ASSOCIATION OF VASANTH APARTMENTS’ OWNERS VERSUS V. GOPINATH & ORS
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS VERSUS V. GOPINATH & ORS
Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE/ORIGINAL JURISDICTION
CIVIL APPEAL No. 1890-91 of 2010
ASSOCIATION OF VASANTH APARTMENTS’
OWNERS …APPELLANT(S)
VERSUS
V. GOPINATH & ORS. …RESPONDENT(S)
WITH
CIVIL APPEAL NO. 7334 OF 2013
CIVIL APPEAL NO. 7847-7848 OF 2013
WRIT PETITION (CIVIL) No.591 of 2015
J U D G M E N T
K.M. JOSEPH, J.
1. Civil Appeal Nos. 1890-91 of 2010 is connected with
the other cases. We are disposing of the Appeals and
the Writ Petition filed under Article 32, having
generated certain common issues by the following common
Judgment.
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INDEX
ABOUT THE CASES AND THE PARTIES........................................................ 3
The case of Association of Vasanth Apartments Owners......................... 3
The case of Keyaram Hotels Pvt. Ltd........................................................ 8
CREDAI; Writ Petition No. 591/15 under Article 32.................................. 19
SUBMISSIONS OF APPELLANTS/PETITIONER............................................ 22
SUBMISSIONS OF SHRI N. SUBRAMANIYAN, ADVOCATE IN C.A. 7334 OF
2013 [KEYARAM HOTELS P. LIMITED] ....................................................... 25
SUBMISSIONS OF MS. V. MOHANA, SENIOR ADVOCATE ON BEHALF OF
THE WRIT PETITOINER IN WRIT PETITION (CIVIL) NO. 591 OF 2015........ 29
SUBMISSIONS OF SHRI AMIT ANAND TIWARI; ADDITIONAL A.G. ON
BEHALF OF STATE OF TAMIL NADU AND ‘CMDA’. ..................................... 35
SUBMISSIONS MADE BY SRI JAYANTH MUTHRAJ, SENIOR ADVOCATE
RESPONDENTS NOS. 1 AND 2 IN C.A. NO. 1890 OF 2010. ......................... 44
SUBMISSIONS BY SHRI K.S. SURESH, ADVOCATE IN CIVIL APPEAL
NO.7848 OF 2013 ........................................................................................ 46
ANALYSIS ................................................................................................... 47
THE GIFT DEED IN VASANTH APARTMENTS CASE ................................... 82
WHETHER THE IMPUGNED RULE VIOLATES ARTICLE 14 OF THE
CONSTITUTION? IS IT DISCRIMINATORY? ................................................ 86
IS THE IMPUGNED RULE/ REGULATION ULTRA VIRES?............................ 91
THE IMPACT OF SECTIONS 36 AND 37 ...................................................... 95
IS THE IMPUGNED RULE/REGULATION BAD FOR THE REASON THAT IT IS
CONTRARY TO THE MANDATE OF SECTION 39 OF THE ACT? ................ 100
THE IMPACT OF SECTIONS 48 TO 55....................................................... 108
THE RIGHTS REGIME................................................................................ 114
DOWN MEMORY LANE .............................................................................. 134
PT. CHET RAM VASHIST (DEAD) BY LRS. V. MUNICIPAL CORPORATION
OF DELHI................................................................................................ 134
T. VIJAYALAKSHMI AND OTHERS V. TOWN PLANNING MEMBER AND
ANOTHER............................................................................................... 137
PUNE MUNICIPAL CORPORATION AND ANOTHER V. PROMOTERS AND
BUILDERS ASSOCIATION AND ANOTHER ............................................. 138
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TUKARAM KANA JOSHI AND OTHERS V. MAHARASHTRA INDUSTRIAL
DEVELOPMENT CORPORATION AND OTHERS ...................................... 140
JILUBHAI NANBHAI KHACHAR AND OTHERS V. STATE OF GUJARAT
AND ANOTHER....................................................................................... 142
STATE OF GUJARAT V. SHANTILAL MANGALDAS AND OTHERS ......... 142
NARAYANRAO JAGOBAJI GOWANDE PUBLIC TRUST V. STATE OF
MAHARASHTRA AND OTHERS............................................................... 148
YOGENDRA PAL AND OTHERS V. MUNICIPALITY, BATHINDA AND
ANOTHER............................................................................................... 151
VIRENDER GAUR AND OTHERS V. STATE OF HARYANA AND OTHERS 154
A BRIEF LOOK AT THE FIFTH AMENDMENT CASES IN THE UNITED
STATES ..................................................................................................... 176
ENTRY 42 OF LIST III OF THE SEVENTH SCHEDULE............................... 191
THE UPSHOT OF THE ABOVE DISCUSSION ............................................. 242
ABOUT THE CASES AND THE PARTIES
The case of Association of Vasanth Apartments
Owners
2. Civil Appeal Nos. 1890-91 of 2010 is directed
against the judgment dated 19.10.2007 rendered by a
division bench of the High Court. Writ Appeal No. 478
of 2007 and Writ Appeal No. 1026 of 2007 were appeals
generated by the judgment which was rendered by the
learned Single Judge, in Writ Petition No. 4766 of 2007
dated 20.02.2007. By the same the learned Single Judge
allowed the writ petition filed by the writ petitioners
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who are the appellants before us. It was interalia
their case that they were owners of certain apartments
situated in a complex which consisted of 12 blocks. The
total area of the layout was more than 10,000 sq.
metres. A portion of the land was earmarked in terms
of Rule 19 of the Development Control Rules
(hereinafter referred to as ‘DCR’) as Open Space
Regulation area (hereinafter referred to as ‘OSR’). A
gift deed was executed in favour of the Chennai
Metropolitan Development Authority on 18.02.1994.
However, despite the lapse of 12 years of the gift, the
OSR area had not been developed into a park. The learned
Single Judge 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’. It was also made clear that
it is always open to the respondents to take action in
accordance with law if there is any violation. It was
found to be the duty of the respondents to maintain
such open areas as parks and on there being a failure
on their part, the association of the residents should
be welcomed to do the same subject to the rules. Writ
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Appeal no. 478 of 2007 was filed by one Shri Gopinath
and others. They were persons who were living in the
neighbourhood. Writ Appeal no. 1026 of 2007 was filed
by the Commissioner of the Corporation of Chennai and
the Member Secretary of the Chennai Metropolitan
Development Authority (hereinafter referred to as the
‘CMDA’). It was by the judgment impugned in Civil
Appeal Nos. 1890-91 of 2010, the division bench allowed
the Writ Appeals and set aside the judgment of the
learned Single Judge. We notice the following findings
and relief granted: -
“17. When the land has been assigned in the
year 1994 in favour of the CMDA by way of the
Gift Deed, neither the CMDA nor the Corporation
of Chennai have taken any step to make use of
the land for the interest of public. It is
clear from the report filed by the AdvocateCommissioner and the photographs filed before
us and the other materials available on record
that in the OSR area, there is a katcha road,
which is said to have been laid by the
Corporation in the year 2003. Probably because
of this katcha road and the usage of the same
as road by all the residents in the locality,
the occupants of the Vasanth Apartments might
have felt disturbance, which would have
prompted them to make a representation to the
Corporation to develop a park in the said area
or in the alternative to permit them to develop
and maintain a park for their recreational
purpose besides illegally constructing a
compound wall, separating the petrol bunk and
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the compound wall for about a length of 30 feet
separating the unbridged 11 feet wide open
canal upto ground level, so as to close the
way once and for all. At this juncture, it is
to be pointed out that the Vasanth Apartments
is divided by a compound wall from this area
and it is It also not made clear by the Vasanth
Apartments Owners Association that the said
land, which was gifted to the CMDA, is part of
their lay out.”
“18. It has also been alleged that under
similar circumstances, the CMDA has permitted
all the residents associations in Velachery to
maintain the open spaces as recreational parks
in the nearby area viz. K.G.Apartments, Sai
Sarovar etc. Each case has to be viewed and
decided on its own merits and since in the case
on hand, in the interest of thousands of
general public residing in and around the area,
the authorities have taken a wise decision to
lay a road to have easy and immediate access
to the 100 ft. road, the same cannot be found
fault with.”
“19. Further more, it has been brought to our
notice that with a view to form connecting road
to 100 feet bye-pass road, the Chennai
Corporation has already addressed the
Commissioner, Hindu Religious and Charitable
Endowments Department to transfer and convey
the land belonging to Arulmigu Dhandeeswarar
Temple, Velachery, Chennai in favour of the
Corporation and also obtained the said land to
form the connecting road from Hindu Religious
and Charitable Endowments Department.”
“20. Thus, though belatedly, now the CMDA and
the Corporation of Chennai are taking all
efforts to lay a pucca road in the OSR area
for the convenience of nearly one lakh people
in the area including the residents of Vasanth
Apartments. In this city, ill-famous for its
bumper to bumper traffic and the related
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hazards faced by the road users day in and day
out, any such step taken by the civic
authorities to ease such bottleneck traffic
congestions should be appreciated and welcomed
without allowing anybody to put spokes in the
wheel of development, as /3 has been attempted
on the part of the Association of Vasanth
Apartments Owners in the case on hand.
For all the above reasons, since it has
been found that the writ petitioner has no
right or interest, whatsoever, in the OSR land,
and the prayer in the writ petition itself is
misconceived, both these writ appeals are
allowed, thus setting aside the order passed
by the learned single Judge. No costs.
Consequently, M.P.No.2 of 2007 in W.A.No.1026
of 2007 is closed.”
3. C.A. No. 7847-48 of 2013 arising out of SLP (C)No.
25709-25710 of 2011 is again filed by the Association
of Vasanth Apartments’ Owners i.e., the appellants in
C.A. No. 1890-91 of 2010. This is a separate litigation
though having a bearing on the issue. In this appeal,
Writ Petition No. 23397 of 2007 came to be filed by the
appellant Association challenging the vires of Rule 19
of the ‘DCR’ under which a gift had to be executed in
respect of the land comprised in 10% as we shall see
in greater detail. The Writ Petition, came to be
dismissed by the division bench by its judgment dated
06.03.2008 and it upheld the validity of the rule. C.A.
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No. 7847 of 2013 is filed against the same. A review
filed turned unsuccessful. The order in the review has
led to the appeal, C.A. No. 7848 of 2013.
The case of Keyaram Hotels Pvt. Ltd.
4. Writ Petition no. 11934 of 1995 brings in the next
appeal which is C.A. No. 7334 of 2013. The above writ
petition was filed by M/s. Keyaram Hotel Pvt. Ltd. The
challenge in the said writ petition was to the very
same rule.
5. The case set up in short is as follows. The
petitioners are the owners of about 62 grounds. It
applied for the sanction of a building plan in the year
1975 for the construction of a hotel. There is
reference to an earlier writ petition and contempt
proceeding. Suffice it to notice, that planning
permission was granted after a delay of 12 years on
08.09.1992. It is their case that it was faced with
certain difficulties in the construction. A revised
plan was submitted and building permission was sought
for on 17.08.1994 for the construction of a hotel and
hotel annexe building etc. which consisted of a
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basement, ground floor and three further floors. By
letter dated 13.09.1994 issued by the second respondent
the petitioner was to gift the open space reserved area
to the Commissioner Corporation of Madras. We may
notice further that the third respondent sent
communication on 01.12.1994. It is stated inter alia
that the structure which existed within the OSR area
should be demolished after due sanction and that the
OSR land should be free from any structure and be fenced
by providing separate entrance from the road side.
There is no mention about the gift deed. The petitioner
sought a month’s time to comply with the conditions in
letter dated 01.12.1994. However, the respondent
insisted on compliance with the requirement of
executing a gift deed. In the writ petition, an interim
Order dated 13.03.1996 was passed directing permission
after recording undertaking by petitioner to execute
gift deed without prejudice to the rights of the
petitioner. Petitioner executed gift deed on
22.05.1996. Petitioner’s revised plan was approved as
a group development on 24.04.1999. The grounds urged
against the rule appear to be as follows:
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1.The rule is an illegal infraction of the
petitioner’s right to hold and enjoy the property.
2.The rule is contrary to the Act and derogatory to
the interest of the land owners.
3.The stipulation is violative of the civil right
vested in every owner of the property to hold his
land and the right to safeguard public interest
cannot be stretched to create a right and title in
favour of a local body in the manner contemplated
by the respondents 1 and 2. It could only impose
a condition to keep such land as open for being
used by the user of such building for their
communal or recreational purpose.
4.The provision for open space with respect to a
special building is for the communal and
recreational purposes of the people who shared
their accommodation in the said building or
otherwise lawfully use the same. It is not intended
to take away the proprietary right of the owners.
The expression of willingness by the petitioner to
provide the stipulated open space reserved for
communal and recreational use of the occupiers will
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satisfy the public interest and object of the
legislation. Petitioners undertake to keep 10% of
the area to be developed excluding roads as open
space for communal and recreational purpose.
5.The further condition imposed by the 3rd respondent
to provide exclusive frontage for the said open
space area opening into the main road is
unconscionable in law and contrary to the spirit
of the Act. Such stipulation is in terrorum.
The relief sought is to declare Rule 19(b)(I)(v) of the
DCR void. That apart sanction is sought without
insisting on the rule.
6. We may notice the relevant contents of the counter
affidavit filed by the respondent State. The case set
up inter alia is that the CMDA had carried out necessary
survey and prepared the master plan which lays down
policies and programmes which are necessary to regulate
the growth of the area and also to ensure its economic
viability, social stability and sound management for
the present and the foreseeable future and orderly
development required the same. The DCR was an integral
part of the master plan. Any person wanting to develop
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a property within the Metropolitan area must apply for
permission and the CMDA is empowered to enforce such
conditions and restrictions as was necessary under the
rules. It is in public interest. If the ownership of
the open OSR area were to be allowed to vest with the
original land owner, then the concerned owner would
have a chance to convert the same for construction, the
area specially reserved as open space, for communal
recreation by suppressing the said fact after passage
of time. Hence, it is necessary that the open space
area should be vested with the civil authorities who
are responsible for maintenance of parks and play
fields in the sites. The open space reservation is
provided to create lung space in the city and to have
sufficient open space for the use of society.
7. A counter affidavit was filed by the Chief Planner
of the CMDA and the stand taken was to seek support
under Section 17 of the Act read with Section 49. The
impugned Rule has been also referred to. As regards the
facts, it is stated as follows: -
“Para 5. petitioner submitted the application
on 17 .08.1994 for planning Permission for the
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proposed construction of Hotel Complex
consisting of group of two massive blocks of
Basement plus ground plus three floors building
and four small buildings at D.No.l & 2,
Harrington road, Chetput, Madras - 31 in
R.S.No.355 of Nungambakkam Village. The total
floor area of the Hotel Buildings is about
13,300 M2. The extent of the site is about
10692 M2. In the plan submitted by the
petitioner there are certain existing
structures also, which are to be demolished for
the construction of the proposed hotel
buildings consisting of basement plus ground
plus three floors, after demolishing the
existing structures. In the plan submitted by
the petitioner he has also shown the area to
be reserved and handed over as open space
reservation. As the proposal of the petitioner
consists of group of two blocks of basement
plus ground plus three floors buildings in a
site of an extent of more than 10,000 M2, the
same was examined by this respondent under
Development Control Rules 19 (b) (II) (1) to
(V) and (VI) - C related to group development.
While the Development Control rule l9(b)(II)
(1) to (v) deals with the open spaces to be
left around the buildings, distance to be
maintained between the buildings etc, the rule
l9(b)(II) (VI-C) prescribes as following:
"C) SITE EXTENT above 10,000 m2
10 percent of the area excluding roads
shall be reserved and this space shall be
transferred to the authority or to the
local body designated by it, free of cost,
through a deed. It is obligatory to reserve
the 10 percent of the site area and no
charges can be accepted in lieu, m case of
new developments or redevelopments "
The second respondent examined the planning
permission application of the petitioner and
having satisfied with the plans with reference
to the Development Control Rules and in View
of the fact that the petitioner already
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earmarked 1070 m2 being the 10 % open Space
Reservation area in the plan, sent a letter in
No.82/17789/94, dated 13.09.1194 stipulating
certain conditions and requesting, the
petitioner to,
i) pay the following charges
a) Development charges: Rs. 82,000/-
b) Security Deposit
for the building: Rs. 8, 00, 000/-
ii) hand over the 10% Open Space Reservation
Area reserved and shown in the plan to the
third respondent through a registered gift
deed.
The petitioner has not paid the security
Deposit, but however obtained a direction from
this Hon'ble Court to accept the Bank Guarantee
towards the security Deposit and furnished the
same to the second respondent along with his
consent letter dated 28.02.1995 accepting the
conditions stipulated in letter No. 82/ 17789
/94, dated 13.09.1994. In the said letter dated
13.09.1994 of the second respondent, one of the
condition is that the petitioner should hand
over the 10% Open Space Reservation Area to the
Commissioner, Corporation of Madras, free of
cost, through a· registered gift deed, which
is a lawful condition under Development Control
Rule 19 (b)(II) (VI - C). It is respectfully
denied that the petitioner has not made any
representation to relax the condition of
gifting of the Open Space Reservation Area and
the same was never under the consideration of
the second respondent.”
“Para 7. It is submitted that the second
respondent has requested the petitioner to
transfer the 10% Open Space Reservation Area
free of cost, through a registered gift deed
in favour of the third respondent as per the
provisions of Development Control Rules 19 (b)
(II) (VI - C), under group development
regulations and not as contended by the
petitioner under rule 19 (b) (I) (V), which
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related to special Buildings. The Development
Control Rule 19 (b) (II) (VI - C) is as follows:
"C) SITE EXTENT above 10,000 m2
10 percent. of the area excluding roads
shall be reserved and this space shall be
transferred to the authority or to the
local body designated by it, free of cost,
through a deed. It is obligatory to reserve
the 10 percent of the site area and no
charges can be accepted in lieu, in case of
new developments or redevelopments"
Explanation: -
(3) The land so reserved shall be free from
any construction by the owner or promoter
or developer. The land for communal and
recreational purposes shall be restricted
at ground level in a shape and location to
be specified by the MMDA"
The Development Control Rule is the integral
part of the Master Plan and was framed under
section 17 of the Town and Country Planning
Act. The second respondent exercised the power
vested in it, since the total extent of the
petitioner's site is more than 10,000 m2, the
insisting of the requirements of reservation
of 10 % Open Space Reservation Area and
consequent direction to the petitioner to hand
over the same to the third respondent through
a registered gift deed as per Development
Control Rules 19(b)(II) (VI- C) is well within
the jurisdiction of the second respondent.”
“Para 8. The petitioner is challenging the
concept of reserving the 10 % area for open
space and recreational purposes. This is a
statutory requirement under Development
Control Rule 19 (b) (ii) (vi - c) for all the
proposals of group development, where the
extent of the site is more than 10,000 m2.
Further the city is fastly developing and
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individual houses are being demolished and
multi family apartments are constructed in the
same site where there was only one family
residing therein earlier. The intense vertical
developments make the city more dense demanding
more water, pollution free air, noise free
atmosphere etc. The city is already over
congested and therefore more open spaces have
to be created wherever new developments or
redevelopment takes place. The open spaces so
created serve as long space to the city
benefiting the community at large. The open
space enable to make the environment clean and
provide fresh air, besides facilitating the
ground water recharge in a city where water
scarcity is a perennial problem.”
“Para 9. The petitioner has also questioned the
transfer of open space reservation in favour
of the Madras Corporation. It is submitted that
in practice, the developers take up the
development of properties and construct the
buildings providing necessary open spaces as
per Development Control Rules. After
completion of the construction they sell out
the building in portions to various persons and
later the open space reserved become no man's
land without any care for its maintenance. If
the ownership of the open space reservation for
communal and recreational purpose, suppressing
the facts later, after passage of time.
Therefore, it is essential that the ownership
of the open Space Reservation area should be
vested with the civic authority, which is
responsible for the maintenance of the parks
and play fields in the city. The civic
authority is maintaining many parks and play
grounds such as Elliot's Beach Garden, Anna
Nagar, Thiru Vi Ka park etc. Which are
maintained very well. It is also therefore
essential that the open Space Reservation Area
should be located in a location shape and size
which is accessible from the public road not
only to the Civic Authority but also to the
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general public without any restriction.
Therefore, transferring the OSR area to the
Civic body will not amount to talking away the
rights of the property owner and it is intended
for the benefit of the community at large.”
“Para 10. In the case of the petitioner, it is
submitted that the 10 % Open Space Reservation
Area is very close to his hotel buildings.
Therefore, if the ownership were to be vested
with the petitioner, it is most likely to be
misused by the petitioner for Hotel related
activities, rather than allowing it to the use
of general public. It is also likely that over
a period of the time the OSR area would be
misused for commercial purposes by the
petitioner under the guise of improving it.
The petitioner has also expressed that the
maintenance of the 10 % Open Space Reservation
Area will be done by him. It is submitted that
the entrusting the maintenance of the Open
Space Reservation area is at the discretion of
the second and third respondents. The
development Control Rule 19 (a) (II) (Vii)
prescribes as follows:
" The authority reserves the right to enforce
the maintenance of such reserved land by the
owner to the satisfaction of the Authority or
order the owner to transfer the land to the
authority or local body designated by it, free
of cost, through a deed, to the Authority or
the local body designated by the authority as
case may be, reserve the right to dedicate on
entrusting the maintenance work to institution
/ individual o merits of the case.
It is submitted that as per the provisions of
the Development Control Rule 19 (b) (II) (Vii)
this second respondent reserves the right to
decide on entrusting the maintenance of OSR
area to the petitioner. It become the bounden
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duty of the state Government to safeguard the
interest of the public at large and the state
government have the statutory power and have
approved the development control rules as an
integral part of the master plan for the
benefit of the public and to enforce it
accordingly. Therefore, the reservation of 10%
OSR area in a statutory requirement. Under the
above said circumstances the petitioner is not
deprived of their right of enjoyment of the
properly by implementing of the rules framed
under the Town and Country Planning Act. The
writ petition is devoid of merits and the same
has to be dismissed in limini.
Therefore, it is prayed that this Hon’ble Court
may be pleased to pass an order by dismissing
the writ petition and thus render justice”.
(Emphasis supplied)
8. The Corporation of Madras also filed a counter
affidavit. Therein it was inter alia stated that the
OSR land should have access from a public street as per
which the development authority directed the petitioner
to execute the gift deed to the Corporation as it had
to be used for communal and recreation purpose. In the
reply affidavit, the petitioner took the stand that the
impugned rule does not fall under Section 17. The OSR
under the Act is only an amenity for the benefit of the
property owner. The rule was projected as an executive
order falling beyond the Act. Any misuse could be dealt
with under the law.
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CREDAI; Writ Petition No. 591/15 under Article 32
9. The last of the litigation with which we are
concerned is Writ Petition no. 591 of 2015. This is a
writ petition sought to be maintained under Article 32.
The writ petition has been filed by an association
which the petitioner describes as the Confederation of
the Real Estates Developers Association of India
(CREDAI).
10. This petition is filed under Article 32 of the
Constitution of India. It is filed by a Federation of
registered Association claiming to be an Apex body of
the organised union and state real estate developers,
builders across India. In the Additional affidavit
filed, it is contended that the total number of members
of Petitioner is 350 and that of Chennai Chapter is 163
members. The relief sought in the writ petition is as
follows:
“(a) allow the present writ petition and issue
a writ of Certiorari quashing Regulation
29(7)(a) (at pg.221 Vol. 2) as well as Annexure
XX (at pgs.293-294 Vol. 2) of the Development
Regulations for Chennai Metropolitan Area
issued by the Respondent No.2 as being ultra
20
vires, unconstitutional and violative of the
fundamental rights of the Petitioner; and”
11. However, in the additional affidavit filed on
8.12.2021, we may notice paragraph 4.
“4. That, in so far as challenge to Regulation
29(7)(a) in the present writ petition is
concerned, the petitioner is restricting its
challenge only to the latter part of the
provision i.e., the requirement to transfer
free of cost through a registered gift deed,
10% area reserved for recreational purposes
only and not the space set apart for roads.”
12. We may notice the grounds taken in the writ
petition. It is contended that by the impugned
regulations there is expropriation of the private
property of the petitioner’s members Association.
Reliance is placed on the judgment in Chet Ram Vashist
(Dead) by LRs v. Municipal corporation of Delhi1.
Support is drawn from Article 300A. It is sought to be
contended that allowing use of the OSR Area amounts to
a blatant exercise of the power of eminent domain.
Transfer of property of the petitioner is sought to be
achieved through the impugned regulation. In fact, in
1 (1995) 1 SCC 47
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ground (i), it is submitted that expropriation of land
is possible at best by way of plenary legislation and
the impugned regulation not being such a legislation,
it is vulnerable. The impugned regulation is contrary
to the Act. The Act regulates the land use. The
authorities under the Act cannot change the user of a
land. In other words, the point is that allowing use
of area meant for recreational purpose by the members
of the general public is expropriatory and contrary to
the Act. It is also contended that the impugned
regulation is unreasonable and disproportionate.
13. We have heard Shri Gopal Sankaranarayanan, learned
Senior Counsel on behalf of the appellants in C.A. No.
7847 of 2013. We also heard Shri N Subramaniyan,
learned counsel on behalf of M/s. Keyaram Hotel Pvt.
Ltd. (C.A. No. 7334 of 2013). We further heard Smt. V.
Mohana learned senior counsel on behalf of the writ
petitioner (writ petition no. 591 of 2015). We also
heard the learned counsel on behalf of the appellants
in C.A. No. 1890-91 of 2010. We further heard the
learned counsel Shri K.S. Suresh on behalf of
Association of Vasanth Apartments’ Owners which has in
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C.A. No. 7848 of 2013 challenged the judgment rejecting
the review petition filed in the writ petition
unsuccessfully challenging the rule.
14. We heard Shri Sanjay R. Hegde learned senior
counsel on behalf of the corporation of Chennai and
heard Shri Amit Anand Tiwari, AAG on behalf of the
Government of Tamil Nādu and also the CMDA. We finally
heard Shri JayanthMuth Raj, learned Senior Counsel on
behalf of the appellants in Writ Appeal no. 478 of 2007
who are the persons residing in the area and whose writ
appeal stood allowed by the High Court.
SUBMISSIONS OF APPELLANTS/PETITIONER
15. In Civil Appeal Nos. 7847 of 2013, Shri Gopal
Sankaranarayanan would contend that a compelled gift
attracted the wrath of Article 300A of the
Constitution. There was clearly deprivation of
property. It was without the authority of law. It was
without the authority of law because ‘DCR’ was not
statutory in nature, having been made by the CMDA
without any provision enabling it to make statutory
rules. The power to make rules was vested with the
23
State Government under Section 122 of the Tamil Nadu
Town & Country Planning Act, 1971 (hereinafter referred
to as the ‘Act’). Section 9C relied upon by the
respondents did not clothe the authority with power to
make rules. Equally, Section 17 would not come to the
aid of the respondents. Therefore, the rule was not law
within the meaning of Article 300A. There is no law
made by the competent legislature empowering
deprivation of the property of the appellants.
16. Even a law made by the legislature could not result
in the deprivation of property in the manner which is
purported to be achieved through what is described as
a rule which in fact is not a statutory rule. It is his
contention that the survey of the Act would reveal that
wherever the land is reserved, the lawgiver has
contemplated that the land should be acquired. The
concept of acquisition is traced to Entry 42 of List
III of Part VII of the Constitution. In other words,
unless land is acquired under the relevant law which
undoubtedly involves payment of compensation there
would be no justification in law to compel a person to
part with his property by what is described as a
24
compelled gift. There is no compensation payable under
the gift admittedly. Therefore, this amounts to the
execution of the gift which is a direct result of the
rule which so mandated the execution of the gift. It
is clearly expropriatory. The law at any rate, it is
contended that is, the impugned rule, is palpably and
manifestly arbitrary. Similar arguments have, no doubt,
been addressed by the other learned senior counsel
appearing on behalf of both the appellants and the writ
petitioner. There are various other ancillary
submissions which had been taken up.
17. There is also a further case that the rule falls
foul of Article 14 for another reason. It is complained
that the rule produces classification which is not
permitted under Article 14. In other words, it is
pointed out that for layout upto 3,000 sq. metres,
there is no requirement to execute a gift. In respect
of layout which is in excess of 3,000 sq. metres and
which is less than 10,000 sq. metres, there is no such
requirement and in place of a gift, it is open to the
proponent of the project to give the equivalent value.
It is without any rational basis, and therefore,
25
attracting the vice of class legislation or
unreasonable classification resulting in equals being
treated differently, that in respect of projects
involving more than 10,000 square metres, the builder
is bound to execute a gift in favour of the authority.
SUBMISSIONS OF SHRI N. SUBRAMANIYAN,
ADVOCATE IN C.A. 7334 OF 2013 [KEYARAM
HOTELS P. LIMITED]
18. In this case, the appellant is the owner and
continues to be the owner of the layout area. The gift
was effected as per an undertaking given to the High
Court but subject to the Writ Petition. Secondly, there
is no laches or delay. Immediately as the condition was
sought to be imposed, the Writ Petition was filed in
the year 1995. At best, Rule 19 can be only a Statutory
Order/Notification/ Guideline and it cannot be
considered more than a Subordinate Legislation. Relying
on the principles laid down for impugning Subordinate
Legislation in State of Tamil Nadu v. P. Krishnamurthy2,
it is contended that the Rule, Rule 19(b)(2)(vi)(c)
2 (2006) 4 SCC 517
26
violates Sections 36 to 39. Harmoniously reading
Section 17 and Section 20 and Sections 36 to 39 of the
Act, would establish that the reserved lands (made for
open spaces) under Section 17(2)(k) and Section
20(1)(k), should be acquired within three years,
failing which, the lands shall get reverted to the
owner. In the case of regulating the use of lands, such
as putting restrictions on the use of land under Section
17(2)(l) and Section 20(1)(n), within the planning
area, do not call for compensation. Section 17(2)(b),
as also Sections 21(1)(k) and (n) relating to detailed
development plans, are the only provisions dealing with
the open spaces. Proviso to Section 39(1) require the
respondents to pay compensation for all items, except
the matters that fall under Section 17(2)(l) and
Section 20(n), again, both of which are regulatory.
Sections 48, 49 and 52 to 54 are projected to contend
that the object of the Act is to regulate the
development and not to deprive land. Sections 52 to 54
also mandate, payment of compensation. Exceptions to
the ’Pay compensation’ principle, involve cases, where
there is no mandate to reserve land for public purposes.
27
There is no power, as claimed under Sections 9C, 17, 20
and 35 or Section 124, to make the impugned Rule. It is
further contended that the impugned Rule contravenes
and is inconsistent with the Sections 6(2), 12 and 18
of the Tamil Nadu Apartment Ownership Act, 1994 and,
hence, is void. The appellant, having developed two
blocks, the developed building comes under the said
1994 Act. It applies to apartments constructed prior to
its commencement. The impugned Rule, being inconsistent
with Sections 6(2), 12, 18, 25 and 26 of the Act had
become inoperative. The impugned Rule is alleged to be
violative of the Land Acquisition Act, 1894 and hence,
void, in view of Article 254(2) of the Constitution. It
is sought to be contended that since Entry 42 of the
Concurrent List provides for acquisition and
requisition, any State Legislature, seeking to put in
place, a law to acquire lands with lesser compensation,
it would be impermissible. It would be discriminatory.
