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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 ..... ased a property bearing Plot Nos.41, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd (iv) that even if OSR 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporation may 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19, there 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 the Authority or transferred to the Authority for maintenance. 19. But by G.O.Ms.No.743, Housing and Urban Development Department, dated 10.5.1979, the above Table was modifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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) of sub-rule (c) of Rule 19, the extent of land to be reserved for communal and recreational purposes, was indicated in a tabular column. It reads as follows:- Exent of layout Reservation (1) (2) (i) For the first 3000 sq. meters Nil (ii)Between 3000 square meters and 10,000 square meters 10% of the area excluding roads or in the alterna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 meters with a minimum dimension of 10 meters". Above 10,000 square meters The space so reserved shall be transferred to the Authority or to the Local body designated by it, free of cost, through a deed, and in turn the Authority or the Local body may permit the residents Association or Flat owners 'Association for maintaining such reserved space as park. In such cases public access for the area as earmarked shall not be insisted upon'. 10 percent of the area excluding roads shall be reserved and this space shall be maintained as communal and recreational open space to the satisfaction of the authority or transferred to the authority for maintenance. It is obligatory to reserve 10 percent of the layout area. 26. The Table under Rule 19(b) in respect of Special Buildings, is as follows:- Exent of layout Reservation (1) (2) For the first 3000 square ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 007. 29. Thereafter, copies of the Draft Second Master Plan were made available to the public and also hosted in the official website of the first respondent. Subsequently public consultations were conducted in April and July 2007 and a two day workshop was also held in August 2007. Thereafter, the draft was finalised and submitted to the Government. Finally, the Second Master Plan for Chennai Metropolitan Area was approved by the Government of Tamil Nadu in G.O.Ms.No.190, Housing and Urban Development, dated 2.9.2008 and it was notified in the Gazette on the same day. As part of the Second Master Plan, a set of Regulations known as "Development Regulations" were issued and they came into force on 2.9.2008. 30. Regulation 26 of the Development Regulations 2008, contains stipulations regarding "Special Buildings". A Special Building is defined in Regulation 2(40) to mean (i) a residential or commercial building with more than two floors or (ii) a residential building with more than 6 dwelling units or (iii) a commercial building exceeding a floor area of 300 sq. meters. 31. Regulation 27 deals with "Group Developments". It covers accommodation for re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding roads or in the alternative he 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 square meters with a minimum dimension of 10 meters. The space so reserved shall be transferred to the Authority or to the Local body designated by it, free of cost, through a registered gift deed. In cases of residential developments, the Authority or the local body concerned may permit the Residents Association or Flat Owner's Association for maintaining such reserved space as park / playground and in such cases where the Authority decides to permit the Resident's Association or Flat Owner's Association for maintaining it, direct access from a public road for the reserved area may not be required, and right of access to the Authority or the local body concerned through set back space shall be transferred through a registered gift deed along with the reserved space. (c) Above 10,000 square meters Ten percent of the area excluding road shall be reserved and this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f land is above 10,000 sq. meters, it is not permissible to collect charges in lieu of 10% of the Open Space Reservation land; and (ii) that in respect of layouts where the total extent of land is between 3,000 sq. meters and 10,000 sq. meters, there was an option either to leave Open Space Reservation land or to pay charges in lieu thereof. 38. In so far as the case on hand is concerned, the first respondent-CMDA has taken a categorical stand that the land belonging to the petitioner is in a layout whose original extent of site was above 10,000 sq. meters. Therefore, the obligation of the original promoter was to carve out Open Space Reservation land to the extent of 10% of the total area. No charges could be or could have been accepted in lieu thereof. 39. The fact that no Deed of Conveyance was executed in respect of OSR land already handed over to the Corporation, cannot really stand in the way, since the law is well settled by the Supreme Court in the decisions which I have referred to in paragraph 13 above. Therefore, I am of the considered view that the demand for OSR charges from the petitioner, on the ground that OSR land was not conveyed, cannot be sustained for 3 reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X
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