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Maalai Murusu - Shelter Fund - Ponnammal Trust
Maalai Murusu - Shelter Fund - Ponnammal Trust
Maalai Murusu - Shelter Fund - Ponnammal Trust
BENCH AT MADURAI
(Special Original Jurisdiction)
W P ( MD) No. of 2018
The Managing Trustee
Ponnammal Educational Trust
12, Navaneethakrishnapuram
Bethanadarpatti Post
Alangulam, Tirunelveli
Tirunelveli District. ... Petitioner
- vs -
1. The State Of Tamil Nadu
Rep by its Secretary
Housing and Urban Development Department
Fort St. George, Chennai – 600 009.
2. The Director of Town & Country Planning
No. 807, Anna Salai
Chennai – 600 002.
3. The Regional Joint Director of
Town & Country Planning
108, Thiruvanandhapuram Road
Palayamkottai, Tirunelveli District.
4. The Special Officer
Pulangulam Panchayat
Keelapaavur Panchayat Union
Tirunelveli, Tirunvelveli District. …Respondents
AFFIDAVIT OF THE PETITIONER
----------
I, Mr. G. Rajasekaran, aged about 50 years, son of
P. George Pandian, residing at Door No. 12,
Navaneethapuram, Pethanadarpatti post, Alangulam Taluk,
Tirunelveli – 627 808, Tirunelveli District, now temporarily
come down to Madurai, do hereby solemnly affirm and
sincerely state as follows:
1. I state that I am the Managing Trustee of the
petitioner trust herein and I am well acquainted with the facts
of the case.
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2. I state that the petitioner Trust namely, the
Ponnammal Educational Trust is a public charitable trust
registered under the Trust Act of the Government of India
bearing Reg. No. 929/2004 in the office of the Sub Registrar,
Purasivakkam, Chennai. The affairs of the Trust are managed
by the Board of Trustees composed of three Trustees. The
Trust is doing a yeomen service in the field of education,
particularly for the upliftment of educational interests and
social advancement of the local population of Alangulam,
Tirunelveli District.
3. I state that the petitioner Trust established two
educational institutions under it in the district of Tirunelveli
viz., ‘Sri Muppudathi Amman Matriculation Higher Secondary
School, Adaikalapattananm, Alangulam, Tirunelveli’ and ‘Sri
Muppudathi Amman College of Education,
Adaikalapattananm, Alangulam, Tirunelveli’ and the Trust
has been administering the same till date. The above
institutions are all self-financed and they do not receive any
grant-in-aid from the Government. All the above institutions
are running with the recognition, approval and affiliation (in
the case of college of education) of the respective competent
authorities.
4. I state that the above said school ‘Sri Muppudathi
Amman Matriculation Higher Secondary School,
Adaikalapattananm, Alangulam, Tirunelveli’ was initially
established by the petitioner trust in the year 2010 with
Standards L.K.G to VIII. Later, it was upgraded as High
School in the year 2011 with Standards IX and X, and again
upgraded as Higher Secondary School in the year 2014 with
Standards XI and XII. There are totally 985 students studying
in the school and 60 Teaching and 20 Non-teaching staff are
working in the school. The medium of instruction is English.
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5. I state that the said school is located in a
sprawling campus of 3.20 Acres within the limits of the 4th
respondent Panchayat (in survey numbers viz., R.S. No.
288/67, 288/68, 288/69, 288/70, 288/78, 289/1A, 289/1D
and 289/1C) and has been functioning with all necessary
infrastructures and instructional facilities with the Site and
Building Plan Approval from the Pulangulam Panchayat
(proceedings No. 6 dated 05.05.2010 and proceedings No. 17
dated 02.08.2012).
6. I state that in the month of March 2017, the
petitioner Trust decided to put up additional structure in the
School located in Survey Nos. 288/67, 288/68, 288/69,
288/70, 288/78, 289/1A, 289/1C, 289/1D of the
Pulangulam Village, Kilpaavur Panchayat Union.
7. Hence, the petitioner- Trust submitted application
to the 2nd
respondent Director seeking Building Plan Approval
through the proper channel i.e., the 4th respondent Special
Officer. All necessary documents and particulars viz.,
topography map, Patta, Chitta, Encumbrance Certificate,
No-Objection Certificate from the Tahsildar, No-Objection
Certificate from the Government Advocate, No-Objection
Certificate from the Fire Service Department, Undertaking to
provide drinking water, Undertaking to provide sewage
treatment, Undertaking to provide special facilities to the
physically challenged people, Building Stability Certificate,
S.T.P. Report, the Survey map, etc., were annexed along with
the application.
