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TMI Blog2012 (9) TMI 1232X X X X Extracts X X X X X X X X Extracts X X X X ..... 42, 53 and 54 comprised in R.S.No.4288/71, Satyadev Avenue, MRC Nagar, Raja Annamalaipuram, Chennai-28, under a Sale Deed dated 11.7.2005, registered as document No.1894/2005. On 26.12.2008, the petitioner, his wife and son jointly applied for planning permission, to put up a multi storeyed building on the land. 4. By a letter dated 21.1.2010, the first respondent informed the petitioner and his wife and son that the application for planning permission was under consideration and that the applicants had to pay certain charges namely (i) development charges for the land and building, quantified at Rs.1,32,000/- (ii) security deposit for the building, quantified at Rs.4,70,000/- (iii) security deposit for display board, quantified at Rs.10,000/- (iv) Regularisation charges, quantified at Rs.1,20,000/- (v) OSR charges, quantified at Rs.58,50,000/- (vi) Infrastructure and Amenities charges, quantified at Rs.17,20,000/- (vii) IDC for metro water, quantified at Rs.3 lakhs and (viii) balance of scrutiny fee, quantified at Rs.10,000/-. 5. The petitioner complied with the demand made in the said letter dated 21.1.2010, in respect of all charges except OSR charges of Rs.58,50,000/-. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... area had been handed over to the Corporation, OSR charges are payable, if the layout is unapproved. 10. In the light of the impugned order and the counter affidavit filed by the first respondent, the primary contention of Mr. G. Masilamani, learned Senior Counsel for the petitioner is that as per the Development Control Rules and Regulations issued by the Chennai Metropolitan Development Authority and various Government Orders in force, 10% of the total area covered by a proposed layout is liable to be reserved for public purposes as open space and that if a land is developed without adhering to this prescription, the owner is liable to pay OSR charges in lieu thereof. In the case on hand, it is not in dispute that the land of an extent of about 6 grounds and 170 sq. ft., representing 10% of the total extent of land in the layout, was already handed over by the promoter to the Corporation of Chennai. The land has also been developed into a park and it is in the possession of the Corporation with the public having unrestricted access. But due to administrative delay and procedural entanglements on the part of the Corporation, the mere formality of executing and registering a dee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... get a right as custodian of public interest to manage it in the interest of the society in general. However, the right to manage as a local body, was held by the Supreme Court in the said decision, to be not the same thing as to claim transfer of the property to itself. The decision in Pt. Chet Ram Vashist, was followed in Chairman, Indore Vikas Pradhikaran vs. Pure Industrial Coke Chemicals Ltd {2007 (8) SCC 705}. Again in Babulal Badriprasad Varma vs. Surat Municipal Corporation {2008 (12) SCC 401}, the Supreme Court pointed out that a statute of town planning ex facie is not a statute for acquisition of a property. The Court further observed that every step taken by the State does not involve application of the Doctrine of Eminent Domain. 14. This takes us to the next question as to whether the demand for OSR charges, in addition to OSR land, is permissible in law or not. 15. In paragraph 11 of the counter affidavit, the first respondent has asserted that even if OSR land had been handed over to the Corporation, OSR charges have to be paid, if the layout was unapproved. The fact that the land in respect of which the present writ petition is filed, falls in an unapproved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a Note. The said Note contains 3 prescriptions. The third prescription in the said Note contains a Table indicating the extent of land to be reserved for communal and recreational purposes in a layout or subdivision for residential, commercial, industrial or combination of such uses. 18. The Table under the Note under Rule 19 appears to have undergone several changes in the past about 3 decades. In the year 1977-78, the open space to be reserved in a layout for communal and recreational purposes, was prescribed as follows:- Exent of layout Reservation (1) (2) (i) Upto 2500 sq. meters Nil (ii) Between 2500 square meters and 10,000 square meters 10% of the area excluding roads or in the alternative, he shall pay 1-1/2 times the market value of equivalent land as per the valuation of the Registration Department. (iii)Above 10,000 sq. meters 10% of the area excluding roads shall be reserved and this space shall be maintained as Communal and Recreational open space to the satisfaction of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te that at the time when the First Master Plan was conceived in 1975, the concept of Group Development or Flats , had not gained momentum in the City of Chennai. Therefore, the Development Control Rules did not contain specific provisions to regulate the same. But when developers started promoting flats, the issue was taken up by the Madras Metropolitan Development Authority with the Government, in a letter dated 22.3.1981. On the basis of the said letter of the Member Secretary and the recommendations of the Technical Committee of MMDA and the response of the public to the proposed amendment to the Rules, the Government issued G.O.Ms.No.940, Housing and Urban Development, dated 8.10.1982, approving the Draft Rules for incorporation in the Development Control Rules with certain modifications. They were issued by the Government in exercise of the power conferred by Section 32(4) of the Tamil Nadu Town and Country Planning Act, 1971. 