The Act took care to incorporate Land Acquisition Act
by reference under Section 36 of the Act. This meant
that depravation of property, without compensation, was
not contemplated. Sections 36 and 37 are invoked. Even
28
the State Legislature has no power to seek transfer of
lands to the State free-of-cost. Even a single owner
could construct a luxury independent bungalow with 3000
square meters and he will not be required to spare any
land to society whereas 184 owners who constructed 184
flats with each family having 59.7 square meters would
have to spare 10 per cent of their land free-of-cost.
This is unconscionable. No civilised society would
expect or require or steal someone’s property for their
betterment and the Rule of Equality requires the
beneficiary to share the costs. Appellants rely on
Rustom Cavasjee Cooper (Banks Nationalisation) v. Union
of India3, Nagpur Improvement Trust and another v.
Vithal Rao and others4, K.T. Plantation Private Limited
and another v. State of Karnataka5. The appellant would
pray that the Rule be declared null and void and it be
declared that the ownership of the OSR lands revert
back to the appellants.
3 (1970) 1 SCC 248
4 (1973) 1 SCC 500
5 (2011) 9 SCC 1
29
SUBMISSIONS OF MS. V. MOHANA, SENIOR
ADVOCATE ON BEHALF OF THE WRIT PETITOINER
IN WRIT PETITION (CIVIL) NO. 591 OF 2015.
19. The objections to the challenge to the Regulation
on the ground that the Rule/Regulation had continued on
the Rule Book for long, cannot, by itself, be a ground
to repel the challenge. [See Shayara Bano v. Union of
India and others6 and Indian Young Lawyers Association
(Sabarimala Temple-IN RE) v. State of Kerala and
others7]. Doctrine of Laches and Delay cannot become a
constitutional limitation on court’s power.
Expropriation of property can only be done by plenary
legislation, i.e., by Parliament or by State
Legislature. Rule, made under the Rule-making power
cannot empower the deprivation of any substantive
right, which include property. An expropriatory law
must, at any rate, be construed strictly and must not
be brought to life in the absence of specific express
provisions [See Nareshbhai Bhagubhai and others v.
Union of India and others8]. The State is blowing hot
6 (2017) 9 SCC 1
7 (2019) 11 SCC 1
8 (2019) 15 SCC 1
30
and cold in regard to power to make Regulations.
Reference is made to Sections 47 and 55 to contend that
the bar on compensation will not apply in case of
deprivation of property. Neither the provisions of the
master plan nor provision relating to control of
development, authorised deprivation of property without
payment of compensation. The present is a case of no
compensation and not nil compensation. The decision in
K.T. Plantations Limited v. State of Karnataka9, is
relied upon. The laudable object cannot legitimise the
violation of the Fundamental Right or Constitutional
Guarantee. It is pointed out that in Ground-K of the
Writ Petition, it is contented that arbitrary
restrictions on the petitioner to use his property
through Executive action, attracted Article 14. It is
further pointed out that Fundamental Right violation is
projected in Grounds-L, M and N. Equally, Article 300A
and Article 14 forms the subject matter of Grounds-C,
D, E, F, G, H, I and J, it is submitted. It is contended
that the repeal of the Regulation, which is impugned,
by the Rules of 2019, would not save the Regulation
9 (2011) 9 SCC 1
31
from the vice of invalidity. Reliance is placed on the
decision of this Court in Behram Khurshid Pesikaka v.
State of Bombay10. The impugned Regulations would
constitute law for the purpose of Article 13 in this
regard. The declaration of the Regulation falling foul
of Fundamental Rights, would have the effect of
rendering such law void ab initio. Reliance is placed
on the 2019 Rules and the repealing and saving provision
[Rule 74(3)]. It is contended, in short, that the rights
and obligations, apart from the express savings under
the 2019 Rules, would remain intact. With reference to
Sections 49 and 50 of the Act, it is contended that
permissions under the Development Regulations of 2008
would continue to be governed by the Regulations. Thus,
repeal does not render the present Writ Petition
academic or infructuous. The fact that the petitioner
is an Association of real estate developers cannot
detract from the matter being justiciable and a
Constitutional Court should not countenance technical
pleas, when Fundamental Rights are at stake. When
otherwise, considering the importance of this matter,
10 (1955) 1 SCR 613
32
bearing in mind the interplay between the Fundamental
Rights and Article 300A, this Court, despite any delay,
should consider the challenge. Petitioner is
restricting the challenge to Regulation 29(7)(a) only
to the latter part, viz., the requirement to transfer
free-of-cost, the 10 per cent area reserved for
recreational purposes. Section 20(1)(d), employing the
word ‘otherwise’, cannot encompass a gift. A gift would
be without compensation, which would be contrary to the
provisions of the Act. Sections 36 to 39 make it clear
that whenever an acquisition was contemplated, it was
deemed to be a public purpose and payment of
compensation has been provided for. If gift is
comprehended in Section 20(1)(d), it would be in
conflict with Section 39. Earmarking or reserving an
area, may not constitute an injury. But the compulsory
gifting of the same, without any compensation, coupled
with changing of the character of the property from
private to public, reaches an injury. The person must
be compensated. Reliance is placed on Sahu Madho Das
and others v. Pandit Mukand Ram and another11 and
11 (1955) 2 SCR 22
33
Rajendra Shankar Shukla and others v. State of
Chhattisgarh and others12. Reliance is placed in M.
Krishnasamy v. Member Secretary, Chennai Metropolitan
Development Authority, Gandhi Irwin Road, Egmore,
Chennai-8
13 to contend that a Single Judge of the Madras
High Court doubted the very demand for conveying of OSR
land. Regulatory law, depriving a person of property,
must be strictly construed. In this regard reliance is
placed on B.K. Ravichandra and others v. Union of India
and others14. Section 124, under which Regulations can
be made, cannot empower any Authority to create or
takeaway or deprive a person of their property, by a
manner, not provided for under the Act [See Indian Young
Lawyers Association and others (Sabarimala Temple-In
Re.)15]. The Regulation represents the case of action
in excess of power. The lands, which have been
transferred, are not being used for the purpose of open
space. They are being used as dump yard or other use.
The valuable easementry rights or lung space of the
12 (2015) 10 SCC 400
13 (2013) 1 CTC 80
14 2020 SCCONLINE SC 950
15 (2019) 11 SCC 1
34
residents are lost. The frontage of the property and
its aesthetic appearance is affected. The rights of the
members of the petitioners’ Association under Article
19(1)(g) is violated. In answer to the contention of
the respondent, that wherever compensation is
compulsorily payable, the Constitution itself has made
provision as is clear from Article 30(1A) it is sought
to be rebuffed. It is pointed out that Article 30(1A)
is only an additional protection. Compensation must be
paid, when property is deprived for a public purpose.
Reliance is placed on decisions of this Court,
including the decision of this Court in Lalaram and
others v. Jaipur Development Authority and another16.
The Court is requested to mould the relief
appropriately so that the lands so transferred in
favour of the Authority may be reverted to the persons
directly benefiting therefrom, i.e., the Residents’
Welfare Associations or the residual owners of the
developed areas. It is further prayed that the Court
may fix a time limit, within which, interested parties
to whom the land is to be reverted may apply for seeking
16 (2016) 11 SCC 31
35
such reversion. No other developments/redevelopments
should be made on such lands except in accordance with
law.
20. Shri Sanjay Hedge, learned Senior Counsel, for the
Corporation of Chennai, supported the judgments. He
contended that the impugned provision promoted a
salutary goal. He highlighted the public interest
involved.
SUBMISSIONS OF SHRI AMIT ANAND TIWARI;
ADDITIONAL A.G. ON BEHALF OF STATE OF TAMIL
NADU AND ‘CMDA’.
21. Section 124 of the Act confers powers to make the
Regulations. Reliance is placed on Section 9C(ii) to
empower CMDA to prepare the master plan or any detailed
development plan. Reliance is also placed on Section
17. The DCR and the Regulations are part of the master
plan. Section 2(36) defines ‘public purpose’ as ‘any
purpose which is useful to the public or any class or
section of the public’. Reserving any site, plot for
communal/recreational purposes in layout plan, is
public purpose. Section 47 is relied upon to contend
36
that the DCR is statutory in nature. Equally, Sections
17, 18 and 20 are invoked along with Section 124, to
contend that the DCR is statutory. Section 2(15) of the
Act includes master plan. Sections 105 and 111 give an
overriding effect to the Act. All the Rules and
Regulations, which will include the master plan, are to
prevail notwithstanding anything inconsistent with the
same contained in any other law, inter alia. Further,
it is contended that the DCR and the Regulations have
been subsumed under the Tamil Nadu Combined Development
and Building Rules, 2019. Rule 74(3) of the 2019 Rules,
is relied upon to contend that it creates a legal
fiction that anything done under the Rules/Regulations,
is deemed to have been done under the 2019 Regulations.
Reliance is placed on Judgment in Bengal Immunity
Company Limited v. State of Bihar and others17. The word
‘including’ extends and enlarges the scope of the
Clause [See State of Jammu & Kashmir v. Lakhwinder Kumar
and others18]. If challenge to the Rules/Regulations
succeeds, it will also render the sanction of the
17 (1955) 2 SCR 603
18 (2013) 6 SCC 333)
37
development plans, illegal, which will necessitate
petitioners applying afresh under the 2019 Rules,
whereunder also, the prescription of 10 per cent land
being gifted, exists.
22. It is further contended that the
Rules/Regulations, being part of the master plan, are
statutory and being framed under the Statute, they
operate as law under Article 300A. Reliance is placed
on Pune Municipal Corporation and another v. Promoters
and Builders Association and another19. Reliance placed
by appellants on Pt. Chet Ram Vashist (Dead) by Lrs. v.
Municipal Corporation of Delhi
20, is alleged to be
misplaced. In the said case, there is no provision in
the Delhi Municipal Corporation Act, 1957, under which,
the Corporation could pass a Resolution to ask the
appellant therein to transfer property free of cost. It
is further contended that the Court may bear in mind
that the Act replaced the Tamil Nadu Town and Country
Planning Act, 1920, which was based on the British Town
and Country Planning and Housing Act, 1909. From the
19 (2004) 10 SCC 796
20 (1995) 1 SCC 47
38
Statements of Objects and Reasons, it is contended that
the Act was based on the Model Town and Country Planning
Bill, which was prepared by the Ministry of Health and
Housing of the Government of India after a
comprehensive study of various Town Planning Enactments
in the western countries. The regional concept in the
Maharashtra Town and Country Planning Act, 1966 also
made its presence felt. The Act is designed to serve
legitimate state interest of planned development down
to the regional limit. Crowded urban areas, create
adverse living conditions. The reservation of open
space for parks and playgrounds is universally
recognised. The decision of this Court in Bangalore
Medical Trust v. B.S. Muddappa and others21, is relied
upon. It is contended that the Act requires only the
simple laying of Rules and Regulations under Section
123 of the Act. The laying of the Rules, which is not
mandatory, if not followed, will not affect the
validity of the Rules/Regulations. The terms of Section
123(2) are relied upon to contend that the Rules will
come into effect even before they are placed before the
21 (1991) 4 SCC 54
39
Legislative Assembly and any modification made by the
Assembly, will apply only from the date it is carried
out. Reliance is placed on Atlas Cycle Industries Ltd.
and others v. State of Haryana22. It is further
contended that acquisition under Chapter IV of the Act
is not required in the facts. The area is not reserved
in the master plan nor was any Notice published under
Section 26 or 27. Acceptance of appellant’s contention
would involve the need to compulsorily acquire all the
reserved lands including areas such as setback areas,
open spaces and other reserved area. Such
interpretation would also render the provisions of
Chapter VI, in particular Section 55, otiose. Chapter
IV apply to areas reserved and notified in the master
plan itself or to an area in excess of 10 per cent for
proposed developed area of 3000 and above square meters
or where area reserved is sought to be utilised for
purpose not being communal or recreational, or areas,
for which, there are other exceptions in the impugned
Rules/Regulations. Section 20(1)(d) stipulates that a
detailed development plan may propose or provide for
22 (1979) 2 SCC 196
40
acquisition by purchase, exchange or otherwise, of any
land. The words ‘or otherwise’ include a transfer of 10
per cent of the land by way of a gift. It is further
contended that there is no constitutional obligation to
pay compensation. The Act contemplates divestment of
property without compensation as is evident from
Sections 31 and 55 read with Sections 17 and 20. It is
a settled position of law that Article 300A does not
involve or compel payment of compensation. Support is
drawn from Judgment of this Court in K.T. Plantation
Private Limited and another. v. State of Karnataka23:
“183. Payment of compensation amount is a
constitutional requirement under Article 30(1-
A) and under the second proviso to Article 31-
A(1), unlike Article 300-A. After the Fortyfourth Amendment Act, 1978, the constitutional
obligation to pay compensation to a person who
is deprived of his property primarily depends
upon the terms of the statute and the
legislative policy. Article 300-A, however,
does not prohibit the payment of just
compensation when a person is deprived of his
property, but the question is whether a person
is entitled to get compensation, as a matter
of right, in the absence of any stipulation in
the statute, depriving him of his property.
xxx xxx xxx
23 (2011) 9 SCC 1
41
192. At this stage, we may clarify that there
is a difference between “no” compensation and
“nil” compensation. A law seeking to acquire
private property for public purpose cannot say
that “no compensation shall be paid”. However,
there could be a law awarding “nil”
compensation in cases where the State
undertakes to discharge the liabilities
charged on the property under acquisition and
onus is on the Government to establish validity
of such law. In the latter case, the Court in
exercise of judicial review will test such a
law keeping in mind the above parameters.
xxx xxx xxx
205. Plea of unreasonableness, arbitrariness,
proportionality, etc. always raises an element
of subjectivity on which a court cannot strike
down a statute or a statutory provision,
especially when the right to property is no
more a fundamental right. Otherwise the court
will be substituting its wisdom to that of the
legislature, which is impermissible in our
constitutional democracy.”
23. It is contended that nil compensation, as
contemplated in paragraph 192, is applicable as a State
undertakes to discharge liability for providing spaces
for requirement for recreational and communal use,
which is a public purpose. The area taken under the
gift deed from the appellant in Civil Appeal No. 7334
of 2012 has been developed as a walkers’ park and used
by the public. It is contended that town planning
42
legislation has been viewed differently as it served a
legitimate State interest. Even in the United States,
where the Fifth Amendment to the U.S. Constitution
contemplates compensation for taking, for public use,
private property, courts have upheld validity of zoning
regulations which substantially limit the rights of the
owners to develop land. Compensation has been refused.
Reliance is placed on Agins v. City of Tiburon24. In
India, there is no constitutional guarantee for payment
of compensation especially when they are required to
serve a legitimate public purpose. The gift of
property, apart from serving the larger interest of the
community, would also be conducive to the interests of
the appellants. Refuting the contention of the
appellants that the land which is transferred can be
used only by the members of the society and not by the
members of the general public, it is pointed out that
since reservation is for communal and recreational
purposes, the word ‘communal purpose’ must be
understood to mean that it is meant for community at
large. In the case of proposed development area being
24 447 US 255 (1980)
43
3000 square meters – 10000 square meters, ‘public
access is specifically excluded, as the
Rules/Regulations provide that public access to area
earmarked for transfer to Authority, will not be
insisted upon’.
24. There is no violation of Article 14. Classification
based on size of plot has a clear nexus with the object,
viz., planned development. Reliance is placed on
Judgment of this Court in State of Maharashtra and
another v. Basantibai Mohanlal Khetan and others
25. As
far as Civil Appeal No(s). 1890-1891 of 2010 is
concerned, the complaint of the appellants that the
land transferred under the gift was being made use of
as a road, which is impermissible, it is contended that
it is misleading. It is the case of the respondent that
the 10 per cent land transferred, already had a kachha
road on the said land and it was being used by the
public. The appellants tried to prevent the use of the
road. The High Court considered the Report of the Court
Commissioner and concluded that furbishing of the road
served a larger public interest and provided better
25 (1986) 2 SCC 516
44
connectivity to a larger population. Alternatively,
assuming communal purpose, would not include
construction of roads on OSR land, in the facts of the
case, appeal is made that this Court may not interfere
in the Extraordinary Jurisdiction under Article 136.
SUBMISSIONS MADE BY SRI JAYANTH MUTHRAJ,
SENIOR ADVOCATE RESPONDENTS NOS. 1 AND 2 IN
C.A. NO. 1890 OF 2010.
25. The developers had transferred, in the interest of
public, 1100 square meters of land, to the Authority
for roads, parks and other open spaces by the gift deed
dated 18.02.1994. In the year 2003, the Corporation of
Chennai laid metal road, which provided a direct and
short link to the Velacherry 100 feet bypass road to
enable thousands of general public to have easy access
and movements. The appellant-association has no locus
as it is neither the owner of the property nor has any
usage right been assigned to it. The CMDA is the
absolute owner of the gifted property. The public road
was laid as per the terms of the gift. The property is
used for communal purpose. The word ‘communal’ means
public. He relies on the definition of the word
45
‘communal’ in the International Websters Comprehensive
Dictionary of the English Language Encyclopaedic
Edition (2004 Edition) to mean ‘common; public;
belonging to a community’. He also would contend that
the DCR was prepared in accordance with Section 17 read
with Section 9C, Section 20(1)(d) and Section 20(1)(k)
and Section 35 with Section 124. Rules and Regulations
are authorised. He relies on the Judgement of this Court
in R.K. Mittal and others v. State of Uttar Pradesh and
others26and New Delhi Municipal Council and others v.
Tanvi Trading and Credit Private Limited and others27.
The impugned Rule is not an expropriatory action. It is
only regulatory. The Rule is informed by intelligible
differentia having a nexus with the object. The
challenge is academic as the DCR is already repealed by
the Regulation made on 02.09.2008. There is latches in
filing the Writ Petition after 13 years of the execution
of the gift deed. Even assuming the Rule is bad, the
gift deed is beyond challenge. The appellants having
maintained Writ Petition (Civil) No. 4766 of 2007,
26 (2012) 2 SCC 232
27 (2008) 8 SCC 765
46
based on the gift deed, cannot challenge the validity
of the gift deed in the subsequent Writ Petition.
Estoppel and constructive res judicata are principles
which are enlisted in support.
SUBMISSIONS BY SHRI K.S. SURESH, ADVOCATE IN
CIVIL APPEAL NO.7848 OF 2013
26. Shri K.S. Suresh, learned counsel appearing in C.A.
No. 7848 of 2013, (the appeal by Vasanth Apartment
Owners Association challenges the order in the review
petition) would submit that there is no power to compel
gift of land which is not required, reserved or
designated. He refers to Section 36 and would contend
that there is no power beyond the same to demand the
transfer of land. The rule providing for a compelled
gift is not within the objects, provisions and policies
of the Act. One of the zones reserved is for open space
and recreational use. Sections 36 and 37 only provide
for acquisition of land in such zones. Legislative
policy is not to acquire land without paying fair market
value. Planning permission cannot result in deprivation
of property. The DCR are not the rules made under the
47
Act. The authority is competent only to make regulation
under Section 124. In the absence of express power to
demand a gift, there cannot be an implied power. The
Act is regulatory and not a taxing legislation. The
appellants are entitled to restitution. Otherwise, he
adopts the arguments of the Shri Gopal Sankarnarayanan
made in C.A. No. 7847 of 2013. He would also in his
rejoinder submission point out that support cannot be
derived from Section 17 having regard to Section 12. He
would reiterate the argument that the State Government
also has no power relying on the judgment reported in
(2003) 5 SCC 622. He would contend that the words in
Section 122(1) empowering making rules ‘for carrying
out the purposes of the act’ is unbridled and it must
be understood as meant for regulating the use of land.
ANALYSIS
27. We have noticed the facts in the case of Vasanth
Apartments and in the case of Keyaram Hotels. In the
case of Vasanth Apartments, the land which was gifted
by the owner in compliance with the impugned rule has
been sought to be made use as a road. In the case of
48
Keyaram Hotels the pertinent point which must be
noticed is that the OSR area is not sought to be so
maintained as road but access to the public by having
an entrance to the area through a public road is sought
to be projected as being contrary to the very concept
of OSR meant for communal purpose, if the word
‘communal’ is to be understood as being confined to
benefit the interest of the community which in the
context of the case is the community of persons who
patronise the hotel and who used the facilities
provided in the hotel and its premises.
28. Whether impugned rule is statutory or it has
statutory underpinning? Whether it is law?
The argument of the appellants appears to be, that the
impugned rule is not a statutory rule. Instead, the
further case is that the impugned rule is not a rule
made under Section 122 of the Act. Section 123
contemplates placing of rules made under Section 122
before the legislative assembly. The said procedure has
not been followed as regards the impugned rule.
Therefore, it is not open to the respondents to claim
that the impugned rule is a statutory rule. It is
49
nothing but an executive fiat. If it is merely executive
in nature, then it is not open to the respondents to
direct the owners to execute a gift deed of valuable
property, and thus, deprive the owners of the rights
over their property.
29. The argument, on the other hand, of the respondents
is that the DCR of which the impugned rule, is a part
of the Master Plan and there is statutory authority in
regard to the making of a Master Plan located in Section
17 of the Act. In other words, the argument of the
respondents is that the court, when it approaches the
issue raised in this case, cannot have a pedantic view
and understand a Master Plan as one which is limited or
confined to mere drawings. The Master Plan as
contemplated in the Act in regard to a Metropolitan
Authority like the CMDA must be viewed on a larger
canvass. The plan was put in place for catering to the
needs of an ever-growing Metropolis. Various
restrictions necessarily have to be put in place to
provide for an orderly development of such a sprawling
urban area. The larger public interest of the entirety
of the residents of such an area had to be envisaged
50
and it is in this regard that the concept of OSR must
be viewed. The Master Plan goes to meticulous details
about what is permitted and what is not.
30. A perusal of the writ petition No.23397 of 2007
being the petition filed by the Association of Vasanth
Apartments Owners wherein Rule 19 has been challenged,
reveals the following pleading:
It is specifically stated that Rule 19 of the DCR
which forms part of the Master Plan prepared under
Section 17 of the Act mandates reservation of 10% as
open space for open and recreational facilities when
the area exceeds 10000 sq. meters. The gift in the
case was executed in the year 1994 (16.02.1994). It
is further contended that under the rule the second
respondent was to maintain it either on their own or
through the local body. The second respondent is the
authority. Thereafter since the second respondent has
not developed OSR area as park, petitioner wanted to
maintain the OSR as Park. Reference is made to Writ
Petition No. 4766 of 2007 and the developments
including the order passed by the learned single judge
and also writ appeal (writ appeal no. 478 of 2007)
51
wherein an interim order was passed. Thus, the writ
petition is filed in the year 2007. Now let us look
at the grounds urged:
(1) Rule 19(b) of the DCR is beyond the rule making
power conferred on the first respondent. The
Act does not empower the first respondent (the
State of Tamil Nadu) to make the DCR. Section 36
contemplates acquisition where land is reserved
for open space. Therefore, the rule is ultra
vires.
(2) There is an absolute right to enjoy the property.
This is a constitutional right under Article 300A
of the Constitution. Unless there is acquisition
and payment of due compensation, Article 300A is
violated. Therefore, the rule is
unconstitutional.
(3) The rule empowers the Authority to maintain the
OSR area themselves or through others without
permitting owners to themselves to do so. The
respondents have no right to possess and manage
the same. Therefore, the impugned rule
52
authorising the second respondent to maintain
and manage the OSR area is unconstitutional.
(4) The DCR not having been placed before the
legislative assembly, it has no force of law.
(5) The impugned rule without any guideline enables
exercise of arbitrary power.
(6) There is no power with first respondent State to
usurp the lands free of cost, and that too
selectively, under the guise of regulating the
development of the area.
The prayer is to declare Rule 19 (b) of the DCR
relating to group development in so far as it mandates
the transfer of 10% area of the layout of any
developmental plan having area 10,000 sq. meter or
more reserved as open space for communal and
recreational purposes to the second respondent or the
local body designated by it, free of cost through a
registered deed and empowering the second respondent
or any authority other than the association of
resident owners to maintain the said OSR area of the
respective layout, and the gift deed executed and
registered as Document No.262 dated 18.02.94 in the
53
office of the 4th respondent pursuant to the impugned
rule are unconstitutional and null and void and
consequently direct the 3rd respondent to enter in
their records the members of the petitioner
Association as Owners of the said OSR area and pass
such further or other orders as this Hon’ble Court
may deem fit and proper in the circumstances of the
case and thus render justice.
31. Before we deal with the issue we must bear in mind
as to what is law. Article 13 of the Constitution reads
as follows: -
“Article 13. Laws inconsistent with or in
derogation of the fundamental rights. — (1) All
laws in force in the territory of India
immediately before the commencement of this
Constitution, in so far as they are
inconsistent with the provisions of this Part,
shall, to the extent of such inconsistency, be
void.
(2) The State shall not make any law which
takes away or abridges the rights conferred by
this Part and any law made in contravention of
this clause shall, to the extent of the
contravention, be void.
(3) In this article, unless the context
otherwise requires, —
(a) “law” includes any Ordinance, order, byelaw, rule, regulation,
notification, custom or usage having in the
territory of India the force of
law;
54
(b) “laws in force” includes laws passed or
made by a Legislature or other competent
authority in the territory of India before the
commencement of this Constitution and not
previously repealed, notwithstanding that any
such law or any part thereof may not be then
in operation either at all or in particular
areas.
[(4) Nothing in this article shall apply to any
amendment of this
Constitution made under article 368.]”
32. Existing law has been defined in Article 366. It
reads as follows: -
“Article 366. (10) “existing law” means any
law, Ordinance, order, bye-law, rule or
regulation passed or made before the
commencement of this Constitution by any
Legislature, authority or person having power
to make such a law, Ordinance, order, bye-law,
rule or regulation;”
33. Law in force is an expression found in Article 372
of the Constitution. It reads as follows: -
“Article 372. — The expression “law in force”
in this article shall include a law passed or
made by a Legislature or other competent
authority in the territory of India before the
commencement of this Constitution and not
previously repealed, notwithstanding that it
or parts of it may not be then in operation
either at all or in particular areas.”
55
34. Section 3(29) of the General Clauses Act, 1897
defines Indian Law as:
(29) “Indian law” shall mean any Act,
Ordinance, Regulation, rule, order, bye-law or
other instrument which before the commencement
of the Constitution, had the force of law in
any Province of India or part thereof, or
thereafter has the force of law in any Part A
State or Part C State or Part thereof, but does
not include any Act of Parliament of the United
Kingdom or any Order in Council, rule or other
instrument made under such Act;
35. In Salmond on Jurisprudence 12th Edition, it is
profitable to notice the following discussion:
Law as the dictate of reason: natural law
The idea that in reality law consist of rules
in accordance with reason and nature has formed
the basis of a variety of natural law theories
ranging from classical times to present day(q).
The central notion is that there exist
objective moral principles which depend on the
essential nature of the universe and which can
be discovered by natural reason, and that
ordinary human law is only truly law in so far
as it conforms to these principles. These
principles of justice and morality constitute
the natural law, which is valid of necessity,
because the rules for human conduct are
logically connected with truths concerning
human nature.
Law as the command of the sovereign: imperative
law
Diametrically opposed to the theory of natural
law is the positivist, or imperative, theory
of law (j). This theory distinguishes the
56
question whether a rule is a legal rule from
the question whether it is a just rule (k),
and seeks to define law, not by reference to
its content but according to the formal
criteria which differentiate legal rules from
other rules such as those of morals, etiquette,
and so on.
Xxx xxx xxx
According to Austin, whose version of the
theory will be considered here, positive law
has three characteristic features. It is a
type of command, it is laid down by a political
sovereign and it is enforceable by sanction.
Xxx xxx xxx
We must now distinguish commands which are laws
from commands which are not. Imagine a state
governed by an absolute ruler R. Here the law
is what R command. But is the converse true?
Are all R’s commands law?
Xxx xxx xxx
Now if particular commands can qualify as laws,
how can we distinguish laws from commands which
are not? Everyday life is sprinkled with
examples of people giving commands to others:
masters give orders to servants, teachers to
pupils, parents to children and so forth.
Xxx xxx xxx
Such criticism overlook the importance of
Austin’s second requirement: for to qualify as
law a command must have been given by a
political superior, or sovereign.
Xxx xxx xxx
To define law as a command can mislead us in
several ways. First, though this may be a not
57
in appropriate way of describing certain
portions of law such as the criminal law, the
greater part of a legal system consists of laws
which neither command nor forbid things to be
come, but which empower people by certain means
to achieve certain results: e.g., laws giving
citizens the right to vote, laws conferring
on lease-holders the right to buy the
reversion, laws concerning the sale of property
and the making of wills: indeed the bulk of
law of contract and of property consists of
such power-conferring rules. At this point the
theory could be saved by arguing that a rule
conferring a right on one person is really an
indirect command addressed to another: a law
empowering the citizen to vote is really an
order to the returning officer to register the
vote.
Xxx xxx xxx
Thirdly, “command” conjures of the picture of
an order given by one particular commander on
one particular occasion to one particular
recipient. Laws differ in that they can and
do continue in existence long after the
extinction of the actual law-giver (r).
Xxx xxx xxx
But whether we define law as a command or a
rule, we must still distinguish commands (or
rules) which are law from those which are not.
For Austin, as we saw, a command can only be
law if it emanates from a sovereign. This
raises the question how far there can exist
laws other than those made by the sovereign.
Obviously in a complex modern state it would
be impossible for a sovereign to enact every
legal rule: much law-making will in fact be
done by subordinates to whom legislative powers
have been delegated. A good deal of English
law consists of such delegated legislation,
e.g., regulation made by Ministers under Acts
58
of Parliament. Here Austin finds no problem,
since he sees no difficulty in the notion of a
sovereign conferring law-making powers on
others (u).
36. The distinguishing feature of law has been the
subject matter of considerable debate and we may only
for the purpose of these cases note that one of the
essential features which mark out law from an executive
order is that ‘law’ has general application. In other
words, law sets out principles and rules which apply to
all of those who would be within its purview otherwise.
A law is not to be viewed as particularised decisions
of the executive. Law is generally to have operation in
the future. This court speaking through O. Chinnappa
Reddy, J. held in Union of India and Another v. Cynamide
India Limited and Another.
28:
“5. The second observation we wish to make is,
legislative action, plenary or subordinate, is
not subject to rules of natural justice. In the
case of Parliamentary legislation, the
proposition is self-evident. In the case of
subordinate legislation, it may happen that
Parliament may itself provide for a notice and
for a hearing — there are several instances of
the legislature requiring the subordinate
legislating authority to give public notice and
28
(1987) 2 SCC 720
59
a public hearing before say, for example,
levying a municipal rate — in which case the
substantial non-observance of the statutorily
prescribed mode of observing natural justice
may have the effect of invalidating the
subordinate legislation…”.
“7. The third observation we wish to make is,
price fixation is more in the nature of a
legislative activity than any other. It is true
that, with the proliferation of delegated
legislation, there is a tendency for the line
between legislation and administration to
vanish into an illusion. Administrative,
quasi-judicial decisions tend to merge in
legislative activity and, conversely,
legislative activity tends to fade into and
present an appearance of an administrative or
quasi-judicial activity. Any attempt to draw a
distinct line between legislative and
administrative functions, it has been said, is
“difficult in theory and impossible in
practice”. Though difficult, it is necessary
that the line must sometimes be drawn as
different legal rights and consequences may
ensue. The distinction between the two has
usually been expressed as “one between the
general and the particular”. “A legislative act
is the creation and promulgation of a general
rule of conduct without reference to particular
cases; an administrative act is the making and
issue of a specific direction or the
application of a general rule to a particular
case in accordance with the requirements of
policy”. “Legislation is the process of
formulating a general rule of conduct without
reference to particular cases and usually
operating in future; administration is the
process of performing particular acts, of
issuing particular orders or of making
decisions which apply general rules to
particular cases.” It has also been said:
“Rule-making is normally directed toward the
formulation of requirements having a general
60
application to all members of a broadly
identifiable class” while, “an adjudication,
on the other hand, applies to specific
individuals or situations”. But, this is only
a broad distinction, not necessarily always
true. Administration and administrative
adjudication may also be of general application
and there may be legislation of particular
application only. That is not ruled out. Again,
adjudication determines past and present facts
and declares rights and liabilities while
legislation indicates the future course of
action. Adjudication is determinative of the
past and the present while legislation is
indicative of the future. The object of the
rule, the reach of its application, the rights
and obligations arising out of it, its intended
effect on past, present and future events, its
form, the manner of its promulgation are some
factors which may help in drawing the line
between legislative and non-legislative acts.”
