D RAJAN DEVI Vs. GOVERNMENT OF TAMIL NADU

JUDGEMENT

(1.) Introductory:

(2.) The petitioner, carrying on construction activities under the name and style of BEN Foundation, initially submitted an application for planning permission to construct a residential-cum-shopping building at Survey Nos. 223, 224 and 225, Padi Village, Padikuppam Road, Chennai. The application was processed by C.M.D.A. and by order dated 1.7.2009 approval was granted. While the construction was in progress, the Government of Tamil Nadu had introduced a Scheme called "premium F.S.I.", whereby and whereunder, the Government permitted C.M.D.A. to allow Premium F.S.I. over and above the normally allowable F.S.I.. Since petitioner was eligible to apply under Premium F.S.I., the application was submitted on 4.5.2011 before C.M.D.A. for approval of additional F.S.I. area. The officials of the second respondent inspected the site and satisfied that the construction put up by the petitioner was in accordance with the approved plan except the additional F.S.I.. Scrutiny of the application took about ten months. The Multi Storied Building Panel recommended the application submitted by the petitioner for planning permission to the Government of Tamil Nadu for approval on 30.3.2012. Thereafter, the first respondent by order dated 29.5.2012 approved the revised proposal. The C.M.D.A. calculated the amount payable by the petitioner taking into account the prevailing guideline rate. The C.M.D.A. by letter dated 2.7.2012 called upon the petitioner to remit the Premium F.S.I. charges quantified at Rs. 7,96,50,000/-. The petitioner submitted series of applications thereafter to revise the order. The petitioner wanted the C.M.D.A. to calculate the Premium F.S.I. charges taking into account the guideline rate prevailing as on the date on which the application was submitted. The representation given by the petitioner requesting refund of Premium F.S.I. charges was rejected by C.M.D.A. by order dated 19.4.2013. The letter dated 31.8.2012 and the order dated 19.4.2013 are challenged in this writ petition.

(3.) The Member Secretary, C.M.D.A. filed a detailed counter affidavit meeting the points raised in the affidavit filed in support of the writ petition. According to the Member Secretary, the application submitted by the petitioner for planning permission was originally granted on 1.7.2010. Thereafter, he made a revised application by availing the Premium F.S.I. scheme. The Government have approved the revised proposal based on the recommendation made by the Multi Storied Building Panel at its meeting held on 30.3.2012. Since the petitioner was liable to pay the Premium F.S.I. charges, demand notice was issued on 2.7.2012. The petitioner without remitting the charges submitted a representation dated 19.7.2012 requesting to re-check the calculation made with respect to the revised proposal relating to Premium F.S.I.. The revised proposal was examined by C.M.D.A. and a fresh demand was made on 31.8.2012 reducing the Premium F.S.I. charges by Rs. 35,10,000/- treating one of the staircases as Fire Escape Staircase under Non-F.S.I. area. Even thereafter the petitioner has not remitted the amount. The petitioner submitted another representation on 18.12.2012. The representation was placed before the committee of Senior Officers on 5.4.2013. The Committee found that Balconies were only Sit-in-Balconies (within the building line) and as such it could not be considered as Non-F.S.I. area. After examining the issue in detail, the petitioner was advised to remit the Premium F.S.I. charges as per communication dated 31.8.2012. Thereafter, C.M.D.A. informed the petitioner by its letter dated 19.4.2013 that the representations for reduction of Premium F.S.I. charges does not merit consideration. The petitioner took time on several occasions to pay the amount. It was only thereafter he filed this writ petition.