Tamil Nadu Town & Country Planning Act, 1971 – s.39 – Development Control Rules – Rule 19 – Regulation 29(6) – Chennai Metropolitan Area – Appellants were owners of certain apartments situated in a complex which consisted of 12 blocks – Total area of the layout was more than 10,000 sq. metres – Portion of land was earmarked in terms of Rule 19 of the Development Control Rules (DCR) as Open Space Regulation Area (OSR) – Said rule mandates that 10% of the area of any developmental plan having area 10,000 sq. meter or more should be reserved as open space for communal and recreational use and that such open space area must be transferred to the local authority free of cost through a registered gift deed – Gift deed was executed in favour of Chennai Municipal Development Authority – However, despite lapse of 12 years of the gift, the OSR area had not been developed into a park – Writ Petition filed by apartment owners challenging the vires of the rule 19 of DCR – Single Judge of High Court disposed of the writ petition by directing the appellant association to maintain the open space area as a park with recreational facilities in accordance with the ‘DCR’ – Division Bench set aside the judgment passed by the Single Judge and upheld the validity of the said rule – On appeal, held: It cannot be said that the impugned rule violates Art.14 on the score that it is discriminatory – In a challenge to a provision based on discrimination under Art.14, the burden is on the applicant to lay clear foundation in pleadings and further to discharge the burden by making good the case and the court will not lightly enter a finding of discrimination – Town planning being a complex subject involving various inputs and value judgments which are intended to ensure the orderly, visionary and planned development, they require greater deference from courts – When the layout is above 10,000 square meters, reservation of 10% for recreational purposes has to be made – The developer must also transfer such reserved space in favour of the local authority, free of cost, through a registered gift deed allowing the local authority to maintain the open space area – The challenge to the Rule, on the basis of Article 300A and, indeed, Art.14 as well by Association of Vasanth Apartment Owners Association must fail, as it cannot even be their case that their right in property was deprived – The appellants never had any proprietary right in the property to allege deprivation of the same – Even if the Rule is found bad, there can be no question of voiding the gift at the appellant’s instance – No merit in the contention that Rule 19 of the DCR or the regulation which is impugned is in anyway ultra vires of the provision of the Act – It cannot be accepted, in the context of the Act of the Rules/ Regulations, that, in such a large project, when the layout is more than 10,000 square metres, executing a gift deed, which would ensure compliance, would fall foul of the requirement of either Article 14 or Article 300A of the Constitution – The developer/owner, remained only a trustee even without a gift – The provision for setting apart 10 per cent, is invulnerable – The area will even without a gift remain out of bounds for the project proponent/owner – The OSR, being an inviolable requirement, the additional requirement, meant and understood as a measure to ensure compliance and prevent misuse and or disuse, must not be understood as deprivation – The gift will not convert the Local Body into an absolute owner – Instead, in place of the original owner, continuing as a trustee, the Local Authority becomes the trustee – The purpose and the nature of the obligation will remain and haunt both the Local Body as also the original owner – The Rule/Regulation at any rate also, is a law which sanctions deprivation even assuming there is deprivation – However, in substance, the Rule/Regulation cannot be understood as deprivation under Art.300A – The areas covered by the OSR cannot be diverted for any other purpose – The respondents are dutybound to ensure that the area set apart as OSR is stringently utilised only for the purpose in the Rule/Regulation – No area meant for OSR shall be utilised as dumping yards or any other purpose other than as OSR. Constitution of India, 1950 – Art. 14, 19(1)(f), 19(5), 31 & 300A and Seventh Schedule, List III, Entry 42 – Doctrine of Eminent Domain – Right To Property – Acquisition and Requisitioning of Property – Held: Stipulating the conditions that a person who seeks to develop his property in a sprawling and ever-growing urban metropolis which is sought to be regulated by a law relating to a town planning cannot be viewed as acquisition of land within the meaning of Entry 42 in List III – A case of compulsory acquisition would be without there being any volition or consent of a person.
Words and Phrase – word ‘communal’ – Meaning.
