Madras High Court
M/S Keyaram Hotel Pvt.Ltd vs The Member Secretary on 26 August, 2021
Author: T.Raja
Bench: T.Raja, V.Sivagnanam
W.A.Nos.2599 & 2600 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.08.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
AND
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
W.A.Nos.2599 & 2600 of 2012
M/s Keyaram Hotel Pvt.Ltd.,
rep.by its Director
Mr.Gopichand Idandas
No.23, College Road
Chennai 600 006 .. Appellant in W.A.No.2599 of 2012
M/s Keyaram Hotel Pvt.Ltd.,
rep.by its Director
Mr.K.Sandrasegaran
No.2, Harrington Road
Chetpet, Chennai 600 031 .. Appellant in W.A.No.2600 of 2012
-vs-
1. The Member Secretary
Chennai Metropolitan
Development Authority
No.1, Gandhi Irwin Salai
Egmore, Chennai 600 008 .. 1st Respondent in W.A.No.2599 of 2012
2. The Chief Manager
Large Advances Branch
Bharat Overseas Bank Ltd.,
756, Anna Salai, Chennai .. 2nd Respondent in W.A.No.2599 of 2012
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W.A.Nos.2599 & 2600 of 2012
3. The Secretary to Government
Housing and Urban
Development Department
Fort St.George
Chennai 600 009 .. 1st Respondent in W.A.No.2600 of 2012
4. The Member Secretary
Chennai Metropolitan
Development Authority
No.1, Gandhi Irwin Salai
Egmore, Chennai 600 008 .. 2nd Respondent in W.A.No.2600 of 2012
Appeals filed under Clause 15 of the Letters Patent against the
common order dated 20.09.2012 made in W.P.Nos.27465 & 29485 of 2008.
For Appellant :: Mr.S.Sundaresan
For Respondents :: Mr.Tiruvenkadam
for CMDA
Mr.V.Manoharan
Government Advocate
for State
JUDGMENT
(Judgment of the Court was made by T.RAJA, J.) These two writ appeals are directed against the impugned common order dated 20.09.2012 passed by the learned single Judge in Writ Petition Nos.27465 & 29485 of 2008.
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2. Learned counsel appearing for the appellant-M/s Keyaram Hotels Private Limited submitted that the appellant applied for planning permission to develop the property situated at Door No.1, Harrington Road, Chennai. After processing the same, the respondent-Chennai Metropolitan Development Authority (for short, the CMDA) has granted the planning permission with a direction to pay a sum of Rs.33,00,000/- vide their letter of demand No.C3/22322/99 dated 22.2.99, after the Government have issued the Government Order granting planning permission for the development. The appellant challenged the said demand in Writ Petition Nos.3104 & 4421 of 1999, but the Court directed the appellant to pay the amount by way of bank guarantee. Accordingly, the bank guarantee was initially given for a period of 5 years and the guarantee shall be enforceable by CMDA on demand at any time before the expiry of the period specified therein. Learned counsel appearing for the appellant also submitted that the Development Control Rules clearly prescribes that the security deposit amount is refundable on completion of the building and after issuance of the completion certificate. Therefore, when the building was completed and the CMDA had inspected the premises, they had also issued the completion 3/25 http://www.judis.nic.in W.A.Nos.2599 & 2600 of 2012 certificate on 20.9.2002 by letter No.ECI/31008/2002. Since the building has been completed in accordance with law, on the basis of the issuance of the completion certificate, the security deposit shall be refunded as per the approved plan as certified by CMDA. When the CMDA had issued the completion certificate after inspection of the building, the appellant is entitled to get the security deposit. But curiously, the CMDA issued a show cause notice dated 13.10.2003 calling upon the appellant to explain as to why the bank guarantee should not be invoked stating as if the appellant had violated the Development Control Rules in the construction. This show cause notice was issued after the appellant insisted for return of the bank guarantee. However, the appellant, after receiving the show cause notice, explained through the letter dated 10.11.2003 that the show cause notice is wrong, because there is no deviation and the same was also received by the CMDA on 12.11.2003. Once again the appellant has given another reply on 29.11.2003. Thereafter, the CMDA has sent another letter on 30.1.2004 directing the appellant to apply for a revised plan, for which the appellant also replied on 5.3.2004. But once again the CMDA has sent another letter on 15.4.2004 contrary to their earlier letter. Since the CMDA has insisted to 4/25 http://www.judis.nic.in W.A.Nos.2599 & 2600 of 2012 file a revised plan as per the site condition, though there is no violation of DCR norms, the appellant applied for revised planning permission and submitted the essential drawings on 14.2.2004. Subsequently, the CMDA also sent letters dated 28.6.2004 to various authorities of the Multi-storeyed Building (MSB) panel calling for their remarks. Accordingly, the various authorities of the MSB panel also issued their No Objection Certificate for the proposed conversion of the existing building and thereafter the CMDA issued the impugned letter stating that the revised planning permission is refused.
