Madras High Court
Hiranandani Palace Gardens Private … vs The State Of Tamil Nadu on 13 September, 2024
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
W.P.No.22755 of 2009 etc.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 23.08.2024
PRONOUNCED ON : 13.09.2024
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
W.P.Nos.22755, 22756, 22757, 23663, 24825, 24826, 25997 of 2009,
and 26803 of 2010 and 2963, 5602, 5720, 5721, 8278, 10701, 12226,
12365, 12834, 13053, 14259, 14364, 19435, 26436, 28642, 30161 of
2011 and 2314, 6978, 7128, 8164, 11216, 21892, 30114, 31598, 33711,
33750 of 2012 and 551, 1541, 5020, 15054 of 2013 and 10998, 12184,
12185, 19041 of 2014 and 29148 of 2016
& M.P.Nos.1 of 2009, 2 of 2009 (2 Nos.), 3 of 2009, 1 of 2010
1 of 2011(10 Nos.), 2 of 2011 (9 Nos.), 3 of 2011 (2 Nos.)
1 of 2012 (8 Nos.) 2 of 2012 (5 Nos.) 3 of 2012
1 of 2013 (8 Nos.) 2 of 2013 (2 Nos.) and 1 of 2014 (3 Nos.)
& W.M.P.Nos. 25192, 25193 of 2016 and 37287 of 2017 and 37577 of
2018 and 29784, 26788 & 26790 of 2024
W.P.No.22755 of 2009 :-
Hiranandani Palace Gardens Private Limited
Rep by its Vice President – Legal and Liaison,
Vahid Mirza
Sigma, 6th Floor, Technology Street,
Hiranandani Garden, Powai,
Mumbai – 400 0076. ... Petitioner
-Vs-
1. The State of Tamil Nadu,
Rep. by the Chief Secretary,
Government of Tamil Nadu,
Secretariat, Fort St. George,
Chennai – 600 009.
2. The Secretary to Government,
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W.P.No.22755 of 2009 etc.
Housing and Urban Development Department,
Government of Tamil Nadu,
Secretariat, Fort St. George,
Chennai – 600 009.
3. The Chennai Metropolitan Development Authority,
Rep by its Member Secretary,
Thalamuthu Natarajan Malligai,
No.8, Gandhi Irwin Road,
Chennai – 600 008.
4. The Director of Town & Country Planning,
807, Anna Salai, Chennai – 600 002.
5. The Chennai Metropolitan Water
Supply and Sewerage Board,
Rep. by its Managing Director,
No.1, Pumping Station Road,
Chennai .
6. The Deputy Director,
The Director of Town Planning,
Chenglepet Region,
131, GST Road,
Chenglepet.
7. The President, Appur Panchayat,
Senthamangalam Village,
Dist Kanchepuram,
Chengalpet Taluk,
8. Kundrathur Panchayat,
Bathawadi Village,
Kanchepuram District,
Sriperumbadur Taluk,
Tamil Nadu.
9. Kundrathur Panchayat,
Vadakapattu Village,
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W.P.No.22755 of 2009 etc.
Kancheepuram District,
Sriperumbadur Taluk,
Tamil Nadu.
10. Oriental Bank of Commerce,
Powai Branch,
Mumbai – 400 076. ...Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Certiorari, calling for the records of the
communication of the fourth respondent bearing ROC.No.1593/2007/
BA2 dated 11.07.2007, quash the same.
For Petitioner : Mr.Jayesh B.Dolia, Senior Counsel
For M/s.Aiyar & Dolia
For Respondents
For R1, 2, 4 & 6 : Mr.J.Ravindran
Additional Advocate General
Assisted by Mr.V.Manoharan
Additional Government Pleader
For R3 & 5 : Mr.P.Kumaresan
Additional Advocate General
Assisted by Ms.P.Veena Suresh
Standing Counsel for CMDA
COMMON ORDER
Some of the writ petitions have been filed challenging the provision
under Rule 1(2) of the Town and Country Planning (Levy of
Infrastructure and Amenity Charges) Rules, 2008 (hereinafter referred to
as ‘the Rules’); some of the writ petitions have been filed challenging the
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W.P.No.22755 of 2009 etc.
demand thereby levying infrastructure and amenity charges; some of the
writ petitions have been filed challenging demand notice thereby directed
the petitioner to pay additional infrastructure and amenity charges as per
Rule 1(2) of the Rules.
2. The issues involved in all these writ petitions are similar in
nature and therefore this Court is inclined to pass a common order.
3. Facts of the case :-
3.1. The petitioners owned their respective lands and submitted
application seeking approval for the proposed development. On receipt of
the applications for approval, the Executive Officer of the respective
municipalities issued no objection and observed that permission for
construction would be granted only after obtaining the approval from the
Directorate of Town and Country Planning. Thereafter, the Executive
Officer of the respective municipalities forwarded the documents
pertaining to the applications submitted by the petitioners for approval
along with no objection resolution to the Directorate of Town and
Country Planning, Chennai. On receipt of the same, the petitioner was
directed to deposit some amount towards centage charges. It is the final
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W.P.No.22755 of 2009 etc.step in the process and procedure for granting the approval. While being
so, the Directorate of Town and Country Planning issued notice thereby
demanded the petitioners to pay infrastructure and basic amenities
charges within a period of thirty days.
3.2. The government introduced the levy of Infrastructure and
Basic Amenities Charges (hereinafter referred to as ‘I&A charges’) for the
first time and issued government order in G.O.Ms.No.191 Housing and
Urban Development Department dated 01.06.2007. Some of the
petitioners had challenged the said government order in W.P.No.22744 of
2007 etc., batch and obtained interim order of stay. However, the said
writ petitions were disposed by an order dated 02.01.2008 by observing
that the said government order in G.O.Ms.No.191 dated 01.06.2007 has
been incorporated in the Tamil Nadu Town and Country Planning Act, by
amendment and nothing survives in those writ petitions.
3.3. In the meanwhile, though the petitioners had already paid
requisite fee, their applications for approval were pending, since the
government order in G.O.Ms.No.191 dated 01.06.2007 was under
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W.P.No.22755 of 2009 etc.challenge. Thereafter, the petitioners were granted approval for their
respective proposed development incorporating certain special conditions
subject to out come of the writ petitions challenging the government order
in G.O.Ms.No.191 dated 01.06.2007. In fact, in some of the cases, after
the approval the government passed order in G.O.Ms.No.191 dated
01.06.2007. Thereafter, once again the petitioners were directed to
submit certain documents as per the special conditions. Accordingly, the
petitioners submitted documents and also executed gift deed in favour of
the respective municipalities, in respect of open space reservation land.
Thereafter, the petitioners were given approval with condition regarding
I&A charges as per the government order in G.O.Ms.No.191 dated
01.06.2007, on the out come of the writ petitions along with other
conditions.
3.4. Thereafter, the petitioners were issued demand notice
towards I&A charges, as per the government order in G.O.Ms.No.84
Housing and Urban Development Department dated 08.04.2008 and
directed to remit the said demand amount within a period of fifteen days
failing which the final approval granted would be cancelled. Though the
petitioners submitted explanation explaining the situation that they had
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applied for approval long back and in fact, after granting of approval, the
government order was passed to levy I&A charges. Without considering
the same, the approval was cancelled and directed to treat the
constructions which were already made as unauthorised one and also to
take further action. Further instructed that the electricity service
connection should be disconnected. By another communication, if the
I&A charges have not been paid, the approval will be cancelled and
consequently proceedings will be initiated as per the provisions under
Sections 56(1)(c) and 57 of the Tamil Nadu Town and Country Planing
Act, 1971.
4. Background of the Case :-
4.1. Initially, I&A charges were levied by the government order
in G.O.Ms.No.191 Housing and Urban Development Department dated
01.06.2007. However, it was challenged before this Court in several writ
petitions and this Court granted interim order. Thereafter, the amendment
was brought to the Tamil Nadu Town and Country Planning Act vide
Amendment Act No. 34 of 2007. In view of the said amendment, all the
writ petitions were closed and granted liberty to seek appropriate remedy
under the new Act.
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W.P.No.22755 of 2009 etc.
4.2. Further though the Amendment Act viz., Act 34 of 2007
came into force with effect from 01.06.2007 and Section 3 of the
Amendment Act validates the levy or collection between 01.06.2007 and
the date of publication of gazettee dated 12.11.2007, the said validation
section will not have the effect of validating the demand of I&A charges.
It stipulates that the rates as determined in accordance with such
procedure as may be prescribed. The rates were not prescribed on the
date of demand for I&A charges. Further Rules framed under Section 122
r/w Section 63B of the Act vide G.O.Ms.No.22 Housing and Urban
Development Department dated 25.01.2008 viz., Tamil Nadu Town and
Country Planning (Levy of Infrastructure and Amenities Charges) Rules,
2008 and the same was published in the official gazette on 26.01.2008.
sub clause 2 of Rule 1 of the Rules states that the Rules are deemed to
have come into force on 12.11.2007. Therefore, the said Rule 1(2) of the
Tamil Nadu Town and Country Planning (Levy of Infrastructure and
Amenities Charges) Rules, 2008, is under challenge in one set of writ
petitions. In other set of writ petitions, the levy of infrastructure and
amenities charges by demand notice is under challenge.
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W.P.No.22755 of 2009 etc.
5. Petitioners’ Counsel submission:-
5.1. The respective learned counsel and the learned Senior
Counsel appearing for the petitioners submitted that as per the provision
under Section 123 of the Act, the rules came into force only from the date
of publication in the official gazette i.e., on 26.01.2008 or such other
particular date as expressed which can only be a date in future to the date
of publication. The rules cannot be given retrospective operation unless,
otherwise specifically sanctioned by the provisions of the Act. In the
absence of any procedure being prescribed on the date of coming into
effect of the Act, prescription in Section 3 of the Act for the validation of
action prior to coming in to force of the procedure by making appropriate
rules cannot be done as the same would continue the prescription under
Section 63 B of the Act.
5.2. They further submitted that neither the Act nor the Rules,
confer power to cancel the approval which was already given and it
cannot declare the constructions which were already made as an
unauthorized one and cannot initiate action under Section 56(1)(c) and
57 of the Act. Therefore, the provision under Section 63B of the Act, the
Rules cannot be enforced before it came into effect. Therefore, the levy of
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W.P.No.22755 of 2009 etc.infrastructure and basic amenities charges either on the basis of
government orders or on the basis of Section 63B of the Act is illegal,
arbitrary and colourable exercise of power.
5.3. Originally, the petitioners were demanded to pay I&A
charges on the basis of G.O.Ms.No.191 Housing and Urban Development
Department dated 01.06.2007. After Amendment Rules, the government
passed government order in G.O.Ms.No.84 Housing and Urban
Development Department dated 08.04.2008 stating that the
G.O.Ms.No.84 is presently applicable. Finally the government passed
order in G.O.Ms.No.161 Housing and Urban Development Department
dated 09.09.2009 and accordingly made demand to pay the I&A charges.
Therefore, the demand made subsequently, after granting approval that
too on the basis of the subsequent government orders, which are illegal,
unjust and arbitrary. Further the non-payment of I&A charges, the
approval was cancelled and also directed to initiate proceeding under
Section 56(1)(c) and 57 of the Act. Therefore, it cannot be sustained and
liable to be quashed.
