ASSOCIATION OF VASANTH APARTMENTS’ OWNERS versus V. GOPINATH & ORS

[2023] 9 S.C.R. 1019 : 2023 INSC 123

ASSOCIATION OF VASANTH APARTMENTS’ OWNERS

V. GOPINATH & ORS.

(Civil Appeal 1890-91 of 2010)

FEBRUARY 13, 2023

[K. M. JOSEPH AND PAMIDIGHANTAM SRINARASIMHA, JJ.]

Tamil Nadu Town & Country Planning Act, 1971 – s.39 –Development Control Rules – Rule 19 – Regulation 29(6) – ChennaiMetropolitan Area – Appellants were owners of certain apartmentssituated in complex which consisted of 12 blocks – Total area ofthe layout was more than 10,000 sq. metres – Portion of land wasearmarked in terms of Rule 19 of the Development Control Rules(DCR) as Open Space Regulation Area (OSR) – Said rule mandatesthat 10% of the area of any developmental plan having area 10,000sq. meter or more should be reserved as open space for communaland recreational use and that such open space area must betransferred to the local authority free of cost through registeredgift deed – Gift deed was executed in favour of Chennai MunicipalDevelopment Authority – However, despite lapse of 12 years of thegift, the OSR area had not been developed into park – Writ Petitionfiled by apartment owners challenging the vires of the rule 19 ofDCR – Single Judge of High Court disposed of the writ petition bydirecting the appellant association to maintain the open space areaas park with recreational facilities in accordance with the ‘DCR’– Division Bench set aside the judgment passed by the Single Judgeand upheld the validity of the said rule – On appeal, held: It cannotbe said that the impugned rule violates Art.14 on the score that it isdiscriminatory – In challenge to provision based ondiscrimination under Art.14, the burden is on the applicant to layclear foundation in pleadings and further to discharge the burdenby making good the case and the court will not lightly enter findingof discrimination – Town planning being complex subject involvingvarious inputs and value judgments which are intended to ensurethe orderly, visionary and planned development, they require greaterdeference from courts – When the layout is above 10,000 squaremeters, reservation of 10% for recreational purposes has to be made

A– The developer must also transfer such reserved space in favourof the local authority, free of cost, through registered gift deedallowing the local authority to maintain the open space area – Thechallenge to the Rule, on the basis of Article 300A and, indeed,Art.14 as well by Association of Vasanth Apartment OwnersAssociation must fail, as it cannot even be their case that their rightBin property was deprived – The appellants never had any proprietaryright in the property to allege deprivation of the same – Even if theRule is found bad, there can be no question of voiding the gift atthe appellant’s instance – No merit in the contention that Rule 19 ofthe DCR or the regulation which is impugned is in anyway ultraCvires of the provision of the Act – It cannot be accepted, in thecontext of the Act of the Rules/ Regulations, that, in such largeproject, when the layout is more than 10,000 square metres,executing gift deed, which would ensure compliance, would fallfoul of the requirement of either Article 14 or Article 300A of theConstitution – The developer/owner, remained only trustee evenDwithout gift – The provision for setting apart 10 per cent, isinvulnerable – The area will even without gift remain out of boundsfor the project proponent/owner – The OSR, being an inviolablerequirement, the additional requirement, meant and understood asa measure to ensure compliance and prevent misuse and or disuse,Emust not be understood as deprivation – The gift will not convertthe Local Body into an absolute owner – Instead, in place of theoriginal owner, continuing as trustee, the Local Authority becomesthe trustee – The purpose and the nature of the obligation will remainand haunt both the Local Body as also the original owner – TheRule/Regulation at any rate also, is law which sanctions deprivationFeven assuming there is deprivation – However, in substance, theRule/Regulation cannot be understood as deprivation underArt.300A – The areas covered by the OSR cannot be diverted forany other purpose – The respondents are dutybound to ensure thatthe area set apart as OSR is stringently utilised only for the purposeGin the Rule/Regulation – No area meant for OSR shall be utilised asdumping yards or any other purpose other than as OSR.

Constitution of India, 1950 – Art. 14, 19(1)(f), 19(5), 31 &300A and Seventh Schedule, List III, Entry 42 – Doctrine of EminentDomain – Right To Property – Acquisition and Requisitioning ofHProperty – Held: Stipulating the conditions that person who seeks

to develop his property in sprawling and ever-growing urbanmetropolis which is sought to be regulated by law relating to atown planning cannot be viewed as acquisition of land within themeaning of Entry 42 in List III – case of compulsory acquisitionwould be without there being any volition or consent of person.

Words and Phrase – word ‘communal’ – Meaning.

Disposing of the Appeals and Writ Petition, the Court

HELD: 1. This Court must proceed on the basis thatRegulation 29(6) holds good. This means that when the layout isabove 10,000 square meters, reservation of 10 per cent forrecreational purposes has to be made. Regulation 29(6)(a)stipulates that the land for the communal and recreationalpurposes, is to be restricted to the ground level and in shapeand location to be specified by the Authority. It is also to bereserved free from any construction. Therefore, the reservation,which is mandated in terms of Regulation 29(6)(a), and whichcannot be subject matter of claim for compensation underSection 39 of the Act, is to become the subject matter of the giftdeed. The execution of the gift deed, if it is understood as merelyas an insurmountable obstacle for an unscrupulous developer toget around the laudable mandate to preserve the requisite areaas open space, cannot be rendered vulnerable. Even if, no giftswere to be executed, the property covered by the open spacerequirement, would be put beyond the domain and control of thedeveloper. Future generations of successors-in-interest oranyone, who claims under him, will be effectively prevented fromsetting up any claim over the area. Viewed in this perspectiveand understanding the gift as not conferring ownership of thearea comprised in the open space, the impugned provisions wouldpass muster. It would prevent any kind of abuse. It is clear thatthe Regulation, properly understood, prescribe for the open spaceand merely provides for the facilitation and preservation of theopen space. [Para 122][1129-F-H; 1130-A-C]

2. Stipulating the conditions that person who seeks todevelop his property in sprawling and ever-growing urbanmetropolis which is sought to be regulated by law relating to atown planning cannot be viewed as acquisition of land within the

Ameaning of Entry 42 in List III. Acquisition of land involves, nodoubt, compulsory divesting of the rights of person in hisproperty. The impugned provision does not represent case ofcompulsory acquisition of land. case of compulsory acquisitionwould be without there being any volition or consent of person.The State purports to divest his rights in property and vest theBrights with the State. The impugned provision does not appear tobe case of such acquisition as is contemplated in law which ismade with reference to Entry 42 in List III. [Para 137 &148][1139-D-E; 1143-D]

3. The very goal of town planning requires nothing less.COnce the goal of executing the gift and the results it produces inlaw, are appreciated in the above manner, the apprehensions andthe contentions of the appellant/petitioner lose their sheen. Oneis unable to accept, in the context of the Act of the Rules/Regulations, that, in such large project, when the layout is moreDthan 10,000 square metres, executing gift deed, which wouldensure compliance, would fall foul of the requirement of eitherArticle 14 or Article 300A. The developer/owner, remained onlya trustee even without gift. The provision for setting apart 10per cent, is invulnerable. The area will even without gift remainout of bounds for the project proponent/owner. The OSR, beingEan inviolable requirement, the additional requirement, meant andunderstood as measure to ensure compliance and prevent misuseand or disuse, must not be understood as deprivation. The giftwill not convert the Local Body into an absolute owner. Instead,in place of the original owner, continuing as trustee, the LocalFAuthority becomes the trustee. The purpose and the nature ofthe obligation will remain and haunt both the Local Body as alsothe original owner. The Rule/Regulation at any rate also, is lawwhich sanctions deprivation even assuming there is deprivation.However, in substance, the Rule/Regulation cannot beunderstood as deprivation under Article 300A. [Para 154][1148-GF-H; 1149-A-B]

4. Rule 19(b)(vi) to 19(2)(b)(vi) contemplate that the spaceso required is to be transferred to the authority or local bodydesignated by the authority free of cost through deed. It isfurther provided that the local body may provide the residents

association or flat owners association for maintaining suchreserved space as park. Significantly, in the case of site havingan extent between 3,000 to 10,000 square metres, the Ruledeclares that public access to the area as earmarked will not beinsisted upon. When it comes to the extent of the site with whichthis Court is concerned, viz, where the extent of site exceeds10,000 square metres, the requirement in the Rule, viz., iscommon to 10 per cent of area excluding road had to betransferred by gift is insisted upon. It is provided that it isobligatory to transfer the reserved 10 percent of the site area.No charges can be accepted in the case of new development orre-developments. In the case of Rule 19(b)(II)(vi) in the case ofsite having extent between 3,000 square metres to 10,000 squaremetres, the CMDA or the local body may permit the residentsassociation or flat owners association for maintaining the reservedspace as parks. In the case of site having extent of above 10,000square metres under the column ‘reservation’, it is not providedthat the flat owners or residents association may be permitted tomaintain the reserved park. [Para 163][1154-G-H; 1155-A-D]

5. The impression which gathers on reading the contentsof reservation to be made in respect of site having an extentbetween 3,000 to 10,000 square metres is that the reserved areais to be maintained as park. When it comes to the site havingmore than 10,000 square meters, the provision that public accessfor area shall not be insisted upon is not to be found. This meansthat when it comes to the layout which in the wisdom and thepolicy of the Rule Maker, which has been made after the processundergone under the Act, and apparently, after hearing objections,if any, and with the approval of the government that, were largechunk of land be developed for group development, as defined,and certain percentage, which in these cases is 10 per cent or 1/10[th ]of the total layout excluding roads is to be set apart as theOSR area. The word park is not in any way inconsistent withrecreational purpose. It does not require much imagination toconclude that in an urban area and with site being in excess of10,000 square metres (nearly two and half acres) where groupdevelopment takes place, there would be large number ofpeople who would occupy the said area. Group development can

ABC

Abe substantially conflated with flats and apartments comprised intwo or more blocks or buildings as required to satisfy therequirement of group development under Rule 19(b)(II). largenumber of people would occupy the said land. This isunderstandable having regard to the size of the layout and thedefinition of group building. Planned development, particularly,Bwhen it is informed by deep vision about the future does call foran expansive approach. [Para 165][1165-E-H; 1166-A-B]

6. The word ‘communal’ must be understood as where thelayout exceeds 10000 sq.meters entitling members of the generalpublic also to avail the benefit of the OSR area. Once, the wordC‘communal’ is so understood it further fortifies the conclusionthat there would be no infraction of Article 300A or Article 14 asunderstanding the execution of the gift deed as obligating thedonee only to act as trustee to ensure the fulfilment of thesublime goal of the law and since the owner/developer would notDhave right to exclude others or to claim exclusive right topossession which would be incongruous to recognising the rightof the members of the general public to access to the OSR area.The Rule / Regulation can withstand the challenge based on Article300A on the basis that properly appreciated the “so calledcompelled gift” would be valid. Even proceeding on the basisEthat challenge to Rule 19(b) would imply challenge to theExplanation as well, on the reasoning which has appealed to thisCourt, namely, about the nature of the right under the Gift Deedas also finding that the word ‘communal’ is intended to reach thebenefit of the OSR area to the members of the public as well,Fthere would be no merit in the contention. [Para 177][1163-A-D]

Indian Young Lawyers Association (Sabarimala Temple-IN RE) v. State of Kerala and others (2019) 11 SCC 1 :[2018] 9 SCR 561; K.T. Plantation Private Limited andanother v. State of Karnataka (2011) 9 SCC 1 : [2011]G13 SCR 636; His Holiness Kesavananda BharatiSripadagalvaru v. State of Kerala and another (1973)4 SCC 225 - followed.

Global Energy Ltd. and another v. Central ElectricityRegulatory Commission (2009) 15 SCC 570 : [2009] 9SCR 22; T. Vijayalakshmi v. Town Planning Member(2006) 8 SCC 502 : [2006] 7 Suppl. SCR 534; IndoreVikas Pradhikaran v. Pure Industrial Coke & ChemicalsLtd. (2007) 8 SCC 705: [2007] 6 SCR 799; JilubhaiNanbhai Khachar and Others v. State of Gujarat andAnother 1995 Supp (1) SCC 596 : [1994] 1 Suppl. SCR807; Pt. Chet Ram Vashist (dead) by Lrs. v. MunicipalCorporation of Delhi (1995) 1 SCC 47 : [1994] 5 Suppl.SCR 180; Pune Municipal Corporation and Another v.Promoters and Builders Association and Another (2004)10 SCC 796 : [2004] 2 Suppl. SCR 207; State ofGujarat v. Shantilal Mangaldas and Others (1969) 1SCC 509 : [1969] 3 SCR 341; Narayanrao JagobajiGowande Public Trust v. State of Maharashtra andothers (2016) 4 SCC 443; Bishambhar Dayal ChandraMohan and others v. State of Uttar Pradesh and others(1982) 1 SCC 39 : [1982] 1 SCR 1137 Bengal ImmunityCompany Limited v. State of Bihar and others [1955] 2SCR 603; Virender Gaur and Others v. State of Haryanaand Others (1995) 2 SCC 577 : [1994] 6 Suppl. SCR78; Ahmedabad St. Xavier’s College Society v. State ofGujarat (1974) 1 SCC 717 : [1975] 1 SCR 173 - reliedon.