37. Paton in his work on Jurisprudence says this about
the law.
“Law may shortly be described in terms of a
legal order tacitly or formally accepted by a
community. It consists of the body of rules
which are seen to operate as binding rules in
that community, backed by some mechanism
accepted by the community by means of which
sufficient compliance with the rules may be
secured to enable the system or set of rules
to continue to be seen as binding in nature. A
mature system of law normally sets up that type
of legal order known as the State, but we
cannot say a priori that without the State no
law can exist.”
61
38. In the DCR the preamble recites that Section 9 (c)
of the Act prescribes that the Authority is to carry
out a survey of the Chennai Metropolitan Area and
prepare a Master Plan referred to in Section 17. It is
further stated that having carried out necessary
surveys and studies, the Master Plan prepared in 1975
stood approved by government on 04.12.1976. The DCR
inter alia provides as follows:
No development as defined in the Act is permissible
without written permission. It provides for the
manner of obtaining permission. Rule 3 proclaimed
that no development shall be in contravention of
the DCR. Site approval is made mandatory. The land
use classification was put into place. The DCR
divided land use in terms of 9 separate zones which
included primary residential zone, mixed
residential zone, institutional use zone, open
space and recreational use zone etc. There were
detailed restrictions put in place qua the zones in
regard to what activities were permitted as also
what were prohibited. Part III commencing with Rule
62
17 was captured under the Caption ‘General
Provisions’. It is under this chapter that Rule 19
made its appearance. Rule 19 dealt with Layout and
sub division. It inter alia provided for passage,
streets and roads and cul-de-sacs and it is
thereunder that in respect of reservation of land
for communal and recreational purpose in a layout
or sub division that the DCR contemplated inter alia
the impugned provisions. Rule 20 provided for
parking. Rule 21 dealt with architectural control.
Rule 22 provided for preservation of buildings of
historical or architectural interest. Rule 23 dealt
with tree preservation. Rule 24 dealt with
advertisement control. Rule 25 provided for Airport
zone and Microwave Zone. In fact, Rule 26 may be
noticed at this stage in full.
“26. These rules to prevail :- (a) In the
application of these rules if there is conflict
between the requirements under these rules and
the requirements under any other Act or rules
or by laws in force the requirements under
these rules and the provisions of Chennai City
Municipal Corporation Act, Tamil Nadu Distrit
Municipal Act or Panchayat Act or any other law
relating to the local authority for the time
being in force or any rule, by law or
regulation made under the said act or laws,
63
such provisions which are contrary to these
rules shall stand suspended. (b) The
notifications made under the Municipal and
Panchayat Acts and the Tamil Nadu Public Health
Act, 1939 (Tamil Nadu Act III of 1939) as
regards setting of the Industrial and
Residential area in the Chennai Metropolitan
Area will cease to operate from the date of
commencement of these rules. 27.”
Rule 27 dealt with identification of boundaries. Rule
28 provided for delegation of power. Rule 29 made
contravention of the rules punishable with fine.
39. Section 9(c) must be read along with Section 17 of
the Act. Section 9 (c)(ii) declares that subject to the
provisions of the Act and the rules made under the Act,
the functions of the Authority is to inter alia prepare
a Master Plan referred to under sub-Section (2) of
Section 17. Section 17 deals with Master Plans. Section
17 contemplates that the Local Planning Authority
(which is mentioned under Section 4(b) of the Act) shall
within such time as may be prescribed and after
consulting the Regional Planning Authority (see Section
4(a) of the Act) and the Local Authority, prepare and
submit to the Government, a Plan called the Master Plan.
Section 17(2) reads as follows:
64
“(2) The master plan may purpose or provide for
all or any of the following matters, namely: -
(a) the manner in which the land in the
planning area shall be used;
(b) the allotment or reservation of land for
residential, commercial, industrial and
agricultural purposes and for parks, playfields and open spaces;
(c) the allotment and reservation of land for
public buildings, institutions and for civic
amenities;
(d) the making of provision for national
highways, arterial roads, ring roads, major
streets, lines of communication including
railways, airports and canals;
(e) the traffic and transportation pattern and
traffic circulation pattern;
(f) the major road and street improvements;
(g) the areas reserved for future development,
expansion and for new housing;
(h) the provision for the improvement of areas
of bad layout or obsolete development and slum
areas and for relocation of population;
(i) the amenities, services and utilities;
(j) the provision for detailed development of
specific areas for housing, shopping,
industries and civic amenities and educational
and cultural facilities;
(k) the control of architectural features,
elevation and frontage of buildings and
structures;
(l) the provision for regulating the zone, the
location, height, number of storeyes and size
65
of buildings and other structures, the size of
the yards and other open spaces and the use of
buildings, structures and land;
(m) the stages by which the master plan shall
be carried out;
and (n) such other matters as may be
prescribed.”
40. The Act as noted contemplates preparation of
detailed development plan also. Section 24 of the Act
contemplates that as soon as may be after the Master
Plan inter alia has been submitted to the Government,
the Government may not later than the time prescribed
direct the appropriate Planning Authority to make such
modification in the Master Plan inter alia. Thereupon,
the modified Plan has to be resubmitted to the
Government. Thereupon, the Government may give the
consent for publication of the notice under Section 26
of the preparation of the Master Plan inter alia.
Moving on to Section 26, it contemplates publication in
the Gazette, of the notice of the preparation of the
Master Plan inter alia. The notice must indicate the
place or places where the copies may be inspected. More
importantly, objections and suggestions in writing are
66
to be invited within such period as is specified in the
said notice. The period shall not be less than two
months from the publication of the notice. Section 26
(2) contemplates that a reasonable opportunity of being
heard must be provided to any person including
representative of the Government Authority, who have
made any objection. The Planning Authority can make
amendments based on the objections and with the
amendments, if any, carried out, the Plan is again
submitted to the Government. Section 28 contemplates
approval by the Government after consulting the
Director of Town and Country Planning of the Plan
submitted under Section 26(2). The approval may be with
or without modification. Again, it is open to the
Government to return the Plan, to modify the plan, or
to prepare a fresh Plan in accordance with such
directions as the Government may issue in this behalf
and resubmitted to the Government for approval. The
approval which is granted under Section 28 by the
Government to a Master Plan inter alia is to be
published by the Government in the gazette and leading
newspapers. The notification must indicate the place
67
and time at which the Plan shall be open to inspection
to the public. The Plan shall come into operation from
the date of publication in the Tamil Nādu Government
Gazette. Section 32 of the Act provides for variation,
revocation and modification of regional plans, Master
Plan and the new development plan, at any time, by a
subsequent plan prepared and approved under the Act.
41. Even according to the petitioner in Association of
Vasanth Apartments Owners, the DCR is a part of the
Master Plan. This is precisely the argument of the
respondent as well. We are in agreement with the stand
taken by the petitioner and the respondent. The DCR is
a part of the Master Plan. The process involved in the
making of the Master Plan points to active
participation of all stakeholders. The plan which is
apparently tentatively prepared must first receive
approval from the Government before the notice of its
preparation is published. It is upon such notice being
published, objections are also invited. It is open to
the Planning Authority to amend the Plan, paying heed
to the objections found to be with merit. Again, the
matter goes to the Government. Government has the power
68
again to return it. Government as well may approve the
Plan. As we have already found Master Plan cannot be
conflated with a set of drawings or maps. It must, in
the context of law in question, be extended to encompass
within its embrace rules by which alone the Plan can
become workable and the sublime goal of the lawgiver
attained. The Master Plan accompanied with the DCR were
to hold sway. It was to have general application. It
was intended to bind everyone. It created rights and
liabilities. It was not intended for any particular
person. It was to operate in the future. It carried
with it the attributes of law. The Government all
throughout plays the pivotal and leading role and it is
only with the imprimatur of approval by the Government
that the Plan read with the Rules assumed force.
Government undoubtedly had power to make rules under
Section 122 of the Act. We would therefore hold that
the DCR which held the field till 2008 when Regulations
were enacted had the force of law.
42. It is profitable for us at this juncture to look
at what a learned single judge had to say regarding the
history of the ‘DCR’ and the regulation. Justice V.
69
Ramasubramanian, while judge of the High court, has
rendered judgment reported in M. Krishnasamy V. The
Member Secretary, Chennai Metropolitan Development
Authority and Another29. It was rendered on 25.09.2012.
The petitioner therein challenged a communication by
the member secretary of the authority rejecting the
request to waive open space reservation charges for the
grant of planning permission. The amount of OSR charge
demanded was Rs.58,50,000. It was the contention of the
petitioner therein that the charges could be levied
only if land of an extent equivalent to 10% of the
total area was not reserved for open space and conveyed
to the local body. It was his case that his predecessor
in title had already earmarked 10% of the total area
and handed it over to the Corporation of Chennai. A
draft deed of conveyance was also submitted by his
predecessor which could not be executed on account of
the lethargy on the part of the corporation but
possession was taken in 1976. The learned single judge
went on to find as a matter of fact that though a gift
deed as such was not executed, the land was in public
29
2013 1 CTC 80
70
domain for the past 36 years and no one except the
local body would lay a claim on the said land. The
Court held;
“Para 12. Though in paragraph 10 of the counter
affidavit, the first respondent has claimed
that OSR land was neither gifted nor handed
over to the Corporation, the same appears to
be an incorrect statement. The Corporation has
categorically confirmed that the land of the
extent of 6 grounds 170 sq. ft., had been
handed over by the original owner. This is also
corroborated by (i) a letter of the Assistant
Engineer of the Corporation of Chennai dated
29.1.1976 and (ii) the handing over-taking over
certificate dated 11.2.1976 signed by an
Officer of the Deputy Collector's office and
the Corporation of Chennai. The fact that the
said land has been developed into a park and
that it is now maintained by the Corporation
of Chennai, is beyond any pale of doubt. But
it is equally true that no deed of
conveyance/gift was executed and registered by
the original promoter in favour of the
Corporation. Nevertheless, the land is in
public domain for the past 36 years and no one
except the local body, can today lay a claim
on the said land of the extent of 6 grounds
and 170 sq. ft. Therefore, on the first
question, it has to be held that OSR land has
already been handed over to the local body.”
43. Thereafter it is interesting that the learned
Single Judge holds as follows: -
“Para 13. Incidentally it must be pointed out that
in Pt. Chet Ram Vashist vs. Municipal Corporation
71
of Delhi {1995 (1) SCC 47}, the Supreme Court held
that the effect of reserving any site for open
space, park etc., in a layout is that the owner
ceases to be a legal owner of the land in dispute
and that he would hold the said land for the
benefit of the society or the public in general.
It was further held in the said decision that the
entitlement of the Corporation or the local body
to demand the transfer of the land to them, is not
made out from the provisions of any Act or on any
principle of law. The Court pointed out that the
Corporation may get a right as custodian of public
interest to manage it in the interest of the
society in general. However, the right to manage
as a local body, was held by the Supreme Court in
the said decision, to be not the same thing as to
claim transfer of the property to itself. The
decision in Pt. Chet Ram Vashist, was followed in
Chairman, Indore Vikas Pradhikaran vs. Pure
Industrial Coke & Chemicals Ltd {MANU/SC/7706/2007
: 2007 (8) SCC 705}. Again in Babulal Badriprasad
Varma vs. Surat Municipal Corporation
{MANU/SC/7606/2008 : 2008 (12) SCC 401}, the
Supreme Court pointed out that a statute of town
planning ex facie is not a statute for acquisition
of a property. The Court further observed that
every step taken by the State does not involve
application of the Doctrine of Eminent Domain.”
Para 16. At this juncture, a small prelude is
necessary, to understand how the liability to
earmark open space for public and recreational
purposes, in a land developed into a layout and
how the liability to pay OSR charges, came into
existence. Hence it is presented as follows: -
(i) Section 9C, Chapter II-A of the Tamil Nadu
Town and Country Planning (Amendment) Act, 1973
(Tamil Nadu Act No. 22 of 1974) prescribed that
the Madras Metropolitan Development Authority
shall carry out a survey of Madras Metropolitan
area and prepare a Master Plan as referred to in
Section 17.
72
(ii) Accordingly, MMDA carried out necessary
surveys and studies and prepared the First
Master Plan for the Chennai Metropolitan Area in
1975. The Government approved the same in
G.O.Ms. No. 2395, Rural Development and Local
Administration dated 4.12.1976.
(iii) The First Master Plan covered an extent of
approximately 1170 sq. kms. It included within
the City of Chennai, a part of Ambattur Taluk,
Tambaram Taluk, Tiruvallur Taluk, Chengalpet
Taluk, Sriperumbudur Taluk, Ponneri Taluk and
Poonamallee Taluk.
(iv) Under the said Plan, all lands in the
Metropolitan Area were categorised into 10 zones
such as Primary Residential Use Zone, Mixed
Residential Use Zone, Commercial Use Zone, Light
Industrial Use Zone, General Industrial Use
Zone, Special and Hazardous Industrial Use Zone,
Institutional Use Zone, Open Space and
Recreational Use Zone, Agricultural Use Zone and
Non-Urban Use Zone.
(v) Along with the First Master Plan, a set of
rules known as Development Control Rules were
issued by the Government. These rules dealt with
(i) permission for development (ii) use zones
and (iii) general provisions.
(vi) Rule 19 of the Development Control Rules,
which comes under Part III, under the heading
"General Provisions" deals with layout and
subdivision.
(vii) The liability to reserve a portion of the
site in a layout as open space, arose out of
Rule 19 of the Development Control Rules, till
these rules were in operation.
Para 17. Rule 19 of the Development Control Rules
contains a Table which prescribes the minimum
width of the streets and roads in different types
of layouts. Just below the Table under Rule 19,
there is a Note. The said Note contains 3
prescriptions. The third prescription in the
73
said Note contains a Table indicating the extent
of land to be reserved for communal and
recreational purposes in a layout or subdivision
for residential, commercial, industrial or
combination of such uses.
Para 21. It may be of interest to note that at
the time when the First Master Plan was conceived
in 1975, the concept of "Group Development" or
"Flats", had not gained momentum in the City of
Chennai. Therefore, the Development Control
Rules did not contain specific provisions to
regulate the same. But when developers started
promoting flats, the issue was taken up by the
Madras Metropolitan Development Authority with
the Government, in a letter dated 22.3.1981. On
the basis of the said letter of the Member
Secretary and the recommendations of the
Technical Committee of MMDA and the response of
the public to the proposed amendment to the
Rules, the Government issued G.O.Ms. No. 940,
Housing and Urban Development, dated 8.10.1982,
approving the Draft Rules for incorporation in
the Development Control Rules with certain
modifications. They were issued by the
Government in exercise of the power conferred by
Section 32 of the Tamil Nadu Town and Country
Planning Act, 1971.
Para 22. By the Amendment so made to the
Development Control Rules, sub-rules (b) & (c)
were inserted under Rule 19. While sub-rule (b)
dealt with “Special Buildings”, sub-rule (c)
dealt with “Set Back” for residential and
commercial. Under Clause (v) of sub-rule (c) of
Rule 19, the extent of land to be reserved for
Community Recreational Purposes, was indicated
in a tabular column. It reads as follows:
Exent of
layout
(1)
Reservation
(2)
(i) For the
first 3000
sq.meters
Nil
74
(ii) Between
3000 square
meters and
10,000
square
meters
10% of the area excluding roads
or in the alternative, he/she
shall pay the market value of
the equivalent land excluding
the first 3000 square meters
as per the valuation of the
registration department. The
space so reserved shall be
maintained as Community
Recreational Space and shall
remain private.
(iii) Above
10,000
sq.meters
10% of the area excluding roads
shall be reserved and this
space shall be transferred to
the Authority or to the local
body designated by it, free of
cost, through a deed. It is
obligatory, to reserve the 10%
space of the site area and no
charges can be accepted in
lieu.
Para 23. But in so far as “Group
Development/Flats” are concerned, the open space
to be reserved for Community Recreational
Purposes was indicated in a separate Table in the
same Government Order G.O.Ms. No. 940, dated
08.10.1982, as follows:
Exent of
layout
(1)
Reservation
(2)
(i) For the
first 3000
sq.meters
Nil
(ii) Between
3000 square
meters and
10,000
square
meters
10% of the area excluding roads
or in the alternative, he shall
pay the market value of the
equivalent land excluding the
first 3000 square meters as per
the valuation of the
Registration Department. The
space so reserved shall be
maintained as Community
75
Recreational Space and shall
remain private.
(iii) Above
10,000
sq.meters
10% of the area excluding roads
shall be reserved and this
space shall be transferred to
the Authority or to the local
body designated by it, free of
cost, through a deed. It is
obligatory to reserve the 10%
of the site area and no charges
can be accepted in lieu.
Para 24. Rule 19(a) & (b) was amended further by
G.O.Ms. No. 35, Housing and Urban Development,
dated 9.1.1989. But the Amendments introduced by
the said Government Order covered only layouts
of the extent between 3,000 sq.meters and 10,000
sq.meters. In other words, layouts of larger
extents above 10,000 sq.meters, were not covered
by the said Amendment.
Para 25. There appears to be a subsequent
amendment. Though the year of such amendment is
not clear, the Development Control Rules hosted
in the Internet by the CMDA, as amended upto
September 2004, contains two Tables, one in
respect of normal buildings under Rule 19(a) and
another in respect of “Special Buildings and
Group Developments” under Rule 19(b). The Table
under Rule 19(a) is as follows:
Exent of layout
(1)
Reservation
(2)
For the first 3000
square meters
Nil
Between 3000 square
meters and 10,000
square meters
10 percent of the
area excluding
roads or in the
alternative he
shall pay the
market value of
equivalent land
76
excluding the first
3000 square meters
as per the
valuation of the
registration
department. “No
such area reserved
shall measure less
than 100 square
meters with a
minimum dimension
of 10 meters”.
The space so
reserved shall be
transferred to the
Authority or to the
Local body
designated by it,
free of cost,
through a deed, and
in turn the
Authority or the
Local body may
permit the
residents
Association or Flat
Owners'
Association for
maintaining such
reserved space as
park. In such cases
public access for
the area as
earmarked shall not
be insisted upon.
Above 10,000 square
meters
10 percent of the
area excluding
roads shall be
reserved and this
space shall be
maintained as
Community
Recreational Open
77
Space to the
satisfaction of the
authority or
transferred to the
authority for
maintenance. It is
obligatory to
reserve 10 percent
of the layout area.
Para 26. The Table under Rule 19(b) in respect
of Special Buildings, is as follows:
Exent of
layout
(1)
Reservation
(2)
For the
first 3000
square
meters
Nil
Between
3000
square
meters and
10,000
square
meters
10 percent of the area
excluding roads or in the
alternative shall pay the
market value of the
equivalent land excluding the
first 3,000 square meters as
per the valuation of the
Registration Department only
where it is not possible to
provide open space due to
physical constraints. No such
area reserved shall measure
less than 100 square meters
with a minimum dimension of
10 meters.
The space so reserved shall
be transferred to the
Authority or to the Local
Body designated by it, free
of cost, through a deed, and
in the turn the Authority or
the local body may permit the
Residents Association or Flat
Owners' Association for
78
maintaining such reserved
space as park. In such cases,
public access for the area as
earmarked shall not be
insisted upon.
Above
10,000
square
meters
10 percent of the area
excluding roads shall be
reserved and this space shall
be transferred to the
authority or to the local
body designated by it, free
of cost, through a deed. It
is obligatory to reserve the
10 percent space of this site
area and no charges can be
accepted in lieu, in case of
new developments or
redevelopments.
Para 27. After a spurt in developmental
activities, the CMDA felt a need for a Second
Master Plan for the Chennai Metropolitan Area.
Therefore, a Draft Second Master Plan 2011 was
prepared and submitted to the Government and the
Government gave its consent to it under G.O.Ms.
No. 59, Housing and Urban Development Department,
dated 30.6.1995. After public consultation, it
was submitted to the Government in December 1995
for approval. But approval could not be granted
on account of an interim prohibitory order
granted by this Court in a Writ Petition. Though
the Writ Petition W.P. No. 14819 of 1995 was
eventually dismissed on 10.7.2001, the
Government returned the Draft Second Master Plan
to the CMDA for suitable modifications. This was
under G.O.Ms. No. 408, dated 5.10.2001.
Para 28. Thereafter, a revised Draft Second
Master Plan with the year 2026 as the horizon
year, was prepared and submitted to the
Government in December 2005. The Government again
returned it under G.O.Ms. No. 331, H & UD
Department, dated 5.12.2006, with a direction to
79
incorporate certain developments in the field and
to submit a fresh proposal for consent. This was
done in February 2007 and the Government gave its
consent on 30.3.2007.
Para 29. Thereafter, copies of the Draft Second
Master Plan were made available to the public and
also hosted in the official website of the First
Respondent. Subsequently public consultations
were conducted in April and July 2007 and a twoday workshop was also held in August 2007.
Thereafter, the draft was finalised and submitted
to the Government. Finally, the Second Master
Plan for Chennai Metropolitan Area was approved
by the Government of Tamil Nadu in G.O.Ms. No.
190, Housing and Urban Development, dated
2.9.2008 and it was notified in the Gazette on
the same day. As part of the Second Master Plan,
a set of Regulations known as “Development
Regulations” were issued and they came into force
on 2.9.2008.
Para 30. Regulation 26 of the Development
Regulations 2008, contains stipulations
regarding “Special Buildings”. A Special
Building is defined in Regulation 2(40) to mean
(i) a residential or commercial building with
more than two floors, or (ii) a residential
building with more than 6 dwelling units or (iii)
a commercial building exceeding a floor area of
300 sq.meters.”
44. After referring to Rule 27 dealing with group
developments and Rule 29 which dealing with layout and
sub division regulations and finding it to correspond
to Rule 19 of the DCR and further noticing Rule 27 in
80
greater detail, the learned Single Judge then proceeds
to hold further as follows: -
“Para 34. A careful survey of (i) the
provisions that existed from 1975 till 2008
under the First Master Plan and the Development
Control Rules, and (ii) the provisions that
exist with effect from 2008 under the Second
Master Plan and the Development Regulations,
would show that layouts had always been
classified into 3 categories. They are, (i)
those whose total land extent is upto 3,000
sq.meters, (ii) those whose total land extent
is between 3,000 sq.meters and 10,000
sq.meters, and (iii) those whose total land
extent is above 10,000 sq.meters.
Para 35. Consistently, the Development Control
Rules which were in force till 2008 and the
Development Regulations which are in force from
2008, have exempted layouts whose total extent
of land is upto 3,000 sq.meters, from the
obligation to reserve any open space.
Similarly, the Rules have consistently given
two options, either to hand over 10% of the
area excluding roads or to pay the market value
of equivalent land, in so far as layouts whose
total extent of land is between 3,000 sq.meters
and 10,000 sq.meters.
Para 36. But, in respect of layouts whose total
extent of land is above 10,000 sq.meters, the
Rules have always insisted upon handing over
of Open Space Reservation land to the extent
of 10% of the total area. In respect of layouts
whose total extent is above 10,000 sq.meters,
it was made clear by the successive Government
Orders that no charges in lieu of 10% of the
area can be accepted. This is borne out by—
(1) G.O.Ms. No. 743, Housing and Urban
Development, dated 10.5.1979,
81
(2) G.O.Ms. No. 940, Housing and Urban
Development, dated 8.10.1982,
(3) the Development Control Rules as of
September, 2004 (hosted in the official
website) and the Table contained therein under
Rules 19(a) & 19(b), and
(4) Regulation 29 and Annexure XX under the
Development Regulations of the year 2008.”
We are fortified in our conclusion that the Rule
in question was statutory in nature. Section 123 (2)
contemplates that every rule made under the Act is to
be laid as soon as may be on the table of the
Legislative Assembly and it inter alia enables the
Assembly to modify the rule and if the Assembly decides
that the rule should not be made or give it a modified
operation or no effect, then such a decision of the
Assembly will prevail. It is to be noticed that this
is after providing that unless otherwise expressed, the
rules come into force on the day on which they are
published in the Gazette. This shows that the rule has
life without reference to the Legislative Assembly. It
is undoubtedly true that Section 122 speaks of the
power of the Government to make rules. While it is true
that the Master Plan is to be prepared by the CMDA and
the rules would form part of the Master Plan, the scheme
82
of the rules would show that it is only with the
approval of the Government that the rules along with
the Master Plan come into force. We have already
noticed the effect of Section 32 as indeed it was
considered by the learned Single Judge in the judgment
we have referred to.
THE GIFT DEED IN VASANTH APARTMENTS CASE
45. The complaint about there being no rationale in
allowing a developer who develops a layout which is
between 3000 sq.m. and 10000 sq.m. to pay the equivalent
is to be found both in the circumstance that it is
permitted only when there is a physical complaint and
also it is obvious that the local Authority would be
expected to plough back the money equivalent into
making available alternate facility by way of OSR in
such cases.
46. It is necessary to notice the relevant facts in the
case relating to Vasanth Apartments in greater detail.
The writ petition filed by the Association of Vasanth
Owners is in the year 2007. The Vasanth Apartments is
located at 100 feet bye-pass road, Velacherry. The
83
apartments were promoted as group developments in terms
of approval granted by the CMDA on 16.05.1997. The
Apartments consist of 12 blocks, out of which 11 blocks
consist of 4 storeys and house about 180 dwellings. The
total area of the layout is more than 10,000 sq. mtr.
10% of the total area consisting of 1164 sq. mtr. was
reserved for use as OSR. A gift was executed on
10.02.1994 under the DCR. The CMDA was either to
maintain the OSR area on its own or to permit the
appellant Association to maintain the same. 180
families residing in the campus do not have any park
and any recreational facility despite the OSR.
Thereafter, there is reference to attempts being made
by some persons to encroach on the said OSR area for
some other purposes. Several loads of earth was dumped
in the OSR area. The case on the other hand of the
respondents as can be seen from the writ appeal is that
at the time of construction, the land owners earmarked
the portion of the land, that is, 11836 sq. feet, as
open space regulation (OSR area) for road and park and
gifted the same as per the gift deed. The second
respondent Corporation has formed road in that land
84
during the year 2003 itself and was maintaining the
same. It is their case that the appellant Association
was blocking the said road. The said road is a shortest
link from West Vellachery to East Vellachery - Vijay
Nagar and this road gives access to Venkateshwara
Nagar, MGR Nagar and Devikarumariamman Nagar etc.,
where one lakh people are living in Vellachery.
47. Now, it is necessary to notice the actual terms of
the gift deed which was executed on 18th February, 1994.
The relevant terms read as follows: -
“GIFT DEED
This indenture made on this 18th day of
February 1994.
between
1. Shri K.S. Dasarathan, Hindu, aged about 48
years.
2. Smt. D. Inbanayagi, Hindu, aged about 40
years, wife of Shri K.S.Dasarathan.
both residing at 84, Dr. Natesan Road,
Mylapore, Madras-4.
3. Shri G.T. Murugesan, Hindu, aged about 45
years.
4. Smt. M. Jayalakshmi, Hindu, aged about 40
years, wife of Shri G.T. Murugesan.
both residing at No.35, Nainar Nadar Road,
Mylapore, Madras-4.
All represented by their Power Agent Shri M.S.
Rajamanickam, son of Shri M. Sivagnanam, aged
about 42 years, residing at 75, C.P. Ramasamy
Road, Alwarpet, Madras, hereinafter called
"THE DONOR" of the one part;
85
and
The Madras Metropolitan Development Authority,
represented by its Member Secretary, having
their office at No.8, Gandhi Irwin Road,
"Thalamuthu Natarajan Building", Egmore,
Madras, hereinafter called "THE DONEE" on the
other part;
WHEREAS the "DONOR" is well sufficiently
entitled, free from all encumbrances, the piece
of lands for roads and parks hereunder
described and intended to be hereby granted
conveyed and assigned.
WHEREAS the DONOR is the absolute GPA holder
of the property bearing S.No.379/1 (Part) and
380 / 4 (part) of Velacherry Village and
submitted a proposal for development of the
land in the above S.Nos. for residential
purposes. To comply with the rules and
regulations prevailing now, the DONOR in the
interest of public has agreed to transfer the
roads and park and other open space hereunder
described through a gift deed in favour of
DONEE and DONEE has agreed to accept the same.
Now this indenture witnesseth that the DONOR
doth hereby give, grant, convey and assign in
the interest of public unto the DONEE who
hereby accepts the same all that lands for
roads, parks and other open space situated in
S.Nos.379 / 1, (part) and 380 / 4 (part) which
is for the use of the public comprised in
layout sketch enclosed, within registration
subdistrict of Madras South and registration
district of Madras Central and more
particularly described in the schedule
hereunder written and the DONOR doth hereby
covenant with the DONEE that the DONOR now does
have good right to grant, convey and assign the
lands of roads/parks hereby granted conveyed
and assigned upto the "DONEE" with the manner
aforesaid and that the "DONEE" shall and may
at all times hereafter peacefully and quietly
86
possess and enjoy the said lands of roads/parks
free from all encumbrances whatsoever without
any lawful eviction, interruption, claim,
whatsoever, from or by the "DONOR" or any
person claiming under or interest for him and
further that the "DONOR" and all person having
lawfully or equitably claiming any rights on
roads/parks or interest with the said premises
or any part thereof from under or interest for
the "DONOR" or from or under any of his
ancestors shall and will from time to time and
at all times hereafter at the request of and
cost of the "DONOR" do execute and register or
cause to be done
executed and registered all such acts, deeds
and things whatsoever for further and more
perfectly assuring the said lands or roads and
parks every part thereof unto the "DONEE" in
the manner aforesaid or as shall or may be
reasonably required.
THE SCHEDULE OF PROPERTY
All that piece and parcel of lands measuring
1100 square meters reserved for parks/open
spaces and marked in colour of the layout
sketch enclosed herein situated in S.No.379/1
(part) and 380/4 (part) of Velacherry Village,
Saidapet Taluk, Madras and within the sub
registration District of Madras South and
Registration District of Madras Central.
The value of property Rs.1,99,000/-.”
WHETHER THE IMPUGNED RULE VIOLATES
ARTICLE 14 OF THE CONSTITUTION? IS IT
DISCRIMINATORY?
48. As far as this ground is concerned, we do not find
any reference to this line of argument before the High
87
Court. In the writ petition filed by the Vasanth
Apartments (writ petition no. 23397 of 2007) the only
feeble reference, if at all we can understand the same
to be one, is ground (F) where what is contended is
that the CMDA had no power under the Constitution to
usurp the lands of citizens free of cost, that too
selectively, under the guise of regulating the
development of the area. In the written submissions, no
doubt we may notice the following: -
“(v) Further, if a plot measuring 200m x 55m
abutting a road of wide 1O m and above if
developed by seeking a single approval, it
would attract the impugned rule of gifting 10%
area whereas if it is divided into 4 pieces of
50 m* 55 m and sold to 4 individuals and then
developed by the 4 persons, for the same
development, then the impugned rule will not
be attracted. Therefore, the impugned rule
mandating the transfer of OSR area free of cost
has no rational basis and hence arbitrary.
