(Prayer: Writ Petition has been filed under Article 226 of the Constitution of India to issue writ of Certiorarified Mandamus, to call for the records of the 2nd respondent in Na.Ka.No.1362/2014/CP and quash the order dated 30.10.2014 passed therein and further direct the 3rd respondent to levy and collect Infrastructure and Amenities charges as per the rates prescribed for Institutional Building in G.O.Ms.No.161, Housing and Urban Development Department dated 09.09.2009.)

Writ Petition has been filed under Article 226 of the Constitution of India to issue writ of Certiorarified Mandamus, to call for the records of the 2nd respondent in proceedings Na.Ka.No.609/2011/Ma.U.Thi.Ku dated 29.08.2011 culminating in proceedings Na.Ka.No.609/2011/Ma.U.Thi.Ku dated 09.04.2012 and quash the same in so far as Clause No.10 in the order dated 29.08.2011 is concerned and further direct the 2nd respondent to grant Additional Buildings Planning and Building Plan Approval to the petitioner without insisting on payment of Infrastructure and Development Charges in respect of construction made as per DTCP Approval No.49/2006 dated 21.01.2008 as a pre-condition for granting additional building planning and building plan approval.)

Common Order

1. Both the writ petition arise out of the same factual matrix and involve common issues. Hence, they are taken up together and disposed of by this common order

2. The writ petition in W.P. 31022 of 2014 arise under the following circumstances:-

3. The petitioner is a Trust carrying on activities in the field of education. It is running several Schools and Colleges. One such College is Agni Engineering College and Technology. The petitioner obtained approval and putup construction for the said college. The initial construction, took place in the year 2001. Subsequently, in 2006, the petitioner sought permission to raise additional construction over the existing building. The application was filed with the 3rd respondent. The 3rd respondent forwarded the application to the State Government, which gave an appropriate direction for granting sanction. The superstructure that exists on the land after the additional construction consist of ground, first and second floors.

4. The State of Tamil Nadu issued G.O.Ms.No.191, Housing and Urban Development Department dated 01.06.2007, directing the levy of Infrastructure and Amenities (I&A) charges. Subsequently, another order was passed in G.O.Ms.No.215, Housing and Urban Development Department (UD4.2) Department dated 02.07.2007 permitting collection of 50% of the I&A charges at the time of finalisation of the application for grant of planning permission and the remaining 50% be collected in two instalments of 25% each.

5. Thereafter, the Tamil Nadu Town and Country Planning (Levy of Infrastructure and Amenities) Rules, 2008, were notified. These Rules empowered the appropriate authorities to collect the charges within the minimum and maximum amount fixed under Rule 4. The minimum and maximum rates for special buildings were fixed at Rs.250 and Rs.500 respectively. Insofar as institutional buildings are concerned, the minimum and maximum rates were fixed at Rs.100 and Rs.200/- respectively.

6. On 08.02.2008, the 1st respondent permitted those seeking permission, to make initial payment as Rs.100 to I&A charges, provided, they executed an indemnity bond for payment of balance before the issuance of completion certificate. On account of issuance the of these orders, the 3rd respondent called upon the petitioner to pay a sum of Rs.1,22,16,000/- towards I&A charges and Rs.2,67,200/- towards development charges. This demand was raised on the basis of G.O.Ms.No.84, Housing and Urban Development (UD4-1) Department dated 08.04.2008.

7. The petitioner informed the 3rd respondent that the demand was erroneous, since it had treated the petitioner as a Multi-Storey Building (MSB) instead of an Institutional one. Consequently, it sought to come under Serial No.3 of Rule 4, rather than Serial No.2 of G.O.Ms.No.84 dated 08.04.2008.

8. Meanwhile The Government was moved by various persons, interested in construction industry, who sought reduction of charges. They pointed out that the real estate market had taken a beating and hence, requested the Government to accord some relief to them. Considering the request, the Government issued G.O.Ms.No.161, Housing and Urban Development (UD 4(1)) Department dated 09.09.2009. By this order, the minimum and maximum rates previously fixed under Rule 4 of the Tamil Nadu Town and Country Planning (Levy of Infrastructure and Amenities) Rules, 2008, were ‘done away’ with. Insofar as the Institutional Buildings are concerned, the rate for Chengalpattu region, under which the petitioners' building falls was fixed at Rs.100.

9. The petitioner states that as the rates fixed under Rule 4 had been dispensed with effect from 09.09.2009, any demand made invoking G.O.Ms.No.84, dated 08.04.2008, automatically stands modified as per G.O.Ms.No.161 dated 09.09.2009. It is the plea of the petitioner that, despite the issuance of G.O.Ms.No.161, the 3rd respondent insisted that the petitioner should pay a sum of Rs.1,21,77,000/-.

