IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:30.04.2008 CORAM: THE HON'BLE MR. JUSTICE P.JYOTHIMANI WRIT PETITION NOS.37187 and 37793 of 2007 and other connected miscellaneous petition. 1.Mr.D.H.Sarath K.Kumar 2.Mr.D.Venkaatesh 3.Mr.D.N.Choudery .. Petitioners in both the Wps. vs. 1.The Government of Tamil Nadu rep. by its Secretary to Government Housing and Urban Development Department, Fort St.George Chennai 600 009. 2.Chennai Metropolitan Development Authority (CMDA) rep. by its Member Secretary Thalamuthu Natarajan Building No.1, Gandhi Irwin Road Chennai 600 008. .. Respondents 1 & 2 in both the Wps. 3.Karapakkam Village Panchayat rep. By its President No.1/101, Gangai Amman Koil Street Karapakkam, Off Old Mahabalipuram Road Chennai 600 097. 4.Sholinganallur Town Panchayat rep. By its President Old Mahabalipuram Road Next to Indian Bank Sholinganallur, Chennai 600 119. 5.Chettinad Builders Pvt. Ltd. Rep. By its Manager No.603, Rani Seethai Hall 3rd Floor, Chennai 600 006. .. Respondents 3 to 5 in WP.No.37793 of 2007. https://hcservices.ecourts.gov.in/hcservices/ W.P.37187/07 Petition presented under Article 226 of the Constitution of India, to issue a Writ of Certiorarified Mandamus, calling for the records of the 2nd respondent culminating in its communication bearing Letter No.C3/8922/07 dated 31.7.07 issued by the 2nd respondent refusing planning permission for the proposal submitted by the petitioners quash the same and direct the Respondent to consider and grant planning permission under the Town and Country planning Act, 1971, to the petitioners for their project at Survey Numbers 167/2C, 3C, 2D, 3D, 2E, 3E1, 1C, 1J, 1K, 1M1, 1M2,2E2,3E2 of Karapakkam Village, Old Mahabalipuram Road. (ii) Writ of Mandamus directing the respondents 1 and 2 not to include the petitioners property at Karapakkam village old Mahabalipuram Road and comprised in survey Numbers 167/2C,3C,2D,3D, 2E,3E1,1C,1J,1K,1M1,1M2,2E2,3E2 in the proposed 200 feet road in the new Master plan for Chennai Metropolitan Area and the concerned Detailed Development Plan in WP.37793/07. For petitioners : Mr.Sriram Panchu,Sr.Counsel for Mr.G.Swaminathan For respondents : Mr.N.Senthilkumar Government Advocate for R.1 in both the WPs. Mr.C.Kathiravan for R.2 in both the WPs. Mr.K.Elango for R.4 in WP.No.37793 of 2007. No appearance for R.3 and R.5 in WP.37793/07 .. COMMON ORDER Both the writ petitions are filed by the same petitioners. While W.P.No.37187 of 2007 is filed challenging the proceedings of the second respondent, Chennai Metropolitan Development Authority (CMDA) dated 3.07.2007, refusing to grant planning permission to the petitioners and consequently to direct the CMDA to grant planning permission under the Tamil Nadu Town and Country Planning Act,1971 to the petitioners to their project at Survey Nos.167/2C, 3C, 2D, 3D, 2E, 3E1, 1C, 1J, 1K, 1M1, 1M2, 2E2, 3E2 of Karapakkam Village, Old Mahabalipuram Road, the other writ petition, viz., W.P.No.37793 of 2007, is for direction against the respondents, particularly with reference to the Government and CMDA, not to include the said property of the petitioners comprised in the above said Survey Numbers in the proposed 200 feet road in the new Master Plan for the Chennai Metro area and the concerned detailed development plan. https://hcservices.ecourts.gov.in/hcservices/ 2. The petitioners, who are the brothers are joints owners of the property measuring an extent of 3.45 acres comprised in the above survey numbers in Karapakkam Village, Old Mahabalipuram Road (OMR). The petitioners came to know that OMR is being developed into an Information Technology Highway, there was a proposal for Outer Ring Road (ORR) passing through OMR connecting the East Coast Road (ECR). Therefore, before purchasing the property in the above said survey numbers, in order to get clarified as to whether the said property would be covered under any acquisition proposal and with that view the second petitioner by his letter dated 04.04.2002 addressed to the Member Secretary, CMDA for issuance of No Objection Certificate for the development of the land at Survey No.167 Karapakkam Village, Old Mahabalipuram Road, indicating various survey numbers under which the property is proposed to be purchased. 2(a). The second respondent, by letter dated 28.05.2002 has requested the second petitioner to furnish the authenticated FMB sketch in respect of the property sought to be purchased for giving correct information and accordingly, by letter dated 10.06.2002, the second petitioner has produced the FMB sketch. After verification of the same, the second respondent by letter dated 01.08.2002, communicated to the second petitioner that the above said survey numbers lie in General Industrial Use Zone and the revised Outer Ring Road alignment is not passing through Karapakkam Village. 