Yogendra Pal and Others v. Municipality, Bathinda andAnother (1994) 5 SCC 709 : [1994] 1 Suppl. SCR 693;State of Tamil Nadu v. P. Krishnamurthy (2006) 4 SCC517 : [2006] 3 SCR 396; Rustom Cavasjee Cooper(Banks Nationalisation) v. Union of India (1970) 1 SCC248 : [1970] 3 SCR 530; Nagpur Improvement Trustand another v. Vithal Rao and other (1973) 1 SCC 500: [1973] 3 SCR 39; Shayara Bano v. Union of Indiaand others (2017) 9 SCC 1 : [2017] 9 SCR 797;Nareshbhai Bhagubhai and others v. Union of Indiaand others (2019) 15 SCC 1 : [2019] 10 SCR 88;Behram Khurshid Pesikaka v. State of Bombay [1955]1 SCR 613; SahuMadho Das and others v. PanditMukand Ram and another [1955] 2 SCR 22; Rajendra

Shankar Shukla and others v. State of Chhattisgarh andothers (2015) 10 SCC 400 : [2015] 11 SCR 723; B.K.Ravichandra and others v. Union of India and others2020 SCCONLINE SC 950; Lalaram and others v.Jaipur Development Authority and another (2016) 11SCC 31 : [2015] 14 SCR 403; State of Jammu & Kashmirv. Lakhwinder Kumar and others (2013) 6 SCC 333 :[2013] 2 SCR 1070; Pune Municipal Corporation andanother v. Promoters and Builders Association andanother (2004) 10 SCC 796 : [2004] 2 Suppl. SCR 207;Bangalore Medical Trust v. B.S. Muddappa and others(1991) 4 SCC 54 : [1991] 3 SCR 102; Atlas CycleIndustries Ltd. and others v. State of Haryana (1979) 2SCC 196 : [1979] 1 SCR 1070; State of Maharashtraand another v. Basantibai Mohanlal Khetan and others(1986) 2 SCC 516 : [1986] 1 SCR 707; R.K. Mittaland others v. State of Uttar Pradesh and others (2012)2 SCC 232 : [2011] 15 SCR 877; New Delhi MunicipalCouncil and others v. Tanvi Trading and Credit PrivateLimited and others (2008) 8 SCC 765 : [2008] 12SCR 867; Union of India and Another v. Cynamide IndiaLimited and Another (1987) 2 SCC 720 : [1987] 2SCR 841; General Officer Commanding-in-Chief andanother v. Dr. Subhash Chandra Yadav and another(1988) 2 SCC 351 : [1988] 3 SCR 62; Kunj Behari LalButail and others v. State of H.P. and others (2000) 3SCC 40 : [2000] 1 SCR 1054; Prakash Amichand Shahv. State of Gujarat (1981) 3 SCC 508 : [1982] 1SCR 81; Deputy Commissioner and Collector v. DurgaNath Sarma AIR 1968 SC 394 : [1968] 1 SCR 561;Tukaram Kana Joshi v. MIDC (2013) 1 SCC 353 :[2012] 13 SCR 29; Bhimandas Ambwani (Dead)through LRs v. Delhi Power Company Ltd. 2013 14 SCC195 : [2013] 1 SCR 996; Coffee Board, Karnataka,Bangalore v. Commissioner of Commercial Taxes,Karnataka and others (1988) 3 SCC 263: [1988] 1Suppl. SCR 348; Tukaram Kana Joshi and Others v.Maharashtra Industrial Development Corporation andOthers (2013) 1 SCC 353 : [2012] 13 SCR 29 ;

ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v.V. GOPINATH & ORS.

BhimandasAmbwani (Dead) Through Lrs. v. Delhi PowerCompany Limited (2013) 14 SCC 195 : [2013] 1SCR 996; P. Vajravelu Mudaliar v. Special DeputyCollector for Land Acquisition and another [1965] 1SCR 614; Union of India v. Metal Corporation of IndiaLtd. and another [1967] 1 SCR 255; Prakash AmichandShah v. State of Gujarat and others (1986) 1 SCC 581: [1985] 3 Suppl. SCR 1025; Babulal BadriprasadVarma v. Surat Municipal Corporation and others(2008) 12 SCC 401 : [2008] 7 SCR 564; RavindraRamchandra Waghmare v. Indore MunicipalCorporation and others (2017) 1 SCC 667 : [2016] 9SCR 373; Rajiv Sarin and another v. State ofUttarakhand others (2011) 8 SCC 708 : [2011] 9SCR 1012; Delhi Transport Corpn. v. D.T.C. MazdoorCongress (1991) Suppl.1 SCC 600 : [1990] 1 Suppl.SCR 142; Taherakhatoon (D) By LRs. v. SalambinMohammad[1 ](1999) 2 SCC 635:[1999] 1 SCR 901 -referred to.

M. Krishnasamy v. Member Secretary, ChennaiMetropolitan Development Authority, Gandhi IrwinRoad, Egmore, Chennai-8 (2013) 1 CTC 80 - referredto.

James Patrick Nollan v. Calefornia Coastal Commission483 US 825, 97 L Ed 2d 677; Florance Dolan v. Cityof Tigard 512 US 374; Agins v. City of Tiburon 447 US255 (1980); Village of Euclid v. Ambler Reality Company272 US 365; Linda Lingle, Governor of Hawaii, et al.v. Chevron U.S.A.INC. 544 US 528, 161 L.Ed.2d 876;Village of Euclid, Ohio Et Al v. Ambler Reality Company272 US 365 (1926); Coy A.Koontz v. St. Johns RiverWater Management District 133 S.Ct. 2586 - referredto.

Case Law Reference

1028SUPREME COURT REPORTS

ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v.V. GOPINATH & ORS.

CIVIL APPELLATE/ORIGINAL JURISDICTION : Civil AppealNos.1890-1891 of 2010.

From the Judgment and Order dated 09.10.2007 of the High Courtof Madras in WA Nos.478 and 1026 of 2007.

With

Civil Appeal Nos.7334 of 2013, 7847-7848 of 2013 And WritPetition (Civil) No.591 of 2015.

Amit Anand Tiwari, AAG, Ms. V. Mohana, GopalSankaranarayanan, JayanthMuth Raj, Sanjay R. Hegde, Sr. Advs., N.Subramaniyan, Ms. Neha Rathi, Ashwin Kumar DS, D. L. Chidananda,Ms. Aditi Dani, Ms. Ayushma Awasthi, Prashant Bhushan, PranavSachdeva, Jatin Bhardwaj, N. Subramaniyan, K. S. Suresh, Ajay

AAggarwal, Ms. Aditi Gupta, R. Nedumaran, B. Balaji, PrabhuRamasubramanian, Ms. Malavika Jayanth, P. V. Dinesh, M. YogeshKanna, Dr. Joseph Aristotle S., Ms. Mary Mitzy, Ms. Devyani Gupta,Ms. Preeti Singh, Ms. Ripul Swati Kumari, Sanjeev Kumar Mahara, D.Kumanan, Raghav Gupta, Vinodh Kanna B., T. R. B. Sivakumar, Advs.for the appearing parties.B

The Judgment of the Court was delivered by

K. M. JOSEPH, J.

1. Civil Appeal Nos. 1890-91 of 2010 is connected with the othercases. We are disposing of the Appeals and the Writ Petition filed underCArticle 32, having generated certain common issues by the followingcommon Judgment.

INDEX*

ABOUT THE CASES AND THE PARTIES .................. 3

DThe case of Association of Vasanth ApartmentsOwners ................................................................................. 3

The case of Keyaram Hotels Pvt. Ltd. ........................... 8CREDAI; Writ Petition No. 591/15 under

EArticle 32 ...........................................................................19SUBMISSIONS OF APPELLANTS/PETITIONER ...22SUBMISSIONS OF SHRI N. SUBRAMANIYAN,

ADVOCATE IN C.A. 7334 OF 2013 [KEYARAMFHOTELS P. LIMITED] ..................................................25

SUBMISSIONS OF MS. V. MOHANA, SENIOR

ADVOCATE ON BEHALF OF THE WRIT

PETITOINERIN WRIT PETITION (CIVIL) NO. 591GOF 2015..............................................................................29SUBMISSIONS OF SHRI AMIT ANAND TIWARI;

ADDITIONAL A.G. ON BEHALF OF STATE OF

H*Pagination in the Index is as per the Original Judgment.

AANOTHERV. PROMOTERS AND BUILDERSASSOCIATION AND ANOTHER .........................138TUKARAM KANA JOSHI AND OTHERS V.

MAHARASHTRA INDUSTRIAL DEVELOPMENTBCORPORATION AND OTHERS ..........................140JILUBHAI NANBHAI KHACHAR AND OTHERSV. STATE OF GUJARAT AND ANOTHER..........142STATE OF GUJARAT V. SHANTILAL MANGALDASC AND OTHERS ..........................................................142NARAYANRAO JAGOBAJI GOWANDE PUBLICTRUST V. STATE OF MAHARASHTRA AND

OTHERS.....................................................................148DYOGENDRA PAL AND OTHERS V. MUNICIPALITY,BATHINDA AND ANOTHER ................................151

VIRENDER GAUR AND OTHERS V. STATE OFHARYANA AND OTHERS .....................................154EA BRIEF LOOK AT THE FIFTH AMENDMENTCASES IN THE UNITED STATES .............................176ENTRY 42 OF LIST III OF THE SEVENTHSCHEDULE ....................................................................191F

THE UPSHOT OF THE ABOVE DISCUSSION ......242ABOUT THE CASES AND THE PARTIESThe case of Association of Vasanth Apartments Owners

2. Civil Appeal Nos. 1890-91 of 2010 is directed against the

Gjudgment dated 19.10.2007 rendered by division bench of the HighCourt. Writ Appeal No. 478 of 2007 and Writ Appeal No. 1026 of 2007were appeals generated by the judgment which was rendered by thelearned 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 bythe writ petitioners who are the appellants before us. It was inter aliaH

their case that they were owners of certain apartments situated in acomplex which consisted of 12 blocks. The total area of the layout wasmore than 10,000 sq. metres. portion of the land was earmarked interms of Rule 19 of the Development Control Rules (hereinafter referredto as ‘DCR’) as Open Space Regulation area (hereinafter referred toas ‘OSR’). gift deed was executed in favour of the ChennaiMetropolitan Development Authority on 18.02.1994. However, despitethe lapse of 12 years of the gift, the OSR area had not been developedinto park. The learned Single Judge disposed of the writ petition bydirecting the appellant association to maintain the open space area as apark with recreational facilities in accordance with the ‘DCR’. It wasalso made clear that it is always open to the respondents to take actionin accordance with law if there is any violation. It was found to be theduty of the respondents to maintain such open areas as parks and onthere being afailure on their part, the association of the residents shouldbe welcomed to do the same subject to the rules.Writ Appeal no. 478 of2007 was filed by one Shri Gopinath and others. They were personswho were living in the neighbourhood.Writ Appeal no. 1026 of 2007 wasfiled by the Commissioner of the Corporation of Chennai and the MemberSecretary of the Chennai Metropolitan Development Authority(hereinafter referred to as the ‘CMDA’). It was by the judgmentimpugned in Civil Appeal Nos. 1890-91 of 2010, the division bench allowedthe 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 favourof the CMDA by way of the Gift Deed, neither the CMDA northe Corporation of Chennai have taken any step to make use ofthe land for the interest of public. It is clear from the report filedby the Advocate-Commissioner and the photographs filed beforeus and the other materials available on record that in the OSRarea, there is katcha road, which is said to have been laid by theCorporation in the year 2003. Probably because of this katcharoad and the usage of the same as road by all the residents in thelocality, the occupants of the Vasanth Apartments might have feltdisturbance, which would have prompted them to make arepresentation to the Corporation to develop park in the saidarea or in the alternative to permit them to develop and maintain apark for their recreational purpose besides illegally constructing acompound wall, separating the petrol bunk and the compound wall

for about length of 30 feet separating the unbridged 11 feetwide open canal upto ground level, so as to close the way onceand for all. At this juncture, it is to be pointed out that the VasanthApartments is divided by compound wallfrom this area and it isIt also not made clear by the Vasanth Apartments OwnersAssociation that the said land, which was gifted to the CMDA, ispart of their lay out.”

“18. It has also been alleged that under similar circumstances, theCMDA has permitted all the residents associations in Velacheryto maintain the open spaces as recreational parks in the nearbyarea viz. K.G. Apartments, Sai Sarovar etc. Each case has to beviewed and decided on its own merits and since in the case onhand, in the interest of thousands of general public residing in andaround the area, the authorities have taken wise decision to laya road to have easy and immediate access to the 100 ft. road, thesame cannot be found fault with.”

“19. Further more, it has been brought to our notice that with aview to form connecting road to 100 feet bye-pass road, theChennai Corporation has already addressed the Commissioner,Hindu Religious and Charitable Endowments Department totransfer and convey the land belonging to Arulmigu DhandeeswararTemple, Velachery, Chennai in favour of the Corporation and alsoobtained the said land to form the connecting road from HinduReligious and Charitable Endowments Department.”

“20. Thus, though belatedly, now the CMDA and the Corporationof Chennai are taking all efforts to lay pucca road in the OSRFarea for the convenience of nearly one lakh people in the areaincluding the residents of Vasanth Apartments. In this city, ill-famous for its bumper to bumper traffic and the related hazardsfaced by the road users day in and day out, any such step takenby the civic authorities to ease such bottleneck traffic congestionsshould be appreciated and welcomed without allowing anybodyGto put spokes in the wheel of development, as /3 has beenattempted on the part of the Association of Vasanth ApartmentsOwners in the case on hand.

For all the above reasons, since it has been found that the writpetitioner has no right or interest, whatsoever, in the OSR land,

and the prayer in the writ petition itself is misconceived, both thesewrit appeals are allowed, thus setting aside the order passed bythe learned single Judge. No costs. Consequently, M.P.No.2 of2007 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 VasanthApartments’Owners i.e., the appellants in C.A. No. 1890-91 of 2010.This is separate litigation though having bearing on the issue. In thisappeal, Writ Petition No. 23397 of 2007 came to be filed by the appellantAssociation challenging the vires of Rule 19 of the ‘DCR’ under whicha gift had to be executed in respect of the land comprised in 10% as weshall see in greater detail. The Writ Petition, came to be dismissed by thedivision bench by its judgment dated 06.03.2008 and it upheld the validityof the rule. C.A. No. 7847 of 2013 is filed against the same. reviewfiled 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 whichis 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 tothe very same rule.