6. Respondents’ contention :-
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W.P.No.22755 of 2009 etc.6.1. Per contra, the respondents filed counter and the learned
Additional Advocate General appearing for the respondents submitted
that in pursuant to the amendment of Section 63B of the Act, the
government passed various government orders prescribing the rates as
well as modalities of payment of I&A charges. Accordingly, revised rates
shall take into effect from the date of order. By another government
order, earlier government order stands cancelled and no modification is
necessary. Finally, the government passed order in G.O.Ms.No.161
Housing and Urban Development Department dated 09.09.2009, thereby
directed that the minimum and maximum rates prescribed in Rule 4 of
the Rules shall be done away with. It prescribes the amended rates
payable per square meter as the I&A charges for different categories of
building in different areas.
6.2. According to Section 63B of the Act, before issuing planning
permission I&A charges should be levied on the building proposal and
the process of planning permission is completed after receiving relevant
charges. Therefore, the demand was made based on the prevailing
government order, which was issued after technical approval. Therefore,
a revised and modified demand was issued for the balance I&A charges
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W.P.No.22755 of 2009 etc.with interest, which exists at the time of technical approval. Non-payment
of I&A charges in full may cause cancellation of issued planning
permission and the development deems to be unauthorized one and as per
Sections 56 & 57 of the Act, sealing process may be initiated. Therefore,
the provisions of the Act and the Rules are constitutional and legal.
6.3. Accordingly, the petitioners were issued revised demand for
collection of I&A charges. The Directorate of Town and Country
Planning by its circular dated 14.01.2011, stated that I&A charges will be
collected as per the government orders and circular issued and one in
force at that time. Further it was clarified by the Secretary, Housing and
Urban Development, by its letter dated 22.06.2011 that, the rate of I&A
charges applicable as on the date of issue of technical clearance and it
shall be levied.
6.4. He further submitted that a challenge was made as against
the government order in G.O.Ms.No.191 Housing and Urban
Development Department dated 01.06.2007, by way of several writ
petitions and the same were dismissed by this Court thereby upholding
the government order in G.O.Ms.No.191 Housing and Urban
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W.P.No.22755 of 2009 etc.Development Department dated 01.06.2007. Thereafter amendment
brought into the Act by giving retrospective effect and it is legally valid
and maintainable. He also produced a statement showing the details
regarding the balance amount of I&A charges to be paid by the
petitioners at the time of granting planning permission for their respective
planning permission.
7. Heard the learned counsel appearing on either side and
perused the materials placed before this Court.
8. These writ petitions can be considered under the following
four categories in lieu of its respective challenge:-
(a) Some of the petitioners challenged the provisions of the Act,
Rules and Government Orders.
(b) Some of the petitioners challenged the demand of I&A charges.
(c) Some of the petitioners have challenged the additional demand
of I&A charges on the subsequent Government Orders.
(d) Some of the writ petitioners disputed the classification of
building and challenged the demand of I&A charges.
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W.P.No.22755 of 2009 etc.
9. On the submission made by the learned counsel appearing
on either side and on perusal of the documents and counters affidavits,
the following points are arose for consideration :-
(i) Whether the demand for I&A charges prior to the date of
gazette publication of the Rules is justifiable?
(ii) Whether the demand of additional I&A charges based on the
subsequent government orders can be sustainable after the cut-off date
for applicable demand of I&A charges?
(iii) Whether the local or planning authority empowers to revise the
final assessment by demanding, higher rate applying earlier government
order?
(iv) Whether the local or planning authority has power to revise the
I&A charges?
10. Point No.(i) :-
10.1. The Government of Tamil Nadu levied I&A charges by
issuing several government orders. While being so, by the Act 34 of 2001
which came into force with effect from 01.06.2007, inserted Section 63B
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W.P.No.22755 of 2009 etc.to the Act, thereby empowering local or planning authority to levy and
collect I&A charges while according building permission. Accordingly,
the right to levy and collection of I&A charges are to be in accordance
with such procedure as may be prescribed.
10.2. Thereafter, the government of Tamil Nadu in exercise of
powers conferred under Section 122 (2) Clause (bb) r/w Section 63B of
the Act framed rules under G.O.Ms.No.22 Housing and Urban
Development Department dated 25.01.2008, which was published in
gazette on 26.01.2008 called the Tamil Nadu Town and Country
Planning (Levy of Infrastructure and Amenity Charges) Rules, 2008.
Though the Rule was framed on 25.01.2008 and published in
government gazette on 26.01.2008, as per the Rule 1(2) of the Rules,
stated that the Rules shall be deemed to have come into force on
12.11.2007. Therefore, retrospective application of the Rules with effect
from 12.11.2007 is not justifiable and ultra-vires the Act and power
vested with the government. Though, the provision under Section 63B of
the Act speaks about levy of I&A charges, which was subject to such
procedure, as may be prescribed.
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W.P.No.22755 of 2009 etc.
10.3. Accordingly, the government prescribed by framing rules by
the government order in G.O.Ms.No.22 Housing and Urban Development
Department dated 25.01.2008 and the same was published on
26.01.2008. As per Rule 1(2) of the Rules, the Rules shall be deemed to
have come into force only from the date of publication in the official
gazette i.e., from 26.01.2008. As per Section 123 of the Act, the Rules
can come into force only from the date of publications in the official
gazettee or such other particular date which can only to be a date in
future to the date of publication. That apart, rules cannot be given
retrospective operation unless, otherwise specifically sanctioned by the
Act. In the absence of any procedure being prescribed on the date of
coming into effect of the Act, prescription in Section 3 of the Act, for the
validation of actions prior to coming to force of the procedure by making
appropriate rules cannot be done as the same would continue the
prescription in Section 63B of the Act.
10.4. In this regard the learned counsel appearing for the
petitioners relied upon the judgment of the Hon’ble Supreme Court of
India reported in (1972) 2 SCC 601 in the case of Hukam Chand Etc.,
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W.P.No.22755 of 2009 etc.
Vs. Union the India and ors., which held that if there is no provision in
the section which may either expressly or by necessary implication show
that the Central Government has been vested with power to make rules
with retrospective effect. The Central government would be acting in
excess of its power if it gave retrospective effect to any rule. Thus, it is
clear that unlike sovereign legislature which has power to enact laws with
retrospective operation, authority vested with the power of making
subordinate legislation has to act within the limits of its power and cannot
transgress the same. As stated supra, though the respondents were vested
with powers to make Rules, there is no provision which may either
expressly or necessary implication show that the respondents have been
vested power to make Rules with retrospective effect.
10.5. They also relied upon the judgment reported in (2015) 1
SCC 1 in the case of Commissioner of Income Tax (Central)-I, New
Delhi Vs. Vatika Township Private Limited, in which the Hon’ble
Supreme Court of India held as follows :-
“27. A legislation, be it a statutory Act or a
statutory Rule or a statutory Notification, may
physically consists of words printed on papers.https://www.mhc.tn.gov.in/judis
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W.P.No.22755 of 2009 etc.However, conceptually it is a great deal more than an
ordinary prose. There is a special peculiarity in the
mode of verbal communication by a legislation. A
legislation is not just a series of statements, such as one
finds in a work of fiction/non fiction or even in a
judgment of a court of law. There is a technique
required to draft a legislation as well as to understand
a legislation. Former technique is known as legislative
drafting and latter one is to be found in the various
principles of ‘Interpretation of Statutes’. Vis-à-vis
ordinary prose, a legislation differs in its provenance,
lay-out and features as also in the implication as to its
meaning that arise by presumptions as to the intent of
the maker thereof.
28. Of the various rules guiding how a legislation
has to be interpreted, one established rule is that unless
a contrary intention appears, a legislation is presumed
not to be intended to have a retrospective operation.
The idea behind the rule is that a current law should
govern current activities. Law passed today cannot
apply to the events of the past. If we do something
today, we do it keeping in view the law of today and in
force and not tomorrow’s backward adjustment of it.
Our belief in the nature of the law is founded on the
bed rock that every human being is entitled to arrange
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W.P.No.22755 of 2009 etc.
his affairs by relying on the existing law and should not
find that his plans have been retrospectively upset. This
principle of law is known as lex prospicit non respicit :
law looks forward not backward. As was observed in
Phillips vs. Eyre[3], a retrospective legislation is
contrary to the general principle that legislation by
which the conduct of mankind is to be regulated when
introduced for the first time to deal with future acts
ought not to change the character of past transactions
carried on upon the faith of the then existing law.
29. The obvious basis of the principle against
retrospectivity is the principle of ‘fairness’, which must
be the basis of every legal rule as was observed in the
decision reported in L’Office Cherifien des Phosphates
v. Yamashita-Shinnihon Steamship Co.Ltd[4]. Thus,
legislations which modified accrued rights or which
impose obligations or impose new duties or attach a
new disability have to be treated as prospective unless
the legislative intent is clearly to give the enactment a
retrospective effect; unless the legislation is for
purpose of supplying an obvious omission in a former
legislation or to explain a former legislation. We need
not note the cornucopia of case law available on the
subject because aforesaid legal position clearly
emerges from the various decisions and this legalhttps://www.mhc.tn.gov.in/judis
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W.P.No.22755 of 2009 etc.position was conceded by the counsel for the parties. In
any case, we shall refer to few judgments containing
this dicta, a little later.
30. We would also like to point out, for the sake
of completeness, that where a benefit is conferred by a
legislation, the rule against a retrospective construction
is different. If a legislation confers a benefit on some
persons but without inflicting a corresponding
detriment on some other person or on the public
generally, and where to confer such benefit appears to
have been the legislators object, then the presumption
would be that such a legislation, giving it a purposive
construction, would warrant it to be given a
retrospective effect. This exactly is the justification to
treat procedural provisions as
retrospective. In Government of India & Ors. v. Indian
Tobacco Association[5], the doctrine of fairness was
held to be relevant factor to construe a statute
conferring a benefit, in the context of it to be given a
retrospective operation. The same doctrine of fairness,
to hold that a statute was retrospective in nature, was
applied in the case of Vijay v. State of Maharashtra &
Ors.[6] It was held that where a law is enacted for the
benefit of community as a whole, even in the absence of
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W.P.No.22755 of 2009 etc.in nature. However, we are confronted with any such
situation here.”Thus it is clear that the general principle concerned retrospective rules is
that unless a contrary intention appears, a legislation is presumed not to
be intended to have a retrospective operation. Therefore, the current law
should govern current activities.
10.6. They also relied upon another judgment of the Hon’ble
Supreme Court of India reported in (2017) 16 SCC 186 in the case of
Federation of India Mineral Industries and ors Vs. Union of India
and anr., which held as follows :-
“26. The power to give retrospective effect to
subordinate legislation whether in the form of rules or
regulations or notifications has been the subject matter
of discussion in several decisions rendered by this
Court and it is not necessary to deal with all of them –
indeed it may not even be possible to do so. It would
suffice if the principles laid down by some of these
decisions cited before us and relevant to our discussion
are culled out. These are obviously relatable to thehttps://www.mhc.tn.gov.in/judis
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W.P.No.22755 of 2009 etc.present set of cases and are not intended to lay down
the law for all cases of retrospective operation of
statutes or subordinate legislation. The relevant
principles are:
(i) The Central Government or the State
Government (or any other authority) cannot make a
subordinate legislation having retrospective effect
unless the parent statute, expressly or by necessary
implication, authorizes it to do so. (Hukum Chand
v.Union of India4 and Mahabir Vegetable Oils (P) Ltd.
v. State of Haryana).
(ii) Delegated legislation is ordinarily
prospective in nature and a right or a liability created
for the first time cannot be given retrospective effect.
(Panchi Devi v. State of Rajasthan).