2(b). It was, after the said communication from the second respondent, the petitioners have completed the sale transaction, by purchasing the property in the above said survey numbers under 4 sale deeds on 24.10.2002, 15.12.2002, 05.03.2003 and 24.03.2003. Thereafter, on 12.12.2003, the petitioners have submitted an application to the second respondent for sanctioning of the proposal for development of a commercial office building in the above said site and the petitioners also paid Rs.14,200/- towards scrutiny fees along with the application, and thereafter, several documents required by the second respondent were furnished. 2(c). As a temporary measure, the petitioners have put up a temporary asbestos roofing in the above said property and let out to a Company owned by them to stock marbles and granites. Based on the subsequent advise of the architects, the original scheme for commercial office building which was pending with the second respondent, was modified for treating it as a proposal for Information Technology Park ("IT Park") expressing willingness to effect necessary changes, and fresh proposal was sent along with scrutiny fees. At request of the second respondent, the petitioners have also obtained clearance certificate from the Electronics Corporation of Tamil Nadu Limited (ELCOT), which was required by the second respondent as a mandatory. 2(d). The ELCOT, by a letter dated 15.06.2004, informed the second respondent that the petitioners have fulfilled the conditions required for IT Park and are eligible for extra FSI as laid down in I.T. Policy of Tamil Nadu,2002 and the copy of the https://hcservices.ecourts.gov.in/hcservices/ same has been sent to the petitioners also. It was based on the said letter of the ELCOT dated 15.06.2004, the petitioners sent the proposal with necessary documents seeking planning permission. However, by letter dated 19.10.2004, the second respondent has refused to accept the said proposal stating that the site is affected by ORR alignment. Later, the petitioners were orally informed by the second respondent that the said 400 feet proposed road was dropped by the Government due to objections from public. 2(e). It is also the case of the petitioners that the Road Development Corporation has also recommended that the proposed 400 feet Outer Ring Road would be superfluous as there were already 2 roads, one in Thorapakkam (Pallikaranai to OMR) and the other at Sholinganallur (Medavakkam to OMR to ECR) giving proper connecting roads between OMR and ECR. Accordingly, the first petitioner was advised to submit fresh proposal after the 400 feet Outer Ring Road proposal is dropped. The petitioners, later, written to the Road Transport Corporation, for which there was no reply. In the meantime, by letter dated 28.12.2005, ELCOT has communicated the petitioners, requesting details, such as stage of construction, expected date of completion, etc. by referring to the No Objection Certificate dated 15.06.2004, issued for construction of I.T. Building. Thereafter, the petitioners have submitted application to the second respondent on 27.03.2007, seeking approval of planning permission for the proposed IT Multi-storied building at the above said site along with sum of Rs.73,132/- towards scrutiny fees, by complying with various other items informed by the second respondent in the earlier rejection letter issued in 2004. 2(f). It is the case of the petitioners that new Draft Master Plan has been released and as expected by the petitioners, the said 400 feet ORR has been dropped. Public hearing was conducted by the second respondent in Sholinganallur regarding the proposed changes in the plan for Karapakkam village. The petitioners learnt that 400 feet ORR was dropped, however, the petitioners understood that the 400 feet road has been reduced to 200 feet road only to service about three plots in the ELCOT Special Economic Zone situated behind the petitioners plot. Normally, only after the new Draft Master Plan is approved by the Government, the process of delineating the road alignment and identifying the area of road would be made. However, in the public hearing the petitioners were informed by some of the authorities of the second respondent that new 200 feet road would pass through a portion of their property and asking them to file their objections immediately. Thereafter, the petitioners have given their objections stating that there is already 200 feet wide Sholinganallur Medavakkam High Road in existence just 500 metres away from the proposed road, apart from 200 feet Thorapakkam Velachery Road just 3 kms. away from 200 feet road. The petitioners also requested the second respondent to ensure that the 200 feet road would not pass through their property, which was received by the Deputy Planner, Detailed Development Plan Unit of the second respondent on 18.05.2007, for which no reply has been given. https://hcservices.ecourts.gov.in/hcservices/ 2(g). It was thereafter, by the impugned order dated 31.07.2007, the second respondent has refused planning permission for the proposal submitted by the petitioners. The petitioners have informed the second respondent that even though the Master Plan for 400 feet ORR was dropped, only after obtaining No Objection Certificate from the second respondent, they have purchased the property and requested the second respondent to recall the said order of refusal of planning permission. Since the same has not yielded any result, the petitioners challenged the impugned order of the second respondent by filing these writ petitions. 