5. The case set up in short is as follows. The petitioners are theowners of about 62 grounds. It applied for the sanction of building planin the year 1975 for the construction of hotel. There is reference to anearlier writ petition and contempt proceeding. Suffice it to notice, thatplanning permission was granted after 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 on17.08.1994 for the construction of hotel and hotel annexe building etc.which consisted of basement, ground floor and three further floors. Byletter dated 13.09.1994 issued by the second respondent thepetitionerwas to gift the open space reserved area to the Commissioner Corporationof Madras. We may notice further that the third respondent sentcommunication on 01.12.1994. It is stated inter alia that the structurewhich existed within the OSR area should be demolished after due sanctionand that the OSR land should be free from any structure and be fencedby providing separate entrance from the road side. There is no mention

Aabout the gift deed. The petitioner sought month’s time to comply withthe conditions in letter dated 01.12.1994. However, the respondent insistedon compliance with the requirement of executing gift deed. In the writpetition, an interim Order dated 13.03.1996 was passed directingpermission after recording undertaking by petitioner to execute gift deedwithout prejudice to the rights of the petitioner. Petitioner executed giftBdeed on 22.05.1996. Petitioner’s revised plan was approved as groupdevelopment on 24.04.1999. The grounds urged against the rule appearto be as follows:

1.The rule is an illegal infraction of the petitioner’s right tohold and enjoy the property.C

2.The rule is contrary to the Act and derogatory to the interestof the land owners.

3.The stipulation is violative of the civil right vested in everyowner of the property to hold his land and the right toDsafeguard public interest cannot be stretched to create aright and title in favour of local body in the mannercontemplated by the respondents 1 and 2. It could onlyimpose condition to keep such land as open for beingused by the user of such building for their communal orrecreational purpose.

4.The provision for open space with respect to specialbuilding is for the communal and recreational purposes ofthe people who shared their accommodation in the saidbuilding or otherwise lawfully use the same. It is not intendedto take away the proprietary right of the owners. TheFexpression of willingness by the petitioner to provide thestipulated open space reserved for communal andrecreational use of the occupiers will satisfy the publicinterest and object of the legislation. Petitioners undertaketo keep 10% of the area to be developed excluding roadsGas open space for communal and recreational purpose.

5.The further condition imposed by the 3[rd] respondent toprovide exclusive frontage for the said open space areaopening into the main road is unconscionable in law andcontrary to the spirit of the Act. Such stipulation is interrorum.H

The relief sought is to declare Rule 19(b)(I)(v) of the DCRvoid.That apart sanction is sought without insisting on the rule.

6. We may notice the relevant contents of the counter affidavitfiled by the respondent State. The case set up inter alia is that the CMDAhad carried out necessary survey and prepared the master plan whichlays down policies and programmes which are necessary to regulate thegrowth of the area and also to ensure its economic viability, social stabilityand sound management for the present and the foreseeable future andorderly development required the same. The DCR was an integral partof the master plan. Any person wanting to develop property within theMetropolitan area must apply for permission and the CMDA isempowered to enforce such conditions and restrictions as was necessaryunder the rules. It is in public interest. If the ownership of the open OSRarea were to be allowed to vest with the original land owner, then theconcerned owner would have chance to convert the same forconstruction, the area specially reserved as open space, for communalrecreation by suppressing the said fact after passage of time. Hence, itis necessary that the open space area should be vested with the civilauthorities who are responsible for maintenance of parks and play fieldsin the sites. The open space reservation is provided to create lung spacein the city and to have sufficient open space for the use of society.

7. counter affidavit was filed by the Chief Planner of the CMDAand the stand taken was to seek support under Section 17 of the Actread with Section 49. The impugned Rule has been also referred to. Asregards the facts, it is stated as follows: -

“Para 5. petitioner submitted the application on 17 .08.1994 forplanning Permission for the proposed construction of HotelComplex consisting of group of two massive blocks of Basementplus ground plus three floors building and four small buildings atD.No.l& 2, Harrington road, Chetput, Madras - 31 in R.S.No.355of Nungambakkam Village. The total floor area of the HotelBuildings is about 13,300 M2. The extent of the site is about 10692M2. In the plan submitted by the petitioner there are certain existingstructures also, which are to be demolished for the constructionof the proposed hotel buildings consisting of basement plus groundplus three floors, after demolishing the existing structures. In theplan submitted by the petitioner he has also shown the area to bereserved and handed over as open space reservation. As the

Aproposal of the petitioner consists of group of two blocks ofbasement plus ground plus three floors buildings in site of anextent of more than 10,000 M2, the same was examined by thisrespondent under Development Control Rules 19 (b) (II) (1) to(V) and (VI) - related to group development. While theDevelopment Control rule l9(b)(II) (1) to (v) deals with the openBspaces to be left around the buildings, distance to be maintainedbetween the buildings etc, the rule 19(b)(II) (VI-C) prescribes asfollowing:

“C) SITE EXTENT above 10,000 m2

10 percent of the area excluding roads shall be reserved andthis space shall be transferred to the authority or to the localbody designated by it, free of cost, through deed. It isobligatory to reserve the 10 percent of the site area and nocharges can be accepted in lieu, m case of new developmentsor redevelopments”

The second respondent examined the planning permissionapplication of the petitioner and having satisfied with the planswith reference to the Development Control Rules and in View ofthe fact that the petitioner already earmarked 1070 m2 being the10 % open Space Reservation area in the plan, sent letter inNo.82/17789/94, dated 13.09.1194 stipulating certain conditionsand requesting, the petitioner to,

i) pay the following charges

a) Development charges: Rs. 82,000/-

b) Security DepositF

for the building: Rs. 8, 00, 000/-

ii) hand over the 10% Open Space Reservation Area reservedand shown in the plan to the third respondent through registeredgift deed.

The petitioner has not paid the security Deposit, but howeverobtained direction from this Hon’ble Court to accept the BankGuarantee towards the security Deposit and furnished the sameto the second respondent along with his consent letter dated28.02.1995 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 petitionershould hand over the 10% Open Space Reservation Area to theCommissioner, Corporation of Madras, free of cost, through a·registered gift deed, which is lawful condition under DevelopmentControl Rule 19 (b)(II) (VI - C). It is respectfully denied that thepetitioner has not made any representation to relax the conditionof gifting of the Open Space Reservation Area and the same wasnever under the consideration of the second respondent.”

“Para 7. It is submitted that the second respondent has requestedthe petitioner to transfer the 10% Open Space Reservation Areafree of cost, through registered gift deed in favour of the thirdrespondent as per the provisions of Development Control Rules19 (b) (II) (VI - C), under group development regulations and notas contended by the petitioner under rule 19 (b) (I) (V), whichrelated 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 andthis space shall be transferred to the authority or to the localbody designated by it, free of cost, through deed. It isobligatory to reserve the 10 percent of the site area and nocharges can be accepted in lieu, in case of new developmentsor redevelopments”

Explanation: -

(3) The land so reserved shall be free from any constructionby the owner or promoter or developer. The land for communaland recreational purposes shall be restricted at ground level ina shape and location to be specified by the MMDA”

The Development Control Rule is the integral part of the MasterPlan and was framed under section 17 of the Town and CountryPlanning Act. The second respondent exercised the power vestedin it, since the total extent of the petitioner’s site is more than10,000 m2, the insisting of the requirements of reservation of 10% Open Space Reservation Area and consequent direction to thepetitioner to hand over the same to the third respondent through aregistered 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 the10 % area for open space and recreational purposes. This is astatutory requirement under Development Control Rule 19 (b) (ii)(vi - c) for all the proposals of group development, where theextent of the site is more than 10,000 m2. Further the city is fastlydeveloping and individual houses are being demolished and multifamily apartments are constructed in the same site where therewas only one family residing therein earlier. The intense verticaldevelopments make the city more dense demanding more water,pollution free air, noise free atmosphere etc. The city is alreadyover congested and therefore more open spaces have to be createdwherever new developments or redevelopment takes place. Theopen spaces so created serve as long space to the city benefitingthe community at large. The open space enable to make theenvironment clean and provide fresh air, besides facilitating theground water recharge in city where water scarcity is perennialproblem.”“Para 9. The petitioner has also questioned the transfer of openspace reservation in favour of the Madras Corporation. It issubmitted that in practice, the developers take up the developmentof properties and construct the buildings providing necessary openspaces as per Development Control Rules. After completion ofthe construction they sell out the building in portions to variouspersons and later the open space reserved become no man’s landwithout any care for its maintenance. If the ownership of theopen space reservation for communal and recreational purpose,suppressing the facts later, after passage of time. Therefore, it isessential that the ownership of the open Space Reservation areashould be vested with the civic authority, which is responsible forthe maintenance of the parks and play fields in the city.The civicauthority is maintaining many parks and play grounds such asElliot’s Beach Garden, Anna Nagar, Thiru Vi Ka park etc. Whichare maintained very well. It is also therefore essential that theopen Space Reservation Area should be located in location shapeand size which is accessible from the public road not only to theCivic Authority but also to the general public without any restriction.Therefore, transferring the OSR area to the Civic body will notamount 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 hotelbuildings. Therefore, if the ownership were to be vested with thepetitioner, it is most likely to be misused by the petitioner for Hotelrelated activities, rather than allowing it to the use of general public.It is also likely that over period of the time the OSR area wouldbe misused for commercial purposes by the petitioner under theguise of improving it.

The petitioner has also expressed that the maintenance of the 10% Open Space Reservation Area will be done by him. It issubmitted that the entrusting the maintenance of the Open SpaceReservation area is at the discretion of the second and thirdrespondents. The development Control Rule 19 (a) (II) (Vii)prescribes as follows:

“ The authority reserves the right to enforce the maintenance ofsuch reserved land by the owner to the satisfaction of the Authorityor order the owner to transfer the land to the authority or localbody designated by it, free of cost, through deed, to the Authorityor the local body designated by the authority as case may be,reserve the right to dedicate on entrusting the maintenance workto institution / individual o merits of the case.

It is submitted that as per the provisions of the DevelopmentControl Rule 19 (b) (II) (Vii) this second respondent reserves theright to decide on entrusting the maintenance of OSR area to thepetitioner. It become the bounden duty of the state Governmentto safeguard the interest of the public at large and the stategovernment have the statutory power and have approved thedevelopment control rules as an integral part of the master planfor the benefit of the public and to enforce it accordingly.Therefore,the reservation of 10% OSR area in statutory requirement. Underthe above said circumstances the petitioner is not deprived oftheir right of enjoyment of the properly by implementing of therules framed under the Town and Country Planning Act. The writpetition is devoid of merits and the same has to be dismissed inlimini.

Therefore, it is prayed that this Hon’ble Court may be pleased topass an order by dismissing the writ petition and thus renderjustice”.

(Emphasis supplied)

A8. The Corporation of Madras also filed counter affidavit. Thereinit was inter alia stated that the OSR land should have access from apublic street as per which the development authority directed the petitionerto execute the gift deed to the Corporation as it had to be used forcommunal and recreation purpose. In the reply affidavit, the petitionertook the stand that the impugned rule does not fall under Section 17. TheBOSR under the Act is only an amenity for the benefit of the propertyowner. The rule was projected as an executive order falling beyond theAct. Any misuse could be dealt with under the law.

CREDAI; Writ Petition No. 591/15 under Article 32

9. The last of the litigation with which we are concerned is WritPetition no. 591 of 2015. This is writ petition sought to be maintainedunder Article 32. The writ petition has been filed by an association whichthe petitioner describes as the Confederation of the Real EstatesDevelopers Association of India (CREDAI).

D10. This petition is filed under Article 32 of the Constitution ofIndia. It is filed by Federation of registered Association claiming to bean Apex body of the organised union and state real estate developers,builders across India. In the Additional affidavit filed, it is contended thatthe total number of members of Petitioner is 350 and that of ChennaiChapter is 163 members. The relief sought in the writ petition is asEfollows:

“(a) allow the present writ petition and issue writ of Certiorariquashing Regulation 29(7)(a) (at pg.221 Vol. 2) as well as AnnexureXX (at pgs.293-294 Vol. 2) of the Development Regulations forChennai Metropolitan Area issued by the Respondent No.2 asFbeing ultra vires, unconstitutional and violative of the fundamentalrights of the Petitioner; and”

11. However, in the additional affidavit filed on 8.12.2021, wemay notice paragraph 4.

“4. That, in so far as challenge to Regulation 29(7)(a) in the presentwrit petition is concerned, the petitioner is restricting its challengeonly to the latter part of the provision i.e., the requirement totransfer free of cost through registered gift deed, 10% areareserved for recreational purposes only and not the space setapart for roads.”