(vi) Further, if an open space is required for
public purpose, then every public would be
enjoying the same. The state may tax the public
based on wealth but can not tax only a person
who is proposing to develop an area of 10,000
sqm. Therefore, the classification has neither
any intelligible differentia nor has rational
nexus with the object of town Planning.
Therefore, the impugned rule is discriminatory
and hence violative of Art.14 of Constitution
of India.
88
The Hon'ble Court Supreme Court in Yogendra Pal
& others Vs. Municiplaity, Bhatinda, reported
in AIR 1994 Supreme Court 2550 [relevant para9] has held that the statutory provisions U/S
192(1)(c) of the Punjab Municipal Act'1911 and
U/S 203(1)(c) of Haryana Municipal Act'1973
enabling the State to seek transfer of land to
the extent of 25% of the private land free of
cost while developing a building scheme as
violative of Art.14 of the Constitution of
India. The Hon'ble Supreme Court while
upholding the said provisions as not violative
of Arts. 19(1)(f) and 31(2) (the then existing
provisions) of Constitution of India but held
the said provisions as violative of Art. 14 of
the Constitution of India.
Therefore, due to the aforesaid reasons, the
mandate under the impugned rule to transfer the
OSR area free of cost is without any basis and
hence arbitrary and unreasonable and
discriminatory and hence violative of Art.14
of the Constitution of India.”
49. In the review petition (filed as review application
no. 69 of 2008) also there is no contention seeking to
ventilate the complaint that the impugned rule falls
foul of Article 14 on the basis that it is
discriminatory.
50. We are concerned in this case with the provision
which provides for town planning. In regard to such
law, a certain measure of free play is to be given to
the planning authority bearing in mind that it is urban
planning what is involved. In regard to the grant of
89
development permit up to 3000 sq. mtr., the rules do
not contemplate any requirement in the matter of OSR.
It is a matter which goes to the wisdom and clearly
falls within the realm of policy. In other words, having
regard to the size of the development contemplated, the
authority has not found it fit to provide for
reservation under the head open space. It cannot be
described as being bereft of any rationale that upon
the minimum threshold of 3,000 sq. mtr. being breached
and the layout being between 3,000 sq. mtr. and 10,000
sq. mtr., 10% of the area excluding roads is to be
maintained as open space. In other words, 10% of area
would have to be reserved for communal and recreational
facilities. It is no doubt true that that in cases
falling in the said category namely group developments
which comprise of an area in excess of 3,000 sq. mtr.
and up to 10,000 sq. mtr., it is open to the project
proponent to pay the market value equal to the land on
the basis of valuation as provided therein. However, it
is only if on account of the physical constraints it is
not possible to provide open space, that payment is
contemplated. Another noteworthy feature is that in
90
cases where the land is between 3,000 sq. mtr. and
10,000 sq. mtr. public access for the area as earmarked
shall not be insisted upon. It is when it comes to a
case where if the area goes above 10,000 sq. mtrs.,
that it becomes obligatory to reserve 10% of the area
excluding road and the OSR reserved is to be transferred
by way of gift deed.
51. We are unable to persuade ourselves to hold that
the impugned rule violates Article 14 on the score that
it is discriminatory. In a challenge to a provision
based on discrimination under Article 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 judgements which are
intended to ensure the orderly, visionary and planned
development, they require greater deference from
courts.
91
IS THE IMPUGNED RULE/ REGULATION ULTRA
VIRES?
52. It has been contended on behalf of the
appellants/writ petitioner that the impugned provisions
represent a case of they being ultra vires. In General
Officer Commanding-in-Chief and another v. Dr. Subhash
Chandra Yadav and another30, this Court was considering
the validity of Rule 5C of the Cantonment Funds Servants
Rules, 1937. It was contended that it was contrary to
Section 280(2)(c) of the Cantonment Act, 1924. The
argument was accepted. The argument of the appellant,
that in view of the provision in the Parent Act that
Rules, when published, would have effect as if they
were enacted in the Act, was repelled. We notice only
the following discussion:
“14. This contention is unsound. It is well
settled that rules framed under the provisions
of a statute form part of the statute. In other
words, rules have statutory force. But before
a rule can have the effect of a statutory
provision, two conditions must be fulfilled,
namely, (1) it must conform to the provisions
of the statute under which it is framed; and
(2) it must also come within the scope and
purview of the rule-making power of the
30 (1988) 2 SCC 351
92
authority framing the rule. If either of these
two conditions is not fulfilled, the rule so
framed would be void. The position remains the
same even though sub-section (2) of Section 281
of the Act has specifically provided that after
the rules are framed and published they shall
have effect as if enacted in the Act.”
53. In Kunj Behari Lal Butail and others v. State of
H.P. and others31, the Parent Act conferred power on
the Delegate from the Government, to make Rules for
carrying out the purpose of the Act, a familiar
legislative device. The contention taken was that the
Rule in question revealed the Delegate surpassing its
authority. We notice the following discussion:
“8. … Tea estates are excluded from the
provisions of the Act by Section 5. “Tea
estate” is defined in the interpretation
clause of the Act to mean an area under tea
plantation and includes within the definition
“such other area necessary for purposes
subservient to a tea plantation as may be
prescribed”. Rule 3 defines what areas shall
be treated as subservient to a tea plantation.
The amendment made vide notification dated 4-
4-1986 places an embargo on the right to
transfer such subservient land though exempted
from the operation of the Act. Clearly the
impugned proviso is beyond the rule-making
power of the State Government as conferred by
the Act. It is well settled that the
legislature cannot delegate its essential
legislative functions which consist in the
31 (2000) 3 SCC 40
93
determination or choosing of the legislative
policy and of formally enacting that policy
into a binding rule of conduct. What is
permitted is the delegation of ancillary or
subordinate legislative functions, or, what is
fictionally called, a power to fill up the
details. [See: Principles of Statutory
Interpretation, Justice G.P. Singh, (7th Edn.,
1999, at pp. 689-90).]
9. In Supreme Court Employees' Welfare
Assn. v. Union of India [(1989) 4 SCC 187 :
1989 SCC (L&S) 569 : AIR 1990 SC 334] this
Court has held:
“(A) delegated legislation or a subordinate
legislation must conform exactly to the power
granted.”
(SCC p. 222, para 62)
“Rules, whether made under the Constitution or
a statute, must be intra vires the parent law
under which power has been delegated.”
10. In General Officer Commanding-inChief v. Dr Subhash Chandra Yadav [(1988) 2
SCC 351 : 1988 SCC (L&S) 542 : (1988) 7 ATC
296 : AIR 1988 SC 876] it has been held: (SCC
p. 357, para 14)
“[B]efore a rule can have the effect of a
statutory provision, two conditions must be
fulfilled, namely, (1) it must conform to the
provisions of the statute under which it is
framed; and (2) it must also come within the
scope and purview of the rule-making power of
the authority framing the rule. If either of
these two conditions is not fulfilled, the rule
so framed would be void.”
94
54. Finally, we may notice Global Energy Ltd. and
another v. Central Electricity Regulatory Commission32.
This Court laid down as follows:
“25. It is now a well-settled principle of law
that the rule-making power “for carrying out
the purpose of the Act” is a general
delegation. Such a general delegation may not
be held to be laying down any guidelines. Thus,
by reason of such a provision alone, the
regulation-making power cannot be exercised so
as to bring into existence substantive rights
or obligations or disabilities which are not
contemplated in terms of the provisions of the
said Act.
26. We may, in this connection refer to a
decision of this Court in Kunj Behari Lal
Butail v. State of H.P. [(2000) 3 SCC 40]
wherein a three-Judge Bench of this Court held
as under: (SCC p. 47, para 14)
“14. We are also of the opinion that a
delegated power to legislate by making rules
‘for carrying out the purposes of the Act’ is
a general delegation without laying down any
guidelines; it cannot be so exercised as to
bring into existence substantive rights or
obligations or disabilities not contemplated
by the provisions of the Act itself.”
[See also State of Kerala v. Unni [(2007) 2
SCC 365] (SCC paras 32 to 37) and A.P.
Electricity Regulatory Commission v. R.V.K.
Energy (P) Ltd. [(2008) 17 SCC 769 : (2008) 9
Scale 529] ]
32 (2009) 15 SCC 570
95
55. The case law is relied upon to contend that the
impugned provisions, in the cases before us, purport to
achieve, what is not contemplated by the Act. In other
words, the Act does not contemplate the execution of
the gift deed. It becomes impermissible for the
Delegate of the Law Giver to make subordinate
legislation to provide so. We may only finally notice
the recent Judgment of this Court in Indian Young
Lawyers Association and others (Sabarimala Temple-In
Re.) v. State of Kerala and others33, where this Court
has reiterated the aforesaid principles. (See
paragraphs 137 to 140 and paragraph 373).
THE IMPACT OF SECTIONS 36 AND 37
56. The appellants/petitioner would argue that
Sections 36 and 37 contemplate acquisition of the lands
which are reserved. This means that there cannot be a
gift deed, as contemplated in the impugned
Rules/Regulations.
33 (2019) 11 SCC 1
96
57. We are afraid that though at first blush, the
argument may appear to be attractive, it cannot pass
muster on a deeper scrutiny. What Section 36 provides
is, for power to acquire land, under the Land
Acquisition Act. It goes on to provide that any land
required, reserved or designated in a regional plan,
master plan, detailed development plan, is deemed to
be land needed for a public purpose under the Land
Acquisition Act. What is more, such land can be
acquired under the said law, as modified in the Act.
It is thereafter that Section 37 contemplates that upon
publication of the notice in a Government Gazette of
the preparation of the plan that any land is required,
reserved or designated in such plan, the appropriate
Planning Authority, which includes, no doubt, the CMDA,
can do two things: (1) It may enter into an agreement
for the acquisition by purchase of any land. It is
apparently land, which is covered by Section 36, which
means land which is required, reserved or designated
in a master plan, inter alia. (2) The Planning
Authority may apply to the Government for acquiring
such land under the Land Acquisition Act. Section 37(2)
97
goes on to provide that if an application is received
and if the Government is satisfied that the land is
needed for the public purpose, the Government may make
a declaration in the manner provided in Section 6 of
the Land Acquisition Act 1894. It will be noticed that
what is contemplated under Sections 36 and 37 is that
it is in regard to any land, which is required, reserved
or designated in a plan that the question of acquiring
such a land arises. In other words, if the property is
needed under the plan and it is shown as required,
reserved or designated, as such, in the plan, then, it
is open to the Authority acting in coordination with
the Government to acquire such land so that the lofty
goal of planned and orderly development, contemplated
in the plan, is achieved. In this connection, it is
relevant to notice that Section 37 kicks in immediately
upon the publication of a notice for the preparation
of the plan. The notice is published under Section 26
or Section 27. Such notice is published after the
consent of the Government is received under Section 25.
It is next relevant to notice Section 38. Section 38
allows the period of three years from the date of
98
publication of the notice under Section 26 or Section
27 for the Government to publish the declaration
contemplated under Section 37, which, no doubt, amounts
to a declaration under Section 6 of the Land
Acquisition Act. Section 38 provides that if the
declaration is not made under Section 37 of the Act,
the land shall be deemed to be released from such
reservation, allotment or designation. The time limit
of three years, not being observed for acquiring the
land by way of purchase, also has the same result,
viz., the land, which in the plan, is shown as reserved,
allotted or designated, shall be freed from such
reservation, allotment or designation.
58. We are, in these cases, dealing with the
reservation of land by a person, who applies for
development of the land and, more specifically, for the
purpose of group development. The person, who applies,
becomes obliged under Rule 19(b) to reserve 10 per cent
of his land excluding roads, for communal and
recreational purposes. This is a reservation to be made
by a person applying for planning permission on the
basis of the extent of the layout. It is, no doubt,
99
premised on the land being in excess of a certain
threshold becoming subject matter of the planning
permission. The land so reserved is to be freed from
any construction by the owner/promoter/developer. The
land for communal and recreational purposes, is to be
restricted at ground level in a shape and location to
be specified by the CMDA (See Clause (3) of the
Explanation in Rules.). Therefore, the exact land to
be reserved under the impugned Rule, will vary from
case to case. It is not to be confused with the areas
required, reserved or designated in the plan. In fact,
in Annexure XX, which is the subject matter of the 2008
Regulations, the specific requirement in regard to the
place where the OSR is to be located is indicated as
the place where the property abuts a public road.
59. From the Preamble to the DCR, it would appear that
the first master plan was prepared in 1975 for the
Chennai Metropolitan Area and the Government approved
it on 04.12.1976. As found by V. Ramasubramanium, J.
in the Judgment, which we have elaborately referred to,
the DCR came to be issued along with the first master
plan. Thereafter, as noticed by him, to deal with group
100
development or flats, the issue was taken up by the
CMDA by letter dated 22.03.1981, Government issued GoMS
dated 08.10.1982. The learned Judge has found that the
Government exercised power under Section 32 of the Act.
What we are indicating is that the reservation of the
land for communal or recreational purposes in
individual cases, on the basis of applications made by
persons, is not to be conflated with the land which is
declared as required, reserved or designated in the
master plan, inter alia, which latter categories alone
are the subject matter of Sections 36 and 37 of the
Act.
IS THE IMPUGNED RULE/REGULATION BAD FOR
THE REASON THAT IT IS CONTRARY TO THE
MANDATE OF SECTION 39 OF THE ACT?
60. Section 39 of the Act, reads as follows:
“39. Right to compensation. - (1) Any person
whose property is injuriously affected by
virtue of any of the provisions contained in
any regional plan, master plan, detailed
development plan or a new town development plan
made under this Act shall, if he prefers a
claim for the purpose to the Tribunal with such
particulars and within such period as may be
prescribed, be entitled to obtain compensation
101
in respect thereof as determined by the
Tribunal:
Provided that property shall not be deemed to
be injuriously affected by reason of any of the
provisions inserted in any development plan
which impose any condition or restriction in
regard to any of the matters specified in
clause (f) of sub-section (2) of section 15,
or in clauses (k) and (l) of sub-section (2)
of section 17 or in clauses (m) and (n) of subsection (1) of section 20, as the case may be.
(2) If, at any time after the day on which any
regional plan, master plan, detailed
development plan, or a new town development
plan has come into force, such plan is varied,
or revoked, any person who has incurred any
expenditure for the purpose of complying with
such plan, shall, if he prefers a claim for
the purpose to the Tribunal with such
particulars and within such time as may be
prescribed, be entitled to obtain compensation
in respect thereof as determined by the
Tribunal, if by reason only of the variation
or revocation of such plan, such expenditure
has ceased to be in any way beneficial to him.”
61. What Section 39 contemplates is the following:
A person must be injuriously affected on account
of any of the provisions contained in a regional plan,
master plan, detailed development plan or a new town
development plan, under the Act. Should this occur, the
affected party becomes entitled to move the Tribunal
and seek compensation, which is to be determined by the
102
Tribunal. The proviso to Section 39(1), however,
declares that property shall not be deemed to be
injuriously affected on account of any development
plan, which may impose certain conditions, which are
specified in Section 15(2)(f), Section 17(2)(k) and (l)
or in Section 20(1)(m) and (n).
62. ‘Development plan’ is defined in Section 2(15) as
follows:
“(15) “development plan” means a plan for the
development or re-development or improvement
of the area within the jurisdiction of a
planning authority and includes a regional
plan, master plan, detailed development plan
and a new town development plan prepared under
the Act.”
63. Therefore, a development plan would embrace a
master plan. The effect of the proviso is that, in
respect of the matters contained in the proviso, the
law declares that there would not be a claim for
compensation on the basis that the property of a person
is injuriously affected as a result of the contents of
the development plan in relation to matters specified
in the proviso. The word ‘injuriously affected’ would
103
apparently mean that a person has land, which is
adversely affected as a result of the coming into
operation of the development plan. Section 15(2)(f)
deals with demarcation of objects and buildings of
archaeological or historical interests or of natural
beauty or actually used for religious purposes or as
regarded by the public with veneration. Similarly,
Section 17(2)(k) deals with control of architectural
features, elevation and frontage of buildings and
structures. Section 17(2)(l), which is also referred
to in the proviso, deals with matters relating to zonal
regulations, location, the height, the number of
storeys, size of buildings and other structures, the
size of the yards and other open spaces and the use of
buildings, structures and land. If anyone is otherwise
injuriously affected as a result of any of these
aspects provided for in a master plan under Section 17,
he cannot make a complaint of it under Section 39 and
claim compensation for it. The master plan provides for
zones, nine in number. One of the zones is open space
zone. Open space requirements are separately stipulated
in respect of other zones. Similarly, Section 20, which
104
deals with the contents of the detailed development
plan, in sub-Section (1)(m), deals essentially with
buildings of archaeological and historical interests,
inter alia. Section 20(1)(n) of the Act reads as
follows:
“20(1)(n) the imposition of conditions and
restrictions in regard to the character,
density, architectural features and height of
buildings, the building or control lines for
roads, railway lines and power supply lines and
the purposes to which buildings or specified
areas may or may not be appropriated and the
provision and maintenance of sufficient open
spaces about buildings;”
64. A perusal of Section 39 would clearly reveal that
a right to compensation is conferred on any person
whose property is ‘injuriously affected’ by any of the
provisions contained in the master plan. A person
seeking to develop his land and if he falls within the
ambit of rule/regulation in question cannot be
described as a person whose property is injuriously
affected by the provisions of the master plan inter
alia. The very language used in Section 39 appears to
be incongruous with the raising of any such claim. It
is not as if the parties have in this case raised any
105
such claim. The contention taken in the case of M/s.
Keyaram Hotels is that Section 39 provides for
compensation to persons who are affected in the manner
provided in the said provision. The provision actually
deals with cases of a person having property, who, with
the making of a master plan, inter alia, becomes
injuriously affected. The words ‘injuriously affected’
would bear meaning if expounded with reference to a
person who has a property and that property becomes
injuriously affected by virtue of the provision of any
master plan. Take for instance, the land of a person
is found to fall in a zone which is earmarked in the
primary residential use zone. The provision in the DCR
which forms part of the plan inter alia provides that
all uses not specifically permitted under sub-rule (a)
and (b) will stand prohibited in the zone. The proviso
is only to be understood as qualifying the ambit of the
main provision which itself must be understood has
application in cases where a person is injuriously
affected by the provision of a master plan inter alia.
65. We are reinforced in our view that the contention
of the appellants is misplaced with reference to the
106
concept of ‘injuriously affected’ finding expression
in Section 39, having regard to the decision by this
Court in Prakash Amichand Shah v. State of Gujarat34.
This was also a case relating to town planning. It
arose under the Bombay Town Planning Act. We may only
refer to paragraph 10 which reads as follows:
“10. Section 69 states that the owner of any
property or right which is injuriously affected
by the making of a town planning scheme shall
be entitled to obtain compensation from the
local authority or from any person benefited
or partly from the local authority and partly
from such person as the Town Planning Officer
may in each case determine. It seems obvious
that the property or right which is injuriously
affected by the making of a town planning
scheme is a property or right other than that
acquired for the purposes of the scheme. The
property or right affected remains with the
owner who is entitled to compensation for such
injurious affection. When under the Act a plot
of land is taken for the purposes of a town
planning scheme, it cannot be suggested that
that land itself is injuriously affected; such
a view is unsupportable both as a matter of
language and having regard to the scheme of the
Act. On behalf of the appellant it was urged
that clause (xiii) would cover the case of the
appellant if only we read a few words in that
clause and that we should do so to avoid
injustice being done to the appellant and the
owners of land similarly situated. That we are
afraid is not possible. We find no compelling
reason for restructuring the clause, and taking
acquisition of land to mean “injurious
34 (1981) 3 SCC 508
107
affection” of the land acquired would be
inconsistent with the entire scheme of the Act.
We may refer to clause “fourthly” of Section
23(1) of the Land Acquisition Act, 1894 which
requires the court to take into consideration
in determining the amount of compensation to
be awarded for land acquired under that Act,
the damage sustained by the “person interested”
“by reason of the acquisition injuriously
affecting his other property”. The expression
“person interested” as defined in Section 3 of
the Land Acquisition Act means all persons
calming an interest in compensation to be made
on account of the acquisition of land under
that Act. It is made clear in clause “fourthly”
that the damage is for injurious affection of
some property other than the land acquired. The
sense in which the expression “injurious
affection” is used in Section 23(1) of the Land
Acquisition Act is the generally accepted
meaning of that expression and we find nothing
in the Act concerned in this case that suggests
that it should be construed differently.”
66. The case of a person developing land being
subjected to the requirement of leaving 10 percent of
the property in a situation where more than nearly 2
and a half acres is being developed in an urban
metropolis as space for communal and recreational
purposes cannot be said to be a person ‘injuriously
affected’ within the meaning of Section 39.
108
THE IMPACT OF SECTIONS 48 TO 55
67. The contention is taken that Sections 48 and 49 do
not authorise or enable deprivation of a person’s
property sought to be developed free of cost. Equally,
it is contended that Sections 52 to 54 obligate the
state to acquire lands even if permission for
development is rejected or if any of the conditions for
any permission is objected or even if any modifications
of already given permission is not acceptable to the
owner. It is also contended that Sections 52 to 54
patently provide for compensation. Therefore, the
impugned rule which provides for a compelled gift
involving transfer of right to property free of cost
is ultra vires. It is the further contention that the
legislature took extraordinary care to ensure that a
landowner is not affected or injured even slightly
because of the planning law. The exceptions from
obligation to pay compensation are provided in Sections
17(2)(k) and (l) which relate to the use of land and
do not provide for reserving any land for public
purpose.
109
68. Section 47 of the Act comes under Chapter VI which
deals with control of development and use of land. It
declares that after the coming into operation of any
development plan in any area, any person, other than
the government or local authority, cannot use or cause
to be used any land otherwise in accordance with the
development plan. This would mean that once a
development plan which includes a master plan comes
into operation which happens on the approval of the
government being published under Section 30 of the Act
in the Gazette, Development activities must be carried
on only in accordance with the terms of the master
plan. Section 48 is intended to place restrictions on
buildings and land when a notice in the Gazette is
published under Section 26, inter alia. With the
publication of the notice which is a prelude to the
coming into operation of the plan under Section 30,
Section 48 prohibits the erection of any building or
other work or other excavation as enumerated therein
except with a written permission of the planning
authority and subject to such conditions. Section 49
provides for application for such permission when
110
notice of preparation of a master plan, inter alia, is
published under Section 26 of the Act inviting the
restrictions contemplated in Section 48. It is dealing
with such a situation, namely, when the master plan,
inter alia, has not come into operation and only a
notice is published under Section 26, inter alia, that
Section 49(2) provides for three matters which are to
guide the planning authority in deciding whether
permission should be granted or not. They are as
follows: -
i. The purpose.
ii. The suitability of the place for such purpose.
iii. The future development and maintenance of the
planning area.
69. Section 50 provides that the permission granted
under Section 49 is to remain in force for a period of
three years from the date of permission. It can be
extended but subject to a maximum period of three
years. Section 52 provides for an obligation to acquire
land or building. It operates in the following
circumstances. A land may be required or reserved or
designated in any development plan which includes
111
master plan. A person must be interested in the land
or building which is so required, reserved or
designated in such plan. He must have made an
application seeking permission. The application must
have been either refused or granted, subject to
conditions. For the section to operate the following
further conditions must exist. The refusal to grant
permission should result in the land or building
becoming incapable of reasonably beneficial use in the
condition in which the land is. This means that as a
result of the land or building being required, reserved
or designated in the plan, the person interested in the
land or building is unable to use the land for which
he could have used, but for the requirement,
reservation or designation in the plan, and it has
resulted in the rejection of his application for
permission to develop the property. Then the law has
given the person so aggrieved to serve a notice
described as the ‘acquisition notice’ calling upon the
government to acquire his interest in the land or
building. The same would be the position if permission
is granted but subject to the conditions which render
112
the land incapable of beneficial use. Section 53 deals
with refusal of permission or grant of permission
subject to conditions in certain other cases. In fact,
the proviso in Section 53 declares that no compensation
can be claimed under the main provision if the refusal
or grant of permission subject to conditions is based
on any provision of any development plan. Section 54
deals with cases of permission which is granted for any
development under the Act being revoked or modified.
Section 54(2) contemplates compensation for the
expenditure which is incurred for carrying out the
development based on the grant of permission which was
rendered abortive by the revocation. Section 55
declares that nothing in the Act confers any right to
obtain compensation in respect of development made by
a person after a notice in the Gazette is published
under Section 26, inter alia, without obtaining the
permission as required under Section 49. Sub-section 2
of Section 55 reads as follows: -
“(2). Whether any property is alleged to be
injuriously affected by reason of any of the
provisions contained in any development plan,
no compensation shall be paid in respect
thereof, if or in so far as the provisions are
113
such as would have been enforceable without any
compensation under any law, rule or regulation
or bye-law at the time in force.”
70. We are unable to find 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
and the arguments suggestive of the same are repelled.
71. Even though the appellant’s (M/s. Keyaram Hotels
Pvt. Ltd.) attempt to invite us to pronounce on the
validity of the impugned rule on the score that it
contravened the provisions of the Tamil Nadu Apartment
Ownership Act, 1994 which got presidential assent on
06.04.1995 and came to be notified on 24.04.1995, we
do not think that the appellant should be permitted to
test the validity of the impugned rule on a ground
which was not raised before the High Court. It is true
that the gift deed was executed on 22.05.1996. But this
was not a ground which was urged before the court and
we do not intend to explore the contention in this
proceeding.
114
72. We have found that the impugned rule/ regulation
cannot be said to be ultra vires the parent act. This
is after finding that the rule has statutory force.
THE RIGHTS REGIME
73. It is necessary to deal with a right, a person has,
as an owner of a property. In Salmond on Jurisprudence
12th Edition, we note the following:
“Secondly, the owner normally has a right to
use and enjoy the thing owned: right to manage
it, i.e., the right to decide how it shall be
used; and the right to the income from it.
Whereas the right to possess is a right in the
strict sense, these rights are in fact
liberties: the owner has a liberty to use the
thing, i.e., he is under no duty not to use
it, in contrast with others who are under a
duty not to use or interfere with it.”
74. We may however notice the following:
“This does not mean, however, that an owner
whose property is unencumbered has completely
unlimited rights. To describe someone as an
absolute owner of property is to say two
things; it is to assert that his title to the
property is indisputable, and that he has all
the rights of ownership allowed by the legal
system in question. We have seen that the
rights of ownership may be limited by the
adverse dominant rights of an encumbrancer or
by the rights of the possessor (who is in fact
one very special type of an encumbrancer). They
115
may also be limited by special provisions of
law such as Town & Country planning law, which
regulates for social purposes the use which an
owner may make office land. But in addition to
being restricted by such specific provisions
of public law, and owner’s rights are
restricted by a whole variety of provisions of
the ordinary law, according to which various
harmful and dangerous types of conduct qualify
as criminal or tortious; the fact that I am
the owner of a knife will not entitle me to
use it to kill Smith. We may say that an owner
is free to use and dispose of his property as
he pleases, except in so far as he does not
infringe his duties to specific encumbrancers,
his duties under special regulations
concerning the use of property (f) and his
general duties under the general law of the
land (f).”
(Emphasis supplied)
75. In T. Vijayalakshmi v. Town Planning Member,
35 this
Court while dealing with a case arising under the Town
Planning Law had this to say:
“13. Town Planning legislations are regulatory
in nature. The right to property of a person
would include a right to construct a building.
Such a right, however, can be restricted by
reason of a legislation.
15. The law in this behalf is explicit. Right
of a person to construct residential houses in
the residential area is a valuable right. The
said right can only be regulated in terms of a
regulatory statute but unless there exists a
clear provision the same cannot be taken away.
35 (2006) 8 SCC 502
116
It is also a trite law that the building plans
are required to be dealt with in terms of the
existing law. Determination of such a question
cannot be postponed far less taken away.
Doctrine of legitimate expectation in a case
of this nature would have a role to play.”
(Emphasis supplied)
76. In Indore Vikas Pradhikaran v. Pure Industrial Coke
& Chemicals Ltd.,
36 this Court was again dealing with a
case under the town Planning Law. The following
statement requires to be noticed:
“45. Town and country planning involving land
development of the cities which are sought to
be achieved through the process of land use,
zoning plan and regulating building activities
must receive due attention of all concerned.
We are furthermore not oblivious of the fact
that such planning involving highly complex
cities depends upon scientific research, study
and experience and, thus, deserves due
reverence.
46. Where, however, a scheme comes into force,
although it may cause hardship to the
individual owners as they may be prevented from
making the most profitable use of their rights
over property, having regard to the drastic
consequences envisaged thereunder, the statute
should be considered in such a manner as a
result whereof greater hardship is not caused
to the citizens than actually contemplated
thereby. Whereas an attempt should be made to
prevent unplanned and haphazard development
but the same would not mean that the court
36 (2007) 8 SCC 705
117
would close its eyes to the blatant
illegalities committed by the State and/or the
statutory authorities in implementation
thereof. Implementation of such land
development as also building laws should be in
consonance with public welfare and
convenience. In United States of America zoning
ordinances are enacted pursuant to the police
power delegated by the State. Although in India
the source of such power is not police power
but if a zoning classification imposes
unreasonable restrictions, it cannot be
sustained. The public authority may have
general considerations, safety or general
welfare in mind, but the same would become
irrelevant, as thereby statutory rights of a
party cannot be taken away. The courts must
make an endeavour to strike a balance between
public interest on the one hand and protection
of a constitutional right to hold property, on
the other.
47. For the aforementioned purpose, an
endeavour should be made to find out as to
whether the statute takes care of public
interest in the matter vis-à-vis the private
interest, on the one hand, and the effect of
lapse and/or positive inaction on the part of
the State and other planning authorities, on
the other.
52. The courts should, therefore, strive to
find a balance of the competing interests.
Human rights issue
53. The right to property is now considered to
be not only a constitutional right but also a
human right.
Interpretation of the Act
57. The Act being regulatory in nature as by
reason thereof the right of an owner of
118
property to use and develop stands restricted,
requires strict construction. An owner of land
ordinarily would be entitled to use or develop
the same for any purpose unless there exists
certain regulation in a statute or statutory
rules. Regulations contained in such statute
must be interpreted in such a manner so as to
least interfere with the right to property of
the owner of such land. Restrictions are made
in larger public interest. Such restrictions,
indisputably must be reasonable ones.
(See Balram Kumawat v. Union of India [(2003)
7 SCC 628] ; Krishi Utpadan Mandi
Samiti v. Pilibhit Pantnagar Beej Ltd. [(2004)
1 SCC 391] and Union of India v. West Coast
Paper Mills Ltd. [(2004) 2 SCC 747] ) The
statutory scheme contemplates that a person and
owner of land should not ordinarily be deprived
from the user thereof by way of reservation or
designation.
58. Expropriatory legislation, as is wellknown, must be given a strict construction.
(Emphasis supplied)
77. An owner of land may not have an absolute and
unqualified right which is the idea which not
unnaturally comes to mind when the idea of ownership
is under consideration. As we have already noted, the
right is capable of being regulated and restricted
under a law relating to Town Planning. Proceeding on
the basis that DCR is law, the question would arise
under the said law whether a person can use his land
as he chooses. Zoning requirements have been put in
119
place. Primarily in a residential zone, can anyone put
up an industrial establishment if the said use is
prohibited? The answer is quite clearly in the
negative. Can anyone construct a building in excess of
the stipulated requirement as to the height of the
building or contravening restrictions such as setback,
floor space area etc.? The answer cannot be in the
affirmative.
