This review is filed in respect of the order of this Court dated 5.1.2008 made in W.P.No.15446 of 2007. The said writ petition, which was disposed of along with other batch of cases, was dismissed taking note of the submission made by the learned Additional Advocate General that, subsequently, the Government has passed Act No.34 of 2007, viz., the Tamil Nadu Town and Country Planning (Second Amendment) Act, 2007 incorporating the provisions regarding the levy of infrastructure and amenity charges by including a new Section, viz., Section 63-B.
2. However, the above writ petition filed by the petitioner is not relating to the levy of infrastructure and amenity charges but relating to the impugned order of the first respondent dated 19.2.2007, by which, for the purpose of approval of the plan submitted by the petitioner, the said authority has demanded various amounts, including Open Space Reservation charges of Rs.1,76,48,000/-. It was that aspect of the demand of Open Space Reservation charge which was challenged in the writ petition. Since the claim in the writ petition is not relating to the infrastructure and amenity charges, the Review Application No.36 of 2008 is allowed and the order passed by this Court in W.P.No.15446 of 2007 on 5.1.2008 is set aside and the matter was heard afresh, by hearing Mr.V.Ramachandran, learned Senior Counsel for the writ petitioner and Mr.I.Paranthaman, learned counsel appearing for the first respondent, who has filed a counter affidavit covering the issue raised in the writ petition.
3. The impugned order of the first respondent dated 19.2.2007, insofar as it relates to the demand of an amount of Rs.1,76,48,000/- towards Open Space Reservation charges, has been challenged by the writ petitioner. The petitioner, who has taken up a project to put up an IT Park in the land measuring 2.41 Acres in Kottivakkam Village, Old Mahabalipuram Road, has applied for planning permission to the first respondent for construction of a building comprising of Stilt + Six Floors in the land comprised in Survey Nos.278/1A, 1B, 2A, 2B, 7A, 7B, 8A and 8B in Kottivakkam Village, Old Mahabalipuram Road.
4. As per the provisions of the Development Control Rules of the first respondent, the petitioner is required to pay a caution deposit of 10% of the guideline value of the total land or 20% of the guideline value of the land area equal to which additional floor area is availed, whichever is higher. As per the Development Control Rules, the petitioner is required to provide 10% of the area to be developed as Open Space Reservation or in the alternative pay Open Space Reservation charges being the market value of equivalent land excluding the first 3000 sq.mt. as per the valuation of the Registration Department.
5. The first respondent has issued a circular on 7.5.1992 stating that Open Space Reservation charges are to be calculated based on the guideline value of the Registration Department. It is stated that both the Caution Deposit as well as the Open Space Reservation charges are calculated based on the guideline value.
6. It is stated that the first respondent, after receiving the application of the petitioner, has written to the Registration Department, viz., the second respondent for the guideline value of the land. It is seen that the second respondent, apart from furnishing the guideline value of the land, has also furnished the price of the land as per the last registered sale deed in a different survey number. It is stated that the difference between the guideline value and the value as per the last registered sale deed is Rs.1,003/- per sq.ft. It is based on the last registered sale deed the first respondent has arrived at the Caution Deposit of Rs.2,57,30,000/- and Open Space Reservation Charges of Rs.1,76,48,000/-, which, according to the petitioner, is contrary to the provisions of the Development Control Rules and the first respondent ought to have followed only the guideline value. If the guideline value is adopted, the petitioner would be liable to pay the Open Space Reservation charge of Rs.1,05,76,000/- and Caution Deposit of Rs.1,54,20,000/- and the petitioner has been made to pay an additional sum of Rs.1,03,10,000/- towards Caution Deposit and Rs.70,72,000/- towards Open Space Reservation charges. Therefore, the said charges levied by the first respondent are contrary to law and the provisions of the Development Control Rules.
7. It is stated that, in order to avoid any delay in obtaining planning permission, the petitioner has paid both the amounts as per the valuation given in the impugned notice of the first respondent dated 19.2.2007 under protest.
8. The said impugned notice is challenged on the ground that it is only the guideline value which has to be taken into consideration for the purpose of arriving at the Caution Deposit and Open Space Reservation Charges; that applying of different valuation would result in arbitrary decision; and that such fixation of amount at the whims and fancies of the Registration Department, by ignoring the guideline value, is against the Development Control Rules.