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8. After careful consideration, the 4th respondent
forwarded the same to the 3rd respondent Regional Joint
Director vide letter dated 13.03.2017. In turn, the 3rd
respondent Regional Joint Director forwarded the same to the
2nd
respondent Director along with his recommendations vide
his proceedings in Na. Ka. No.541/ 2017/ THI.LI.MA.3 dated
16.03.2017.
9. Following that, the 2nd respondent Director sought
for the following particulars and details from the petitioner
Trust vide proceedings in Na. Ka. No. 5040 of 2015/B.B.1
dated 03.04.2017:
1) No-Objection Certificate from the State
Highways Authority.
2) Survey map of Survey No. 288 along with its
sub divisions and of the Survey No. 289 along
with its circumference area.
3) Encumbrance Certificate of Survey No.
288/69.
4) Survey map of Survey No. 289/1C (PA) with
its total area.
5) Detailed drawing of open urinals and area
details as stated in the Site Plan along with
verified number of parking slots.
6) Details pertaining to the channel running on
the north of the building plan area along with
the details of E.B. line.
7) Verified and corrected extent of proposed
building area.
8) Attested Certificate of site plan issued by the
Regional Joint Director along with the list of
probable rules violated.
9) Topo plan map.
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10. At once, the petitioner Trust submitted all the
required necessary documents and particulars to the 2nd
respondent Director through the proper channel i.e., the 3rd
respondent Joint Director. In so far as the No Objection
Certificate from the State Highways authorities is concerned,
the application submitted by the petitioner dated 10.04.2017
was pending before the Authority and hence a copy of the
said application was annexed with the letter (later, the State
Highways Authority issued No-Objection Certificate vide
proceedings in Ka.No.1144/ 2017/ EVA1 dated 20.04.2017
and the same was submitted to the 2nd respondent Director).
11. I humbly state that, following that, the 2nd
respondent Director vide proceedings in Na.Ka.No.5040
/2017/BA1 dated 12.07.2017 instructed the 3rd respondent
Regional Joint Director to proceed further for the grant of
Building Plan Approval on payment of Premium FSI Charges
& other related charges. This was on the basis of the decision
of the 38th Empowered Committee dated 20.06.2017, which is
as follows:
“The Committee observed that in respect of hostel
block, the said back available is 3.80m which is
less than 6.0m and violates the DCR Norms but
satisfies the Tamil Nadu Multi Storied and Public
Building Rules, 1973. In respect of staircase, the
available width is 1.53m against 1.60m and the
violation is minimal.
Therefore the Committee decided to relax the
aforesaid violation subject to collection of Premium
FSI Charges to the extent of shortage in the
minimum said back requirements.”
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12. In pursuance thereof, the 3rd respondent Regional
Joint Director vide proceedings in Na. Ka. No. 541/ 2017/
THI.LI.MA.3 dated 20.07.2017, instructed the petitioner Trust
to deposit a sum of Rs.16,81,000/- towards Infrastructure
and Basic Amenities charges and a further sum of
Rs.14,000/- towards the Payment Collection service charges.
Thereafter, the 3rd respondent Regional Joint Director vide
proceedings in Na. Ka. No.541 /2017/ THI.LI.MA.3 dated
26.07.2017 instructed the petitioner Trust to pay a sum of
Rs.7000/- towards the Premium FSI (Floor Space Index)
charges.
13. At once, in compliance of the same, the petitioner
Trust made all the aforesaid payments on 29.07.2017 and
forwarded all the original pay challans to the 3rd respondent.
In view of the payment of charges as per the instructions of
the Director, the 3rd respondent Regional Joint Director vide
proceedings in Na.Ka.No.541/2017/THI.LI.MA.3 dated
04.08.2017 informed the petitioner Trust that the Plan had
been Approved for the additional building structure and
instructed the petitioner-Trust to obtain the same from the 4th
respondent Special Officer.
14. Immediately, on 06.09.2017, the petitioner
approached the 4th respondent Special Officer to collect the
Building permission and the Plan Approval granted by the 3rd
respondent Regional Joint Director. But, to our shock and
surprise, the 4th respondent served me a copy of the
impugned proceedings issued by the 3rd respondent Regional
Joint Director in Na. Ka. No. 2398/2017/THI.LI.MA.3 dated
01.09.2017 and instructed the petitioner-Trust to comply
with the instructions set out in the proceedings of the 3rd
respondent dated 01.09.2017.
