IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 20.12.2006 Coram:- The Hon'ble Mr. Justice P. SATHASIVAM and The Hon'ble Mr. Justice S. TAMILVANAN Writ Petition Nos.304, 10682 of 2002, 755, 7459, 8433, 33680 of 2003, 6006, 6256, 6926, 10440, 29434, 30602 of 2004, 2636, 4409, 11821, 11822, 16683, 17291, 20969, 24805, 28785, 33278, 33279, 33505 of 2005, 6471, 7824, 30290, 34702 and 34741 of 2006 and WPMP.Nos.7402, 8170, 12211, 37087, 7032, 35750 of 2004, 4888, 2920, 12917, 12918, 18788, 22868, 31448, 36442, 36247, 36248 of 2005 and Miscellaneous Petition No.1 of 2006. S. Mangilal Baid ... Petitioner in W.P.304/02 Narayana Guruviah Chetty Estate and Charties rep by its Honorary Secretary MR.V. Sethuram Chennai-1. ... Petitioner in W.P.10682/02 1. A.K. Srivathsan 2. A.K. Sridharan 3. A.K. Sriram 4. A.K. Srikanthan 5. A.K. Srimukundhan all are rep by their Registered Power Agent MR. Kamal Lunawath Chennai-7 ... Petitioners in W.P.755/03 K. Vasudevan rep by his Power of Attorney Agent Kishore Kumar Gokaldas ... Petitioner in W.P.7459/03 V. Jagannathan ... Petitioner in W.P.8433/03 Ceebros Hotels (P) Ltd., rep by its Managing Director MR.C. Subba Reddy Chennai. ... Petitioner in W.P.33680/03 https://hcservices.ecourts.gov.in/hcservices/ S. Natarajan rep by power Agent M. Chandru ... Petitioner in W.P.6006/04 Deccan Estates of Construction (P) Ltd., rep by its Director Mr.A. Nirmal Gardhia Chennai-17. ... Petitioner in W.P.6256/04 M. Chandru ... Petitioner in W.P.6926/04 Bharat Kumar K. Kamdar ... Petitioner in W.P.10440/04 1. M/s. Hosak Industries 2. M/s. Rabia Leathers Industries Rep by their Power Agent Mr.V. Jaggannathan Chennai.20 ... Petitioner in W.P.29434/04 M. Baskaran ... Petitioner in W.P.30602/04 1. P.S. Surana 2. Lelavathi Surana 3. Vinod Surana 4. Rashmi Surana 1 to 4 represented by their power of Attorney Agent Mr.Prakashmal Surana Chennai-1. ... Petitioner in W.P.2636/05 M. Chandru ... Petitioner in W.P.4409/05 M/s. Raja Muthiah Cehttiar & Charitable Educational Trust by its Managing Turstee Mr. MAM Ramasamy rep by its Power Agent M/s. Chaitanya Builders & Leasing (P) Ltd, Chennai. ... Petitioners in W.P.11821/05 Kamalesh Kumar Seth Chennai. ... Petitioners in W.P.11822/05 Shyam G. Duseja ... Petitioners in W.P.16683/05 1. 1. Harshad V. Doshi https://hcservices.ecourts.gov.in/hcservices/ 2. Pravin Jain 3. Manju Jain 4. Yogita Jain 5. Hetal M. Doshi 6. Yashumthi H. Doshi All represented by their Power Agent Mr. Mehul Doshi, Chennai. ... Petitioners in W.P.17291/05 S. Sathish Kumar ... Petitioners in W.P.20969/05 Kishorekumar Gokaldas ... Petitioners in W.P.24805/05 Cosmo Foundations Limited Through its Director Mrs. Vimalamma Chennai-17 ... Petitioners in W.P.28785/05 Kamalesh Kumar Seth ... Petitioners in W.P.33278/05 A. Nirmal Gadhiya ... Petitioners in W.P.33279/05 M. Chandru ... Petitioners in W.P.33505/05 1. Rafiqua Asroph Ali 2. Minor. Riyasudeen 3. Minor Sirasudeen Minors 2 & 3 rep by mother and next friend 1st Petitioner 4. Nirmal Gadhiya ... Petitioner in W.P.6471/06 M. Chandru ... Petitioners in W.P.7824/06 M/s. Espee Engineering Works Rep by its Proprietor Mr.S. Periyannan Chennai. ... Petitioners in W.P.30290/06 M. Chandru ... Petitioners in W.P.34702/06 R. Ravindran ... Petitioner inw.P.34741/06 vs. 1. The Member Secretary Chennai Metropolitan Development Authority, Thalamuthu Natarajan Building, Chennai 600 008. ... 1st Respondent in W.P.Nos. 304, 7459, 8433/03 6006, https://hcservices.ecourts.gov.in/hcservices/ 6256, 6926, 10440, 29434, 30602 of 2004, 2636/05 4409, 11821, 11822, 16683, 20969, 24805, 28785/05 6471, 7824/06, 30290, 34702 and 34741 of 2006 and 2nd Respondent in W.P.Nos.10682/02, 755/03, 33680/03, 17291/04 and Respondent in W.P.Nos.33278, 33279 and 33505/05 2. The Chairman cum Managing Director Chennai Metro Water & Sewerage Board No.1, Pumping Station Road Chennai 600 002. .. 2nd Respondents in W.P.Nos. 304/02, 8433/03, 6006/04, 6256, 6926, 10440, 29434, 30602/04, 2636/05, 4409, 11821, 11822, 16683, 20969, 28785, of 2005, 6471, 7824,/06, 30290, 34702 and 34741 of 2006 and 3rd Respondent in W.P.10682/02, 755/03, 7459, 33680 & 24805/05 The State of Tamilnadu rep by Secretary to Government Housing and Urban Development Department, Fort St. George, Chenani ... 