9. The second respondent has filed a counter affidavit in the review application wherein the counter proceeds to controvert the averments made by the petitioner in the original writ petition. While it is admitted that the petitioner has given the proposal for planning permission as stated above, the same was examined and forwarded by the first respondent to the Government with recommendations of the Multistoried Building Panel in the meeting held on 21.2.2006 and that was approved by the Government on 24.11.2006. It was thereafter, based on the said approval, the second respondent/Sub Registrar was requested to furnish guideline value of the site and the second respondent has furnished both the guideline value as well as the latest registration value of the site under reference and for the purpose of calculating the Open Space Reservation charges and Caution Deposit, the first respondent has taken the higher value. It is stated that the petitioner has remitted the amount. In the meanwhile, the regularization charges have been revised at the rate of Rs.25/- per sq.mtr. and the additional charges have also been remitted by the petitioner.
10. It is further stated that, while releasing the plan, the Government in G.O.Ms.No.191, H & UD Department, dated 1.6.2007 issued orders for collection of infrastructure and basic amenity charges for the developments taking place in Tamil Nadu and the petitioner was requested to pay an amount of Rs.1,65,00,000/- towards infrastructure and basic amenity charges. Even though this Court directed the petitioner to furnish bank guarantee for the said sum, the petitioner remitted the said amount by way of demand draft and thereafter, planning permission was issued on 6.7.2007.
11. In respect of the demand of Open Space Reservation charges, it is the case of the first respondent that the said charges are levied based on the guideline value of the property, but in cases where there is more than one value in respect of the property the higher value is taken into consideration for calculation of Open Space Reservation charges. It is stated that the second respondent, by letter dated 15.2.2007, has furnished value as per guidelines and also as per latest registration and it was on the basis of the latest registration value, which was more than the guideline value, Open Space Reservation charges as well as Caution Deposit were calculated. It is stated that if the Registrar has furnished only the guideline value that will be taken into consideration and in cases where two values are furnished, it is open to the first respondent to take higher value. Therefore, the sum and substance of the contention raised on behalf of the first respondent is that, while it is true that guideline value should be taken into consideration, in cases where two values are given by the Registering Authority, the higher value will be taken into consideration in the interest of the revenue.
12. The circular issued by the first respondent dated 7.5.1992 in respect of collection of Open Space Reservation charges regarding residential and commercial buildings, while prescribing the procedure, makes it clear that the Open Space Reservation charges are to be collected by the authority based on the guideline value of the Registration Department before according planning permission. The said circular is as follows:
"A(4) Sub: Issue of Planning Permission Collection of Open Space Reservation charges in respect of residential/ commercial buildings in unauthorised layout Adopting of certain procedures ordered.
Ref: Item No.11 of the minutes of the APU Review Meeting held on 7.4.1992.
Planning Permission is being accorded by this Authority in respect of residential/ commercial buildings in individual plots in unauthorised layouts effected prior to 31.12.1989 after regularising unauthorised sub divisions, if the said plots abut the public road or the road under the maintenance of Local Body concerned. In this regard, the Local Bodies in CMA have been instructed to collect the proportionate Open Space Reservation charges as per the prevailing norms from the individual plot owners before communicating the approved plans.
2. It has been observed that many of the Local Bodies are not collecting Open Space Reservation charges regularly due to difficulty in getting Guideline value from the Sub Registrars officially.
3. Therefore, it is hereby ordered that Open Space Reservation charges should be collected in this Authority itself based on the Guideline value of the Registration Department for the respective area before according Planning Permission for small residential/commercial buildings dealt in "A" channel also as being done in other major developments and layouts.
4. A copy of the prescribed format of the letters to be addressed to Sub Registrars is annexed.
5. These order takes immediate effect.
(Circular No.M2/10303/92, dated 7.5.92)"
13. The Development Control Rules relating to the Information Technology Park, which provides for the imposition of Caution Deposit, in Rule 7(a) also makes it clear that the Caution Deposit shall be 10% of the guideline value of the land or 20% of the guideline value of the land area equal to which the additional floor area is availed, whichever is higher. The said Rule is as follows:
"7. Caution Deposit:
(a) Caution Deposit to be made by the applicant before issue of Planning Permission shall be 10% of the guideline value of the land or 20% of the guideline value of the land area equal to which the additional floor area is availed, whichever is higher. The caution deposit is acceptable in the form of an irrevocable Bank Guarantee issued in the format prescribed by CMDA, in favour of Member-Secretary, CMDA from any scheduled bank in Chennai City."
14. Again, in respect of Open Space Reservation charges, the terms of the Development Control Rules states as follows:
"10 per cent of the area excluding roads or in the alternative shall pay the market value of the equivalent land excluding the first 3,000 square meters as per the valuation of the Registration Department only where it is not possible to provide open space due to physical constraints. No such area reserved shall measure less than 100 sq.m. with a minimum dimension of 10 meters."