3. Learned counsel appearing for the appellant further submitted that when the police authorities have given clearance by way of NOC stating that the appellant has provided 20% extra space for car parking and visitors parking including two wheelers as against the required parking requirement, by letter dated 3.9.2004, the claim of the CMDA that the appellant has not provided enough parking is wrong. Arguing further, the learned counsel contended that when the CMDA has issued the completion certificate in the year 2002, it confirms the fact that the building is constructed and finished 5/25 http://www.judis.nic.in W.A.Nos.2599 & 2600 of 2012 in accordance with the sanctioned plan. While so, the impugned letter cannot say that there is a violation of the DCR norms. Moreover, when the Government in their letter Ms.No.26, Housing and Urban Development Department dated 22.1.90 have accorded approval of the recommendation of the Multi-storeyed Building panel for issuance of planning permission to the appellant for the proposed construction of two blocks of building consisting of basement plus ground plus 9 floors front block for office purpose and double basement plus ground plus 9 floors rear block for hotel purpose at Door No.1, Harrington Road, Chennai, the CMDA, being an authority inferior to the Government, has no power to reject the planning permission for the Multi-storeyed Building. Again referring to Regulation 28(14) of the Special Rules for Multi-storeyed Buildings, it was contended that the security deposit has to be refunded without interest on completion of the building.
4. Contending further, learned counsel for the appellant submitted that the impugned letter dated 22.8.2007 issued by the CMDA refusing to grant regularisation of the existing two multi-storeyed building on a false 6/25 http://www.judis.nic.in W.A.Nos.2599 & 2600 of 2012 pretext of violation under Rule 17(a) of the Development Control Rules is wrong, because there is no violation at all. Moreover, when the Government have already accorded approval for the planning permission, the CMDA has no power to refuse to regularise the two multi-storeyed building. Secondly, the show cause notice dated 10.11.2008 directing to transfer the bank guarantee is also per se wrong. When the Development Control Rules contemplates issuance of only one completion certificate, after issuing the completion certificate, the CMDA has to explain under what provision they issued a different completion certificate, one for electricity and water connection and another for security deposit. Even the impugned letter dated 22.8.2007 has wrongly listed out certain violations without making any inspection and without verifying the approved plan issued by them. However, when the explanation was offered by the appellant along with the plan and the rules, with regard to query no.1, it was stated that as per the approved plan, the maximum FSI permitted is 2.500. But the appellant has achieved only 2.412, which is less by 0.088 FSI. But the alleged violation shows that when the permissible FSI is 2.25, the available FSI is 2.412 and the appellant has exceeded by 0.162 (173 sq.mtr, which is factually 7/25 http://www.judis.nic.in W.A.Nos.2599 & 2600 of 2012 incorrect. The reason being that when the permission was granted to have the FSI till 2.500, the appellant has achieved only 2.412 and still 0.088 FSI is still available, therefore, there is no violation and it is a factual mistake.
5. With regard to query no.2, it has been stated that part of the building of the appellant is abutting Valluvar Kottam Road. This is also factually incorrect, because the appellant has replied that the property of the appellant is situate on the North by Harrington Road (running east to west); on the East by No.1, Harrington Road, now office building (running north to south); on the West by the OSR land left for the development forming part of No.2, Harrington Road (running north to south) and on the South by Coovam river (running east to west). So Valluvar Kottam Road does not come into picture. Therefore, it has been represented that the alleged violation was also wrong. Coming to query no.3, it has been explained that as per the approved plan, 307 car parking is provided and the traffic police, having seen that the appellant has got the space for 307 car parking, has granted the NOC. However, as there is no provision in the approved plan for two wheeler parking, providing two wheeler parking would go against the 8/25 http://www.judis.nic.in W.A.Nos.2599 & 2600 of 2012 approved plan, which the appellant has not provided, therefore, it was indicated that the said query was also wrong.
