REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  9336   OF 2019 (Arising out of SLP(C) No.35685 of 2016)

CHENNAI METROPOLITAN DEVELOPMENT AUTHORITY REPRESENTED BY ITS MEMBER SECRETARY                                        ...Appellant

VERSUS

D. RAJAN DEV AND OTHERS         …Respondents

J U D G M E N T

R. BANUMATHI, J.

Leave granted.

2. This  appeal  arises  out  of  the  impugned  judgment  dated

03.08.2016  passed  by  the  Division  Bench  of  the  High  Court  of

Madras in W.A. No. 2376 of 2013 filed 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.

1

3. Respondent  No.1  is  a  developer  carrying  on  construction

activities  under  the name and style  of  M/s.  Ben Foundation.  He

submitted an application dated 07.05.2009 for planning permission

to  construct  a  residential-cum-shopping  building  at  Survey  Nos.

223, 224 and 225, Padi Village, Padi Kuppam Road, Chennai for

196  dwelling  units.  He  proposed  construction  of  Block  A –  Stilt

floor(part) + GF(part) + 6 floors + 7th floor part; Block B and C – Stilt

+ 6 floors and Block D – Stilt + 7 floors with floor area of 14082.26

sq.mt. and height of 22.80 mt. The planning permission was granted

by the appellant CMDA on 01.07.2009. Initially,  the sanction was

mistakenly accorded for 14889 sq.mts. (1.84 FSI) instead of 14164

sq.mts. (1.75 FSI). The excess area for which sanction was wrongly

granted is 725 sq.mts. While the construction was in progress, on

09.09.2009 vide G.O.Ms.No.163-Housing and Urban Development,

respondent No.2-Government of Tamil Nadu introduced a scheme

called “Premium FSI Scheme”, wherein the Government permitted

any builder willing to pay FSI charges to increase FSI above the

normally permitted FSI.  Additional benefit by way of Premium FSI

accrued to the developer is related to the proportionate land extent.

As per the guidelines for Premium FSI, the amount payable by the

applicant towards the Premium FSI charge shall  be equivalent to

the cost of the proportionate land as per the Guideline value of the

2

Registration Department. On 04.05.2011, the first respondent made

an application along with revised proposal for permission to have

additional  FSI  area  of  11,860  sq.ft.  (=  1102  sq.  mt.)  under  the

“Premium FSI  Scheme” for  extra fourteen dwelling units  i.e.  one

floor each in two blocks. The said application was returned by the

appellant on 10.02.2012 with the direction to furnish revised plan for

rectifying sixteen defects as pointed out by the appellant. The first

respondent submitted revised plans on 24.02.2012. The appellant-

CMDA vide its letter dated 30.03.2012 forwarded the revised plan to

the Government seeking to accord approval to the recommendation

of  the  Multi-storeyed  building  panel  and  for  issue  of  planning

permission.  In  the  meantime,  the  State  Government  revised  the

guideline value of the land w.e.f. 01.04.2012.

4. While  the  application  of  the  first  respondent  for  revised

proposal was pending, the guideline value of the land was revised

w.e.f. 01.04.2012 from Rs.1,650/- per sq.ft. to Rs.5,000/- per sq.ft.

for  the  area  which  the  first  respondent  has  put  up  construction.

After  inspection  of  the  site  and  recommendation  of  the  multi-

storeyed building panel,  on 29.05.2012,  the Government  granted

approval for the Premium FSI. Pursuant to the sanction granted by

the Government, the appellant-CMDA vide letter dated 02.07.2012

3

called upon the first  respondent to remit “Premium FSI Charges”

quantified at Rs.7,96,50,000/- for 1479.81 sq.mts. of the land area

based on the revised  guideline value of  the  property  as  revised

w.e.f. 01.04.2012 by the Government and as provided at the time of

the approval for the proposed construction.

5. Vide  letter  dated  19.07.2012,  the  first  respondent  raised

objections to the aforesaid calculation and also as regards the area.

The first  respondent  submitted that  the first  respondent  originally

proposed to construct 14,889 sq.mts. of built up area of an extent of

land of 8093.64 sq.mts.  It was stated that the projected FSI at 1.74

by adopting the total built up area was calculated as 14089 sq.mts.

as against 14,889 sq.mts. and the same was a human error and the

same led to all the confusion. The first respondent has also raised

objection  stating  that  he  made the  application  during  May,  2011

itself and that he may be allowed to make payment of “Premium FSI

Charges” by adopting the guideline value existed on both the dates

of  their  application  (04.05.2011)  and  the  approval  by  the CMDA

panel  (30.03.2012).   In  the  representation,  the  first  respondent

stated that they are ready to pay the “Premium FSI Charges” for

both  the  projected  built  up  area  of  800  sq.mt.  in  the  already

approved plan and for the proposed built up area of 1102 sq.mts.