2(h). The impugned order of the second respondent is challenged on various grounds including that the second respondent having given a letter stating that the properties sought to be purchased by the petitioners are not covered by 400 feet ORR alignment, they cannot now go back and hence the doctrine of equity and promissory estoppel applies to the case of the petitioners. It is also challenged on the ground of discrimination, viz., that the second respondent has intimated one J.Ravi, who wanted to purchase the next plot of the petitioners stating that Survey Nos.167/2, 167/3, 168/8A of Karapakkam Village and Survey No.602/A of Sholinghanallur village are affected by ORR Road alignment and based on which the said Ravi has not purchased the property, however, construction has been put up on the said adjoining land. Therefore, the targeting of the petitioners alone is discriminatory and arbitrary in nature. 2(i). It is also stated that the lands behind the petitioners plots were also developed by ELCOT as Special Economic Zone and Companies like Wipro, Satyam and HCL have been allotted vast extent of land and rapid constructions have been put up and therefore, there is no possibility of 400 feet Outer Ring Road at all and according to the petitioners that in spite of dropping of the said 400 feet ORR, the second respondent has refused planning permission to the petitioners. 2(j). It is the case of the petitioners that the existing road connecting OMR and Sholinganallur is being widened into 400 feet road and therefore, there is no necessity to interfere with the properties of the petitioners. Inasmuch as the Government has not yet approved the said 200 feet road, it is not open to the second respondent to reject the planning permission for the petitioners. It is also stated that if at all there is a need to provide a road for the I.T. Companies in the ELCOT special Economic Zone, the same can be achieved by providing a 100 feet wide road through the property belonging to the petitioners neighbour. 2(k). It is also the case of the petitioners that the 200 feet road itself is unnecessary and even if the proposed 200 feet road is approved by the first respondent, Government, it can still be done without affecting the petitioners property. Since the petitioners have purchased the property as per the No Objection Certificate given by the second respondent, they are entitled for protection on the principles of equity. In view of the same, the https://hcservices.ecourts.gov.in/hcservices/ writ petitions are filed challenging the impugned order of the second respondent by which the planning permission proposal given by the petitioners was refused and also for direction against respondents 1 and 2, viz., the Government and CMDA not to include the petitioners property stated above in the new Master Plan for Chennai Metropolitan area and the concerned detailed development plan. 3. The second respondent has filed a common counter affidavit. It is the case of the second respondent, CMDA that while denying the various averments made by the petitioners in the affidavit filed in support of the writ petitions, it is the case of the second respondent that in the Master Plan for Chennai Metropolitan area, Ring Roads were proposed, the Outer Ring Road is one such road proposed in the First Master Plan with right of way of 400 feet. The proceedings of acquisition of land in the stretch between Grand Southern Trunk Road (GST) in the South West and Thiruvottiyur Ponneri Panchetty Road in the North has already been taken up and the acquisitions are expected to be completed by the end of 2008 and action is being taken through Tamil Nadu Road Sector Project. In respect of the South stretch between GST Road and OMR, acquisition by Highways Department is in progress. 