Madras High Court
Akshaya Signature Homes Private ... vs State Of Tamil Nadu on 29 September, 2021
W.P. No.43571 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.09.2021
CORAM:
THE HONOURABLE MR. JUSTICE N.ANAND VENKATESH
W.P. No.43571 of 2016
and W.M.P. No.37399 of 2016
Akshaya Signature Homes Private Limited
Rep. by its Authorized Signatory, Mr.J.Ravi
G Square, 4th Floor,
46, Rajiv Gandhi Salai (Old Mahabalipuram Road)
Kandanchavadi
Chennai – 600 096 ...Petitioner
Vs.
1.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.
3.The Director of Town & Country Planning,
807, Anna Salai,
Chennai – 600 002. ...Respondents
PRAYER: Writ petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus, calling for the records
of the 1st respondent, comprising of the letter dated 17.06.2016 issued
by the 1st respondent to the 2nd respondent, and the consequential
https://www.mhc.tn.gov.in/judis/
1 of 14
W.P. No.43571 of 2016
demand letter dated 30.06.2016 issued by the 2nd respondent to the
petitioner raising a demand of Rs.5,72,20,000/- (Rupees Five Crores
Seventy Two Lakhs and Twenty Thousand only) towards premium FSI
charges, and to quash the same as illegal, unconstitutional & arbitrary,
and to consequently direct the 2nd respondent to refund the sum of
Rs.5,72,20,000/- paid to it by the petitioner in lieu of additional premium
FSI charges along with interest thereon at the commercial rate of interest
from the date of deposit till the date of refund.
For Petitioner : Mr.Sathish Parasaran
Senior Counsel for
Mr.R.Parthasarathy
For Respondents : Mr.A.Selvendiran
Government Advocate for R1 & R3
Mrs.P.Veena Suresh
Standing Counsel for R2
ORDER
This writ petition has been filed challenging the impugned letter
issued by the 1st respondent dated 17.06.2016 and consequential demand
letter dated 30.06.2016 issued by the 2nd respondent to the petitioner by
raising a demand of a sum of Rs.5,72,20,000/- payable towards premium
FSI charges and for a consequential direction to the 2nd respondent to
refund the amount that was paid by the petitioner towards premium FSI
charges.
2.Heard the learned counsel for the petitioner and the learned
https://www.mhc.tn.gov.in/judis/
2 of 14
W.P. No.43571 of 2016
counsel appearing on behalf of the respondents.
3.The case of the petitioner is that they wanted to develop a
property and initially they decided to put up a construction with 24
dwelling units and other amenities. This structure was proposed to be
developed in a built up area of 9326.21 sq.m. The petitioner made an
application on 17.04.2013 before the 2nd respondent seeking for planning
permission and other approvals.
4.The planning permission was granted by the 2nd respondent on
23.10.2014. The 2nd respondent while granting the approval, also granted
the petitioner the entitlement for a premium FSI for 9326.21 sq.m. The
petitioner made a payment of Rs.12,27,25,000/- towards the premium
FSI charges and the same was also acknowledged by the 2nd respondent
through receipt dated 12.06.2014.
5.The petitioner by taking into consideration the market conditions,
wanted to make the property more affordable and hence decided to file a
revision of the existing planning permission. Thereby, the petitioner
decided to build a residential building with 49 dwelling units in a reduced
built up area of 9314.59 sq.m. The petitioner applied for the revised
planning permit before the 2nd respondent. The 2nd respondent issued a
https://www.mhc.tn.gov.in/judis/
3 of 14
W.P. No.43571 of 2016
letter dated 27.01.2016 for getting the fresh guideline value for assessing
the premium FSI charges. The petitioner made a representation on
01.02.2016 to the 2nd respondent stating that there was no requirement
to obtain any fresh guideline value since the premium FSI that was
already granted earlier has vested with the petitioner and no additional
FSI has been sought for by the petitioner in the revised plan.
6.The representation given by the petitioner was not considered by
the 2nd respondent and the 2nd respondent proceeded to issue the demand
letter dated 30.06.2016 demanding additional premium FSI charges of a
sum of Rs.5,72,20,000/- The petitioner had no other alternative except to
make the payment since the development must go on. Therefore, the
petitioner made the payment without prejudice to their rights on
08.07.2016.