Disposing of the Appeals and Writ Petition, the Court HELD: 1. This Court must proceed on the basis that Regulation 29(6) holds good. This means that when the layout is above 10,000 square meters, reservation of 10 per cent for recreational purposes has to be made. Regulation 29(6)(a) stipulates that the land for the communal and recreational purposes, is to be restricted to the ground level and in a shape and location to be specified by the Authority. It is also to be reserved free from any construction. Therefore, the reservation, which is mandated in terms of Regulation 29(6)(a), and which cannot be a subject matter of a claim for compensation under Section 39 of the Act, is to become the subject matter of the gift deed. The execution of the gift deed, if it is understood as merely as an insurmountable obstacle for an unscrupulous developer to get around the laudable mandate to preserve the requisite area as open space, cannot be rendered vulnerable. Even if, no gifts were to be executed, the property covered by the open space requirement, would be put beyond the domain and control of the developer. Future generations of successors-in-interest or anyone, who claims under him, will be effectively prevented from setting up any claim over the area. Viewed in this perspective and understanding the gift as not conferring ownership of the area comprised in the open space, the impugned provisions would pass muster. It would prevent any kind of abuse. It is clear that the Regulation, properly understood, prescribe for the open space and merely provides for the facilitation and preservation of the open space. [Para 122][1129-F-H; 1130-A-C]
2. Stipulating the conditions that a person who seeks to develop his property in a sprawling and ever-growing urban metropolis which is sought to be regulated by a law relating to a town planning cannot be viewed as acquisition of land within the meaning of Entry 42 in List III. Acquisition of land involves, no doubt, compulsory divesting of the rights of a person in his property. The impugned provision does not represent a case of compulsory acquisition of land. A case of compulsory acquisition would be without there being any volition or consent of a person. The State purports to divest his rights in property and vest the rights with the State. The impugned provision does not appear to be a case of such acquisition as is contemplated in a law which is made with reference to Entry 42 in List III. [Para 137 & 148][1139-D-E; 1143-D]
3. The very goal of town planning requires nothing less. Once the goal of executing the gift and the results it produces in law, are appreciated in the above manner, the apprehensions and the contentions of the appellant/petitioner lose their sheen. One is unable to accept, in the context of the Act of the Rules/Regulations, that, in such a large project, when the layout is more than 10,000 square metres, executing a gift deed, which would ensure compliance, would fall foul of the requirement of either Article 14 or Article 300A. The developer/owner, remained only a trustee even without a gift. The provision for setting apart 10 per cent, is invulnerable. The area will even without a gift remain out of bounds for the project proponent/owner. The OSR, being an inviolable requirement, the additional requirement, meant and understood as a measure to ensure compliance and prevent misuse and or disuse, must not be understood as deprivation. The gift will not convert the Local Body into an absolute owner. Instead, in place of the original owner, continuing as a trustee, the Local Authority becomes the trustee. The purpose and the nature of the obligation will remain and haunt both the Local Body as also the original owner. The Rule/Regulation at any rate also, is a law which sanctions deprivation even assuming there is deprivation. However, in substance, the Rule/Regulation cannot be understood as deprivation under Article 300A. [Para 154][1148F-H; 1149-A-B]
4. Rule 19(b)(vi) to 19(2)(b)(vi) contemplate that the space so required is to be transferred to the authority or local body designated by the authority free of cost through a deed. It is further provided that the local body may provide the residents association or flat owners association for maintaining such reserved space as park. Significantly, in the case of a site having an extent between 3,000 to 10,000 square metres, the Rule declares that public access to the area as earmarked will not be insisted upon. When it comes to the extent of the site with which this Court is concerned, viz, where the extent of site exceeds 10,000 square metres, the requirement in the Rule, viz., is common to 10 per cent of area excluding road had to be transferred by a gift is insisted upon. It is provided that it is obligatory to transfer the reserved 10 percent of the site area. No charges can be accepted in the case of new development or re-developments. In the case of Rule 19(b)(II)(vi) in the case of site having extent between 3,000 square metres to 10,000 square metres, the CMDA or the local body may permit the residents association or flat owners association for maintaining the reserved space as parks. In the case of site having extent of above 10,000 square metres under the column ‘reservation’, it is not provided that the flat owners or residents association may be permitted to maintain the reserved park. [Para 163][1154-G-H; 1155-A-D]
