IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:09.12.2009 CORAM: THE HON’BLE MR.JUSTICE T.S.SIVAGNANAM W.P.No.19251 of 1998 & W.M.P.No.29179 to 29181/98 M/s.Sood and Sood Builders Pvt Ltd. Represented by its Authorised Signatory Mr.M.Hariharan 3, Maneshst, T.Nagar, Chennai-17 ... Petitioner Vs Chennai Metropolitan Development Authority, 8 Gandhi Irwin Salai, Egmore, Chennai – 600008, rep. By its Member Secretary. ... Respondent Prayer : The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Certiorarified mandamus to call for the records comprised in the proceedings of the respondent dated 20.10.1998 and 26.11.1998 bearing No.Lr.No.C3/19511/97 and quash the said proceedings in so far as it pertains to demand for open space reservation charges at Rs.49,40,000 and the Security deposit for proposed development at Rs.16,91,000 as illegal and unconstitutional and consequently direct the respondent to forthwith grant planning permission sought for by application dated 23.09.1996 in respect of Development at 115 Theagaraya Road, T.Nagar, Chennai-17 without in and manner insisting upon payment of Open Space Reservation Charges and Security Deposit for Development. For Petitioner : Mr.Rahul Balaji for Mr.Satish Parasaran For Respondent : Mr.C.Kathiravan for CMDA O R D E R The challenge is to an order passed by the Chennai Metropolitan Development Authority, the sole respondent herein, which pertains to a demand for Open Space Reservation Charges at Rs.49,40,000/- and Security Deposit for the proposed development at Rs.16,91,000/- and consequently, to direct the respondent to grant planning permission sought for by application dated 23.09.1996 without insisting upon payment of open space reservation charges and security deposit. 2. It is brought to the notice of this Court that pursuant to an interim order granted by this Court on 08.12.1998, which was modified on 24.12.1998 in W.P.M.P.No.30339/1998, a stay had been granted of the impugned demand subject to the condition that the petitioner should deposit 25% of the open space reservation charges and furnish https://hcservices.ecourts.gov.in/hcservices/ bank guarantee for the security deposit demand and on such condition, the planning permission to be processed. Therefore, learned counsel appearing for the petitioner submits that the planning permission has since been granted and all that is required to be adjudicated in the present writ petition is as to whether to the impugned demand is legally sustainable. 3. The facts leading to the filing of the writ petition are that the petitioner submitted an application on 23.09.1996 to the respondent for grant of planning permission for putting up the Hotel building comprising of double basement floor, ground floor plus ten floors at T.S.Nos. 4860, 7025 and 7026, Block No.113, Door No.115, Theagaraya Road, T.Nagar, Chennai – 17. It is stated that the property comprised in T.S.No.4860 and 7025 measuring 36416 sq. ft. faces Theagaraya Road and T.S.No.7026 measuring 11064 sq. ft. faces Boag Road. According to the petitioner, the property in question was acquired by them by a registered sale deed dated 09.12.1994, which transaction was after the prior approval of the competent authority under the Income Tax Act. 4. The petitioner would further submit that their application was taken up for consideration, in terms of the Special Rules for Multi-Storeyed Buildings as contained in Annexure – IX framed under Rule 17(a) of the Development Control Rules. According to the petitioner, the Panel of Experts constituted under the said Rule had cleared the petitioner planning proposal as on 23.12.1996 and based on the report of the expert panel, the approval of grant of planning permission by the Government was granted only on 02.01.1998. However, the first respondent by communication dated 20.10.1998, directed the petitioner to pay the development charges (DC), Open Space Reservation Charges (OSR), Security Deposit (SD) and Security Deposit for display board. A representation appears to have been submitted by the petitioner on 28.10.1998, requesting the respondent for the reviewing the demand. It is stated that the respondent without properly appreciating the objections raised has passed the order dated 26.11.1998, which is impugned in this Writ Petition. 5. Mr. Rahul Balaji, learned counsel appearing for the petitioner would assail the correctness of the order on several grounds. Firstly, the learned counsel contended that the demand for OSR is contrary to the provisions of the Special Rule relating to Multi- Storeyed Buildings (hereinafter as refer to "the MSB"), since the respondent cannot take into account the roads and circulatory passage inside the property used for passage of vehicles and for parking to be set back spaces under the DCR and they have to be excluded while calculating the open space and cannot be included for levying any open space reservation charges. 