Suryavardhan Estates v. The Commissioner

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on 14.02.2018 Delivered on 26.3.2018

CORAM:

THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN AND THE HONOURABLE MR.JUSTICE P. VELMURUGAN W.A.Nos.2283 and 2284 of 2011 W.A.No.2283 of 2011 Suryavardhan Estates Pvt. Ltd., 6th Floor, Dhun Building, 827, Annasalai, Chennai 600 002 represented by its Director Radhakrishnan ...

appellant versus 1.The Commissioner, Town and Country Planning 897, Anna Salai, Chennai 2 2.The Member Secretary, Mamallapuram Local Planning Authority, 131, GST Road, Chengalpattu ...

respondents Writ Appeal filed against the order passed by this Court dated 30.6.2011 passed in W.P.No.12806 of 2010. WP.No.12806/2010:This writ petition filed U/Article 226 constitution of India praying to issue a writ of Certiorari calling for the records of the 2nd respondent culminating in letter No. Na.Ka.No. 506/07 dt .. 04.2010 issued by the 2nd respondent for directing the petitioner to pay a sum of Rs. 1,56,47,500/- towards the balance amount of Infrastructure and Amenities charges and quash the same.

W.A.No.2284 of 2011 M/s.Brookfields Estates Pvt. Ltd., 705, 7th Floor, Spencer Plaza, 769, Anna Salai, Chennai 600 002 represented by its Director Balasubramaniam ... appellant versus 1.The Commissioner, Town and Country Planning 897, Anna Salai, Chennai 2

2.The Member Secretary, Planning Authority/Executive Authority of local body Coimbatore Local Planning Authority, Corporation Complex, Sivananda Colony Coimbatore 641 012 ...

respondents Writ Appeal filed against the order passed by this Court dated 30.6.2011 passed in W.P.No.22621 of 2010. WP.No.22621/2010:This writ petition filed U/Article 226 constitution of India praying to issue a writ of Certiorari Calling for the records of the Respondent culminating in letter No. Na.Ka.No.5829/08 dated 30.08.2010 issued by the 2nd Respondent directing the Petitioner to pay a sum of Rs.1,42,16,150/- towards the balance amount of Infrastructure and Amenities charges quash the same.

Appearance :- For appellant : Mr.R.Murari, Senior counsel for Ms.Preethi Mohan in both writ appeals For Respondents : Ms.A.Srijayanthi, Spl.G.P., for 1st respondent in both writ appeals Mr.I.Arokiasamy, for R-2 in W.A.No.2283 of 2011 No appearance for R-2 in W.A.No.2284 of 2011 COMMON JUDGMENT K.K.SASIDHARAN, J.

Introductory :- Whether the builders who have obtained planning permission for construction of multi-storied buildings by remitting part of the infrastructure amenities fee and by giving undertaking to pay the balance amount in installments as per the then existing regulations contained in the Government Order in G.O.Ms.No.84 dated 8 April 2008 would be entitled to the benefit of the subsequent regulations contained in the Government Order in G.O.Ms.No.161 dated 9 September 2009, reducing the infrastructure amenities fees, without there being anything to show that the subsequent Government Order would apply even to the building permits issued earlier, is the core issue raised in the intra court appeals at the instance of two developers who got planning permission on 21 May 2008 and 18 March 2008 respectively in accordance with the then existing regulations in Government Order dated 8 April 2008.

The facts:- W.A.No.2283 of 2011 :- 2 (a) The appellant submitted application for construction of a multi-storied residential complex at Door No.37,

Kazhipattur Village, Kancheepuram District. The plan was approved by the Director, Town and Country Planning Department by order dated 21 May 2008. The local Planning Authority calculated the infrastructure amenities fee payable by the appellant in accordance with the rate prescribed under the Government Order in G.O.Ms.No.84 dated 8 April 2008. The appellant was directed to pay 5% of the fee immediately and the balance in two equal installments. The appellant remitted 50% of the amount and submitted an affidavit of undertaking dated 13 August 2008, agreeing to pay the balance amount in accordance with the time schedule indicated in the Government Order dated 8 April 2008. The appellant commenced the construction work after paying the first installment of amenities fee. (b) The Government long thereafter taking into account the representation submitted by the Builders' Association, revised the infrastructure and amenities fees by reducing the rate and issued an order in G.O.Ms.No.161 Housing Urban Development [UD 4 (1)] Department dated 9 September 2009.

(c) Since the builder failed to pay the remaining infrastructural fee, the local planning authority issued a notice dated 15 April 2010, calling upon the appellant to remit the amount within fifteen days, as per undertaking. (d) The notice dated 15 April 2010 was challenged by the appellant in W.P.No.12806 of 2010 on the ground that in view of the revised Government Order dated 9 September 2009, there is no liability to pay the balance fee on the basis of the earlier Government Order dated 8 April 2008. The Writ Petition was dismissed.

