IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date: 21.2.2011
CORAM
THE HONOURABLE MR. JUSTICE R.SUDHAKAR
Writ Petition No.1266 of 2011
and
M.P.No.1 of 2011
N.Rajasekar. ... Petitioner
vs.
The Member-Secretary,
Chennai Metropolitan
Development Authority,
Thalamuthu-Natarajan Building,
No.1, Gandhi-Irwin Road,
Egmore,
Chennai-600 008. ... Respondent
Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling upon the proceedings in Letter No.ES3/13181/2010 dated 24.12.2010 and quash the same and further direct the respondent to issue partial completion certificate to the petitioner.
For Petitioner : Mr.A.Thiyagarajan,
Senior Counsel,
for Mr.A.Balamurugan.
For Respondent : Mr.J.Ravindran.
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O R D E R
Writ Petition is filed praying to issue a Writ of Certiorarified Mandamus, calling upon the proceedings in Letter No.ES3/13181/2010 dated 24.12.2010 and quash the same and further direct the respondent to issue partial completion certificate to the petitioner.
2. Mr.J.Ravindran, learned counsel takes notice on behalf of the respondent. By consent of both parties, the writ petition is taken up for final disposal. 3. On 23.9.2008, petitioner was granted planning permit by the respondent Chennai Metropolitan Development Authority. This planning permit relates to construction of five blocks of multi storied building. Petitioner completed two blocks and sought for partial completion certificate for the completed blocks so as to enable the petitioner to avail water supply, sewerage and electricity connection for the completed blocks. This request letter was given on 13.9.2010. Respondent by the impugned proceedings dated 24.12.2010 in Letter No.ES3/13181/2010 referring to an Office Order No.27/2010 dated 21.12.2010, rejected the claim of the petitioner stating that the partial completion certificate can be considered only when the LIG Block has been constructed proportionate to percentage of the floor area of the block for which Partial Completion Certificate is sought. The impugned letter reads as follows:-
“With reference to your application 1st cited for the issue of Partial Completion Certificate Application it is informed that the application is under examination. It is further informed that as per the Office Order No.27/2010 dated 21.12.2010 “In cases where there are two or more blocks approved along with Lower Income Group housing reservations, Partial Completion Certificate can be considered only when the LIG Block has been constructed proportionate to percentage of the floor area of the block/blocks for which Partial Completion Certificate is sought”.
2. As per this order, you are required to complete construction of 1665 sq. mts. in Block No.IV-B (upto 3rd Floor) to satisfy the requirement of Office Order.
In view of the above, you are requested to complete the construction of proportionate area and inform this office for taking further action.”
Challenging the above order, present writ petition has been filed.
4. Thiru A.Thiyagarajan, learned senior counsel appearing for the petitioner contended that on the date when the planning permit was granted on 23.9.2008, the restriction or precondition for grant of partial completion certification was not there. The Office Order dated 21.12.2010 was not in existence. Further, the respondent’s action is arbitrary inasmuch as in respect of another similarly placed person partial completion certificate has been granted by proceedings No.Letter No.EN2/1198/08 dated 24.2.2010.
5. Heard Mr.J.Ravindran, learned counsel for the respondent, who on instruction states that the Office Order dated 21.12.2010 was issued based on the decision taken by the respondent authority wherein a decision has been taken to grant partial completion certificate only if the LIG Block is constructed proportionate to percentage of floor area of the block for which partial completion certificate is sought for.
6. Having considered the rival submission, the respondent’s reason does not appear to be justified. The Office Order dated 21.12.2010 is admittedly, subsequent to the planning permit issued in the year 2008 on which date there was no condition as above. The direction or guideline has to be prospective.
7. As rightly pointed out by the learned senior counsel appearing for the petitioner, arbitrariness is apparent on the face of record wherein another similarly placed person has the benefit of partial completion certificate for one block in the proceedings dated 24.2.2010 in Letter No.FN2/1198/08 and it reads as follows:
"Letter No.EN2/1198/08 Dated 24.02.2010 Sir,
Sub: CMDA Enforcement Cell (North) Construction of Stilt floor + 4 floors (1 block) with 24 dwelling units in S.No.3936/1, 3936/1, 3937/1, 3938/1 & 3940/1(part) at Door No.75, Vaidyanathan Mudali Street, Block No.73, Tondairpet village Partial Competition Certificate Issued Reg.
Ref: 1.Planning Permission No.B/Spl.Bldg/123A to U/2007 in letter No.B3/25650/06 dated 23.3.2007.
2.Completiton Certificate Application of M/s.Emaar MGR Land Ltd. Dated 18.12.2009.
3.This Office even No. letter dated 23.02.2010.
4.Application letter dated 23.02.2010.
5.Additional Development Charges remitted vide CMDA receipt No.5394 dated 24.02.2010.
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This is to certify that M/s.Emaar MGR Land Ltd., has constructed Stilt floor + 4 floors (1 block) with 24 dwelling units in S.No.3936/1, 3937/1, 3938/1 & 3940/1(part) at Door No.75, Vaidyanathan Mudali Street, BlockNo.73, Tondairpet village sanctioned vide PP No.B/Spl.Bldg/123A to U/2007 in Lr.No.B3/25650/06 dated 23.03.07. It was inspected and observed that the building has been completed as per approved plan and the norms for issue of Completion Certificate approved by the Monitoring Committee.
Accordingly, Partial Completion Certificate, for one block mentioned above out of 25 no. of blocks covered in this office approval letter 1st cited is issued for the above construction vide C.C.No.EC/North/53/2010 dated 24.02.2010.
This is only a Partial Completion Certificate issued for availing Water Supply, Sewer and Electricity connection for the completed Blocks (Stilt + 4 floors one block). As agreed by the applicant vide the letter 3rd cited, the applicant shall hand over the road widening portion to CMDA before applying for final Completion Certificate.”
This partial completion certificate is relatable to planning permit of the year 2007. Hence, the same yardstick will apply to the present case also.
8. In view of the above, the Office Order dated 21.12.2010 will have to operate prospectively and will not be applicable to the facts of the present case. The respondent is not justified in denying the partial completion certificate for the purpose of availing Water Supply Sewer and Electricity connection for the completed blocks. The impugned proceeding is bad and is accordingly, set aside. The respondent is directed to issue partial completion certificate for the purpose of availing water supply, sewerage and electricity connection for the competed blocks.
9. The writ petition is ordered as above. No costs. Consequently, connected miscellaneous petition is closed. ts To The Member-Secretary, Chennai Metropolitan Development Authority, No.1, Gandhi-Irwin Road, Egmore, Chennai 600 008