7.On receipt of the payment from the petitioner, the planning permit
was issued to the petitioner on 29.07.2016 and the building permission
was also granted by the Corporation of Chennai on 19.10.2016. Aggrieved
by the demand made by the respondents towards the additional premium
FSI charges of a sum of Rs.5,72,20,000/-, the present writ petition has
been filed before this Court.
https://www.mhc.tn.gov.in/judis/
4 of 14
W.P. No.43571 of 2016
8.A careful reading of the letter addressed by CMDA to the 1st
respondent through letter dated 15.03.2016 shows that there is a specific
reference made with regard to a similar claim that was raised for another
project that was developed by M/s.A.R. Property Developers and the same
being made a subject matter of challenge in W.P.No.30150 of 2014. It is
further mentioned in the letter that the matter has been heard by this
Court and it has been reserved for orders. It is therefore clear that the
respondents were aware that a similar demand that was made for the
payment of the additional premium FSI charges was already put to
question before this Court.
9.In view of the above, it becomes necessary for this Court to
consider as to what happened to this case which was referred to by
CMDA. At this juncture, the learned Senior Counsel appearing on behalf of
the petitioner submitted that final orders were passed in the said writ
petition and to substantiate the same, the learned Senior Counsel cited
the judgment in the case of M/s.A.R. Property Developers Private
Limited, Rep. by its Director N.Abdul Majeed, Anna Nagar West,
Chennai – 600 040 and other vs. The Secretary, Housing and
Urban Development (UD-1) Department, Government of Tamil
Nadu, Chennai – 600 009 and others reported in 2017 SCC Online
MAD 29959. The relevant portions in the said judgment are extracted
https://www.mhc.tn.gov.in/judis/
5 of 14
W.P. No.43571 of 2016
hereunder:
27. There is no dispute with regard to the submission of
an application by the petitioner on 25.08.2010 to CMDA for
the proposed construction of Block ‘A’ -Hotel building with
double basement floor+ ground floor plus 14 floors and Block
‘B’ - Basement floor stilt-ground floor +12 floors at Survey
Nos. 58/1B, 58/2A2 and 58/2A1B of Madhuravoil Village along
with required certificates.
28. The 1st respondent/Government granted its
approval to the recommendations of the MSB panel for
issuance of planning permission for the said project on
14.11.2011. As per the direction of the CMDA dated
05.12.2011, the petitioners remitted development charges
and other charges including the premium FSI charges for
premium FSI area of 6.717.61 Sq. Mts. on 07.12.2011 to the
tune of Rs. 4,34,00,000/ -. Consequently, CMDA approved the
petitioners' application on 04.01.2012. The Corporation of
Chennai gave building permit on 16.02.2012 to the petitioner.
Thereafter only the dispute arose.
29. The petitioners would contend that they commenced
Pile Foundation Work on 21.08.2012, whereas, the 2
respondent would contend that the said piling work is for
already approved plan. However, the Pile Load Testing report
dated 23.02.2013 given by Associated Pile Foundation would
reveal that the Piling was already completed. The petitioners
on 08.03.2012 filed an application for revised planning
https://www.mhc.tn.gov.in/judis/
6 of 14
W.P. No.43571 of 2016
permission by revising the earlier planning permit granted on
04.01.2012, which was also approved by the Government on
26.08.2013 as per the recommendations of the MSB panel for
revised planning permission to the petitioners. On 27.12.2013
CMDA directed the petitioners to remit the balance
development charges and balance security charges and other
charges. The petitioners paid the development charges and
the balance charges and produced receipts for the additional
development charges and other charges to the CMDA.
However, CMDA issued revised advice by directing the
petitioners to pay a sum of Rs. 13,94,06,500/- towards
balance premium FSI charges by including the premium FSI
area of 6.717.61 Sq. Mts.
30. Initially, by order dated 27.12.2013, revised
proposal was received and to process the said application, a
sum of Rs. 26,28,000/- was demanded and it was stated the
revised proposal is under consideration. Thereafter, the
impugned order has been passed directing the petitioners to
pay a sum of Rs. 13,94,06,500/- as balance premium FSI
charges, so as to process the planning permission and
directed the petitioners to surrender earlier approval plan that
was issued on 04.01.2012. As rightly pointed out by the
petitioners, the petitioners already got approval for premium
FSI of 6,717.61 Sq. Mts. [Equivalent land area of 2687.04 Sq.