3(a). It is the case of the second respondent that originally in the Master Plan, 400 feet wide alignment was proposed between MBI Road junction at Medavakkam to OMR and in the second Master Plan its width was reduced to 200 feet, however, as far as the alignment, there was no change in the private land. It is the further case of the second respondent that the central line is kept intact, the width proposed for reduction from 200 feet to 100 feet on either side by introducing a smooth curve in Pallikaranai and Sholinganallur stretch, pushing its alignment to the northern edge of Special Economic Zone on Government lands without changing the alignment in the private lands. It is also the case of the second respondent that as far as the petitioners land is concerned, the central line of it remains the same while the extent of land affected in the petitioners property was originally 200 feet, which has been reduced to 100 feet width, releasing about 50% of the land because of reduction in width proposed in the second Master Plan. As far as the letter of CMDA dated 01.08.2002, it is the case of the second respondent that the said letter is not available and the same was destroyed by efflux of time. 3(b). It is the further case of the second respondent that actually the ORR alignment of first Master Plan was revised only for the stretch between the GST Road and TPP Road and not in the second stretch, wherein the petitioners site is situated. In the letter dated 01.08.2002, it is found to have stated that the revised ORR was not passing through Karapakkam village, which according to the second respondent may be true as revised alignment does not pass through, but the original alignment remains in the same village. It is also denied that the petitioners have purchased the property after clearance from CMDA. The petitioners application for construction of stilt + 3 floor IT building filed in June,2004 was examined and planning permission application was already rejected on 19.10.2004 itself for the main reason that the https://hcservices.ecourts.gov.in/hcservices/ proposed development falls in the land reserved for ORR alignment apart from other technical reasons. It was thereafter, the petitioners once again applied for multistoried construction with basement + ground floor + 7 floor buildings for office use in April,2007. The defects including that violation of the proposed construction in the alignment of 400 feet ORR was stated while refusing the application on 31.07.2007. 3(c). The No Objection Certificate obtained by the petitioners from ELCOT is only for the purpose of showing that the proposal for I.T. Development is proper in respect of considering the floor space index and ELCOT does not examine any Town Planning or Development Control Rules. Therefore, the letter of the ELCOT itself does not give any right to the petitioners to obtain planning permission. The second Master Plan was published in the Government gazette on 11.04.2007 and the process was on till 31.08.2007. It was made known to the public that the proposal for reduction of ORR width from 400 feet to 200 feet keeping intact of the central line. It is admitted that the petitioners have given suggestion to drop the 200 feet wide road and the same was examined by the Transport Committee constituted for the purpose of examining objections and suggestions and recommended that the suggestion is not acceptable and the road under reference had strategic importance and according to the second respondent the road is necessary for the purpose of relieving traffic congestion. 3(d). The impugned proceedings of the CMDA is in accordance with law and the planning permission applied by the petitioners was refused due to the said reason. It is also stated that as far as the construction of the 5th respondent M/s.Chettinad Builders Pvt. Ltd., by inspection on 06.02.2007, it was found that the construction was unauthorised and stop work notice has already been given and subsequently demolition notice was also issued on 13.03.2007 for the unauthorised construction of ground floor + one floor. The case has been referred to the local authority for taking necessary action. It is the case of the second respondent that the petitioners property was affected by the ORR in the first Master Plan, which is now in force and also in the draft second Master Plan forwarded to the Government. According to the second respondent CMDA has acted as per law and passed the refusal order. It is also stated that as against the refusal order, the petitioner has got right of appeal under Section 79 of the Tamil Nadu Town and Country Planning Act,1971. 4. It is the contention of Mr.Sriram Panchu, learned senior counsel for the petitioners that the purchase of property by the petitioners itself was only based on the clarification issued by the second respondent in no uncertain terms and it is not open to the second respondent now to go back by refusing planning permission. He would also rely upon the judgement of the Supreme Court in Chairman, Indore Vikas Pradhikaran vs. Pure Industrial Coke and Chemicals Ltd., and others (2007 (8) SCC 705) to substantiate his contention that right to property is not only a constitutional right, but also human right and in respect of town planning developments there is a need to balance both public and private interest since that deals with the valuable rights of https://hcservices.ecourts.gov.in/hcservices/ citizens. In order to substantiate his contention on the point of promissory estoppel, he would rely upon the judgement of the Full Bench of this Court in Vairavikulam Lime Products Private Ltd., vs. Government of