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15. It is humbly submitted that the said impugned
proceedings of the 3rd respondent said that the petitioner
Trust had to remit a sum of Rs.12,60,750/- (ie., 75% of the
Infrastructure and Basic Amenities Charges) to the
Government Account under the Head of “AB Tamil Nadu
Shelter Fund” and to forward the original pay challan to the
office of the 3rd respondent RJD. The said impugned
proceedings was issued on the basis of the impugned G.O.
(Ms). No. 135 Housing and Urban Development (SC1-2) dated
21.07.2017. However, a copy of the GO was not furnished to
the Petitioner-Trust.
16. It is respectfully submitted that the 1st respondent
State Government seems to have issued the impugned G.O.
(Ms). No. 135 Housing and Urban Development (SC1-2) dated
21.07.2017 by constituting a Fund namely, ‘Tamil Nadu
Shelter Fund’ with two Tier financial structures viz., Tier-I
Shelter Fund and Tier-II Shelter Fund for the purpose of
funding housing projects through TN Slum Clearance Board
including Grant component of State Government share in
Centrally Sponsored Housing Scheme. The GO also prescribes
the source of funding to the Tier-I and Tier-II Shelter Funds
and the manner in which they should be received and
utilised.
17. It is humbly submitted that one among the source
of fundings prescribed under the GO to the Tier-I Shelter
Fund is through the collection of a Fee namely, Shelter Fee @
75% of the Infrastructure and Amenities (I&A) charges from
all the proposed developments of the respective category of
buildings having a FSI area of 3,000 sq.mts and above. The
relevant portion of the said G.O. reads as follows:
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“4. The Government direct that initially the
sources of funding for Tier – I Shelter Fund
shall be as specified below:
(i) A shelter fee @ 75% of the I & A rates
for respective category of buildings will
be charged from all the proposed
developments having a FSI area of
3,000 Sq.Mtr., and above expect for the
residential projects where the size of the
dwelling units (carpet area) does not
exceed 50 Sq.Mtr., in lieu of the
prevailing regulation of reservation of
10% of the built up area for LIG in all
the developments on land parcels of
more than 10,000 Sq.Mtr.”
18. It is humbly submitted that, firstly, the 1st
respondent State Government has no statutory authority to
impose and collect the said Shelter Fee at the rate of 75% of
the Infrastructure and Amenities (I&A) charges from the
proposed developments of buildings having a FSI area of
3,000 sq.mts and above in the absence of any enabling
provision under the Tamil Nadu Town and Country Planning
Act, 1971. The levy of such fee is without any authority or
sanction of law.
19. Secondly, it is very evident from the GO that the
money collected under the head of “Shelter Fee” would not be
utilized for the benefit of the persons paying for the same,
either directly or indirectly. The prescription of the Shelter
Fee apparently gives a colour of Tax rather than Fees. The
State Government is trying to do indirectly what it cannot do
directly.
20. Thirdly, it is humbly submitted that a Fee can be
levied only in return for a service that is provided by the
authority levying/collecting the same. There must be a quid
pro quo i n respect of levy of fees. However, in the present case
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there is no service provided by the respondents to the
petitioner or any other similarly placed persons from whom
Shelter Fee is proposed to be collected. There is absolutely no
relationship between the levy of fee and the service they
render as the very purpose of collection of Shelter Fund is to
finance housing projects for the urban poor. In as much as
there is no service provided by the respondents in relation to
the Shelter Fee, there is no authority vested on the
respondents to collect any such fee from the petitioner Trust.
21. Fourthly, the petitioner Trust would not enjoy any
special privilege or service in exchange to the collection of
Shelter Fee by the respondents. Therefore, the respondents
are attempting to levy an unjustifiable “tax” in the guise of
“Fee” and the same is absolutely impermissible and violative
of Article 265 of the Constitution of India.
22. Fifthly, the impugned proceedings dated
01.09.2017 has been passed by the 3rd respondent Regional
Joint Director without application of mind in the proper
perspective. The 3rd respondent failed to advert to the fact
that the said GO does not have any relevance to the case of
the petitioner-Trust. The said GO is prospective and it deals
with the collection of Shelter Fee i.e., 75 % of the I & A
charges from the proposed developments of buildings. In so
far as the present case is concerned, the school under the
Trust has been functioning with all necessary infrastructures
and instructional facilities with the site and Building Plan
Approval ever since 2010. The Trust has added only few
additional structures to the existing building structure and
there is no new development whatsoever (additional structure)
to an extent of FSI area of 3,000 sq.mtr so as to be covered
under the GO.