4

(proposed extra FSI of 0.24) by adopting the guideline value existed

on  the  date  of  their  application  i.e.  04.05.2011.   The  said

representation  was  rejected  by  the  CMDA  vide  letter  dated

31.08.2012. The appellant by its letter dated 19.07.2012 modified

the revised “Premium FSI Charges” for 1479.81 sq.mts. of the land

area from Rs.7,96,50,000/-  to  Rs.7,61,40,000/-.   By the time the

plan  was  sanctioned,  the  guideline  value  had  increased  from

Rs.1,650/-  per  sq.ft.  to  Rs.5,000/-  per  sq.ft.   As  per  the  revised

guideline, the Premium FSI charges were calculated at the rate of

Rs.5,000/-  per  sq.ft.  and  the  same  was  quantified  at

Rs.7,61,05,480/-.

6. The  first  respondent  made  further  representation  dated

14.12.2012  requesting  the  appellant-CMDA  to  calculate  the

“Premium  FSI  Charges”  taking  into  account  the  guideline  value

prevailing as on the date on which the application was submitted

and not to levy “Premium FSI Charges” as per the revised guideline

value.  The first  respondent also requested to deduct all  balcony

and duct wall area which is within the limit of 10% allowance. The

representation made by the first respondent requesting for reduction

of “Premium FSI Charges” was rejected by the appellant-CMDA by

order dated 19.04.2013, affirming its earlier order dated 31.08.2012.

5

By its  letters  dated  23.05.2013  and 14.06.2013,  first  respondent

sought for  further thirty days’ time for  remitting the Premium FSI

charges as demanded by the appellant.  By communication dated

19.06.2013, the appellant-CMDA granted time till 15.07.2013 to pay

Premium FSI charges.

7. After so taking time, the first respondent filed the writ petition

in WP No.18238 of 2013 before the Madras High Court.  During the

pendency of the writ petition, construction of 196 dwelling units was

completed  and  a  partial  completion  certificate  dated  17.06.2013

was granted.  The learned Single Judge dismissed the writ petition

by holding that the first respondent is liable to pay the “Premium FSI

Charges”  as  per  the  guideline  value  prevailing  on  the  date  of

approval of the plan.  The learned Single Judge held that the builder

would  not  acquire  any  right  by  merely  submitting  application  for

building plan and the right to the builder would accrue only after the

approval of the plan.  The learned Single Judge also held that there

was  no  undue  delay  on  the  part  of  CMDA  or  the  second

respondent-Government in disposing of the application of the first

respondent.

8. Being aggrieved by the dismissal of the writ petition, the first

respondent  preferred  the  writ  appeal  before  the  Division  Bench

6

which came to be allowed by the impugned judgment.  Relying upon

Union of India and another v. Mahajan Industries Ltd. and another

(2005)  10 SCC 203,  the Division Bench held  that  the appellant-

CMDA is entitled to calculate levy of “Premium FSI Charges” taking

into account  the guideline value prevalent  as on the date of  the

application for approval of the additional construction and not from

the  date  on  which  the  approval  is  being  granted.  During  the

pendency of  the writ  appeal,  an amount of  Rs.3,80,00,000/-  was

deposited  by  the  first  respondent  pursuant  to  the  order  dated

17.02.2014 passed by the Division Bench.  A provisional completion

certificate dated 16.10.2014 was granted for a total of 210 dwelling

units.   Being  aggrieved,  the  appellant-CMDA has  preferred  this

appeal.

9. 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

7

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

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

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.

8

10. 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  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 is

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.  

11. We have considered the submissions and carefully perused

the impugned judgment and other materials on record. The point

9

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

application with revised plan, by the first respondent?

12. On 07.05.2009, the first respondent submitted an application

for  construction  of  residential-cum-shopping  complex  at  Padi

Village, Padi Kuppam Road, Chennai. The planning permission was

granted for the original plan by the appellant-CMDA on 01.07.2009.

When the construction was in progress, the Government of Tamil

Nadu introduced the “Premium FSI (Floor space Index) Scheme”

vide G.O.Ms.No.163, Housing and Urban Development (UD-I) dated

09.09.2009 as per which the Government permitted willing builders

to  increase  FSI  above  the  normally  permitted  FSI  subject  to  a

maximum of one relating the same to the road width parameters by

paying premium FSI charges.    