12. We may notice the grounds taken in the writ petition. It iscontended that by the impugned regulations there is expropriation of theprivate property of the petitioner’s members Association. Reliance isplaced on the judgment inChet Ram Vashist (Dead) by LRs v. Municipalcorporation of Delhi1. Support is drawn from Article 300A. It is soughtto be contended that allowing use of the OSR Area amounts to blatantexercise of the power of eminent domain. Transfer of property of thepetitioner is sought to be achieved through the impugned regulation. Infact, in ground (i), it is submitted that expropriation of land is possible atbest by way of plenary legislation and the impugned regulation not beingsuch legislation, it is vulnerable. The impugned regulation is contrary tothe Act. The Act regulates the land use. The authorities under the Actcannot change the user of land. In other words, the point is that allowinguse of area meant for recreational purpose by the members of the generalpublic is expropriatory and contrary to the Act. It is also contended thatthe impugned regulation is unreasonable and disproportionate.13. We have heard Shri Gopal Sankaranarayanan, learned SeniorCounsel on behalf of the appellants in C.A. No. 7847 of 2013. We alsoheard Shri N Subramaniyan, learned counsel on behalf of M/s. KeyaramHotel Pvt. Ltd. (C.A. No. 7334 of 2013). We further heard Smt. V.Mohana learned senior counsel on behalf of the writ petitioner (writpetition no. 591 of 2015). We also heard the learned counsel on behalf ofthe appellants in C.A. No. 1890-91 of 2010. We further heard the learnedcounsel Shri K.S. Suresh on behalf of Association of VasanthApartments’ Owners which has in C.A. No. 7848 of 2013 challengedthe judgment rejecting the review petition filed in the writ petitionunsuccessfully challenging the rule.

14. We heard Shri Sanjay R. Hegde learned senior counsel onbehalf of the corporation of Chennai and heard Shri Amit Anand Tiwari,AAG on behalf of the Government of Tamil Nâdu and also the CMDA.We finally heard Shri JayanthMuth Raj, learned Senior Counsel on behalfof the appellants in Writ Appeal no. 478 of 2007 who are the personsresiding in the area and whose writ appeal stood allowed by the HighCourt.

SUBMISSIONS OF APPELLANTS/PETITIONER

15. In Civil Appeal Nos. 7847 of 2013, Shri GopalSankaranarayanan would contend that compelled gift attracted the

1 (1995) 1 SCC 47

Awrath of Article 300A of the Constitution. There was clearly deprivationof property. It was without the authority of law. It was without theauthority of law because ‘DCR’ was not statutory in nature, havingbeen made by the CMDA without any provision enabling it to makestatutory rules. The power to make rules was vested with the StateGovernment under Section 122 of the Tamil Nadu Town & CountryBPlanning Act, 1971 (hereinafter referred to as the ‘Act’). Section 9Crelied upon by the respondents did not clothe the authority with power tomake rules. Equally,Section 17 would not come to the aid of therespondents. Therefore, the rule was not law within the meaning ofArticle 300A. There is no law made by the competent legislatureCempowering deprivation of the property of the appellants.

16. Even law made by the legislature could not result in thedeprivation of property in the manner which is purported to be achievedthrough what is described as rule which in fact is not statutory rule.It is his contention that the survey of the Act would reveal that whereverDthe land is reserved, the lawgiver has contemplated that the land shouldbe acquired. The concept of acquisition is traced to Entry 42 of List IIIof Part VII of the Constitution. In other words, unless land is acquiredunder the relevant law which undoubtedly involves payment ofcompensation there would be no justification in law to compel persontopart with his property by what is described as compelled gift. ThereEis no compensation payable under the gift admittedly. Therefore, thisamounts to the execution of the gift which is direct result of the rulewhich 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 palpablyand manifestly arbitrary. Similar arguments have, no doubt, been addressedFby the other learned senior counsel appearing on behalf of both theappellants and the writ petitioner.There are various other ancillarysubmissions which had been taken up.

17. There is also further case that the rule falls foul of Article 14for another reason. It is complained that the rule produces classificationGwhich is not permitted under Article 14. In other words, it is pointed outthat for layout upto 3,000 sq. metres, there is no requirement to executea gift. In respect of layout which is in excess of 3,000 sq. metres andwhich is less than 10,000 sq. metres, there is no such requirement and inplace of gift, it is open to the proponent of the project to give theequivalent value. It is without any rational basis, and therefore,attractingH

the vice of class legislation or unreasonable classification resulting inequals being treated differently, that in respect of projects involving morethan 10,000 square metres, the builder is bound to execute gift in favourof the authority.

SUBMISSIONS OF SHRI N. SUBRAMANIYAN,ADVOCATE IN C.A. 7334 OF 2013 [KEYARAM HOTELSP. LIMITED]

18. In this case, the appellant is the owner and continues to be theowner of the layout area. The gift was effected as per an undertakinggiven to the High Court but subject to the Writ Petition. Secondly, thereis no laches or delay. Immediately as the condition was sought to beimposed, the Writ Petition was filed in the year 1995. At best, Rule 19can be only Statutory Order/Notification/ Guideline and it cannot beconsidered more than Subordinate Legislation. Relying on the principleslaid down for impugning Subordinate Legislation inState of Tamil Naduv. P. Krishnamurthy2, it is contended that the Rule, Rule 19(b)(2)(vi)(c)violates Sections 36 to 39. Harmoniously reading Section 17 and Section20 and Sections 36 to 39 of the Act, would establish that the reservedlands (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 getreverted to the owner. In the case of regulating the use of lands, such asputting restrictions on the use of land under Section 17(2)(l) and Section20(1)(n), within the planning area, do not call for compensation. Section17(2)(b), as also Sections 21(1)(k) and (n) relating to detailed developmentplans, are the only provisions dealing with the open spaces. Proviso toSection 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 areprojected to contend that the object of the Act is to regulate thedevelopment 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 forpublic purposes. There is no power, as claimed under Sections 9C, 17,20 and 35 or Section 124, to make the impugned Rule. It is furthercontended that the impugned Rule contravenes and is inconsistent withthe Sections 6(2), 12 and 18 of the Tamil Nadu Apartment OwnershipAct, 1994 and, hence, is void. The appellant, having developed two blocks,

Athe developed building comes under the said 1994 Act. It applies toapartments constructed prior to its commencement. The impugned Rule,being inconsistent with Sections 6(2), 12, 18, 25 and 26 of the Act hadbecome inoperative. The impugned Rule is alleged to be violative of theLand Acquisition Act, 1894 and hence, void, in view of Article 254(2) ofthe Constitution. It is sought to be contended that since Entry 42 of theBConcurrent List provides for acquisition and requisition, any StateLegislature, seeking to put in place, law to acquire lands with lessercompensation, it would be impermissible. It would be discriminatory.The Act took care to incorporate Land Acquisition Act by referenceunder Section 36 of the Act. This meant that depravation of property,Cwithout compensation, was not contemplated. Sections 36 and 37 areinvoked. Even the State Legislature has no power to seek transfer oflands to the State free-of-cost. Even single owner could construct aluxury independent bungalow with 3000 square meters and he will notbe required to spare any land to society whereas 184 owners whoconstructed 184 flats with each family having 59.7 square meters wouldDhave 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 propertyfor their betterment and the Rule of Equality requires the beneficiary toshare the costs. Appellants rely on Rustom Cavasjee Cooper (Banks3Nationalisation) v. Union of India, Nagpur Improvement Trust andEanother v. Vithal Rao and others4, K.T. Plantation Private Limitedand another v. State of Karnataka5. The appellant would pray that theRule be declared null and void and it be declared that the ownership ofthe OSR lands revert back to the appellants.

SUBMISSIONS OF MS. V. MOHANA, SENIORFADVOCATE ON BEHALF OF THE WRIT PETITOINERIN WRIT PETITION (CIVIL) NO. 591 OF 2015.

19. The objections to the challenge to the Regulation on the groundthat the Rule/Regulation had continued on the Rule Book for long, cannot,by itself, be ground to repel the challenge. [SeeShayaraBano v. UnionGof India and others6 and Indian Young Lawyers Association-7(Sabarimala TempleIN RE) v. State of Kerala and others]. Doctrine

3 (1970) 1 SCC 2484 (1973) 1 SCC 5005 (2011) 9 SCC 16 (2017) 9 SCC 1H7 (2019) 11 SCC 1

of Laches and Delay cannot become constitutional limitation on court’spower. 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, beconstrued strictly and must not be brought to life in the absence of specificexpress provisions [See Nareshbhai Bhagubhai and others v. Unionof India and others8]. The State is blowing hot and cold in regard topower to make Regulations. Reference is made to Sections 47 and 55 tocontend that the bar on compensation will not apply in case of deprivationof property. Neither the provisions of the master plan nor provision relatingto control of development, authorised deprivation of property withoutpayment of compensation. The present is case of no compensationand not nil compensation. The decision in K.T. Plantations Limited v.State of Karnataka9, is relied upon. The laudable object cannot legitimisethe violation of the Fundamental Right or Constitutional Guarantee. It ispointed out that in Ground-K of the Writ Petition, it is contented thatarbitrary restrictions on the petitioner to use his property through Executiveaction, attracted Article 14. It is further pointed out that FundamentalRight violation is projected in Grounds-L, M and N. Equally, Article 300Aand Article 14 forms the subject matter of Grounds-C, D, E, F, G, H, Iand 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 Regulationfrom the vice of invalidity. Reliance is placed on the decision of thisCourt in Behram Khurshid Pesikaka v. State of Bombay10. Theimpugned Regulations would constitute law for the purpose of Article 13in this regard. The declaration of the Regulation falling foul ofFundamental Rights, would have the effect of rendering such law voidab initio. Reliance is placed on the 2019 Rules and the repealing andsaving provision [Rule 74(3)]. It is contended, in short, that the rightsand obligations, apart from the express savings under the 2019 Rules,would remain intact. With reference to Sections 49 and 50 of the Act, itis contended that permissions under the Development Regulations of2008 would continue to be governed by the Regulations. Thus, repealdoes not render the present Writ Petition academic or infructuous. Thefact that the petitioner is an Association of real estate developers cannotdetract from the matter being justiciable and Constitutional Court should

8 (2019) 15 SCC 1

9 (2011) 9 SCC 1

10 (1955) 1 SCR 613

EFG

Anot countenance technical pleas, when Fundamental Rights are at stake.When otherwise, considering the importance of this matter, bearing inmind the interplay between the Fundamental Rights and Article 300A,this Court, despite any delay, should consider the challenge. Petitioner isrestricting 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 reservedBfor recreational purposes. Section 20(1)(d), employing the word‘otherwise’, cannot encompass gift. gift would be withoutcompensation, which would be contrary to the provisions of the Act.Sections 36 to 39 make it clear that whenever an acquisition wascontemplated, it was deemed to be public purpose and payment ofCcompensation has been provided for. If gift is comprehended in Section20(1)(d), it would be in conflict with Section 39. Earmarking or reservingan area, may not constitute an injury. But the compulsory gifting of thesame, without any compensation, coupled with changing of the characterof the property from private to public, reaches an injury. The personmust be compensated. Reliance is placed on SahuMadho Das andDothers v. Pandit Mukand Ram and another11 and Rajendra ShankarShukla and others v. State of Chhattisgarh and others12. Relianceis placed in M. Krishnasamy v. Member Secretary, ChennaiMetropolitan Development Authority, Gandhi Irwin Road, Egmore,Chennai-813 to contend that Single Judge of the Madras High CourtEdoubted the very demand for conveying of OSR land. Regulatory law,depriving person of property, must be strictly construed. In this regardreliance is placed on B.K. Ravichandra and others v. Union of Indiaand others14. Section 124, under which Regulations can be made, cannotempower any Authority to create or takeaway or deprive person oftheir property, by manner, not provided for under the Act [SeeIndianFYoung Lawyers Association and others (Sabarimala Temple-InRe.)15]. The Regulation represents the case of action in excess of power.The lands, which have been transferred, are not being used for the purposeof open space. They are being used as dump yard or other use. Thevaluable easementry rights or lung space of the residents are lost. TheGfrontage of the property and its aesthetic appearance is affected. Therights of the members of the petitioners’ Association under Article 19(1)(g)

11 (1955) 2 SCR 2212 (2015) 10 SCC 40013 (2013) 1 CTC 8014 2020 SCCONLINE SC 950H15 (2019) 11 SCC 1

is violated. In answer to the contention of the respondent, that wherevercompensation is compulsorily payable, the Constitution itself has madeprovision as is clear from Article 30(1A) it is sought to be rebuffed. It ispointed out that Article 30(1A) is only an additional protection.Compensation must be paid, when property is deprived for publicpurpose. Reliance is placed on decisions of this Court, including thedecision of this Court in Lalaram and others v. Jaipur DevelopmentAuthority and another16. The Court is requested to mould the reliefappropriately so that the lands so transferred in favour of the Authoritymay be reverted to the persons directly benefiting therefrom, i.e., theResidents’ Welfare Associations or the residual owners of the developedareas. It is further prayed that the Court may fix time limit, withinwhich, interested parties to whom the land is to be reverted may applyfor seeking such reversion. No other developments/redevelopmentsshould be made on such lands except in accordance with law.

20. Shri Sanjay Hedge, learned Senior Counsel, for the Corporationof Chennai, supported the judgments. He contended that the impugnedprovision promoted salutary goal. He highlighted the public interestinvolved.

