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THE APPLICANT DOES NOT ACQUIRE ANY RIGHT UNDER THE LAW UNTIL HIS APPLICATION IS CONSIDERED AND SANCT

Chennai Metropolitan Development Authority Represented By Its Member Secretary Vs. D. Rajan Dev And Others

Civil Appeal No. 9336 Of 2019 (Arising Out Of Slp(C) No.35685 Of 2016) –December 11, 2019

This appeal was brought to the Supreme Court of India before the bench consisting of Honourable Justice R. Banumathi, Honourable Justice A.S. Bopanna and Honourable Justice Hrishikesh Roy.

This appeal arises out of the impugned judgment passed by the Division Bench of the High Court of Madras in W.A. by the first respondent in and by which the Division Bench set aside the order of Single Judge and allowed the writ appeal thereby directing the appellant Chennai Metropolitan Development Authority (CMDA) to calculate the Premium FSI charges at the rate prevalent as on the date of filing of application by the first respondent Rajan Dev.

APPELLANTS CONTENTION

Mr. Jayanth Muthuraj, learned Senior counsel appearing for the appellant-CMDA submitted that under the “Premium FSI Scheme”, the application was returned for rectification of defects on 10.02.2012 and the first respondent resubmitted the application on 25.02.2012. Placing reliance upon Chennai Metropolitan Development Authority represented by its Member-Secretary and another v. Prestige Estates Project Ltd. 2019 (10) SCALE 78, it was submitted that the crucial date for determining the applicable rate for Premium FSI Charges is the date on which the authority grants planning permission. It was submitted that mere pendency of the application or any payment made does not create any right under the law in favour of the applicant till his application is considered and sanction is granted as laid down by the Supreme Court in Usman Gani J. Khatri of Bombay v. Cantonment Board and others (1992) 3 SCC 455. The learned Senior counsel submitted that the judgments relied upon by the Division Bench viz. Union of India and others v. Dev Raj Gupta and others (1991) 1 SCC 63 and Union of India and another v. Mahajan Industries Ltd. and another (2005) 10 SCC 203 are not applicable to the case in hand as both the judgments deal with the application for conversion and not an application for building permission. The learned Senior counsel further submitted that the first respondent being an experienced builder with for more than three decades experience, is well aware of the procedure to be followed in making an application seeking planning permission, but had deliberately filed a defective application and therefore, the first respondent is not right in contending that there was delay on the part of the appellant-CMDA in processing the application. Learned senior counsel for the appellant submitted that the builder would not acquire any legal right by merely submitting an application for approval of the building plan and the right would accrue only after sanction of the revised plan by the Government. In this regard, Usman Gani J. Khatri of Bombay v. Cantonment Board and Others (1992) 3 SCC 455 was referred to by the learned Single Judge.

RESPONDENTS CONTENTIONS

Per contra, reiterating the findings of the Division Bench, Mr. K.V. Vishwanathan, learned Senior counsel appearing for the first respondent submitted that as rightly held by the Division Bench that the crucial date for determining Premium FSI has to be the date of receipt of the application by the first respondent. It was submitted that the first respondent has submitted the application for permission to have additional FSI under the “Premium FSI Scheme” way back on 04.05.2011 and the same was returned on 10.02.2012 by the appellant for rectifying the defects nearly after a delay of nine months. It was further submitted that the application of the first respondent was pending consideration for quite some time with the appellant-CMDA and the Multi-Storeyed Building Panel discussed the application of the first respondent and forwarded the proposal to the Government with the recommendation for approval even on 30.03.2012. The learned Senior counsel further submitted that the Division Bench of the High Court rightly held that the FSI charges are payable on the date of filing of the application for conversion and not on the date of the approval and the impugned judgment warrants no interference. Learned senior counsel for the first respondent inter-alia contended that there was an inordinate delay on the part of appellant- CMDA in processing the application and the first respondent cannot be burdened with extra charges on account of delay caused by the appellant. Learned senior counsel further submitted that the application of the first respondent dated 04.05.2011 for the revised proposal was returned after nine months on 10.02.2012 and the respondent cannot be blamed for the delay caused by the appellant in processing the application of the first respondent. This contention did not merit acceptance. The appellant-CMDA is a body entrusted with the task of examination and approval of a multitude of building applications throughout the planning area. That apart, the appellant-CMDA is a single-window system and it has to verify various documents with the connected Departments at various levels. The application was processed at various levels and it was sent to the departments like police, Fire, etc. for clearance. Considering the fact that different departments and agencies are involved with the process of approval, we feel that, there was no undue delay on the part of the appellant-CMDA or the State Government. As rightly pointed out by the learned Single Judge, the first respondent submitted the application after rectification of defects only on 24.02.2012 and within a period of one month, the application was placed before the meeting. Therefore, it cannot be said that there was an undue delay on the part of the appellant-CMDA or Government to consider the first respondent’s application for approval of the revised plan.

OBSERVATION MADE BY THE COURT

The court considered the submissions and carefully perused the impugned judgment and other materials on record. The point falling for consideration is whether the High Court was right in holding that the Premium FSI charges are payable only as per the pre-revised guideline value as on 04.05.2011 i.e. the date of filing of an application with a revised plan, by the first respondent?

Learned senior counsel for the respondent contended that only the date of application for the revised building plan has to be taken into consideration and the first respondent cannot be levied with the revised FSI Premium charges because of the time taken by CMDA in processing the application. The learned Senior counsel mainly relied upon the recommendation made by the appellant-CMDA to content that pre-revised guidelines would only be applicable for calculation of the Premium FSI charges.

The Division Bench did not keep in view the well-settled principle that no right accrued to the applicant-builder by the mere filing of an application for approval and the right accrues only after approval is granted by the Government/concerned authorities. The impugned judgment is contrary to the well-settled principle that the applicant does not acquire any right under the law until his application is considered and sanctioned. Regulation 36 clearly provides that the Premium FSI shall be allowed in specific areas only with the approval of the Government. Unless and until the Government grants approval, no right accrued to the first respondent. When the Government sanctioned the approval on 29.05.2012, the Division Bench erred in directing the appellant to calculate the FSI charges as per the guideline value as on 04.05.2011. The impugned judgment is therefore liable to be set aside.

JUDGMENT DELIVERED

Thereby, after inferring the facts and circumstances of the case, the Honourable Court gave its decision as under, “As a result, the impugned judgment passed by the High Court of Madras in W.A. No.2376 of 2013 is set aside and this appeal is allowed. The appellant-CMDA is at liberty to recover the balance Premium FSI charges from the first respondent in accordance with its regulations and rules. No costs.”

– Tanvi Srivatsan

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