13. Regulation  36  deals  with  “Premium  FSI”,  which  reads  as

under:-

“36.  Premium FSI:-  The Authority  may allow Premium FSI  over  and

above  the  normally  allowable  FSI  subject  to  a  maximum of  1  (one)

relating the same to the road width parameters as follows:-

Serial Number

Road width Premium  FSI (% of normally allowable FSI)

(i) 18 meters and above (60’ and above)

40%

10

(ii) 12 meters – below 18 meters (40’ – below 60’)

30%

(iii) 9 meters – below 12 meters (30’ – below 40’)

20%

The premium FSI shall be allowed in specific areas as may be notified,

subject to Guidelines and on collection of charge at the rates as may be

prescribed by the Authority with the approval of the Government. The

amount so collected towards the award of Premium FSI shall be remitted

into the Government account to be allotted separately for the purpose for

utilizing it for infrastructure development in that area as may be directed

by the Government.”

14. The first respondent sought to avail the benefits of Premium

FSI and submitted an application on 04.05.2011 seeking approval

of  additional  FSI  under  the  Premium  FSI  Scheme.  The  said

application was returned by the appellant-CMDA on 10.02.2012 for

rectification of defects. Thereafter, on 24.02.2012, first respondent

submitted the revised plan after rectification of the defects.

15. The  Multi-Storeyed  Building  Panel  considered  the  revised

plan of  the first  respondent and the appellant-CMDA by its letter

dated 30.03.2012 forwarded the proposal to the Government with

recommendation  for  approval  subject  to  the  conditions  indicated

thereon. In the meanwhile, the Registration Department revised and

notified the revised guideline value w.e.f. 01.04.2012 as per which

the  guideline  value  of  Padi  Kuppam  Road  was  increased  from

Rs.1,650/-  per sq.ft.  to Rs.5,000/-  per sq.ft.  On 29.05.2012,  the

11

Government  granted  approval  to  the  revised  plan  of  the  first

respondent. Based upon the revised guideline value, the appellant-

CMDA by its letter dated 02.07.2012 informed the first respondent

that  the  Premium FSI  has  been  levied  at  Rs.7,96,50,000/-.  The

same was later modified as Rs.7,61,40,000/-.  

16. Learned Senior  counsel  for  the  respondent  contended  that

only the date of application for 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  guideline  would  only  be  applicable  for

calculation  of  the  Premium  FSI  charges.  The  forwarding  of  the

revised proposal by the appellant-CMDA to the Government reads

as under:-  

“AGENDA ITEM NO:2/203  FILE NO: C3(N)/6476/2011

Sub:  CMDA  –  APU  –  MSB  (North)  Division  –  Planning

Permission  Application  for  the  revised  approval  for  the

construction of Block A:  Stilt/GF (Shop cum Parking) + 7

Floors; Block-B, C and D: Stilt + 7 Floors Commercial cum

Residential building with 210 dwelling units at T.S.No.113/2,

Block No.65, Ward I, Old S.No.224/1 (part) of Padi Village,

Padikuppam Road, Mogappair, Chennai – Applied by Thiru.

D. Rajan Dev – Recommended for Approval – Reg

12

The  MSB  Panel  discussed  the  subject  in  detail  and

recommended  to  forward  the  proposal  to  the  Government

recommending for approval subject to the following conditions:

i)   undertaking accepting conditions of NOCs to be obtained

before issue of Planning Permission; and

ii)   undertaking to furnish IAF NOC before issue of completion

certificate  to  be  obtained  before  issue  of  Planning

Permission.

                                                                                              Sd./XXXX                                                                                                 30.3.2012

MEMBER SECRETARY”

By reading of the above, it is seen that it is only forwarding of the

proposal to the Government with recommendation for approval of

the  revised  plan  which  is  as  per  the  procedure  involved.  Such

forwarding of the proposal to the Government with recommendation

for approval, does not create any right in favour of the respondent.

In terms of Regulation 36, Premium FSI shall be allowed in specific

areas  as  notified  subject  to  guidelines  with  the  approval  of  the

Government and on collection of charges at the rates as may be

prescribed by the authority.  Thus, for the award of Premium FSI,

inter-alia the conditions “collection of charges at the rates as may be

prescribed by the authority” and “approval of the Government”, are

mandatory. The collection of FSI Premium charges is subject to the

guidelines. The revised guideline came into force w.e.f. 01.04.2012.

