Copy of the Judgement by Hon'ble High Court of Madras

                                                

Dear Friends I am very happy and delighted to go through the details of the Judgement pronounced by the Hon'ble High Court of Madras on 01.02.2019.  We should really thank our CGEWHO team,the law-panel, ofcourse, above all, the learned Hon'ble Judge who has given his verdict with a great wisdom and  a clear application of mind on the disputed points.  Now we are happy not only about the Judgement of the respected Court but it has also given us an occasion about the micro details about the permission by the authorities concerned.  Sure, in my opinion it would serve as a very good document in future as the order speaks with true authority.  No ambiguity is found. So certainly we NEED TO congratulate our CEO CGEWHO and his team of forerunners for the case. "CONGRATULATIONS"

I am posting here the unshape copy of the Judgement, as a ChPh3 Beneficiery,you may have the anxiety as well as the interest to go through the text of it.

IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 01.02.2019
Coram:
The Honourable Mr. Justice T.Raja
Writ Petition No.26755 of 2016
Kendriya Vihar II Apartment
Owners Welfare Association,
Rep. By its Secretary,
B 9-130, 1st floor, Kendriya Vihar,
Paruthipattu, Avadi,
Chennai – 71. ... Petitioner
vs.
1.Central Government Employees Welfare
Housing Organization,
Rep. By its Chief Executive Officer,
Head Office at 6th floor,
Janpath Building New Delhi.
2.The Chennai Metropolitan Development Authority,
Rep. By its Member Secretary,
Thalamuthu Natarajan Maligai,
Egmore, Chennai – 8. .. Respondents
Prayer:- Writ Petition filed under Article 226 of the Constitution of
India for issuance of a writ of certiorari to call for th records in
proceedings published by the Central Government Employees Welfare
Housing Organization in “Dhina Thanthi”, dated 28.05.2016 and quash
the same as illegal, incompetent and unconstitutional.
For Petitioner : Mr.U.M.Ravichandran
For R1 : Mr.P.B.Sampathkumar
For R2 : Mr.Karthikrajan, standing counsel
                                             ORDER
The Hon'ble Division Bench of this Court, vide its judgment
dated 30.07.2018 passed in W.A.No.1603 of 2016, while setting aside the
order passed by the learned Single Judge in W.P.No.26755 of 2016,
dated 23.09.2016, has remitted the matter back to the learned Single
Judge to address the issue as to whether the planning permission
obtained by the Central Government Employees Welfare Housing
Organization / first respondent herein in 2014 by showing the entire
26.58 acres in one composite block is in order or not and whether the
proposed development would have the effect of diminishing the UDS
that has been allotted and subsequently sold to the members of the
petitioner Association. Therefore, since the matter before me is after
remand by the Hon'ble Division Bench, I am inclined to deal only with
the above issues indicated by the Hon'ble Division Bench.

2. Heard Mr.U.M.Ravichandran, learned counsel for the
petitioner, Mr.P.B.Sampathkumar, learned counsel for the first
respondent and Mr.Karthikrajan, learned standing counsel for the
second respondent.

3. It is seen that the writ petitioner, who is an Association of
the apartment owners, had purchased apartments from the first
respondent organization, who had constructed apartments of various
sizes in an extent of 26.58 acres and then allotted the same to both
former and present Central Government Employees. While getting
approval for development of the project, the entire area to an extent of
26.58 acres was shown as one block and the planning permission was
obtained for construction of nearly 400 residential units, spread over
the entire extent of 26.58 acres. It is also stated that the total extent of
the built up area as per the approved plan sanctioned in the year 2006,
was about 1,38,156 sq.mts. Although approval was obtained for
construction of 1,38,156 sq.mts., equivalent to 14,85,792 sq.ft., the entire
project was not completed and that the construction was put up only to
an extent of 11 acres 31 cents and then sale deeds were executed to the
allottees concerned. Thereafter, the first respondent Organization had
applied to the Chennai Metropolitan Developing Authority (CMDA)
seeking approval for a revised planning permission including the area
of 11.31 acres and also showing the entire area of 26.58 acres as land to
be developed and obtained approval afresh in the year 2014 for
construction of atleast 10 Blocks of Multi Storied Buildings in the
remaining area. They have also shown the total planning area as
1,97,505.34 sq.mts. and shown the proposed construction area as
1,34,391.20 sq.mts., excluding the earlier construction made to an extent
of 63,114.17 sq.mts., therefore, the petitioner Association challenged the
advertisement issued by the first respondent organization inviting
applications for sale of the Flats that are proposed to be constructed.

