The Chennai Metropolitan Development ... vs D. Rajan Dev .

3. Respondent No.1 is a developer carrying on construction activities under the name and style of M/s. Ben Foundation. He submitted an application dated 07.05.2009 for planning permission to construct a residential-cum-shopping building at Survey Nos. 223, 224 and 225, Padi Village, Padi Kuppam Road, Chennai for 196 dwelling units. He proposed construction of Block A – Stilt floor(part) + GF(part) + 6 floors + 7 th floor part; Block B and C – Stilt + 6 floors and Block D – Stilt + 7 floors with floor area of 14082.26 sq.mt. and height of 22.80 mt. The planning permission was granted by the appellant CMDA on 01.07.2009. Initially, the sanction was mistakenly accorded for 14889 sq.mts. (1.84 FSI) instead of 14164 sq.mts. (1.75 FSI). The excess area for which sanction was wrongly granted is 725 sq.mts. While the construction was in progress, on 09.09.2009 vide G.O.Ms.No.163-Housing and Urban Development, respondent No.2-Government of Tamil Nadu introduced a scheme called “Premium FSI Scheme”, wherein the Government permitted any builder willing to pay FSI charges to increase FSI above the normally permitted FSI. Additional benefit by way of Premium FSI accrued to the developer is related to the proportionate land extent. As per the guidelines for Premium FSI, the amount payable by the applicant towards the Premium FSI charge shall be equivalent to the cost of the proportionate land as per the Guideline value of the 2 Registration Department. On 04.05.2011, the first respondent made an application along with revised proposal for permission to have additional FSI area of 11,860 sq.ft. (= 1102 sq. mt.) under the “Premium FSI Scheme” for extra fourteen dwelling units i.e. one floor each in two blocks. The said application was returned by the appellant on 10.02.2012 with the direction to furnish revised plan for rectifying sixteen defects as pointed out by the appellant. The first respondent submitted revised plans on 24.02.2012. The appellant- CMDA vide its letter dated 30.03.2012 forwarded the revised plan to the Government seeking to accord approval to the recommendation of the Multi-storeyed building panel and for issue of planning permission. In the meantime, the State Government revised the guideline value of the land w.e.f. 01.04.2012.

5. Vide letter dated 19.07.2012, the first respondent raised objections to the aforesaid calculation and also as regards the area. The first respondent submitted that the first respondent originally proposed to construct 14,889 sq.mts. of built up area of an extent of land of 8093.64 sq.mts. It was stated that the projected FSI at 1.74 by adopting the total built up area was calculated as 14089 sq.mts. as against 14,889 sq.mts. and the same was a human error and the same led to all the confusion. The first respondent has also raised objection stating that he made the application during May, 2011 itself and that he may be allowed to make payment of “Premium FSI Charges” by adopting the guideline value existed on both the dates of their application (04.05.2011) and the approval by the CMDA panel (30.03.2012). In the representation, the first respondent stated that they are ready to pay the “Premium FSI Charges” for both the projected built up area of 800 sq.mt. in the already approved plan and for the proposed built up area of 1102 sq.mts. 4 (proposed extra FSI of 0.24) by adopting the guideline value existed on the date of their application i.e. 04.05.2011. The said representation was rejected by the CMDA vide letter dated 31.08.2012. The appellant by its letter dated 19.07.2012 modified the revised “Premium FSI Charges” for 1479.81 sq.mts. of the land area from Rs.7,96,50,000/- to Rs.7,61,40,000/-. By the time the plan was sanctioned, the guideline value had increased from Rs.1,650/- per sq.ft. to Rs.5,000/- per sq.ft. As per the revised guideline, the Premium FSI charges were calculated at the rate of Rs.5,000/- per sq.ft. and the same was quantified at Rs.7,61,05,480/-.

