Madras High Court
P Dot G Constructions Private Limited vs The State Of Tamil Nadu on 24 September, 2024
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
W.P.Nos.25569 & 29492 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 16.08.2024
PRONOUNCED ON : 24.09.2024
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
W.P.Nos.25569 & 29492 of 2023
P Dot G Constructions Private Limited,
Rep. by its Authorized Signatory,
Mohan Srinivasan
Building No.66, 3rd Main Road,
Kasturba Nagar, Adyar,
Chennai – 600 020. ... Petitioner in
both W.Ps.
-Vs-
1. The State of Tamil Nadu,
Rep. by its Secretary to Government,
Housing and Urban Development Department,
Secretariat, Fort St. George,
Chennai – 600 009.
2. The Chennai Metropolitan Development Authority,
Rep. by its Member Secretary,
Thalamuthu Natarajan Maaligai,
No.1, Gandhi Irwin Road,
Egmore, Chennai – 600 008. ...Respondents in
both W.Ps.
Prayer in W.P.No.25569 of 2023: Writ Petition filed under Article 226
of the Constitution of India for issuance of a Writ of Certiorarified
Mandamus, to call for the records and quash the order dated 05.08.2022
bearing No.PP/NHRB/C/0421/2021 issued by the respondent No.2,
https://www.mhc.tn.gov.in/judis
Page 1 of 19
W.P.Nos.25569 & 29492 of 2023
directing the petitioner to deposit additional amount of INR 3,61,52,000/-
(Indian Rupees Three crores sixty one lakhs and fifty two thousand only)
towards premium FSI charges and to consequentially direct the
respondent No.2, to refund the charges collected towards the original
floor area of 4029.67 square meters under the order dated 05.08.2022,
from the paid amount of INR 3,61,52,000/- and charge the petitioner with
only the premium FSI charges payable towards the incremental floor area
of 1245.92 square metres.
Prayer in W.P.No.29492 of 2023: Writ Petition filed under Article 226
of the Constitution of India for issuance of a Writ of Certiorarified
Mandamus, to call for the records and quash the impugned order dated
20.09.2023 bearing Lr No.BCI/4887/2023 issued by the respondent No.2
and to consequentially direct the respondent No.2 to refund the charges
collected towards the original floor area of 4029.67 square meters under
the demand dated 05.08.2022 issued by the respondent No.2 from the
paid amount of INR 3,61,52,000/-.
In both W.Ps.
For Petitioner : Ms.Arva Merchant
For Respondents
For R1 : Mr.V.Manoharan
Additional Government Pleader
For R2 : Mr.P.Kumaresan
Additional Advocate General
Assisted by Mr.Y.Bhuvanesh Kumar
Standing Counsel for W.P.25569/2023
Assisted by Mr. V.Sudalai Selvan
Standing Counsel for W.P.29492/2023
https://www.mhc.tn.gov.in/judis
Page 2 of 19
W.P.Nos.25569 & 29492 of 2023
COMMON ORDER
The writ petition in W.P.No.25569 of 2023 has been filed challenging the order dated 05.08.2023 passed by the second respondent, thereby directed the petitioner to deposit additional amount of Rs.3,16,52,000 towards premium FSI charges. The writ petition in W.P.No.29492 of 2023 has been filed challenging the order passed by the second respondent dated 20.09.2023, thereby rejected the request made by the petitioner to refund the charges collected towards Security deposit amount and Premium FSI charges to original floor area of 4029.67 sq.mt.