(iii) As regards a subordinate legislation
concerning a fiscal statute, it would not be proper to
hold that in the absence of an express provision a
delegated authority can impose a tax or a fee. There is
no scope or any room for intendment in respect of a
compulsory exaction from a citizen. (Ahmedabad Urban
Development Authority v. Sharadkumar Jayantikumar
Pasawalla and State of Rajashtan v. Basant Agrotech
(India) Limited.).
27. A much more erudite, general and broad-
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W.P.No.22755 of 2009 etc.
based discussion on the subject is to be found in the
Constitution Bench decision in Commissioner of Income
Tax (Central) –I v. Vatika Township Private Limited and
we are obviously bound by the conclusions arrived at
therein. It is not at all necessary for us to repeat the
discussion and the conclusions arrived at by the
Constitution Bench in the view that we have taken
except to say that our conclusions do not depart from
the conclusions arrived at by the Constitution Bench.
28. On the facts before us, it is clear that Section
15 of the MMDR Act empowers the State Government to
make rules for regulating the grant of quarry leases,
mining leases or other mineral concessions in respect of
minor minerals and for purposes connected therewith.
This section does not specifically or by necessary
implication empower the State Government to frame any
rule with retrospective effect. Also, the MMDR Act does
not confer any specific power on the State Government
to fictionally create the DMF deeming it to be in
existence from a date earlier than the date of the
notification establishing the DMF. Therefore, it must
follow that under the provisions of the MMDR Act that
we are concerned with, no State Government has the
power to frame a rule with retrospective effect or to
create a deeming fiction, either specifically or by
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W.P.No.22755 of 2009 etc.
necessary intendment.
29. Similarly, Section 13 of the MMDR Act does
not confer any specific power on the Central
Government to frame any rule with retrospective
effect. Section 9B(5) and (6) read with clause (qqa)
inserted in Section 13(2) of the MMDR Act enable the
Central Government to make rules to provide for the
amount of payment to be made to the DMF established
by the State Government under Section 9B(1) of the
MMDR Act. None of these provisions confer any power
on the Central Government to require the holder of a
mining lease or a prospecting licence-cum-mining lease
to contribute to the DMF with retrospective effect.
Therefore, even the scope and extent of the rule making
power of the Central Government is limited.
30. In view of the position in law as explained
above and the factual position before us, the
notifications issued by the State Governments must be
understood to mean (assuming the DMF could not be
established with effect from 12th January, 2015 by a
notification issued on a later date) that the DMF was
established on the date of publication of each
notification. This is reflective of the further submission
of the learned Attorney General in Musaliar that was
not considered by the Constitution Bench. In our
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W.P.No.22755 of 2009 etc.
opinion this submission can be extrapolated to the facts
of the cases before us and if we do so, we find it well
taken. To the extent possible, the validity of a rule,
regulation or notification should be upheld. It is not
obligatory to declare any notification ultra vires the
rule making power of the State Government if its
validity can be saved without doing violence to the law.
In these cases, we are of opinion that it is not obligatory
to declare the notifications ultra vires the rule making
power of the State Governments to the extent of their
establishing the DMF from a retrospective date, since
we can save their validity by reading them as
operational from the date of their publication. In any
event, no prayer was made before us for striking down
the establishment of the DMF as such.
31. Therefore our answer to the first question is
that the DMFs were not established retrospectively even
though the notifications established them from a date
anterior to the date of the notifications – but not before
the date of the Ordinance. Assuming the DMFs were
established with retrospective effect from 12th January,
2015 it is of no consequence since the retrospective
establishment does not prejudicially affect the interests
of anybody (as will be seen later). In this view of the
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W.P.No.22755 of 2009 etc.
matter, the notifications do not violate the law laid
down in Musaliar and Vatika Township. Even otherwise,
their validity can be saved by reading them as
operational from the date of publication.”
Therefore, no retrospective effect unless parent Act expressly permit the
retrospective effect. The delegated legislation is ordinarily prospective in
nature and no retrospective effect can be given, in the absence of an
express provision. Accordingly, the point No.(i) is answered in favour
of the petitioners.
11. Point No.(ii):-
11.1. The minimum and maximum amount was required to be
stipulated under Section 63B of the Act and the local or planning
authorities were empowered to, on a case to case basis, fix the I&A
charges within the band width that may be stipulated. The Rules when
initially framed stipulated a minimum and a maximum rate which
subsequently has been done away with by the Government by stipulating
a uniform rate of infrastructure and amenity charges presumably to avoid
any favouritism to any particular developer. The purpose for demand of
infrastructure and amenity charges arise out of the stress that may be
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W.P.No.22755 of 2009 etc.caused for providing infrastructure facilities in a particular area when
development activities take place.
11.2. Hence, under Rule 7 of the Rules, an application was first
required to be made, receipt of which the local or planning authority is
required to issue notice upon the person, who is liable to make payment
of such infrastructure and amenity charges duly after calling for a report
from the concerned officer of the Planning Authority or the Local
Authority and determine whether or not and if so what infrastructure and
amenity charges was leviable in respect of the building proposed to be
constructed. Hence, the owner or occupier is first required to submit an
application under Forma A. Thereafter, the Assessing Officer under Rule
7 of the Rules is required to
(a) determine whether or not infrastructure and amenity charges
are leviable;
(b) on coming to such conclusion, determine the amount so
leviable.
He is required to do this after issuing a notice to the owner or occupier
under Form B calling for objections from the owner or occupier.
11.3. On receiving objections from the owner or occupier, the
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W.P.No.22755 of 2009 etc.
Assessing Officer is required under Rule 8 of the Rules to pass a final
assessment order of the infrastructure and amenity charges in Form C.
On receipt of the final assessment order under Rule 9, the owner or
occupier, as the case may be, is liable to make payment of the
infrastructure and amenity charges. In none of the cases, which are
subject matter of challenge before this Hon’ble Court, this procedure has
been followed. Admittedly in all the cases before this court when on an
application for development, a demand in Form C alone demanding the
infrastructure and amenity charges has been made and on payment of the
same, the planning/building permit is granted. In none of the cases, there
has been any application of mind by the Assessing Officer whether or not
the infrastructure and amenity charges are leviable.
11.4. Notwithstanding the fact that the procedure as stipulated
under Rules 7 to 9 of the Rules, have not been followed in any of the
cases, demands were made in the nature of final assessment based on the
applicable Government Order on the date of granting of planning
permit/building permit. In most of the case, the said amount has been
paid. Subsequently the local or planning authority after lapse of over 1½
years and 2 years have sought to revise this earlier assessment/demand by
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W.P.No.22755 of 2009 etc.
demanding a higher rate of infrastructure and amenity charges applying
an earlier Government Order on the pretext that there was some internal
technical clearance and such technical clearance date is to be reckoned.
11.5. In fact, the Act doesn’t empower the local or planning
authority to revise the I&A charges, once the assessment has been made.
As per the first demand, the same was in accordance with Form C
stipulating an interest of 6% if the amount was not paid in time. The
subsequent demand is without any authority or powers vested with the
local or planning authority with the Rules framed under the Act.
Therefore, the authorities do not have power to revise or review on the
final assessment has been made.
11.6. Without considering the same, appellate authority also
confirmed the revised assessment order. In fact, no person can put up
construction without building permission being granted by the authority.
Though the additional/revised demand have been made based on some
technical clearance at an earlier point of time, which is not in accordance
with the Act. A pragmatic consideration of the provision of Section 63B
of Act with the ground reality is to be reckoned. Without building
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W.P.No.22755 of 2009 etc.
permission or last of the permits require for putting up construction, no
person can put up construction. Any one is entitled to withdraw his
application at any point of time and hence the applicable time for levy
and assessment of I&A charges should be while granting building permit
or last of permits that are required for putting upon construction and not
any prior point of time.
11.7. That apart, the subsequent government orders have been
superseded the previous government order. While being so, the demand
made by the authority based on the earlier government order, which has
been superseded, is unsustainable. In most of the cases, while demanding
I&A charges at the first instant it was made on the then prevalent
government order. It is not permissible in law. Further neither t he Act
nor the Rules confer power on the respondents to cancel the approval
already granted and the construction which were already made is an
unauthorized construction and to initiate action under Section 56(1)(c)
and 57 of the Act. Therefore, in the absence of any provision in law to
take such action, the communications of the respondents are illegal,
arbitrary and colourable exercise of power.
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W.P.No.22755 of 2009 etc.
11.8. Insofar as the levy of I&A charges, as per the subsequent
government orders, are concerned the learned counsel appearing for the
petitioners relied upon the judgment reported in (2019) 15 SCC 212 in
the case of Chennai Metropolitan Development Authority Vs. Prestige
Estates Project Ltd., in which the Hon’ble Supreme Court of India held
as follows :-
”33. On 27 March 2012, while issuing a demand
notice to the respondent, it was made clear by the
appellant that the planning permission was still to be
issued. The submission of the application for
permission and the steps taken by the respondent to
comply with the conditions and the deposit of the
charges did not confer a vested right in the respondent
for the grant of planning permission. The grant of
planning permission would only ensue upon the
appellant crutinizing the application and determining
that the permissions which were sought were in
accordance with the development regulations and all
other planning requirements holding the field. Before
the planning permission was issued, the revised
charges for Premium FSI came to be enforced. Once the
revised charges came into force with effect from 1 April
2012, the respondent, as the applicant for planninghttps://www.mhc.tn.gov.in/judis
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W.P.No.22755 of 2009 etc.permission, was bound to pay the revised charges. As
on 1 April 2012, the respondent had no planning
permission in its favour. The submission of the
respondent that planning permission was issued in May
2012 evidently will not advance the case of the
respondent. The grant of any permission post the
revision of the Premium FSI charges would necessarily
be subject to the revised charges. Hence, in raising the
demand on the basis of the revised charges on 22
August 2012, the appellant was acting in accordance
with law.
34. The principle which we have adopted accords
with a consistent line of precedent of this Court. In
State of Tamil Nadu v Hind Stone11, Justice O
Chinnappa Reddy speaking for a Bench of two learned
judges of this Court, while interpreting the provisions
of Rule 2 (A) of the Mines and Minerals (Regulation
and Development) Act 1957 observed :
“13…While it is true that such applications
should be dealt with within a reasonable time, it cannot
on that account be said that the right to have an
application disposed of in a reasonable time clothes an
applicant for a lease with a right to have the
application disposed of on the basis of the rules in
force at the time of the making of the application. Nohttps://www.mhc.tn.gov.in/judis
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W.P.No.22755 of 2009 etc.one has a vested right to the grant or renewal of a lease
and none can claim a vested right to have an
application for the grant or renewal of a lease dealt
with in a particular way, by applying particular
provisions. In the absence of any vested rights in
anyone, an application for a lease has necessarily to be
dealt with according to the rules in force on the date of
the disposal of the application despite the fact that
there is a long delay since the making of the
application. We are, therefore, unable to accept the
submission of the learned counsel that applications for
the grant of renewal of leases made long prior to the
date of GOMs No. 1312 should be dealt with as if Rule
8-C did not exist.”
35. The same principle was followed by another
two judge Bench of this Court in Howrah Municipal
Corporation v Ganges Rope Co. Ltd., Justice D M
Dharmadhikari speaking for the court held :
“17…The statutory provisions regulating
sanction for construction within the municipal area are
intended to ensure proper administration of the area
and provide proper civic amenities to it. The paramount
considerations of regulatory provisions for construction
activities are public interest and convenience. On the
subject of seeking sanction for construction, no vestedhttps://www.mhc.tn.gov.in/judis
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W.P.No.22755 of 2009 etc.right can be claimed by any citizen divorced from
public interest or public convenience.”