Be it  noted that the first  respondent’s application was considered

and finally approval was granted by the Government on 29.05.2012

13

only after revised guideline came into force. At the time of granting

approval  by  the  Government  on  29.05.2012,  when  the  revised

guideline was in force, the High Court ought not to have held that

the guideline value as on 04.05.2011, that is, the date of application

of  the first  respondent,  should  be  considered for  the  purpose  of

calculating Premium FSI charges. The right would accrue to the first

respondent  only  after  the  Government  grants  approval  to  the

revised plan sanctioning the Premium FSI. Thus, the date on which

the approval was granted by the Government i.e. 29.05.2012 ought

to have been taken into consideration for calculating the Premium

FSI charges.  

17. It is well settled that no right accrues to an applicant until the

application  for  approval  is  considered  and  sanctioned.  The  first

respondent has given the proposal for revised building plan under

Regulation 36 with a view to avail the benefit of Premium FSI. As

pointed  out  earlier,  the  process  of  grant  of  Premium  FSI  is

completed  only  after  the  grant  of  approval  by  the  Government.

Regulation  36  clearly  provides  that  the  Premium  FSI  shall  be

allowed in specific areas with the approval of the Government and

the approval of the Government therefore is mandatory. Only when

the  Government  grants  approval,  the  right  would  accrue  to  the

14

builder and not before that. Therefore, the date of approval is the

crucial date.   

18. Learned Senior counsel for the appellant has 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,  we  may  usefully  refer  to  Usman  Gani  J.  Khatri  of

Bombay v. Cantonment Board and Others (1992) 3 SCC 455 which

has  been  referred  to  by  the  learned  Single  Judge  in  the  order

passed  in  the  writ  petition  wherein,  the  Supreme  Court  held  as

under:-

“24. …….The petitioners did not acquire any legal  right in respect of

building plans until the same were sanctioned in their favour after having

paid the total amount of conversion charges in lump sum or in terms of

sanctioned instalments and getting conversion of their land in freehold

tenure…….”.

19. As pointed out by the learned Single Judge, in  Usman Gani,

the Supreme Court in order to explain the unsustainability of the

claim made by the builders has also explained a reverse case as

under:-

“24. ……..If we consider a reverse case where building regulations are

amended more favourably to the builders before sanctioning of building

plans already submitted, the builders would certainly claim and get the

advantage of the regulations amended to their benefit.”

15

Learned Single Judge has also referred to  State of W.B. v. Terra

Firma Investments & Trading Pvt. Ltd. (1995) 1 SCC 125 and other

judgments wherein, the Supreme Court held that no right accrues to

the  builder  by  mere  submission  of  a  plan  for  construction  of  a

building which has not been sanctioned by the competent authority.

20. In  the  impugned judgment,  the  High  Court  relied  upon the

decision in  Union of India and Another v. Mahajan Industries Ltd.

And Another  (2005) 10 SCC 203 wherein, the Supreme Court had

followed the decision of the Delhi High Court in the case of Ansal &

Saigal Properties (P) Lts. bs. L & DO, holding that the crucial date

for calculating the conversion charges has to be the date of receipt

of application for conversion of land use. It is the submission of the

appellant that the decision in the said case is not applicable to the

case  in  hand  as  the  said  judgment  deals  with  application  for

conversion of land and not the application for building permission.

Apart  from  that,  there  was  delay  of  more  than  three  years  in

deciding the said application. We find merit in the submission of the

appellant that the decision in Mahajan Industries is not applicable to

the facts of the present case. Though the application was filed on

04.05.2011  and  resubmitted  after  rectification  of  defects  on

24.02.2012, the Government approved the revised proposal only on

16

29.05.2012.  In  the  meanwhile,  the  revised  guideline  value  was

introduced for implementation w.e.f. 01.04.2012. As rightly held by

the learned Single Judge that the first respondent/builder does not

acquire any legal right until the plan is sanctioned.  