4. At this juncture, it is the grievance of the petitioner
Association that by including the land measuring about 11.361 acres,
which was already developed as a part of the new proposal and
obtaining a planning sanction for construction of much a larger extent
of 1,34,391.20 sq.mts., would mean that the total area of construction in
the entire extent of 26 acres 58 cents would be 1,97,505 sq.mts. as
against the original sanctioned extent of 1,38,156 sq.mts. If the
proposed construction as planned by the first respondent Organization
is permitted, it is pleaded, the excess built up area of 60,000 sq.mts.
would eat into the undivided share of the land that had already been
purchased by the members of the petitioner Association . However,
since this issue was not properly projected before the learned Single
Judge, the Hon'ble Divison Bench of this Court has remanded the
matter back to the learned Single Judge to re-examine the same,
namely, whether the move/proposal made by the first respondent
organization to an extent of 60,000 sq.mts. would cause problem to the
existing flat owners covering an extent of 11.31 acres.

5. Prior to the order of remand passed by the Hon'ble
Division Bench, a direction was issued to the CMDA on 05.07.2018 to
undertake an inspection of the site in question and find an answer to
the following questions:-
1. FSI achieved in Phase II on the basis
that the area of the project site is 11 acres 31 cents
and the exact extent of the existing construction.
2. What is the FSI or the maximum
built up area allowed as per the present rules in the
area of 11 acres 31 cents covered by Phase II ?
3. FSI achieved by the new plan by
including the land area in Phase II also?
4. What is the FSI or the permissible
area that could be built up in the remaining area i.e.
26.58 – (11.31 + 2.65) 12.62 acres?
5. What is the maximum permissible
area that could be constructed if the total area of
26.58 acres is shown as available land?
6. Whether it would be possible to
demarcate the 11.31 acres of land earmarked for
construction of Phase II out of the total extent of
26.58 acres?

6. Pursuant to the above said direction, a report dated
26.07.2018 was filed by the Senior Planner, CMDA, Chennai, before the
Division Bench. A mere reading of the report shows that initially, the
CMDA, vide its proceedings dated 07.11.2006, has approved the
application submitted by the first respondent Organization for
construction of Stilt + 4 floors and ground + 3 floors residential building
(64 blocks) with 1304 dwelling units. For better appreciation, relevant
portion of the proceedings dated 07.11.2006 is extracted below:-
“The Planning Permission
Application and Revised Plan received in the
reference 1st cited for the proposed construction of
Stilt + 4 Floors and Ground + 3 Floors Residential
building block 64 Nos. with 1304 Dwelling Units at
S.Nos.472,474/1,2,476,477,479,480/1624/3,625/1,4
75,482,485,551,489/2B2,489/2B3,624/2,484/1B,
484/1C1, 484/1A, 484/1D, 484/1E, 611/2, 611/2B2,
612/2B2 and 612/1B of Paruthipattu Village, has
been approved subject to the conditions
incorporated in the reference 4th cited.”

7. It is also further seen from the report dated 26.07.2018
submitted by the CMDA that out of 64 blocks comprising 1304
dwelling units, 37 (27+10) blocks comprising 572 units were constructed
and the remaining 27 blocks were not constructed. Subsequently,
another proposal submitted by the first respondent Organization for
construction of 11 blocks i.e., 10 blocks with stilt floor + 10 floors
residential building with 1220 dwelling units and 1 block with stilt floor
+ 3 floors + 4th floor (part) for community hall to the already existing
approved 37 blocks at S.Nos.472/1&2, 474/1B, 2A&2B, 475, 476,
477/1&2, 479, 480/1, 482, 484/1A, 1B, 1C1, 1C2, 1D&1E, 485, 489/2B2 &
2B3, 551,611/2,612/1B & 2B2, 624/2&3 and 625/1 of Paruthipattu Village,
Avadi-Poonamallee Road, Chennai, was examined and placed before
the MSB Panel meeting held on 17.08.2012, whereby the Panel had
accepted the said proposal and thereafter, the Government have also
accorded approval for the said proposal vide G.O.(Ms.).No.221,
Housing and Urban Development (UD.1) Department, dated
08.10.2012. It is also further stated that pursuant to the direction of this
Court, site was inspected on 23.07.2018 along with the President and
other members of Kendriya Vihar Apartments Owners Welfare
Association and Officials of CGEWHO, and during the inspection, it
was found that the construction of 10 MSB blocks was under progress.
8. Now, the prime question needs to be answered is whether
the CMDA has considered the entire extent of 26.58 acres (1,07,565.27
sq.mts.) as single entity including Phase-II area, for which FSI achieved is
1.84 (FSI area: 1,97,505.34 sq.mts.). It must be noted in this regard that
pursuant to the representation of the petitioner association, on verification
by the officials of CMDA, it was found that FSI area of the already existing
37 (27+10) blocks constructed in 11.31 acres works out to 1.38 only as
against the maximum FSI achievable limit of 2.50. It is also further seen
that even after construction of the proposed 11 blocks, which pertain to the
impugned advertisement, the FSI works out to 2.025, which is admittedly
well within the maximum permissible limit of 2.50. Therefore, the
permission granted by the CMDA for construction of 11 blocks comprising
of 1220 dwelling units cannot be questioned by the petitioner association.