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 themaster plan or any detailed development plan. Reliance is also placed onSection 17. The DCR and the Regulations are part of the master plan.Section 2(36) defines ‘public purpose’ as ‘any purpose which is usefulto 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 that the DCR is statutory in nature.Equally, Sections 17, 18 and 20 are invoked along with Section 124, tocontend that the DCR is statutory. Section 2(15) of the Act includesmaster plan. Sections 105 and 111 give an overriding effect to the Act.All the Rules and Regulations, which will include the master plan, are toprevail notwithstanding anything inconsistent with the same contained inany other law, inter alia. Further, it is contended that the DCR and theRegulations have been subsumed under the Tamil Nadu Combined

16 (2016) 11 SCC 31

ADevelopment and Building Rules, 2019. Rule 74(3) of the 2019 Rules, isrelied upon to contend that it creates legal fiction that anything doneunder the Rules/Regulations, is deemed to have been done under the2019 Regulations. Reliance is placed on Judgment inBengal ImmunityCompany Limited v. State of Bihar and others17. The word ‘including’extends and enlarges the scope of the Clause [See State of Jammu &BKashmir v. Lakhwinder Kumar and others18]. If challenge to the Rules/Regulations succeeds, it will also render the sanction of the developmentplans, illegal, which will necessitate petitioners applying afresh under the2019 Rules, whereunder also, the prescription of 10 per cent land beinggifted, exists.C22. It is further contended that the Rules/Regulations, being partof the master plan, are statutory and being framed under the Statute,they operate as law under Article 300A. Reliance is placed on PuneMunicipal Corporation and another v. Promoters and BuildersAssociation and another19. Reliance placed by appellants on Pt. ChetDRam Vashist (Dead) by Lrs. v. Municipal Corporation of Delhi[20], isalleged to be misplaced. In the said case, there is no provision in theDelhi Municipal Corporation Act, 1957, under which, the Corporationcould pass Resolution to ask the appellant therein to transfer propertyfree of cost. It is further contended that the Court may bear in mind thatthe Act replaced the Tamil Nadu Town and Country Planning Act, 1920,Ewhich was based on the British Town and Country Planning and HousingAct, 1909. From the Statements of Objects and Reasons, it is contendedthat the Act was based on the Model Town and Country Planning Bill,which was prepared by the Ministry of Health and Housing of theGovernment of India after comprehensive study of various TownFPlanning Enactments in the western countries. The regional concept inthe Maharashtra Town and Country Planning Act, 1966 also made itspresence felt. The Act is designed to serve legitimate state interest ofplanned development down to the regional limit.Crowded urban areas,create adverse living conditions. The reservation of open space for parksand playgrounds is universally recognised. The decision of this Court inG21Bangalore Medical Trust v. B.S. Muddappa and others, is relied

17(1955) 2 SCR 60318 (2013) 6 SCC 333)19(2004) 10 SCC 79620(1995) 1 SCC 47H21 (1991) 4 SCC 54

upon. It is contended that the Act requires only the simple laying ofRules and Regulations under Section 123 of the Act. The laying of theRules, which is not mandatory, if not followed, will not affect the validityof the Rules/Regulations. The terms of Section 123(2) are relied upon tocontend that the Rules will come into effect even before they are placedbefore the Legislative Assembly and any modification made by theAssembly, will apply only from the date it is carried out. Reliance is22placed on Atlas Cycle Industries Ltd. and others v. State of Haryana.It is further contended that acquisition under Chapter IV of the Act isnot required in the facts. The area is not reserved in the master plan norwas any Notice published under Section 26 or 27. Acceptance ofappellant’s contention would involve the need to compulsorily acquire allthe reserved lands including areas such as setback areas, open spacesand other reserved area.Such interpretation would also render theprovisions of Chapter VI, in particular Section 55, otiose. Chapter IVapply to areas reserved and notified in the master plan itself or to anarea in excess of 10 per cent for proposed developed area of 3000 andabove square meters or where area reserved is sought to be utilised forpurpose not being communal or recreational, or areas, for which, thereare other exceptions in the impugned Rules/Regulations. Section 20(1)(d)stipulates that detailed development plan may propose or provide foracquisition by purchase, exchange or otherwise, of any land. The words‘or otherwise’ include transfer of 10 per cent of the land by way of agift. It is further contended that there is no constitutional obligation topay compensation. The Act contemplates divestment of property withoutcompensation as is evident from Sections 31 and 55 read with Sections17 and 20. It is settled position of law that Article 300A does notinvolve or compel payment of compensation. Support is drawn fromJudgment of this Court inK.T. Plantation Private Limited and another.v. State of Karnataka23:

“183. Payment of compensation amount is constitutionalrequirement under Article 30(1-A) and under the second provisoto Article 31-A(1), unlike Article 300-A. After the Forty-fourthAmendment Act, 1978, the constitutional obligation to paycompensation to person who is deprived of his property primarilydepends upon the terms of the statute and the legislative policy.Article 300-A, however, does not prohibit the payment of just

22 (1979) 2 SCC 196

23 (2011) 9 SCC 1

ABC

Acompensation when person is deprived of his property, but thequestion is whether person is entitled to get compensation, as amatter of right, in the absence of any stipulation in the statute,depriving him of his property.

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B192. At this stage, we may clarify that there is differencebetween “no” compensation and “nil” compensation. lawseeking to acquire private property for public purpose cannot saythat “no compensation shall be paid”. However, there could be alaw awarding “nil” compensation in cases where the Stateundertakes to discharge the liabilities charged on the property underCacquisition and onus is on the Government to establish validity ofsuch law. In the latter case, the Court in exercise of judicial reviewwill test such law keeping in mind the above parameters.

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205. Plea of unreasonableness, arbitrariness, proportionality, etc.Dalways raises an element of subjectivity on which court cannotstrike down statute or statutory provision, especially when theright to property is no more fundamental right. Otherwise thecourt will be substituting its wisdom to that of the legislature, whichis impermissible in our constitutional democracy.”

E23. It is contended that nil compensation, as contemplated inparagraph 192, is applicable as State undertakes to discharge liabilityfor providing spaces for requirement for recreational and communal use,which is public purpose. The area taken under the gift deed from theappellant in Civil Appeal No. 7334 of 2012 has been developed as awalkers’ park and used by the public. It is contended that town planningFlegislation has been viewed differently as it served legitimate Stateinterest. Even in the United States, where the Fifth Amendment to theU.S. Constitution contemplates compensation for taking, for public use,private property, courts have upheld validity of zoning regulations whichsubstantially limit the rights of the owners to develop land. CompensationGhas been refused. Reliance is placed on Agins v. City of Tiburon24. InIndia, there is no constitutional guarantee for payment of compensationespecially when they are required to serve legitimate public purpose.The gift of property, apart from serving the larger interest of thecommunity, would also be conducive to the interests of the appellants.

H24 447 US 255 (1980)

Refuting the contention of the appellants that the land which is transferredcan be used only by the members of the society and not by the membersof the general public, it is pointed out that since reservation is forcommunal and recreational purposes, the word ‘communal purpose’ mustbe understood to mean that it is meant for community at large. In thecase of proposed development area being 3000 square meters – 10000square meters, ‘public access is specifically excluded, as the Rules/Regulations provide that public access to area earmarked for transfer toAuthority, will not be insisted upon’.

24. There is no violation of Article 14. Classification based on sizeof plot has clear nexus with the object, viz., planned development.Reliance is placed on Judgment of this Court in State of Maharashtraand another v. Basantibai Mohanlal Khetan and others25. As far asCivil Appeal No(s). 1890-1891 of 2010 is concerned, the complaint ofthe appellants that the land transferred under the gift was being madeuse of as road, which is impermissible, it is contended that it ismisleading. It is the case of the respondent that the 10 per centlandtransferred, already had kachha road on the said land and it wasbeing used by the public. The appellants tried to prevent the use of theroad. The High Court considered the Report of the Court Commissionerand concluded that furbishing of the road served larger public interestand provided better connectivity to larger population. Alternatively,assuming communal purpose, would not include construction of roadson OSR land, in the facts of the case, appeal is made that this Court maynot interfere in the Extraordinary Jurisdiction under Article 136.

SUBMISSIONS MADE BY SRI JAYANTH MUTHRAJ,SENIOR ADVOCATE RESPONDENTS NOS. 1 AND 2 INC.A. NO. 1890 OF 2010.

25. The developers had transferred, in the interest of public, 1100square meters of land, to the Authority for roads, parks and other openspaces by the gift deed dated 18.02.1994. In the year 2003, the Corporationof Chennai laid metal road, which provided direct and short link to theVelacherry 100 feet bypass road to enable thousands of general publicto have easy access and movements. The appellant-association has nolocus as it is neither the owner of the property nor has any usage rightbeen assigned to it. The CMDA is the absolute owner of the giftedproperty. The public road was laid as per the terms of the gift. TheAB

1054SUPREME COURT REPORTS

Aproperty is used for communal purpose. The word ‘communal’ meanspublic. He relies on the definition of the word ‘communal’ in theInternational Websters Comprehensive Dictionary of the EnglishLanguage Encyclopaedic Edition (2004 Edition) to mean ‘common; public;belonging to community’. He also would contend that the DCR wasprepared in accordance with Section 17 read with Section 9C, SectionB20(1)(d) and Section 20(1)(k) and Section 35 with Section 124. Rulesand Regulations are authorised. He relies on the Judgement of this Courtin R.K. Mittal and others v. State of Uttar Pradesh and others26 andNew Delhi Municipal Council and others v. Tanvi Trading and CreditPrivate Limited and others27. The impugned Rule is not an expropriatoryCaction. It is only regulatory. The Rule is informed by intelligible differentiahaving nexus with the object. The challenge is academic as the DCRis already repealed by the Regulation made on 02.09.2008. There islatches in filing the Writ Petition after 13 years of the execution of thegift deed. Even assuming the Rule is bad, the gift deed is beyond challenge.The appellants having maintained Writ Petition (Civil) No. 4766 of 2007,Dbased on the gift deed, cannot challenge the validity of the gift deed inthe subsequent Writ Petition. Estoppel and constructive res judicataare principles which are enlisted in support.

SUBMISSIONS BY SHRI K.S. SURESH, ADVOCATE INCIVIL APPEAL NO.7848 OF 2013

26. Shri K.S. Suresh, learned counsel appearing in C.A. No. 7848of 2013, (the appeal by Vasanth Apartment Owners Association challengesthe order in the review petition) would submit that there is no power tocompel gift of land which is not required, reserved or designated. Herefers to Section 36 and would contend that there is no power beyondFthe same to demand the transfer of land. The rule providing for compelledgift is not within the objects, provisions and policies of the Act. One ofthe zones reserved is for open space and recreational use. Sections 36and 37 only provide for acquisition of land in such zones. Legislativepolicy is not to acquire land without paying fair market value. PlanningGpermission cannot result in deprivation of property. The DCR are notthe rules made under the Act. The authority is competent only to makeregulation under Section 124. In the absence of express power to demanda gift, there cannot be an implied power. The Act is regulatory and not

26 (2012) 2 SCC 232H27 (2008) 8 SCC 765

taxing legislation. The appellants are entitled to restitution. Otherwise,he adopts the arguments of the Shri Gopal Sankarnarayanan made inC.A. No. 7847 of 2013. He would also in his rejoinder submission pointout that support cannot be derived from Section 17 having regard toSection 12. He would reiterate the argument that the State Governmentalso has no power relying on the judgment reported in (2003) 5 SCC622. He would contend that the words in Section 122(1) empoweringmaking rules ‘for carrying out the purposes of the act’ is unbridled and itmust be understood as meant for regulating the use of land.

ANALYSIS

27. We have noticed the facts in the case of Vasanth Apartmentsand in the case of Keyaram Hotels. In the case of Vasanth Apartments,the land which was gifted by the owner in compliance with the impugnedrule has been sought to be made use as road. In the case of KeyaramHotels the pertinent point which must be noticed is that the OSR area isnot sought to be so maintained as road but access to the public by havingan entrance to the area through public road is sought to be projected asbeing contrary to the very concept of OSR meant for communal purpose,if the word ‘communal’ is to be understood as being confined to benefitthe interest of the community which in the context of the case is thecommunity of persons who patronise the hotel and who used the facilitiesprovided in the hotel and its premises.28. Whether impugned rule is statutory or it has statutoryunderpinning? Whether it is law?

The argument of the appellants appears to be, that the impugnedrule is not statutory rule. Instead, the further case is that the impugnedrule is not rule made under Section 122 of the Act. Section 123contemplates placing of rules made under Section 122 before thelegislative assembly. The said procedure has not been followed as regardsthe impugned rule. Therefore, it is not open to the respondents to claimthat the impugned rule is statutory rule. It is nothing but an executivefiat. If it is merely executive in nature, then it is not open to therespondents to direct the owners to execute gift deed of valuableproperty, and thus, deprive the owners of the rights over their property.

29. The argument, on the other hand, of the respondents is thatthe DCR of which the impugned rule, is apart of the Master Plan andthere is statutory authority in regard to the making of Master Plan

Alocated in Section 17 of the Act. In other words, the argument of therespondents is that the court,when it approaches the issue raised in thiscase, cannot have pedantic view and understand Master Plan as onewhich is limited or confined to mere drawings. The Master Plan ascontemplated in the Act in regard to Metropolitan Authority like theCMDA must be viewed on larger canvass. The plan was put in placeBfor catering to the needs of an ever-growing Metropolis.Variousrestrictions necessarily have to be put in place to provide for an orderlydevelopment of such sprawling urban area. The larger public interestof the entirety of the residents of such an area had to be envisaged andit is in this regard that the concept of OSR must be viewed. The MasterCPlan goes to meticulous details about what is permitted and what is not.

30. perusal of the writ petition No.23397 of 2007 being thepetition filed by the Association of Vasanth Apartments Owners whereinRule 19 has been challenged, reveals the following pleading:

It is specifically stated that Rule 19 of the DCR which forms partDof the Master Plan prepared under Section 17 of the Act mandatesreservation of 10% as open space for open and recreationalfacilities when the area exceeds 10000 sq. meters. The gift in thecase was executed in the year 1994 (16.02.1994). It is furthercontended that under the rule the second respondent was toEmaintain it either on their own or through the local body. Thesecond respondent is the authority. Thereafter since the secondrespondent has not developed OSR area as park, petitioner wantedto maintain the OSR as Park. Reference is made to Writ PetitionNo. 4766 of 2007 and the developments including the order passedby the learned single judge and also writ appeal (writ appeal no.F478 of 2007) wherein an interim order was passed. Thus, the writpetition is filed in the year 2007. Now let us look at the groundsurged:

(1)Rule 19(b) of the DCR is beyond the rule making powerconferred on the first respondent. The Act does notGempower the first respondent (the State of Tamil Nadu) tomake the DCR. Section 36 contemplates acquisition whereland is reserved for open space. Therefore, the rule is ultravires.