6. The next contention being that the demand for OSR charges shall be on the market value of the property as on the date of https://hcservices.ecourts.gov.in/hcservices/ submission of the planning permission and not on the market value prevailing on the date of sanction. The third contention of the learned counsel is that since the property in question faces both Boag road and Theagaraya road, the market value in respect of the lands situated in Theagaraya road and Boag road should have been taken while calculating the OSR charges and the respondent ought not to have adopted a uniform rate. 7. Mr.C.Kathiravan, learned standing counsel appearing for the respondent would contend that the issue raised in the present writ petition has been settled by a Division Bench of this Court in a decision in Hotel Atlantic Private Limited Vs. State of Tamil Nadu, [CDJ 2007 MhC 409] and therefore, the writ petition has to be dismissed. The learned standing counsel by relying upon the averments made in the counter affidavit would contend that there is no road provided by the petitioner and the set-back spaces, private parking and driveaway spaces provided as per the requirement under DCR and retained by the petitioner for their enjoyment cannot be meant to be a road under Rule 17 of DCR r/w the Special Rules for MSBs. In reply, the learned counsel appearing for the petitioner would contend that this Court in Review Application No.28/1998 in W.P.7246/1998 dated 11.05.1999 held that the petitioner therein is entitled for exclusion of road and other open spaces while computing the OSR charges and therefore, the petitioner herein is also entitled to exclude the portion left as road. 8. I have carefully considered the submissions on either side and perused the materials available on record. 9. As stated above, the learned counsel appearing for the petitioner has raised three contentions before this Court, as regards the validity of the impugned order, which are dealt with in the following order. The second of such contention, being that what would be the appropriate value to be taken for the purpose of calculating the OSR charges. According to the petitioner the guideline value, which were prevailing on the date of submission of the application for planning permission alone shall be taken. In fact, this question came up for consideration before the Hon'ble Division Bench in the case of Atlantic Hotel Private Limited referred supra on the Hon'ble Division Bench held: "6. If we accept the case of the petitioner that the guideline value prevailing on the date of application alone has to be taken note of for the fixation of OSR charges, it would lead to a situation that everyone would prefer to make application without complying with the conditions. Merely because the Panel approved the recommendations of the CMDA, it cannot be claimed that the petitioner's application was in order in all respects and it is entitled to planning https://hcservices.ecourts.gov.in/hcservices/ permission as of right. We have already referred to the various conditions to be fulfilled, and on receipt of NOCs from various authorities, the proposal was forwarded to the Government on 23.08.1998. In such circumstances, it cannot be claimed that the delay was on the part of the respondent. Even if we accept that there is delay, it cannot be claimed that the respondent is responsible for the same." Hence, in view of the above decision of the Hon'ble Division Bench, this contention raised by the learned counsel appearing for the petitioner cannot be sustained. 10. The next contention raised by the learned counsel appearing for the petitioner is that the property in question falls in two roads namely Boag road and Theagaraya road and the respondent ought not to have adopted uniform value while calculating the OSR charges. The respondent in the counter affidavit, have stated that the site in question is a reconstitution of three survey Nos. and two survey Nos face Theagaraya road and one faces North Boag road and for planning purposes, the entire site is construed as a single site because of the reconstitution and the Theagaraya road has a width of more than 18 metres, has been taken into consideration for permitting a Multi- storeyed Buildings in the reconstituted site and if the site facing North Boag Road had been reconstituted with the other site, the petitioner would not be got the approval for a MSB. Thus, I am convinced with the reasoning given by the respondent more so because Theagaraya road was taken into consideration for grant of approval and the petitioner had an advantage of additional Floor Space Index (FSI) and therefore the petitioner cannot contend that the valuation procedure as adopted was untenable. If the interpretation made by the petitioner is to be accepted then the petitioner could not have achieved FSI of 2.5 metres, since if the North Boag road is taken into consideration, the petitioner would have been permitted an FSI of 1.5 metres only. Therefore, the petitioner cannot be permitted to approbate and reprobate and attempt to take advantage of both situations. Hence, the third contention raised by the petitioner does not merit consideration. 11. The third contention raised by the learned counsel is that while computing the OSR charges, the car parking area, the road and circulatory area have to be excluded. In the counter affidavit, it has been stated that there is no road provided as claimed by the petitioner and only when a road is proposed and gifted to the local body for the use of the public such road area will be deducted from the site extent. According to the respondent, the space referred to by the petitioner is a parking space with driveaway requirement which forms part of minimum set-back space required to be provided between the building and the site boundary as per Development Control Rules and the side set-back spaces, private parking and driveaway spaces cannot be construed as roads. https://hcservices.ecourts.gov.in/hcservices/ 12. Special Rules for Multi-Storeyed Buildings have been framed under Rule 17 (a) of the Development Control Rules. Rule 3 of the Special Rules deals with Set-back spaces, which are around and about the building and shall be permanently open to sky forming on integral part of the site and minimum extent specified in the Rule between each of the boundaries of the site and building proposed within the site. In terms of Rule 3 (c) the set-back space shall be kept open to sky and free from any projection of any building other than a fence or compound wall provided that these open yards may be used for the provision of access ways to buildings/parking facilities. Rule 5 of the Special Rules deals with parking and parking facility for the use of the occupants and persons visiting the premises, conforming to the standards specified in Annexure XIII under Rule 20 of the Development Control Rules. 