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The Executive Officer, Kundrathur Town Panchayat, Chennai v/s M/s. Amarparakash Developers Pvt. Ltd., Rep. by its Authorised Signatory M. Ramesh & Another

    W.A. Nos. 2180 & 2181 of 2019 & C.M.P No. 14538 of 2019

    Decided On, 22 July 2019

    At, High Court of Judicature at Madras

    By, THE HONOURABLE DR. JUSTICE VINEET KOTHARI & THE HONOURABLE MR. JUSTICE C.V. KARTHIKEYAN

    For the Appellant: P. Srinivas, Advocate. For the Respondents: R1, Kumarpal R. Chopra, R2, P. Veena Suresh, Advocates.



Judgment Text

(Prayer: Writ Appeals filed under Clause 15 of Letters Patent against the order of this court dated 7.8.2017 in W.P.Nos.13696 and 11432 of 2017.)

Common Judgment

Dr. Vineet Kothari, J.

1. The Executive Officer, Kundrathur Town Panchayat has filed these intra-court Appeals aggrieved by the order dated 7.8.2017 passed by the learned Single Judge allowing the Writ Petition Nos.13696 and 11432 of 2017 filed by the Respondent-Builder M/s.Amarparakash Developers Pvt. Ltd., Chennai.

2. The learned Single Judge held that the demand raised by the Appellant, Town Panchayat under the demand notice in question viz., R.C.No.10/2017-A-1 dated 27.2.2017 directing the Respondent-Builder to stop the construction being raised by them and the notice in R.C.No.117/2017-A-1 dated 15.5.2017 demanding a sum of Rs.9,57,57,300/- (Rupees None Crore Fifty Seven Laksh Fifty Seven Thousand Three Hundred only) as licence fee for issuing fresh Buildi

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ng Permission for the construction being raised in Survey Nos.616/1, 707/1A, 18 & 3, 708/3, 709, 710/1, 721/1 & 2, 726/1 & 2, 727/1A, 18, & 2, 728/1 & 2, 729/1 & 3, 730 & 734 of Kundrathur Village in terms of Section 204 of the Tamil Nadu District Municipalities Act, 1920 are liable to be quashed.

3. The reasons assigned by the learned Single Judge in the order impugned before us are as follows:-

“6. The 1st respondent has filed his counter, wherein at Para 7, he has stated that as per Section 204 of the Tamil Nadu District Municipalities Act, 1920, at the time of ending license, new building permission can only be granted. Further, he has also mentioned that under Section 50 of the Tamil Nadu Town and Country Planning Act, 1971, the respondent had demanded for New Building Planning Permission, vide letter dated 15.05.2017.

7. Mr.P.H.Aravind Pandian, learned Senior counsel appearing for the petitioner submitted that in similar circumstances, this Court in an unreported Judgment dated 17.04.2017 made in W.P.No.3946 of 2017 set aside the impugned order passed by the Municipality and directed the authority to renew the planning permission on payment of requisite scrutiny fee.

8. Mr.P.H.Aravind Pandian, learned Senior counsel appearing for the petitioner also submitted that the petitioner is willing to pay the requisite scrutiny fee on demand being made by the 1st respondent.

9. Mr.S.Diwakar, learned Special Government Pleader appearing for the respondents has also submitted that the issue involved in the present Writ Petition is covered by the Judgment relied upon by the learned Senior Counsel appearing for the petitioner.

10. In view of the submission made by both sides, the impugned orders dated 27.02.2017 and 13.04.2017 passed by the 1st respondent and the impugned order dated 15.05.2017 passed by the 1st respondent in W.P.No.13696 of 2017 passed by the 1st respondent are set aside. The 1st respondent is directed to process the petitioner’s application for renewal of the planning permission, on payment of requisite scrutiny fee and other applicable payments, such as, Building Construction Welfare Fund and Vacant Site Tax.

11. After receiving payments of necessary charges by the petitioner, the 1st respondent is directed to consider the granting of necessary permit within a period of two weeks from the date of making payments. It is also made clear that the 1st respondent shall issue the demand in respect of scrutiny fee and other charges within one week from the date of receipt of a copy of this order.

With these observations, the Writ Petitions are allowed. No costs. Consequently, the connected Miscellaneous Petitions are closed.”