W.A.No.2284 of 2011:- 3 (a) The appellant was given planning permission to construct a commercial complex at T.No.1422/1 and 1423/38, Krishnaswamy Road, Coimbatore, by the Town and Country Planning Department. The sanction was given on 18 March 2008. (b) The appellant remitted part of the Infrastructure and Amenities charges and submitted an undertaking affidavit dated 11 April 2008, agreeing to pay the remaining charges in installments at the rate of Rs.100/- per sq.m. as indicated in the Government Order dated 8 April 2008.

(c) The appellant on the strength of the planning permission commenced its process of construction.

(d) The Local Planning Authority by notice dated 30 August 2010, directed the appellant to remit the balance amount. The notice was challenged in W.P.No.22621/2010 on the ground that in view of the subsequent order in G.O.Ms.No.161 dated 9 September 2009, there is no liability to pay the amount at the rate indicated in the Government Order dated 8 April 2008. The Writ Petition was dismissed along with a batch of similar cases.

Rival submissions:- 4 (a) The learned Senior counsel for the appellants contended that the Government Order in G.O.Ms.No.161 dated 9 September 2009 was issued in modification of the earlier Government Order in G.O.Ms.No.84 dated 8 April 2008. Therefore, the benefit would be available even to those who got planning permission earlier as per the order dated 8 April 2008. The learned Senior counsel fairly submitted that the appellants have given an affidavit of undertaking to remit the fee at the rate prescribed under G.O.Ms.No.84 dated 8 April 2008. Even then, the appellants are eligible to the benefits conferred by the subsequent Government Order.

(b) The learned Special Government Pleader submitted that the subsequent order dated 9 September 2009 would operate only prospectively. It would not apply to cases wherein planning permits were issued earlier.

Analysis:-

5. The appellants in the respective intra court appeals (hereinafter referred to as "the appellants") were given planning permission for construction of multi-storied building by the Town and Country Planning Department on 21 May 2008 on 18 March 2008 respectively.

6. The Government of Tamil Nadu issued an order in G.O.Ms.No.84 dated 8 April 2008 prescribing the rate for levy of infrastructure and amenities charges. The Government prescribed different rates for different types of buildings. The amount will be collected in three installments in accordance with Rule 9 of Tamil Nadu Town and Country Planning (Levy of Infrastructure and Amenities Charges) Rules 2009. The Government accordingly amended Tamil Nadu Town and Country Planning (Levy of Infrastructure and Amenities Charges) Rules 2008, by incorporating the revised rate.

7. The appellants remitted the first installment of infrastructure fee in accordance with G.O.Ms.No.84 dated 8 April 2008 and availed the benefit given in the said order, permitting further payment in installments. The appellants submitted individual undertaking affidavits, giving a clear and unequivocal undertaking to pay the balance amount.

8. The order sanctioning building plan with condition to pay the infrastructural amenities fee as per G.O.Ms.No.84 dated 8 April 2008 has become final and it was acted upon by the appellants.

9. The Government of Tamil Nadu pursuant to the representation submitted by the Confederation of Real Estate Developers Association of India, revised the rate of infrastructure and amenities charges. The rate prescribed under G.O.Ms.No.84 dated 8 April 2008 was reduced. The G.O.Ms.No.161 dated 9 September 2009 was issued by revising the earlier rate. The rule was amended with immediate effect.

The issue:-

10. The question is whether the Government Order in G.O.Ms.No.61 dated September would operate retrospectively.

11. There is nothing indicated either expressly or by implication in the Government Order to say that it would operate retrospectively. The various clauses in the Government Order on the other hand would support the case of the Government that it is prospective in operation.

12. Clause 3 of the Government Order in G.O.Ms.No.61 dated 9 September 2009 provides that infrastructure and amenities charges shall be paid in one lumpsum, before the issuance of planning permission. However, that was not the case earlier under G.O.Ms.No.84 dated 8 April 2008. Clause 4 provides that the revised rates would take effect with immediate effect. This clearly shows that it would be applicable only to the planning permits granted with effect from 9 September 2009.

13. The appellants are taking shelter under clause 5, which provides that orders issued in G.O.Ms.No.84 dated 8 April 2008 stand modified to the extent indicated in para 4 of the order in G.O.Ms.No.61 dated 9 September 2009. There is no merit in the said contention. This would only show that except clause No.4, fixing the revised rate, all other conditions of Government Order in G.O.Ms.No.84 dated 8 April 2008 would apply. To put it otherwise, only the rate would be changed. The modification of the rate would not amount to rescinding the earlier Government Order by giving it retrospective effect.