10. The attempt of the petitioner to persuade the 3rd respondent to revise the demand did not bear fruit. Instead, the 3rd respondent issued an order on 14.06.2010, stating that, on account of non-payment of the I&A charges, the 3rd respondent would take appropriate action to cancel the approval granted for the additional buildings by invoking the provisions of the Tamil Nadu Town and Country Planning Act, 1971. The 3rd respondent had further stated that it would recommend to the Tamil Nadu Electricity Board as well as to the Thazhambur Local Authority to initiate action against the petitioner.

11. The petitioner immediately approached this Court by way of a writ petition in W.P.No.15827 of 2010. This Court disposed of the stay petition filed by the petitioner with a direction to remit I&A charges for the Floor Space Index (FSI) area 24,354 Sq.m, at the rate of Rs.250/- per Sq.m., within a period of eight weeks. The petitioner states that, in compliance with this order, it had also deposited a sum of Rs.60,88,500/- towards I&A charges and Rs.2,67,200/- towards developmental charges.

12. The writ petition was taken up with a batch of matters challenging the I&A charges. It was disposed off by this Court on 30.06.2011. Insofar as the petitioner is concerned, this Court held as follows:

                     “111. If the question is only about wrong classification, an Appeal can cure such defects. On that score, this Court is not inclined to entertain the writ petition. Already this Court has upheld the right of Appeal given under Rule 10 and disinclination of this Court to entertain the Writ Petitions to decide, the question on the basis of pleadings. The contentions raised require factual finding by the Authority. Hence the Writ Petition will stand dismissed with liberty to move the Appellate Authority.”

13. The petitioner states that, based on this order, it filed an appeal before the 2nd respondent on 29.09.2011. This appeal was disposed by the 2nd respondent stating that, on the date of filing of the application by the petitioner, on 21.01.2008, the appropriate orders regarding I&A charges were governed by G.O.Ms.No.84 dated 08.04.2008 and called upon the petitioner to pay as per the aforesaid order.

14. This order was challenged by the writ petitioner by way of another writ petition in W.P.No.15441 of 2014 dated 17.06.2014. This Court held that the order impugned was a non-speaking one. Hence, the same was set aside. The matter was restored on the file of the 2nd respondent with a direction to give an opportunity of personal hearing to the petitioner and thereafter to pass orders. A further direction was given to deposit a sum of Rs.10,00,000/- within a period of three weeks from the date of receipt of the order.

15. Pursuant to the said order, the petitioner appeared before the 2nd respondent. It reiterated the aforesaid contentions. However, the 2nd respondent rejected the plea of the petitioner and held that G.O.Ms.No.161 dated 09.09.2009 was not applicable to the petitioner and that the appropriate G.O. that will operate is G.O.Ms.No.84 dated 08.04.2008 and rejected the appeal of the petitioner. On rejection of the plea, the 3rd respondent demanded the petitioner to pay the balance I&A charges. Challenging the order dated 30.10.2014, the present writ petition. This Court entertained the writ petition and called upon the respondents to file their counter affidavits.

16. The writ petition in W.P.No.31023 of 2014, arises under the following circumstances:-

After narrating the aforesaid facts, the writ petitioner stated that, while continuing its activities to upgrade the infrastructure in the college, a plan was submitted by the petitioner for construction of additional building in the College campus. The Member Secretary, Mamallapuram Local Planning Authority, namely, the 2nd respondent, passed an order on 29.08.2011, calling upon the petitioner to carry out certain corrections in the proposed plan. In the said order, he had imposed a condition that the petitioner will be entitled to processing his application, only if he pays the I&A and Development Charges earlier demanded.

17. The petitioner informed the 2nd respondent, that since an appeal was then pending, the payment of I&A and Development Charges could not be made a condition precedent for the grant of approval for the additional buildings. The petitioner further undertook to pay the balance of I&A charges in the event the appeal went against him.

18. The 2nd respondent did not accede to this plea and refused to process the application for building approval for the additional buildings, unless and until the entire I&A charges, as demanded on 21.01.2008, were remitted. The petitioner attempted to convince the 2nd respondent to recall the order to revise the proceedings, but failed. The 2nd respondent passed an order on 09.04.2012, refusing to entertain the application for approval for additional buildings. The petitioner pleaded that it had complied with all other requirements that had been sought by the 2nd respondent other than the payment of I&A charges and contended that non-payment of a disputed amount cannot be a reason for not granting approval for additional construction. Hence, this writ petition challenges both the original order dated 29.08.2011 calling upon the petitioner to pay I&A charges as well as the proceedings dated 09.04.2012, returning the application seeking building approval for additional buildings.

19. This writ petition was also entertained. Notice was ordered to the respondents. The 2nd respondent in W.P.No.31023 of 2014 alone has gone by way of a counter affidavit.