78. At this juncture, we may also notice the scheme of
the Constitution as regards property rights. When
Constitution was originally enacted the right to
acquire, hold and dispose of property was guaranteed
as a fundamental right to citizens of India vide
Article 19(1)(f). This was, however, made subject to
reasonable restrictions which could no doubt be imposed
by a law under Article 19(5). That apart, Article 31
originally provided as follows:
“31. (1) No person shall be deprived of his
property save by authority of law.
(2) No property, movable or immovable,
including any interest in, or in any company
owning, any commercial of industrial
undertaking shall be taken possession of or
acquired for public purposes under any law
authorising the taking of such possession or
such acquisition, unless the law provides for
120
compensation for the property taken possession
of or acquired and either fixes the amount of
the compensation, or specifies the principles
on which, and the manner in which, the
compensation is to be determined and given.
(3) No such law as is referred to in clause
(2) made by the legislature of a State shall
have effect unless such law, having been
reserved for the consideration of the
President, has received his assent.
(4) If any Bill pending at the commencement of
this Constitution in the legislature of a State
has, after it has, been passed by such
Legislature, been reserved for the
consideration of the President and has received
his assent, then, notwithstanding anything in
this Constitution, the law so assented to shall
not be called in question in any court on the
ground that it contravenes the provisions of
clause (2).
(5) Nothing in clause (2) shall affect—
(a) the provisions of any existing law other
than a law to which the provisions of clause
(6) apply, or
(b) the provisions of any law which the State
may hereafter make—
(i) for the purpose of imposing or levying any
tax or penalty, or
(ii) for the promotion of public health or the
prevention of danger to life or property, or
(iii) in pursuance of any agreement entered
into between the Government of the Dominion of
India or the Government of India and the
Government of any other country, or otherwise,
with respect to property declared by law to be
evacuee property.
(6) Any law of the State enacted not more than
eighteen months before the commencement of this
Constitution may within three months from such
commencement be submitted to the President for
his certification; and thereupon, if the
President by public notification so certifies,
121
it shall not be called in question in any court
on the ground that it contravenes the
provisions of clause (2) of this article or has
contravened the provisions of sub-section (2)
of Section 209 of the Government of India Act,
1935.”
79. This Article 31 came to be amended by Constitution
(Fourth Amendment) Act and after the amendment, the
amended provision read as follows:
The Constitution (Fourth Amendment) Act
amended clause (2) and inserted a new clause
(2-A). The amended clause (2) and the new
clause (2-A) are in these terms:
“31. (2) No property shall be compulsorily
acquired or requisitioned save for a public
purpose and save by authority of a law which
provides for compensation for the property so
acquired or requisitioned and either fixes the
amount of the compensation or specifies the
principles on which, and the manner in which,
the compensation is to be determined and given;
and no such law shall be called in question in
any court on the ground that the compensation
provided by that law is not adequate.
(2-A). Where a law does not provide for the
transfer of the ownership or right to
possession of any property to the State or to
a corporation owned or controlled by the State,
it shall not be deemed to provide for the
compulsory acquisition or requisitioning of
property, notwithstanding that it deprives any
person of his property.”
122
80. At this juncture again, we must notice the aspect
of Police power, in contrast with the Doctrine of
Eminent Domain.
81. In the judgment of this court in Deputy
Commissioner and Collector v. Durga Nath Sarma37, this
Court has noticed the amendment of Article 31 as
noticed hereinbefore and has expounded the law in the
following paragraph:
“10. Our attention has been drawn to certain
opinions expressed in our earlier decisions that
Article 31(2) occupies the field of eminent
domain and Article 31(5)(b)(ii) contains a
saving clause with regard to the police powers
of the State. The concepts of eminent domain and
police powers are borrowed from American law.
The constitutional guarantee of the due process
clause in the United States Constitution
requires that no private property shall be taken
for public use without just compensation. In the
exercise of its police power, the State may pass
regulations designed to ensure public health,
public morals, public safety as also public
convenience or general prosperity, see Chicago,
Burlington & Quincy Railway company v. People of
the State of Illinois [200 US 561 : 50 LEd 596,
609] . In the exercise of its eminent domain
power, the State may take any property from the
owner and may appropriate it for public
purposes. The police and eminent domain powers
are essentially distinct. Under the police power
many restrictions may be imposed and the
property may even be destroyed without
compensation being given, whereas under the
37 AIR 1968 SC 394
123
power of eminent domain, the property may be
appropriated to public use on payment of
compensation only. The distinction between the
two powers is brought out clearly in the
following passage in American Jurisprudence, 2nd
Edn., Vol. 16, Article 301 p. 592:
“The state, under the police power, cannot
in any manner actually take and appropriate
property for public use without compensation,
for such action is repugnant to the
constitutional guaranty that where private
property is appropriated for public use, the
owner shall receive reasonable compensation.
Thus, there is a vital difference, which is
recognised by the authorities, between an Act
passed with exclusive reference to the police
power of the state, without any purpose to take
and apply property to public uses, and an Act
which not only declares the existence of a
nuisance created by the condition of particular
property, but in addition, and as the best
means of accomplishing the end in view,
authorizes the same property to be appropriated
by the public.”
In Sweet v. Rechel [159 US 380 : 40 LEd 188]
the validity of an Act to enable the city of
Boston to abate a nuisance existing therein
and for the preservation of the public health
in the city by improving the drainage of the
territory was sustained on the ground that
the Act provided for payment of just
compensation. The Court pointed out that
private property the condition of which was
such as to endanger the public health could
not be legally taken by the Commonwealth and
appropriated to public use without reasonable
compensation to the owner. In Delaware L. &
W.R. Co. v. Morristown [276 US 182 : 72 LEd
523, 527] an Ordinance establishing a public
hack stand on private property without
payment of compensation was struck down on
the ground that assuming that the creation
of the public hack stand would be a proper
124
exercise of the police power it did not
follow that the due process clause would not
safeguard to the owner just compensation for
the use of the property. In United
States v. Caltex (Philippines) [344 US 149 :
97 LEd 157] the Court held that no
compensation was payable by the United States
for the destruction by its retreating army
of private property to prevent its falling
into enemy hands. But the Court recognised
that compensation would be payable for the
army's requisitioning of private property for
its subsequent use. The Court said that in
times of imminent peril such as when fire
threatened a whole community — the sovereign
could, with immunity, destroy the property
of a few that the property of many and the
lives of many more could be saved. Indeed,
it would be folly not to destroy some
building so that an entire town may be saved
from the conflagration, as will appear from
the following historic incident referred to
in Respublica v. Sparhawk [1 Dall 357, 363 :
1 LEd 174] :
“We find, indeed, a memorable instance of
folly recorded in the 3rd Vol. of Clarendon's
History, where it is mentioned, that the Lord
Mayor of London in 1666, when the city was
on fire, would not give directions for, or
consent to, the pulling down forty wooden
houses or to removing the furniture etc.
belonging to the lawyers of the temple, then
on the circuit, for fear he should be
answerable for a trespass; and in consequence
of this conduct, half that great city was
burnt.”
If Article 31(5)(b)(ii) is regarded as a saving
clause with regard to the police power of the
State, it is clear that under a law designed
to promote public health or to prevent danger
to life or property the State may in cases of
imminent peril destroy or impair the value of
private property without any obligation to pay
125
compensation, but it cannot arrogate to itself
the power to acquire and appropriate to its own
use private property without payment of
compensation.
82. We may also notice that in Tukaram Kana Joshi v.
MIDC38, while dealing with a case of acquisition of
land, this Court held as follows:
“11. …The appellants had asked repeatedly for
grant of the benefit of compensation. The State
must either comply with the procedure laid down
for acquisition, or requisition, or any other
permissible statutory mode. There is a
distinction, a true and concrete distinction,
between the principle of “eminent domain” and
“police power” of the State. Under certain
circumstances, the police power of the State
may be used temporarily, to take possession of
property but the present case clearly shows
that neither of the said powers have been
exercised. A question then arises with respect
to the authority or power under which the State
entered upon the land. It is evident that the
act of the State amounts to encroachment, in
exercise of “absolute power” which in common
parlance is also called abuse of power or use
of muscle power. To further clarify this
position, it must be noted that the authorities
have treated the landowner as a “subject” of
medieval India, but not as a “citizen” under
our Constitution.”
83. It has been followed in Bhimandas Ambwani (Dead)
through LRs v. Delhi Power Company Ltd.
39.
38 (2013) 1 SCC 353
39 (2013) 14 SCC 195
126
84. While on the issue relating to the aspect of
acquisition, a case arose under the Coffee Act in
Coffee Board, Karnataka, Bangalore v. Commissioner of
Commercial Taxes, Karnataka and others40 and the
question which arose was whether the coffee grower who
made a sale made compulsorily to the Coffee Board
amounted to sale or was it an acquisition. It is
apposite that we advert to the following paragraphs:
“28. Since all persons including the Coffee
Board are prohibited from purchasing/selling
coffee in law, there could be no sale or
purchase to attract the imposition of
sales/purchase tax it was urged. Even if there
was compulsion there would be a sale as was
the position in Vishnu Agencies [(1978) 2 SCR
433 : (1978) 1 SCC 520 : 1978 SCC (Tax) 31 :
AIR 1978 SC 449] . This Court therein approved
the minority opinion of Hidayatullah, J. in New
India Sugar Mills v. CST [New India Sugar
Mills Ltd. v. CST, AIR 1963 SC 1207 : 1963 Supp
(2) SCR 459 : (1963) 14 STC 316] . In the nature
of the transactions contemplated under the Act
mutual assent either express or implied is not
totally absent in this case in the transactions
under the Act. Coffee growers have a volition
or option, though minimal or nominal to enter
into the coffee growing trade. Coffee growing
was not compulsory. If anyone decides to grow
coffee or continue to grow coffee, he must
transact in terms of the regulation imposed for
40 (1988) 3 SCC 263,
127
the benefit of the coffee growing industry.
Section 25 of the Act provides the Board with
the right to reject coffee if it is not up to
the standard. Value to be paid as contemplated
by the Act is the price of the coffee. Fixation
of price is regulation but is a matter of
dealing between the parties. There is no time
fixed for delivery of coffee either to the
Board or the curer. These indicate
consensuality which is not totally absent in
the transaction.”
It was found that it was a sale which took place.
85. Article 31 stands omitted and Article 19(1)(f) also
stands deleted by way of the Forty-Fourth Amendment to
the Constitution which came into effect from
20.06.1979. It is by the very same amendment that
Article 300A was inserted in the Constitution. Article
300A is a resurrection of Article 31 (1). This Court
in the judgment in Jilubhai Nanbhai Khachar v. State
of Gujarat41 held as follows:
“34. The right of eminent domain is the right
of the sovereign State, through its regular
agencies, to reassert, either temporarily or
permanently, its dominion over any portion of
the soil of the State including private
property without its owner's consent on account
of public exigency and for the public good.
Eminent domain is the highest and most exact
41 1995 (suppl.) 1 SCC 596
128
idea of property remaining in the Government,
or in the aggregate body of the people in their
sovereign capacity. It gives the right to
resume possession of the property in the manner
directed by the Constitution and the laws of
the State, whenever the public interest
requires it. The term ‘expropriation’ is
practically synonymous with the term “eminent
domain”.
(Emphasis supplied)
This Court opined that the right to property is not
a basic feature of the Constitution [See paragraph 30].
We may also notice the following views: -
“48. The word ‘property’ used in Article 300-
A must be understood in the context in which
the sovereign power of eminent domain is
exercised by the State and property
expropriated. No abstract principles could be
laid. Each case must be considered in the light
of its own facts and setting. The phrase
“deprivation of the property of a person” must
equally be considered in the fact situation of
a case. Deprivation connotes different
concepts. Article 300-A gets attracted to an
acquisition or taking possession of private
property, by necessary implication for public
purpose, in accordance with the law made by
Parliament or a State Legislature, a rule or a
statutory order having force of law. It is
inherent in every sovereign State by exercising
its power of eminent domain to expropriate
private property without owner's consent.
Prima facie, State would be the judge to decide
whether a purpose is a public purpose. But it
is not the sole judge. This will be subject to
judicial review and it is the duty of the court
to determine whether a particular purpose is a
129
public purpose or not. Public interest has
always been considered to be an essential
ingredient of public purpose. But every public
purpose does not fall under Article 300-A nor
every exercise of eminent domain an acquisition
or taking possession under Article 300-A.
Generally speaking preservation of public
health or prevention of damage to life and
property are considered to be public purposes.
Yet deprivation of property for any such
purpose would not amount to acquisition or
possession taken under Article 300-A. It would
be by exercise of the police power of the
State. In other words, Article 300-A only
limits the powers of the State that no person
shall be deprived of his property save by
authority of law. There has to be no
deprivation without any sanction of law.
Deprivation by any other mode is not
acquisition or taking possession under Article
300-A. In other words, if there is no law,
there is no deprivation. Acquisition of mines,
minerals and quarries is deprivation under
Article 300-A.”
(Emphasis supplied)
86. A Constitution Bench has considered the aspects
arising out of the changes brought by the amendment to
the Constitution by the insertion of Article 300A in
the judgment of this Court in K.T. Plantation Private
Limited v. State of Karnataka42. We may advert to the
following views:
“178. The principles of eminent domain, as
such, are not seen incorporated in Article 300-
42 (2011) 9 SCC 1
130
A, as we see, in Article 30(1-A), as well as
in the second proviso to Article 31-A(1) though
we can infer those principles in Article 300-
A. The provision for payment of compensation
has been specifically incorporated in Article
30(1-A) as well as in the second proviso to
Article 31-A(1) for achieving specific
objectives. The Constitution (Forty-fourth
Amendment) Act, 1978 while omitting Article 31
brought in a substantive provision clause (1-
A) to Article 30. Resultantly, though no
individual or even educational institution
belonging to majority community shall have any
fundamental right to compensation in case of
compulsory acquisition of his property by the
State, an educational institution belonging to
a minority community shall have such
fundamental right to claim compensation in case
the State enacts a law providing for compulsory
acquisition of any property of an educational
institution established and administered by a
minority community. Further, the second
proviso to Article 31-A(1) prohibits the
legislature from making a law which does not
contain a provision for payment of compensation
at a rate not less than the market value which
follows that a law which does not contain such
provision shall be invalid and the acquisition
proceedings would be rendered void.
179. Looking at the history of the various
constitutional amendments, judicial
pronouncements and the Statement of Objects and
Reasons contained in the Forty-fourth
Amendment Bill which led to the Forty-fourth
Amendment Act we have no doubt that the
intention of Parliament was to do away with the
fundamental right to acquire, hold and dispose
of the property. But the question is whether
the principles of eminent domain are completely
obliterated when a person is deprived of his
property by the authority of law under Article
300-A of the Constitution.
131
Public purpose
180. Deprivation of property within the
meaning of Article 300-A, generally speaking,
must take place for public purpose or public
interest. The concept of eminent domain which
applies when a person is deprived of his
property postulates that the purpose must be
primarily public and not primarily of private
interest and merely incidentally beneficial to
the public. Any law, which deprives a person
of his private property for private interest,
will be unlawful and unfair and undermines the
rule of law and can be subjected to judicial
review. But the question as to whether the
purpose is primarily public or private, has to
be decided by the legislature, which of course
should be made known.
Compensation
182. We have found that the requirement of
public purpose is invariably the rule for
depriving a person of his property, violation
of which is amenable to judicial review. Let
us now examine whether the requirement of
payment of compensation is the rule after the
deletion of Article 31(2).
183. Payment of compensation amount is a
constitutional requirement under Article 30(1-
A) and under the second proviso to Article 31-
A(1), unlike Article 300-A. After the Fortyfourth Amendment Act, 1978, the constitutional
obligation to pay compensation to a person who
is deprived of his property primarily depends
upon the terms of the statute and the
legislative policy. Article 300-A, however,
does not prohibit the payment of just
compensation when a person is deprived of his
property, but the question is whether a person
is entitled to get compensation, as a matter
of right, in the absence of any stipulation in
the statute, depriving him of his property.
132
188. We find no apparent conflict with the
words used in List III Entry 42 so as to infer
that the payment of compensation is inbuilt or
inherent either in the words “acquisition and
requisitioning” under List III Entry 42. Right
to claim compensation, therefore, cannot be
read into the legislative List III Entry 42.
189. Requirement of public purpose, for
deprivation of a person of his property under
Article 300-A, is a precondition, but no
compensation or nil compensation or its
illusiveness has to be justified by the State
on judicially justiciable standards. Measures
designed to achieve greater social justice, may
call for lesser compensation and such a
limitation by itself will not make legislation
invalid or unconstitutional or confiscatory.
In other words, the right to claim compensation
or the obligation to pay, though not expressly
included in Article 300-A, it can be inferred
in that article and it is for the State to
justify its stand on justifiable grounds which
may depend upon the legislative policy, object
and purpose of the statute and host of other
factors.
190. Article 300-A would be equally violated
if the provisions of law authorising
deprivation of property have not been complied
with. While enacting Article 300-A Parliament
has only borrowed Article 31(1) (the “Rule of
Law” doctrine) and not Article 31(2) (which had
embodied the doctrine of eminent domain).
Article 300-A enables the State to put
restrictions on the right to property by law.
That law has to be reasonable. It must comply
with other provisions of the Constitution. The
limitation or restriction should not be
arbitrary or excessive or what is beyond what
is required in public interest. The limitation
133
or restriction must not be disproportionate to
the situation or excessive.
191. The legislation providing for deprivation
of property under Article 300-A must be “just,
fair and reasonable” as understood in terms of
Articles 14, 19(1)(g), 26(b), 301, etc. Thus
in each case, courts will have to examine the
scheme of the impugned Act, its object, purpose
as also the question whether payment of nil
compensation or nominal compensation would
make the impugned law unjust, unfair or
unreasonable in terms of other provisions of
the Constitution as indicated above.
192. At this stage, we may clarify that there
is a difference between “no” compensation and
“nil” compensation. A law seeking to acquire
private property for public purpose cannot say
that “no compensation shall be paid”. However,
there could be a law awarding “nil”
compensation in cases where the State
undertakes to discharge the liabilities
charged on the property under acquisition and
onus is on the Government to establish validity
of such law. In the latter case, the Court in
exercise of judicial review will test such a
law keeping in mind the above parameters.
209. Statutes are many which though deprive a
person of his property, have the protection of
Article 30(1-A), Articles 31-A, 31-B, 31-C and
hence are immune from challenge under Article
19 or Article 14. On deletion of Article
19(1)(f) the available grounds of challenge are
Article 14 [Ed.: It would seem that for
statutes not protected by Arts. 31-A, 31-B or
31-C, Art. 14 simpliciter is available as a
ground of challenge. For statutes protected by
Arts. 31-A, 31-B and 31-C, it would seem that
a challenge under Art. 14 would be maintainable
only when taken as a part of the basic
structure of the Constitution, as explained
134
in I.R. Coelho, (2007) 2 SCC 1.] , the basic
structure and the rule of law, apart from the
ground of legislative competence. In I.R.
Coelho case [(2007) 2 SCC 1] the basic
structure was defined in terms of fundamental
rights as reflected under Articles 14, 15, 19,
20, 21 and 32. In that case the Court held that
statutes mentioned in Schedule IX are immune
from challenge on the ground of violation of
fundamental rights, but if such laws violate
the basic structure, they no longer enjoy the
immunity offered by Schedule IX.”
(Emphasis supplied)
DOWN MEMORY LANE
PT. CHET RAM VASHIST (DEAD) BY LRS. V. MUNICIPAL
CORPORATION OF DELHI43
87. In the said case, the Municipal Corporation of
Delhi passed a Resolution that, building activity in
certain areas, be allowed, subject to the condition
that the open spaces for parks and schools was to be
transferred to the Corporation. This led to a civil
suit by the appellant, challenging the Resolution. This
Court found that Section 313 of the Delhi Municipal
Corporation Act, 1957, did not empower the Corporation
to claim any property in the manner done. It was further
43 (1995) 1 SCC 47
135
found that the Resolution was contrary to the language
used in Section 313 and violated a civil right, which
vests in every owner, to hold his land and transfer it
in accordance with law. The finding of the High Court
that condition was only one involving transfer of the
right of management, was not accepted. In fact, this
Court also held, inter alia, as follows:
“5. The power directing transfer of the land
has been exercised under Section 313 of the
Act. This section falls in Chapter XV which
deals with streets. The public streets are
dealt from Section 298 to Section 311 whereas
private streets are dealt from Section 312 to
Section 330. Section 312 obliges an owner of
any land utilising, selling, leasing out or
otherwise disposing of the land for the
construction of building to layout and make a
street or streets giving access to the plots
into which the land may be divided and connect
it with an existing or public street. Section
313 requires such owner to submit a layout plan
before utilising the land for any of the
purposes mentioned in Section 312 and send it
to the Commissioner with a layout plan showing
the particulars mentioned in clauses (a) to
(e). The reservation or allotment of any site
in the layout plan for any open space, park or
school is to be provided by clause (b) of
Section 313. Section 316 entitles the
Commissioner to declare a private street to be
a public street on the request of owners.
Section 317 prohibits a person from
constructing or projecting any structure which
will encroach upon, overhang or project into a
private street. In fact the entire cluster of
sections from 312 to 330 of which Section 313
136
is a part, deals with private streets only.
There is no provision in this chapter or any
other provision in the Act which provides that
any space reserved for any open space or park
shall vest in the Corporation. Even a private
street can be declared to be a public on the
request of owners of the building and then only
it vests in the Corporation. In absence of any
provision, therefore, in the Act the open space
left for school or park in a private colony
cannot vest in the Corporation. That is why in
England whenever a private colony is developed
or a private person leaves an open space or
park to be used for public purpose he is
required to issue what is termed as ‘Blight
Notice’ to the local body to get the land
transferred in its favour on payment of
compensation. Section 313 which empowers the
Commissioner to sanction a layout plan, does
not contemplate vesting of the land earmarked
for a public purpose to vest in the Corporation
or to be transferred to it. The requirement in
law of requiring an owner to reserve any site
for any street, open space, park, recreation
ground, school, market or any other public
purposes is not the same as to claim that the
open space or park so earmarked shall vest in
the Corporation or stand transferred to it.
Even a plain reading of sub-section (5)
indicates that the land which is subject-matter
of a layout plan cannot be dealt with by the
owner except in conformity with the order of
the Standing Committee. In other words the
section imposes a bar on exercise of power by
the owner in respect of land covered by the
layout plan. But it does not create any right
or interest of the Corporation in the land so
specified. The resolution of the Standing
Committee, therefore, that the area specified
in the layout plan for the park and school
shall vest in the Corporation free of cost, was
not in accordance with law.”
(Emphasis supplied)
137
88. Still further, the Court held as follows:
“6. Reserving any site for any street, open
space, park, school etc. in a layout plan is
normally a public purpose as it is inherent in
such reservation that it shall be used by the
public in general. The effect of such
reservation is that the owner ceases to be a
legal owner of the land in dispute and he holds
the land for the benefit of the society or the
public in general. It may result in creating
an obligation in nature of trust and may
preclude the owner from transferring or selling
his interest in it. It may be true as held by
the High Court that the interest which is left
in the owner is a residuary interest which may
be nothing more than a right to hold this land
in trust for the specific purpose specified by
the coloniser in the sanctioned layout plan.
But the question is, does it entitle the
Corporation to claim that the land so specified
should be transferred to the authority free of
cost. That is not made out from any provision
in the Act or on any principle of law. …”
(Emphasis supplied)
T. VIJAYALAKSHMI AND OTHERS V. TOWN
PLANNING MEMBER AND ANOTHER44
89. In this case, the appellants were the owners of
agricultural land, who had been permitted to use the
same for non-agricultural purposes in 2004. An
44 (2006) 8 SCC 502
138
application was filed for approval of a building plan.
This Court, inter alia, held as follows:
“15. The law in this behalf is explicit. Right
of a person to construct residential houses in
the residential area is a valuable right. The
said right can only be regulated in terms of a
regulatory statute but unless there exists a
clear provision the same cannot be taken away.
It is also a trite law that the building plans
are required to be dealt with in terms of the
existing law. Determination of such a question
cannot be postponed far less taken away.
Doctrine of legitimate expectation in a case
of this nature would have a role to play.
xxx xxx xxx
18. It is, thus, now well-settled law that an
application for grant of permission for
construction of a building is required to be
decided in accordance with law applicable on
the day on which such permission is granted.
However, a statutory authority must exercise
its jurisdiction within a reasonable time.
(See Kuldeep Singh v. Govt. of NCT of
Delhi [(2006) 5 SCC 702: (2006) 6 Scale 588].)”
PUNE MUNICIPAL CORPORATION AND
ANOTHER V. PROMOTERS AND BUILDERS
ASSOCIATION AND ANOTHER45
90. The matter arose under the Maharashtra Regional
Town Planning Act, 1966 (MRTP). The Development Control
Rules were directed to be amended by the Government
45 (2004) 10 SCC 796
139
under Section 37 of the said law. The case of the
respondents before this Court was that the matter
travelled beyond the powers of the State Government
under Section 37(2) of the Act. We notice the
following:
“5. Making of DCR or amendments thereof are
legislative functions. Therefore, Section 37
has to be viewed as repository of legislative
powers for effecting amendments to DCR. That
legislative power of amending DCR is delegated
to the State Government. As we have already
pointed out, the true interpretation of Section
37(2) permits the State Government to make
necessary modifications or put conditions
while granting sanction. In Section 37(2), the
legislature has not intended to provide for a
public hearing before according sanction. The
procedure for making such amendment is provided
in Section 37. Delegated legislation cannot be
questioned for violating the principles of
natural justice in its making except when the
statute itself provides for that requirement.
Where the legislature has not chosen to provide
for any notice or hearing, no one can insist
upon it and it is not permissible to read
natural justice into such legislative
activity. Moreover, a provision for “such
inquiry as it may consider necessary” by a
subordinate legislating body is generally an
enabling provision to facilitate the
subordinate legislating body to obtain
relevant information from any source and it is
not intended to vest any right in anybody.
(Union of India v. Cynamide India Ltd. [(1987)
2 SCC 720] , SCC paras 5 and 27. See
generally H.S.S.K. Niyami v. Union of
India [(1990) 4 SCC 516] and Canara
Bank v. Debasis Das [(2003) 4 SCC 557 : 2003
140
SCC (L&S) 507] .) While exercising legislative
functions, unless unreasonableness or
arbitrariness is pointed out, it is not open
for the Court to interfere. (See
generally ONGC v. Assn. of Natural Gas
Consuming Industries of Gujarat [1990 Supp SCC
397] .) Therefore, the view adopted by the High
Court does not appear to be correct.
6. DCR are framed under Section 158 of the Act.
Rules framed under the provisions of a statute
form part of the statute. (See General Officer
Commanding-in-Chief v. Dr. Subhash Chandra
Yadav [(1988) 2 SCC 351 : 1988 SCC (L&S) 542 :
(1988) 7 ATC 296] , SCC para 14.) In other
words, DCR have statutory force. It is also a
settled position of law that there could be no
“promissory estoppel” against a statute. (A.P.
Pollution Control Board II v. Prof. M.V.
Nayudu [(2001) 2 SCC 62] , SCC para
69, STO v. Shree Durga Oil Mills [(1998) 1 SCC
572] , SCC paras 21 and 22 and Sharma
Transport v. Govt. of A.P. [(2002) 2 SCC 188]
, SCC paras 13 to 24.) Therefore, the High
Court again went wrong by invoking the
principle of “promissory estoppel” to allow the
petition filed by the respondents herein.”
TUKARAM KANA JOSHI AND OTHERS V.
MAHARASHTRA INDUSTRIAL DEVELOPMENT
CORPORATION AND OTHERS46
91. In the said case, the land of the appellants was
taken over by the agents of the State. Compensation,
46 (2013) 1 SCC 353
141
despite repeated requests, was not made available. This
Court held:
“11. There are authorities which state that
delay and laches extinguish the right to put
forth a claim. Most of these authorities
pertain to service jurisprudence, grant of
compensation for a wrong done to them decades
ago, recovery of statutory dues, claim for
educational facilities and other categories of
similar cases, etc. Though, it is true that
there are a few authorities that lay down that
delay and laches debar a citizen from seeking
remedy, even if his fundamental right has been
violated, under Article 32 or 226 of the
Constitution, the case at hand deals with a
different scenario altogether. The
functionaries of the State took over possession
of the land belonging to the appellants without
any sanction of law. The appellants had asked
repeatedly for grant of the benefit of
compensation. The State must either comply with
the procedure laid down for acquisition, or
requisition, or any other permissible
statutory mode. There is a distinction, a true
and concrete distinction, between the
principle of “eminent domain” and “police
power” of the State. Under certain
circumstances, the police power of the State
may be used temporarily, to take possession of
property but the present case clearly shows
that neither of the said powers have been
exercised. A question then arises with respect
to the authority or power under which the State
entered upon the land. It is evident that the
act of the State amounts to encroachment, in
exercise of “absolute power” which in common
parlance is also called abuse of power or use
of muscle power. To further clarify this
position, it must be noted that the authorities
have treated the landowner as a “subject” of
142
medieval India, but not as a “citizen” under
our Constitution.”
92. This has been followed in Bhimandas Ambwani (Dead)
Through Lrs. v. Delhi Power Company Limited47 (See
paragraph 13 of the said Judgment).
JILUBHAI NANBHAI KHACHAR AND OTHERS V.
STATE OF GUJARAT AND ANOTHER48
93. We have already adverted to it earlier.
STATE OF GUJARAT V. SHANTILAL MANGALDAS
AND OTHERS49
94. The said decision was rendered by a Constitution
Bench of this Court. The matter in issue was the
validity of Sections 55 and 67 of the Bombay Town
Planning Act (Act 27 of 1955). The High Court had
declared the provisions violative of Article 31(2) of
the Constitution. This Court embarked upon elaborate
consideration of the provisions of the Act, and it will
be profitable, if we advert to paragraph-22, wherein,
the Court, after referring to the provisions of Article
47 (2013) 14 SCC 195
48 1995 Supp (1) SCC 596
49 (1969) 1 SCC 509
143
31, as amended by the Fourth Amendment in the year
1955, proceeded to hold as follows:
“22. The following principles emerge from an
analysis of clauses (2) and (2-A): compulsory
acquisition or requisition may be made for a
public purpose alone, and must be made by
authority of law. Law which deprives a person
of property but does not transfer ownership of
the property or right to possession of the
property to the State or a corporation owned
or controlled by the State is not a law for
compulsory acquisition or requisition. The
law, under the authority of which property is
compulsorily acquired or requisitioned, must
either fix the amount of compensation or
specify the principles on which, and the manner
in which, the compensation is to be determined
and given. If these conditions are fulfilled
the validity of the law cannot be questioned
on the plea that it does not provide adequate
compensation to the owner.
xxx xxx xxx
26. Article 31 guarantees that the law
providing for compulsory acquisition must
provide for determining the giving of
compensation for the property acquired. The
expression “compensation” is not defined in the
Constitution. Under the Land Acquisition Act
compensation is always paid in terms of money.
But that is no reason for holding that
compensation which is guaranteed by Article
31(2) for compulsory acquisition must be paid
in terms of money alone. A law which provides
for making satisfaction to an expropriated
owner by allotment of other property may be
deemed to be a law providing for compensation.
In ordinary parlance the expression
“compensation” means anything given to make
things equivalent; a thing given to or to make
144
amends for loss, recompense, remuneration or
pay; it need not therefore necessarily be in
terms of money. The phraseology of the
Constitutional provision also indicates that
compensation need not necessarily be in terms
of money, because it expressly provides that
the law may specify the principles on which,
and the manner in which, compensation is to be
determined and “given”. If it were to be in
terms of money alone, the expression “paid”
would have been more appropriate.”