6. Arguing further, learned counsel stated that when a ramp is provided for the physically challenged persons for easy access, the query raised by the CMDA that all the provisions for physically challenged persons are not available, is wrong. Again drawing our attention to the approval granted by the Airports Authority of India, he submitted that when the Airport Authorities have already given NOC upto a height of 45.63 mts, the objection given by the CMDA that NOC from Airports Authority of India is not furnished, is again factually incorrect. Pointing out another false query that the underground sump and overhead tank for rain water collection are not shown, learned counsel for the appellant submitted that as per the approved plan, the recycling of rain water was not required at the time of approval. Moreover, the rainwater harvesting has already been provided and shown in the plan. Since the recycling requirement came into force only in the 2nd Master Plan in the year 2009, it is not applicable for the completed buildings for which the completion certificate was granted in the year 2002 9/25 http://www.judis.nic.in W.A.Nos.2599 & 2600 of 2012 itself. Again pointing out another wrong query raised by the CMDA that the site under reference lies adjacent to river coovam, hence, environment clearance under Coastal Regulation Zone is not furnished, it has been stated that in the year 1999, when the approval was granted, the requirement of the pre-approval under the environment clearance notification did not arise, because the said rule came into force only on 14.9.2006. However, the Coastal Regulation Zone clearance was granted by the CMDA itself while forwarding the recommendation, as without that clearance, the Government cannot accord approval for the Multi-storeyed buildings. This factual aspect also has been completely overlooked. Concluding his arguments, learned counsel appearing for the appellant stated that since both the hotel and office are falling under the commercial zone, the development regulations permit any of the uses mentioned in the land use zone, therefore, there is no violation. Hence, the rejection of change of use and the invocation of the bank guarantee by CMDA are bad in law. As these aspects have not been properly considered by the learned single Judge, the impugned common order is liable to be set aside by allowing these appeals. 10/25 http://www.judis.nic.in W.A.Nos.2599 & 2600 of 2012
7. Mr.Tiruvenkadam, learned counsel appearing for the CMDA, restating the stand taken before the learned single Judge in the counter affidavit, stated that the planning permission for the proposed construction of two blocks of building, namely, front block of basement plus ground floor plus 9 floors and rear block of double basement plus ground floor plus 9 floors, was approved by the CMDA vide planning permission No.C/PP/MSB/5 AA to BB/99 in letter No.C/22322/98 dated 24.4.99. When the appellant furnished bank guarantee on 1.3.99 from Bharat Overseas Bank Ltd., Anna Salai, Chennai for Rs.33 lakhs towards security deposit for the building that was valid upto 25.2.2004, the site under reference was inspected on 13.3.2002 and it was found that the construction was in deviation to the approved plan. Hence a show cause notice dated 10.4.2002 was issued. Thereafter, a revised show cause notice dated 13.10.2003 was also sent. Subsequently, the bank guarantee was also extended till 26.2.2009. But the revised proposal as per site condition was dealt in Multi- storeyed Building Division and it was refused by the impugned letter dated 22.8.2007. So the bank guarantee was sought to be invoked on 10.11.2008, against which the appellant has filed the Writ Petition No.27465 of 2008 11/25 http://www.judis.nic.in W.A.Nos.2599 & 2600 of 2012 and obtained a stay order. Since the CMDA had issued the completion certificate dated 20.9.2002 only for the purpose of obtaining electricity, water supply and sewerage connections, it has been clearly stated that the issuance of the completion certificate would not entitle the appellant for routine refund of security deposit, because whenever there is an unauthorised construction, the CMDA has got every right to demolish the building. After noticing various deviations, the appellant was directed to apply for a revised plan. Thereafter, the appellant submitted a revised plan and the same was refused for the reasons mentioned therein. One of the reasons was that the No Objection Certificate from the Airports Authority of India was not furnished. Another reason was that the ground sump and overhead tank for rain water collection was not shown in the revised plan and that the site under reference lies adjacent to river coovam and attracts Coastal Regulation Zone-II rules, hence environment clearance not furnished. In view of the above, when the above proposal was placed before the Multi-storeyed Building Panel, they recommended for rejection of the planning permission. After rejection of the application, the appellant has got a right of appeal under Section 79 of the Town and Country Planning Act, 12/25 http://www.judis.nic.in W.A.Nos.2599 & 2600 of 2012 1971 and without availing such remedy, the appellant cannot come to this Court, he pleaded.