5. The impression which gathers on reading the contents of reservation to be made in respect of site having an extent between 3,000 to 10,000 square metres is that the reserved area is to be maintained as a park. When it comes to the site having more than 10,000 square meters, the provision that public access for area shall not be insisted upon is not to be found. This means that when it comes to the layout which in the wisdom and the policy of the Rule Maker, which has been made after the process undergone under the Act, and apparently, after hearing objections, if any, and with the approval of the government that, were a large chunk of land be developed for group development, as defined, and certain percentage, which in these cases is 10 per cent or 1/10th of the total layout excluding roads is to be set apart as the OSR area. The word park is not in any way inconsistent with recreational purpose. It does not require much imagination to conclude that in an urban area and with a site being in excess of 10,000 square metres (nearly two and a half acres) where group development takes place, there would be a large number of people who would occupy the said area. Group development can be substantially conflated with flats and apartments comprised in two or more blocks or buildings as required to satisfy the requirement of group development under Rule 19(b)(II). A large number of people would occupy the said land. This is understandable having regard to the size of the layout and the definition of group building. Planned development, particularly, when it is informed by deep vision about the future does call for an expansive approach. [Para 165][1165-E-H; 1166-A-B]
6. The word ‘communal’ must be understood as where the layout exceeds 10000 sq.meters entitling members of the general public also to avail the benefit of the OSR area. Once, the word ‘communal’ is so understood it further fortifies the conclusion that there would be no infraction of Article 300A or Article 14 as understanding the execution of the gift deed as obligating the donee only to act as a trustee to ensure the fulfilment of the sublime goal of the law and since the owner/developer would not have a right to exclude others or to claim exclusive right to possession which would be incongruous to recognising the right of the members of the general public to access to the OSR area. The Rule / Regulation can withstand the challenge based on Article 300A on the basis that properly appreciated the “so called compelled gift” would be valid. Even proceeding on the basis that a challenge to Rule 19(b) would imply a challenge to the Explanation as well, on the reasoning which has appealed to this Court, namely, about the nature of the right under the Gift Deed as also finding that the word ‘communal’ is intended to reach the benefit of the OSR area to the members of the public as well, there would be no merit in the contention. [Para 177][1163-A-D] Indian Young Lawyers Association (Sabarimala TempleIN RE) v. State of Kerala and others (2019) 11 SCC 1 : [2018] 9 SCR 561; K.T. Plantation Private Limited and another v. State of Karnataka (2011) 9 SCC 1 : [2011]
13 SCR 636; His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and another (1973)
4 SCC 225 - followed.
Global Energy Ltd. and another v. Central Electricity Regulatory Commission (2009) 15 SCC 570 : [2009] 9 SCR 22; T. Vijayalakshmi v. Town Planning Member (2006) 8 SCC 502 : [2006] 7 Suppl. SCR 534; Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemicals Ltd. (2007) 8 SCC 705: [2007] 6 SCR 799; Jilubhai Nanbhai Khachar and Others v. State of Gujarat and Another 1995 Supp (1) SCC 596 : [1994] 1 Suppl. SCR 807; Pt. Chet Ram Vashist (dead) by Lrs. v. Municipal Corporation of Delhi (1995) 1 SCC 47 : [1994] 5 Suppl. SCR 180; Pune Municipal Corporation and Another v. Promoters and Builders Association and Another (2004)
10 SCC 796 : [2004] 2 Suppl. SCR 207; State of Gujarat v. Shantilal Mangaldas and Others (1969) 1 SCC 509 : [1969] 3 SCR 341; Narayanrao Jagobaji Gowande Public Trust v. State of Maharashtra and others (2016) 4 SCC 443; Bishambhar Dayal Chandra Mohan and others v. State of Uttar Pradesh and others (1982) 1 SCC 39 : [1982] 1 SCR 1137 Bengal Immunity Company Limited v. State of Bihar and others [1955] 2 SCR 603; Virender Gaur and Others v. State of Haryana and Others (1995) 2 SCC 577 : [1994] 6 Suppl. SCR 78; Ahmedabad St. Xavier’s College Society v. State of Gujarat (1974) 1 SCC 717 : [1975] 1 SCR 173 - relied on.