This Court held that the provisions contained in
the Howrah Municipal Corporation Act 1980
contemplate an express sanction before a person can be
allowed to construct or erect a building. Hence, in
ordinary course, no vested right is created merely by
the submission of an application for sanction to
construct a building. Adverting to the decision in
Usman Gani J. Khatri of Bombay v Cantonment
Board13, the Court held thus:
“30. This Court, thus, has taken a view that the
Building Rules or Regulations prevailing at the time of
sanction would govern the subject of sanction and not
the Rules and Regulations existing on the date of
application for sanction.””11.9. Thus it is clear that the crucial date for determination of
applicable charges is the date on which the planning permission is
granted. Further building rules or regulations prevailing at the time of
sanction would govern the subject of sanction and not the rules and
regulations existing on the date of application for sanction. Further the
law for approval of the building planning would be the date on which the
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W.P.No.22755 of 2009 etc.approval is granted and not the date on which the plans are submitted.
11.10. As per the original demand of I&A charges, the petitioners
had paid amount and they were granted approval for their respective
construction on the basis of the prevalent government order.
Subsequently, the demand impugned in these writ petitions were issued
on the basis of the subsequent government order, which is not applicable
to the case of the petitioners. The subsequent government order has not
come into operation and therefore it would no applicability whatsoever
insofar as the approval which were granted before the government order.
Therefore, the subsequent demand of I&A charges is illegal, unjust and
arbitrary. Accordingly, the point No.(ii) is also answered in favour of
the petitioners.
12. Point No.(iii) & (iv):-
12.1. Some of the writ petitions have been filed challenging the
provisions under Section 63 B, C r/w Section 3 of the second amendment
Act and the Rules 4, 5, 7 and 9 of the Rules and subsequent government
orders in G.O.Ms.No.191 Housing and Urban Development Department
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W.P.No.22755 of 2009 etc.dated 01.06.2007 and G.O.Ms.No.161 Housing and Urban Development
Department dated 09.09.2009. In order to provide infrastructure like
international standard transport facility, new source of water supply
system, connecting sewerage and drainage to the trunk system, creation
of environment friendly atmosphere and other basic amenities, applying
the concept of “user pays”, the collection of I&A charges from the
developers has been envisaged under Section 63B of the Act. It is relevant
to extract the provision under Section 63B of Act as follows :-
“63-B. Levy of infrastructure and amenities
charges .-
(1) Every local authority or the planning
authority, as the case may be, while according building
permit under the relevant laws or according permission
under this Act, as the case may be, shall levy charges
on the institution of use or change of use of land or
building or development of any land or building in the
whole area or any part of the planning area so as to
meet the impact of development and for ensuring
sustainable development of urban and rural areas by
providing adequate infrastructure and basic amenities
at the rates as determined in accordance with such
procedure as may be prescribed which shall not be less
than minimum and not more than the maximum as mayhttps://www.mhc.tn.gov.in/judis
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W.P.No.22755 of 2009 etc.be prescribed, and different rates may be prescribed
for different parts of the planning area and for different
uses.
(2) The infrastructure and amenities charges
shall be leviable on any person who undertakes or
carries out any such development or institutes any use
or changes any such use.
(3) The collection of the infrastructure and
amenities charges shall be made in such manner as may
be prescribed.”12.2. In pursuant to the said provisions, various orders have been
passed by the government. The levy of I&A charges is to ensure
sustainable development leading to the formation of well planned urban
areas and growth centers, provision of adequate basic amenities. As
stated supra, it is necessary to provide funds by way of establishing an
Infrastructure and Amenities Fund with adequate source of revenue.
Therefore, the government issued order in G.O.Ms.No.191 Housing and
Urban Development Department dated 01.06.2007 for collection of I&A
charges. The different categories at rates are as follows :-
(i) Commercial and IT Buildings Rs.500/- per Sq.mt.
(ii) Multistoried Building Rs.1000/- per Sq.mt.
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(iii) Institutions Rs. 200/- per Sq.mt.
(iv) Industrial Use Rs. 300/- per Sq.mt.
It will be credited to Infrastructure and Amenities Fund to be operated
and maintained by the Director of Town and Country Planning.
12.3. Subsequently, the government passed order in
G.O.Ms.No.215 Housing and Urban Development Department dated
02.07.2007 and G.O.Ms.No.4 Housing and Urban Development
Department dated 04.01.2008, thereby ordered some modification.
Accordingly, 50% of the I&A charges shall be collected in the first
installment at the time of final decision on the application for grant of
planning permission and the second installment of 25% shall be collected
within the end of six months period from the date of issue of planning
permission and the third and final installment shall be collected within
one year from the date of payment of second installment or before issue
of completion certificate whichever is earlier.
12.4. Thereafter, the Government passed G.O.(Ms).No.22,
Housing and Urban Development Department, dated 25.01.2008,
whereby the Government, in exercise of its powers conferred under clause
(bb) of sub- section (2) of section 122 read with section 63-B of the Act,
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have framed the Tamil Nadu Town and Country Planning (Levy of
Infrastructure and Amenities charges) Rules, 2008. The Rule 2 (d) of the
Rules defines “infrastructure” as being “the sum of technical installations
and social institutions creating a basis for human activities. Specifically it
is the physical equipment needed to provide services such as transport,
power, water supply, sewerage, drainage, communications and access”.
12.5. Under Rule 4 of the Rules, it is stated that the Infrastructure
and Amenities Charges shall be collected for new constructions, additions
to existing constructions and change of use of existing building at the
rates not exceeding the maximum rates and not less than the minimum
rates in respect of different categories of building. It is therefore made
clear under the Rules that the I&A charges are payable only in respect of
multistoried buildings, commercial buildings, information technology
building, Group development, institutional buildings, industrial buildings
and special buildings which have been specifically defined under the
Rules. Any building not falling within the categories of buildings
mentioned under the Rule 4 of the Rules, will not be subject to
assessment of infrastructure and amenities charges.
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W.P.No.22755 of 2009 etc.
12.6. The modalities of payment of I&A charges as laid down in
G.O.(Ms).No.4, Housing and Urban Development Department, dated
04.01.2008 have also been reiterated in Rule 9 of the Rules. Rule 10 of
the Rules embodies the appeal provision stating that any person
aggrieved by the final assessment order of the planning authority or the
local authority under Rule 8 of the Rules may, within a period of 30 days
from the date on which the order was received by him, appeal against
such order to the Chennai Metropolitan Development Authority or to the
Director of Town and Country Planning, as the case may be. The second
proviso to Rule 10 of the Rules specifically states that no appeal shall be
entertained under the said rules, unless it is accompanied by a
satisfactory proof of payment of I&A charges admitted by the appellant
to be due or 50% of the assessed amount, whichever is higher.
12.7. Further by way of another order in G.O.(Ms). No.34,
Housing Urban Development (UD4(1)) Department, dated 08.02.2008,
the Government have directed that the applicants seeking planning
permission have to pay Initial amount at the rate Rs.100/- per Sq.mtr., as
I&A charges along with Indemnity Bond towards the payment of balance
of the charges before the issue of completion certificate as per the time
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W.P.No.22755 of 2009 etc.
schedule to be prescribed.
12.8. Thereafter by way of another order in G.O.(Ms). No.84,
Housing and Urban Development Department (UD-4) Department, dated
08.04.2008, the Government directed that the maximum and minimum
rates payable as per Rule 4 of the Rules and the modalities of I&A
charges as prescribed under Rule 9 of the Rules therein shall be
continued. The Government order also states that G.O.(Ms). No.34, dated
08.02.2008 stands cancelled and any modification prescribed as per G.O.
(Ms). No.34, dated 08.02.2008 is not necessary.
12.9. Thereafter by way of another order in G.O.(Ms).No.161,
Housing and Urban Development (UD-4) Department, dated 09.09.2009
the Government have directed that the minimum and maximum rates
prescribed In Rule 4 of the Rules shall be done away with. The said
government order further prescribes the amended rates payable per Sq.
mt., as I&A charges for different categories of building in different areas.
The government order specifically states that the revised rates shall take
effect from the date of the Government Order.
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W.P.No.22755 of 2009 etc.
12.10. That apart, the gap between the supply and demand in
urban infrastructure is increasing every year. To meet this demand, it is
necessary that the users of these services contribute to the creation of
infrastructure assets. Therefore, keeping in view the huge demand for
creation of infrastructure and the requirement of funds, Government
ordered that the Infrastructure and Amenities Charges shall be increased
by 50% of the present prevailing rates in Town and Country Planning
areas and CMDA areas, vide G.O.(Ms).No.86, Housing and Urban
Development Department dated 28.03.2012. The said Government Order
further prescribes the amended rates payable per square meter as the
Infrastructure and Amenities Charges for different categories of building
in different areas as follows :-
Chennai
Coimbatore,
Metro
Building type Chengalpattu Tiruppur and Other area
Politian
Kurichi
authority
Multistoried 750 750 563 375
building
Multistoried 375 375 375 375
residential
building
Other than 375 375 285 188
multistoriedhttps://www.mhc.tn.gov.in/judis
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W.P.No.22755 of 2009 etc.Chennai
Coimbatore,
Metro
Building type Chengalpattu Tiruppur and Other area
Politian
Kurichi
authority
building
Institutional 150 150 113 75
building
The Government Order specifically states that the revised rates shall takeeffect from the date of the order.
12.11. Further, Sections 59 and 63-A of the Act deal with levy of
development charges, which is an Independent charge not in any way
connected to the levy of Infrastructure and Amenities Charges. The
validity of imposition of development charges is pending adjudication
before this Court, and the same is not in any way connected with giving
effect to the provisions of Section 63-B of the Act empowering the
authorities to impose I&A charges for provision of infrastructure and
basic amenities necessitated by massive development. Also, the
contention of the petitioners that the provisions of the Act do not provide
for cancellation of the planning permission is liable to be rejected for the
reason that Section 54 of the Act provides that the appropriate planning
authority may revoke or modify the planning permission granted under
this Act.
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W.P.No.22755 of 2009 etc.
12.12. The I&A charges levied under Section 63-B of the Act are
credited to a fund called the State Infrastructure and Amenities Fund
constituted by the government under Section 63-C of the Act. It is to meet
the impact of development and for ensuring sustainable development of
urban and rural areas. As per Rule 6 of the Rules, the I&A charges
utilized for the purpose of preparation of infrastructure investment plans,
execution of infrastructure investment plans in full or part and for any
purpose incidental to the preparation or execution of infrastructure
investment plans. Therefore, the provisions under Section 63B of the Act
cannot be said as ultravires of the provisions of the Act. Accordingly the
point Nos.(iii) & (iv) are answered in favour of the respondents.
Object of the Act:-
13. Further the object of the Act is to plan the development and
use of urban and rural areas in the State of Tamil Nadu. The I&A charges
have been introduced in the Act with the object of dealing with the
increased need for infrastructure and basic amenities which necessarily
form part of sustainable development and use of urban and rural with.
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W.P.No.22755 of 2009 etc.
The said charges are utilized for the purposes provided in the Act and the
Rules made thereunder and no other purposes.
14. In fact, the benefit which accrues to the petitioners on
utilization of the said fund cannot be quantified in terms of money as the
object of the fund is creation of better and grater infrastructure and
provision of basic amenities. The developments promoted by the
petitioners relates to the construction of multistoried buildings, office
complexes, residential premises and institutions which do not provide any
amenities or services of infrastructure outside the compound wall of such
developments. The essential and planned development leading to the
formation of well planned urban areas and growth centres.