21. Mere  pendency  of  the  application  for  planning  permission

does not create a vested right in an applicant. Right accrues only

when  the  permission/sanction  is  granted  by  the

Government/concerned  authorities.  This  is  because  planning

permission is accorded on the basis of scrutiny of application form

and the  concerned documents.  There  is  always  possibility  of  an

application  not  meeting  the  requisite  criteria  for  carrying  out  the

proposed  development  and  being  rejected.  Until  and  unless  an

application complete in all respect is approved, it remains a mere

application and no right can be claimed on the basis of  such an

application.  A  proposal  cannot  be  equated  with  an  approval,

otherwise  the  later  will  lose  all  significance.  The  obvious  logical

conclusion  is  that  the  right  to  an  applicant  accrues  when  the

permission has been granted. Further, as a corollary, it can be said

that the rates prevailing at the time of granting of permission are the

rates  which  an  applicant  has  to  pay.  The  respondent/applicant

cannot claim the benefit of the earlier guideline value existing prior

17

to the date when approval was granted by the government. In our

considered  view,  the  respondent  will  have  to  pay  FSI  Premium

charges based on the guideline value as existing on the date of

grant of approval.  

22. Learned Senior counsel for the appellant has placed reliance

upon Chennai Municipal Development Authority v. Prestige Estates

Projects Limited  2019 (10) Scale 78.   In  Prestige Estates, despite

the payment having been made by the builder on 28.03.2012, the

Supreme Court held that the developer is liable to pay Premium FSI

charges based on the revised guideline value which are applicable

post 01.04.2012.  In Prestige Estates, after referring to Usman Gani

and other judgments, the Supreme Court held that the demand on

account  of  Premium FSI  charges  arises  only  upon  the  grant  of

approval by the Government to avail Premium FSI. The ratio of the

decision in  Prestige Estates  is squarely applicable to the present

case.  In the present case, since the sanction for revised plan was

granted by the Government on 29.05.2012, the first respondent in

the present case is liable to pay the Premium FSI charges based on

the revised guideline value which came into force w.e.f. 01.04.2012.

23. Learned  Senior  counsel  for  the  first  respondent  inter-alia

contended that there was inordinate delay on the part of appellant-

18

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  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

does  not  merit  acceptance.  The  appellant-CMDA  is  a  body

entrusted with the task of examination and approval of 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 undue delay on the part of the appellant-CMDA

19

or  Government  to  consider  the  first  respondent’s  application  for

approval of the revised plan.  

24. In the impugned judgment, the Division Bench has relied upon

Union of India and Others v. Dev Raj Gupta and Others  (1991) 1

SCC  63  and  Mahajan  Industries  Limited. The  ratio  of  those

decisions is not applicable to the case in hand as those decisions

relate  to  application  for  conversion  of  the  land  and  not  building

permission  application.  That  apart,  in  those  cases,  there  was  a

delay of more than three years in deciding the application. In the

present case, as discussed above, there was no delay on the part of

the  appellant-CMDA  or  the  Government  to  consider  the  first

respondent’s application for approval.  

25. As submitted by the learned Senior counsel for the appellant-

CMDA, the conduct of the first respondent is also to be taken note

of.  After  the  levy  of  Premium FSI  charges  calling  upon  the  first

respondent to pay a sum of Rs.7,61,40,000/-, the first respondent

submitted a representation on 19.07.2012 requesting to revise the

Premium FSI charges by considering the guideline value prevailing

as  on  the  date  of  the  application  i.e.  04.05.2011.  The  said

representation  was  rejected  by  the  appellant-CMDA by  its  letter

dated 31.08.2012 and the first  respondent was directed to make

20

payment of Premium FSI Charges. The first respondent was also

informed that if  the payment was not made within sixty days, the

application  will  be  returned.  The  first  respondent’s  further

representation  dated  14.12.2012  also  came  to  be  rejected.

Thereafter,  by  letters  dated  23.05.2013 and 14.06.2013,  the first

respondent  had  prayed  for  thirty  days’  time  for  remitting  the

Premium FSI  charges as demanded by the appellant-CMDA.  By

communication dated 19.06.2013, the first respondent was granted

time upto 15.07.2013 to pay Premium FSI charges. After so getting

extension of time, the first respondent filed writ petition before the

High Court challenging the order of CMDA dated 31.08.2012 and

prayed for  quashing the demand. It  is  to be pointed out  that the

learned  Single  Judge  also  commented  on  the  conduct  of  first

respondent in obtaining extension of time to remit the Premium FSI

charges and thereafter, filing the writ petition before the High Court

challenging the demand.  

26. The  Division  Bench  did  not  keep  in  view  the  well  settled

principle that no right accrued to the applicant-builder by mere filing

of 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

21

does not acquire any right under law till 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.

27. In  the  result,  the  impugned  judgment  dated  03.08.2016

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.

………………………..J.                                                                           [R. BANUMATHI]

………………………..J.                                                                   [A.S. BOPANNA]

.………………………..J.                                                                    [HRISHIKESH ROY]

New Delhi; December 11, 2019.

22