(2)There is an absolute right to enjoy the property. This is aHconstitutional right under Article 300A of the Constitution.

Unless there is acquisition and payment of duecompensation, Article 300A is violated.Therefore, the ruleis unconstitutional.

(3)The rule empowers the Authority to maintain the OSR areathemselves or through others without permitting ownerstothemselves to do so. The respondents have no right topossess and manage the same. Therefore, the impugnedrule authorising the second respondent to maintain andmanage the OSR area is unconstitutional.

(4)The DCR not having been placed before the legislativeassembly, it has no force of law.

(5)The impugned rule without any guideline enables exerciseof arbitrary power.

(6)There is no power with first respondent State to usurp thelands free of cost, and that too selectively, under the guiseof regulating the development of the area.

The prayer is to declare Rule 19 (b) of the DCR relating to groupdevelopment in so far as it mandates the transfer of 10% area of thelayout of any developmental plan having area 10,000 sq. meter or morereserved as open space for communal and recreational purposes to thesecond respondent or the local body designated by it, free of cost througha registered deed and empowering the second respondent or any authorityother than the association of resident owners to maintain the said OSRarea of the respective layout, and the gift deed executed and registeredas Document No.262 dated 18.02.94 in the office of the 4[th] respondentpursuant to the impugned rule are unconstitutional and null and void andconsequently direct the 3[rd] respondent to enter in their records themembers of the petitioner Association as Owners of the said OSR areaand pass such further or other orders as this Hon’ble Court may deemfit 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 towhat is law. Article 13 of the Constitution reads as follows: -

“Article 13. Laws inconsistent with or in derogation of thefundamental rights. — (1) All laws in force in the territory ofIndia 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 abridgesthe rights conferred by this Part and any law made in contraventionof this clause shall, to the extent of the contravention, be void.

(3) In this article, unless the context otherwise requires, —

(a) “law” includesany Ordinance, order, bye-law, rule, regulation,Bnotification, custom or usage having in the territory of India theforce of law;

(b) “laws in force” includes laws passed or made by Legislatureor other competent authority in the territory of India before thecommencement of this Constitution and not previously repealed,Cnotwithstanding that any such law or any part thereof may not bethen in operation either at all or in particular areas.

[(4) Nothing in this article shall apply to any amendment of thisConstitution made under article 368.]”

D32. Existing law has been defined in Article 366. It reads asfollows:-

“Article 366. (10) “existing law” means any law, Ordinance, order,bye-law, rule or regulation passed or made before thecommencement of this Constitution by any Legislature, authorityor person having power to make such law, Ordinance, order,Ebye-law, rule or regulation;”

33. Law in force is an expression found in Article 372 of theConstitution. It reads as follows: -

“Article 372. — The expression “law in force” in this article shallFinclude law passed or made by Legislature or other competentauthority in the territory of India before the commencement ofthis Constitution and not previously repealed, notwithstanding thatit or parts of it may not be then in operation either at all or inparticular areas.”

G34. Section 3(29) of the General Clauses Act, 1897 defines IndianLaw as:

(29) “Indian law” shall mean any Act, Ordinance, Regulation, rule,order, bye-law or other instrument which before thecommencement of the Constitution, had the force of law in anyHProvince of India or part thereof, or thereafter has the force of

law in any Part State or Part State or Part thereof, but doesnot include any Act of Parliament of the United Kingdom or anyOrder in Council, rule or other instrument made under such Act;

35. In Salmond on Jurisprudence 12[th] Edition, it is profitable tonotice the following discussion:

Law as the dictate of reason: natural law

The idea that in reality law consist of rules in accordance withreason and nature has formed the basis of variety of natural lawtheories ranging from classical times to present day(q). The centralnotion is that there exist objective moral principles which dependon the essential nature of the universe and which can be discoveredby natural reason, and that ordinary human law is only truly law inso far as it conforms to these principles. These principles of justiceand morality constitute the natural law, which is valid of necessity,because the rules for human conduct are logically connected withtruths 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 thequestion whether rule is legal rule from the question whetherit is just rule (k), and seeks to define law, not by reference to itscontent but according to the formal criteria which differentiatelegal rules from other rules such as those of morals, etiquette, andso on.

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According to Austin, whose version of the theory will be consideredhere, positive law has three characteristic features. It is type ofcommand, it is laid down by political sovereign and it isenforceable by sanction.

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We must now distinguish commands which are laws fromcommands which are not. Imagine state governed by an absoluteruler R. Here the law is what R command. But is the conversetrue? Are all R’s commands law?

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Now if particular commands can qualify as laws, how can wedistinguish laws from commands which are not? Everyday life issprinkled with examples of people giving commands to others:masters give orders to servants, teachers to pupils, parents tochildren and so forth.

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Such criticism overlook the importance of Austin’s secondrequirement: for to qualify as law command must have beengiven by political superior, or sovereign.

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To define law as command can mislead us in several ways.First, though this may be not in appropriate way of describingcertain portions of law such as the criminal law, the greater partof legal system consists of laws which neither command norforbid things to be come, but which empower people by certainDmeans to achieve certain results: e.g., laws giving citizens theright to vote, laws conferring on lease-holders the right to buy thereversion, laws concerning the sale of property and the making ofwills: indeed the bulk of law of contract and of property consistsof such power-conferring rules. At this point the theory could beEsaved by arguing that rule conferring right on one person isreally an indirect command addressed to another: lawempowering the citizen to vote is really an order to the returningofficer to register the vote.

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Thirdly, “command” conjures of the picture of an order given byone particular commander on one particular occasion to oneparticular recipient. Laws differ in that they can and do continuein existence long after the extinction of the actual law-giver (r).

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But whether we define law as command or rule, we must stilldistinguish commands (or rules) which are law from those whichare not. For Austin, as we saw, command can only be law if itemanates from sovereign. This raises the question how far therecan exist laws other than those made by the sovereign. Obviouslyin complex modern state it would be impossible for sovereign

to enact every legal rule: much law-making will in fact be done bysubordinates to whom legislative powers have been delegated. Agood deal of English law consists of such delegated legislation,e.g., regulation made by Ministers under Acts of Parliament. HereAustin finds no problem, since he sees no difficulty in the notionof sovereign conferring law-making powers on others (u).

36. The distinguishing feature of law has been the subject matterof considerable debate and we may only for the purpose of these casesnote that one of the essential features which mark out law from anexecutive order is that ‘law’ has general application. In other words, lawsets out principles and rules which apply to all of those who would bewithin its purview otherwise. law is not to be viewed as particulariseddecisions of the executive. Law is generally to have operation in thefuture. This court speaking through O. Chinnappa Reddy, J. held inUnionof 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. Inthe case of Parliamentary legislation, the proposition is self-evident.In the case of subordinate legislation, it may happen that Parliamentmay itself provide for notice and for hearing — there areseveral instances of the legislature requiring the subordinatelegislating authority to give public notice and public hearing beforesay, for example, levying municipal rate — in which case thesubstantial non-observance of the statutorily prescribed mode ofobserving natural justice may have the effect of invalidating thesubordinate legislation…”.

“7. The third observation we wish to make is, price fixation ismore in the nature of legislative activity than any other. It is truethat, with the proliferation of delegated legislation, there is atendency for the line between legislation and administration tovanish into an illusion. Administrative, quasi-judicial decisions tendto merge in legislative activity and, conversely, legislative activitytends to fade into and present an appearance of an administrativeor quasi-judicial activity. Any attempt to draw distinct linebetween 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

Alegal rights and consequences may ensue. The distinction betweenthe two has usually been expressed as “one between the generaland the particular”. “A legislative act is the creation andpromulgation of general rule of conduct without reference toparticular cases; an administrative act is the making and issue ofa specific direction or the application of general rule to aBparticular case in accordance with the requirements of policy”.“Legislation is the process of formulating general rule of conductwithout reference to particular cases and usually operating infuture; administration is the process of performing particular acts,of issuing particular orders or of making decisions which applyCgeneral rules to particular cases.” It has also been said: “Rule-making is normally directed toward the formulation of requirementshaving general application to all members of broadly identifiableclass” while, “an adjudication, on the other hand, applies to specificindividuals or situations”. But, this is only broad distinction, notnecessarily always true. Administration and administrativeDadjudication may also be of general application and there may belegislation of particular application only. That is not ruled out. Again,adjudication determines past and present facts and declares rightsand liabilities while legislation indicates the future course of action.Adjudication is determinative of the past and the present whileElegislation is indicative of the future. The object of the rule, thereach of its application, the rights and obligations arising out of it,its intended effect on past, present and future events, its form, themanner of its promulgation are some factors which may help indrawing the line between legislative and non-legislative acts.”

F37. Paton in his work on Jurisprudence says this about the law.

“Law may shortly be described in terms of legal order tacitly orformally accepted by community. It consists of the body of ruleswhich are seen to operate as binding rules in that community,backed by some mechanism accepted by the community by meansof which sufficient compliance with the rules may be secured toGenable the system or set of rules to continue to be seen as bindingin nature. mature system of law normally sets up that type oflegal order known as the State, but we cannot say priori thatwithout the State no law can exist.”

38. In the DCR the preamble recites that Section 9 (c) of the ActHprescribes that the Authority is to carry out survey of the Chennai

Metropolitan Area and prepare 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 on04.12.1976. The DCR inter alia provides as follows:

No development as defined in the Act is permissible without writtenpermission. It provides for the manner of obtaining permission.Rule 3 proclaimed that no development shall be in contraventionof the DCR. Site approval is made mandatory. The land useclassification was put into place. The DCR divided land use interms of 9 separate zones which included primary residential zone,mixed residential zone, institutional use zone, open space andrecreational use zone etc. There were detailed restrictions put inplace qua the zones in regard to what activities were permitted asalso what were prohibited. Part III commencing with Rule 17was captured under the Caption ‘General Provisions’. It is underthis chapter that Rule 19 made its appearance. Rule 19 dealt withLayout and sub division. It inter alia provided for passage, streetsand roads and cul-de-sacs and it is thereunder that in respect ofreservation of land for communal and recreational purpose in alayout or sub division that the DCR contemplated inter alia theimpugned provisions. Rule 20 provided for parking. Rule 21 dealtwith architectural control. Rule 22 provided for preservation ofbuildings of historical or architectural interest. Rule 23 dealt withtree preservation. Rule 24 dealt with advertisement control. Rule25 provided for Airport zone and Microwave Zone. In fact, Rule26 may be noticed at this stage in full.

“26. These rules to prevail :- (a) In the application of theserules if there is conflict between the requirements under theserules and the requirements under any other Act or rules or bylaws in force the requirements under these rules and theprovisions of Chennai City Municipal Corporation Act, TamilNadu Distrit Municipal Act or Panchayat Act or any other lawrelating to the local authority for the time being in force or anyrule, by law or regulation made under the said act or laws,such provisions which are contrary to these rules shall standsuspended. (b) The notifications made under the Municipaland Panchayat Acts and the Tamil Nadu Public Health Act,1939 (Tamil Nadu Act III of 1939) as regards setting of the

DEF

AIndustrial and Residential area in the Chennai MetropolitanArea will cease to operate from the date of commencementof these rules. 27.”

Rule 27 dealt with identification of boundaries. Rule 28 providedfor delegation of power. Rule 29 made contravention of the rulesBpunishable 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 therules made under the Act, the functions of the Authority is to inter aliaprepare Master Plan referred to under sub-Section (2) of Section 17.Section 17 deals with Master Plans. Section 17 contemplates that theCLocal Planning Authority (which is mentioned under Section 4(b) of theAct) shall within such time as may be prescribed and after consultingthe Regional Planning Authority (see Section 4(a) of the Act) and theLocal Authority, prepare and submit to the Government, Plan calledthe Master Plan. Section 17(2) reads as follows:

D“(2) The master plan may purpose or provide for all or any of thefollowing matters, namely: -

(a) the manner in which the land in the planning area shall beused;

(b) the allotment or reservation of land for residential, commercial,Eindustrial and agricultural purposes and for parks, play-fields andopen 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,Fring roads, major streets, lines of communication including railways,airports and canals;

(e) the traffic and transportation pattern and traffic circulationpattern;

(f) the major road and street improvements;

G(g) the areas reserved for future development, expansion and fornew housing;

(h) the provision for the improvement of areas of bad layout orobsolete development and slum areas and for relocation ofpopulation;

H(i) the amenities, services and utilities;

(j) the provision for detailed development of specific areas forhousing, shopping, industries and civic amenities and educationaland cultural facilities;

(k) the control of architectural features, elevation and frontage ofbuildings and structures;

(l) the provision for regulating the zone, the location, height, numberof storeyes and size of buildings and other structures, the size ofthe yards and other open spaces and the use of buildings, structuresand 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 detaileddevelopment plan also. Section 24 of the Act contemplates that as soonas may be after the Master Plan inter alia has been submitted to theGovernment, the Government may not later than the time prescribeddirect the appropriate Planning Authority to make such modification inthe Master Plan inter alia. Thereupon, the modified Plan has to beresubmitted to the Government. Thereupon, the Government may givethe consent for publication of the notice under Section 26 of thepreparation of the Master Plan inter alia. Moving on to Section 26, itcontemplates publication in the Gazette, of the notice of the preparationof the Master Plan inter alia. The notice must indicate the place or placeswhere the copies may be inspected. More importantly, objections andsuggestions in writing are to be invited within such period as is specifiedin the said notice. The period shall not be less than two months from thepublication of the notice. Section 26 (2) contemplates that reasonableopportunity of being heard must be provided to any person includingrepresentative of the Government Authority, who have made anyobjection. The Planning Authority can make amendments based on theobjections and with the amendments, if any, carried out, the Plan is againsubmitted to the Government. Section 28 contemplates approval by theGovernment after consulting the Director of Town and Country Planningof the Plan submitted under Section 26(2). The approval may be with orwithout modification. Again, it is open to the Government to return thePlan, to modify the plan, or to prepare fresh Plan in accordance withsuch directions as the Government may issue in this behalf andresubmitted to the Government for approval. The approval which isgranted under Section 28 by the Government to Master Plan inter aliais to be published by the Government in the gazette and leading

Anewspapers. The notification must indicate the place and time at whichthe Plan shall be open to inspection to the public. The Plan shall comeinto operation from the date of publication in the Tamil Nâdu GovernmentGazette. Section 32 of the Act provides for variation, revocation andmodification of regional plans, Master Plan and the new developmentplan, at any time, by subsequent plan prepared and approved under theBAct.