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23. Further, the 2nd respondent Director instructed
the 3rd respondent Regional Joint Director to proceed further
for the grant of Building Plan Approvalon payment of
Premium FSI Charges & other related charges as early as on
12.07.2017 on the basis of the decision of the 38th
Empowered Committee dated 20.06.2017 i.e., much before
the date of issuance of the said GO. The 3rd respondent also
acted on it and granted the Building permission and Plan
Approval to the petitioner Trust and also instructed the
petitioner Trust to get the copies from the 4th respondent
Special Officer. That being so, the respondents cannot now
demand payment of Shelter Fee for the collection of the Plan
Approvals. The petitioner Trust reserves the right to file
Additional affidavit and Grounds as and when necessary.
24. Therefore, the petitioner Trust respectfully submit
that the impugned G.O. (Ms). No. 135 Housing and Urban
Development (SC1-2) Department dated 21.07.2017 issued by
the 1st respondent State Government and the consequent
proceedings issued by the 3rd respondent Regional Joint
Director vide his proceedings in Na. Ka.
No.541/2017/THI.LI.MA.3 dated 01.09.2017 are wholly
arbitrary, illegal, void, unreasonable and liable to be set aside
on the following among other Grounds:
G R O U N D S
-------
A. The impugned G.O. (Ms). No. 135 Housing and
Urban Development (SC1-2) Department dated
21.07.2017 issued by the 1st respondent State
Government and the consequent proceedings
issued by the 3rd respondent vide his proceedings
in Na. Ka. No.541/2017/THI.LI.MA.3 dated
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01.09.2017 are highly arbitrary, illegal, void and
unconstitutional.
B. The impugned G.O. (Ms). No. 135 Housing and
Urban Development (SC1-2) Department dated
21.07.2017 is ultra vires the Tamil Nadu Town and
Country Planning Act, 1971 as there is no
enabling provision to impose Shelter Fee under
the said Act and the Rules framed there under.
C. The 1st respondent State Government has no
statutory authority to impose and collect the said
Shelter Fee at the rate of 75% of the Infrastructure
and Amenities (I&A) charges from the proposed
developments of buildings having a FSI area of
3,000 sq,mts and above in the absence of any
enabling provision under the Tamil Nadu Town
and Country Planning Act, 1971. The levy of such
fee is without any rhyme or reasons.
D. In as much as there is no service provided by the
respondents in relation to the Shelter Fee, there is
no authority vested on the respondents to collect
any such fee from the petitioner Trust.
E. The prescription of the Shelter Fee apparently
gives a colour of Tax rather than Fees. The State
Government is trying to do indirectly which cannot
be done directly.
F. The act of the 3rd respondent Regional Joint
Director and the 4th respondent Special Officer
denying the copies of the Building Permission and
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the Plan Approval which was already granted is
arbitrary, illegal and void.
G. The 3rd respondent Regional Joint Director and the
4th respondent Special Officer misconceived G.O.
(Ms). No. 135 Housing and Urban Development
(SC1-2) Department dated 21.07.2017 which does
not bear any relevance to the petitioner’s case.
H. Whereas the said GO deals with the collection of
Shelter Fee @75% of the Infrastructure and
Amenities (I&A) charges from all the proposed
developments of the respective category of
buildings having a FSI area of 3,000 sq.mts and
above, the 3rd respondent and the 4th respondent
wrongly applied the same to the petitioner Trust
when there is no new structure to an extent of FSI
area of 3,000 sq.mtr.
I. The 3rd respondent and the 4th respondent failed to
note that the petitioner Trust did not new
structures/buildings having a FSI area of 3,000
sq.mt and above so as to be covered under the
impugned GO.
J. The 3rd respondent and the 4th respondent also
failed to note that it is only additional structures
to the existing building structure and that there is
no new development whatsoever.
K. The 3rd respondent and the 4th respondent failed to
appreciate the relaxation granted by 38th
Empowered Committee as early as on 20.06.2017
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and the instruction issued by the 2nd
respondent
Director as early as on 12.07.2017 to the 3rd
respondent to proceed with the grant of Building
Plan Approval to the petitioner-Trust on payment
of Premium FSI Charges & other related charges
i.e., much before the issuance of the impugned
GO.
