Madras High Court
The Commissioner vs M/S.Golden Homes Private Limited on 13 June, 2018
Author: K.K.Sasidharan
Bench: K.K.Sasidharan, R.Subramanian
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.06.2018
CORAM:
THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN
AND
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
W.A.No.719 of 2017
and
C.M.P.No.9875 & 9876 of 2017
The Commissioner,
Poonamalee Municipality,
Office of Poonamalee Municipality,
Chennai – 600 056.
... Appellant
versus
1.M/s.Golden Homes Private Limited,
rep. by its Authorised Signatory,
Mrs.Rekha,
AC 63, 5th Avenue,
Anna Nagar, Chennai – 40.
2.The Secretary to Government,
Housing and Urban Development Authority,
Fort St. George,
Chennai – 600 009.
3.The Chennai Metropolitan Development Authority,
rep. by its Member Secretary,
No.1, Gandhi Erwin Road,
Egmore, Chennai – 600 008.
... Respondents
Appeal filed against the order passed by this Court dated 17.04.2017
made in W.P.No.3946 of 2017.
http://www.judis.nic.in
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For Appellant : Mr.R.Yashod Varadhan, Senior Counsel
Assisted by Mr.R.Sivakumar
For Respondents : Mr.S.Sundaresan for R1
Mr.V.Anandhamoorthy for R2
Mrs.P.Veena Suresh for R3
JUDGMENT
(Order of the Court made by R.SUBRAMANIAN,J.) The instant appeal is by the 3rd respondent in W.P.No.3946 of 2017. In the said Writ Petition, the challenge was to the proceedings of the appellant herein dated 20.01.2017, in an by which, the appellant had reiterated its demand of payment of Rs.79,70,000/- as building permission fee made in notice dated 27.12.2016.
The brief facts that led to the filing of the Writ Petition are as follows:-
2. The 1st respondent which is a builder had sought for permission of development and construction of 10 blocks of multi-storeyed building with 815 Dwelling Units and along with various other amenities like swimming pool, gymnasium, parlour etc., in S.No.5/1B2, 84/2 at Poonamalle Village. The said proposal was recommended by the Secretary to Government Housing and Urban Development Department on 12.01.2012. Pursuant to the same the Chennai Metropolitan Development Authority issued a planning permit on 22.03.2012.
The Chennai Metropolitan Development Authority also addressed the http://www.judis.nic.in -3- Commissioner of the appellant Municipality regarding the sanction accorded to the 1st respondent. The said letter dated 22.03.2012 would state that the approval is not final and the applicant viz., the 1st respondent herein had to approach the Commissioner, Poonamalle Municipality for issue of building permit under the relevant Local Bodies Act.
3. The appellant Municipality also issued a building permit after collection of the required charges on 21.08.2012. The building permit required the 1st respondent to complete the construction within the time limit of three years. The condition No.3 in the building permit issued by the Commissioner of the appellant Municipality reads as follows:
“3/ mDkjp Mizapy; bfhLf;fg;
gl;oUf;Fk; fhy mst[fF ; s; fl;olk; fl;o Kof;fg;glhtpl;lhy; efuhl;rp MizahsUf;f kPz;Lk; mikg;g[ glj;Jld; kD bra;J g[jpjhf mDkjp bgw;Wf; bfhz;lhyd;wp vt;tpj ntiya[k;
bjhlh;e;J bra;ag;TlhJ/ nkw;fz;l mDkjpapid kPz;Lk; bgWtjw;F mDkjp chpikahizapy;
cs;s fhy mst[ Kotjw;Fs; 30 ehl;fs;
Kd;djhf kWgoa[k; kD bfhLj;f ntz;Lk;/ mDkjp bgw;Wf; bfhs;shky; fl;ol ntiyia bjhlh;e;J bra;jhy; brhe;jf;fhuh; kPJ Fw;wr;rhl;L http://www.judis.nic.in -4- bjhlug;gLtJld; mDkjpapy;yhky; fl;oa fl;olk;
mg;gw[ g;gLj;Jtjw;Fs;sjhFk;/”
4. The 1st respondent was unable to complete the construction within a period of three years, therefore, it approached the Planning Authority viz., Chennai Metropolitan Development Authority for renewal of the planning permission. The Chennai Metropolitan Development Authority by its proceedings dated 27.06.2016 renewed the planning permission and the 1st respondent was directed to approach the Commissioner of the appellant Municipality for renewal of the building permit under the Local Bodies Act. Clause 8 of the letter No.EC/C-11/4596/2015 dated 27.06.2016 issued by the Chennai Metropolitan Development Authority reads as follows:
“8. This approval is not final. The applicant has to approach the Commissioner, Poonamallee Municipality, for renewal of building permit under the Local Body Act.”
5. The renewal of the building permit was also issued by Chennai Metropolitan Development Authority on 27.06.2016. Pursuant to the direction contained in the proceedings of the Chennai Metropolitan Development Authority dated 27.06.2016, the 1st respondent approached the appellant Municipality seeking renewal of the planning permission. The Municipality http://www.judis.nic.in -5- however claimed that the 1st respondent will have to pay a sum of Rs.79,70,000/- towards charges for grant of building permission and unless the same is paid the renewal sought for cannot be granted. It is this insistence on the part of the Municipality on payment of the charges that was challenged in the Writ Petition.
