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2013 Supreme(Mad) 3622
IN THE HIGH COURT OF JUDICATURE AT MADRAS
K.K. SASIDHARAN, J.
D. Rajan Dev
Versus
Government of Tamil Nadu rep. by its Secretary, Housing and Urban Development Department, Chennai-600 009 and Another.
W.P. No. 18238 of 2013 and M.P. No. 1 to 3 of 2013
Decided on: 22 October 2013
Vijay Narayan, Senior Counsel for R. Syed Mustafa, for petitioner
Ms. P. Kavitha, Government Advocate A. Kumar, for Respondents
The builder's right accrues only after plan approval, and the definition of 'balcony' excludes sit-in-balcony without cantilever projection within the building line.
Headnote:
FSI Charges - Construction of Additional Floors - Premium FSI Charges - [FACT OF THE CASE] The petitioner, a developer, constructed additional floors besides a commercial building under the Premium FSI Scheme introduced by the Government of Tamil Nadu. The core issues were (A) liability to pay premium FSI charges based on the date of application or date of sanction, and (B) exclusion of sit-in-balcony area from FSI computation. [FINDING OF THE COURT] The court held that the builder is liable to pay FSI charges based on the date of approval and that sit-in-balcony does not qualify for exclusion from FSI computation. [ISSUES] The issues were the liability to pay FSI charges and the definition of 'balcony' for FSI computation. [RATIO DECIDENDI] The court found that the builder's right accrues only after plan approval and the definition of 'balcony' excludes sit-in-balcony without cantilever projection within the building line. [FINAL DECISION] The writ petition was dismissed without costs.
1. Introductory:
This is the strange case of a developer of a Residential Apartment Project constructing additional floors besides a commercial building, taking advantage of the premium FSI Scheme introduced by the Government of Tamil Nadu and after completing construction, challenging the conditions of sanction order, requiring payment of premium FSI Charges and that too after taking time on multiple occasions to extend the outer time limit for payment, presumably to avoid action for demolition, on account of non-compliance of the mandatory conditions of permit.
The Core Issues:
2. The issues that arise in this writ petition are as follows:
(A) First Issue:
Whether the builder is liable to pay the premium FSI Charges to the Chennai Metropolitan Development Authority (hereinafter referred to as “CMDA”) as per the guideline rate prevailing on the date of sanctioning the application for planning permission or the rate in force as on the date of application.
(B) Second Issue:
Whether sit-in-Balcony within the building line without cantilever would come within the meaning of “Balcony” thereby to make a claim for exclusion of Balcony space while computing Premium FSI Charges.
A Brief Backdrop:
3. The petitioner, carrying on construction activities under the name and style of BEN Foundation, initially submitted an application for planning permission to construct a residential-cum-shopping building at Survey Nos. 223, 224 and 225, Padi Village, Padikuppam Road, Chennai. The application was processed by CMDA and by order dated 1.7.2009 approval was granted. While the construction was in progress, the Government of Tamil Nadu had introduced a Scheme called “premium FSI”, whereby and whereunder, the Government permitted CMDA to allow Premium FSI over and above the normally allowable FSI. Since petitioner was eligible to apply under Premium FSI, the application was submitted on 4.5.2011 before CMDA for approval of additional FSI area. The officials of the second respondent inspected the site and satisfied that the construction put up by the petitioner was in accordance with the approved plan except the additional FSI. Scrutiny of the application took about ten months. The Multi Storied Building Panel recommended the application submitted by the petitioner for planning permission to the Government of Tamil Nadu for approval on 30.3.2012. Thereafter, the first respondent by order dated 29.5.2012 approved the revised proposal. The CMDA calculated the amount payable by the petitioner taking into account the prevailing guideline rate. The CMDA by letter dated 2.7.2012 called upon the petitioner to remit the Premium FSI charges quantified at Rs. 7,96,50,000/-. The petitioner submitted series of applications thereafter to revise the order. The petitioner wanted the CMDA to calculate the Premium FSI charges taking into account the guideline rate prevailing as on the date on which the application was submitted. The representation given by the petitioner requesting refund of Premium FSI charges was rejected by CMDA by order dated 19.4.2013. The letter dated 31.8.2012 and the order dated 19.4.2013 are challenged in this writ petition.
4. The Member Secretary, CMDA filed a detailed counter affidavit meeting the points raised in the affidavit filed in support of the writ petition. According to the Member Secretary, the application submitted by the petitioner for planning permission was originally granted on 1.7.2010. Thereafter, he made a revised application by availing the Premium FSI scheme. The Government have approved the revised proposal based on the recommendation made by the Multi Storied Building Panel at its meeting held on 30.3.2012. Since the petitioner was liable to pay the Premium FSI charges, demand notice was issued on 2.7.2012. The petitioner without remitting the charges submitted a representation dated 19.7.2012 requesting to re-check the calculation made with respect to the revised proposal relating to Premium FSI. The revised prop
