Madras High Court
True Value Homes India Private Limited vs The State Of Tamil Nadu on 2 August, 2012
Author: R.Sudhakar
Bench: R.Sudhakar
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 2.8.2012 CORAM THE HONOURABLE MR.JUSTICE R.SUDHAKAR Writ Petition No.21095 of 2012 and M.P.No.1 of 2012 True Value Homes India Private Limited, represented by its Company Secretary, TVH Triveni, 21, C.V.Raman Road, Alwarpet, Chennai-600 018. ... Petitioner -Vs.- 1.The State of Tamil Nadu, represented by its Secretary, Department of Revenue, Fort St. George, Chennai 600 009. 2.Chennai Metro Rail Limited, represented by its Managing Director, Harini Towers, No.7, Conran Smith Road, Gopalapuram, Chennai-600 086. 3.Chennai Metropolitan Development Authority Ltd., represented by its Member Secretary, Thalamuthu Natarajan Building, No.1, Gandhi Irwin Road, Egmore, Chennai-600 008. ... Respondents Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus, directing the respondents to pay compensation to the petitioner, either as monetary compensation or as TDR (Transferable Development Rights), towards the damage sustained by the petitioner in being injuriously affected by the acquisition made by the respondents resulting in restricted passage and frontage to the remaining land owned by the petitioner. For petitioner : Mr.Muthukumarasamy, Senior Counsel for Mr.A.Jenasenan. For respondents : Mr.V.M.Velumani, Special Government Pleader, for R1. Mr.V.Ramajagadeesan, for R2. Mr.P.Tamilmani, for R3. ----- O R D E R
This Writ Petition is filed praying to issue a Writ of Mandamus, directing the respondents to pay compensation to the petitioner, either as monetary compensation or as TDR (Transferable Development Rights), towards the damage sustained by the petitioner in being injuriously affected by the acquisition made by the respondents resulting in restricted passage and frontage to the remaining land owned by the petitioner.
2. Heard Mr.R.Muthukumarasamy, learned senior counsel appearing for the petitioner; Ms.V.M.Velumani, learned Special Government Pleader, appearing for the first respondent; Mr.V.Ramajagadeesan, learned counsel, appearing for the second respondent and Mr.P.Tamilmani, learned counsel appearing for the third respondent, instructed by Mr.Bhaskararaj, Senior Law Officer.
3. The writ petition has been filed to direct the respondents to pay compensation to the petitioner either as monetary compensation or as Transferable Development Rights towards the resultant loss of value and damage sustained by the petitioner consequent to the acquisition made by the respondents which resulted in the restriction of passage and frontage to the remaining land owned by the petitioner. The petitioner's plea is that though compensation is given for the portion of land acquired, the balance extent of land has lost its utility and development value due to restriction of passage.
4. The petitioner company is the owner of the property measuring 95.6 cents in Survey Nos.67, 68, 69, 70, 71 and 74 of Alandur Village. The said property was purchased by way of a sale certificate issued by the Indian Bank. While the petitioner was proposing to develop the site and put up construction in the property it appears that the second respondent M/s.Chennai Metro Rail Project came in the way. For the CMRL Project requirement, a part of the front portion of the property has been acquired. The second respondent has forwarded its recommendations for issuance of Transferable Development Rights only with regard to the acquired portion. The cause of action for filing the present writ petition is on account of construction proposed by the second respondent to put up the Chennai Metro Railway Station and ancillary structures to implement the CMRL Project. The proposed construction will constrict the frontage of the property and as a consequence, the petitioner entry will be restricted. As a result of the proposed construction and consequent reduction of frontage, the petitioner's property which is behind cannot be utilised for its full extent.
5. According to the petitioner, a major part of the front portion of the property will be closed if the construction is put up leaving a small extent only, for ingress and egress. Consequently, the property will lose its eligibility to get appropriate Floor Space Index (FSI in short) and in real terms the built up area that can be constructed will be far less than what was eligible earlier. Due to reduction of Floor Space Index, petitioner will not be able to put up a multi-storeyed building and consequently there is a loss. In view of the above, the petitioner's company addressed a letter dated 27.1.2012 to the respondents claiming the benefit of compensation or Transferable Development Rights contending that the reduction of Floor Space Index due to the ancillary constructions proposed by the second respondent is a real and substantial loss of value which should be adequately compensated. On the above basis the claim was made on 27.1.2012. Since it was not considered so far, the writ petition has been filed.
