Madras High Court
A.K. Kader Kutty And Paramadevi Goyal vs Commissioner & Secretary To ... on 14 November, 2002
Equivalent citations: (2003)1MLJ359
Author: P.K. Misra
Bench: P.K. Misra
ORDER P.K. Misra, J.
1. Heard the learned counsels appearing for the parties. In this writ petition, the petitioner has prayed for quashing a portion of the order dated 6.11.1998 in G.O.Ms. No. 413 where under the petitioners had been called upon to furnish a bank guarantee at the rate of Rs. 300/- per sq. ft.
2. The facts giving rise to the present writ petition are as follows :-
The petitioners had submitted a building plan before CMDA, the respondent No. 2, for construction of a multi-storeyed building. Certain objections were raised inter alia indicating that Floor Space Index was more than the permissible limit and the provision of car parking was less than the required limit. Ultimately the matter was carried in appeal before the respondent No. 1. The appeal was disposed of on 6.11.1998 where under the following observations were made :-
" . . 3. The Government have examined the appeal petition carefully. According to Development Control rules, the "Minimum extent of site for construction of Multi-storeyed building shall not be less than 1500 sq.mtr. and shall either be abutting on a Street not less than 18 metres in width or gain a passage of not less than 18 meters in width". Also for a site which abutts a road width exceeding 27m the site extent should not be less than 2500 Sq. metres. In this case the site extent is 2233.3M2 less by 266.7M2. The Government consider that there is no harm in allowing an muti-storeyed building on a ground extent of 2233.3 sq. metre eventhough it abutts a road (Anna Salai) exceeding 27M2 in view of the minimum site extent of 1500 sq.mtr prescribed for multi-storeyed building. Again in their letter dated 20.3.98 the appellant stated that they have proposed to provide Car Parking in Ground floor and in first floor which is in between Ground floor and first Floor in addition to the available space in set backs. The provision of Car parking above or below ground floor level is allowed as per Rule 3, under Part II of Annexure XIII of Development Control Rules. The area of first floor as basement floor exclusively reserved for car parking under rule 20 of Development Control Rules is excluded from Floor space index. The floor space index worked out is 2.69 which is less than the allowed floor space index of 2.75 as the total plinth area of Ground + stilt + 20 floors covers an area of 6014 Sq.mtr. The coverage achieved is only 28.50% and the overall floor to be constructed is Basement + Ground + Stilt + 10 floor. The car parking in stilt floor is reported to be effected by mechanically operated car lifts, a new venture in Chennai City. for keeping this stilt floor for car parking alone, it has been decided to collect a bank guarantee of Rs.300/- per sq.ft. The floor space index violation and the Car parking violation reported by the Chennai Metropolitan Development Authority in its refusal order do not arise. Of the 46 car parking space required for the overall space of 6014 sq.metre 28 cars in the set back, 10 cars in basement floor and 8 cars in stilt floor can be parked.
4. In view of the above findings and in view of the minimum site extent of 1500 Sq.m. required for multi-storeyed building, the Government allow the appeal by relaxing 265.7 sq.mt. of site extent for the proposed construction in R.S. No. 7414/3 and 5 Block No. 28, Door No.554 and 555, Anna Salai, subject to the condition that the appellant should produce the bank guarantee at the rate of Rs. 300/- per sq.ft. for parking cars in stilt floor before submitting Plan and other evidences for planning permission to Chennai Metropolitan Development Authority. . . ."
The petitioners are only aggrieved by the portion of the order whereunder the Government has directed " it has been decided to collect a bank guarantee of Rs. 300/- per sq.ft.". This direction regarding furnishing bank guarantee is being challenged.
3. Counter affidavits have been filed on behalf of the State as well as on behalf of C.M.D.A. In the counter affidavits it has been stated that the Government is empowered to impose any condition while granting exemption.
Section 113 of the Tamil Nadu Town and Country Planning Act, 1971 is as follows :-
" 113. Notwithstanding anything contained in this Act, the Government may, subject to such conditions as they deem fit, by notification, exempt any land or building or class of lands or buildings from all or any of the provisions of this act or rules or regulations made thereunder."