Mts.] and paid a sum of Rs. 4,34,00,000/- on 07.12.2011 and
only additional premium FSI area of 1002 Sq. Mts. [Equivalent
land area of 400.8 Sq. Mts.] has to be charged additionally
and for charging additional FSI area of 1002 Sq. Mts alone,
the present guideline value to be taken into consideration.
https://www.mhc.tn.gov.in/judis/
7 of 14
W.P. No.43571 of 2016
However, the respondent CMDA took guideline value as on
the date of the revised plan even for the already approved FSI
area and directed the petitioners to pay a sum (calculated) of
Rs. 18,28,06,303.68 and deducting Rs. 4,34,00,000/-
directed the petitioners to pay a sum of Rs. 13,94,06,500/- as
balance premium FSI charges.
31. The application submitted by the petitioners is not a
fresh application as it is only an application to revise the
earlier approved plan by the CMDA. The guideline value which
was applicable on the date of the original application was
already taken and the approved plan was already granted on
04.01.2012. By revising and deleting the hotel project,
additional premium FSI area of 1002 Sq. Mts. only [Equivalent
land area of 400.8 Sq. Mts.] alone is added. If any additional
premium FSI has been added by virtue of revision, only for
the present additional area in view of revision, as on the date
of the revised application, the guideline value as on the date
of the revised application has to be calculated. In that event,
the petitioners have to pay a sum of Rs. 2,37,28,161, in the
following manner:—
Additional premium FSI area 1002 Sq. Mts.
Equivalent land area For the above premium FSI
area 400.8 Sq. Mts. Guideline value as indicated
by the Registration department
Rs. 5500 per Sq. Ft.
Amount payable for the additional premium
FSI area 400.8 Sq. Mts.
= Rs. 2,37,28,161/-
https://www.mhc.tn.gov.in/judis/
8 of 14
W.P. No.43571 of 2016
32. The amount demanded by the respondent CMDA
based on the impugned order is based on the present
guideline value for the premium area already approved. What
is required to be paid by the petitioners is the premium
charges towards additional premium FSI area only. In this
regard the judgment of the Hon'ble Supreme Court in the
case of Union of India v. Asian Food Industries reported in
(2006) 13 SCC 542, can be relied upon.
33. In that case, it has been held that by a policy
decision, the vested or accrued right cannot be taken away. If
at all it could have only prospective effect and not
retrospective effect. In this case, the petitioners had already
paid the premium FSI charges based on the guideline value as
on the date of the original application and therefore, the right
got accrued to the petitioner in respect of the approved and
premium FSI area. Therefore, the respondent CMDA has to
calculate premium FSI charges only with regard to additional
premium FSI area, which is equivalent to the value of 400.8
Sq. Mts. of land. To put it in other words, the additional
premium FSI area involved is 1002 Sq. Mts. of built up area.
Hence, there is no question of adopting the guideline value as
on the date of the application for revision for the entire
premium FSI area. It would amount to taking away the right
accrued to the petitioners by grant of approval for the original
premium FSI area. As per the original plan, pile work
foundation has already been completed and therefore the
original application has been acted upon. In view of that, the
reasonings given by the respondent CMDA that the
https://www.mhc.tn.gov.in/judis/
9 of 14
W.P. No.43571 of 2016
construction as per the earlier approval plan was not
commenced is not correct. In this regard, the pile load testing
report dated 22.02.2013 has been filed by the petitioners.
34. Though, the respondent CMDA has stated in the
impugned order that the subsequent application for revision is
a different one and it involves change in usage, namely, from
Hotel to residential and combined two (2) blocks into one,
thus, involving change of usage and plan in designing of the
proposed development, the application for revision of
approved plan cannot be considered as a different one. It is
only an additional construction altering the original plan. It
cannot be said alterations, additions etc., are not permissible
and there is no prohibition in this regard in any of the rules,
orders etc., In view of the same, Planning Permission
Approval (PPA) cannot be treated as a new proposal. When
the application for planning permission is not a new one, the
question of calculating the premium FSI charges for entire
area including already approved area based on the prevailing
market rate as on the date of the application for revision is
unjustified. The respondent CMDA cannot adopt the guideline
value as on the date of the application for revision and it
could be done only for the additional FSI area that would
result because of the revision.