20. The 2nd respondent pleaded that the petitioner had obtained planning approval from the Mamallapuram Local Planning Authority without remitting development charges under Section 59 or I&A charges as per Section 63-B of the Tamil Nadu Town and Country Planning Act, 1971. It pointed out that the initial demand was issued on 22.08.2008. The first warning notice was issued on 16.04.2010 and, despite the same, the petitioner did not remit the amounts. The counter affidavit states that, since the petitioner's additional construction is more than 300 Sq.m i.e., 24,354 Sq.m., it has to be treated as a ‘Special Building’ and the maximum amount of Rs.500/- is to be collected. It points out that the petitioner had got approval on 22.01.2008. Therefore, he has to pay the amount as per the G.O prevailing on that date. It urges that G.O.Ms.No.161 dated 09.09.2009 cannot be applied to the petitioner, as it is not retrospective. It further relies upon the definition of ‘Special Building’, as per G.O.Ms.No.22 dated 25.01.2008. The definition is as hereunder:

                     “(g) “Special Building” means a building having more than two floors but not exceeding four floors inclusive of ground floor or a building with basement or stilt floor and four floors or a residential building having more than four dwelling units or a building accommodating commercial or industrial or institutional or combination of such activities with a floor area exceeding 300 square meters.”

21. The counter affidavit further adds that the petitioner has got approval for a dental hospital and even for the said building, he had not remitted the I&A and Development Charges. The counter further states that the petitioner did not want to pay I&A charges, but was ready to pay development charges alone. Hence, the Treasury refused to receive the same. According to it, the demand was raised in the petitioner's case only in accordance with G.O.Ms.No.84 dated 08.04.2008, and that the petitioner cannot rely upon G.O.Ms.No.161 dated 09.09.2009, as the same is not retrospective. Hence, it pleads that the writ petitions may be dismissed and the impugned order be upheld.

22. I have heard Mr.L.Murali Krishnan, learned counsel for the petitioner, Mr.L.S.M.Hasan Faizal, learned Additional Government Pleader and Mr.V.Nanmaran, learned Additional Government Pleader for the respondents.

23. The issue that has to be considered in these writ petitions is whether the petitioner is entitled to the benefit of G.O.Ms.No.161 dated 09.09.2009.

24. The Government originally imposed infrastructure and basic amenities charges for different categories of buildings under G.O.Ms.No.191, Housing and Urban Development Department dated 01.06.2007. Subsequently, it issued G.O.Ms.No.84, Housing and Urban Development Department dated 08.04.2008, whereunder, it directed that the maximum and minimum rates of I&A charges shall continue as per Rule 4 of the Tamil Nadu Town and Country Planning (Levy of Infrastructure and Amenities Charges) Rules, 2008.

25. Taking into consideration the difficulties expressed by developers, the Government permitted collection of charges in three installments. This was as per Rule 9 of the aforesaid Rules. The installments were split into 50%, 25% and 25% as first, second and third installments respectively. The Government further directed that, insofar as the Chennai Metropolitan Development Authority (CMDA) and Chengalpattu regions are concerned, the maximum rate of charges should be fixed and collected. It reduced this amount, insofar as Coimbatore and Tiruppur Local Planning areas and Kurichi New Town Development area to 75% and with respect to the other areas, at 50% of the maximum rate of charges. By this G.O, the Government withdrew the power for fixing rates of charges that had been delegated to the Vice-Chairman, CMDA and the Commissioner of Town and Country Planning. The order further states that, in future, the rates would be fixed by the Government.

26. Subsequent to the issuance of this order, the President of the Confederation of Real Estate Developers’ Association of India (CREDAI) gave a representation to the Government in Representation No.TN/061/08-09 stating that the levy of charges was over and above the development charges that were collected under various heads and that, in the other States of this Union, the rates are much lower. The representation further stated that the real estate market has suffered a depression and the sales had dipped on the account of the high interest rates on home loans. Pointing out to these issues, the representation requested the Government to reduce the I&A charges for the various types of buildings. The representation also requested that the reduction in charges may be given effect from 08.04.2008 i.e., from the date, G.O.Ms.No.84, Housing and Urban Development (UD4) Department, was issued.

27. The Government perused the representation and sought a report from the Commissioner of Town and Country Planning, and the Vice-Chairman of the CMDA. They sent reports on 31.07.2009. On a perusal of the representation filed by CREDAI and the reports, the Government decided that there was a slump in the construction industry. Hence, issued G.O.Ms.No.161, dated 09.09.2009. In terms of this order, the minimum and maximum rates specified under Rule 4 of the 2008 Rules were done away with in its entirety. The Government re-fixed the infrastructure charges in terms of Clause 2 of the G.O. It further directed in clause (iii) that the reduced I&A charges will be paid in one lumpsum before the issuance of planning permission. Clause (iv) of the G.O is essential for this case. The said Clause reads as follows:

                     “iv) The above rates of Infrastructure and Amenities charges shall take place with immediate effect.”