15. The provision of adequate amenities for their occupants
depend on the infrastructure services provided by the government and its
department. The development requires high order infrastructure like
international standard transport facilities, broad road connectivity, new
source of water supply system, sewerage and drainage to the trunk
system, creation of environment friendly atmosphere in the urban as well
as regional level which require huge capital outlay. Therefore, it is very
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W.P.No.22755 of 2009 etc.
difficult to meet the needs of the infrastructure facilities, even though
development provides outlets for growth of cities. Therefore, some kind of
institutional arrangement for mobilization of funds to provide higher
order infrastructure at the regional level and in order to improve the
situation, the government has to pump huge investment.
16. In fact, the development charge payable for these
developments are very meager and would not meet part of the cost of
administration of the Act in term of plan preparation, regulation and
enforcement. Therefore, it become inevitable for the government to levy a
separate charge exclusively for augmenting various infrastructure and
basic amenities. Therefore, levy of I&A charges is legal and within the
power of the government. Further the Act came into force in the year
1972. Since more than 35 years, ceiling limit of the development charges
and other provisions prescribed in the Act are not adequate to meet the
expenses and are not commensurate with the cost of land and the
facilities provided by them would be of temporary measure. It would end
in dependence on government sources finally posing a serious financial
crisis to the local bodies. The density of population is becoming high in
all major States in the country. The density of population is becoming
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W.P.No.22755 of 2009 etc.
high in all the rapidly developing growth centers including rural area.
Therefore, the contribution received from the developers is very meager
and is meant to cover a part of the cost of basic facilities.
17. Further, the development charges being levied under Section
59 of Act by the local authority for use or change of use or building or
development requiring permission under the Act, are not specifically
collected for infrastructure investment but are is levied as charges for
such permission given. Therefore, I&A charges are not to be confused
with development charges, which is altogether different. The purpose of
the Act is to provide for planning, development and use of the rural and
urban land in the State of Tamil Nadu and for the purpose of connected
thereunder. Therefore, the government passed order in G.O.Ms.No.191
Housing and Urban Development Department dated 01.06.2007, to
collect I&A charges for certain types of developments.
18. In fact, the developments cost range from Rs.3000 to
Rs.4000 per sq.ft., whereas the charges proposed in the government order
is only Rs.100/- per sq.ft., at a maximum. Therefore, it is very meager
and hence these charges compared to the cost of construction which
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W.P.No.22755 of 2009 etc.
range upwards from Rs.1000/- sq.ft., are low enough and can be
affordable by any developer. Therefore, there is no contravention or
violation of Article 265 of the constitution of India. The levy has been
made in accordance with law and as envisaged by law. Further, already
batch of writ petitions were filed challenging the provisions under Section
63 B & C of the Act and all the writ petitions were dismissed by this
Court in W.P.No.21402 of 2010 etc., batch by an order dated
30.06.2011.
Conclusion:-
19. In the light of the above discussions, this Court concludes as
follows :-
(i) Rule 1(2) of the Rules is ultravires to the provisions of the Act.
(ii) The I&A charges shall be levied as per the prevailing
government orders based on the date of planning permission.
(iii) Section 63 B, C of the Act and Rules 4,5,7 & 9 of the Rules
stand sustained.
Accordingly, this Court is inclined to pass the following orders in the
respective writ petitions.
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W.P.No.22755 of 2009 etc.
20. W.P.No.22755, 22756 & 22757 of 2009 :-
20.1. These writ petitions have been filed for declaration declaring
the provisions under Section 63 B & C of the Act r/w Section 3 of the
Amendment Act and Rules 4, 5 and 7 of the Rules and consequential
government orders in G.O.Ms.No.161 Housing and Urban Development
Department dated 09.09.2009 and G.O.Ms.No.191 Housing and Urban
Development Department dated 01.06.2007 as null and void and also
challenging the demand notice issued by the respondents thereby
demanding I&A charges and also to direct the respondents to refund the
I&A charges already paid by the petitioner.
20.2. The petitioner company was granted planing permission to
build residential apartment on 03.06.2009 on remittance 50% of the I&A
charges. Thereafter, by the impugned notices, the petitioner was directed
to pay remaining I&A charges as per the government order in G.O.No.84
Housing and Urban Development Department dated 08.04.2008.
Therefore, this Court finds no infirmity or illegality in the impugned
demand notices and the petitioner is not entitled for refund of
Rs.27,20,50,000/-.
21. W.P.No.23663 of 2009 :-
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W.P.No.22755 of 2009 etc.21.1. This writ petition has been filed for declaration declaring
that Rule 9 of the Rules will not be applicable to the petitioner’s property.
21.2. The petitioner was granted sanction and approval to put up
building as early as on 06.09.2007. Even before the commencement of
the Rules, the petitioner was provided with planning permission and
approval and accordingly, he paid the developmental charges. Therefore,
the respondents cannot levy I&A charges and the Rule 9 of the Rules is
not applicable to the petitioner’s property.
21.3. In view of the above, this Court declares that Rule 9 of the
Rules is not applicable to the petitioner’s property comprised in Survey
No.453/2, Sholinganallur, O.M.R., Chennai. The second respondent is
directed to issue completion certificate for the petition’s property, if not
granted already, forthwith.
22. W.P.Nos.24825 & 24826 of 2009:-
22.1. These writ petitions have been filed challenging the demand
notice dated 26.10.2012 issued by the second respondent, thereby
directed the petitioner to pay a sum of Rs.2,38,27,000/- and
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W.P.No.22755 of 2009 etc.
Rs.1,41,20,000/- respectively, towards I&A charges.
22.2. The petitioner was granted planning permission to construct
I T office building on 26.03.2008 & 08.04.2008 respectively. Thereafter,
by the impugned notices, the petitioner was directed to pay remaining
I&A charges as per the government order in G.O.No.84 Housing and
Urban Development Department dated 08.04.2008. Therefore, this Court
finds no infirmity or illegality in the impugned demand notices.
23. W.P.No.25997 of 2009 :-
23.1. This writ petition has been filed challenging the demand
notice dated 24.11.2009 & 03.12.2009 issued by the second respondent,
thereby demanding the petitioner to pay a sum of Rs.1,60,00,000/-
towards I&A charges.
23.2. The petitioner was granted planning permission by an order
dated 05.09.2007 and as such the government order in G.O.Ms.No.191
Housing and Urban Development dated 01.06.2007 is applicable to
collect the I&A charges. According the petitioner was directed to pay the
I&A charges by the demand notice dated 24.11.2009. This Court finds no
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W.P.No.22755 of 2009 etc.
infirmity or illegality in the impugned order passed by the second
respondent.
24. W.P.No.26803 of 2010 :-
24.1. This writ petition has been filed challenging the demand
notice dated 11.11.2010 issued by the second respondent, thereby
directed the petitioner to pay a sum of Rs.29,20,000/- towards I&A
charges.
24.2. The petitioner Trust intended to build a Polytechnic college at
Thiruvallur district and obtained building permission 14.03.2008 on
payment of Rs.7,30,000/- towards I&A charges. Therefore, the
government order in G.O.Ms.No.191 Housing and Urban Development
Department dated 01.06.2007 is applicable to collect I&A charges.
However, the impugned demand has been made after granting building
permission under the institutional building as per the government order in
G.O.Ms.No.84 Housing and Urban Development Department dated
08.04.2008. Therefore, the impugned demand notice cannot be sustained
and liable to be quashed. Accordingly, the impugned demand notice
dated 11.11.2010 issued by the second respondent, is hereby quashed.
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W.P.No.22755 of 2009 etc.
25. W.P.No.2963 of 2011 :-
25.1. This writ petition has been filed challenging the demand
notice dated 11.03.2010 issued by the third respondent, thereby directed
the petitioner to pay a sum of Rs.1,17,05,000/- towards I&A charges.
25.2. The petitioner intended to build a factory premises and
obtained building permission 10.11.2009, on payment I&A charges
under industrial building. Therefore, the government order in
G.O.Ms.No.161 Housing and Urban Development Department dated
09.09.2009 is applicable to collect I&A charges. However, the impugned
demand has been made after granting building permission under the
multistoryed building. Therefore, the impugned demand notice cannot be
sustained and liable to be quashed. Accordingly, the impugned demand
notice dated 11.03.2010 issued by the third respondent, is hereby
quashed.
26. W.P.No.5602 of 2011 :-
26.1. This writ petition has been filed challenging the demand
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W.P.No.22755 of 2009 etc.notice dated 10.08.2010 & 02.11.2010 issued by the third respondent,
thereby directed the petitioner to pay a sum of Rs.41,60,100/- towards
I&A charges.
26.2. The petitioner was granted permission to construct factory
premises on 12.03.2008 and directed to pay I&A charges as per
G.O.Ms.No.84 Housing and Urban Development Department dated
08.04.2008. Therefore, the government order in G.O.Ms.No.191 Housing
and Urban Development Department dated 01.06.2007 is applicable to
collect I&A charges. Thereafter, the impugned demand of I&A charges as
per the government order in G.O.Ms.No.84 Housing and Urban
Development Department dated 08.04.2008 cannot be sustained and
liable to be quashed.
26.3. Accordingly, the impugned demand notices dated 10.08.2010
& 02.11.2010 issued by the third respondent, are hereby quashed. The
third respondent is directed to make a fresh demand for I&A charge as
per the government order in G.O.Ms.No.191 Housing and Urban
Development Department dated 01.06.2007 forthwith. If the petitioner
failed to pay the said amount, the respondents are directed to proceed as
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W.P.No.22755 of 2009 etc.against the petitioner in accordance with law to recover the said amount.
27. W.P.No.5720 of 2011 :-
27.1. This writ petition has been filed challenging the demand
notices dated 08.11.2010, 26.11,2010, 03.01.2011, 05.02.2011 and
05.01.2011 issued by the respondents 4 & 3 respectively, thereby
demanding I&A charges as per the government order in G.O.Ms.No.84
Housing and Urban Development Department dated 08.04.2008.
27.2. The petitioner was granted planning permission on
19.09.2007 for construction of multisoried building for residential
apartments and directed to deposit a sum of Rs.48,300/- towards Centage
charges Accordingly the petitioner paid the said amount. Thereafter, by
the impugned demand notice the petitioner was directed to pay a sum of
Rs.9,39,99,650/- towards I&A charges as per the government order in
G.O.Ms.No.84 Housing and Urban Development Department dated
08.04.2008.
27.3. As stated supra, the petitioner was granted building
permission on 19.09.2007 and therefore the government order in
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W.P.No.22755 of 2009 etc.
G.O.Ms.No.191 Housing and Urban Development Department dated
01.06.2007 is applicable to collect the I&A charges. Thereafter, the
impugned demand of I&A charges as per the government order in
G.O.Ms.No.84 Housing and Urban Development Department dated
08.04.2008 cannot be sustained and liable to be quashed.
27.4. Accordingly, the impugned demand notices dated
08.11.2010, 26.11,2010, 03.01.2011, 05.01.2011 and 05.02.2011 issued
by the respondents 3 & 4 , are hereby quashed. The third respondent is
directed to make a fresh demand for I&A charge as per the government
order in G.O.Ms.No.191 Housing and Urban Development Department
dated 01.06.2007 forthwith. If the petitioner failed to pay the said
amount, the respondents are directed to proceed as against the petitioner
in accordance with law to recover the said amount.
28. W.P.No.5721 of 2011 :-
28.1. This writ petition has been filed for declaration declaring that
Section 1(2) of the Rules, is ultravires of the provision of the Act.