6. The learned counsel appearing for the second respondent submitted that it is not disputed that constructions and ancillary structures for the CMRL Project will take away the frontage of the property leaving a small extent on the two sides. He contended that the grievance of the petitioner will be considered and it will be properly addressed as may be directed by this Court. It is admitted by the counsel for the second respondent that the further ancillary construction to the main project namely, CMRL will reduce the frontage of the property and thereby it will reduce the Floor Space Index eligibility of the petitioner. The claim of the petitioner requires to be considered in the light of the proportionate fall in the value of the property consequent to reduction of FSI. To that extent the authority is bound to consider the bona fide claim of the petitioner on merits.
7. The petitioner's request is made in terms of Section 23 of the Land Acquisition Act and in terms of the Development Regulations for Chennai Metropolitan Area and the authorities are bound to consider the same in the light of the said provisions. The petitioners have parted with valuable land for the development project for a public purpose. The Regulation in order to compensate and balance the equities are giving Transferable Development Rights. The same is provided in Regulation 9 of Development Regulations framed for Chennai Metropolitan Area. Regulation 9 reads as follows:-
9. Transferable Development Rights:
[1] In certain circumstances, the development potential of the whole or a part of the plot/site may be separated from the land itself and may be made available to the land owner in the form of Transferable Development Rights (TDR) excepting in the case of existing or retention users, or any compulsory reservation of space for public purpose or recreational use or EWS/social housing etc., in the cases of subdivisions/layouts/special buildings/group developments/multi-storeyed buildings or such other developments prescribed in these Development Regulations.
[2] Transferable Development Rights (TDR) shall apply to cases, where a private land is required for:-
(i) any road widening/new road formation as proposed in the Master Plan or DDP,
(ii) any traffic and transport infrastructure development such as bus stops/stands, metro rail, MRTS etc.
(iii) any urban infrastructure development such as water supply, sewerage, drainage, electricity, education, health, notified by the State Government Department or Government Agency or local body.
[3] These rights may be made available and be subject to the regulations given in Annexure XXI.
[4] The Chennai Metropolitan Development Authority may formulate necessary guidelines and decide on the principles including parameters to be followed for the purpose of implementing the transfer of Development Rights (TDR) subject to the regulations given in Annexure XXI.
Provided that in cases of slum (including pavement dwellers) rehabilitation schemes on private lands executed by a private developer/society/NGO, the award of TDR for FSI may be considered subject to such guidelines and conditions as may be decided by the Government. The petitioner's plea is based on the above provision of law which requires compensation for loss in the development potential of the whole or a part.
8. Learned counsel for the second respondent prays for time to consider the petitioner's claim for grant of Transferable Development Rights provided under the Regulation 9 as above by considering the petitioner's plea for compensation or Transferable Development Rights.
9. The petitioner's plea for compensation in the nature of Transferable Development Rights on the face of it is justified as could be seen from the language of Rule 9(1) of the Development Control Rules. The development of the balance extent of petitioner's land is affected by the acquisition of the front portion. This plea is also made on empirical basis, If the land is kept open or vacant, it may not affect the petitioner. However, in this case, the entry and exit is reduced due to further development and that has consequently affected the Development Rights of the petitioner to a great extent resulting in loss apparent. The respondents are bound to consider the claim as above.
10. In the result, the second respondent is directed to consider the petitioner's claim for grant of regulation based or equitable compensation in the nature of Transferable Development Rights in so far as it is relatable to the loss of Floor Space Index due to reduction in frontage consequent to the ancillary constructions in the acquired land as proposed by the second respondent. The proposal shall be forwarded to the third respondent so as to enable the third respondent to issue Transferable Development Rights as applicable. It is desirable that the second respondent should complete such exercise within a period of six weeks from the date of receipt of a copy of this order and the third respondent shall thereafter pass appropriate final orders within a period of four weeks.
11. The Writ Petition is disposed of on the above terms. No costs. Consequently, M.P.No.1 of 2012 is closed.
Index: No 2.8.2012
Internet: Yes
Office to note:-
"Issue copy on or before 28.8.2012"
gr/ts
To
1.The Secretary to Government,
Department of Revenue,
Fort St. George,
Chennai 600 009.
2.The Managing Director,
Chennai Metro Rail Limited,
Harini Towers,
No.7, Conran Smith Road,
Gopalapuram,
Chennai-600 086.
3.The Member Secretary,
Chennai Metropolitan
Development Authority Ltd.,
Thalamuthu Natarajan Building,
No.1, Gandhi Irwin Road,
Egmore,
Chennai-600 008.
R.SUDHAKAR,J.
ts.
Order in
W.P.No.21095 of 2012
Date 2.8.2012