6. The appellant Municipality resisted the Writ Petition mainly contending that the District Municipalities Act does not contemplate renewal of the planning permission or building permit. Therefore, any application for extension of the period shall be treated only as a fresh application and the Municipality was well within its right to seek payment of the charges once over again. Reliance was also placed on Section 204 of the District Municipalities Act, 1920 which reads as follows:-
“204. Lapse of permission:- If the construction or reconstruction of any building is not completed within the period specified, the permission shall lapse and a fresh application shall be made before the work is continued.”
7. Relying upon the aforesaid provisions, the appellant Municipality resisted the Writ Petition contending that there being no provision for renewal and the building permission having lapsed the 1st respondent is liable to pay the charges even though, the grant would amount to a renewal of the building http://www.judis.nic.in -6- permit issued by the Municipality in 2012. The learned Single Judge rejected the contentions of the Municipality and allowed the Writ Petition quashing the impugned order and directing the grant of necessary building permit within a period of four weeks from the date of receipt of a copy of the order. It is the said order that has been challenged in this Writ Appeal.
8. We have heard Mr.Yashodavardhan, learned Senior Counsel appearing for the appellant Municipality, Mr.S.Sundaresan, learned counsel appearing for the 1st respondent and Mr.V.Aanandhamoorthy, learned Government Pleader appearing for the respondents 2 and 3.
9. Mr.Yashodavardhan, learned Senior Counsel appearing for the appellant would vehemently contend that the learned Single Judge was not right in concluding that despite Section 204 of the District Municipalities Act, the application filed by the 1st respondent shall be treated as one for renewal. The learned Senior Counsel would further argue that as a District Municipality, the appellant is governed by the provisions of District Municipalities Act, 1920 and in the absence of any provision for renewal of the building permission and in view of the positive direction contained in Section 204, the application made by the 1st respondent though seeking renewal of the building permission, shall be treated only as a fresh application and once it is treated as a fresh http://www.judis.nic.in -7- application unless the 1st respondent pays the necessary fees that is fixed as per the said Act, the appellant cannot be directed to grant building permission.
10. Countering the said submissions Mr.S.Sundaresan, learned counsel appearing for the 1st respondent would contend that the words “fresh application” used in Section 204 by themselves would not cloth the appellant Municipality with a right to demand a second set of fee for the very same purpose. Pointing out that there is no provision in the District Municipalities Act which enables the appellant to levy second set of fee for the same purpose, Mr.S.Sundaresan, would contend that the words “fresh application” would take within its ambit an application for renewal also. Mr.S.Sundaresan would also draw our attention to sub-Section 9(a) of Section 321 which reads as follows:
“321.(9-A) Save as otherwise expressly provided in or may be prescribed under this Act, every application for a licence or permission or for registration of the renewal of a licence or permission or registration, shall be made not less than thirty and not more than ninety days before the commencement of the year or of such less period as is mentioned in the application.”
11. The condition No.3 in the building permit issued by the appellant Municipality itself shows that if an application is to be made for renewal, the http://www.judis.nic.in -8- same has to be made 30 days prior to the expiry of the original period. Therefore, according to the learned counsel for the 1st respondent, Section 204 has to be read with Section 321(9-A) of the Tamil Nadu District Municipalities Act. Mr.S.Sundaresan would further submit that the interpretation on the provisions of Section 204 and 321(9-A) made by the learned Single Judge does not call for any interference at our hands.
12. We have considered rival submissions. No doubt Section 204 contemplates a fresh application at the same time we must point out that either Section 204 or any other provisions of the Tamil Nadu District Municipalities Act, 1920 empower the Municipality to demand payment of the charges for grant of such building permission for the second time, merely because an application is made under Section 204 for renewal of the building permission. Section 321(9-A) provides for the time limit and the said Section would have to be, as rightly concluded by the learned Single Judge, read in consonance with Section 204 of the District Municipalities Act, 1920. Apart from the above, the Planning Authorities viz., Chennai Metropolitan Development Authority has while renewing the planning permission has directed the 1 st respondent to approach the appellant Municipality for renewal of the building permit under the Local Body Act. Therefore, it is clear that the Authorities had understood the impact of Section 204 in a particular manner and therefore it is not open to the Municipality to project a novel plea of second time payment http://www.judis.nic.in -9- without any statutory support. We are therefore of the view that the learned Single Judge was right in directing the Municipality to consider the application for building permit without insisting upon the payment of the charges which had already been collected at the time of grant of permission.
13. In the result, the Writ Appeal fails and the same is dismissed, however there will be no order as to costs. It is well open to the 1st respondent Municipality to move the legislature for incorporation of a provision as to renewal and fixation of a fee for renewal in the light of the fact that the continued building activity may cause some financial burden on the Municipality. However, on the provisions as they stand today, we are constrained to point out that the demand made by the appellant Municipality cannot be justified. No costs. Consequently, the connected Miscellaneous Petitions are also closed.
(K.K.SASIDHARAN, J.) (R.SUBRAMANIAN, J.)
13.06.2018
Index : Yes
Internet : Yes
dsa
http://www.judis.nic.in
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K.K.SASIDHARAN, J.
and
R.SUBRAMANIAN, J.
dsa
To
1.The Commissioner,
Poonamalee Municipality,
Office of Poonamalee Municipality,
Chennai – 600 056.
2.The Secretary to Government,
Housing and Urban Development Authority,
Fort St. George,
Chennai – 600 009.
3.The Chennai Metropolitan Development Authority, rep. by its Member Secretary, No.1, Gandhi Erwin Road, Egmore, Chennai – 600 008.
W.A.No.719 of 2017
13.06.2018 http://www.judis.nic.in