41. Even according to the petitioner in Association of VasanthApartments Owners, the DCR is part of the Master Plan. This isprecisely the argument of the respondent as well. We are in agreementwith the stand taken by the petitioner and the respondent. The DCR is aCpart of the Master Plan. The process involved in the making of theMaster Plan points to active participation of all stakeholders. The planwhich is apparently tentatively prepared must first receive approval fromthe Government before the notice of its preparation is published. It isupon such notice being published, objections are also invited. It is opento the Planning Authority to amend the Plan, paying heed to the objectionsDfound to be with merit. Again, the matter goes to the Government.Government has the power again to return it. Government as well mayapprove the Plan. As we have already found Master Plan cannot beconflated with set of drawings or maps. It must, in the context of lawin question, be extended to encompass within its embrace rules by whichalone the Plan can become workable and the sublime goal of the lawgiverEattained. The Master Plan accompanied with the DCR were to holdsway. It was to have general application. It was intended to bind everyone.It created rights and liabilities. It was not intended for any particularperson. It was to operate in the future. It carried with it the attributes oflaw. The Government all throughout plays the pivotal and leading roleFand it is only with the imprimatur of approval by the Government that thePlan read with the Rules assumed force. Government undoubtedly hadpower to make rules under Section 122 of the Act. We would thereforehold that the DCR which held the field till 2008 when Regulations wereenacted had the force of law.

42. It is profitable for us at this juncture to look at what learnedGsingle judge had to say regarding the history of the ‘DCR’ and theregulation. Justice V. Ramasubramanian, while judge of the High court,has rendered judgment reported in M. Krishnasamy V. The MemberSecretary, Chennai Metropolitan Development Authority andAnother29. It was rendered on 25.09.2012. The petitioner thereinH29 2013 1 CTC 80

challenged communication by the member secretary of the authorityrejecting the request to waive open space reservation charges for thegrant of planning permission. The amount of OSR charge demandedwas Rs.58,50,000. It was the contention of the petitioner therein that thecharges could be levied only if land of an extent equivalent to 10% of thetotal area was not reserved for open space and conveyed to the localbody. It was his case that his predecessor in title had already earmarked10% of the total area and handed it over to the Corporation of Chennai.A draft deed of conveyance was also submitted by his predecessor whichcould not be executed on account of the lethargy on the part of thecorporation but possession was taken in 1976. The learned single judgewent on to find as matter of fact that though gift deed as such wasnot executed, the land was in public domain for the past 36 years and noone except the local body would lay claim on the said land. The Courtheld;“Para 12. Though in paragraph 10 of the counter affidavit, thefirst respondent has claimed that OSR land was neither gifted norhanded over to the Corporation, the same appears to be an incorrectstatement. The Corporation has categorically confirmed that theland of the extent of 6 grounds 170 sq. ft., had been handed overby the original owner. This is also corroborated by (i) letter ofthe Assistant Engineer of the Corporation of Chennai dated29.1.1976 and (ii) the handing over-taking over certificate dated11.2.1976 signed by an Officer of the Deputy Collector’s officeand the Corporation of Chennai. The fact that the said land hasbeen developed into park and that it is now maintained by theCorporation of Chennai, is beyond any pale of doubt. But it isequally true that no deed of conveyance/gift was executed andregistered by the original promoter in favour of the Corporation.Nevertheless, the land is in public domain for the past 36 yearsand no one except the local body, can today lay claim on thesaid land of the extent of 6 grounds and 170 sq. ft. Therefore, onthe first question, it has to be held that OSR land has already beenhanded over to the local body.”

43. Thereafter it is interesting that the learned Single Judge holdsas follows: -

“Para 13. Incidentally it must be pointed out that in Pt. Chet RamVashist vs. Municipal Corporation of Delhi {1995 (1) SCC 47},the Supreme Court held that the effect of reserving any site for

open space, park etc., in layout is that the owner ceases to be alegal owner of the land in dispute and that he would hold the saidland for the benefit of the society or the public in general. It wasfurther held in the said decision that the entitlement of theCorporation or the local body to demand the transfer of the landto them, is not made out from the provisions of any Act or on anyprinciple of law. The Court pointed out that the Corporation mayget right as custodian of public interest to manage it in the interestof the society in general. However, the right to manage as localbody, was held by the Supreme Court in the said decision, to benot 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 & ChemicalsLtd {MANU/SC/7706/2007 : 2007 (8) SCC 705}. Again in BabulalBadriprasad Varma vs. Surat Municipal Corporation {MANU/SC/7606/2008 : 2008 (12) SCC 401}, the Supreme Court pointedout that statute of town planning ex facie is not statute foracquisition of property. The Court further observed that everystep taken by the State does not involve application of the Doctrineof Eminent Domain.”

Para 16.At this juncture, small prelude is necessary, to understandhow the liability to earmark open space for public and recreationalpurposes, in land developed into layout and how the liability toEpay OSR charges, came into existence. Hence it is presented asfollows: -

(i) Section 9C, Chapter II-A of the Tamil Nadu Town and CountryPlanning (Amendment) Act, 1973 (Tamil Nadu Act No. 22 of1974) prescribed that the Madras Metropolitan DevelopmentFAuthority shall carry out survey of Madras Metropolitan areaand prepare Master Plan as referred to in Section 17.

(ii) Accordingly, MMDA carried out necessary surveys and studiesand prepared the First Master Plan for the Chennai MetropolitanArea in 1975. The Government approved the same in G.O.Ms.No. 2395, Rural Development and Local Administration datedG4.12.1976.

(iii) The First Master Plan covered an extent of approximately1170 sq. kms. It included within the City of Chennai, part ofAmbattur Taluk, Tambaram Taluk, Tiruvallur Taluk, ChengalpetTaluk, Sriperumbudur Taluk, Ponneri Taluk and PoonamalleeHTaluk.

(iv) Under the said Plan, all lands in the Metropolitan Area werecategorised into 10 zones such as Primary Residential Use Zone,Mixed Residential Use Zone, Commercial Use Zone, LightIndustrial Use Zone, General Industrial Use Zone, Special andHazardous Industrial Use Zone, Institutional Use Zone, OpenSpace and Recreational Use Zone, Agricultural Use Zone andNon-Urban Use Zone.

(v) Along with the First Master Plan, set of rules known asDevelopment Control Rules were issued by the Government.These rules dealt with (i) permission for development (ii) use zonesand (iii) general provisions.

(vi) Rule 19 of the Development Control Rules, which comesunder Part III, under the heading “General Provisions” deals withlayout and subdivision.

(vii) The liability to reserve portion of the site in layout as openspace, arose out of Rule 19 of the Development Control Rules, tillthese rules were in operation.

Para 17. Rule 19 of the Development Control Rules contains aTable which prescribes the minimum width of the streets and roadsin different types of layouts. Just below the Table under Rule 19,there is Note. The said Note contains 3 prescriptions. The thirdprescription in the said Note contains Table indicating the extentof land to be reserved for communal and recreational purposes ina layout or subdivision for residential, commercial, industrial orcombination of such uses.

Para 21. It may be of interest to note that at the time when theFirst Master Plan was conceived in 1975, the concept of “GroupDevelopment” or “Flats”, had not gained momentum in the Cityof Chennai. Therefore, the Development Control Rules did notcontain specific provisions to regulate the same. But whendevelopers started promoting flats, the issue was taken up by theMadras Metropolitan Development Authority with theGovernment, in letter dated 22.3.1981. On the basis of the saidletter of the Member Secretary and the recommendations of theTechnical Committee of MMDA and the response of the publicto the proposed amendment to the Rules, the Government issuedG.O.Ms. No. 940, Housing and Urban Development, dated8.10.1982, approving the Draft Rules for incorporation in the

1070SUPREME COURT REPORTS

ADevelopment Control Rules with certain modifications. They wereissued by the Government in exercise of the power conferred bySection 32 of the Tamil Nadu Town and Country Planning Act,1971.

Para 22. By the Amendment so made to the Development ControlBRules, sub-rules (b) & (c) were inserted under Rule 19. Whilesub-rule (b) dealt with “Special Buildings”, sub-rule (c) dealt with“Set Back” for residential and commercial. Under Clause (v) ofsub-rule (c) of Rule 19, the extent of land to be reserved forCommunity Recreational Purposes, was indicated in tabularcolumn. It reads as follows:

Para 23. But in so far as “Group Development/Flats” areconcerned, the open space to be reserved for CommunityRecreational Purposes was indicated in separate Table in thesame Government Order G.O. Ms. No. 940, dated 08.10.1982, asfollows:

Para 24. Rule 19(a) & (b) was amended further by G.O.Ms. No.35, Housing and Urban Development, dated 9.1.1989. But theAmendments introduced by the said Government Order coveredonly layouts of the extent between 3,000 sq.meters and 10,000sq.meters. In other words, layouts of larger extents above 10,000sq.meters, were not covered by the said Amendment.

Para 25. There appears to be subsequent amendment. Thoughthe year of such amendment is not clear, the Development ControlRules hosted in the Internet by the CMDA, as amended uptoSeptember 2004, contains two Tables, one in respect of normalbuildings under Rule 19(a) and another in respect of “SpecialCBuildings and Group Developments” under Rule 19(b). The Table

under Rule 19(a) is as follows:

Para 26. The Table under Rule 19(b) in respect of SpecialBuildings, is as follows:

Para 27. After spurt in developmental activities, the CMDA felta need for Second Master Plan for the Chennai MetropolitanDArea. Therefore, Draft Second Master Plan 2011 was preparedand submitted to the Government and the Government gave itsconsent to it under G.O.Ms. No. 59, Housing and UrbanDevelopment Department, dated 30.6.1995. After publicconsultation, it was submitted to the Government in DecemberE1995 for approval. But approval could not be granted on accountof an interim prohibitory order granted by this Court in WritPetition. Though the Writ Petition W.P. No. 14819 of 1995 waseventually dismissed on 10.7.2001, the Government returned theDraft Second Master Plan to the CMDA for suitable modifications.This was under G.O.Ms. No. 408, dated 5.10.2001.F

Para 28. Thereafter, revised Draft Second Master Plan withthe year 2026 as the horizon year, was prepared and submitted tothe Government in December 2005. The Government againreturned it under G.O.Ms. No. 331, & UD Department, dated5.12.2006, with direction to incorporate certain developments inGthe field and to submit fresh proposal for consent. This wasdone in February 2007 and the Government gave its consent on30.3.2007.

Para 29. Thereafter, copies of the Draft Second Master Plan weremade available to the public and also hosted in the official websiteof the First Respondent. Subsequently public consultations were

conducted in April and July 2007 and two-day workshop wasalso held in August 2007. Thereafter, the draft was finalised andsubmitted to the Government. Finally, the Second Master Plan forChennai Metropolitan Area was approved by the Government ofTamil 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, set of Regulations knownas “Development Regulations” were issued and they came intoforce on 2.9.2008.

Para 30. Regulation 26 of the Development Regulations 2008,contains stipulations regarding “Special Buildings”. SpecialBuilding is defined in Regulation 2(40) to mean (i) residential orcommercial building with more than two floors, or (ii) residentialbuilding with more than 6 dwelling units or (iii) commercial buildingexceeding floor area of 300 sq.meters.”

44. After referring to Rule 27 dealing with group developmentsand Rule 29 which dealing with layout and sub division regulations andfinding it to correspond to Rule 19 of the DCR and further noticing Rule27 in greater detail, the learned Single Judge then proceeds to hold furtheras follows: -

“Para 34. careful survey of (i) the provisions that existed from1975 till 2008 under the First Master Plan and the DevelopmentControl Rules, and (ii) the provisions that exist with effect from2008 under the Second Master Plan and the DevelopmentRegulations, would show that layouts had always been classifiedinto 3 categories. They are, (i) those whose total land extent isupto 3,000 sq.meters, (ii) those whose total land extent is between3,000 sq.meters and 10,000 sq.meters, and (iii) those whose totalland extent is above 10,000 sq.meters.

Para 35. Consistently, the Development Control Rules which werein force till 2008 and the Development Regulations which are inforce from 2008, have exempted layouts whose total extent ofland is upto 3,000 sq.meters, from the obligation to reserve anyopen space. Similarly, the Rules have consistently given twooptions, either to hand over 10% of the area excluding roads or topay the market value of equivalent land, in so far as layouts whosetotal extent of land is between 3,000 sq.meters and 10,000sq.meters.

APara 36. But, in respect of layouts whose total extent of land isabove 10,000 sq.meters, the Rules have always insisted uponhanding over of Open Space Reservation land to the extent of10% of the total area. In respect of layouts whose total extent isabove 10,000 sq.meters, it was made clear by the successiveGovernment Orders that no charges in lieu of 10% of the areaBcan be accepted. This is borne out by—

(1) G.O.Ms. No. 743, Housing and Urban Development, dated10.5.1979,

(2) G.O.Ms. No. 940, Housing and Urban Development, dated8.10.1982,

(3) the Development Control Rules as of September, 2004 (hostedin the official website) and the Table contained therein under Rules19(a) & 19(b), and

(4) Regulation 29 and Annexure XX under the DevelopmentDRegulations of the year 2008.”