1st Respondent in W.P.10682/02, 755/03, 33680/03, 17291/05 ... 2nd Respondent in W.P.7459/03, 24805/05 Petitions filed under Article 226 of the Constitution of India praying for issuance of a writ of Certiorarified Mandamus, Mandamus as well as Declaration as stated therein. 1. certiorarified Mandamus calling for the records 1. relating to the impugned letter of the 1st respondent vide letter No.1. B1/28661/2001 dated 20.12.2001 and 2. C3/13607/2002, dated 7.3.03 https://hcservices.ecourts.gov.in/hcservices/ to quash the same and directing the first respondent to release the planning permission approval to the Petitioner forthwith, (in w.P.304/02, 8433/03) 2. of the 2nd Respondent dated 14.3.2002 in Lr.No.C3/23233/01 and quash the same in so far as it relates to payment of Infrastructural Improvement charges and consequently direct the respondents to grant planning permission for construction of dwelling units at Door Nos.54 to 56, Wallajah road, Chennai without insisting on Infrastructural Improvement charges which is unreasonable. in W.P.10682/02) 3. second respondent dated 16.12.2002 in Lr.No.C3/21501/2002 received on 17.12.2002 and quash the same in so far as it relates to payment of Infrastructural Improvement charges and consequently direct the grant of planning permission for construction of dwelling units at NO.117/1, L.B. Road, Adyar, Chennai-20 without insisting on payment of Rs.6,12,000 towards Infrastructural Improvement Charges or any other levy which is unreasonable in W.P.755/03 4. Writ of Mandamus forbearing the Respondents from collecting a sum of Rs.2,92,000/- as Infrastructure Development charge payable to CMWSSB in the first respondent letter dated 7.11.2002 in C3/29560/2001 (in W.P.7459/03) 5. Declaration that section 6 (XII-a) and section 81(2) (ii) of Madras Metropolitan water supply Sewerage Board Act 1978 as amended by Act 49/1998 prescribing demand of infrastructure development charges is arbitarary illegal un constitutional unenforceable in law so far as the Petitioner is concerned and consequently forbearing the respondents from enforcing the letter No.C3/54769/2000 dated 27.5.2002 n the file of the 2nd respondent demanding Rs.25,37,500/- towards infrastructure development charges (in W.P.33680/03) 6. Declaration declaring that the amended section 6(2) (XII-a) 81 (2) (jj) of Chennai Metropolitan Water Supply and Sewerage Board Act are ultra vires unconstitutional Arbitrary and colourable exercise of power and forbearing the second respondent from insisting the payment of infrastructure and development charges on behalf of 1st respondent for issuing planning permission which are not permissible in law. (in W.P.6006/04,, 6256, 6926,10440, 29434, 30602/04, 2536/05, 4409/05, 11821, 11822, 16683, 20969, 28785, 33278, 33279, 33505/05, 6471/06, 7824, 34702 & 34741/06) 7. Declaration declaring rule 19(b) III B of Development Control Rules as ultra vires the Tamilnadu town and Country planning Act and condition (vi) of the letter dated 28.4.2005 as illegal, https://hcservices.ecourts.gov.in/hcservices/ unconstitutional and unenforceable so far as it relates to the demand of security deposit and infrastructure charges for the proposed development and consequently direct the 2nd respondent to issue planning permission of the petitioner without insisting on payment of security deposit of Rs.18,44,000/- and Infrastructure Development charges to CMWSSB of Rs.11,80,000/- as per letter dated 28.4.2005 No.C3/16340/2004 on the file of the 2nd respondent (W.P.No.17291/05) 8. Mandamus forbearing the respondents from collecting a sum of Rs.4,21,000/- as Infrastructure Development charge payable to CMWSSB the third respondent herein in the first respondent Letter dated 22.7.2005 in Letter No.C3/13752/2004 (in w.P.24805/05) 9. Declaration that declaring that the amended section 6(2) (XII-a) 81 (2) (jj) of Chennai Metropolitan Water supply and Sewerage Board Act are ultra vires, unconstitutional arbitrary and colourbale exercise of power and forbearing the 1st respondent from insisting the payment of infrastructure and development charges on behalf of 2nd respondent for issuing planning permission for the proposed constructions of BF+Stilt floor + 6 Floors + 7th Floor Part of