2. The petitioner company is engaged in the real estate business including buying, selling, renting, managing and appraising real estate. The petitioner company proposed to develop a project called Project Innova, in Addison Nagar Main Road, Narivanam Street, Mangadu, Chennai, consists of five blocks and 234 dwelling units. It was commenced in the year 2013. As per the approval for the project layout dated 31.05.2013, issued by the second respondent, each block consists ground floor+4 floors and the same was approved by the Town Panchayat, Mangadu by the communication dated 10.06.2013 bearing https://www.mhc.tn.gov.in/judis Page 3 of 19 W.P.Nos.25569 & 29492 of 2023 No.383/2013. The Floor Space Index (hereinafter referred to as "FSI") as per the plan was 1.50 and the premium FSI of 0.44. In total 17766.34 square meters for the applicable fee of Rs.3,21,00,000/-. It was paid towards premium FSI on 03.04.2013. As per the approved planing, the petitioner completed construction of two towers in the year 2016 and three towers were in different stage of construction.
3. While being so, certain deviations were noted in the construction on the ground that there are violation in the approved plan. Therefore, the second respondent issued lock and seal order dated 07.02.2017. Aggrieved by the same, the petitioner preferred an appeal before the first respondent. While pending appeal, the time fixed as per the building planing and permit was expired as 30.05.2017.
4. That apart, the petitioner company was admitted into Corporate Insolvency Resolution Process by an order dated 13.07.2018 in C.P.No.193/DI/2018 by the National Company Law Tribunal, Chennai (hereinafter referred to as "NCLT") and Interim Resolution Professional was appointed to take over the management and affairs of the petitioner company. In the said proceeding, RCC e-Construct Private Limited https://www.mhc.tn.gov.in/judis Page 4 of 19 W.P.Nos.25569 & 29492 of 2023 submitted a resolution plan and the same was approved by the NCLT by its order dated 13.12.2019. It had taken steps to revive the construction and it required several rectifications. In pursuant to the resolution plan, it was resolved that all necessary steps to revive the project including correspondence with the second respondent will be in the name of the petitioner.
5. In the meanwhile, the appeal filed by the petitioner company before the first respondent as against the lock and seal was allowed and granted permission to continue the said project. However, the time was expired while pendency of the appeal and as such, the petitioner was directed to obtain revised plan under the Tamil Nadu Combined Building and Development Rules, 2019 (hereinafter referred to as "Combined Development Rules"). Accordingly, the petitioner submitted revised building plan and its approval before the second respondent on 09.08.2021. The second respondent called upon the petitioner to make payment of Rs.4,44,64,500/- under various heads including premium FSI charges of Rs. 3,61,52,000/-.
6. While being so, the first respondent issued government order https://www.mhc.tn.gov.in/judis Page 5 of 19 W.P.Nos.25569 & 29492 of 2023 in G.O.Ms.No.35 Housing and Urban Development (UD-1(1)) Department dated 18.02.2020, thereby ordered to adjust premium FSI charges already paid under the original sanctioned planning permission for proposals submitted under the Combined Development Rules, as per the following conditions:-
“(i) In case of premium FSI charges paid already, the same shall be adjusted against the premium FSI charges to be paid under the Combined Development Rules only if the construction work has not been commenced based on the earlier approval issued under the Development Regulations. If construction work has already commenced, the premium FSI charges would not be adjusted or refunded.
(ii) The premium FSI charges is to be collected for additional FSI area proposed over and above the permissible FSI as a proportionate land cost in lieu of land. If planning permission has been obtained within 1 (one) year prior to the notification of the Combined Development Rules, the adjustment of premium FSI charges towards additional con structed area over normally permissible FSI area would only be carried out where the site lies vacant and no construction work has commenced.
(iii) The premium FSI charges paid earlier than 1 https://www.mhc.tn.gov.in/judis Page 6 of 19 W.P.Nos.25569 & 29492 of 2023 year prior to the notification of the Combined Development Rules shall be adjusted when the applicant submits an application for revised proposal under the Combined Development Rules and the same shall not be refunded under any circumstances including dropping of proposal.”
7. Once again, the first respondent passed another order in G.O.Ms.No.189 Housing and Urban Development (UD1) Department dated 26.10.2022, thereby superseded the earlier government order in G.O.Ms.No.35 Housing and Urban Development (UD-1(1)) Department dated 18.02.2020, which reads as follows :-
“(i) The floor area for which premium FSI charges has already been collected shall be deducted for calculation of Premium FSI charges in the revised proposal.