8. Learned Government Advocate appearing for the State, supporting the impugned order, stated that when an appeal lies under Section 79 of the Town and Country Planning Act, the writ appeals have to be dismissed.
9. We have heard learned counsel appearing for the parties.
10. Since the appellant states that after the building was completed, the CMDA has inspected the premises and issued the completion certificate on 20.9.2002, that shows that the building was completed in accordance with law. Now the question is when the completion certificate was issued by the CMDA on 20.9.2002, can they take a stand that the said completion certificate has been issued for obtaining electricity, water supply and sewerage connections only. In this context, Regulation 4(5) of the Development Regulations for Chennai Metropolitan Area is extracted hereunder:-
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(a) The Applicant/Owner/Builder/Promoter/Power of Attorney Holder and any other Person who is acquiring interest shall not put the building to use without obtaining Completion Certificate from CMDA for 'Special Buildings', 'Group Developments', 'Multi-storeyed Buildings' and Institutional Buildings (exceeding 300 M2 in floor area) and such other developments as may be notified by the Chennai Metropolitan DevelopmentAuthority from time to time.
(b) The Applicant/Owner/Builder/Promoter/Power of Attorney holder and any other person who is acquiring interest shall submit application in complete shape for issue of Completion Certificate before probable date of completion and CMDA/Local Body concerned, which had issued PP, shall dispose off such application.” When the aforesaid regulation contemplates only one completion certificate and the same was also issued by the CMDA, we are unable to find any justification in the stand taken by the CMDA that they had issued the 14/25 http://www.judis.nic.in W.A.Nos.2599 & 2600 of 2012 completion certificate only for the purpose of obtaining electricity, water supply and sewerage connections.
11. Secondly, the impugned proceeding dated 22.8.2007 issued by the CMDA shows that they have found that the construction violates the following Special Rules for Multi-storeyed Building under Rule 17(a) of the Development Control Rules, which read thus:-
S.No. Rule Description Required/ Provided/ Remarks Permissible available 1 17(a)2 Floor Space Index 2.25 max. 2.412 Excess by 0.162 (173 sq.m) 2 17(a)3(b) Street Alignment for 4.125m 4.00m Less by 0.125m Valluvar Kottam Road 3 17(a)5(a) Two Wheeler parking 387 Nos. -- Less by 387 Nos.
4. Corporation of Chennai in Lr.WDC No.X11/6211/2004 dt. 20.7.04 have stated that the building is already constructed and hence they are not in a position to give remarks and specific recommendation on permissibility of the buildings.
Following are the Defects:
i) Copy of Permanent Land Record is not attested by a Revenue Official not below the Rank of Deputy Tahsildar.
ii) All the provisions for physically challenged persons are not provided. Iii)No Objection Certificate from AAI for the total height of 40.01m above ground level is not furnished. (Earlier NOC dt.13.11.97 for height of 39.63m above ground level was furnished, the validity of which expired on 12.11.99).
iv) Under Ground sump and overhead tank for rain water collection and sullage water recycling are not shown.
v) Boundary measurements as per PLR are not shown in the site plan.15/25
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vi) The site under reference lies adjacent to river coovum and attracts Coastal Regularisation Zone-II, Rules. The cost of the construction exceeds Rs.5.00 Crore. Environment clearance under CRZ is not furnished.
12. The additional affidavit filed by the appellant shows the following answers to the above queries raised by the CMDA, which are reproduced below:-
Query:1 S.No. Rule Description Required/ Provided/ Remarks Permissible available 1 17(a)2 F.S.I. 2.25 max. 2.412 Excess by 0.162 (173 sq.m) Answer: As per approved plan the maximum FSI permitted is 2.500. The approved plan has shown that the appellant is entitled to 2.500 but achieved only 2.412 and thereby it is less by 0.088 FSI.