95. In the course of its Judgment, the Court
disapproved observations contained in P. Vajravelu
Mudaliar v. Special Deputy Collector for Land
Acquisition and another50. Equally, the Court overruled
the decision of this Court in Union of India v. Metal
Corporation of India Ltd. and another51.
96. It was relying on these two judgments, inter alia,
that this Court found that the High Court had wrongly
concluded that in order that compensation based on
market value be sufficient for the purpose of Article
31(2), it must be a just equivalent. We may also notice
that the Court repelled the attempt on behalf of the
State that because the object of the Act was to promote
50 (1965) 1 SCR 614
51 (1967) 1 SCR 255)
145
public health, it fell within the exception to Article
31(5)(b)(ii).
97. Regarding purport of the Fourth Amendment, in
Shantilal Mangaldas (supra), this Court declared as
follows:
“41. The principal effect of this amendment,
in so far as that is relevant in this appeal,
was to snap the link which, according to this
Court, existed between clauses (1) and (2) —
that was achieved by enacting clause (2-A);
greater clarity was secured by enacting in
clause (2) that property shall be compulsorily
acquired only for a public purpose; and by
authority of law which provides for
compensation, and either fixes the amount of
compensation or specifies the principles on
which, and the manner in which, compensation
is to be determined and given; and that the
law for acquisition or requisition shall not
be called in question in any court on the
ground that the compensation provided thereby
is not adequate. By the amendment made in
Article 31-A certain classes of statutes were
placed with retrospective effect outside the
purview of attack before the Courts on the
ground of infringement of the fundamental
rights under Articles 14, 19 and 31, and by
the addition of certain Acts in the Ninth
Schedule a challenge to those Acts that they
infringed any fundamental rights in Part III
could not be entertained. But the amendments
made in Article 31 were not given any
retrospective operation. The result was that
in cases where acquisition was made pursuant
to the statutes enacted before April 27, 1955,
the law declared in Mrs Bela Banerjee
146
case and Subodh Gopal Base case continued to
apply.”
98. The Judgment in Shantilal Mangaldas (supra) has
been approved of and followed in the case by a
Constitution Bench in Prakash Amichand Shah v. State
of Gujarat and others52.
99. The Court repelled the argument that the decision
in Shantilal Mangaldas (supra) was overruled by the
Judgment in His Holiness Kesavananda Bharati
Sripadagalvaru v. State of Kerala and another53.
100. This Court also made the following observations,
which incidentally are relied upon by the respondents
to contend that the developer of property would be
entitled to benefits when there is planned development:
“16. The re-arrangement of titles in the
various plots and reservation of lands for
public purposes require financial adjustments
to be made. The owner who is deprived of his
land has to be compensated, and the owner who
obtains a re-constituted plot in surroundings
which are conducive to better sanitary living
conditions has to contribute towards the
expenses of the scheme. This is because on the
making of a Town Planning Scheme the value of
the plot rises and a part of the benefit which
arises out of a unearned rise in prices is
52 (1986) 1 SCC 581
53 (1973) 4 SCC 225
147
directed to be contributed towards financing
of the scheme which enables the residents in
that area to more amenities, better facilities
and healthier living conditions. …”
101. This Court in Babulal Badriprasad Varma v. Surat
Municipal Corporation and others54, while dealing with
the Gujarat Town Planning and Urban Development Act,
1976, inter alia, held:
“33. We are, however, not unmindful of the fact
that a statute of town planning ex facie is
not a statute for acquisition of a property.
An owner of a plot is asked to part therewith
only for providing for better facilities of
which he would also be a beneficiary. Every
step taken by the State does not involve
application of the doctrine of eminent domain.
34. In this case, the appellant did not oppose
the draft scheme. It accepted that the State
had a right to do so. Existence of a public
purpose and increase in the valuation of the
property was admitted. There exists a
distinction in the action of the planning
authority as regards vesting of a property in
it and one so as to enable it to create a thirdparty interest vis-à-vis for the purpose of
reallotment thereof. In the former case, the
vesting of the land may be held to be an act
of acquisition, whereas in the latter, it would
be distribution of certain benefits having
regard to the purpose sought to be achieved by
a statute involving town planning. It was on
that legal principle, this Court in State of
Gujarat v. Shantilal Mangaldas [(1969) 1 SCC
54 (2008) 12 SCC 401
148
509 : (1969) 3 SCR 341] opined that when a
development is made, the owner of the property
gets much more than what he would have got, if
the same remained undeveloped in the process
as by reason thereof he gets the benefit of
living in a developed town having good town
planning.”
(Emphasis supplied)
102. In the recent Judgment, again, a Bench of three
learned Judges of this Court, followed the Judgment in
Chairman, Indore Vikas Pradhikaran (supra).
NARAYANRAO JAGOBAJI GOWANDE PUBLIC
TRUST V. STATE OF MAHARASHTRA AND OTHERS55
103. The dispute revolved around a condition in a
development agreement executed between the appellantTrust and the Nagpur Improvement Trust (for short,
‘NIT’). Under such condition, the appellant was to
transfer the land and/or primary school open land in
the layout free-of-cost and the NIT was free to dispose
of such land as per its Rules and Regulations. We notice
that the predecessor-in-interest of the appellant was
given permission by the NIT, under which, an area was
55 (2016) 4 SCC 443
149
reserved for a primary school which was a public
utility land. The NIT allotted the land in the layout
approved in favour of the appellant’s predecessor to a
third party for construction of a college. Several
contentions were arrayed against the allotment,
including that the NIT did not have any power to insert
such a condition and that there was no power to acquire
land de hors the Act, under which, it was created. This
Court dismissed the appeal and upheld the view of the
High Court. In doing so, this Court held as follows:
“34. We have carefully heard both the parties
at length and have also given our conscious
thought to the materials on record and the
relevant provisions of law. We are of the view
that the High Court in its judgment and order
has rightly held that Respondent 1 State and
Respondent 2 NIT are bound to stick to the
development plan and scheme. It has placed
reliance upon the decision of this Court
in Indore Vikas Pradhikaran v. Pure Industrial
Coke & Chemicals Ltd. [Indore Vikas
Pradhikaran v. Pure Industrial Coke &
Chemicals Ltd., (2007) 8 SCC 705] , wherein
this Court, while dealing with the aspect of
town planning and Articles 300-A and 14 of the
Constitution of India, has observed as under:
(SCC p. 730, paras 46-47)
“46. … The courts must make an endeavour to
strike a balance between public interest on the
one hand and protection of a constitutional
right to hold property, on the other.
150
47. For the aforementioned purpose, an
endeavour should be made to find out as to
whether the statute takes care of public
interest in the matter vis-à-vis the private
interest, on the one hand, and the effect of
lapse and/or positive inaction on the part of
the State and other planning authorities, on
the other.”
xxx xxx xxx
36. The High Court has, further, rightly held
that the impugned clause contained in the said
development agreement is neither void nor
illegal for want of consideration. It has also
been rightly held by it that after
consideration of the whole scheme of the NIT
Act, particularly, the provisions under
Sections 29 to 70 and 121 of the said Act read
with the terms and conditions of the said
development agreement entered into between the
parties, it is clear that the said development
agreement creates reciprocal rights and
obligations between the parties with some
objects.
xxx xxx xxx
38. Thus, seeking abandonment of acquisition
of the land as provided under Section 68 of
the NIT Act is a huge benefit which the
appellant Trust has gained from the agreement.
Further, it is not open for the appellant Trust
to avail only the beneficial part of the said
development agreement to form a layout plan and
allow the sites to be allotted in favour of
the allottees, when it itself is not willing
to discharge the obligation of transferring the
reserved land for public utility purpose, as
agreed upon in the development agreement.
39. Further, the High Court has rightly
observed that another benefit derived by the
appellant Trust from the said development
151
agreement is immediate and reciprocal sanction
for the development of the said land with
permission for the commercial usage of the
same, presuming that there would be no
acquisition.”
YOGENDRA PAL AND OTHERS V. MUNICIPALITY,
BATHINDA AND ANOTHER56
104. The case arose under the Punjab Municipal Act,
1911. The State Government, acting under Section 192(3)
of the Municipal Law, sanctioned a Town Planning
Scheme, under which, an area of 22.23 acres was
transferred to the Municipal Committee. No compensation
was paid to the owners. The High Court upheld the
provision. Section 192(1)(c), inter alia, provided for
transfer, to the Committee, of land, either on payment
of compensation or otherwise. The contention taken by
the respondent was that it was only a transfer of land
and not acquisition. This Court found that the
provision did contain a restriction on the maximum
amount of land which could be transferred and also
maximum amount of land which could be transferred
without payment of compensation. This Court found that
56 (1994) 5 SCC 709
152
there was no guideline in the Act providing for as to
when compensation was payable or could be denied. The
Court also took note of the width of the expression
‘public purpose’, for achieving which, the land could
be transferred. It was further noticed that the said
expression suggested that the purpose concerned cannot
be of benefit only and exclusively to the transferorlandowner. It was to be a utility to members of the
public in general. The fact that the transferorlandowner would also benefit, did not make any
difference. The use of the word ‘transferred’ as
against ‘acquired’ and the contention that, ‘therefore,
the rights of the land owner continued’, was rejected.
Section 192(c) was contrasted with Section 169 and it
was found that the latter provision was confined to use
of the land for laying public streets, and what is
more, the land could be acquired by paying
compensation. Section 169 also contemplated
restoration to the original owner, if the land could
not be used as a public street. We may bear in mind the
following discussions in the context of the facts of
the case before us:
153
“18. The next contention is that the transfer
of the land is also for the benefit of the
transferor landowner and in fact the balance
of the land which remains with him appreciates
in value to an extent which more than
sufficiently compensates him for the loss of
the land. Hence there is no need to pay him
separate compensation for the extent of land
up to 25 per cent transferred to the Municipal
Committee. The contention suffers from several
fallacies. In the first instance, as the
provisions of the section themselves point out,
the land is to be transferred for a public
purpose including for use as public street. The
purpose of the transfer itself suggests that
the transferor landowner is not exclusively to
be benefited by the public purpose. He enjoys
the benefit, if any, along with the other
members of the public. There is no reason why,
therefore, he should alone pay for the said
benefit in terms of his land. Secondly, the
public purpose which is served by the Municipal
Committee, assuming it increases the value of
the remaining land, also contributes to the
increase in the value of the land of all other
landowners, which lands are similarly
benefited by the said public purpose. There is,
therefore, no reason why the landowner whose
land is “transferred” for the purpose alone
should pay for the increase in the value of
his remaining land in terms of the transferred
land. In fact, whereas it is only the remaining
land of the transferor landowner which is
benefited by such increase in value, if any,
the whole of the land in the possession of the
other landowners is benefited by the accretion
in value. Thus, on both accounts, there is a
clear violation of Article 14 of the
Constitution to make only the transferor
landowner suffer for the public purpose. What
is further, it is problematic and is in the
realm of speculation as to whether the
appreciation of the value of the remaining
property of the transferor landowner will
154
always be equivalent to or more than the value
of the land transferred to the Municipal
Committee, assuming that the public purpose for
which the land is taken over contributes to the
increase in the value of the remaining
property. Lastly, and this is equally
important, in many cases the accretion to the
value of the remaining property may merely be
on paper and be a poor consolation to the
transferor landowner if he cannot or is unable
for one reason or the other to sell or
otherwise dispose of the said property. On the
other hand, in such cases, the accretion in
value may prove a burden if the property tax,
wealth tax, estate duty etc. are calculated on
the basis of the market value of the property.
The so-called increase in the value of the
property may thus prove a liability to those
who cannot dispose of their property. Looked
at from any angle, the argument that the
transferor landowner is benefited because his
remaining property appreciates in value and,
therefore, he need not be paid separate
compensation for the land which is transferred,
is untenable in law. We thus find that the
provisions of Section 192(1)(c) are violative
of Article 14 of the Constitution.”
VIRENDER GAUR AND OTHERS V. STATE OF
HARYANA AND OTHERS57
105. In the said case, the appellant surrendered 25 per
cent of her land to the Municipality, which was a
condition for sanction for construction of a building.
The land stood vested with the Municipality. The land
57 (1995) 2 SCC 577
155
in question stood earmarked for open spaces. A
Dharamshala came to be put-up for the Punjab Samaj
Sabha on the basis of allotment to it. It was contended
that in the construction of the Dharamshala, even if
there was a public purpose, the Government could not
direct the Municipality to permit land use, defeating
the scheme, which provided for keeping the land open.
This Court described environment ‘as a polycentric and
multifaceted problem, affecting human existence’.
106. The Court, in Virender Gaur (supra), further found
power to the Municipality under Section 66 to transfer
the land vested in it. The Court went on to hold, inter
alia, as follows:
“11. It is seen that the open lands, vested in
the Municipality, were meant for the public
amenity to the residents of the locality to
maintain ecology, sanitation, recreation,
playground and ventilation purposes. The
buildings directed to be constructed
necessarily affect the health and the
environment adversely, sanitation and other
effects on the residents in the locality.
Therefore, the order passed by the Government
and the action taken pursuant thereto by the
Municipality would clearly defeat the purpose
of the scheme. Shri D.V. Sehgal, learned Senior
Counsel, again contended that two decades have
passed by and that, therefore, the Municipality
is entitled to use the land for any purpose.
156
We are unable to accept the self-destructive
argument to put a premium on inaction. The land
having been taken from the citizens for a
public purpose, the Municipality is required
to use the land for the protection or
preservation of hygienic conditions of the
local residents in particular and the people
in general and not for any other purpose.
Equally acceptance of the argument of Shri V.C.
Mahajan encourages pre-emptive action and
conduct, deliberately chartered out to
frustrate the proceedings and to make the
result fait accompli. We are unable to accept
the argument of fait accompli on the touchstone
of prospective operation of our order.”
107. This Court also distinguished Yogendra Pal (supra)
in this regard.
108. There is a contention of the appellants and the
writ petitioners that, at any rate, the law is an
expropriatory legislation. This is for the reason that
it operates to deprive a person of his land without his
consent. [See in this regard Chairman, Indore Vikas
Pradhikaran (supra), which has discussed this aspect
elaborately.] For reasons already given and to follow,
we are unable to agree.
109. We agree that the law, undoubtedly, is that the
planning law cannot be interpreted as justifying an
inroad into the rights of a private person to construct
157
a suitable building for the purpose of carrying on his
business.
110. In Ravindra Ramchandra Waghmare v. Indore
Municipal Corporation and others58, after an elaborate
reference to Chairman, Indore Vikas Pradhikaran (supra)
and K.T. Plantations (supra), this Court, inter alia,
held as follows:
“76. …It is apparent from the aforesaid dictum
that Article 300-A enables the State to put
restrictions on the right by law but the same
should not be arbitrary or excessive or beyond
what is required in public interest. The
imposition of restriction must not be
disproportionate to a situation or statute.
Legislation providing for deprivation of
property under Article 300-A must be just, fair
and reasonable. Thus, it cannot be said that
illusory compensation is provided under
Section 306 read with Section 387. The decision
renders no help to the cause espoused on behalf
of the appellants and on a closer scrutiny,
rather counters it. Based on the aforesaid
principles we find no malady in the provisions
in question which may be required to be cured.”
111. No doubt, the Court, in the said case also, after
referring to Rajiv Sarin and another v. State of
Uttarakhand others59, found that the case at hand was
58 (2017) 1 SCC 667
59 (2011) 8 SCC 708
158
not a case of no compensation. Incidentally, this Court
also followed the Judgment in Shantilal Mangaldas
(supra):
“83. As already held a law seeking to acquire
private property for public purpose cannot say
that “no compensation” would be paid. The
present case is a case of payment of “no
compensation” at all. In the case at hand, the
forest land which was vested in the State by
operation of law cannot be said to be nonproductive or unproductive by any stretch of
imagination. The property in question was
definitely a productive asset. That being so,
the criteria to determine possible income on
the date of vesting would be to ascertain such
compensation paid to similarly situated owners
of neighbouring forests on the date of vesting.
Even otherwise, the Revenue Authority can
always make an estimation of possible income
on the date of vesting if the property in
question had been exploited by the appellants
and then calculate compensation on the basis
thereof in terms of Sections 18(1)(cc) and
19(1)(b) of the KUZALR Act.”
112. In Rajiv Sarin (supra), the U.P. Zamindari
Abolition and Land Reforms Act, 1950, the Kumaun and
Uttarakhand Abolition and Land Reforms Act, 1960,
introduced the U.P. Act in the Uttarakhand and Kumaun
region. The rights of every intermediary in respect of
forest land came to be vested with the State
Government. This was as a result of an amendment. The
159
amendment and Notice came to be challenged. This Court,
speaking through a Constitution Bench, held, inter
alia, as follows:
“68. The incident of deprivation of property
within the meaning of Article 300-A of the
Constitution normally occurred mostly in the
context of public purpose. Clearly, any law,
which deprives a person of his private property
for private interest, will be amenable to
judicial review. In the last sixty years,
though the concept of public purpose has been
given quite wide interpretation, nevertheless,
the “public purpose” remains the most important
condition in order to invoke Article 300-A of
the Constitution.
69. With regard to claiming compensation, all
modern Constitutions which are invariably of
democratic character provide for payment of
compensation as the condition to exercise the
right of expropriation. The Commonwealth of
Australia Constitution Act, the French Civil
Code (Article 545), the Fifth Amendment to the
Constitution of USA and the Italian
Constitution provided principles of “just
terms”, “just indemnity”, “just compensation”
as reimbursement for the property taken, have
been provided for.
70. Under the Indian Constitution, the field
of legislation covering claim for compensation
on deprivation of one's property can be traced
to Schedule VII List III Entry 42 of the
Constitution. The Constitution (Seventh
Amendment) Act, 1956 deleted Schedule VII List
I Entry 33, List II Entry 36 and reworded List
III Entry 42 relating to “acquisition and
requisitioning of property”. The right to
property being no more a fundamental right, a
160
legislation enacted under the authority of law
as provided in Article 300-A of the
Constitution is not amenable to judicial review
merely for alleged violation of Part III of the
Constitution.
xxx xxx xxx
73. It was further submitted that the inherent
powers of public purpose and eminent domain are
embodied in Article 300-A, and Entry 42, List
III, “acquisition and requisitioning of
property” which necessarily connotes that the
acquisition and requisitioning of property
will be for a public use and for compensation
and whenever a person is deprived of his
property, the limitations as implied in Article
300-A as well as Entry 42, List III will come
into the picture and the Court can always
examine the legality and validity of the
legislation in question. It was further
submitted that awarding nil compensation is
squarely amenable to judicial review under
Articles 32 and 226 of the Constitution of
India.
xxx xxx xxx
77. Article 31(2) of the Constitution has since
been repealed by the Constitution (Fortyfourth Amendment) Act, 1978. It is to be noted
that Article 300-A was inserted by the
Constitution (Forty-fourth Amendment) Act,
1978 by practically re-inserting Article 31(1)
of the Constitution. Therefore, right to
property is no longer a fundamental right but
a right envisaged and conferred by the
Constitution and that also by retaining only
Article 31(1) of the Constitution and
specifically deleting Article 31(2), as it
stood. In view of the aforesaid position the
entire concept of right to property has to be
viewed with a different mindset than the
mindset which was prevalent during the period
when the concept of eminent domain was the
161
embodied provision of fundamental rights. But
even now as provided under Article 300-A of the
Constitution the State can proceed to acquire
land for specified use but by enacting a law
through State Legislature or by Parliament and
in the manner having force of law.”
113. The Court also reiterated the distinction between
‘no compensation’ and ‘Nil compensation’, as laid down
in K.T. Plantations (supra). The Court proceeded to
find that it was a case of ‘no compensation’ at all,
and therefore, it attracted the vice of illegal
deprivation of property and gave relief on the said
basis. This is after finding that the property in
question was a productive asset.
114. In W.P. No. 591/15, the challenge is to Regulation
29(7)(a) and Annexure XX. It is first necessary to
notice the scheme of Regulation 29(7).
“29(7) (a) The space set apart for roads
(except those which may remain private) and the
10% area reserved for recreational purposes
shall be transferred to the Authority or Agency
or the Local Body designated by the Authority
free of cost through a registered gift deed
before the actual approval of the layout under
the provisions of the T & CP Act. The exact
mode of conveyance should be consistent with
the relevant enactment and regulations.
(b) In cases of industrial estates developed
by Government agencies the Authority reserves
162
the right to allow them to retain the spaces
set apart for roads and the recreational spaces
as parks/play grounds and maintain them for the
purposes to the satisfaction of the Authority.
(c) The Authority reserves the right to reserve
space for recessed bus stops as part of the
road space in the layouts exceeding 2 hectares,
where found necessary on public interest and
this part of the road space also be transferred
free of cost as stated in the sub rule 7(a)
above.”
115. Regulation 29(3)(b) deals with the width of the
streets and roads within the layout. It inter alia
provides for the width and the streets of the roads and
passages. Thereunder, in the remarks column, it is
provided that starting with the minimum width of 7.2
meters in regard to streets intended to serve not more
than 16 plots / or subject to a maximum length of 120
meters, all the streets become public. The common
refrain found in the remarks column is that that all
such streets shall become public. We must next
specifically advert to Regulation 29(6):
“29(6) Reservation of land for recreational
purposes in a layout or sub’ division for
residential, commercial, industrial or
combination of such uses shall be as follows.
Extent of layout Reservation
163
(1) (2)
For the first 3000
square metres
Nil
Between 3000 10 per cent of the area
excluding toads or in
the alternative he
shall
pay the market value of
equivalent land and
excluding the first
square metres 3000
square metres as per
the valuation of the
registration
and 10,000 department.
"No such area reserved
shall measures less
than 100
square metres square
metres with a minimum
dimension of 10
metres."
Above 10,000 square
metres
10 per cent of the area
excluding roads. It is
obligatory to make the
reservation and no
equivalent land cost in
lieu· of the same is
acceptable.
(a) The land for community recreational purposes
shall be restricted to ground level, in a shape
and location to be specified by the Chennai
Metropolitan Development Authority. The land so
reserved shall be free from any ·construction by
the layout owner, developer or promoter
(b) The building and use of land shall conform
to the conditions that may be imposed while
sanctioning the layout. The space set apart for
164
commercial, institutional, industrial or other
uses shall be deemed to be zoned for commercial,
institutional; industrial or corresponding uses
under the Master Plan.”
116. We may notice at this juncture that there is no
challenge to Regulation 29(6). The second most
important aspect we notice is that the land for
community recreational purposes shall be restricted to
the ground level in a shape and location to be specified
by the CMDA. Further the land reserved is to be free
from any construction by the layout owner, developer
and promoter. Further the use of the land shall conform
to the conditions that may be imposed while sanctioning
the layout.
117. Before we pass on to the impugned regulation,
namely, Regulation 29 (7) (a), we must also undoubtedly
notice Annexure XX which is also under challenge.
“ANNEXURE XX
Reservation of land for community recreational
purposes in case of special buildings/ Group
Developments/ multi-storeyed building
developments
(1) The reservation of land for community
recreational purposes such as park / playground
shall be as given below at gr9und level in a
shape and location 'abutting a public road to be
165
specified by Chennai Metropolitan Development
Authority:
Extent of site Reservation
(a) For the first
3,000 square
metres
Nil
(b) Between 3,000
square metres and
10,000 square
metres
10% of the area
excluding roads or in
the alternative he
shall pay the market
value of the
equivalent land
excluding the first
3000 sq.m. as per the
valuation of the
Registration
Department, only where
it is not possible to
provide open space due
to ·physical
constraints. No such
area reserved shall
measure less than 100
square metres with a
minimum dimension of
10 metres.
The space so reserved
shall be transferred
to the Authority or to
the Local body
designated by it, free
of cost, through a
registered gift deed.
In cases of
residential
developments, the
Authority or the local
body concerned may
permit the Residents
Association or Flat
Owner's Association
for maintaining such
reserved space as park
166
/ playground and in
such cases where the
Authority decides to
permit the Resident's
Association or Flat
Owner's Association
for maintaining it,
direct access from a
public road for the
reserved area may not
be required, and right
of access to the
Authority or the local
body concerned through
set back space shall
be transferred through
a registered gift deed
along with the
reserved space.
(c) Above 10,000
square metres
Ten per cent of the
area excluding road
shall be reserved and
this space shall be
transferred to the
Authority or to the
local body designated
by it, free of cost,
through a gift deed.
It is obligatory to
reserve the 10 per
cent of the site area
and no charge can be
accepted in lieu iri
case of the new
developments or
redevelopments.
(2) The site so reserved shall be exclusive of
'the setback spaces and. spacing between blocks
prescribed in these rules, and shall· be free
from any construction / structure.
167
(3) For the purpose of this regulation, existing
development is defined as one where the extent
of ground area covered by structures already
existing (prior to application for planning
permission) is 25 per cent and above of the total
site area.
(4) In case of additions to existing
developments, where it is difficult to leave the
10 per cent area as open space for community
recreational purposes, the Authority reserves
the right to collect the market value of
equivalent land in lieu of the land to be
reserved. However, if on a future date, the
applicant wants to demolish the existing
structure and raise new structures on the site
in question, the community recreational space as
per the rule shall be reserved.
(5) The Authority reserves· the right to enforce
the maintenance of such reserved lands by the
owner to the satisfaction of the Authority or
order the owner to transfer the land to the
Authority or any local body designated by it free
of cost, through a registered gift deed. The
Authority or the local body designated by it, as
the case may be, reserves the right to decide on
entrusting the maintenance work to any
institution / individual on the merits of the
case.”
118. It will be noticed on a perusal of Annexure XX that
the reservation for community recreation purposes such
as park, playground is to be at ground level in a shape
and location abutting a public road to be specified by
the CDMA. Thereafter, the requirement relating to
executing the gift deed in respect of layout in excess
168
of 10000 square meters is laid down. It is after this
that we must notice Regulation 29 (7)(a).
“29(7)(a) The space set apart for. roads
(except those which may remain private) and the
10% area reserved for recreational purposes
shall be transferred to the Authority or Agency
or the Local Body designated by the Authority
free of cost through a registered gift deed
before the actual approval of the layout under
the provisions of the T & CP Act. The exact
mode of conveyance should be consistent with
the relevant enactment and regulations.”
119. From the additional affidavit which we have already
noticed, the challenge is limited by the petitioner to
the stipulation in Regulation 29(7)(a) so far as the
requirement of transferring the space set apart for
recreational purposes. In other words, the petitioners
accept the validity of Regulation 29(7)(a) otherwise.
Rule 29 reads as follows: -
“29. Layout and sub-division regulations:
This regulation seeks to ensure access to plots
by 'way of roads and private passages, creating
hierarchy of roads depending on the road length
and intensity of
developments in the area and also to provide
adequate linkages to the existing roads and
proposed roads in the Master Plan and Detailed
Development Plan and further to provide proper
circulation pattern in the area, providing
required recreational spaces such as parks /
169
playgrounds, and providing spaces for common
amenities such as schools, post and telegraph
offices, fire stations, police stations etc.
(1) The minimum extent of plots and frontage
shall be as prescribed for various uses and
types of developments given in the DR Nos.
25,26,27 and 28.
(2) (a) The minimum width of the public
streets/road on which the site abuts or gains
access shall be 7.2m. for residential layout
developments and 9m. for industrial layout
developments. For subdivisions the minimum
width of the passage /public streets/road on
which the site abuts or gains access shall be
as required for different uses and types of
developments.
(b) The minimum width stated above shall be the
existing width of the road and not the street
alignment prescribed.
For residential development
“29(3) The width of the streets/roads and
passages in the layouts. /subdivisions /
amalgamations shall conform to the minimum
requirements given below:
(a) for Residential developments
Description
(1)
Minimum
Width
(2)
Remarks
(3)
A. Passage '
(i) In areas of
Economically
Weaker
Section and· for
continuous
building area:
1.0 metre
The passage
will remain
private.
170
a) For single
plot
b) For two to
four plots
1.5 metre
(ii) When it is
intended to
serve upto two
plots and length
of the passage
does not exceed
40 metres)
3.0 metres The passage
will remain
private
(iii) When it is
intended to
serve up to
four plots and
length of the
passage does not
exceed 80
metres)
3.6 metres -Do-
(iv) When it is
intended to
serve up tb
ten plots and
length of the
passage does
not exceed 100
metres)
4.8 metres -DoB. Streets and
Roads
(i) Streets
intended to
serve not more
than 16 plots and
/ or subject to a
maximum length
of 120 metres
7.2 metres All streets
shall become
public
(ii) Streets
intended to
serve not more.
than 20 plots
and / or subject
to a maximum
9.0 metres All streets
shall become
public
171
length of 240
metres
(iii) Roads of
length more than
240 metres but
below 400 metres
(iv) Roads of
length between
400 metres to
1,000 metres
34.0
metres
18.0
metres
All streets
shall become
public
All streets
shall become
public
(v) Roads of
length more than
1000 metres
24.0
metres
All streets
shall become
public
29(3)(b) for Industrial Development
Description
(1)
Minimum
width of
passage
(2)
Remarks
(3)
(1) When it is
intended to
serve only
one plot and
length of the
passage does not
exceed 100
metres
5.0 metres The passage
will remain
private
(2) When it is
intended to
serve two to
five plots and
the length of
the passage
does not exceed
120
7.2 metres -Do-
172
metres
(3) When it is
intended to
serve more than
5 plots
12.0 metres The street
shall become
public.
Note: Not withstanding anything contained above
Authority reserves the right to revise layouts
proposed by the applicant and applied for
sanction in order to provide for better adequate
linkages proper circulation pattern requirements
considering local conditions etc.”
120. It becomes clear that in regard to streets and
roads what is contemplated under the regulation is that
under 29 (3)(a) (B) all streets will become public.
This is to be read along with Regulation 29(7)(a).
It is apparently to ensure that the roads which are
covered by 29(3)(a)(B) which are to be treated as
public are so maintained that it is insisted under
29(7)(a) that a gift deed be executed. In other words,
keeping in mind the preambular portion of Regulation
29 which proclaims that the regulation seeks to provide
access to plots by way of roads and private passages
creating a hierarchy of roads based on road length,
intensity of developments in the area and also provide
adequate linkages to the existing roads and proposed
173
roads in the Master Plan and a detailed development
plan and to provide proper circulation pattern in the
area inter alia, we must arrive at the conclusion that
visionary perspective of town planning would require
an imaginative full play being given. Meticulous
requirements of futuristic needs of an ever-growing
Metropolis when a large area such as what would be
found in a layout of more than 10000 square meters
which is nearly one hectare of land in the metropolitan
area must be factored in. Circulation of traffic
between parts of the area would require the roads being
thrown open to the public so that different parts of
the metropolitan area can be easily accessed. In fact,
even the writ petitioner by seeking to limit the
challenge in the first place only to Regulation
29(7)(a) and not to Regulation 29(3)(a)(B) under which
anyway the streets are declared as public acknowledges
the need for and justification for the declaration of
roads being public.
121. The argument of the respondent appears to be as
follows:
174
The execution of a gift deed acts as a safety valve
or a safeguard to check the possibility that the
developer would resile from the assurance or violate
the guarantee that the land, which is reserved as an
open space, will not be constructed upon. In other
words, if the execution of the gift deed is insisted
upon to ensure that in the future, there would not be
any contravention of the requirement, inter alia, that
the area be used as an open space, then, the complaint,
which is lodged against the impugned Rule, as also the
Regulation, may not stand scrutiny. In regard to the
impugned Regulation, it must be borne in mind, as we
have already noticed that in the additional affidavit
filed by the Writ Petitioner in Writ Petition (C) No.