9. While coming to the issue indicated by the Division Bench
as to whether the planning permission obtained by the first respondent
organization in 2014 by showing the entire 26.58 acres in one composite
block is in order or not, it is clearly found from the report submitted by the
CMDA that the said Authority has considered the entire extent of 26.58
acres i.e., 1,07,565.27 sq.mtrs. as single entity for the calculation of FSI and
coverage, and that the extent of 11.31 acres, where the first respondent had
already constructed 37 (27+10) blocks, till date has not been demarcated.
Therefore, the planning permission obtained by the first respondent
organization showing the entire 26.58 acres in composite block is in order,
for, as highlighted above, even after construction of the proposed 11 blocks
comprising of 1220 dwelling in the remaining 12.62 acres, which is the
impugned advertisement, the FSI works out being 2.025, the same is well
within the FSI limit of 2.50. Accordingly, the first issue is answered.
10. Coming to the second issue, whether the proposed
development would have the effect of diminishing the UDS that has been
allotted and sold to the members of the petitioner association, it may be
stated that earlier, when approval was issued for construction of 64 special
building blocks with 1304 dwelling units, the first respondent organization
has initially constructed 27 blocks with 412 dwelling units (Block-B: 8 Nos;
Block-C:2 Nos; Block-D:9 Nos; Block-E:3 Nos; Block-F: 5 Nos.;) as could be
seen from the partial completion certificate issued by the CMDA on
10.05.2012, and again, 10 more blocks comprising 160 dwelling units ('A'
Type Block: 4 Nos. (64 dues); 'B' Type Block 6 Nos.(96 dues)) were
constructed as could be seen from the partial completion certificate issued
by the CMDA vide its proceedings dated 27.12.2012. In total, the first
respondent organization has constructed 572 dwelling units (27+10 blocks)
as against the original sanctioned dwelling units of 1304 (64 blocks).
Now, for the remaining 27 un-built blocks, the first respondent
organization has sought for permission to construct only 11 blocks
comprising 1220 dwelling units and in total, this will work out to 47 blocks
comprising 1792 dwelling units.

11. At this juncture, it may be mentioned herein that when
there was an approval granted for 64 blocks, the first respondent has
constructed 37 blocks (27+10) in 11.31 acres against the total extent of 26.58
acres, therefore, for the remaining area of 12.62 acres excluding 2.62 acres
allotted to the CMDA for public purpose, they have now sought for
permission to construct only 10 blocks comprising 1220 units against the
left over blocks of 27. Therefore, in my view, the proposal of the first
respondent organization seeking permission to construct only 11 blocks
comprising 1220 dwelling units would not have the effect of diminishing
the UDS allotted to the petitioners. Accordingly, in the above terms, the
second issue is answered.

12. In fine, for the reasons stated above, the writ petition fails and the same is dismissed. No Costs. Consequently, connected miscellaneous petitions are closed.
01.02.2019
Index : yes/no
Speaking / non-speaking

To
1.The Chief Executive Officer,
Central Government Employees Welfare
Housing Organization,
Head Office at 6th floor,
Janpath Building New Delhi.

2.The Member Secretary,
The Chennai Metropolitan Development Authority,
Thalamuthu Natarajan Maligai,
Egmore, Chennai – 8.