15. The existence of the above said Rules is not in dispute.
16. An exactly similar situation arose before the Division Bench of this Court in Member Secretary v. A.Vijayaragavan and others, [2007] 6 MLJ 201. There also the Chennai Metropolitan Development Authority, while a revised plan was submitted, has charged the Open Space Reservation charge after obtaining valuation from the Sub Registrar, Kodambakkam, who has stated that in respect of the particular land in question there was no guideline value and the guideline value of an adjacent place was fixed at the rate of Rs.2,330/- per sq.ft. and that was taken as a guideline value for the said property also. It was based on that calculation, by taking the said amount of Rs.2,330/- per sq.ft. as guideline value, the party concerned was directed to remit an amount of Rs.37,18,000/- towards Open Space Reservation charges and that was challenged along with many other issues. There, it was the contention on behalf of the authority that the guideline value in the adjacent village, viz., Pulivur Village was Rs.2,100/- per sq.ft., since it was at that time classified as commercial area and that was increased to Rs.2,330/- per sq.ft. when the area was converted into commercial-cum-residential area. Therefore, the guideline value was fixed commonly based on various factors which are normally followed. Taking note of the fact that in respect of the said area a common guideline value has been fixed by the Registering Authority, when the area was changed as commercial-cum-residential area, at the rate of Rs.2,330/- per sq.ft., which is commonly applicable to all, the Division Bench has rejected the contention of the applicant before the Chennai Metropolitan Development Authority that the increase of the value at the rate of Rs.2,330/- per sq.ft. was arbitrary. On the other hand, the Division Bench has held that, when the guideline value has been commonly fixed, the Chennai Metropolitan Development Authority has got authority to fix the same for the purpose of deciding about the Open Space Reservation charges also. The Division Bench presided over by S.J.MUKHOPADHAYA and N.PAUL VASANTHAKUMAR,JJ. held as follows:
"12. We are unable to accept the contention of the learned counsel for the respondents 1 to 3 that even though the adjacent lands were assessed with higher guideline value, on enquiry conducted by the Collector, the same was reduced in the enquiry conducted under Section 47-A of the Indian Stamps Act, as the Government or Registration Department has not reduced the guideline value based on individual reduction of market value by the Collector of Stamps. In the absence of any common order reducing the guideline, respondents 1 to 3 are not justified in claiming that the guideline value fixed as Rs.2,330/- per sq.ft. is on the higher side.
13. The Development Control Rules of Chennai Metropolitan Area also states that open space reservation of lands for communal and recreation purposes shall be 10% of the area, excluding roads or in the alternative shall pay the market value of the equivalent land excluding first 3,000 sq. mtrs. as per the valuation of the Registration Department, if it is not possible to provide open space due to physical constraints. When the respondents 1 to 3 are taking advantage of the said provision, they are not justified in contending that they will not pay the guideline value as market value of the area in question."
17. Therefore, applying the genesis of the dictum laid down by the Division Bench in respect of the Development Control Rules for calculating the Open Space Reservation charges which is based on the guideline value and also taking note of the fact that guideline value is fixed by the Registering Authority based on various factors, including the guidelines issued by the Government, I am of the considered view that, as per the Development Control Rules, as it stands today, it is the guideline value alone which can be the guiding factor for ascertaining the Open Space Reservation charges. Hence, it is not open to the first respondent to take into consideration any other value other than the common guideline value fixed in respect of the property.
18. On the facts of the case, it is not in dispute that the guideline value fixed in respect of the property was less than the latest registration value and there is a difference of Rs.1,003/- per sq.ft. In such circumstances, the impugned order of the first respondent, insofar as fixing the Open Space Reservation charges at Rs.1,76,48,000/- and Caution Deposit at Rs.2,57,30,000/-, stands set aside with a direction that the said Open Space Reservation charges and Caution Deposit shall be levied by the first respondent on the basis of the guideline value supplied by the second respondent and not on the basis of any other value and on such valuation, the first respondent shall on re-computation refund the excess amount paid by the petitioner.
In the result, the review application is allowed and the writ petition stands allowed in the above terms. No costs.
sasi To:
1. The Member Secretary Chennai Metropolitan Development Authority No.1, Gandhi Irwin Road Thalamuthu Natarajan Building Egmore, Chennai 600 008.
2. The Sub Registrar Office of the Sub Registrar Adyar Sub Registrar Office Adyar, Chennai 600 020