591 of 2015, the challenge in the writ petition has
been limited to the latter part of the provision, i.e.,
the requirement to transfer free-of-cost, through a
registered gift deed, the 10 per cent recreational area
reserved for recreational purposes only and not the
space set apart for roads. Here, we must observe that
as already found by us, that there is no challenge to
175
Regulation 29(6). The writ petitioner does not seek to,
bring under a cloud, Regulation 29(7)(a) otherwise.
122. The result of the above discussion is as follows:
We 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
176
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, we would think that 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.
A BRIEF LOOK AT THE FIFTH AMENDMENT CASES
IN THE UNITED STATES
123. The Fifth Amendment to the U.S. Constitution,
inter alia, declares ‘nor shall private property be
taken for public use without just compensation’. This
limb of the Fifth Amendment has spawned a large body
of case law. We may only advert to a few of them. In
Agins (supra), the brief facts were as follows:
177
The owners of a five-acre parcel of unimproved land
challenged the placing of the land by adopting of
Zoning Ordinances, by which, the land was placed in
residential planned development and open space zone,
which permitted the owners to build between 1 and 5
single family residences. The appellants asserted
infraction of the Fifth and the Fourteenth Amendments
and sought damages for inverse condemnation. (Inverse
condemnation amounts to proceedings seeking
compensation for compulsorily acquiring land without
there being any formal proceedings for acquisition).
The challenge was repelled by the U.S. Supreme Court.
It was found that there was no violation of the Takings
Clause in the Fifth Amendment. It must be made clear
that the Taking Clause is based on the prohibition
against the taking of private property for public use
without just compensation. The Court, inter alia, held
as follows:
“The application of a general zoning law to
particular property effects a taking if the
ordinance does not substantially advance
legitimate state interests, see Nectow v.
Cambridge, 277 U.S. 183, 188, 48 S.Ct. 447,
448, 72 L.Ed. 842 (1928), or denies an owner
economically viable use of his land, see Penn
178
Central Transp. Co. v. New York City, 438 U.S.
104, 138, n. 36, 98 S.Ct. 2646, 2666, 57
L.Ed.2d 631 (1978). The determination that
governmental action constitutes a taking is,
in essence, a determination that the public at
large, rather than a single owner, must bear
the burden of an exercise of state power in
the public interest. Although no precise rule
determines when property has been taken,
see Kaiser Aetna v. United States, 444 U.S.
164, 100 S.Ct. 383, 62 S.Ct. 332 (1979), the
question necessarily requires a weighing of
private and public interests. The seminal
decision in Euclid v. Ambler Co., 272 U.S. 365,
47 S.Ct. 114, 71 L.Ed. 303 (1926), is
illustrative. In that case, the landowner
challenged the constitutionality of a
municipal ordinance that restricted commercial
development of his property. Despite alleged
diminution in value of the owner's land, the
Court held that the zoning laws were facially
constitutional. They bore a substantial
relationship to the public welfare, and their
enactment inflicted no irreparable injury upon
the landowner.”
124. In James Patrick Nollan v. Calefornia Coastal
Commission60, the following were the facts:
The prospective purchasers of a beach front plot,
which was located between two public beaches, proposed
to satisfy a condition on their option to purchase by
pulling down an old bungalow on the premises. It was
to be replaced with a larger house. The respondent
60 483 US 825, 97 L Ed 2d 677,
179
Commission stipulated the condition that purchasers
must give the public an easement to pass across the
portion of the property which lay between the mean high
tide line. The purchasers took shelter under the
Takings Clause. In 5:4 Majority Judgment, the Court
took the view that the Takings Clause was offended. In
the course of the Judgment, the Court held, inter alia:
“[1b, 5] “Given, then, that requiring
uncompensated conveyance of the easement
outright would violate the Fourteenth
Amendment, the question becomes whether
requiring it to be conveyed as a condition for
issuing a land-use permit alters the outcome.
We have long recognized that land-use
regulation does not effect a taking if it
“substantially advance[s] legitimate state
interests” and does not “den[y] an owner
economically viable use of his land,” Agins v.
Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138,
2141, 65 L.Ed.2d 106 (1980). See also Penn
Central Transportation Co. v. New York
City, 438 U.S. 104, 127, 98 S.Ct. 2646, 2660,
57 L.Ed.2d 631 (1978) (“[A] use restriction may
constitute a ‘taking’ if not reasonably
necessary to the effectuation of a substantial
government purpose”).”
xxx xxx xxx
“[1c] The Commission argues that a permit
condition that serves the same legitimate
police-power purpose as a refusal to issue the
permit should not be found to be a taking if
the refusal to issue the permit would not
constitute a taking. We agree. Thus, if the
Commission attached to the permit some
180
condition that would have protected the
public's ability to see the beach
notwithstanding construction of the new house—
for example, a height limitation, a width
restriction, or a ban on fences—so long as the
Commission could have exercised its police
power (as we have assumed it could) to forbid
construction of the house altogether,
imposition of the condition would also be
constitutional. Moreover (and here we come
closer to the facts of the present case), the
condition would be constitutional even if it
consisted of the requirement that the Nollans
provide a viewing spot on their property for
passersby with whose sighting of the ocean
their new house would interfere. Although such
a requirement, constituting a permanent grant
of continuous access to the property, would
have to be considered a taking if it were not
attached to a development permit, the
Commission's assumed power to forbid
construction of the house in order to protect
the public's view of the beach must surely
include the power to condition construction
upon some concession by the owner, even a
concession of property rights, that serves the
same end. If a prohibition designed to
accomplish that purpose would be a legitimate
exercise of the police power rather than a
taking, it would be strange to conclude that
providing the owner an alternative to that
prohibition which accomplishes the same
purpose is not. The evident constitutional
propriety disappears, however, if the
condition substituted for the prohibition
utterly fails to further the end advanced as
the justification for the prohibition.”
181
125. In Florance Dolan v. City of Tigard61, again the
scope of the Fifth Amendment or rather the Takings
Clause thereunder, fell for consideration. The owner
of a city plot applied for a building permit for a
bigger store than she had with certain other
facilities, including parking area. The permission
though granted came with two conditions. The owner was
to dedicate to the city, as a greenway, a portion of
her lot within the 100-year floodplain of a creek,
which flowed through one corner and along one boundary
of the lot. The owner had also to dedicate to the city
as a pedestrian/bicycle pathway, an additional 15-foot
strip of land adjacent to the floodplain. Her request
for variance of the conditions was rejected. This stand
was approved by the Authorities as also the Court of
Appeals with four learned Judges dissenting with the
Majority, remitted the matter back. Distinguishing the
decision in Village of Euclid v. Ambler Reality
Company62 and Agins (supra), the Court held, inter
alia, as follows:
61 512 US 374
62 272 US 365
182
“9. The sort of land use regulations discussed
in the cases just cited, however, differ in two
relevant particulars from the present case.
First, they involved essentially legislative
determinations classifying entire areas of the
city, whereas here the city made an
adjudicative decision to condition
petitioner's application for a building permit
on an individual parcel. Second, the conditions
imposed were not simply a limitation on the use
petitioner might make of her own parcel, but a
requirement that she deed portions of the
property to the city. In Nollan,
supra, we held that governmental authority to
exact such a condition was circumscribed by the
Fifth and Fourteenth Amendments. Under the
well-settled doctrine of “unconstitutional
conditions,” the government may not require a
person to give up a constitutional right—here
the right to receive just compensation when
property is taken for a public use—in exchange
for a discretionary benefit conferred by the
government where the benefit sought has little
or no relationship to the property. See Perry
v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33
L.Ed.2d 570 (1972); Pickering v. Board of Ed.
of Township High School Dist. 205, Will
Cty., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734,
20 L.Ed.2d 811 (1968).
Petitioner contends that the city has forced
her to choose between the building permit and
her right under the Fifth Amendment to just
compensation for the public easements.
Petitioner does not quarrel with the city's
authority to exact some forms of dedication as
a condition for the grant of a building permit,
but challenges the showing made by the city to
justify these exactions. She argues that the
city has identified “no special benefits”
conferred on her, and has not identified any
“special quantifiable burdens” created by her
new store that would justify the particular
183
dedications required from her which are not
required from the public at large.”
xxx xxx xxx
“[1c, 2d, 11a] We think the “reasonable
relationship” test adopted by a majority of the
state courts is closer to the federal
constitutional norm than either of those
previously discussed. But we do not adopt it
as such, partly because the term “reasonable
relationship” seems confusingly similar to the
term “rational basis” which describes the
minimal level of scrutiny under the Equal
Protection Clause of the Fourteenth
Amendment. We think a term such as “rough
proportionality” best encapsulates what we
hold to be the requirement of the Fifth
Amendment. No precise mathematical calculation
is required, but the city must make some sort
of individualized determination that the
required dedication is related both in nature
and extent to the impact of the proposed
development.”
126. The remand was limited to the first condition. In
regard to the second condition, viz., dedication for
the pedestrian bicycle pathway, the Court held as
follows:
“[1g, 13] With respect to the
pedestrian/bicycle pathway, we have no doubt
that the city was correct in finding that the
larger retail sales facility proposed by
petitioner will increase traffic on the streets
of the Central Business District. The city
estimates that the proposed development would
generate roughly 435 additional trips per
day.9 Dedications for streets, sidewalks, and
184
other public ways are generally reasonable
exactions to avoid excessive congestion from a
proposed property use. But on the record before
us, the city has not met its burden of
demonstrating that the additional number of
vehicle and bicycle trips generated by
petitioner's development reasonably relate to
the city's requirement for a dedication of the
pedestrian/bicycle pathway easement. The city
simply found that the creation of the pathway
“could offset some of the traffic demand ...
and lessen the increase in traffic congestion.”
As Justice Peterson of the Supreme Court of
Oregon explained in his dissenting opinion,
however, “[t]he findings of fact that the
bicycle pathway system ‘could offset some of
the traffic demand’ is a far cry from a finding
that the bicycle pathway system will, or
is likely to, offset some of the traffic
demand.” 317 Ore., at 127, 854 P.2d, at
447 (emphasis in original). No precise
mathematical calculation is required, but the
city must make some effort to quantify its
findings in support of the dedication for the
pedestrian/bicycle pathway beyond the
conclusory statement that it could offset some
of the traffic demand generated.”
127. No doubt, there were vigorous dissents expressed
by the four learned Judges. In the dissent by Justice
Stevens, with whom Justice Blackmun and Justice
Ginsburg agreed, the essential nexus requirement
propounded in Nollan (supra) was recognised. The
dissenting Judges, however, opposed the employment of
the ‘rough proportionality’ requirement. Decrying the
185
consequences that may follow from the requirement to
make ‘individualised determinations’, the learned
Judges found that the questions could be answered under
the framework of the existing caselaw. The learned
Judges also found that there was no basis for applying
the ‘Unconstitutional Conditions’ Doctrine. We are
tempted to and rightfully so, to advert to the
following observations in the dissenting Judgments in
regard to the true place of the Doctrine of
Unconstitutional Conditions:
“Even if Dolan should accept the city's
conditions in exchange for the benefit that she
seeks, it would not necessarily follow that she
had been denied “just compensation” since it
would be appropriate to consider the receipt
of that benefit in any calculation of “just
compensation.”
xxx xxx xxx
“In this respect, the Court's reliance on the
“unconstitutional conditions” doctrine is
assuredly novel, and arguably incoherent. The
city's conditions are by no means immune from
constitutional scrutiny. The level of
scrutiny, however, does not approximate the
kind of review that would apply if the city
had insisted on a surrender of Dolan's First
Amendment rights in exchange for a
building permit.”
186
128. In Linda Lingle, Governor of Hawaii, et al. v.
Chevron U.S.A.INC.63 in the context of a State statute
limiting the rent that oil companies could charge to
its dealer who lease service stations owned by the
companies took the view after noticing Nollan (supra)
and Dolan (supra) which we have referred to that
“substantially advances” formula is not a valid Takings
test initiated in Agnis (supra) and it was concluded
that it has no proper place in the Takings
jurisdiction.
129. In Village of Euclid, Ohio Et Al v. Ambler Reality
Company64, the village of Euclid lay in the form of a
parallelogram. The appellant was the owner of the land
measuring 68 acres. The entire area of the village was
divided into six classes of use places.
130. We may notice they appear to be similar to the
zones contemplated under the DCR in the instant cases.
There were restrictions in regard to use, the number
of dwellings and the height, inter alia. Appellant’s
land fell under U-2, U-3 and U-6. The Ordinance came
63 544 US 528, 161 L.Ed.2d 876
64 272 US 365 (1926)
187
to be challenged on the ground that it deprived the
appellant of its right to liberty and property without
due process of law as also equal protection of the law
under the Fourteenth Amendment to the U.S.
Constitution. Certain provisions of the State
Constitution were also relied upon.
131. Though in the context of the validity of the
restrictions under the Zoning Ordinance, we notice the
prescience of mind with which the Court approached the
matter and refused to apply constitutional safeguards:
“Building zone laws are of modern origin. They
began in this country about 25 years ago. Until
recent years, urban life was comparatively
simple; but, with the great increase and
concentration of population, problems have
developed, and constantly are developing,
which require, and will continue to require,
additional restrictions in respect of the use
and occupation of private lands in urban
communities. Regulations, the wisdom,
necessity, and validity of which, as applied
to existing conditions, are so apparent that
they are now uniformly sustained, a century
ago, or even half a century ago, probably would
have been rejected as arbitrary and oppressive.
Such regulations are sustained, under the
complex conditions of our day, for reasons
analogous to those which justify traffic
regulations, which, before the advent of
automobiles and rapid transit street railways,
would have been condemned as fatally arbitrary
and unreasonable.”
188
132. In the recent judgment relating to land use in the
United States reported in Coy A. Koontz v. St. Johns
River Water Management District65, the Court, speaking
through the majority Judgment (5:4), had the following
facts before it. The petitioner therein decided to
develop a 3.7 acre section of his property and he
applied for certain permits required in this regard.
To mitigate the environmental effects of his proposal,
the petitioner offered to foreclose any possible future
development of the approximately 11 acres southern
section of his land by deeding to the district a
conservation easement on that portion of his property.
The District, however wanted the petitioner to reduce
the size of development to 1 acre and deed the
conservation easement to the remaining extent of 13.9
acres. The District wanted the petitioner to make
improvement to District owned wet lands, several miles
away. The District hinted all that it would consider
alternative wherein monetary equivalent was proposed.
65 133 S.Ct. 2586 (2013)
189
It is in these facts that the majority view was inter
alia as follows: -
“II A [1,2] We have said in a variety of
contexts that “the government may not deny a
benefit to a person because he exercises a
constitutional right.” Regan v. Taxation
With Representation of Wash., 461 U.S. 540,
545, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983). See
also, e.g., Rumsfeld v. Forum for Academic and
Institutional Rights, Inc., 547 U.S. 47, 59–
60, 126 S.Ct. 1297, 164 L.Ed.2d 156
(2006); Rutan v. Republican Party of Ill., 497
U.S. 62, 78, 110 S.Ct. 2729, 111 L.Ed.2d 52
(1990).”
xxxx xxxx xxxx
“A second reality of the permitting process is
that many proposed land uses threaten to impose
costs on the public that dedications of
property can offset. Where a building proposal
would substantially increase traffic
congestion, for example, officials might
condition permit approval on the owner's
agreement to deed over the land needed to widen
a public road.”
xxxx xxxx xxxx
“(3) …Under Nollan and Dolan the government
may choose whether and how a permit applicant
is required to mitigate the impacts of a
proposed development, but it may not leverage
its legitimate interest in mitigation to pursue
governmental ends that lack an essential nexus
and rough proportionality to those impacts.”
190
xxxx xxxx xxxx
“(7) …Extortionate demands for property in the
land-use permitting context run afoul of the
Takings Clause not because they take property
but because they impermissibly burden the right
not to have property taken without just
compensation. As in other unconstitutional
conditions cases in which someone refuses to
cede a constitutional right in the face of
coercive pressure, the impermissible denial of
a governmental benefit is a constitutionally
cognizable injury.”
xxxx xxxx xxxx
“(13) …We agree with respondent that, so long
as a permitting authority offers the landowner
at least one alternative that would
satisfy Nollan and Dolan, the landowner has
not been subjected to an unconstitutional
condition.”
133. It is noteworthy to begin with that in India there
is no provision similar to the Takings clause in the
5
th amendment to the US constitution. It is in fact true
that Article 31(2) did provide that a person could not
be deprived of his property except after payment of
compensation. Article 31 stands deleted by the FortyFourth Amendment. In Article 300A, what has been
inserted by the same amendment is only the first limb
191
of Article 31, viz., no person shall be deprived of his
property save by authority of law. The ambit of this
Article has been discussed in the decision in K.T.
Plantations (supra).
134. Even under the Takings clause, we may only notice
Nollan-Dolan (supra) and as interpreted by the majority
in Koontz (supra) it is open to the government to
consider how the permit applicant must mitigate the
impacts of a proposed development and what is required
to make State action legitimate is that the conditions
imposed must bear an essential nexus and a rough
proportionality to the impacts perceived.
ENTRY 42 OF LIST III OF THE SEVENTH SCHEDULE
135. Is the impugned Rule/Regulation, a case where it
would be said that Entry 42 in List III to the Seventh
Schedule applies? In other words, is there acquisition
of land and is it a case of exercise of eminent domain
by the state? Is it a case where the impugned provisions
are more relatable to the exercise of police power?
Does the impugned provision constitute deprivation of
property within the meaning of Article 300A? Since we
192
have held that the impugned provision in the case of
the rule is law, would not the Rule be a law which
provides for deprivation of property, and therefore,
there is no violation involved at all. Does the
impugned Rule bring about deprivation and for which
compensation must be paid, failing which it cannot but
perish by placing it side by side with Article 300A?
136. We have noticed that right from 1975 onwards with
the promulgation of DCR along with a master plan, and
subsequently, in the year 2008, with the enactment of
the regulations, and still, what is more, in
supersession of the Regulations by the Rules of 2019,
the Law Giver has put in place the requirement of making
available 10 per cent of land excluding roads for the
purpose of communal and recreational purposes, when the
layout exceeds 10000 square meters.
137. To the question, which we posed, viz., whether what
is involved is acquisition of the property or an
exercise of the power of eminent domain, we are of the
view that stipulating the conditions that a person who
seeks to develop his property in a sprawling and evergrowing urban metropolis which is sought to be
193
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.
138. We must bear in mind that while right to hold and
enjoy property was a Fundamental Right under Article
19(1)(f), w.e.f. 1978 it ceased to be a Fundamental
Right. Equally, Article 31, which was also a
Fundamental Right in regard to property, including the
right to compensation as provided under Article 31(2)
stood deleted. Article 300A was inserted resurrecting
only Article 31(1). The right to property has been
described by this Court as a Statutory Right; a human
right and also a constitutional right. We must
therefore proceed on the basis that a person would
continue to have despite the Forty-Fourth Amendment, a
statutory right, a human right and a constitutional
right to property.
139. An acquisition is a compulsory vesting of the
property of a person with the state. It is traceable
undoubtedly to the power of eminent domain assured to
194
every sovereign. It can undoubtedly be exercised only
for securing public interest as contrasted with
promotion of private interest (See K.T. Plantation
(supra)66).
140. K.T. Plantations (supra) was a case which involved
the validity of a law which provided for compulsory
acquisition under the State enactment. The
understanding of this Court in K.T. Plantations (supra)
was that a person cannot be deprived of his property
merely by executive fiat without any specific legal
authority or without support of law made by a competent
Legislature (See paragraph-168). We must notice here
that law for the scope of Article 300A has been
explained by this Court in Bishambhar Dayal Chandra
Mohan and others v. State of Uttar Pradesh and others67
(paragraph-41) as follows:
“41. There still remains the question whether
the seizure of wheat amounts to deprivation of
property without the authority of law. Article
300-A provides that no person shall be deprived
of his property save by authority of law. The
State Government cannot while taking recourse
to the executive power of the State under
Article 162, deprive a person of his property.
66 (2011) 9 SCC 1
67 (1982) 1 SCC 39
195
Such power can be exercised only by authority
of law and not by a mere executive fiat or
order. Article 162, as is clear from the
opening words, is subject to other provisions
of the Constitution. It is, therefore,
necessarily subject to Article 300-A. The word
“law” in the context of Article 300-A must mean
an Act of Parliament or of a State legislature,
a rule, or a statutory order, having the force
of law, that is positive or State made law.
The decisions in Wazir Chand v. State of
H.P. [AIR 1954 SC 415: (1955) 1 SCR 408 : 1954
SCJ 600 : 1954 Cri LJ 1029] and Bishan
Das v. State of Punjab [AIR 1961 SC 1570 :
(1962) 2 SCR 69 : (1963) 1 SCJ 405] are an
authority for the proposition that an illegal
seizure amounts to deprivation of property
without the authority of law. In Wazir Chand
case [AIR 1954 SC 415 : (1955) 1 SCR 408 : 1954
SCJ 600 : 1954 Cri LJ 1029] the police in India
seized goods in possession of the petitioner
in India at the instance of the police of the
State of Jammu & Kashmir. The seizure was
admittedly not under the authority of law,
inasmuch as it was not under the orders of any
Magistrate; nor was it under Sections 51, 96,
98 and 165 of the Code of Criminal Procedure,
1898, since no report of any offence committed
by the petitioner was made to the police in
India, and the Indian police were not
authorised to make any investigation. In those
circumstances, the Court held that the seizure
was not with the authority of law and amounted
to an infringement of the fundamental right
under Article 31(1). The view was reaffirmed
in Bishan Das case [AIR 1961 SC 1570 : (1962)
2 SCR 69 : (1963) 1 SCJ 405].”
196
141. What this Court in K.T. Plantations (supra) meant
was to distinguish ‘law’ as a legislative measure as
distinct from mere Executive fiat.
142. The intention of Parliament was to do away with
the Fundamental Right to acquire, hold and dispose of
property (See paragraph-179). Deprivation of property
must take place for public purpose primarily (See
paragraph-180). Public purpose must be given an
expansive meaning (See paragraph-181). Payment of
compensation is a constitutional requirement under
Article 30(1)(A) and under the second proviso to
Article 31(A)(1) unlike Article 300A. After the FortyFourth Amendment, the constitutional obligation to pay
compensation to a person deprived of his property is
dependent on the Statute. (See para 183). We may refer
to the following observations in paragraph 188:
“188. We find no apparent conflict with the
words used in List III Entry 42 so as to infer
that the payment of compensation is inbuilt or
inherent either in the words “acquisition and
requisitioning” under List III Entry 42. Right
to claim compensation, therefore, cannot be
read into the legislative List III Entry 42.”
197
143. This would mean that the argument of the parties,
based on the impugned provisions being violative of
Article 254 of the Constitution, is untenable. We may
equally notice paragraph-189:
“189. Requirement of public purpose, for
deprivation of a person of his property under
Article 300-A, is a precondition, but no
compensation or nil compensation or its
illusiveness has to be justified by the State
on judicially justiciable standards. Measures
designed to achieve greater social justice, may
call for lesser compensation and such a
limitation by itself will not make legislation
invalid or unconstitutional or confiscatory.
In other words, the right to claim compensation
or the obligation to pay, though not expressly
included in Article 300-A, it can be inferred
in that article and it is for the State to
justify its stand on justifiable grounds which
may depend upon the legislative policy, object
and purpose of the statute and host of other
factors.”
144. We may also recapture paragraphs-191 and 192:
“191. The legislation providing for
deprivation of property under Article 300-A
must be “just, fair and reasonable” as
understood in terms of Articles 14, 19(1)(g),
26(b), 301, etc. Thus in each case, courts will
have to examine the scheme of the impugned Act,
its object, purpose as also the question
whether payment of nil compensation or nominal
compensation would make the impugned law
unjust, unfair or unreasonable in terms of
other provisions of the Constitution as
indicated above.”
198
“192. At this stage, we may clarify that there
is a difference between “no” compensation and
“nil” compensation. A law seeking to acquire
private property for public purpose cannot say
that “no compensation shall be paid”. However,
there could be a law awarding “nil”
compensation in cases where the State
undertakes to discharge the liabilities
charged on the property under acquisition and
onus is on the Government to establish validity
of such law. In the latter case, the Court in
exercise of judicial review will test such a
law keeping in mind the above parameters.”
145. A perusal of the paragraphs, which we have adverted
to, would reveal that, while in paragraph-189, it is
made to appear that no compensation or nil compensation
or its illusiveness has to be justified on judicially
justifiable standards, in paragraph-192, it is held
that a law providing for acquisition of private
property for public purpose cannot say that no
compensation could be paid. At this juncture, we
consider it apposite to refer to paragraph-141:
“141. Eminent domain is distinguishable alike
from the police power, by which restriction are
imposed on private property in the public
interest e.g. in connection with health,
sanitation, zoning regulation, urban planning
and so on from the power of taxation, by which
the owner of private property is compelled to
contribute a portion of it for the public
199
purposes and from the war power, involving the
destruction of private property in the course
of military operations. The police power
fetters rights of property while eminent domain
takes them away. Power of taxation does not
necessarily involve a taking of specific
property for public purposes, though analogous
to eminent domain as regards the purposes to
which the contribution of the taxpayer is to
be applied. Further, there are several
significant differences between regulatory
exercises of the police powers and eminent
domain of deprivation of property. Regulation
does not acquire or appropriate the property
for the State, which appropriation does and
regulation is imposed severally and
individually, while expropriation applies to
an individual or a group of owners of
properties.”
146. What is of interest to this Court in these cases
is the observation that eminent domain is to be
contrasted with police power, where restrictions are
put in public interest, in connection with zoning
regulations, urban planning, inter alia, by which the
owner of a private property is compelled to contribute
a portion of it for public purpose. No doubt, it is
also held that Regulation does not acquire or
appropriate the property.
147. We must appreciate the issues before us in the
light of the said exposition.
200
148. The impugned provision does not represent in our
view, 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 us to be a case of such acquisition as is
contemplated in a law which is made with reference to
Entry 42 in List III. In this context, we must also
deal with the case based on Section 20 of the Act.
Section 20 deals with contents of detailed development
plan. Section 20 (d) reads as follows and it provides,
inter alia, the contents:
“Section 20(d). The acquisition by purchase,
exchange or otherwise of any land or other
immovable property within the area included in
the detailed development plan whether required
immediately or not.”
149. From a perusal of the said provisions, what it
contemplated, can be summed-up as follows. A detailed
development plan can propose or provide to purchase or
exchange any land or immovable property. The land may
be required immediately or it may be not so immediately
201
required. What is important is apart from purchase and
exchange, the property may be ‘acquired otherwise’. We
are not concerned with a challenge to Section 20. As
Section 20 stands acquisition by way of a gift cannot
be said to be incongruous merely by reference to the
two other expressly articulated modes of transfer of
title, viz., purchase and exchange. Undoubtedly, a gift
is a transfer of property without there being any
valuable consideration. It is an act of volition of the
owner. In other words, if a plan does provide that
right in land or other immovable property may be
acquired in terms of a gift which may be executed, it
may not involve straining the plain language, and also
involve pouring meaning into the width of the
expression ‘otherwise’ just as much as it avoids
placing a narrow connotation on a word of wide import.
150. The decision in Pandit Chetram Vashishta (supra)
was a decision, which turned on the absence of any
power under which the open space or park was to stand
vested in a corporation or to stand transferred to it.
In fact, this Court found that the effect of the
reservation was that the donor ceased to be the legal
202
owner of the land in dispute. He held the land for the
benefit of society or the public in general. The donor
became essentially a trustee preventing alienation of
his right. The court however drew a distinction between
the owner being transformed into the trustee and being
prevented from transferring his rights and the local
body being vested with the rights of the owner. As far
as the impugned provisions in these cases are
concerned, the DCR not only obliges setting apart a
certain percentage (10 per cent) for the communal and
recreational purposes in respect of very large projects
but also a transfer, is to be made of the property so
set apart by the owner. We will delve upon the impact
of this decision at a later point of time in a different
context. At the same time, we must also bear in mind,
the Judgment of this Court in Yogendra Pal and others
(supra). In Yogendra Pal and others, we have already
noticed the facts. What was involved there was the
violation of Section 192(1)(c) of the Punjab Municipal
Act, 1911. The provision provided that the Municipal
Committee may prepare a building scheme, which may,
inter alia, provide that the amount of land in unbuilt
203
area shall be transferred to the committee for public
purposes including use as public streets by owners of
land either on payment of compensation or otherwise,
provided that the total amount so transferred shall not
exceed thirty-five per cent, and the amount transferred
without payment shall not exceed twenty-five per cent,
of any one owner’s land within such unbuilt area. What
appealed to this Court as the basis for transgression
of Article 14 has been adverted to by us and which is
contained in paragraphs-14 and 15 of the said Judgment.
It must be remembered that the principal plank of
attack against the provision in question was that it
fell foul of Article 19(1)(f) read with Article 31 of
the Constitution as the Articles stood then. The
transfer effected in the said case, it may be noticed
was prior to 20.06.1979 on which date the Forty-Fourth
Amendment came into being. Therefore, the case was that
it amounted to acquisition of property. This Court
found merit in the contention that what was involved
was actually acquisition and the transfer was not
merely for a limited purpose. It was found that there
was no provision in the Act to suggest that despite
204
employment of the land for public purpose, the
ownership and possession or occupation continued with
the landowner. The landowner was compelled to enjoy
rights only as a member of the public. The Court also
rejected the case of the transfer being only for a
limited purpose. A perusal of Section 192(1)(c) reveals
that the said provision is not comparable with the
provision impugned in the cases before us. Section
192(1)(c) of the Punjab Tenancy Act, 1911 was clearly
in the nature of acquisition. The rights of the person
were extinguished effectively. The provision vested
power or a discretion to acquire land either on payment
of compensation or otherwise. As already noticed, this
was done at a time when Article 19(1)(f) and Article
31 of the Constitution, both being Fundamental Rights,
continued to hold the field. No doubt, the decision is
rested ultimately on the impugned provision being found
to be contrary to Article 14. What is pertinent,
however, is that, in the case of the Rule/Regulation
impugned, as we have already found, is not a case of
exercise of power of eminent domain, and it is not a
case of acquisition by means of compulsory exaction of
205
the property. What is involved in these cases, is a
different factual matrix. A person or a group of
persons, owning an extent of land, which is in excess
of 10,000 square metres in a fast-growing urban
metropolis, wish to develop the land. It is,
apparently, a commercial venture. They put-up, what is
called, special buildings or group development. This
involves making optimum use of the land by putting up
vertical constructions. In other words, ordinarily,
large number of persons would come to occupy the area
with a layout of more than 10,000 square metres. The
Law Giver has contemplated provision of roads within
the layout of roads. In fact, the roads are themselves
to become public. Interestingly, even in the challenge
made by the Writ Petitioner in Writ Petition No. 651
of 2015, viz., the petitioner has specifically limited
the challenge to the regulation to the requirement of
gifting the area comprised in the land for communal and
recreational purposes. The Regulations, as did the
Rules, provide for the roads to become public and
become open to the members of the public. A gift, in
this regard, is not ironically objected to.
206
151. We have noticed from the pleadings that the
appellants and the petitioner substantially do not
challenge the setting apart of land for the purpose of
communal or recreational purpose. The objections appear
to be as follows. The word ‘communal’ must be
contextually interpreted to confine the benefit of
reservation for the occupants of the buildings and it
must not be made available to the members of the public.