35. The petitioners by paying the premium FSI charges
for 6,717.61 Sq. Mts. have acquired absolute right over the
property to an extent of 2687.044 Sq. Mts excepting the
additional premium FSI area to an extent of 1002 Sq. Mts.
Therefore, for the said area only, the new guideline has to be
https://www.mhc.tn.gov.in/judis/
10 of 14
W.P. No.43571 of 2016
taken and additional premium has to be determined. The
petitioners only sought to revise the approval in respect of the
original Block “A” by modifying its residential in line with Block
“B” which is as per original plan and the revised plan
continues to be residential. MSB panel already recommended
the revised proposal to the Government and the Government
also approved the same and it will go to show that the
application for revised planning permit could be treated as
revised proposal only and not as a new proposal. If it is so,
neither the MSB panel would have recommended nor the
Government would have approved the application for revised
planning permit.
10.It is clear from the above judgment that in no uncertain terms
this Court has held that the premium FSI charges that was already paid
and the same being granted, will stand vested with the petitioner and
additional premium FSI cannot be demanded unless any additional area is
sought to be utilised for the purpose of the development of the property
and the additional premium FSI will have to be confined only to the
additional area.
11.In the present case, the petitioner was originally planning to
construct 24 dwelling units in a built up area of 9326.21 sq.m. The
petitioner also paid premium FSI charges amounting to a sum of
Rs.12,27,25,000/-. Subsequently, the revision that was sought for by the
petitioner from the existing planning permission pertained to putting up
https://www.mhc.tn.gov.in/judis/
11 of 14
W.P. No.43571 of 2016
49 dwelling units and the same was to be constructed in a built up area of
9314.59 sq.m. There is no dispute with regard to these figures since it is
clearly seen from the communication made by the 2nd respondent.
Therefore, in the present case, there is no question of demanding for an
additional premium FSI since the petitioner is not putting up any
construction in any additional area and the fact remains that the total
area has actually come down from 9326.21 sq.m. to 9314.59 sq.m. In
view of the same, whatever premium FSI charges were already paid and
was granted to the petitioner and which right stood vested with the
petitioner, should have been utilized while granting the revised planning
permission. There was absolutely no authority for the respondents to have
demanded for the additional premium FSI charges of a sum of
Rs.5,72,20,000/- The judgment that was cited by the learned counsel for
the petitioner will squarely apply to the facts of the present case.
12.The petitioner had paid the additional premium FSI charges
without prejudice to their rights to question the same, since the petitioner
had to proceed further with the construction. Based on the same, the
planning permit and the building permission have been granted.
13.In view of the finding given by this Court that the respondents
do not have the authority or jurisdiction to demand for the additional
https://www.mhc.tn.gov.in/judis/
12 of 14
W.P. No.43571 of 2016
premium FSI charges, the payment made by the petitioner has to be
necessarily refunded to the petitioner.
14.In fine, the impugned letter dated 17.06.2010 issued by the 1st
respondent and the consequential demand letter dated 30.06.2016 issued
by the 2nd respondent to the petitioner by raising a demand of
Rs.5,72,20,000/- towards additional premium FSI charges, is hereby
quashed. There shall be a direction to the 2 nd respondent to refund the
sum of Rs.5,72,20,000/- to the petitioner, within a period of eight weeks
from the date of receipt of copy of this order.
15.In the result, this writ petition is allowed with the above
direction. No Costs. Consequently, connected miscellaneous petition is
closed.
29.09.2021
Index : Yes
Internet : Yes
ssr
To
1.The Secretary to Government,
State of Tamil Nadu,
Housing and Urban Development Department,
Secretariat, Fort St. George, Chennai – 600 009.
https://www.mhc.tn.gov.in/judis/
13 of 14
W.P. No.43571 of 2016
N.ANAND VENKATESH, J.,
ssr
2.The Chennai Metropolitan Development Authority,
Rep. by its Member Secretary,
Thalamuthu Natarajan Maaligai,
No.1, Gandhi Irwin Road,
Egmore, Chennai – 600 008.
3.The Director of Town & Country Planning,
807, Anna Salai,
Chennai – 600 002.
W.P. No.43571 of 2016
and W.M.P. No.37399 of 2016
29.09.2021
https://www.mhc.tn.gov.in/judis/
14 of 14