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W.P.No.22755 of 2009 etc.
28.2. As stated supra, no retrospective effect unless parent Act
expressly permit the retrospective effect. The delegated legislation is
ordinarily prospective in nature and no retrospective effect can be given,
in the absence of an express provision. Accordingly, Section 1(2) of the
Rules, is declared as ultravires and the Writ Petition stands allowed.
29. W.P.No.8278 of 2011 :-
29.1. This writ petition has been filed challenging the demand
notice dated 18.02.2011 issued by the second respondent thereby
demanded a sum of Rs.10,31,07,750/- within a period of fifteen days.
29.2. The petitioner was granted planning permission 22.11.2010
to construct residential apartments. Therefore, the government order in
G.O.Ms.No.161 Housing and Urban Development dated 09.09.2009 is
applicable to charge the I&A charges. Accordingly, the petitioner paid the
entire amount and completed the construction. Thereafter, by the
impugned demand notice, the second respondent directed the petitioner to
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W.P.No.22755 of 2009 etc.pay I&A charges as per the government order in G.O.Ms.No.84 Housing
and Urban Development Department dated 08.04.2008, which is not
applicable to the petitioner’s case. Therefore, the impugned demand
notice cannot be sustained and liable to be quashed. Accordingly, the
impugned demand notices dated 18.02.2011, issued by the second
respondent, is hereby quashed.
30. W.P.No.10701 of 2011 :-
30.1. This writ petition has been filed challenging the demand
notice dated 21.03.2011 issued by the second respondent thereby
directed the petitioner to pay arrears of I&A charges to the tune of
Rs.6,06,74,160/-.
30.2. The petitioner was granted planning permission 29.10.2009
to construct residential apartments. Therefore, the government order in
G.O.Ms.No.161 Housing and Urban Development dated 09.09.2009 is
applicable to charge the I&A charges. Accordingly, the petitioner paid the
entire amount and completed the construction. Thereafter, by the
impugned demand notice, the second respondent directed the petitioner to
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W.P.No.22755 of 2009 etc.
pay I&A charges as per the government order in G.O.Ms.No.84 Housing
and Urban Development Department dated 08.04.2008, which is not
applicable to the petitioner’s case. Therefore, the impugned demand
notice cannot be sustained and liable to be quashed. Accordingly, the
impugned demand notice dated 21.03.2011 issued by the second
respondent, is hereby quashed.
31. W.P.No.12226 of 2011 :-
31.1. This writ petition has been filed challenging the demand
notice dated 02.05.2011, issued by the second respondent thereby
directed the petitioner to pay arrears of I&A charges to the tune of
Rs.8,45,68,635/-.
31.2. The petitioner was granted planning permission 22.04.2010
to construct residential apartments. Therefore, the government order in
G.O.Ms.No.161 Housing and Urban Development dated 09.09.2009 is
applicable to charge the I&A charges. Accordingly, the petitioner paid the
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W.P.No.22755 of 2009 etc.entire amount and completed the construction. Thereafter, by the
impugned demand notice, the second respondent directed the petitioner to
pay I&A charges as per the government order in G.O.Ms.No.84 Housing
and Urban Development Department dated 08.04.2008, which is not
applicable to the petitioner’s case. Therefore, the impugned demand
notice cannot be sustained and liable to be quashed. Accordingly, the
impugned demand notice dated 02.05.2011 issued by the second
respondent, is hereby quashed.
32. W.P.No.12365 of 2011 :-
32.1. This writ petition has been filed challenging the demand
notice dated 25.04.2011, issued by the third respondent thereby directed
the petitioner to pay arrears of I&A charges to the tune of Rs.17,08,900/-.
32.2. The petitioner was granted planning permission 09.10.2009
to construct residential apartments. Therefore, the government order in
G.O.Ms.No.161 Housing and Urban Development dated 09.09.2009 is
applicable to charge the I&A charges. Accordingly, the petitioner paid the
entire amount and completed the construction. Thereafter, by the
impugned demand notice, the third respondent directed the petitioner to
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W.P.No.22755 of 2009 etc.
pay I&A charges as per the government order in G.O.Ms.No.84 Housing
and Urban Development Department dated 08.04.2008, which is not
applicable to the petitioner’s case. Therefore, the impugned demand
notice cannot be sustained and liable to be quashed. Accordingly, the
impugned demand notice dated 25.04.2011 issued by the third
respondent, is hereby quashed.
33. W.P.No.12834 of 2011 :-
33.1. This writ petition has been filed challenging the demand
notice dated 19.05.2011, issued by the third respondent thereby directed
the petitioner to pay arrears of I&A charges to the tune of
Rs.1,69,98,850/-.
33.2. The petitioner was granted planning permission 15.02.2010
to construct Township consisting 43 villas and 448 apartments.
Therefore, the government order in G.O.Ms.No.161 Housing and Urban
Development dated 09.09.2009 is applicable to charge the I&A charges.
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W.P.No.22755 of 2009 etc.
Accordingly, the petitioner paid the entire amount and completed the
construction. Thereafter, by the impugned demand notice, the third
respondent directed the petitioner to pay I&A charges as per the
government order in G.O.Ms.No.84 Housing and Urban Development
Department dated 08.04.2008, which is not applicable to the petitioner’s
case. Therefore, the impugned demand notice cannot be sustained and
liable to be quashed. Accordingly, the impugned demand notice dated
19.05.2011 issued by the third respondent, is hereby quashed.
34. W.P.No.13053 of 2011 :-
34.1. This writ petition has been filed challenging the demand
notice dated 06.05.2020 issued by the first respondent thereby directing
the petitioner to pay a sum of Rs.7,50,000/- towards I & A charges and
consequential order dated 20.04.2011, passed by the first respondent
thereby declared the construction put up by the petitioner as unauthorized
construction for nonpayment of I&A charges to the tune of Rs.7,50,000/-.
34.2. The petitioner was granted planning permission to construct
rice mill on 17.12.2007. Therefore, the government order in G.O.No.191
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W.P.No.22755 of 2009 etc.Housing and Urban Development Department dated 01.06.2007 is
applicable to collect I&A charges. Accordingly, the petitioner paid a sum
of Rs.4,50,000/- towards I&A charges and completed the construction.
Thereafter, by the impugned order, the petitioner was directed to pay I&A
charges as per the government order in G.O.Ms.No.84 Housing and
Urban Development Department dated 08.04.2008. Therefore, the
impugned demand notice cannot be sustained and liable to be quashed.
Accordingly, the impugned demand notice dated 06.05.2020 issued by
the first respondent and the consequential order dated 20.04.2011 passed
by the first respondent issued by the third respondent, are hereby
quashed.
35. W.P.No.14259 of 2011 :-
35.1. This writ petition has been filed challenging the impugned
demand notice dated 02.05.2011, thereby directed the petitioner to pay
I&A charges to the tune of Rs.11,13,000/- and Security deposit of
Rs.59,40,000/- and other amounts under various heads.
35.2. The petitioner applied for planning permission for the
purpose of additional construction of canteen at fifth floor part and
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W.P.No.22755 of 2009 etc.seventh floor part over the existing building at Plot Nos.16,17,18,19,20A
(South phase) Thiru.Vi.Ka Industrial Estate, Guindy, Jawaharlal Nehru
Road, Chennai T.SNos.97/3, 98/2, 98/3, 99, 100, 101/2, Block No.5 of
Mambalam Guindy Taluk, T.S.No.3/2b, 2C, 4C, 4B, 5A2 of Alandur
Village, S.Nos.391/1, 391/2, Block No.7 of St. Thomas Mount Village.
So far, the petitioner did not make any payment. Therefore, the second
respondent rightly issued impugned demand notice to pay security deport
and I&A charges and other charges under various heads. This Court finds
no infirmity or illegality in the impugned demand notice.
36. W.P.No.14364 of 2011 :-
36.1. This writ petition has been filed challenging the demand
notice dated 29.06.2010 issued by the second respondent, thereby
demanding the petitioner to pay a sum of Rs.20,00,000/- towards I&A
charges.
36.2. The petitioner was granted planning permission to construct
industrial building on 01.11.2007. Therefore, the government order in
G.O.No.191 Housing and Urban Development Department dated
01.06.2007 is applicable to collect I&A charges. Accordingly, the
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W.P.No.22755 of 2009 etc.petitioner paid a sum of Rs.12,00,000/- towards I&A charges and
completed the construction. Thereafter, by the impugned order, the
petitioner was directed to pay I&A charges as per the government order
in G.O.Ms.No.84 Housing and Urban Development Department dated
08.04.2008. Therefore, the impugned demand notice cannot be sustained
and liable to be quashed. Accordingly, the impugned demand notice
dated 29.06.2010, issued by the second respondent, is hereby quashed.
37. W.P.No.19435 of 2011 :-
37.1. This writ petition has been filed challenging the demand
notice dated 21.03.2011, issued by the third respondent as ultravirus of
Section 63 B of the Act and Articles 14 & 19(1)(g) of the Constitution of
India.
37.2. The petitioner company was granted planing permission to
build residential apartment on 01.02.2010 and directed to pay the I&A
charges. Thereafter, by the impugned notice, the petitioner was directed
to pay remaining I&A charges as per the government order in G.O.No.84
Housing and Urban Development Department dated 08.04.2008.
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W.P.No.22755 of 2009 etc.
37.3. As stated supra, the petitioner was granted building
permission on 01.02.2010 and they paid I&A charges as per the
government order in G.O.Ms.No.161 Housing and Urban Development
Department dated 09.09.2009. Therefore, the impugned demand made as
per the previous government order in G.O.Ms.No.84 Housing and Urban
Development Department dated 08.04.2008 cannot be sustained and
liable to be quashed. Accordingly, the impugned order dated 21.03.2011
passed by the third respondent, is hereby quashed.
38. W.P.No.26436 of 2011 :-
38.1. The writ petition has been filed for direction directing the
second respondent not to make any demand with the petitioner for any
fee towards infrastructure and amenities charges without following the
procedure prescribed under Rules 7 & 8 of the Rules.
38.2. The petitioner company was granted planning permission to
build a factory premises on 17.10.2007, on condition that the plan
sanction was subject to payment of I&A charges, after the outcome of
W.P.No. 20587 of 2007. After disposal of the said writ petition, the
impugned notice has been rightly issued, thereby demanding the
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W.P.No.22755 of 2009 etc.petitioner to pay I&A charges as per the government order in
G.O.Ms.No.191 Housing and Urban Development Department dated
01.06.2007. This Court finds no infirmity or illegality in impugned
demand notice and the prayer sought for in this writ petition cannot be
granted and the writ petition is liable to be dismissed.
39. W.P.No.28642 of 2011 :-
39.1. This writ petition has been filed as against the order dated
Nil.04.2011, passed by the third respondent thereby demanding the
petitioner to pay a sum of Rs.1,22,89,200/- towards I&A charges.
39.2. The petitioner was granted planning permission on
28.08.2009 and as per the government order in G.O.Ms.No.161 Housing
and Urban Development Department dated 09.09.2009, the demand was
made on 05.10.2009, in respect of I&A charges to the tune of
Rs.1,26,30,000/-. Accordingly, the petitioner paid the said amount.
Thereafter, the impugned demand was made thereby directed to pay
further sum of Rs.1,22,89,200/- as per the government order in
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W.P.No.22755 of 2009 etc.
G.O.Ms.No.84 Housing and Urban Development Department dated
08.04.2008. Therefore, the impugned demand notice cannot be sustained
and liable to be quashed. Accordingly, the impugned order passed by the
third respondent during April, 2011, is hereby quashed.