In the case of Vasanth Apartments, they object to the
land set apart under the gift deed, being used to cater
to the members of the public in general, by converting
it into a public road. In fact, it must be remembered
that in the case of Vasanth Apartments, as rightly
pointed out by Shri Jayant Muth Raj, learned Senior
Counsel, the gift was not executed by the members of
the Association. The property was gifted by the
developer as a condition for developing the land. The
developer, in other words, who put together the project
or developed the project, is the person who would have
a right to have the property revested. He accepts the
gift. It is obvious that having been a party to the
gift it may not lie in his mouth to impeach the same.
207
[See in this regard the Judgment of this Court in
Narayanrao Jagobaji (supra)]. It is not as if the
members of the Vasanth Apartment Owners Association
claim to have an assignment of the right over the land
which is gifted from the original owner. Therefore, as
far as the members of the Vasanth Apartment Owners
Association are concerned, on the factual basis
available, it may not lie in their mouth, noticing two
other features as well, to contend that the Court must
invalidate the Rule. The gift was executed in the year
1994. The Writ Petition is filed almost 12 years after.
Secondly, the first Writ Petition, filed by the members
of the Vasanth Apartment Owners Association, was by
drawing support from the gift deed. They wanted that
the property must be continued as recreational and OSR
area. A learned Single Judge allowed the writ petition.
Thereafter, there were two Writ Appeals filed, one by
persons who claimed that the area was being used as a
public road, and another, by the Corporation of Chennai
and the CMDA. There was an interim Order passed by the
Division Bench. It is thereafter, that the second Writ
Petition is filed by them challenging the Rule. While,
208
it is true that mere passage of time will not make an
unconstitutional provision valid, the delay, with which
a prevailing Statute is impugned, becomes a factor,
which the Court would not ignore. In this case, as if
such factors were not sufficient, we notice the further
development. The Rules came to be repealed by the
Regulations in the year 2008 and the Regulation stood
repealed in the year 2019 by Statutory Rules made in
the said year. The challenge to the Rule, on the basis
of Article 300A and, indeed, Article 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.
152. In the case of M/s. Keyaram Hotels Pvt. Ltd., their
complaints, apart from those dealing with legality of
the Rule on other grounds, which we had noticed and
discussed, remain the following.
209
Before we go to the other complaints, we have
already noticed, in paragraph 10 of the Writ Petition,
the appellant/petitioner (M/s. Keyaram Hotels Pvt.
Ltd.) has expressed its willingness for stipulating
open space as required for communal and recreation use
of the occupiers and lawful uses of the building and
it was specifically averred that it would satisfy the
public interest. It is specifically undertaken that
they will keep 10 per cent of the area as open space
for communal and recreational purpose. However, they
have raised the complaint that further, apart from the
direction to execute the gift, the condition, imposed
to provide exclusive frontage for the said open space
into the main road, is unsustainable in law. It is the
complaint that the attempt to the third respondent is
to gain entry into the property of the petitioner to
make use of the open space reserved, detrimental to the
rights of the property owner.
153. The matter may be viewed in the following manner.
In the facts in Pandit Chetram Vashishta (supra), it
was held that the position of the developer, would be
that of a trustee. It was so held in the absence of a
210
statutory mandate. Now, in this case, there is a
statutory mandate to execute a gift deed. The question
would arise as to what would be the nature of the rights
of the donee, viz., the local authority. Would the
donee become an absolute owner? Can the local authority
transfer the land? Can the local authority build on the
OSR area? The answer to all these questions is only in
the negative. Unlike the donee, in the case of a gift,
the local authority cannot in anyway acquire the right
as the absolute owner. Just as in the case of Pandit
Chetram Vashishta (supra), where the developer would
be a trustee, we would think that the Rule, if is to
be upheld, in the conspectus of the law and bearing in
mind the object, the transfer by way of a gift to the
donee will be only for the purpose of ensuring that the
object of the law is attained, i.e., the property is
maintained as OSR. The local authority, under the gift
deed, would be a mere trustee. As trustee, it will be
the obligation of the local authority to ensure that
all such lands, set apart under the impugned Rules/
Regulations, are effectively maintained as such. In
211
this regard, in the Open Space Act, 1906, a U.K. Law,
Section 3 reads as follows:
“3 Transfer to local authority of spaces held
by trustees for purposes of public recreation.
(1) Where any land is held by trustees (not
being trustees elected or appointed under any
local or private Act of Parliament) upon trust
for the purposes of public recreation, the
trustees may, in pursuance of a special
resolution, transfer the land to any local
authority by a free gift absolutely or for a
limited term, and, if the local authority
accept the gift, they shall hold the land on
the trusts and subject to the conditions on and
subject to which the trustees held the same,
or on such other trusts and subject to such
other conditions (so that the land be
appropriated to the purposes of public
recreation) as may be agreed on between the
trustees and the local authority with the
approval of the Charity Commission.
(2) Subject to the obligation of the land so
transferred being used for the purposes of
public recreation, the local authority may hold
the land as and for the purposes of an open
space under this Act.”
154. 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, we find that the apprehensions and the
contentions of the appellant/petitioner lose their
212
sheen. We are 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. As already
discussed, 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
213
deprivation. However, we are of the view that, in
substance, the Rule/Regulation cannot be understood as
deprivation under Article 300A.
155. We have indicated earlier that this Court has
recognised Right to Property as a Constitutional Right
on account of insertion of Article 300A. In the context
of the Principle of Unconstitutional Condition, as
recognised in the United States, could it be said that
the impugned Rule/Regulation presents a case of an
unconstitutional condition? While, as already found by
us, the impugned provisions, do not make out a case of
acquisition as it is not a compulsory divesting of
title and a gift is executed on the basis that the
project proponent/owner volunteers to execute the gift
deed and no doubt, in view of the Rule, the execution
of the gift deed, finally, brings in the element of
consent and takes the transaction out of the Doctrine
of Eminent Domain, which requires compulsory
acquisition de hors the consent of the person having
interest in the property, but then the question arises,
whether the impugned provisions involves a person
having a Constitutional Right under Article 300A,
214
having to sacrifice his Right as a condition to obtain
the development permit. This Court has declared the
right of a person to construct a building, is a right
under the law, viz., the Statute, which governs the
same. In the said sense, it becomes a Statutory Right.
The right is hedged in necessarily with limitations and
conditions. Now, superimposing the mandate of Article
300A, the question arises, whether the instant case
involves employment of an unconstitutional condition.
In Ahmedabad St. Xavier's College Society v. State of
Gujarat68, Justice Mathew while dealing with the content
of the right guaranteed under Article 30(1) in regard
to recognition or affiliation held inter alia as
follows:
“158. The doctrine of “unconstitutional
condition” means any stipulation imposed upon
the grant of a governmental privilege which in
effect requires the recipient of the privilege
to relinquish some constitutional right. This
doctrine takes for granted that ‘the petitioner
has no right to be a policeman’ but it
emphasizes the right he is conceded to possess
by reason of an explicit provision of the
Constitution, namely, his right “to talk
politics”. The major requirement of the
doctrine is that the person complaining of the
condition must demonstrate that it is
unreasonable in the special sense that it takes
68 (1974) 1 SCC 717
215
away or abridges the exercise of a right
protected by an explicit provision of the
Constitution (see William W. Van Alstyne: “The
Demise of the Right-Privilege Distinction in
Constitutional Law” [81 Harv Law Rev 1439]).”
156. In a case involving exercise of power to terminate
service of a permanent employee of public/semi
government undertaking or statutory corporations only
by giving a month’s notice, this Court inter alia held
in Delhi Transport Corpn. v. D.T.C. Mazdoor Congress69
as follows:
283. The problem also could be broached from
the angle whether the State can impose
unconstitutional conditions as part of the
contract or statute or rule etc. In (1959-60)
73 Harvard Law Review, in the Note under the
caption ‘Unconstitutional Condition’ at pages
1595-96 it is postulated that the State is
devoid of power to impose unconstitutional
conditions in the contract that the power to
withhold largesse has been asserted by the
State in four areas i.e. (1) regulating the
right to engage in certain activities; (2)
administration of government welfare
programme; (3) government employment; and (4)
procurement of contracts. It was further
adumberated at pages 1602-03 thus:
“The sovereign's constitutional authority to
choose those with whom it will contract for
goods and services is in effect a power to
withhold the benefits to be derived from
economic dealings with the government. As
69 (1991) Suppl.1 SCC 600
216
government activity in the economic sphere
increases, the contracting power enables the
government to control many hitherto
unregulated activities of contracting
parties through the imposition of conditions.
Thus, regarding the government as a private
entrepreneur threatens to impair
constitutional rights…. The government,
unlike a private individual, is limited in
its ability to contract by the Constitution.
The federal contracting power is based upon
the Constitution's authorisation of these
acts ‘necessary and proper’ to the carrying
out of the functions which it allocates to
the national government. Unless the
objectives sought by terms and conditions in
government contracts requiring the surrender
of rights are constitutionally authorised,
the conditions must fall as ultra vires
exercise of power.”
Again at page 1603, it is further emphasised
thus:
“When conditions limit the economic benefits
to be derived from dealings with the
government to those who forego the exercise
of constitutional rights, the exclusion of
those retaining their rights from
participation in the enjoyment of these
benefits may be violative of the prohibition,
implicit in the due process clause of Fifth
Amendment and explicit in the equal
protection clause of the Fourteenth Amendment
against unreasonable discrimination in the
governmental bestow of advantages. Finally,
disabling those exercising certain rights
from participating in the advantages to be
derived from contractual relations with the
government may be a form of penalty lacking
in due process. To avoid invalidation for any
of the above reasons, it must be shown that
the conditions imposed are necessary to
secure the legitimate objectives of the
217
contract, ensure its effective use, or
protect society from the potential harm which
may result from the contractual relationship
between the government and the individual.”
157. The Doctrine of Unconstitutional Condition
involves a person having to give-up a Constitutional
Right as a condition to obtain a benefit he is otherwise
entitled to. While it is in the context of Article
300A, to be understood that the Right to Property
cannot be deprived except in accordance with law and
even as held in K.T. Plantations (supra) that such law
must be fair and reasonable, once it is found that
there is such a law, then, even if there is deprivation,
it cannot be found that Article 300A is violated. We
have already found, in fact, that there is no
deprivation in the context of the impugned
Rules/Regulations. In the conspectus of the DCR/
Regulation, the nature of the right to property
available under the Constitution as expounded in K.T.
Plantations (supra), the seemingly never ending
imperative needs of an urban metropolis, the
indisputable need to set apart 10% for the recreational
purpose and the discussion we have already made with
218
regard to the effect of the gift and the purpose it
serves, we are of the view that the rule/regulation may
not give rise to any room for invoking the doctrine of
unconstitutional condition. We must continue to remain
alive to the vital dimension which we have already
indicated that the impugned provision essentially
pertains to what can be described as purely commercial
projects though it is linked with property rights. In
other words, particularly from the stand point of
invoking the doctrine of unconstitutional condition,
the distinction between the person putting up a
residential building and the proponent of a complex,
commercial project in a metropolis cannot be lost sight
of. At any rate, we cannot in the conspectus of the
Rule/Regulation and the salutary purpose, it seeks to
achieve hold the requirement as an “unreasonable
condition in a special sense”. [See para 155]
158. The case of the CMDA is that in view of the benefits
which accrue, it could be a case of nil compensation.
The distinction between nil compensation and no
compensation has been laid down to be that in the former
it is permissible on the basis that it becomes liable
219
to discharge the liability in regard to the
person/property. In the context of the rule/regulation,
we would not think that there would be violation of
Article 300A on the basis of it being a deprivation of
property involving breach of a mandate to pay
compensation. It must be at once noticed that what is
involved is the need to execute a gift. By its very
nature, in the case of a gift, there cannot be any
valuable consideration. If compensation is to be paid
then it would cease to be a gift. Having regard to the
discussion we have made regarding the validity of the
rule/regulation otherwise, we do not think that
execution of the gift which we have found transformed
the donee not as the absolute owner but as trustee
would require having regard to the salutary purpose,
the need to pay compensation. It may not be a case where
the respondent discharges any liability as such. It is
another matter that the project proponent stands to
make a considerable profit as a result of the
permission granted.
159. In case there is no requirement to execute a gift
of OSR area in terms of Pandit Chetram Vashishta
220
(supra), the project proponent/owner would remain in
the position of a trustee. As a trustee in law is the
legal owner, and therefore this being the position in
law, he may not be disabled from transferring the
property in any manner. However, as he is under
obligation as a trustee to maintain the property as
OSR, he cannot defeat the obligation by transferring
the same and it can lead to abuse. No doubt, he would
be prohibited from raising any construction over the
OSR area. One of the bundle of rights of an owner,
however, which would survive after the owner steps into
the shoes of a trustee, could be said to be the power
to exclude ‘others’ from the OSR area. The attribute
of ownership of property consisting of the power to
exclude others may continue with the project proponent
in the absence of a gift. Now, interestingly, this
again would depend upon the interpretation of the words
‘communal and recreational purpose’. This is for the
reason that if the OSR area can be accessed by members
of the general public as contended by the respondents,
then, the project proponent cannot possibly have the
right of an owner to exclude them. Equally, even with
221
the requirement to maintain the OSR area in the absence
of the demand for a gift, it could be said that the
sole project of proponent could have the right to
remain in possession. Another dimension may be noticed.
What would happen if the OSR area is acquired in the
exercise of the power of eminent domain for the public
purpose? Who would be entitled to the compensation, if
a gift is made in terms of the impugned
Rule/Regulation? We would think that since the
interpretation we are placing is that the gift under
the Rule/Regulation is intended only to ensure due
compliance with the requirement of the OSR area being
effected and to prevent misuse by the owner, as between
the original owner and the local authority, it would
be the original owner, who may be entitled to the
compensation.
160. The time, therefore, is ripe to deal with the
meaning of the words open space reservation of land for
communal and recreational purposes.
161. Group development falls under Rule 19(b)(2) of
the DCR. Group development is defined as accommodation
for residential or commercial or combination of such
222
activities housed in two or more blocks of buildings
in a particular site irrespective of whether these
structures are interconnected or not. Rule 19(b)(ii)
proceeded to provide for the minimum width of the
public road on which the site abuts. The vehicular
access way including passage if any within the site was
to have a minimum width. It also referred to set back
requirements. Parking standards were prescribed [See
19(b)(ii)(v)]. It is, thereafter, that the open space
requirement was provided by declaring that reservation
of land for communal and recreational purposes shall
be as follows and it must at this juncture be noticed
that there is an explanation, which reads as follows:
-
“Explanation: -
(1) For the purposes of this rules, existing
development defined as one “Where the extent
of ground area covered by structures already
existing (prior to application) in 25% and
above of the total site area”.
(2) In case of existing development where it
is difficult to leave the 10% area as open
space for communal / recreational purposes, the
Authority reserves the right to collect the
market value of equivalent land in lieu of the
land to be reserved. However, if on a future
date the developer wants to demolish the
existing structures and raise new structures
223
on the site in question, the communal and
recreational space shall be reserved, as per
rule.
(3) The land so reserved shall be free from
any construction by the owner or promoter or
developer. The land for communal and
recreational purposes shall be restricted at
ground level in a shape and location to be
specified by the Chennai Metropolitan
Development Authority.”
162. In the case of Writ Petition No. 691 of 2015
wherein the regulation of the year 2008 has been
challenged as we have noticed there is no challenge to
Regulation 29(6)(a), which, inter alia, provides how
the land reserved is to be restricted at the ground
level. It is true that there is a challenge to Annexure
XX, which we have extracted in paragraph 118 of the
judgment. But the absence of challenge to Regulation
29(6) is fatal. We must proceed on the basis that
there is no challenge to the terms of the explanation
to Rule 19(b)(II)(vi) which in Clause (iii) provides
that the land so reserved shall be free from any
construction by the owner, promoter or developer, and
what is more important, the manner in which the land
is to be provided for communal and recreational purpose
224
is that it is to be restricted at ground level in a
shape and location to be specified by the Chennai
Metropolitan Development Authority. This provision has
not been expressly challenged. In the absence of a
challenge, what is contained in a rule and also the
like provision in the regulation, the resultant
position would be the exact shape and the location is
to be determined by the CMDA.
163. The problem, however, still persists in the form
of the meaning of the words ‘communal and recreational
purpose’ in the case of a site having an extent between
3,000 square metres to 10,000 square metres. 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
225
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. It will be noticed
that 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.
However, it will be noticed that Rule 19(b)(II)(vii)
reads as follows: -
“(vii) The Authority reserves the right to
enforce the maintenance of such reserved lands
by the owner to the satisfaction of the
Authority or order the owner to transfer the
land to the Authority or any local body
226
designated by it, free of cost, through a deed,
the Authority as the case may be, reserve the
right to decide on entrusting the maintenance
work to institution/individual on merits of the
case.
Explanations under DCR 19 (b):-
(1) For Economically Weaker Section group
housing, the set back shall be 4.5 metre from
the site boundary and the spacing between the
blocks shall be a minimum of 3 metres. The
vehicular access way within the site shall have
a minimum width of 4.5 metres. Other
stipulations shall be as in rule 19(b) (II)
above. But, this shall be applied only in sites
duly declared for Economically Weaker Section
housing by Government.
(2) The corridor within the buildings shall be
accordance with the standard prescribed in
Annexure XII-A.
(3) In matter of standards other than specified
in these rules, the stipulation and the
specifications laid down by the Indian
Standards Institutions shall apply.
(4) Structures incidental to the main
activities such as water-closet, bath and pump
room shall not be construed as individual
blocks for the purpose of these rules. But,
these structures shall not be permitted in the
prescribed set back spaces.
III (a) Notwithstanding anything mentioned
above layouts for group housing, Economically
Weaker Section Housing, sites and services
projects, slum improvement schemes may be
approved, subject to such conditions as may be
stipulated by the Authority.”
227
164. The impact of Rule 19 (b)(II)(vii) is as follows.
It empowers the CMDA to enforce the maintenance of the
reserved areas by the owner to the satisfaction of the
authority or to order the owner to transfer the land
to the authority or any local body free of cost through
a deed. The authority also reserves the right to decide
on entrusting the maintenance work to
institutions/individual on the merits of the case. It
is noteworthy that there is no challenge to Rule
19(b)(II)(vii). It would appear that when a gift is
executed then the duty of maintaining can be given to
institution/individual on the merits of the case. This
would mean that even the project proponent or other
individual/individuals who may have an interest as in
the case of Vasant Apartments Owners Association, the
said Association could be asked to maintain the open
area.
165. The impression we gather 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
228
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 as we have
seen, has been made after the process undergone under
the Act, as we have noticed, 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
229
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. Congestion in urban areas is a foreseen
certainty. The requirement for lung space and that too
the need for the same being available in the close
vicinity of the area of residents is not difficult to
conjure. Planned development has a considerable deal
to do with the quality of the lives of the residents
in an urban area, as can be perceived from provision
made for aspects relating to parking, setback, roads,
all of which do apparently make inroads into absolute
right of property of developer. They are indispensable
necessities from the standpoint of the town planner as
much as it is for the residents in an urban area. While
we are conscious of the fact that the DCR did
contemplate open space zones which must be understood
as parks, etc., as one of the zones, the idea,
apparently, was to avoid concentration and the
consequent need to undertake avoidable travel for the
230
residents of an area to the site of the open space
zone. An open space requirement is stipulated world
over based on very formidable considerations. The fact
that no construction is to be put up is the very
corollary of and is in consonance with an ‘open’ space
requirement. Still further, parks inevitably would have
trees. Trees ensures a steady supply of much needed
oxygen. Providing other recreational measures, which
are at the heart of quality of a person’s life, in
keeping with modern demands, are critical elements of
a legitimate public interest.
166. Having made these observations, we pass on to
consider further aspects. In the case of Vasanth
Apartments, i.e., Civil Appeal Nos. 1890-1891 of 2010,
the developer undoubtedly executed a gift deed. A
contention is taken on behalf of the respondents
including Shri Jayant MuthRaj that the donor has gifted
the land for roads and parks from the perusal of the
gift deed. It would appear that the donor has indeed
gifted the land in question and provided that the donee
may peacefully and quietly enjoy the said land ‘of
roads/parks’ free from all encumbrances. At this
231
juncture, we bear in mind the actual terms of the gift
deed executed in the case of Association of Vasanth
Apartments, which we have adverted to in paragraph-47
of this Judgment.
167. The Division Bench has considered the report of
the Advocate Commissioner also to find that there
existed a kachha pathway and that is a road which is
being used by thousands in terms of the gift deed which
came into effect. It is their contention that even if
it is found by this Court that in terms of the OSR
requirement of 10 percent of the land, it can only be
used as open space for communal and recreational
purpose and not for a road, this Court may not
interfere.
168. Firstly, we must consider the ambit of the words
communal and recreational purpose and find whether it
could take in a public road for being used by members
of the public generally. Equally, we must consider
whether the word communal is capable of extending the
benefit of the open space requirement to the members
of the general public or whether it must be confined
to the beneficiaries of the group development. In other
232
words, if the word communal is interpreted as the
community of the beneficiaries of the group
development, then it must be understood as meaning that
members of the general public cannot be permitted to
partake of the benefits flowing from the open space
reservation. For instance, if adjoining the site and
as indicated in the explanation in a shape and location
determined by the CMDA, a park is constructed. By use
of the word communal and interpreting it to mean a
community which is larger than the mere beneficiaries
of the group development as such, then the benefit of
the open space may become available to the general
public in the nearby area. This would have the
advantage of facilitating the members of the public
avoiding travelling to the areas where there is
recreation or open space, as for instance, under the
zoning requirements. Undoubtedly, the absence of any
construction which is indispensable to make it an open
space area and which is insisted upon also will provide
a large chunk of space for all the people in the area.
Making available the facilities on the basis that when
development is permitted, it brings in its train
233
certain responsibilities for the project proponents
which can be appreciated as legitimate State interests,
is one way of approaching the issue. It must be
understood in all these cases that setting apart of 10
percent of the area is actually as such not objected
to. This means all parties are agreed that the law
providing for setting apart of 10 percent of the total
area excluding roads in the case of group development
in excess of 10,000 square metres is legitimate and
valid, unless we find favour with the arguments that
it is otherwise constitutionally infirm. We have
already found that the provision does not offend
Article 14 on the ground that it represents a species
of class legislation. We are unable to also find that
the provision is manifestly arbitrary. If in other
words, there is no other basis to find the impugned
rule vulnerable, we can safely proceed to hold that the
requirement of OSR is not unjustified. We have noticed
the stand of the two appellants and the writ
petitioners also in this regard. We find that it is
their stand that they are prepared to maintain the 10
percent area as OSR. What is objected is to the
234
execution of the gift deed and allowing the property
rights to change hands. This is apart from the
objection to the chosen site being made accessible to
the general public.
169. We have noticed that in Pandit Chetram Vashishta
(supra), this Court has held that in the absence of
valid provision under which the gift in the said case
could be supported, the mere resolution was not
sufficient. The position still was found to be that the
original owner would continue to be a trustee. He
cannot transfer or change the nature of the property.
In fact, in the decision reported in Virender Gaur
(supra), this Court discountenanced conversion of what
was an OSR area into land on which construction though
for what was projected as a laudable object was carried
out. We are of the view that bearing in mind the
laudable object the law relating to town planning which
has been the very basis for our reasoning otherwise,
we must clarify that what the Rule and the Regulation
mandatorily stipulated was the dedication and
maintenance of 10 percent of the area for communal and
recreation purposes area only. There is inviolable duty
235
on the part of all including the local body and the
CMDA to ensure that an area which is set apart or
purported to be set apart in terms of the OSR
requirement under the Rule/Regulation in question is
used only for communal and recreational purpose. We
notice in, this regard, the complaint of Ms. V. Mohana,
learned Senior Counsel, as indeed the other counsel
that only lip service is being paid to the projected
sublime object of maintaining OSR. This cannot be
permitted.
170. Unrelentingly persevering is the aspect relating
to the contours of the word communal in the setting of
the Rules/regulations and Act. Rules do shed some light
in Rule 19 (b)(II)(vi). In regard to plots having a
size of 3,000 square metres to 10,000 square metres,
the law giver has provided that it shall not be
necessary to provide access to the public. When it
comes to the impugned Rule, viz., Rule 19 (b)(II)(vi)
providing for plot size in excess of 10,000 square
metres, it is apparent that the access of the members
of the general public to the OSR area is to be
permitted. This result is inevitable having regard to
236
the fact that unlike the immediate predecessors, viz.,
plot size having 3,000 to 10,000 square metres wherein
it has been indicated that public access shall not be
insisted upon such a relaxation is conspicuous by its
absence. The wisdom and the value judgement, which
underlies permitting or contemplating public access to
the OSR area, can be understood only in terms of the
difference in the size. Once wisdom and a value
judgment are beyond the pale of judicial review and
scrutiny, and further, it is found that the project
developer and also the beneficiaries of the group
development are duty-bound for maintaining an OSR area,
then the matter goes to the legitimacy of the public
or State interest. The consequences of executing the
gift deed and the underlying purpose have been adverted
to by us already. In fact, apart from it being a
legitimate public purpose, even the rough
proportionality concept in Nollan (supra) would appear
to be satisfied.
171. In the case of M/s. Keyaram Hotels Pvt. Ltd., the
terms of the gift deed provide that the gift is made
so that the donee may at all times, peacefully and
237
quietly, possess and enjoy the said portion only as
open space, free from all encumbrances, without any
lawful eviction, interruption, claim whatsoever from
the donor. A perusal of Rule 19 (b)(II)(vi) in relation
to the extent of size between 3,000 and 10,000 square
metres contemplates that the reserved area is to
maintained as a park.
172. We notice that under Rule 61 of the Andhra Pradesh
Group Development Scheme, sub-Rule (7) reads as
follows:
“61(7) Minimum of 10% of site area shall be
earmarked for organised pen space and be
utilised as greenery and shall be provided over
and above the mandatory setbacks at suitable
location accessible to entire community to the
satisfaction of the competent authority. Such
open space shall be open to sky and shall not
be over cellar floors.
(Emphasis supplied)
173. We may also notice sub-Rule 61(14):
“(14) All roads and open spaces mentioned in
this Rule shall be handed over to local body
at free of cost through a registered gift deed
before issue of occupancy certificate. The
society / association may in turn enter into
agreement with the local authority for
utilizing, managing and maintaining the roads
and open spaces. In case of any violation of
238
encroachment, the local authority shall
summarily demolish the encroachments and
resume back the roads and open spaces and keep
it under its custody.”
174. Under Regulation 23 of the DCR for Greater Bombay,
1991, open space is to be provided, in fact, for any
layout, starting from 1001 square meters to 2500 square
meters, wherein 15 per cent is to be kept as open space.
For an area of 2501 square meters to 10000 square
meters, 20 per cent has to be kept as open space. In
the case of residential and commercial layout for area
above 10000 square meters, ‘25’ per cent has to be
maintained as open space. There are certain exceptions.
The ownership, no doubt, is to vest by a deed of
conveyance in all the property owners on account of
whose holdings, the recreational space is assigned. It
also appears to provide that the remaining area of
recreational open space or playground (that is after
excluding structures providing for pavilions,
gymnasium, clubhouses, etc.), is to be made accessible
to all members as a place of recreation, garden or
playground.
239
175. The words ‘communal and recreational purpose’, for
which the OSR area is to be used, in the case of the
impugned Rule/Regulation, appears to indicate that the
word ‘communal’ is to be given a meaning, which would
be in keeping with the object of law, enable members
of the public as well, to gain access when the layout
is more than 10000 square meters. In this regard even
in Pt. Chetram (supra) we recapture the following:
“6. Reserving any site for any street, open
space, park, school etc. in a layout plan is
normally a public purpose as it is inherent in
such reservation that it shall be used by the
public in general. The effect of such
reservation is that the owner ceases to be a
legal owner of the land in dispute and he holds
the land for the benefit of the society or the
public in general. It may result in creating
an obligation in nature of trust and may
preclude the owner from transferring or selling
his interest in it. It may be true as held by
the High Court that the interest which is left
in the owner is a residuary interest which may
be nothing more than a right to hold this land
in trust for the specific purpose specified by
the coloniser in the sanctioned layout plan.
But the question is, does it entitle the
Corporation to claim that the land so specified
should be transferred to the authority free of
cost. That is not made out from any provision
in the Act or on any principle of law. …”
240
176. Rule 61(7) of the Andhra Pradesh Rules in Andhra
Pradesh, which we have referred to, is unambiguous that
the area used as ‘greenery’ shall be accessible to the
‘entire community’. It is to be secured by means of the
gift contemplated in Rule 61(14). While, we cannot be
sitting in Judgment over the said Rule, we would think
that the purport of the impugned Rule/Regulation must
be understood as persuading the Court to not place a
narrow interpretation.
177. In this regard we find reassurance in the view
taken by the courts in the United States even in the
presence of the taking clause under the 5th Amendment
to the U.S. Constitution. In an Article titled
“Techniques for Preserving Open Spaces” published in
75 Harv. L. Rev. 1622, we find the following:
“Required Dedication and Reservation. — A
municipality can require the developer of a new
subdivision to provide such facilities as
roads, streets, sewers, and playgrounds as a
condition to plat approval. In the leading case
of Ayres v. City Council a requirement that the
subdivider dedicate land for road and street
purposes and leave undeveloped an accompanying
area for trees and shrubbery was approved on
the theory that since the new subdivision
created the need for and would specially
benefit from the improvements, the developer
and ultimate purchasers rather than the entire
241
community should bear the cost of providing
them. In a case involving required reservation
of land for a public park the argument that
this would be an unconstitutional taking of
land was rejected on the theory that the
subdivider would be compensated by the share
of the benefits to the whole community which
accrued to his particular development. The
Pennsylvania Supreme Court has taken a contrary
view, however. And where the need for a
particular improvement is a general one, not
specifically attributable to the subdivider's
activity, the entire municipality must bear the
cost.”
We would therefore come to the conclusion that 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 us in our 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
242
area. This discussion furnishes our rationale to
uphold the Rule / Regulation and to hold that it 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 us, 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.
THE UPSHOT OF THE ABOVE DISCUSSION:
178. The upshot of the above discussion may be summedup as follows:
I. Rule 19 of the DCR, which is impugned, is statutory
in nature;
II. Rule 19 is not ultra vires the Act;
III. The impugned Regulation is not ultra vires the Act;
243
IV. Neither the impugned Rule nor the Regulation
violates Article 14 of the Constitution of India;
V. The impugned Rule/Regulation does not violate
Article 300A of the Constitution of India;
VI. 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. We direct that no area meant for
OSR shall be utilised as dumping yards or any other
purpose other than as OSR;
VII. As far as Civil Appeal Nos. 1890-1891 of 2010 are
concerned, we are of the view that in view of the
fact that there appears to have been a kachha road,
even at the time of the gift executed as early as
in February, 1994 and it was being used as a road
by large numbers of members of the public to
reverse the position on the ground, may produce a
great deal of injustice, which we would avoid by
resorting to the principle enunciated in the
decision of this Court referred to in
244
Taherakhatoon (D) By LRs. v. Salambin Mohammad70.
However, if the property gifted is in excess of
the area used for the road, we direct that the
excess land shall be used for the purpose of OSR
only. We also direct that the Authority may
consider making available the maintenance of the
said area to the appellants, namely,
Association of Vasanth Apartments Owners, if they
are prepared to maintain it in terms of the
observations contained in this judgment.
179. Civil Appeals 1890-1891 of 2010 are disposed of.
The other Appeals and the Writ Petition will stand
dismissed subject to the observations/directions we
have made earlier. No order as to costs.
………………………………………………………………………J.
[K.M. JOSEPH]
………………………………………………………………………J.
[PAMIDIGHANTAM SRI NARASIMHA]
NEW DELHI;
DATED: February 13, 2023.
70 (1999) 2 SCC 635
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