As per DCR the FSI permissible is 2.500 in Rule 17(a)2, since the development covers only 30% of the plot coverage. But the authority has shown 50% plot coverage as against the approved plan. S.No. Rule Description Required/ Provided/ Remarks Permissible available 1 17(a)2 F.S.I. 2.500 max. 2.412 Less by 0.088 16/25 http://www.judis.nic.in W.A.Nos.2599 & 2600 of 2012 Query: 2 S.No. Rule Description Required/ Provided/ Remarks Permissible available 2 17(a)3(b) Street Alignment for 4.125m 4.00m Less by 0.125m Valluvar Kottam Road Answer:
The property abutting on the following boundaries:
North by – Harrington Road – running east to west East by - No.1, Harrington Road (formerly petrol bunk was situated. Now Office Building (running north to south) West by - OSR Land left for the development forms part of No.2 Harrington Road (running north to south) South by - Coovam river running East to West There is no part of the building or the development abutting Valluvar Kottam Road. Hence 17(a)3b does not arise since the building having only one access from Harrington Road no other access is available for the said building. Hence the said point is wrong.
S.No. Rule Description Required/ Provided/ Remarks Permissible available 2 17(a)3(b) Does not abut Valluvar Available as Available as There is no Kottam Road per rules per rules shortage as per the answer Query: 3 17/25 http://www.judis.nic.in W.A.Nos.2599 & 2600 of 2012 S.No. Rule Description Required/ Provided/ Remarks Permissible available 3 17(a)5(b) Two wheeler parking 387 no. - Less by 387 Answer:
As per approved plan there is no two wheeler parking allowed nor provided and hence the question of two wheeler parking requirement does not arise. Earlier in DCR there is no such requirement only car parking alone required and as per the approved plan 307 car parking is provided and the Traffic Police has cleared by granting N.O.C. The parking standards are prescribed under Rule 20 of Development Control Rules which is specified in Annexure XIII. Annexure XIII is in page 111 of the Book which prescribes parking standards, wherein there is no requirement for two wheeler parkings. Hence this query is wrong. Only Car parking is alone provided.
Query: 4 Corporation of Chennai in Lr.WDC No.XII/6211/2004 dt.20.7.04 have stated that the building is already constructed and hence they are not in a position to give remarks and specific recommendation on permissibility of the building.
Answer: 4 The failure on the part of the Corporation offering remarks on the ground of the building is existed is not a deviation on the part of the appellant.
The following defects are as found impugned notice.18/25
http://www.judis.nic.in W.A.Nos.2599 & 2600 of 2012 4(i) Query: Copy of Permanent Land Register is not attested by the Revenue Officer not below the rank of Deputy Tahsildar.
4(i) Answer: The defect pointed is rectified by producing a fresh attested copy of Patta at page 2 and 3.
4(ii) Query: All the provisions of physically challenged person are not provided.
Answer 4(ii): Ramp is provided for the easy access of physically challenged persons without any steps and photograph attached. At page 1 of Additional Typed Set of paper.
4(iii) Query: No Objection Certificate from AAI for the total height of 40.01m above ground level is not furnished. (Earlier NOC dated 13.11.97 for height of 39.63 m above Ground level was furnished, the validity of which expired on 12.11.99).
4(iii) Answer: The CMDA authorities failed to note that the existing NOC from Airport Authorities of India has given upto a height of 45.63 mtrs. And hence the above objection is without seeing the certificate which is already in file. Page 4 of the Additional Typed set of paper.
4(iv) Query: Underground sump and overhead tank for rain water collection 19/25 http://www.judis.nic.in W.A.Nos.2599 & 2600 of 2012 and sullage water recycling are not shown.
4(iv) Answer: As per the approved plan the recycling of rain water and sullage water collection and recycling did not require at the time of approval. The rainwater harvesting has already been provided and shown in the plan. The recycling requirement came into force only in the 2nd Master Plan which came into force only in 2009 and is not applicable for the constructed and completed buildings earlier this building is completed in 2002 itself. 4(v) Query: Boundary measurements as per PLR are not shown in the site plan.
