IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.6.2009 CORAM THE HONOURABLE MR. JUSTICE R.SUDHAKAR Writ Petition No.4368 of 2002 M/s.Arihant Foundation and Housing Ltd., represented by its Managing Director, Mr.Navratan Lunawath, Old No.182, New No.271, Poonamallee High Road, Kilpauk, Chennai-600 10. ... Petitioner vs. Member Secretary, Chennai Metropolitan Development Authority, 8, Gandhi Irwin Road, Chennai-600 008. ... Respondent Writ Petition is filed under Article 226 of the Constitution of India to issue a Writ of Certiorari calling for records pertaining to Letter No.ESI/22019/95 dated 21.12.2001 received on 06.02.2002 of the respondent and quash the same as illegal, arbitrary, without jurisdiction of law. For Petitioner : Mr.K.Venkatasubramanian For Respondent : Mr.I.Paranthaman, Additional Government Pleader ----- O R D E R
This Writ Petition is filed praying to issue a Writ of Certiorari calling for records pertaining to Letter No.ESI/22019/95 dated 21.12.2001 received on 06.02.2002 of the respondent and quash the same as illegal, arbitrary, without jurisdiction of law.
2. The brief facts for disposal of this writ petition is as follows:-
(i) The petitioner is a construction company. Petitioner applied for Planning Permission to the respondent Chennai Metropolitan Development Authority for construction of basement + ground floor + 13 floors at Door No.71, Anna Salai bearing S.No.23. Respondent granted sanctioned plan in Permit No.19719 dated 29.3.1996. Petitioner was directed to furnish a bank guarantee for Rs.7,95,000/- towards security deposit in terms of the Development Control Rules as applicable. The said amount was deposited by way of bank guarantee. Petitioner based on the planning permission constructed the building.
(ii) On 6.8.1997 the respondent issued a show-cause notice setting out several deviation in the construction and called upon the petitioner to state as to why the bank guarantee furnished as security deposit should not be encashed. The bank was also informed by letter dated 16.10.1997 to honour the bank guarantee. Once again on 25.3.1999, a notice under Form-II in terms of Section 56 of the of the Town and Country Planning Act, 1971 was issued setting out the details of the deviation in the construction contrary to the planning permission given by the respondent. Petitioner gave a reply on 12.4.1999. Again on 20.9.1999 in letter No.ESI/22019/95, respondent gave the details of deviation and stated that the completion certificate cannot be issued. To this, petitioner submitted reply on 11.12.1999 along with his explanation in the Form of Annexures.
(iii) On 6.3.2000, Petitioner gave a reply as follows:-
“With reference to the above, kindly note that with regard to the deviation you have pointed out we have already replied vide our letter letter dt.11.12.99. Further we have also submitted the revised plans under regularisation scheme on 29.5.99 vide Regn.No.3516 as a caution.”
(emphasis supplied)
On 4.5.2000, respondent based on the allegations contained in the show-cause notice and also the reply, rejected the stand taken by the petitioner and called upon the bank to pay the amount under the bank guarantee furnished as security deposit. The proceeding/order dated 4.5.2000 was challenged and set aside in W.P.No.8774 of 2000 by order dated 7.11.2000 only on the ground that the said order passed is non-speaking order.
(iv) Thereafter, the present impugned proceedings have been passed in ESI/22019/95 dated 21.12.2001. The reason given in the order is as follows:-
“The reply dt.11.12.99 and 6.3.2000 are vague and irrelevant and not also acceptable. The ESI works out to 3.06 as against the petitioner’s content that it is only 2.74. Moreover, the applicant has applied in for regularisation under Regularisation Scheme which itself shows that the completion is in deviation to the approved plan. In view of the above deviation, the Security Deposit is not refundable and it is forfeitable. The action initiated by CMDA is well within the Provisions of T & CP Act, 1971.”
(emphasis supplied)
3. The contention of the learned counsel for the petitioner is that most of the deviations alleged in the show-cause notice and the inspection report are not correct. In any event, petitioner submitted an application to the respondent authority for regularisation of the deviation alleged and the revised plan on 29.5.1999 vide Registration No.3516 as stated earlier. Learned counsel for the petitioner contended that the respondent authority has not taken into consideration the detailed reply submitted to the show-cause notice and the calculation made in the Annexures to the reply. Therefore there is total non-application of mind. Therefore, the impugned order has to be set aside.
4. Mr.I.Paranthaman, learned Additional Government Pleader appearing for the respondent submitted that from the stand taken by the petitioner is that the petitioner has approached the respondent for relief under the Regularisation Scheme in respect of the deviation pointed out by the respondent authority. The contention of the petitioner that there is no deviation cannot be accepted. Since the completion certificate is not issued, the respondent authority has the power to enforce the bank guarantee given as a security deposit by way of forfeiture. He pointed out Rule 28 which deals with Special rules for multi-storeyed Buildings, particularly, clause 14 relates to security deposits and reads as follows:-
“(14) Security deposits:- The applicant shall deposit a sum at the rate of Rs.100 per square metres of floor area as a refundable non-interest earning security and earnest deposit. The deposit shall be refunded on completion of development as per the approved plan as certified by Chennai Metropolitan Development Authority; if not, it would be forfeited.”
Since the completion certificate has not been issued in view of the deviation and also considering the plea for regularisation, the learned Additional Government Pleader submitted that the petitioner is not entitled to challenge the proceedings of the authority. Therefore, forfeiture is in order.
5. In the show-cause notice issued by the respondent authority, several deviations have been pointed out by the respondent authority. No doubt, the petitioner has given some explanation for the same. One of the deviations pointed out by the authority, in particular, is with regard to Floors Space Index(FSI). According to the petitioner, the construction is well within the FSI permissible. According to the respondent department, the petitioner exceeded the FSI Limit. This court will not go into the details as to how the calculation with regard to the FSI has been arrived at. Further, realising that there is some deviation, the petitioner has on his own submitted an application under the Regularisation Scheme. This is not disputed. The revised plan for regularisation has been submitted on 29.5.1999 (i.e.) after issuance of the show-cause notice dated 6.8.1997 and the Form-II notice dated 25.3.1999. It, therefore, follows that the petitioner is not clear whether he has completed the building according to the sanctioned plan. Since the petitioner approached the respondent authority for regularisation by way of a revised plan, the contention of the respondent authority that the petitioner has deviated the planning permission has to be accepted as tenable. Since the completion certificate has not been issued the forfeiture in terms of clause 14 of Rule 28 is in order.
6. The respondent is justified in invoking the bank guarantee given as security deposit. This court is unable to find any good reason as to why the order of the respondent authority should be interfered with, particularly, when most of the points raised are questions of fact and disputed.
7. Learned counsel for the petitioner pleaded that the petitioner’s application for regularisation should be considered by the respondent authority at the earliest in accordance with law. Such prayer is not before this court. Further, if the application for regularisation has been submitted as per the provisions applicable and if there is no other restraint, the authority is at liberty to proceed on such application and decide the issue on its own merit.
8. In the result, the Writ Petition fails and is dismissed. No order as to costs.
ts
To
Member Secretary,
Chennai Metropolitan Development Authority,
8, Gandhi Irwin Road,
Chennai 600 008