescribed in Annexure –XIV to DCR, a copy of it enclosed in Rs. 20/- stamp paper duly executed by all the land owner, GPA holders, builders and promoters separately. The undertakings shall be duly attested by a Notary Public. (b) Details of the proposed development duly filled in the format enclosed for display at the site. Display of the information at site is compulsory in cases of Multi-storied buildings, Special buildings and Group developments” The letter further stipulated that:
8 On 28 March 2012, the respondent paid the charges which were demanded by the appellant on 27 March 2012. In the meantime, on 26 March 2012, the Government revised the guideline values with effect from 1 April 2012. One of the conditions subject to which the State government had granted its approval to the respondent was the obtaining of an NOC from the Sewerage Board. On 28 March, 2012, G.O.Ms No. 86 was issued by the Housing and Urban Development Department whereby the I & A charges for different categories and buildings falling under the jurisdiction of the appellant and of the Commissioner of Town and Country Planning were to stand increased by 50 per cent over the then prevailing rates. The Sewerage Board issued its NOC on 30 March 2012, subject to the condition that the respondent execute a gift deed in respect of a piece of land. This requirement was complied with on 27 April 2012. When the file pertaining to the grant of planning permission to the respondent was under consideration, guideline values were revised by the State government with effect from 1 April 2012. A demand notice was issued on 22 August 2012 by the appellant by which the demand was revised for charges under two heads: “ i) Balance I & A Charges Rs. 4,17,15,000/- (Rupees Four Crore Seventeen Lakh and Fifteen thousand Only) ii) Balance Premium FSI Charge Rs. 90,76,75,000/- (Rupees ninety crore seventy six lakh and seventy five thousand only) ”
9 The demand notice was questioned by the respondent in writ proceedings before the High Court. A learned Single Judge, by a judgment dated 13 December 2012, allowed the writ petition holding that a right had accrued to the respondent to obtain planning permission and that it could not be divested by the subsequent amendment made with effect from 1 April 2012. The demand was quashed and set aside. The Writ Appeal has been dismissed by a Division Bench of the High Court on 1 August 2014. The Division Bench held that:
(i) Insofar as the levy of I & A Charges are concerned, no amendment has been made to the Tamil Nadu Town and Country Planning (Levy of Infrastructure and Amenities Charges) Rules 2008[7] and in consequence, the demand of Rs. 4,17,15,000/- is without the authority of law;
(ii) The respondent had remitted the I & A charges and Premium FSI charges on 29 March 2012;
(iii) Office Order No. 7/2012 dated 16 April 2012 made it clear that the I & A charges were applicable for applications for planning permission where the advice for the payment of development charges was sent on or after 28 March 2012. In the present case, since the demand had been remitted prior to 28 March 2012, the pre-revised I & A charges were applicable; and
(iv) The charges for Premium FSI as revised with effect from 1 April 2012 could not be made applicable to the respondent. The NOC of the Sewerage Board was dated 30 March 2012 and the mere fact that it The Rules 2008 was received by the appellant on 2 April 2012 was not a valid ground for the demand notice and hence the demand could not be justified.
10 Assailing the decision of the High Court, Mr K M Nataraj, learned Additional Solicitor General of India formulated two issues which need to be addressed in these proceedings: “(i) Whether charges namely Infrastructure & Amenities charges and Premium FSI charges are required to be collected as per rates prevailing as on the date of submission of planning permission application or on the date of granting approval of planning permission;
(ii) Whether the respondent herein has accrued any vested right before granting approval of planning permission merely because they remitted the charges as per demand notice dated 27-03-2012.” The learned ASG urged that the appellant, as a planning authority, is under a statutory obligation to levy and collect the charges as applicable when planning permission is granted. The pendency of an application or the deposit of the payment earlier by the applicant does not create a vested right. If the planning permission is not granted, the planning authority would have to refund the amount deposited. Hence, the crucial date for determining the applicable charges is the date on which planning permission is granted by the planning authority. In the present case, the planning permission was granted only in 2013, pursuant to the interim order of the High Court subject to a further deposit of Rs 10 Crores as ordered. Insofar as I & A charges are concerned, it was urged that the High Court erroneously relied on the Office Order dated 16 April 2012 which records that the old rates would be applicable where the development charges’ advice was sent before 28 March 2012. This, it has been urged, is in conflict with the GO dated 28 March 2012 according to which, I & A charges were to stand increased by 50 per cent over the then prevailing rates. The learned ASG argued that an amendment to the Rules was not necessary since the charges are determined and are leviable under an order issued pursuant to Section 63B while according building permission and hence the order of the High Court needs to be interfered with.