(ii) All other charges such as development charges, infrastructure and amenities charges, MIDC charges and shelter charges etc., as applicable shall be collected for the additional area over and above the floor area already approved.
(iii) The premium FSI charges paid earlier shall not be refunded except upon the dropping of the https://www.mhc.tn.gov.in/judis Page 7 of 19 W.P.Nos.25569 & 29492 of 2023 proposal by the applicant.”
8. The learned counsel appearing for the petitioner would submit that in the above order in G.O.Ms.No.189 Housing and Urban Development (UD1) Department dated 26.10.2022, the first respondent clarified that collection of premium FSI charges once again for the revised proposal without adjustment of the premium FSI already collected would result in double jeopardy. Therefore, it is needed for adjusting the premium FSI charges already paid by the applicant under the originally sanctioned plan whenever the revised planning permission is applied and also requested the government to issue suitable orders in this regard.
8.1. As per the government order in G.O.Ms.No.189 Housing and Urban Development (UD1) Department dated 26.10.2022, modifying the condition relating to construction having not been commenced, in order to consider the request for adjustment of premium FSI already paid under the sanctioned plan, whenever a revised planning permission was applied for. Further, in order to ensure that there is no double jeopardy upon the applicants seeking revised planning permission insisting payment of premium FSI towards the same area which they had already https://www.mhc.tn.gov.in/judis Page 8 of 19 W.P.Nos.25569 & 29492 of 2023 paid the premium FSI charges under the original sanctioned plan regardless of whether or not construction had commenced.
8.2. As per the revised plan, the second respondent calculated the revised floor area as 5272.59 sq.mt., instead of the original floor area of 4029.67 sq.mt., and accordingly, revised the premium FSI applicable to the project is increased to 0.56 from 0.44, thereby the second respondent demanded a sum of Rs.3,61,52,000/- towards premium FSI charges on the entire premium FSI, over and above the original premium FSI charges, without considering the earlier deposit made by the petitioner to the tune of Rs.3,21,00,000/- in the year 2013.
8.3. Further, the petitioner without prejudice to its right had deposited the said amount under protest, in order to avoid further delay in completion of project, on 05.09.2022 and accordingly, the second respondent issued revised planning permission to the project. Thereafter, the petitioner submitted representation seeking refund of the amount paid by the petitioner. The petitioner also submitted representation seeking refund of Rs.16,50,000/- which was paid towards security deposit for building, sewage treatment plan and display board charges. However, it https://www.mhc.tn.gov.in/judis Page 9 of 19 W.P.Nos.25569 & 29492 of 2023 was forfeited by the second respondent by its communication dated 16.11.2016.
8.4. She further submitted that before the original planning permission, the permitted FSI was 1.5 and the premium FSI was 0.44 in total 4029.67 sq.mt. As per revised planning permission under the Combined Development Rules, the premium FSI applicable to the project is 0.56 in total 5275.59 sq.mt. Therefore, the petitioner is liable to pay incremental premium FSI area to be charged only for the difference between the original floor area and the revised floor area viz., 1245.92 sq.mt. However, the request made by the petitioner for refund of the said amount was rejected by the second respondent. In support of her contention, she relied upon the judgment of this Court made in W.P.No.43571 of 2016 dated 29.09.2021, in the case of Akshaya Signature Home Pvt. Ltd., Vs. State of Tamilnadu and ors.
9. The second respondent filed counter and the learned Additional Advocate General submitted that the petitioner originally obtained planning permission for five blocks each consists ground floor plus four floors by the proceeding dated 10.06.2013. The premium FSI of https://www.mhc.tn.gov.in/judis Page 10 of 19 W.P.Nos.25569 & 29492 of 2023 0.44 was approved for which the petitioner had paid a sum of Rs.3,21,00,000/-, towards premium FSI charges. Accordingly, the petitioner had constructed two blocks and three blocks were under construction. The remaining constructions were put under lock and seal for violation of planning permission by an order dated 07.02.2017. During pendency of the lock and seal order, the time for completion of project as per approval plan was expired on 30.05.2017.
