Back
2014 Supreme(Mad) 2177
High Court of Judicature at Madras
N. PAUL VASANTHAKUMAR & M. SATHYANARAYANAN, JJ.
Chennai Metropolitan Development Authority
Versus
Prestige Estates Projects Ltd. & Another
W.A. Nos. 147 & 148 of 2013 & M.P. Nos.1 & 2 of 2013
Decided On : 01-08-2014
For the Appellant:A.L. Somyaji, Advocate General Assisted by A. Kumar, Advocate.
For the Respondents: R1, Sriram Panchu, Senior Counsel, R. Senthilkumar, V. Subbiah, Special Government Pleader for State Government.
The impugned demand notice was unsustainable as it was issued prior to the revised rates coming into effect and without any reason provided for the increase in charges.
Headnote:
Planning Permission - Infrastructure and Amenities Charges - G.O.(Ms.)No.86, Housing and Urban Development (UD 4(1)) Department dated 28.03.2012 - The impugned demand notice dated 22.08.2012 called upon the petitioner to remit the balance I&A charges and Premium FSI charges. The court found that the revised I&A charges came into being with effect from 28.03.2012 and the said revised rates of I&A charges are leviable as per the guidelines with effect from the date of issuance of G.O.Ms.No.86 dated 28.03.2012. The impugned demand notice was unsustainable as it was issued prior to the revised rates coming into effect and without any reason provided for the increase in charges.
Fact of the Case:
The first respondent filed writ petitions praying for issuance of a Writ of Certiorarifed Mandamus to quash the impugned demand notice dated 22.08.2012, wherein the appellant has to pay the revised Development Control and other charges, with a further direction to the appellant/second respondent to issue planning permission to the first respondent/writ petitioner. The first respondent also filed a writ petition praying for issuance of a Writ of Declaration, declaring G.O.(Ms.)No.86, Housing and Urban Development (UD 4(1)) Department dated 28.03.2012, issued by the second respondent herein/first respondent in the writ petition, increasing 50% of the present prevailing rates in infrastructure and amenity charges, is not applicable to them in respect of Infrastructure and Amenities (I&A) charges calculated and demanded in accordance with G.O.(Ms.)No.161 dated 09.09.2009, passed by the very same respondent. Both the writ petitions came to be allowed by a common order dated 13.12.2012 and aggrieved by the same, the second respondent in both the writ petitions had filed these writ appeals.
Finding of the Court:
The court found that the impugned demand notice was unsustainable as it was issued prior to the revised rates coming into effect and without any reason provided for the increase in charges. The court also left the issue of the legality of G.O.Ms.No.161 dated 09.09.2009 open.
Issues: The main issue was the legality of the impugned demand notice dated 22.08.2012, which called upon the petitioner to remit the balance I&A charges and Premium FSI charges.
Ratio Decidendi: The impugned demand notice was unsustainable as it was issued prior to the revised rates coming into effect and without any reason provided for the increase in charges.
Final Decision: W.A.No.147/2013 was dismissed and W.A.No.148/2013 was disposed of accordingly. The issue as to the legality of G.O.Ms.No.161 dated 09.09.2009 was left open. No costs were awarded.
1. The second respondent in W.P.Nos.25677 and 25678/2012 are the appellants herein.
2. The first respondent filed W.P.No.25677/2012, praying for issuance of a Writ of Certiorarifed Mandamus to quash the impugned demand notice dated 22.08.2012, wherein the appellant has to pay the revised Development Control and other charges, with a further direction to the appellant/second respondent to issue planning permission to the first respondent/writ petitioner, pursuant to his application dated 22.03.2011 and based on the letter dated 05.01.2012 issued by the first respondent in the writ petition and original demand notice dated 27.03.2012 received from the appellant/second respondent in the writ petition.
3. The first respondent herein filed W.P.No.25678/2012, praying for issuance of a Writ of Declaration, declaring G.O.(Ms.)No.86, Housing and Urban Development (UD 4(1)) Department dated 28.03.2012, issued by the second respondent herein/first respondent in the writ petition, increasing 50% of the present prevailing rates in infrastructure and amenity charges, is not applicable to them in respect of Infrastructure and Amenities (I&A) charges calculated and demanded in accordance with G.O.(Ms.)No.161 dated 09.09.2009, passed by the very same respondent.
4. Both the writ petitions, after contest, came to be allowed by a common order dated 13.12.2012 and aggrieved by the same, the second respondent in both the writ petitions had filed these writ appeals.
5. Facts leading to the filing of the writ petitions have been narrated in detail and in extenso in the impugned common order passed in the above said writ petitions and in order to avoid repetition, only the relevant facts necessary for disposal of these writ appeals are stated hereunder. For the sake of convenience, the array of parties as adopted in the writ petitions is adopted in these writ appeals also:
5.1. The first respondent/writ petitioner, in the affidavit filed in support of this writ petition averred that it is engaged in the business of real estate development across India and in the course of its business, entered into a Joint Development Agreement dated 15.07.2010 with the owner of the land namely M/s. Extra IT Parks Private Limited, on an area sharing basis, with respect to lands situated at Mount Poonamallee High Road, Ayyappanthangal Village, Chennai. The owner of the land, in pursuant to the above said agreement, has executed a registered General Power of Attorney dated 15.07.2010, whereby the writ petitioner was empowered to develop the property by constructing residential apartment buildings after obtaining required planning permission and No Objection Certificate (NOC) from various authorities to develop the property and thereby the writ petitioner became the developer of the property and also an agent of the landowner and the agency is coupled with interest.
5.2. The writ petitioner submitted an application dated 22.03.2011 for grant of planning permission to the second respondent/appellant herein for construction of 33 Blocks Lower Basement + Upper Basement + 1st to 19 Floors + Club House (2610 Dwelling Units) Residential Building for M/s. Prestige Estates Projects Ltd. at S.Nos.1/1, 1/2, 2, 3/1, 3/2, 3/3, 5/1, 8/2A35, 42/1, 42/2, 42/3A, 42/3B, 42/4, 42/5, 43/1, 43/2, 44/1A, 44/1B, 44/2, 44/3, 45/1A, 45/1B, 45/2, 45/3, 45/4A, 45/4B, 46/1, 46/2, 46/3, 47/1E, 48/A, 48/1B, 48/2, 48/3, 51/1B1, 51/1B3, 51/1C1, 51/1D, 51/1E, 52/1, 52/2, 53, 54/1B of Ayyapanthangal Village, Sriperumpudur Taluk, Kanchipuram Distrcit. In the interregnum, the writ petitioner sought NOC from various authorities, namely Airports Authority of India, Fire and Rescue Services Department, Police Department etc., and the authorities had also given NOCs on various dates to the proposed development of the property subject to certain conditions stipulated therein.
5.3. The second respondent herein/first respondent in the writ petition has accepted the recommendation of the Multi-stor