(i) As regards I & A charges:
(a) Clause 6 of G.O.Ms No. 86 by which the charges were revised required that the Commissioner of Town and Country Planning submit a proposal for an amendment to the Rules of 2008. As a matter of fact, no amendment has been carried out; and (b) Clause (i) of the Office Order dated 16 April 2012, states that revised I & A charges shall be applicable for demands made on or after 28 March 2012. Hence, the revised charges would not be applicable to the respondent against whom a demand had been raised on 27 March 2012 by the appellant.
(ii) As regards charges for Premium FSI:
(a) All payment related obligations were completed by the appellant on 29 March 2012 prior to the revision of the guideline values on 1 April 2012. Consequently, the revised rates would not be applicable and if any date after payment is to be taken into account that would only enable the government to unlawfully and unfairly delay the issuance of permissions and thereafter raise enormous demands. To obviate this, the cut-off date ought to be treated as the date of payment; (b) The principle which has been enunciated in the judgment of this Court in Union of India v Mahajan Industries Ltd.[8] is applicable; and
(c) The subject matter of the demand pertains to payment levied by the respondent and not a change in the development control rules such as involving a change in floors, setbacks etc. Moreover, it was urged that the planning permission in the present case was granted on 30 May 2012 and therefore the withholding of a copy and the basis of the impugned demand is a mere after thought. The revised demand does not indicate any reasons or basis.
13 Section 48 of the Planning Act 1971 imposes a restraint upon the construction of buildings and making a material change in the use of land except with the written permission of the planning authority and in accordance with the conditions specified in the grant of permission[9].
48. Restrictions on buildings and lands, in the area of the planning authority.- On or after the date of the publication of the resolution under sub-section (2) of section 19 or of the notice in the Tamil Nadu Government Gazette under section 26, no person other than any State Government or the Central Government or any local authority, shall, erect any building or make or extend any excavation or carry out any mining or other operation, in, on, over or under any land or make any material change in the use of land or construct, form or layout any Section 49 which provides for an application for permission is in the following terms:
The Planning Act 1971 requires the grant of planning permission before development or a change in the use of land can take place. The mere filing of an application does not entitle the applicant to permission. Nor is there a vested right to the grant of permission. Section 63B provides for the levy of I & A charges: work except with the written permission of the appropriate planning authority and in accordance with the conditions, if any, specified therein. “63-B. Levy of infrastructure and amenities charges.-(1) Every local authority or the planning authority, as the case may be, while according building permit under the relevant laws or according permission under this Act, as the case may be, shall levy charges on the institution of use or change of use of land or building or development of any land or building in the whole area or any part of the planning area so as to meet the impact of development and for ensuring sustainable development of urban and rural areas by providing adequate infrastructure and basic amenities at the rates as determined in accordance with such procedure as may be prescribed which shall not be less than minimum and not more than the maximum as may be prescribed, and different rates may be prescribed for different parts of the planning area and for different uses. (2) The infrastructure and amenities charges shall be leviable on any person who undertakes or carries out any such development or institutes any use or changes any such use. (3) The collection of the infrastructure and amenities charges shall be made in such manner as may be prescribed. Explanation.- For the purpose of this Section “relevant laws” means in case of-
(i) the Chennai Metropolitan Development Authority, the
(ii) the Chennai City Municipal Corporation, the Chennai City
(iii) the Madurai City Municipal Corporation, the Madurai City
(iv) the Coimbatore City Municipal Corporation, the
(v) the Tiruchirappalli City Municipal Corporation, the
(vi) the Tirunelveli City Municipal Corporation, the Tirunelveli
(vii) the Salem City Municipal Corporation, the Salem City
(viii) the Municipalities and Town Panchayats, the Tamil Nadu
(ix) the Panchayat Unions and Village Panchayats, the Tamil
Nadu Panchayats Act, 1994 (T.N.Act 21 of 1994).” Section 63B provides for the levy of I & A charges while according a building permit either under relevant laws or while according permission under the Planning Act 1971. These charges are leviable on the institution of use or change of use of land or building or development of any land or building. The rates are determined in accordance with such procedure as may be prescribed. The rates are not to be less than the minimum and more than the maximum that is prescribed.