India (2006 (3) CTC 609), apart from the judgement of the Supreme Court in Pawan Alloys & Casting Pvt., Ltd. vs. U.P.State Electricity Board (1997 (7) SCC 251). Further, to substantiate his contention of legitimate expectation, principles of applicability and promissory estoppel he would rely upon the judgement of the Supreme Court in Hira Tikkoo vs. Union Territory, Chandigarh (2004 (6) SCC 765). He would also submit that the Town Planning Regulations are regulatory in nature and in respect of grant of permission for construction of building, the same has to be decided as per law applicable on the day when such permission is granted by relying upon the judgement of the Supreme Court in T.Vijayalakshmi vs. Town Planning Member and another (2006 (8) SCC 502). 5. On the other hand, Mr.Kathiravan, learned counsel appearing for the second respondent CMDA has submitted that there is no detailed development plan. It is his further submission that as far as the No Objection Certificate granted by ELCOT is concerned, it is only in relation to the requirement for putting up of IT park and the same has nothing to do with the construction activities, which are governed under the Tamil Nadu Town and Country Planning Act and in any event, according to the learned counsel, the recommendations of the ELCOT will be taken into consideration for the purpose of giving FSI benefits to the petitioners. It is his further submission that the first Master Plan by which 400 feet width road was effected and the central line which has been marked has not been changed by the second proposed Master Plan, by which the width of the road is sought to be reduced to 200 feet taking 100 feet on each of the central line, which is already in existence. 6. I have heard learned senior counsel for the petitioners and learned counsel for the respondents and perused the records. 7. It is seen in the impugned order of the second respondent dated 31.07.2007 that the petitioners have given a revised plan for approval for construction of basement floor + stilt + 7 floors of ITES building. The main reason for refusal of planning permission given by the second respondent is "the proposed 400 feet wide Outer Ring Road alignment passes through the site under reference". This is sought to be challenged by the petitioners. It is also seen in the impugned order that as against the said order an appeal can be preferred to the Government by furnishing a copy of such appeal to CMDA and that is the statutory appeal provided under Section 79 of the Tamil Nadu Town and Country Planning Act,1971 ( in short, "the Act"). The appellate authority being the Commissioner and Secretary to Government, Housing and Urban Development Department, and the appeal has to be filed within two months from the date of the rejection letter. 8. Section 49 of the Act which forms part of Chapter VI deals with Control of Development and use of land enables any person not being a State Government, etc. to make an application in writing to https://hcservices.ecourts.gov.in/hcservices/ the appropriate planning authority for permission to carry out any development on any land or building and it is open to the appropriate authority to either grant or refuse such permission, however, when the permission is refused, the reason must be recorded. Section 49 of the Act reads as under: " 49. Application for permission.- (1) Except as otherwise provided by rules made in this behalf, any person not being any State Government or the Central Government or any local authority intending to carry out any development on any land or building on or after the date of the publication of the resolution under sub-section (2) of Section 19 or of the notice in the Tamil Nadu Government Gazette under section 26, shall make an application in writing to the appropriate planning authority for permission in such form and containing such particulars and accompanied by such documents as may be prescribed. (2) The appropriate planning authority shall, in deciding whether o grant or refuse such permission, have regard to the following matters, namely:- (a) the purpose for which the permission is required; (b) the suitability of the place for such purpose; (c) the future development and maintenance of the planning area. (3) When the appropriate planning authority refused to grant a permission to any person, it shall record in writing the reasons for such refusal and furnish to that person, on demand, a brief statement of the same." 8. Likewise, Section 54 of the Act also enables the appropriate planning authority to revoke or modify any planning permission for development already granted. Section 79 (1) of the Act enables a person aggrieved by a decision taken by the appropriate planning authority either under Section 49 or under Section 54 (1), to file an appeal to the prescribed authority and in the present case, the impugned order itself indicates that the prescribed appellate authority is Government represented