22. By the Amendment so made to the Development Control Rules, sub-rules (b) and (c) were inserted under Rule 19. While sub-rule (b) dealt with Special Buildings , sub-rule (c) dealt with Set Back for residential and commercial. Under Clause (v) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... But the Amendments introduced by the said Government Order covered only layouts of the extent between 3,000 sq. meters and 10,000 sq. meters. In other words, layouts of larger extents above 10,000 sq. meters, were not covered by the said Amendment. 25. There appears to be a subsequent amendment. Though the year of such amendment is not clear, the Development Control Rules hosted in the Internet by the CMDA, as amended upto September 2004, contains two Tables, one in respect of normal buildings under Rule 19 (a) and another in respect of Special Buildings and Group Developments under Rule 19(b). The Table under Rule 19 (a) is as follows:- Exent of layout Reservation (1) (2) For the first 3000 square meters Nil Between 3000 square meters and 10,000 square meters 10 percent of the area excluding roads or in the alternative he shall pay the market value of equivalent land excluding the first 3000 square meters as per the valuation of the registration department. No such area reserved shall measure less than 100 square meter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elopmental activities, the CMDA felt a need for a Second Master Plan for the Chennai Metropolitan Area. Therefore, a Draft Second Master Plan 2011 was prepared and submitted to the Government and the Government gave its consent to it under G.O.Ms.No.59, Housing and Urban Development Department, dated 30.6.1995. After public consultation, it was submitted to the Government in December 1995 for approval. But approval could not be granted on account of an interim prohibitory order granted by this Court in a writ petition. Though the writ petition W.P.No. 14819 of 1995 was eventually dismissed on 10.7.2001, the Government returned the Draft Second Master Plan to the CMDA for suitable modifications. This was under G.O.Ms.No.408, dated 5.10.2001. 28. Thereafter, a revised Draft Second Master Plan with the year 2026 as the horizon year, was prepared and submitted to the Government in December 2005. The Government again returned it under G.O.Ms.No.331, H UD Department, dated 5.12.2006, with a direction to incorporate certain developments in the field and to submit a fresh proposal for consent. This was done in February 2007 and the Government gave its consent on 30.3.2007. 29. Therea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the market value of equivalent land and excluding the first 3,000 square meters as per the valuation of the registration department. No such area reserved shall measures less than 100 square meters with a minimum dimension of 10 meters . Above 10,000 square meters 10 percent of the area excluding roads. It is obligatory to make the reservation and no equivalent land cost in lieu of the same is acceptable. 33. Regulation 27 which deals with Group Developments, also contains a stipulation under Sub Regulation (10) that the reservation of land for community recreational purposes such as park or playground, required in these Regulations, shall be as given in the Annexure XX. Annexure XX contains a Table which is as follows:- ANNEXURE XX Reservation of land for community recreational purposes in cases of special buildings/Group Developments/multistoreyed building developments (1) The reservation of land for community recreational purposes such as park /playground shall be as given below at ground level in a shape and location abutting a public road to be specified by Chennai Metropolitan Development Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Development Control Rules which were in force till 2008 and the Development Regulations which are in force from 2008, have exempted layouts whose total extent of land is upto 3,000 sq. meters, from the obligation to reserve any open space. Similarly, the Rules have consistently given two options, either to hand over 10% of the area excluding roads or to pay the market value of equivalent land, in so far as layouts whose total extent of land is between 3,000 sq. meters and 10,000 sq. meters. 36. But, in respect of layouts whose total extent of land is above 10,000 sq. meters, the Rules have always insisted upon handing over of Open Space Reservation land to the extent of 10% of the total area. In respect of layouts whose total extent is above 10,000 sq. meters, it was made clear by the successive Government Orders that no charges in lieu of 10% of the area can be accepted. This is borne out by-- (1) G.O.Ms.No.743, Housing and Urban Development, dated 10.5.1979, (2) G.O.Ms.No.940, Housing and Urban Development, dated 8.10.1982, (3) the Development Control Rules as of September, 2004 (hosted in the official website) and the Table contained therein under Rules 19(a) an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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