4. Learned counsel for the petitioners has submitted that imposing a condition as contemplated under Section 113 would arise only where the Government exempts any land or building from all or any of the provisions of the Act or rules or regulations made under the Act. He has submitted that in the present case the Government has purported to impose the condition of furnishing a bank guarantee for permitting the petitioners to have car parking space in the first floor. According to the Government Order, there is no prohibition in the building regulation prohibiting the person from having car parking area in the first floor. Learned counsel for the petitioners, therefore, submits that when the Government itself is of the opinion that the building regulations do not prohibit construction of car parking area in the first floor, the question of imposing condition for any purported exemption does not arise.
5. There cannot be any dispute that the question of grant of exemption would arise only when particular rule or regulation prohibits a person from doing any particular thing. If the rules permit a particular action, the question of granting exemption does not arise.
6. The Development Control Rules for CMDA contains the building regulations. Rule 20 of the aforesaid Rules relate to car parking. It provides :-
" 20. Parking :- The requirements of parking shall be regulated according to the particular uses to which the building or premises is used in accordance with standards specified in Annexure XIII."
Annexure XIII as referred to in Rule 20 of the aforesaid Rules prescribes car parking standard as contemplated in Rule 20. Paragraph 3 in Part II relates to Head Room and it is as follows :-
" 3. Head Room :- In those parts of a building (above or below ground floor level) used or intended to be used for the parking of wheeled vehicles, the minimum clear height to such part of the building shall be not less than 2.4m. For lorry parking the minimum heads room shall be 3.5m."
The Government has referred to this provision in paragraph 3 and observed that there is no prohibition for having car parking in the first floor. The aforesaid conclusion of the Government is also buttressed by the provisions contained in Part III of Annexure XIII. Part III relates to Multi level Parking. In respect of number of storeys permissible, there is no prohibition in Part III.
7. It is not disputed that for calculation of Floor Space Index, the area required for car parking is to be excluded and accordingly the Government has also so calculated and observed that floor space index is within the permissible limit.
8. Section 113 which is already noticed, makes it clear that when the Government decides to exempt from applicability of certain provisions, rules or regulations, the Government may impose certain conditions as deemed fit and proper. In the present case, the condition imposed is expressly for the purpose of having car parking in first floor. Since in the opinion of the Government (and justifiably so) there is no prohibition to have car parking in first floor, there is no question of granting any exemption or imposing any condition.
9. Learned counsel appearing for the first respondent has submitted that by letter dated 30.4.1996 the petitioners had pointed out that they were agreeable to furnish bank guarantee, but wanted sometime and cannot be permitted to take a different stand at a later stage. It is to be noticed that respondent No. 2 had turned down the offer by stating that even if car parking is provided in first floor it would be calculated for the purpose of floor space index, which necessitated the filing of appeal before the Government. So, the question of pinning down the petitioners to the letter dated 30.4.1996 at this stage does not arise. Moreover, when the imposition of a particular condition is not contemplated in law and not within the jurisdiction of the Government, the Government cannot insist upon compliance of such illegal condition. The question of estoppel does not arise as there is nothing to show that the respondents have acted to their detriment on the basis of such representation nor the petitioner has derived any particular benefit.
10. Learned counsel for the respondent No. 2 has also submitted that even though the petitioners have indicated that they would be using the first floor for car parking, subsequently after completion of the building, the petitioners might convert it for any profitable use and for the aforesaid purpose the bank guarantee should be furnished by the petitioners. Such apprehension is misplaced and the submission is unjustified. Apart from the fact that the security deposit made by the petitioners can be forfeited, it would be always open to CMDA, the respondent No. 2, to take appropriate action against the petitioners if there is violation of any building regulation or sanctioned plan. Moreover, the learned counsel for the petitioners has submitted that the petitioners are prepared to file an undertaking in the shape of affidavit in this Court undertaking that the first floor shall be used as car parking and at any point of time it would be used for any other purpose. The aforesaid affidavit may be filed within a period of one week from today.
11. In view of the above, the writ petition is allowed and the portion of the order passed by the Government calling upon the petitioners to furnish bank guarantee at the rate of Rs. 300/- per sq.ft for car parking in the first floor is quashed. The respondent No.2 is directed to issue planning permission, subject to any other formalities, within a period of six weeks from the date of receipt of a copy of the order. There would be no order as to costs.