14 Rule 4 of the Rules 2008 contains provisions for the imposition of the I & A charges:
┌─────────────────────────────────────────────────────────────────────────────────────────────┐ │ THE TABLE │ │ Sl No. Type of building Minimum rates per Maximum │ │ square metre rates per │ │ square │ │ metre │ │ (1) (2) (3) (4) │ │ Rs. Rs. │ ├─────────────────────────────────────────────────────────────────────────────────────────────┤ │ 1. Multistoryed buildings 500 1,000 │ │ accommodating │ │ residential or commercial │ │ or Information │ │ technology or industrial │ │ of institutional or │ │ combination of such │ │ activities │ │ 2. Commercial building. 200 500 │ │ Information Technology │ │ building, Group │ │ development and │ │ Special building (not │ │ covered under Sl. No. 1) │ │ 3. Institutional building (not 100 200 │ │ covered under Sl. No.I) │ │ 4. Industrial building (not │ │ covered under Sl. No. 1) │ │ .” │ │ 15 Rule 5 empowers the Director Of Town and Country Planning to fix the │ └─────────────────────────────────────────────────────────────────────────────────────────────┘
36. It is now well settled that where a statute provides for a right, but enforcement thereof is in several stages, unless and until the conditions precedent laid down therein are satisfied, no right can be said to have been vested in the person concerned. The law operating in this behalf, in our opinion is no longer res integra.” The same view has been taken by a Bench of three judges of this Court in New Delhi Municipal Council v Tanvi Trading and Credit Private Limited15.Justice J M Panchal speaking for the court held:
26 Mr Rana Mukherjee, learned Senior Counsel appearing on behalf of the respondent sought to make a distinction on the ground that this principle will apply as regards regulatory aspects of the development regulations, not in regard to the demand of Premium FSI charges. We are unable to accept the contention simply because the demand on account of Premium FSI charges arises upon the grant of planning permission to avail of Premium FSI. The respondent, as the developer, is liable to pay the revised charges which are applicable post 1 April 2012 when planning permission has been granted. Learned counsel for the respondent also relied on the decision in Union of India v Mahajan Industries Ltd.16. The case is clearly distinguishable since the judgment of this Court adverted to the position which was laid down in a judgment of the Delhi High Court that the “crucial date” for calculating conversion charges has to be the date of the receipt of the application for conversion. Significantly, the counsel for the Union of India did not contest the correctness of the view of the High Court in that regard. The factual situation in the present case is clearly distinguishable.
27 For the above reasons, we allow these appeals in part by setting aside the impugned judgment and order of the High Court insofar as it quashed the demand raised by the appellant on 22 August 2012 for the levy of Premium FSI charges.
28 The appellant, in our view, was justified in demanding Premium FSI charges at the revised rates and would be entitled to enforce its demands. However, we maintain the order of the High Court insofar as the demand for I & A charges is concerned.
29 The appeals are disposed of. There shall be no order as to costs. …..………… .......................................... J. [Dr Dhananjaya Y Chandrachud]..……..………………………… ............... J. [Indira Banerjee] New Delhi; July 29, 2019