14. The Government after issuing order in G.O.Ms.No.84 dated 8 April 2008, amended the Tamil Nadu Town and Country Planning (Levy of Infrastructure and Amenities Charges) Rules 2009.

15. The Government Order in G.O.Ms.No.161 dated 9 September 2009 was incorporated in the Tamil Nadu Town and Country Planning (Levy of Infrastructure and Amenities Charges) Rules by way of amendment. It is therefore statutory in nature. It would not be possible therefore to give retrospective operation to a statutory provision.

16. The legal position is clear. In case the substantive law is amended, it would not operate retrospectively unless it is expressly provided in the amending act or by necessary implication.

17. The Hon'ble Supreme Court in Regional Transport Officer, Chittoor and others vs. Associated Transport Madras (P) Ltd. and others, 1980(4) SCC 597, made it clear that rules cannot be made with retrospective effect unless such power is delegated. The Supreme Court said:- "4.The legislature has no doubt a plenary power in the matter of enactment of statutes and can itself make retrospective laws subject, of course, to the constitutional limitations. But it is trite

law that a delegate cannot exercise the same power unless there is special conferment thereof to be spelled out from the express words of the delegation or by compelling implication."

18. The Hon'ble Supreme Court in Panchi Devi vs. State of Rajasthan and others, 2009(1) Scale 306, made the following observation with regard to the prospective nature of a delegated legislation.

"A delegated legislation, as is well known, is ordinarily prospective in nature.

A right or a liability which was created for the first time, cannot be given a retrospective effect."

19. The Government has framed Tamil Nadu Town and Country Planning (Levy of Infrastructure and Amenities Charges) Rules 2008, to give legislative flavour to the Government Order in G.O.Ms.No.84 dated 8 April 2008. Therefore, the amenities charges fixed under G.O.Ms.No.84 dated 8 April 2008 has become statutory in nature. This rule was later amended consequent to the revision of amenities charges as per Government Order in G.O.Ms.No.161 dated 9 September 2009. The amendment was made to effect prospectively. The prospective nature of the amendment is clearly made out from the word "with immediate effect". The retrospectivity is neither expressly provided or it can be inferred by necessary implication. The Government Order has been made a rule. The revision of amenities charges would not apply retrospectively even if it was enhanced.

20. The building plan was approved in accordance with the existing regulations, including Tamil Nadu Town and Country Planning (Levy of Infrastructure and Amenities Charges) Rules, 2008. In case the building regulations are amended subsequent to the issuance of building permit, such amendment would not apply retrospectively, so as to take away the vested rights, unless it is made by means of a retrospective legislation.

21. The appellants are not liable to pay the revised rate in case the rates are revised by enhancing the amenities fee later. The liability is only to pay at the rate applicable as on the date on which planning permission was given. This would apply both for revision upwards and downwards.

22. When we raised a query, in case the rate is enhanced by the Government Order in G.O.Ms.No.161 dated 9 September 1999, whether the appellants are liable to pay the revised charges, notwithstanding the approval given to them by collecting amount at a low rate as per G.O.Ms.No.84 dated 8 April 2008, the learned Senior counsel fairly submitted that the revision would not be applicable, in view of the vested right. The same yardstick should be adopted when the rate is reduced also.

23. The law is clear that the building regulations prevailing on the date of sanction alone is applicable. The date

of application is irrelevant. Similarly, when a building permit is obtained, the conditions of such permit cannot be challenged later, on the basis of a subsequent order either amending the regulation or revising the fee payable henceforth.

24. The appellants were permitted to pay the amenity charges in installments. It was only after giving an unconditional undertaking, planning permission was given. The appellants have invoked the equity jurisdiction to avoid a liability undertaken on the basis of a statutory provision. We are therefore of the view that there is absolutely no merit in the case pleaded by the appellants.

25. In the upshot, we dismiss the intra court appeals. No costs. Consequently, connected miscellaneous petitions are closed.

Sd/-- Assistant Registrar(CS V) //True Copy// Sub Assistant Registrar To 1.The Commissioner, Town and Country Planning 897, Anna Salai, Chennai 2 2.The Member Secretary, Mamallapuram Local Planning Authority, 131, GST Road, Chengalpattu 3.The Member Secretary, Planning Authority/Executive Authority as the local body, Coimbatore Local Planning Authority, Corporation Complex, Sivananda Colony Coimbatore 641 012 +1cc to Mrs.Preeti mohan, Advocate Sr.No.22686 +1cc to Mr.I.Arokiasamy, Advocate Sr.No.23845 RJI(CO) sm:3.5.2018 W.A.Nos.2283 and 2284 of 2011