28. It is the plea of the petitioner that it is entitled to the benefit of this G.O.Ms.No.161 dated 09.09.2009 and it should be given effect to it, instead of, G.O.Ms.No.84 dated 08.04.2008.

29. I am unable to accept the said contention for the following reasons:-

30. Reading of G.O.Ms.No.161 dated 09.09.2009 makes the following clear: Firstly, the President of CREDAI, apart from seeking the reduction, had made a further request that the charges may be given effect from 08.04.2008. The Government considered the reduction but nut the retrospective operation of the reduction. Instead, in Clause No.(iv), it made it extremely clear that the rates fixed under Clause (ii) would come into effect only from the date of the G.O namely 09.09.2009. Clause (iii) also makes it clear that the infrastructure and amenity charges should be paid in one lumpsum, before issuance of planning permission. These two Clauses makes it clear that the Government had taken a categorical view the reduced infrastructure charges will be given effect to only from 09.09.2009 and would be operative for cases where planning permission is yet to be issued.

31. Admittedly, in this case, the liability of the petitioner arose before 09.09.2009. The petitioner, instead of paying the amount as per the applicable G.O. namely G.O.Ms.No.84 dated 08.04.2008, is attempting to apply G.O.Ms.No.161, dated 09.09.2009, which is absolutely inapplicable to it and thereby seek reduction of the same.

32. Insofar as the plea that the petitioner is an ‘Institutional Building’ falling under Category 3 rather than a Multi-Storied Building under Category 1, is concerned, I am in entirely in agreement with Mr.V.Nanmaran with this point.

33. A perusal of G.O.Ms.No.22, Housing and Urban Development (UD L-1) Department dated 25.01.2008 indicates that institutional buildings not falling under Serial No.1 alone would be liable to pay charges between Rs.100 and Rs.200. The said G.O also defines a Multi-Storey Building as one having more than four floors, including the ground floor. A ‘Special Building’ as one which has more than two floors, but does not exceed four floors inclusive of ground floor and usage of such building covers Commercial, Industrial, Institutional or combination of such activities with floor area exceeding 300 Sq.m. The building which is the subject matter of this writ petition is a special building.

34. In paragraph 3 of the affidavit, the petitioner has conceded that the superstructure consist of ground floor, first floor and second floor and that is three floors. From the counter affidavit filed by the 3rd respondent, it is clear that the petitioner has to put-up a massive construction to the tune of 24,354 Sq.m. That being the position, with G.O.Ms.No.161 dated 09.09.2009 not being retrospective in nature, there is absolutely no merits in W.P.No.31022 of 2014 and, hence, the same is dismissed.

35. Insofar as W.P.No.31023 of 2014 is concerned, the respondents have called upon the petitioner to pay the appropriate charges for which it has defaulted before proceeding with any further approval. It is pertinent to point out that the petitioner executed an indemnity bond on 21.01.2008, stating as follows:-

                     “if any demand raised as infrastructure and amenity charges in future, I promise to pay the I&A charges”.

36. Having executed such an indemnity bond, it does not lie in the mouth of the petitioner to now avoid the liability that it has incurred. Consequently, I do not find any merits in W.P.No.31023 of 2014 also and this Writ Petition too is dismissed.

37. Insofar as the judgment relied on by Mr.L.Murali Krishnan in the case of G.T.Housing Private Limited Vs. Chennai Metropolitan Development Authority in W.P.No.25764 of 2010 is concerned, a perusal of the said judgment shows that the learned Judge, in paragraph 15, had held that since the G.O.Ms.No.84 had been done away with by G.O.Ms.No.161, claiming the amount on the basis of earlier G.O., in the year 2013, is not in accordance with law. He has further held that, at the time of impugned notice was issued, G.O.Ms.No.84 dated 08.04.2008 was not in force. The learned Judge, nowhere in this judgment, had held that GO.Ms.No.161 dated 09.09.2009 is retrospective as pleaded by Mr.L.Murali Krishnan in the present case. Hence, this judgement too does not come to the assistance of the writ petitioner.

38. As the petitioner has admittedly not paid the infrastructure and amenity charges, the respondents are directed to invoke the provisions of Section 56 of the Tamil Nadu Town and Country Planning Act, 1971 and treat the development as one in contravention of the permission granted under Section 56(1)(b), and to proceed in accordance with law. In addition, the respondents shall also invoke Section 63 of the Act to enforce the statutory charge as declared by the said Section.

39. In result, the Writ Petitions stand dismissed with the above directions. No costs. Consequently, the connected Miscellaneous Petitions are closed.