9.1. Thereafter, the petitioner company was under liquidation and insolvency procedure was initiated and Interim Resolution Professor was appointed by the NCLT. Subsequently, as per the resolution plan submitted by one RCC e-Construction Private Limited, the petitioner was permitted to revive the subject project after submitting the revised planning approval. Further, the appeal before the first respondent as against the lock and seal order was allowed and the petitioner was permitted to obtain revised planning permission under the Combined Development Rules.
9.2. As per the revised plan, they increased dwelling unit as such, the premium FSI comes to 0.56 from 0.44 and total revised plinth area is https://www.mhc.tn.gov.in/judis Page 11 of 19 W.P.Nos.25569 & 29492 of 2023 5275.59 sq.mt. Therefore, the petitioner was directed to pay the premium FSI charges to the tune of Rs.3,61,52,000/-. It was paid on 05.09.2022, under protest by the petitioner. The revised planning approval was approved by the first respondent by its proceedings dated 23.09.2022. Thereafter, the petitioner submitted representation seeking refund of premium FSI charges which was paid on 05.09.2022.
9.3. As per the government order in G.O.Ms.No. 35 Housing and Urban Development (UD-1(1)) Department dated 18.12.2020, the premium FSI charges paid already shall be adjusted against the premium FSI charges to be paid under the Combined Development Rules on condition that, if the construction work has not been commenced based on the earlier approval. Further the adjustment of premium FSI charges is permitted, if the planning permission has been obtained within one year prior to the notification of the Combined Development Rules 9.4. Once again, the first respondent issued another government order in G.O.Ms.No.189 Housing and Urban Development (UD1) Department dated 26.10.2022, thereby ordered that the already paid premium FSI charges shall be deducted from the already paid premium https://www.mhc.tn.gov.in/judis Page 12 of 19 W.P.Nos.25569 & 29492 of 2023 FSI charges as per the revised proposal. The premiums FSI charges paid earlier shall not be refunded except the dropping of the entire project. That apart, the period for completion of construction as per the planning permission was also expired on 30.05.2017. In fact, even before that, the second respondent passed an order of lock and seal on 07.02.2017 for violation of planning permission.
10. Heard the learned counsel appearing on either side and perused the materials placed before this Court.
11. The only stand taken by the respondents for rejection of claim made by the petitioner for refund of premium FSI charges is that the government order in G.O.Ms.No.189 Housing and Urban Development (UD1) Department dated 26.10.2022, came into force after payment of premium FSI charges by the petitioner. Therefore, subsequent government order is not applicable to the case of the petitioner.
12. Admittedly, the petitioner’s original building plan was duly approved for construction of five blocks with ground floor + 4 floors in each block. Accordingly, the construction was commenced and completed https://www.mhc.tn.gov.in/judis Page 13 of 19 W.P.Nos.25569 & 29492 of 2023 the construction in respect of two blocks and three blocks were found violation/deviation, as per the approval of building plan. After allowing the appeal filed by the petitioner, the first respondent by its communication dated 20.01.2020, due to the expiry of time for completing the construction, directed the petitioner to obtain revised plan under the Combined Development Rules. Accordingly, the petitioner had applied for revised plan and building permission.
13. As per the revised plan, the additional premium FSI applicable in the project is increased to 0.56 from 0.44. However, it was only revised plan submitted by the petitioner. As per the earlier planning approval, the petitioner had paid the premium FSI charges to the tune of Rs.3,21,00,000/-. As per the revised plan, once again the petitioner was directed to pay premium FSI charges to the tune of Rs.3,61,52,000/-. The application for revised plan cannot be treated as new one. Therefore, the vested or accrued right cannot be taken away by way of policy decision. The petitioner had already paid the premium FSI charges as per the original approved plan. Once again the petitioner was directed to pay premium FSI charges as per the revised plan. As per the revised plan, adding the premium FSI to 0.56 from 0.44 and as such it is only an https://www.mhc.tn.gov.in/judis Page 14 of 19 W.P.Nos.25569 & 29492 of 2023 additional constructing altering the original plan.