4. Learned counsel for the Appellant-Town Panchayat Mr.P.Srinivas has urged before us that since the Respondent-Builder failed to develop the Township within the prescribed time limit of 3 years, for which the earlier approval was granted, Section 204 of the Act only envisages that a fresh application seeking Building Permission has to be filed and there is no provision for renewal of earlier approval by extending the period of such Building Permission and therefore, fresh licencee fees could be demanded from the Respondent-Builder under the impugned notice and also notice directing to stop construction without obtaining such permission was justified.

5. The learned counsel for Respondent No.1, Mr.Kumarpal R.Chopra, relied upon the decision of a Division Bench in the case of The Commissioner, Poonamallee Municipality, Chennai vs. M/s.Golden Homes Private Limited and others (CDJ 2018 MHC 7811) wherein a co-ordinate Bench of this Court dealt with almost similar controversy and held that fees for renewal of the Building Permission under Section 204 of the Act 1920 could not be demanded for the second time in the absence of any specific provision to that effect in the said Act. The relevant portion of the said decision in para 12 and 13 is quoted below for ready reference:-

“12. We have considered rival submissions. No doubt Section 204 contemplates a fresh application at the same time we must point out that either Section 204 or any other provisions of the Tamil Nadu District Municipalities Act, 1920 empower the Municipality to demand payment of the charges for grant of such building permission for the second time, merely because an application is made under Section 204 for renewal of the building permission. Section 321(9-A) provides for the time limit and the said Section would have to be, as rightly concluded by the learned Single Judge, read in consonance with Section 204 of the District Municipalities Act, 1920. Apart from the above, the Planning Authorities viz., Chennai Metropolitan Development Authority has while renewing the planning permission has directed the 1st respondent to approach the appellant Municipality for renewal of the building permit under the Local Body Act. Therefore, it is clear that the Authorities had understood the impact of Section 204 in a particular manner and therefore it is not open to the Municipality to project a novel plea of second time payment without any statutory support. We are therefore of the view that the learned Single Judge was right in directing the Municipality to consider the application for building permit without insisting upon the payment of the charges which had already been collected at the time of grant of permission.

13. In the result, the Writ Appeal fails and the same is dismissed, however there will be no order as to costs. It is well open to the 1st respondent Municipality to move the legislature for incorporation of a provision as to renewal and fixation of a fee for renewal in the light of the fact that the continued building activity may cause some financial burden on the Municipality. However, on the provisions as they stand today, we are constrained to point out that the demand made by the appellant Municipality cannot be justified. No costs. Consequently, the connected Miscellaneous Petitions are also closed.”

6. He, therefore, submitted that earlier payment made to CMDA for approval of the Township and Building Permission itself could not lapse with the extension period sought for by the Respondent-Builder.

7. At this juncture, the learned counsel for the Appellant-Town Panchayat submitted that the Respondent-Builder has sought for permission for construction of additional units for which the permission was granted earlier and on this ground also, the demand has been raised and since such notice has been set aside by the learned Single Judge, the present Appeals have been filed by Town Panchayat.

8. Having heard the learned counsel for the parties, we are satisfied that the impugned notices issued by the Appellant-Town Panchayat can only be treated as show cause notice to the Respondent-Builder to which an opportunity of hearing should be given and straightway raising such demand and enforcing the same is not permissible without the compliance of principles of natural justice. The judgment relied upon by the learned counsel for the Respondent-Builder can also be relied upon during the course of such proceedings before the competent authority for the such Town Panchayat.

9. Therefore, to the above extent of treating the demand notice as show cause notice, the order passed by the learned Single Judge is set aside. The Respondent-Builder will be free to raise objections to the said notice in accordance with law. The appropriate speaking orders will be passed by the competent Authority after affording opportunity of hearing to the Respondent-Builder to put forth his case.

10. The said Authority will also deal with the judgment of the Division Bench relied upon by the Respondent-Builder and assign proper reasons, in case the said Authority holds the view of the said demand is not applicable to the present case. It is needless to add that if the facts of the present case are not distinguishable, the decision of the Division Bench of this court will bind the parties in question.

11. With these observations, we dispose of the Appeals relegating the parties to the stage of show case notice issued by the Executive Officer of the Appellant-Town Panchayat and direct him to dispose of the objections of the Respondent-Builder in accordance with law, after giving opportunity to the Respondent-Builder, within a period of three months from today. The Respondent-Builder is free to file his objections alongwith relevant evidence within a period of three weeks from today. No costs. The connected Miscellaneous Petition is also closed
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