4(v) Answer: The boundary measurements has already been shown in the plan as per PLR and the approved site plan has clearly mentioned the measurements as 269 feet on the Harrington Road 323 feet on the eastern side on the existing building at No.1 Harrington Road, 366 feet on the Coovam River side and 180 & 246 feet on the OSR side namely western side.
4(vi) Query: The site under reference lies adjacent to river Coovam and attracts Coastal Regularization Zone-II Rules. The cost of the construction exceeds Rs.5.00 Crores. Environment clearance under CRZ is not furnished. 4(vi) Answer: At the time of 1999 when the approval was granted the requirement of pre-approval under the environment clearance notification 20/25 http://www.judis.nic.in W.A.Nos.2599 & 2600 of 2012 did not arise since the said rule came into force on 14.09.2006. However the CRZ clearance is granted by the CMDA itself while forwarding the recommendation since it is an internal approval before sending it to government. Without that approval government cannot accord approval for MSB building.
13. Firstly, it is an admitted case of both parties that the completion certificate has already been granted on 20.09.2002, which shows that the buildings have been constructed in accordance with the planning permission and law. Regulation 4(5) of the Development Regulation for Chennai Metropolitan Area has been fully complied with.
14. Secondly, after issuing the completion certificate under Regulation 4(5), ironically, it is not known how they can issue impugned notice saying that the property is abutting Valluvarkottam Road when it has been demonstrated by the appellant that no part of the building is abutting Valluvarkottam Road and the said road is far away from the appellant building.
15. Thirdly, another joking point is that as per the approved plan, the 21/25 http://www.judis.nic.in W.A.Nos.2599 & 2600 of 2012 maximum FSI permitted area is 2.500 and in the case on hand, the appellant has achieved only 2.412 and thereby let-off 0.088 FSI unutilized area and therefore, it shows that the appellant has not even crossed maximum FSI, thus, this query assumes importance to say that officials in CMDA have acted whimsically with extraneous consideration.
16. Fourth interesting issue shows that when the No Objection Certificate from Airport Authority of India has already been submitted, again raising an objection that NOC from Airport Authority of India has not been obtained shows not only the non-application of their mind, but also evidently tells us that the CMDA has acted in an oblique motive only.
17. Fifthly, when the Coastal Regulation Zone clearance was given by the CMDA while forwarding the recommendation itself, again, they have raised a query that the Coastal Regulation Zone clearance was not furnished, forgetting the rule position that the Government cannot accord approval for the Multi-storeyed buildings sans environment clearance under Coastal Regulation Zone.
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18. Thus, in our considered view, as answered above, all the queries prepared by the officers working in the CMDA for rejecting the claim of the appellant are an afterthought. In view of the above findings, if any such officer who has prepared these false queries is in service now, the Member Secretary, CMDA, Chennai, is hereby directed to take note of the above said acts and proceed against such officer concerned departmentally in accordance with law within a period of six weeks from the date of receipt of a copy of this judgment. Moreover, when neither the proposal nor the order recommending the rejection of the planning permission has been sent to the appellant nor placed before this Court by the CMDA, the contention that the appellant should avail the remedy of appeal under Section 79 of the Tamil Nadu Town and Country Planning Act, is also untenable.
19. For all the aforementioned reasons, the impugned order is set aside and the writ appeals are allowed. Consequently, the impugned letters challenged in the writ petitions are quashed and the writ petitions are allowed as prayed for. Consequently, M.P.Nos.1 of 2012 are closed. 23/25 http://www.judis.nic.in W.A.Nos.2599 & 2600 of 2012 However, there is no order as to costs.
Speaking order (T.R.,J.) (V.S.G., J.)
Index : yes 26.08.2021
ss
To
1. The Secretary to Government
Housing and Urban
Development Department
Fort St.George
Chennai 600 009
2. The Member Secretary
Chennai Metropolitan
Development Authority
No.1, Gandhi Irwin Salai
Egmore, Chennai 600 008
3. The Chief Manager
Large Advances Branch
Bharat Overseas Bank Ltd.,
756, Anna Salai
Chennai.
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T.RAJA, J.
and
V.SIVAGNANAM, J.
ss
W.A.Nos.2599 & 2600 of 2012
26.08.2021
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