IT Building at Plot No.5 (NP_ JAwaharlal Nehru Road, Thiru Vi ka Industrial estate Guindy, Chennai which are not permissible in law (W.P.NO.30290/06 Mr.R. Thiyagarajan, Senior Counsel for Mr.S. Sundaresan for petitioner in W.P.Nos.304/02, 8433/03, 6256, 6926, 29434, 10440, 30602/04, 4409,/05 6006/04 11821, 11822, 33505, 33278, 33279/05, 6471, 7824, 30290, 34702 and 34741 of 2006. Mr. K.V. Babu for petitioner in WP.No.7459/03. Mr. K. Venkatasubramanian for petitioner in WP.Nos.755/03 and 10682/02. Mr. A.R. Karunakaran for petitioner in WP.No.17291/05. Mr. P. Vasudevan for petitioner in WP.No.24805/05. Mr. P.B. Ramanujam for petitioner in WP.No.33680/03. Mr. M.L. Joseph for petitioner in WP.No.2636/05. Mr. G. Durairaj for petitioner in WP.No.16683/05. Mr. K. Dharanidharan for petitioner in WP.No.20969/05. https://hcservices.ecourts.gov.in/hcservices/ Mr. R. Mohan for petitioner in WP.No.28785/05. For respondents : Mr. S. Ramasamy Addl. Advocate General assisted by Mr. K. Ilango, Spl.G.P. For Metro Water in all cases. Mr. J. Ravindran for CMDA. COMMON JUDGMENT (Judgment of the Court, delivered by P. SATHASIVAM,J.) The petitioners are builders, developers and individuals, who applied for planning permission before the Chennai Metropolitan Development Authority (in short, 'CMDA'). Most of them seek for the issuance of Writs of Declaration, declaring that the amended Sections 6(2)(xii-a) and 81 (2) (jj) of the Chennai Metropolitan Water Supply and Sewerage Act, 1978 (in short, 'the CMWSS Act') are ultravires, unconstitutional, arbitrary and colourable exercise of power and forbearing the CMDA from insisting the payment of infrastructure and development charges on behalf of Chennai Metropolitan Water Supply & Sewerage Board (in short, 'the CMWSSB') for issuing planning permission which are not permissible in law. In some of the writ petitions, seeking for the issuance of Writs of Certiorarified Mandamus, the main challenge relates to demand of Infrastructure Development Charges (IDC) by the CMDA on behalf of CMWSSB; while in other Writ Petitions, the prayer is for the issuance of Writs of Mandamus, forbearing the CMDA from collecting IDC on behalf of CMWSSB. Since the main issue relates to the validity of the amended provisions in the CMWSS Act, all the writ petitions are being disposed of by the following common Judgment. 2. For convenience, we shall refer the case of the petitioner in WP.No.34702 of 2006. According to the petitioner, he is the owner of the property situate at Door No.18/1, East Coast Road, S.No.205/3 Part, 4A, 5A, 8 and 10, T.S.No.26, Block No.42 of Thiruvanmiyur Village, Chennai 600 041. He applied for planning permission to the CMDA for construction of additional Block of Stilt Floor + 11 floors residential building with 64 dwelling units annexing to the existing BF + GF + 4 floors building with 18 dwelling and commercial use in the said property and his application was received by the CMDA on 08.11.2005. The CMDA, by letter dated https://hcservices.ecourts.gov.in/hcservices/ 08.09.2006, directed the petitioner to pay sums under various heads, which included Rs.5,30,500/- towards IDC payable to CMWSSB by CMDA. Neither the Tamil Nadu Town and Country Planning Act, 1971 (in short, 'the T&CP Act') nor the CMWSS Act, 1978, prescribes any amount or provides for any specific rate payable towards development of infrastructure facility relating to Metro Water and Sewerage connections. According to him, by virtue of Sections 9E, 49, 59, 60, 61, 62 and 63 A of the T&CP Act, the CMDA has no power to collect IDC. Further, in view of Sections 45, 55 and 56 of the CMWSS Act, the CMWSSB is obliged to effect water supply and provide sewerage connection since the proposed building comes within the Corporation limit and there are water lines of the CMWSSB within 30 meters from the site of the petitioner. Inasmuch as the site meets all the requirements contemplated under Sections 45, 55 and 56 of the CMWSS Act, and there is no infrastructure facility involved, the CMDA cannot make an arbitrary demand, which is equal to six times the development charges, under the guise of approving the planning permission. Both the T&CP Act and the CMWSS Act do not envisage or enable the first respondent to claim such an amount and no power is vested with them to reject the approval on the ground of non-payment of IDC. Fixing up of Rs.64/- per sq. metre is arbitrary and there is no nexus between the claim and the area of development. There is no such provision enabling the CMWSSB to authorise CMDA to collect/recover the amount. 