14. Further, it cannot be said that alteration, additions etc., are not permissible and there is no prohibition in this regard in any of the rules or order etc. In view of the above, the planning permission approval cannot be treated as new proposal. When the application for planning permission is not new one, the question of calculating the premium FSI charges for entire area including already approved area is unjustified. Therefore, there is no question of demand of premium FSI charges once again for the entire area, in which the petitioner had already paid premium FSI charges as per the original approved plan. Further the petitioner is liable to pay premium FSI charges for the additional area i.e., difference in area between original approved plan and the revised approved plan. As per the demand, in order to avoid further delay, the petitioner, under protest, had paid the entire amount of Rs.3,61,52,000/- as premium FSI charges.
15. In view of the above discussions, the order impugned in the writ petition in W.P.No.25569 of 2023 cannot be sustained and liable to be quashed. Accordingly the the order dated 05.08.2022 passed by the https://www.mhc.tn.gov.in/judis Page 15 of 19 W.P.Nos.25569 & 29492 of 2023 second respondent in No.PP/NHRB/C/0421/2021, is hereby quashed. The second respondent is directed to refund the premium FSI charges collected toward original flooring area of 4029.69 sq.mt., as per order dated 05.08.2022 from the paid amount of Rs.3,61,52,000/-, after deducting the premium FSI charge for the additional area of 1245.92 sq.mt., within a period of four weeks from the date of receipt of a copy of this Order.
W.P.No.29492 of 2023:-
16. Insofar as the security deposit is concerned as per Rule 27 sub Clause 25 of the Development Regulations, 2008, the security deposit shall be refunded on completion of development as per the approved plan as certified by the competent authority, if not, it would be forfeited. The petitioner had made deposit of Rs.16,50,000/- as security deposit. It was forfeited by the communication dated 16.11.2016 due to violation and deviation in the construction from the approved planning permission in the project. It is relevant to rely upon the Rule 27(25) of the Development Regulations, 2008 as follows :-
“27. Regulation for group developments :-
(25)Security Deposit :- The applicant shall https://www.mhc.tn.gov.in/judis Page 16 of 19 W.P.Nos.25569 & 29492 of 2023 deposit a sum at the rate of Rs.50 per square metre of floor area as a refundable non-interest earning security and earnest deposit. The deposit shall be refunded on completion of development as per the approved plan as certified by Chennai Metropolitan Development Authority; if not, it would be forfeited.” Thus, the forfeited security deposit amount will not be refunded. Hence, this Court finds no infirmity or illegality in the order dated 20.09.2023 passed by the second respondent.
17. Accordingly, the Writ Petition in W.P.No.25569 of 2023 stands allowed and the Writ Petition in W.P.No.29492 of 2023 stands dismissed. There shall be no order as to costs.
24.09.2024 Index : Yes/No Speaking/Non Speaking order Neutral Citation : Yes/No rts https://www.mhc.tn.gov.in/judis Page 17 of 19 W.P.Nos.25569 & 29492 of 2023 To
1. The Secretary to Government, State of Tamil Nadu, Housing and Urban Development Department, Secretariat, Fort St. George, Chennai – 600 009.
2. The Member Secretary, Chennai Metropolitan Development Authority, Thalamuthu Natarajan Maaligai, No.1, Gandhi Irwin Road, Egmore, Chennai – 600 008.
https://www.mhc.tn.gov.in/judis Page 18 of 19 W.P.Nos.25569 & 29492 of 2023 G.K.ILANTHIRAIYAN. J, rts COMMON ORDER IN W.P.Nos.25569 & 29492 of 2023 24.09.2024 https://www.mhc.tn.gov.in/judis Page 19 of 19