40. W.P.No.30161 of 2011 :-
40.1. This writ petition has been filed challenging the demand
notice dated 17.08.2011 issued by the respondent, thereby demanding
the petitioner to pay a sum of Rs.18,95,370/- towards I&A charges.
40.2. The petitioner company was granted planning approval on
06.01.2010 to construct residential houses. Therefore, the government
order in G.O.Ms.No.161 Housing and Urban Development Department
dated 09.09.2009 is applicable to collect I&A charges. Accordingly, the
petitioner paid a sum of Rs.18,95,370/- towards I&A charges. Thereafter,
the present fresh demand was made thereby demanding further sum of
Rs.18,95,370/- as per the government order in G.O.Ms.No.84 Housing
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W.P.No.22755 of 2009 etc.and Urban Development Department dated 08.04.2008. Aggrieved by the
same, the petitioner also preferred an appeal and the same was also
dismissed. Hence, the impugned demand notice dated 17.08.2011 issued
by the respondent, is hereby quashed.
41. W.P.No.2314 of 2012 :-
41.1. This writ petition has been filed challenging the demand
notices dated 01.12.2011 & 27.12.2011 issued by the respondents 2 & 3,
respectively, thereby demanding I&A charges to the tune of
Rs.66,74,850/-.
41.2. The petitioner intended to set up industrial unit in Salem and
submitted an application for planning permission before the respondents.
On the said application, the first respondent directed the petitioner to pay
the I&A charges as per G.O.Ms.No.191 Housing and Urban
Development Department dated 01.06.2007. However, the said
government order is under challenge before this Court and hence the
petitioner had given an undertaking that if this Court decides the matter
against the petitioner, he would pay the amount within fifteen days on
receipt of demand notice from the respondents. On such undertaking, the
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W.P.No.22755 of 2009 etc.
petitioner was granted building approval on 28.09.2007. Thereafter, by
the impugned demand the petitioner was directed to pay the I&A charges
as per the government order in G.O.Ms.No.84 Housing and Urban
Development Department dated 08.04.2008.
41.3. As stated supra, the petitioner was granted building
permission on 28.09.2007 and therefore the government order in
G.O.Ms.No.191 Housing and Urban Development Department dated
01.06.2007 is applicable to collect I&A charges. Thereafter, the
impugned demand of I&A charges as per the government order in
G.O.Ms.No.84 Housing and Urban Development Department dated
08.04.2008 cannot be sustained and liable to be quashed.
41.4. Accordingly, the impugned demand notices dated 01.12.2011
& 27.12.2011 issued by the respondents 2 & 3, are hereby quashed. The
third respondent is directed to make a fresh demand for I&A charge as
per the government order in G.O.Ms.No.191 Housing and Urban
Development Department dated 01.06.2007 forthwith. If the petitioner
failed to pay the said amount, the respondents are directed to proceed as
against the petitioner in accordance with law to recover the said amount.
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W.P.No.22755 of 2009 etc.
42. W.P.No.6978 of 2012 :-
42.1. This writ petition has been filed challenging the demand
notice dated 29.02.2012, issued by the second respondent thereby
directed the petitioner to pay a sum of Rs.70,59,246/- towards I&A
charges.
42.2. The petitioner was granted planning permission to build an
IT office building on 08.04.2008. At the time of granting planning
permission the petitioner paid a sum of Rs.100/- only as I&A charges and
undertook to pay the remaining amount after disposal of the writ petition
challenging the government order in G.O.Ms.No.84 Housing and Urban
Development Department dated 08.04.2008. Accordingly, the present
demand was made to pay the I&A charges and this Court finds no
infirmity or illegality in the demand notice issued by the second
respondent.
43. W.P.No.7128 of 2012 :-
43.1. This writ petition has been filed challenging the demand
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W.P.No.22755 of 2009 etc.
notices dated 21.04.2011 & 17.02.2012 issued by the second respondent,
thereby demanding the petitioner to pay a sum of Rs.25,09,100/- towards
I&A charges.
43.2. The petitioner was granted planning permission by the
proceedings dated 14.09.2009 for the construction of multistoried
residential apartments on receipt of centage charges. Thereafter, by the
communication dated 25.09.2009, the petitioner was directed to pay I&A
charges as per the government order in G.O.Ms.No.161 Housing and
Urban Development Department, dated 09.09.2009. Accordingly, the
petitioner paid the entire amount. Subsequently, the impugned demand
notice was made by applying the government order in G.O.Ms.No.84
Housing and Urban Development Department, dated 08.04.2008.
Therefore, the impugned demand notice cannot be sustained and liable to
be quashed. Accordingly, the impugned demand notices dated
21.04.2011 & 17.02.2012 issued by the second respondent, are hereby
quashed.
44. W.P.No.8164 of 2012 :-
44.1. This writ petition has been filed challenging the demand
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W.P.No.22755 of 2009 etc.notice dated 15.03.2012 issued by the second respondent, thereby
directed the petitioner to pay a sum of Rs. 25,09,100/- towards I&A
charges.
44.2. The petitioner was granted planning permission by the
proceedings dated 14.07.2009 for the construction of multistoried
residential apartments on receipt of centage charges. Further as directed
by the second respondent by the communication dated 25.09.2009, the
petitioner paid I&A charges as per the government order in
G.O.Ms.No.161 Housing and Urban Development Department, dated
09.09.2009. Thereafter, the impugned demand notice was made as per
the government order in G.O.Ms.No.84 Housing and Urban Development
Department, dated 08.04.2008. Therefore, the impugned demand notice
cannot be sustained and liable to be quashed. Accordingly, the impugned
demand notices dated 15.03.2012 issued by the second respondent, is
hereby quashed.
45. W.P.No.11216 of 2012:-
45.1. This writ petition has been filed challenging the demand
notices dated 21.04.2011, 08.02.2012, 01.03.2012, 07.03.2012 &
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W.P.No.22755 of 2009 etc.03.04.2012 issued by the second respondent, thereby demanding the
petitioner to pay a sum of Rs.3,19,05,124/- towards I&A charges.
45.2. The petitioner company was granted planning permission on
27.08.2009 to build up residential apartment. Therefore, the government
order in G.O.Ms.No.161 Housing and Urban Development dated
09.09.2009 is applicable to collect I&A charges. Accordingly the
petitioner paid the I&A charges and the planning permission was also
issued. Thereafter, the present demand notices have been issued by
applying the government order in G.O.Ms.No.84 Housing and Urban
Development Department dated 08.04.2008. Therefore, the subsequent
demand cannot sustained and liable to be quashed. Accordingly, the
impugned demand notices dated 21.04.2011, 08.02.2012, 01.03.2012,
07.03.2012 & 03.04.2012 issued by the second respondent, are hereby
quashed.
46. W.P.No.21892 of 2012 :-
46.1. This writ petition has been filed challenging the order dated
26.06.2012, passed by the second respondent thereby rejected the request
made by the petitioner seeking refund of I&A charges, by applying the
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W.P.No.22755 of 2009 etc.government order in G.O.Ms.No.161 Housing and Urban Development
dated 09.09.2009.
46.2. The petitioner was granted planning permission on
17.04.2008 for the construction of IT building. Further, the petitioner was
directed to pay I&A charges as per the government order in
G.O.Ms.No.84 Housing and Urban Development Department dated
08.04.2008. Accordingly. the petitioner paid the entire amount.
Subsequently, the government issued another order in G.O.Ms.No.161
Housing and Urban Development dated 09.09.2009, thereby reducing the
I&A charges. Therefore, the petitioner made request to refund the excess
amount after deducting the I&A charges as per the government order in
G.O.Ms.No.161 Housing and Urban Development dated 09.09.2009.
46.3. As stated supra, the petitioner was granted planning
permission on 17.04.2008, and therefore the government order in
G.O.Ms.No.84 Housing and Urban Development Department dated
08.04.2008 is applicable to the petitioner’s case. Therefore, the request
made by the petitioner rightly rejected by the second respondent and this
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W.P.No.22755 of 2009 etc.
Court finds no infirmity or illegality in the impugned order.
47. W.P.No.30114 of 2012 :-
47.1. This writ petition has been filed challenging the demand
notices dated 25.04.2011 & 28.12.2011 issued by the third respondent,
thereby demanding the petitioner to pay a sum of Rs.37,42,300/- towards
I&A charges.
47.2. The petitioner was granted planning permission 15.10.2009
to construct residential apartments. Therefore, the government order in
G.O.Ms.No.161 Housing and Urban Development dated 09.09.2009 is
applicable to charge the I&A charges. Accordingly, the petitioner paid the
entire amount and completed the construction. Thereafter, by the
impugned demand notice, the third respondent directed the petitioner to
pay I&A charges as per the government order in G.O.Ms.No.84 Housing
and Urban Development Department dated 08.04.2008, which is not
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W.P.No.22755 of 2009 etc.applicable to the petitioner’s case. Therefore, the impugned demand
notices cannot be sustained and liable to be quashed. Accordingly, the
impugned demand notices dated 25.04.2011 & 28.12.2011, issued by the
third respondent, are hereby quashed.
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W.P.No.22755 of 2009 etc.
48. W.P.No.31598 of 2012:-
48.1. This writ petitions has been filed challenging the demand
notices dated 21.03.2011 & 06.09.2012 issued by the second respondent
and the clarification letter dated 07.11.2012 issued by the first
respondent, thereby directing the petitioner to pay a sum of
Rs.74,60,000/- towards I&A charges.
48.2. The petitioner was granted cite approval and planning by an
order dated 29.10.2009 for the construction of multistoried residential
building. Therefore, the government order in G.O.Ms.No.161 Housing
and Urban Development Department dated 09.09.2009, is applicable to
collect the I&A charges. However, the impugned demand has been made
by applying the government order in G.O.Ms.No.84 Housing and Urban
Development Department, dated 08.04.2008. Therefore, the impugned
demand notices cannot be sustained and liable to be quashed.
Accordingly, the impugned demand notices dated 21.03.2011 &
06.09.2012 issued by the second respondent, are hereby quashed.
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W.P.No.22755 of 2009 etc.
49. W.P.No.33711 of 2012:-
49.1. This writ petition has been filed challenging the demand
notices dated 05.04.2011 and 20.11.2012 issued by the third respondent,
thereby directing the petitioner to pay a sum of Rs.43,19,930/-. The
petitioner company also prayed to refund the I&A charges already paid
by them.
49.2. The petitioner company was granted building permission to
construct IT building on 27.10.2009. Therefore, the government order in
G.O.Ms.No.161 Housing and Urban Development Department dated
09.09.2009, is applicable to collect the I&A charges. Accordingly, the
petitioner company paid the I&A charges and completed the construction.
Thereafter, the present demand notice has been issued thereby directed
the petitioner to pay I&A charges as per the G.O.Ms.No.84 Housing and
Urban Development Department dated 08.04.2008. Therefore, the
impugned demand notices cannot be sustained and liable to be quashed.
Accordingly, the impugned demand notices dated 05.04.2011 and
20.11.2012 issued by the third respondent, are hereby quashed. However,
the petitioner is not entitled for any refund.
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W.P.No.22755 of 2009 etc.
50. W.P.No.33750 of 2012 :-
50.1. This writ petition has been filed challenging the demand
notice dated 30.11.2012, issued by the second respondent, thereby
directed the petitioner to pay a sum of Rs.19,42,000/- towards I&A
charges. The petitioner also sought for refund of excess amount as per the
government order in G.O.Ms.No.161 Housing and Urban Development
Department, dated 09.09.2009.