Yogendra Pal and Others v. Municipality, Bathinda and Another (1994) 5 SCC 709 : [1994] 1 Suppl. SCR 693; State of Tamil Nadu v. P. Krishnamurthy (2006) 4 SCC
517 : [2006] 3 SCR 396; Rustom Cavasjee Cooper (Banks Nationalisation) v. Union of India (1970) 1 SCC
248 : [1970] 3 SCR 530; Nagpur Improvement Trust and another v. Vithal Rao and other (1973) 1 SCC 500 : [1973] 3 SCR 39; Shayara Bano v. Union of India and others (2017) 9 SCC 1 : [2017] 9 SCR 797; Nareshbhai Bhagubhai and others v. Union of India and others (2019) 15 SCC 1 : [2019] 10 SCR 88; Behram Khurshid Pesikaka v. State of Bombay [1955]
1 SCR 613; SahuMadho Das and others v. Pandit Mukand Ram and another [1955] 2 SCR 22; Rajendra Shankar Shukla and others v. State of Chhattisgarh and others (2015) 10 SCC 400 : [2015] 11 SCR 723; B.K. Ravichandra and others v. Union of India and others 2020 SCCONLINE SC 950; Lalaram and others v. Jaipur Development Authority and another (2016) 11 SCC 31 : [2015] 14 SCR 403; State of Jammu & Kashmir v. Lakhwinder Kumar and others (2013) 6 SCC 333 : [2013] 2 SCR 1070; Pune Municipal Corporation and another v. Promoters and Builders Association and another (2004) 10 SCC 796 : [2004] 2 Suppl. SCR 207; Bangalore Medical Trust v. B.S. Muddappa and others (1991) 4 SCC 54 : [1991] 3 SCR 102; Atlas Cycle Industries Ltd. and others v. State of Haryana (1979) 2 SCC 196 : [1979] 1 SCR 1070; State of Maharashtra and another v. Basantibai Mohanlal Khetan and others (1986) 2 SCC 516 : [1986] 1 SCR 707; R.K. Mittal and others v. State of Uttar Pradesh and others (2012)
2 SCC 232 : [2011] 15 SCR 877; New Delhi Municipal Council and others v. Tanvi Trading and Credit Private Limited and others (2008) 8 SCC 765 : [2008] 12 SCR 867; Union of India and Another v. Cynamide India Limited and Another (1987) 2 SCC 720 : [1987] 2 SCR 841; General Officer Commanding-in-Chief and another v. Dr. Subhash Chandra Yadav and another (1988) 2 SCC 351 : [1988] 3 SCR 62; Kunj Behari Lal Butail and others v. State of H.P. and others (2000) 3 SCC 40 : [2000] 1 SCR 1054; Prakash Amichand Shah v. State of Gujarat (1981) 3 SCC 508 : [1982] 1 SCR 81; Deputy Commissioner and Collector v. Durga Nath Sarma AIR 1968 SC 394 : [1968] 1 SCR 561; Tukaram Kana Joshi v. MIDC (2013) 1 SCC 353 : [2012] 13 SCR 29; Bhimandas Ambwani (Dead)
through LRs v. Delhi Power Company Ltd. 2013 14 SCC
195 : [2013] 1 SCR 996; Coffee Board, Karnataka, Bangalore v. Commissioner of Commercial Taxes, Karnataka and others (1988) 3 SCC 263: [1988] 1 Suppl. SCR 348; Tukaram Kana Joshi and Others v. Maharashtra Industrial Development Corporation and Others (2013) 1 SCC 353 : [2012] 13 SCR 29 ; BhimandasAmbwani (Dead) Through Lrs. v. Delhi Power Company Limited (2013) 14 SCC 195 : [2013] 1 SCR 996; P. Vajravelu Mudaliar v. Special Deputy Collector for Land Acquisition and another [1965] 1 SCR 614; Union of India v. Metal Corporation of India Ltd. and another [1967] 1 SCR 255; Prakash Amichand Shah v. State of Gujarat and others (1986) 1 SCC 581 : [1985] 3 Suppl. SCR 1025; Babulal Badriprasad Varma v. Surat Municipal Corporation and others (2008) 12 SCC 401 : [2008] 7 SCR 564; Ravindra Ramchandra Waghmare v. Indore Municipal
Corporation and others (2017) 1 SCC 667 : [2016] 9 SCR 373; Rajiv Sarin and another v. State of Uttarakhand others (2011) 8 SCC 708 : [2011] 9 SCR 1012; Delhi Transport Corpn. v. D.T.C. Mazdoor Congress (1991) Suppl.1 SCC 600 : [1990] 1 Suppl. SCR 142; Taherakhatoon (D) By LRs. v. Salambin Mohammad 1 (1999) 2 SCC 635:[1999] 1 SCR 901 referred to.
M. Krishnasamy v. Member Secretary, Chennai
Metropolitan Development Authority, Gandhi Irwin Road, Egmore, Chennai-8 (2013) 1 CTC 80 - referred to.
James Patrick Nollan v. Calefornia Coastal Commission
483 US 825, 97 L Ed 2d 677; Florance Dolan v. City of Tigard 512 US 374; Agins v. City of Tiburon 447 US
255 (1980); Village of Euclid v. Ambler Reality Company
272 US 365; Linda Lingle, Governor of Hawaii, et al. v. Chevron U.S.A.INC. 544 US 528, 161 L.Ed.2d 876; Village of Euclid, Ohio Et Al v. Ambler Reality Company
272 US 365 (1926); Coy A.Koontz v. St. Johns River Water Management District 133 S.Ct. 2586 - referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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