13. In terms of Rule 5(1)(b) provision shall be made for circulation of vehicles gaining access to and from the parking spaces and the premises, into the street. These parking spaces and facilities provided shall be maintained as such to the satisfaction of the Commissioner and conforming to any bye-law that may be made by the Corporation of Chennai. Rule 11 of the Special Rules deals with Reservation of land for communal and recreational purposes and the area to be reserved depends upon the extent of site. The extent of the site in the present case is more than 3000 sq. metres and less than 10000 sq. metres and in terms of clause b of Rule 11, the petitioner is required to reserve 10% of the area excluding roads or in the alternative, they shall pay the market value of the equivalent land excluding the first 3,000 square metres as per the valuation of the Registration Department. The space so reserved shall be maintained for communal and recreational purposes. 14. In terms of explanation (3) to Rule 11, the reservation shall be exclusive of the set-back spaces provided in terms of Rule 3. Therefore, what is contemplated under the Rule is reservation of 10% area, which shall exclude roads and in terms of the explanation -3 such reservation shall be exclusive of set-back spaces as prescribed in Rule 3. Thus, I am unable to accept the contention of the learned counsel appearing for the petitioner that the circulatory area or the pathway around the building which would essentially be part of the side set-back as provided under Rule -3, should be taken into consideration for the purpose of computing the area to be reserved under Rule 11. As already noted the set-back spaces around the building could be used for provision of access way to the building/parking facility in terms of Rule 3(c), and therefore such access ways cannot be termed to be a road under the scheme of the Tamil Nadu Town and Country Planning Act, Development Control Rules and the Special Rules for Multi-Storeyed Buildings. 15. The learned counsel appearing for the petitioner by placing reliance on the unreported Judgment of this Court in Review https://hcservices.ecourts.gov.in/hcservices/ Application No. 28 of 1998 dated 11.05.1999 would contend that the area of the road has to be excluded. It is true that in terms of clause b of Rule 11 the area to be reserved by the petitioner shall be 10% of the area excluding roads. The question as to whether there is a road in existence is a question of fact to be decided by the planning authorities on the application submitted by the petitioner. In fact in the counter affidavit, it has been specifically stated that the petitioner has confused the side set-back spaces and driveaway and parking spaces with that of a public road. 16. Admittedly, the development by the petitioner is not a housing layout, but a multi-storeyed building for establishing a Hotel. There is no document to prove that apart from the side set- back spaces access ways and parking facility, any road has been provided by the petitioner on site. The Tamil Nadu Town and Country Planning Act and the Development Control Rules are a complete and self contained code for regulating the development. Therefore, the term "road" has to be interpreted bearing in mind the interim of statue and if such interpretation is made, the answer would be, a road to mean a public road which has been specifically set apart and handed over to the local authority for management and control and to be preserved as such. It is to be noted that under Rule 11 the reservation of land contemplated as for communal and recreational purposes, meant to be used and enjoyed by the public. For computing such area, roads are excluded. It is not the case of the petitioner that apart from the side set back spaces, which are used as access ways and parking lot, a road has been provided for. Therefore the contention raised by the petitioner cannot be acceded. 17. However, from the facts of the present case, I do not find any such public road on the site, which has been developed by the petitioner. Therefore, the first contention raised by the learned counsel appearing for the petitioner does not merit acceptance. 18. In the result, the Writ Petition fails and accordingly the same is dismissed. However, there will be no orders as to costs. Consequently, connected miscellaneous petition are also dismissed. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar pbn To The Member Secretary. Chennai Metropolitan Development Authority, 8 Gandhi Irwin Salai, Egmore, Chennai – 600008, https://hcservices.ecourts.gov.in/hcservices/ +1 CC to M/s.Satish Parasaran , Advocate, Sr.67666 +1 CC to Mr.C.Kathiravan, Advocate, Sr.67629 W.P.No.19251 of 1998 LA (CO) SRA 17/12/2009 https://hcservices.ecourts.gov.in/hcservices/