3. The second respondent - CMWSSB has filed a counter affidavit, wherein, it is stated that Section 63-A of the T&CP Act enables the CMDA to pay to CMWSSB the charges levied and collected towards provision for or improvement of water supply or sewerage service. The amended provisions, viz., 6(2)(xii-a) read with Section 81(2)(jj) of the CMWSS Act, empowers the CMWSSB to collect IDC from the applicant, builder or developer of such multistoreyed buildings or special buildings as may be prescribed for provision of adequate water supply or sewerage connection so as to ensure the availability of infrastructure proportionate to the growing city population and rapid developmental activities. Government Order 146, dated 02.06.1998, prescribes the charges to be collected as IDC by CMDA and paid over to CMWSSB. The IDC is collected by the CMDA to avoid duplication of work and to make the process simple under single window system. The said process is legally valid and enforceable. Section 60 of the T&CP Act specifies the rates at which the development charges shall be collected from the applicant, and the claims are being made by the CMDA as per the provisions therein. The rules specified in Section 81(2)(jj) of CMWSS Act provides for collection of IDC by CMWSSB. The rate at which IDC is to be collected will vary from time to time and the rate is enforced by CMWSSB with the approval of the competent authority. The IDC is collected only to render service and to strengthen and maintain the water supply and sewerage infrastructure in Chennai City. The CMWSSB has delegated the power https://hcservices.ecourts.gov.in/hcservices/ to CMDA to collect the IDC on its behalf by making proper regulations, which are in accordance with the Act. The CMWSSB is collecting IDC at the rate of Rs.64/- per sq.mt. for the proposed construction. The petitioner's statement that CMWSSB demands a sum equivalent to the cost of construction is incorrect. Sections 45 and 56 of CMWSS Act deals with charges for consumption of water and guidelines for availing water and sewerage connections, whereas the IDC is collected for the overall development of infrastructure. The amended provisions are valid and there is no ground for interference. 4. In the light of the above pleadings, we heard the learned counsel appearing on either side. 5. First, let us enumerate the contentions raised by the respective sides. 6. Contentions of the petitioners:- (a) The impugned provisions, viz., Section 6 (2) (xii-a) and Section 81 (2) (jj) of CMWSS Act, are ultra vires, arbitrary and unconstitutional. The above provisions do not prescribe any rate for Infrastructure Development Charges (IDC). (b) The demand of IDC payable to CMWSSB has no nexus to the main scheme of the Act and the demand itself is illegal. (c) The Board did not pass any regulation and fixing up of Rs.64/- per sq. metre is arbitrary and there is no nexus between the claim and the area of development. (d) The amended provisions are contrary to Sections 45 and 56 of CMWSS Act. (e) As per the Preamble of the Act, it is for the Board to provide the infrastructure for effecting service connections to the buildings in Chennai City. The present demand towards IDC is not sustainable. (f) In any event, CMDA has no power/authority to collect charges on behalf of CMWSSB. 7. Reply by the respondents:- (i) Section 63-A of the T&CP Act enables the CMDA to apportion the development charges relatable to provision for or improvement of water supply or sewerage service and to spare those charges with CMWSSB. https://hcservices.ecourts.gov.in/hcservices/ (ii) The amended provisions empower the Board to collect IDC so as to have resources/availability of infrastructure commensurable to the growing city population and enormous construction activities. (iii) The amendment specifies the manner and basis on which IDC shall be collected. (iv) Government Order in G.O. No.146, dated 02.06.1998, and the Regulations authorise the CMDA to collect IDC. (v) In order to help the consumers, by applying the Single Window System, CMDA collects IDC at the time of processing the Planning Application in respect of Special and multi-storeyed buildings and the same is being paid to CMWSSB. 