6. The first respondent made further representation dated 14.12.2012 requesting the appellant-CMDA to calculate the “Premium FSI Charges” taking into account the guideline value prevailing as on the date on which the application was submitted and not to levy “Premium FSI Charges” as per the revised guideline value. The first respondent also requested to deduct all balcony and duct wall area which is within the limit of 10% allowance. The representation made by the first respondent requesting for reduction of “Premium FSI Charges” was rejected by the appellant-CMDA by order dated 19.04.2013, affirming its earlier order dated 31.08.2012. 5 By its letters dated 23.05.2013 and 14.06.2013, first respondent sought for further thirty days’ time for remitting the Premium FSI charges as demanded by the appellant. By communication dated 19.06.2013, the appellant-CMDA granted time till 15.07.2013 to pay Premium FSI charges.

7. After so taking time, the first respondent filed the writ petition in WP No.18238 of 2013 before the Madras High Court. During the pendency of the writ petition, construction of 196 dwelling units was completed and a partial completion certificate dated 17.06.2013 was granted. The learned Single Judge dismissed the writ petition by holding that the first respondent is liable to pay the “Premium FSI Charges” as per the guideline value prevailing on the date of approval of the plan. The learned Single Judge held that the builder would not acquire any right by merely submitting application for building plan and the right to the builder would accrue only after the approval of the plan. The learned Single Judge also held that there was no undue delay on the part of CMDA or the second respondent-Government in disposing of the application of the first respondent.

12. On 07.05.2009, the first respondent submitted an application for construction of residential-cum-shopping complex at Padi Village, Padi Kuppam Road, Chennai. The planning permission was granted for the original plan by the appellant-CMDA on 01.07.2009. When the construction was in progress, the Government of Tamil Nadu introduced the “Premium FSI (Floor space Index) Scheme” vide G.O.Ms.No.163, Housing and Urban Development (UD-I) dated 09.09.2009 as per which the Government permitted willing builders to increase FSI above the normally permitted FSI subject to a maximum of one relating the same to the road width parameters by paying premium FSI charges.

15. The Multi-Storeyed Building Panel considered the revised plan of the first respondent and the appellant-CMDA by its letter dated 30.03.2012 forwarded the proposal to the Government with recommendation for approval subject to the conditions indicated thereon. In the meanwhile, the Registration Department revised and notified the revised guideline value w.e.f. 01.04.2012 as per which the guideline value of Padi Kuppam Road was increased from Rs.1,650/- per sq.ft. to Rs.5,000/- per sq.ft. On 29.05.2012, the 11 Government granted approval to the revised plan of the first respondent. Based upon the revised guideline value, the appellant- CMDA by its letter dated 02.07.2012 informed the first respondent that the Premium FSI has been levied at Rs.7,96,50,000/-. The same was later modified as Rs.7,61,40,000/-.

17. It is well settled that no right accrues to an applicant until the application for approval is considered and sanctioned. The first respondent has given the proposal for revised building plan under Regulation 36 with a view to avail the benefit of Premium FSI. As pointed out earlier, the process of grant of Premium FSI is completed only after the grant of approval by the Government. Regulation 36 clearly provides that the Premium FSI shall be allowed in specific areas with the approval of the Government and the approval of the Government therefore is mandatory. Only when the Government grants approval, the right would accrue to the 14 builder and not before that. Therefore, the date of approval is the crucial date.

26. The Division Bench did not keep in view the well settled principle that no right accrued to the applicant-builder by mere filing of application for approval and the right accrues only after approval is granted by the Government/concerned authorities. The impugned judgment is contrary to the well settled principle that the applicant 21 does not acquire any right under law till his application is considered and sanctioned. Regulation 36 clearly provides that the Premium FSI shall be allowed in specific areas only with the approval of the Government. Unless and until the Government grants approval, no right accrued to the first respondent. When the Government sanctioned the approval on 29.05.2012, the Division Bench erred in directing the appellant to calculate the FSI charges as per the guideline value as on 04.05.2011. The impugned judgment is therefore liable to be set aside.

27. In the result, the impugned judgment dated 03.08.2016 passed by the High Court of Madras in W.A. No.2376 of 2013 is set aside and this appeal is allowed. The appellant-CMDA is at liberty to recover the balance Premium FSI charges from the first respondent in accordance with its regulations and rules. No costs.

December 11, 2019.