50.2. The petitioner was granted planning permission to build a
multistoried hotel building on 18.12.2007. Therefore, the government
order in G.O.Ms.No.191 Housing and Urban Development Department
dated 01.06.2007 is applicable to collect I&A charges and the same was
paid by the petitioner. However, in the impugned demand notice, the
second respondent directed the petitioner to pay I&A charges as per the
government order in G.O.Ms.No.84 Housing and Urban Development
Department, dated 08.04.2008. Therefore, the impugned demand notice
cannot be sustained and liable to be quashed. Accordingly, the impugned
demand notice dated 30.11.2012 issued by the second respondent, are
hereby quashed. However, the petitioner is not entitled for refund of any
amount.
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W.P.No.22755 of 2009 etc.
51. W.P.No.551 of 2013 :-
51.1. This writ petition has been filed challenging the demand
notice dated 22.11.2012 issued by the second respondent, thereby
directing the petitioner to pay a sum of Rs.1,75,000/- towards I&A
charges.
51.2. The petitioner is running a business of manufacturing of
flyash brick, hollow blocks and paver block, which comes under the
small scale industry. For that purpose, he was granted planning
permission on the sworn affidavit dated 23.10.2007, made by the
petitioner. Therefore, the government order in G.O.Ms.No.191 Housing
and Urban Development Department dated 01.06.2007 is applicable to
collect the I&A charges and accordingly the demand was made.
Therefore, this Court finds no infirmity or illegality in the impugned
demand made by the second respondent and the writ petition is devoid of
merits and liable to be dismissed.
52. W.P.Nos.1541 of 2013 & 29148 of 2016 :-
52.1. The writ petition in W.P.No.1541 of 2013 has been filed
challenging the demand notices dated 24.03.2011, 03.12.2012,
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W.P.No.22755 of 2009 etc.20.12.2012 issued by the respondents thereby directed the petitioner to
pay a sum of Rs.3,28,200/- towards I&A charges. The writ petition in
W.P.No.29148 of 2016 has been filed challenging the order dated
20.06.2016 passed by the second respondent and consequential order
dated 26.07.2016 passed by the first respondent, thereby directing the
petitioner to pay a sum of Rs.3,28,200/- towards I&A charges and apply
for additional proposed construction.
52.2. The petitioner was granted planning permission on
06.06.2007 to build a school. Thereafter, the petitioner was directed to
pay the I&A charges to the tune of Rs.3,28,200/-. Aggrieved by the same
the petitioner filed a writ petition in W.P.No.1541 of 2013 and obtained
an interim order of say. Thereafter, the petitioner was intended to put up
separate construction in the school premises. When the petitioner
approached the respondents for planning permission for new proposal,
the same was also rejected and directed the petitioner to pay the earlier
due of Rs.3,28,200/- and the same was under challenged in
W.P.No.29148 of 2016.
52.3. As stated supra, the petitioner was granted planning
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W.P.No.22755 of 2009 etc.permission on 06.06.2007 and therefore the government order in
G.O.Ms.No.191 Housing and Urban Development Department dated
01.06.2007 is applicable to collect I&A charges from the petitioner.
Accordingly, the petitioner rightly demanded to pay the I&A charges to
the tune of Rs.3,28,200/-. This Court finds no infirmity or illegality in the
demand notices issued by the respondent in both petitions.
53. W.P.No.5020 of 2013 :-
53.1. This writ petition has been filed challenging the demand
notices dated 21.04.2011 & 26.10.2012 issued by the third respondent,
thereby directed the petitioner to pay a sum of Rs. 3,18,72,750/- towards
I&A charges.
53.2. The petitioner was granted planning permission to build
multistoried residential apartment on 06.10.2009. Therefore, the
government order in G.O.Ms.No.161 Housing and Urban Development
Department dated 09.09.2009, is applicable to collect the I&A charges.
However, the impugned demand has been made by applying the
government order in G.O.Ms.No.84 Housing and Urban Development
Department, dated 08.04.2008. Therefore, the impugned demand notices
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W.P.No.22755 of 2009 etc.
cannot be sustained and liable to be quashed. Accordingly, the impugned
demand notices dated 21.04.2011 & 26.10.2012 issued by the third
respondent, are hereby quashed.
54. W.P.No.15054 of 2013 :-
54.1. This writ petition has been filed as against the order dated
10.05.2013, passed by the second respondent viz., Director of Town and
Country Planning, thereby dismissing the appeal filed by the petitioner
dated 06.02.2012 and confirmed the demand of I&A charges as per
G.O.Ms.No.84 Housing and Urban Development dated 08.04.2008.
54.2. The petitioner intended to set up industrial unit in
Coimbatore and submitted an application for planning permission on
17.08.2006 before the first respondent viz., Kuruchi New Town
Development Authority. Accordingly, the first respondent granted
building approval and directed the petitioner to pay a sum of
Rs.55,97,400/- towards I&A charges based on the government order in
G.O.Ms.No.161 Housing and Urban Development Department dated
09.09.2009. As per the said demand, the petitioner had paid the said
amount on 07.10.2009. Subsequent to the said demand, the petitioner
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W.P.No.22755 of 2009 etc.was granted planning permission on 08.10.2009.
54.3. While being so, the government passed an order in
G.O.Ms.No.84 Housing and Urban Development Department dated
08.04.2008, wherein I&A charges in respect of the first respondent was
75% of the maximum rates stipulated from industrial units which
amounted to Rs.225/- per square metre. However as per the government
order in G.O.Ms.No.161 Housing and Urban Development Department
dated 09.09.2009, the I&A charges in respect of the first respondent for
industrial buildings is Rs.112.50 per square metre. After lapse of 1-½
years on 07.04.2011, the first respondent raised demand of additional
I&A charges of Rs.54,50,100/-. It was challenged before the second
respondent under Section 76(1) of the Act and the same was dismissed
and confirmed the demand raised by the first respondent by the
impugned order dated 10.05.2013. Hence, the present writ petition.
54.4. As stated supra, the petitioner was granted building
permission on 06.11.2009 and he paid I&A charges as per the
government order in G.O.Ms.No.161 Housing and Urban Development
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W.P.No.22755 of 2009 etc.Department dated 09.09.2009. Thereafter, the impugned demand has
been made as per the previous government order in G.O.Ms.No.84
Housing and Urban Development Department dated 08.04.2008. Hence,
the impugned demand cannot be sustained and liable to be quashed.
Accordingly, the impugned order dated 10.05.2013 passed by the second
respondent, is hereby quashed.
55. W.P.No.10998 of 2014 :-
55.1. This writ petition has been filed challenging the demand
notice dated 26.03.2014 issued by the second respondent, thereby
directed the petitioner to pay a sum of Rs.36,16,250/- towards I&A
charges.
55.2. The petitioner was granted planning permission to put up
construction for the purpose of Die Casting unit and directed to pay the
I&A charges as per the government order in G.O.Ms.No.84 Housing and
Urban Development Department dated 08.04.2008. This Court finds no
infirmity or illegality in the demand made by the second respondent.
56. W.P.Nos.12184 & 12185 of 2014 :-
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W.P.No.22755 of 2009 etc.
56.1. These writ petitions have been filed challenging the demand
notices dated 11.03.2014 issued by the third respondent thereby
demanding the petitioner to pay a sum of Rs.12,28,750/- & Rs.5,05,000/-
respectively, towards I&A charges.
56.2. The petitioners are running spinning mills and they were
granted planning permission for construction of their factory building.
Thereafter, the petitioner was directed to pay the I&A charges as per the
government order in G.O.Ms.No.161 Housing and Urban Development
Department dated 09.09.2009. This Court finds no infirmity or illegality
in the demand made by the third respondent.
57. W.P.No.19041 of 2014 :-
57.1. This writ petition has been filed challenging the demand
notices dated 04.02.2014 & 23.06.2014 issued by the second respondent,
thereby directing the petitioner to pay a sum of Rs. 61,70,000/- towards
I&A charges.
57.2. The petitioner company was granted planning permission to
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W.P.No.22755 of 2009 etc.construct a factory on 02.01.2007. Therefore, the government order in
G.O.Ms.No.191 Housing and Urban Development Department dated
01.06.2007 is applicable to collect the I&A charges. Accordingly, the
petitioner was demanded to pay the I&A charges and this Court finds no
infirmity or illegality in the demand made by the second respondent.
58. Accordingly, the Writ Petitions in W.P.Nos.23663 of 2009
and 26803 of 2010 and 2963, 5721, 8278, 10701, 12226, 12365, 12834,
13053, 14364, 19435, 28642 & 30161 of 2011 and 7128, 8164, 11216,
30114 & 31598 of 2012 and 5020 & 15054 of 2013 are allowed.
The Writ Petitions in W.P.Nos.33711 & 33750 of 2012 are partly
allowed.
The Writ Petitions in W.P.Nos.5602 & 5720 of 2011 and 2314 of
2012 are disposed of.
The Writ Petitions in W.P.Nos.22755, 22756, 22757, 24825,
24826 & 25997 of 2009 and 14259 & 26436 of 2011 and 6978 & 21892
of 2012 and 551 & 1541 of 2013 and 10998, 12184, 12185 & 19041 of
2014 and 29148 of 2016 are dismissed. Consequently, connected
miscellaneous petitions are closed. There shall be no order as to costs.
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W.P.No.22755 of 2009 etc.
13.09.2024
Index : Yes/No
Speaking/Non Speaking order
Neutral Citation : Yes/No
rts
To
1. The Chief Secretary,
State of Tamil Nadu,
Government of Tamil Nadu,
Secretariat, Fort St. George,
Chennai – 600 009.
2. The Secretary to Government,
Housing and Urban Development Department,
Government of Tamil Nadu,
Secretariat, Fort St. George,
Chennai – 600 009.
3. The Chennai Metropolitan Development Authority,
Rep by its Member Secretary,
Thalamuthu Natarajan Malligai,
No.8, Gandhi Irwin Road,
Chennai – 600 008.
4. The Director of Town & Country Planning,
807, Anna Salai, Chennai – 600 002.
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W.P.No.22755 of 2009 etc.
G.K.ILANTHIRAIYAN. J,
rts
5. The Managing Director,
Chennai Metropolitan Water
Supply and Sewerage Board,
No.1, Pumping Station Road,
Chennai .
6. The Deputy Director,
The Director of Town Planning,
Chenglepet Region,
131, GST Road,
Chenglepet.
7. The President, Appur Panchayat,
Senthamangalam Village,
Dist Kanchepuram,
Chengalpet Taluk.
8. Kundrathur Panchayat,
Bathawadi Village,
Kanchepuram District,
Sriperumbadur Taluk,
Tamil Nadu.
9. Kundrathur Panchayat,
Vadakapattu Village,
Kancheepuram District,
Sriperumbadur Taluk,
Tamil Nadu.
10. Oriental Bank of Commerce,
Powai Branch,
Mumbai – 400 076.
COMMON ORDER IN
W.P.Nos.22755, 22756, 22757, 23663, 24825, 24826, 25997 of 2009,
and 26803 of 2010 and 2963, 5602, 5720, 5721, 8278, 10701, 12226,
12365, 12834, 13053, 14259, 14364, 19435, 26436, 28642, 30161 of
2011 and 2314, 6978, 7128, 8164, 11216, 21892, 30114, 31598, 33711,
33750 of 2012 and 551, 1541, 5020, 15054 of 2013 and 10998, 12184,
12185, 19041 of 2014 and 29148 of 2016
13.09.2024
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