8. Since all the above mentioned issues are interconnected, we proceed to consider the same collectively in the following paragraphs. 9. The impugned provisions are as follows:- I. " 6. Powers of the Board - (1) ....... (2) Without prejudice to the generality of the foregoing provision, the Board shall have power - .......... .......... .......... (xii-a) to collect infrastructure development charges from the applicant, builder or developer of such multi-storeyed building or special building as may be prescribed, for the provision of adequate water supply or sewerage. " II. " 81. Power to make regulations - (1) .......... (2) In particular and without prejudice to the generality of foregoing power, such regulations may provide for all or any of the following matters, namely:- ............. ............. ............. (jj) the manner of and the basis on which the infrastructure developments charges shall be collected." https://hcservices.ecourts.gov.in/hcservices/ 10. CMWSS Act, 1978, was enacted to provide for the constitution of the Chennai Metropolitan Water Supply and Sewerage Board for exclusively attending to the growing needs of and for planned development and appropriate regulation of water supply and sewerage services in the Chennai Metropolitan Area with particular reference to the protection of public health and for all matters connected therewith or incidental thereto. 11. Chapter-VII of the T&CP Act, particularly Sections- 59 and 63-A, deals with levy, assessment and collection of Development Charges by the planning authorities and apportionment of certain development charges. Section-59 enables the CMDA to levy development charges on the institution / change / use of any land or building or development of any land or building for which permission is required as provided in Section-60. Sub-section(3) of Sec.59 makes it clear that the development charges shall be leviable on any person who undertakes or carries out any such development or institutes or changes any such use. Sections-61 and 63 provides the procedure to be followed for 'assessment of development charges' and 'recovery of development charges'. Section 63-A, dealing with apportionment of development charges, provides that CMDA shall pay to CMWSSB those charges relatable to provision for or improvement of water supply or sewerage service in the Chennai Metropolitan Planning Area. 12. In order to tackle the crisis in providing better facilities to all on account of the growing city population, development and enormous construction activities, the Government introduced Section 6(2)(xii)(a) enabling the CMWSSB to collect the IDC from the applicant, builder or developer of prescribed multistoreyed buildings or special buildings for providing water and sewerage connections. Section 81 of the CMWSS Act enables the Board to make regulations for carrying out the purposes of the Act. Clause(jj) of Section 81(2) empowers the Board to prescribe the manner in which the IDC is to be collected. It is not in dispute that the State is competent enough to bring forward such provisions. The main grievance of the petitioner is that inasmuch Sections-45 and 56 of the CMWSS Act take care of provision of water supply and sewerage connection and the applicants/persons concerned have to pay necessary charges for the same, there is no need to pay IDC. 13. Chapter-VI of the CMWSS Act speaks about Water Supply and Sewerage. Section-45 reads as follows:- " 45. Water connections for domestic consumption and use - (1) The authorised authority shall, on the application by the owner or occupier of any building or premises, arrange to supply water thereto for domestic consumption https://hcservices.ecourts.gov.in/hcservices/ and use if - a) the building or premises is within thirty metres of a main of the Board from which water can be supplied; and b) the cost of all works necessary for that purpose shall be borne by the applicant: Provided that the authorised authority may arrange for supply even if the building or premises is beyond thirty metres as aforesaid if the applicant agrees to bear all costs and expenses and if the supply is otherwise practicable." 