L. The impugned GO if applied would cripple the
Institution financially, and the interest of the
students would be seriously prejudiced.
M. The 3rd respondent and the 4th respondent are
bound to give the Building permission and the
Plan Approval to the petitioner Trust which had
already been granted by the 3rd respondent in
favour of the petitioner Trust in as much as the
petitioner Trust had remitted a sum of
Rs.16,81,000/-, Rs.14,000/-, Rs.7000/- towards
the Infrastructure and Basic Amenities charges,
Payment Collection service charges and Premium
FSI (Floor Space Index) charges to the Government
as early as on 29.07.2017.
N. The act of the 3rd respondent and the 4th
respondent indicates their non-application of mind
and malafides.
O. Neither any notice nor any opportunity of hearing
was provided to the petitioner before passing the
impugned orders.
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25. Having left with no other alternative efficacious
remedy, the petitioner humbly approaches this Hon’ble Court
invoking its extraordinary jurisdiction under Article 226 of
the Constitution of India for redressal. Law is well settled
that High Courts while exercising jurisdiction under Article
226 have the power to reach injustice wherever found and to
mould the relief according to the peculiar and complicated
requirements of the country. The petitioner states that it has
not filed any Writ Petition or instituted any other proceedings
in any Court on this subject matter.
26. In the above circumstances, it is humbly prayed
that this Hon’ble Court may be pleased to issue a Writ, Order
or Direction in the nature of a WRIT OF CERTIORARI calling
for the records relating to the impugned G.O. (Ms). No. 135
Housing and Urban Development (SC1-2) Department dated
21.07.2017 issued by the 1st respondent State Government
and the consequent proceedings issued by the 3rd respondent
Regional Joint Director vide his proceedings in Na. Ka.
No.541/2017/THI.LI.MA.3 dated 01.09.2017, and QUASH
THE SAME and pass such further or other suitable Order /
Orders as this Hon’ble Court may deem fit and proper in the
circumstances of the case and thus render justice.
27. As stated supra, the impugned G.O. and the
consequential proceedings have been passed without any
application of mind in the proper perspective. The 3rd
respondent and the 4th respondent are not inclined to hand
over the copy of the Building Permission and the Plan
Approval to the petitioner Trust until the petitioner Trust
remits a sum of Rs.12,60,750/- (i.e., 75% of the
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Infrastructure and Basic Amenities Charges) to the
Government Account under the Head of AB Tamil Nadu
Shelter Fund. Unless the operation of the impugned G.O. and
the consequential proceedings demanding payment of Shelter
Fund is stayed, the petitioner trust, the school under the
Trust and the students would be put to untold hardship,
irreparable loss and severe mental agony.
28. For the above reasons, the petitioner humbly
prays that this Hon’ble Court may be pleased to grant an
Order of Ad INTERIM STAY of the operation of the impugned
G.O. (Ms). No. 135 Housing and Urban Development (SC1-2)
Department dated 21.07.2017 issued by the 1st respondent
State Government and the consequent proceedings issued by
the 3rd respondent vide his proceedings in Na. Ka.
No.541/2017/THI.LI.MA.3 dated 01.09.2017, and pass such
further or other Order / Orders as this Hon’ble Court may
deem fit and proper in the circumstances of the case, and
thus render Justice.
29. I further submit that the petitioner Trust do not
possess the original impugned G.O. (Ms). No. 135 Housing
and Urban Development (SC1-2) Department dated
21.07.2017 issued by the 1st respondent State Government
and the consequent proceedings issued by the 3rd respondent
vide his proceedings in Na. Ka. No.541/2017/THI.LI.MA.3
dated 01.09.2017 in hand. However, the photo copy of the
same are filed herewith. It is therefore humbly prayed that
this Hon’ble Court may be pleased to DISPENSE WITH the
production of the original impugned G.O. (Ms). No. 135
Housing and Urban Development (SC1-2) Department dated
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21.07.2017 issued by the 1st respondent State Government
and the consequent proceedings issued by the 3rd respondent
Regional Joint Director vide his proceedings in Na. Ka.
No.541/2017/THI.LI.MA.3 dated 01.09.2017, and thus
render Justice.
Solemnly affirmed and BEFORE ME
signed her name in my
presence at Madurai
on this the 4th day of
February 2018 ADVOCATE : MADURAI
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