14. Section-56, dealing with Sewerage connections, reads as follows:- " 56. Sewer connections:- (1) The authorised authority shall, on the application of the owner or occupier of any premises or the owner of a private street, arrange for the applicant's house-sewer or other sewer in the private street to empty into a sewer of the Board if- (a) there is a sewer of the Board within thirty metres of the nearest point from such premises or property; (b) the owner or occupier agrees to bear all cost and expenses of the work and materials necessary for that purpose; (c) the owner or occupier complies with such conditions and requirements as may be prescribed. (2) If there is a public sewer or other place set apart by the Board for the discharge of the sewage within a distance not exceeding thirty metres of the nearest point on any premises, or if within such distance, a Board's sewer or other place for the discharge of sewage is about to be provided or is in the process of construction, the authorised authority may- (a) by notice direct the owner of the said premises to construct a sewer leading therefrom to such sewer or place and to execute all such works as may be necessary at such owner's expense, or (b) cause to be constructed a sewer leading from the said premises to such Board's sewer or place and cause to be executed all such works as may be necessary: Provided that - https://hcservices.ecourts.gov.in/hcservices/ (i) not less than fifteen days before constructing any sewer or executing any work under clause (b), the authorised authority shall give notice to the owner of the nature of the intended work and the estimated expenses recoverable from the owner; and (ii) the expenses incurred by the authorised authority in constructing any sewer or executing any work under clause (b) shall be recoverable from the owner in such instalments as the Board may deem fit and recoverable in the same manner as tax under this Act. " 15. The above provisions, viz., Sections-45 and 56 of the CMWSS Act, make it clear that on the application by the owner or occupier of any building or premises, if the building is within 30 metres of a main of the Board from which water can be supplied, on payment of costs of all works, necessary water connection will be provided. In the same way, sewerage connection is also to be provided as per Section-56. Here again, it empowers the authority to recover the expenses incurred in constructing any sewer or executing any work. It is also clear that the expenses for water/sewerage connection from the building or premises upto a main of the Board is to be borne out by the owner or occupier of the building or premises. In fact, the petitioners have not quarrelled about those charges payable by the owner of the premises. However, one has to bear in mind that, in order to draw water from various sources to meet the need of the people and also clear the sewage, the Board has to prepare a plan and spend huge money for the same. In those circumstances, merely because the owner or occupier of a building or premises has just paid the costs of the works necessary for getting connection, it cannot be contended that CMWSSB is not entitled to collect any other amount including IDC. As explained by the Additional Advocate General, in view of the increasing population and sudden rise in building activities, the Board has to lay main lines to take water from various sources and sewer lines to take the drain water outside the habitations, for which, undoubtedly, huge resources are required. Further, it is the admitted fact that the claim on IDC is not applicable to all buildings. It applies only to Special and multistoreyed buildings. It is also not in dispute that those buildings are being used by large number of people by virtue of more dwellings and, in that event, it is the responsibility of the Board to provide adequate quantity of water and also make effective arrangements to clear the sewage. In such circumstances, it cannot be contended that the demand of IDC has no nexus to the main scheme of the