We are fortified in our conclusion that the Rule in question wasstatutory in nature. Section 123 (2) contemplates that every rule madeunder the Act is to be laid as soon as may be on the table of the LegislativeAssembly and it inter alia enables the Assembly to modify the rule andEif the Assembly decides that the rule should not be made or give it amodified operation or no effect, then such decision of the Assemblywill prevail. It is to be noticed that this is after providing that unlessotherwise expressed, the rules come into force on the day on which theyare published in the Gazette. This shows that the rule has life withoutFreference to the Legislative Assembly. It is undoubtedly true that Section122 speaks of the power of the Government to make rules. While it istrue that the Master Plan is to be prepared by the CMDA and the ruleswould form part of the Master Plan, the scheme of the rules wouldshow that it is only with the approval of the Government that the rulesalong with the Master Plan come into force. We have already noticedGthe effect of Section 32 as indeed it was considered by the learnedSingle 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 adeveloper who develops layout which is between 3000 sq.m. and 10000H

sq.m. to pay the equivalent is to be found both in the circumstance thatit is permitted only when there is physical complaint and also it isobvious that the local Authority would be expected to plough back themoney equivalent into making available alternate facility by way of OSRin such cases.

46. It is necessary to notice the relevant facts in the case relatingto Vasanth Apartments in greater detail. The writ petition filed by theAssociation of Vasanth Owners is in the year 2007. The VasanthApartments is located at 100 feet bye-pass road, Velacherry. Theapartments were promoted as group developments in terms of approvalgranted by the CMDA on 16.05.1997. The Apartments consist of 12blocks, out of which 11 blocks consist of 4 storeys and house about 180dwellings.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 asOSR. gift was executed on 10.02.1994 under the DCR. The CMDAwas either to maintain the OSR area on its own or to permit the appellantAssociation to maintain the same. 180 families residing in the campus donot have any park and any recreational facility despite the OSR.Thereafter, there is reference to attempts being made by some personsto encroach on the said OSR area for some other purposes. Severalloads of earth was dumped in the OSR area. The case on the other handof the respondents as can be seen from the writ appeal is that at the timeof construction, the land owners earmarked the portion of the land, thatis, 11836 sq. feet, as open space regulation (OSR area) for road andpark and gifted the same as per the gift deed.The second respondentCorporation has formed road in that land during the year 2003 itself andwas maintaining the same. It is their case that the appellant Associationwas blocking the said road. The said road is shortest link from WestVellachery to East Vellachery - Vijay Nagar and this road gives accessto Venkateshwara Nagar, MGR Nagar and Devikarumariamman Nagaretc., where one lakh people are living in Vellachery.

47. Now, it is necessary to notice the actual terms of the gift deedwhich was executed on 18[th] February, 1994. The relevant terms read asfollows: -

“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 ShriK.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 ShriG.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 ShriM. Sivagnanam, aged about 42 years, residing at 75,C.P. Ramasamy Road, Alwarpet, Madras, hereinafter called “THEDONOR” of the one part;

and

The Madras Metropolitan Development Authority, representedby itsMember Secretary, having their office at No.8, Gandhi IrwinRoad,”Thalamuthu Natarajan Building”, Egmore, Madras,hereinafter called”THE DONEE” on the other part;

WHEREAS the “DONOR” is well sufficiently entitled, free fromallencumbrances, the piece of lands for roads and parkshereunderdescribed and intended to be hereby granted conveyedand assigned.

WHEREAS the DONOR is the absolute GPA holder of theproperty bearing S.No.379/1 (Part) and 380 / 4 (part) of VelacherryVillage andsubmitted proposal for development of the land inthe above S.Nos. for residential purposes.To comply with the rulesand regulations prevailingnow, the DONOR in the interest of publichas agreed to transfer the roadsand parkand other open spacehereunder described through gift deedin favour of DONEE andDONEE has agreed to accept the same.

Now this indenture witnesseth that the DONOR doth herebygive,grant, convey and assign in the interest of public unto theDONEE whohereby accepts the same all that lands for roads,parks and other openspace situated in S.Nos.379 / 1, (part) and

380 / 4 (part) which is for the use of the public comprised inlayout sketch enclosed, within registration subdistrictof MadrasSouth and registration district of Madras Central and moreparticularly described in the schedule hereunder written and theDONOR doth hereby covenant with the DONEE that theDONOR now does have good right to grant, convey and assignthe lands of roads/parkshere by granted conveyed and assignedupto the “DONEE” with themanner aforesaid and that the“DONEE” shall and may at all timeshereafter peacefully andquietly possess and enjoy the said lands ofroads/parks free fromall encumbrances whatsoever without any lawfuleviction,interruption, claim, whatsoever, from or by the “DONOR” or anyperson claiming under or interest for him and further that the“DONOR”and all person having lawfully or equitably claimingany rights onroads/parks or interest with the said premises or anypart thereof from under or interest for the “DONOR” or from orunder any of his ancestors shall and will from time to time and atall times hereafter at the request of and cost of the “DONOR” doexecute and register or cause to be done

executed and registered all such acts, deeds and things whatsoeverforfurther and more perfectly assuring the said lands or roads andparksevery part thereof unto the “DONEE” in the manneraforesaid or as shallor may be reasonably required.

THE SCHEDULE OF PROPERTY

All that piece and parcel of lands measuring 1100 squaremetersreserved for parks/open spaces and marked in colour ofthe layout sketchenclosed herein situated in S.No.379/1 (part) and380/4 (part) of Velacherry Village, Saidapet Taluk, Madras andwithin the subregistration District of Madras South andRegistration District of Madras Central.

The value of property Rs.1,99,000/-.”

WHETHER THE IMPUGNED RULE VIOLATESARTICLE 14 OF THE CONSTITUTION? IS ITDISCRIMINATORY?

48. As far as this ground is concerned, we do not find any referenceto this line of argument before the High Court. In the writ petition filedby the Vasanth Apartments (writ petition no. 23397 of 2007) the only

Afeeble reference, if at all we can understand the same to be one, isground (F) where what is contended is that the CMDA had no powerunder the Constitution to usurp the lands of citizens free of cost, that tooselectively, under the guise of regulating the development of the area. Inthe written submissions, no doubt we may notice the following: -

B“(v) Further, if plot measuring 200m x 55m abutting road ofwide 1O m and above if developed by seeking single approval,it would attract the impugned rule of gifting 10% area whereas ifit is divided into 4 pieces of 50 m* 55 m and sold to 4 individualsand then developed by the 4 persons, for the same development,then the impugned rule will not be attracted. Therefore, theCimpugned rule mandating the transfer of OSR area free of costhas no rational basis and hence arbitrary.

(vi) Further, if an open space is required for public purpose, thenevery public would be enjoying the same. The state may tax thepublic based on wealth but can not tax only person who isDproposing to develop an area of 10,000 sqm. Therefore, theclassification has neither any intelligible differentia nor has rationalnexus with the object of town Planning. Therefore, the impugnedrule is discriminatory and hence violative of Art.14 of Constitutionof India. The Hon’ble Court Supreme Court in Yogendra Pal &Eothers Vs. Municiplaity, Bhatinda, reported in AIR 1994 SupremeCourt 2550 [relevant para-9] has held that the statutory provisionsU/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 transferof land to the extent of 25% of the private land free of cost whiledeveloping building scheme as violative of Art.14 of theFConstitution of India. The Hon’ble Supreme Court while upholdingthe said provisions as not violative of Arts. 19(1)(f) and 31(2) (thethen existing provisions) of Constitution of India but held the saidprovisions as violative of Art. 14 of the Constitution of India.

Therefore, due to the aforesaid reasons, the mandate under theGimpugned rule to transfer the OSR area free of cost is withoutany basis and hence arbitrary and unreasonable and discriminatoryand hence violative of Art.14 of the Constitution of India.”

49. In the review petition (filed as review application no. 69 of2008) also there is no contention seeking to ventilate the complaint that

the impugned rule falls foul of Article 14 on the basis that it isdiscriminatory.

50. We are concerned in this case with the provision which providesfor town planning. In regard to such law, certain measure of free playis to be given to the planning authority bearing in mind that it is urbanplanning what is involved. In regard to the grant of development permitup to 3000 sq. mtr., the rules do not contemplate any requirement in thematter of OSR. It is matter which goes to the wisdom and clearly fallswithin the realm of policy. In other words, having regard to the size ofthe development contemplated, the authority has not found it fit to providefor reservation under the head open space. It cannot be described asbeing bereft of any rationale that upon the minimum threshold of 3,000sq. mtr. being breached and the layout being between 3,000 sq. mtr. and10,000 sq. mtr., 10% of the area excluding roads is to be maintained asopen space. In other words, 10% of area would have to be reserved forcommunal and recreational facilities. It is no doubt true that that in casesfalling in the said category namely group developments which compriseof an area in excess of 3,000 sq. mtr. and up to 10,000 sq. mtr., it is opento the project proponent to pay the market value equal to the land on thebasis of valuation as provided therein. However, it is only if on accountof the physical constraints it is not possible to provide open space, thatpayment is contemplated. Another noteworthy feature is that in caseswhere the land is between 3,000 sq. mtr. and 10,000 sq. mtr. publicaccess for the area as earmarked shall not be insisted upon. It is when itcomes to case where if the area goes above 10,000 sq. mtrs., that itbecomes obligatory to reserve 10% of the area excluding road and theOSR reserved is to be transferred by way of gift deed.51. We are unable to persuade ourselves to hold that the impugnedrule violates Article 14 on the score that it is discriminatory. In challengeto provision based on discrimination under Article 14, the burden is onthe applicant to lay clear foundation in pleadings and further to dischargethe burden by making good the case and the court will not lightly enter afinding of discrimination. Town planning being complex subject involvingvarious inputs and value judgements which are intended to ensure theorderly, visionary and planned development, they require greater deferencefrom courts.

IS THE IMPUGNED RULE/ REGULATION ULTRAVIRES?

A52. It has been contended on behalf of the appellants/writ petitionerthat the impugned provisions represent case of they being ultra vires.In General Officer Commanding-in-Chief and another v. Dr.Subhash Chandra Yadav and another30, this Court was consideringthe validity of Rule 5C of the Cantonment Funds Servants Rules, 1937.It was contended that it was contrary to Section 280(2)(c) of theBCantonment Act, 1924. The argument was accepted. The argument ofthe 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 framedCunder the provisions of statute form part of the statute. In otherwords, rules have statutory force. But before rule can have theeffect of statutory provision, two conditions must be fulfilled,namely, (1) it must conform to the provisions of the statute underwhich it is framed; and (2) it must also come within the scope and-Dpurview of the rulemaking power of the authority framing therule. If either of these two conditions is not fulfilled, the rule soframed would be void. The position remains the same even thoughsub-section (2) of Section 281 of the Act has specifically providedthat after the rules are framed and published they shall have effectas if enacted in the Act.”E

53. In Kunj Behari Lal Butail and others v. State of H.P. andothers31, the Parent Act conferred power on the Delegate from theGovernment, to make Rules for carrying out the purpose of the Act, afamiliar legislative device. The contention taken was that the Rule inquestion revealed the Delegate surpassing its authority. We notice theFfollowing discussion:

“8. … Tea estates are excluded from the provisions of the Act bySection 5. “Tea estate” is defined in the interpretation clause ofthe Act to mean an area under tea plantation and includes withinthe definition “such other area necessary for purposes subservientGto tea plantation as may be prescribed”. Rule 3 defines whatareas shall be treated as subservient to tea plantation. Theamendment made vide notification dated 4-4-1986 places anembargo on the right to transfer such subservient land though

30 (1988) 2 SCC 351H31 (2000) 3 SCC 40

exempted from the operation of the Act. Clearly the impugnedproviso is beyond the rule-making power of the State Governmentas conferred by the Act. It is well settled that the legislature cannotdelegate its essential legislative functions which consist in thedetermination or choosing of the legislative policy and of formallyenacting that policy into binding rule of conduct. What is permittedis the delegation of ancillary or subordinate legislative functions,or, what is fictionally called, 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 ofIndia [(1989) 4 SCC 187 : 1989 SCC (L&S) 569 : AIR 1990 SC334] this Court has held:

“(A) delegated legislation or subordinate legislation must conformexactly to the power granted.”

(SCC p. 222, para 62)

“Rules, whether made under the Constitution or statute, mustbe intra vires the parent law under which power has beendelegated.”

10. In General Officer Commanding-in-Chief v. Dr SubhashChandra 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 rule can have the effect of statutory provision, twoconditions must be fulfilled, namely, (1) it must conform to theprovisions of the statute under which it is framed; and (2) it mustalso come within the scope and purview of the rule-making powerof the authority framing the rule. If either of these two conditionsis not fulfilled, the rule so framed would be void.”

54. Finally, we may notice Global Energy Ltd. and another v.Central Electricity Regulatory Commission32. This Court laid downas follows:

“25. It is now well-settled principle of law that the rule-makingpower “for carrying out the purpose of the Act” is generaldelegation. Such general delegation may not be held to be laying

32 (2009) 15 SCC 570

down any guidelines. Thus, by reason of such provision alone,the regulation-making power cannot be exercised so as to bringinto existence substantive rights or obligations or disabilities whichare not contemplated in terms of the provisions of the said Act.

26. We may, in this connection refer to decision of this Courtin Kunj Behari Lal Butail v. State of H.P. [(2000) 3 SCC 40]wherein three-Judge Bench of this Court held as under: (SCCp. 47, para 14)

“14. We are also of the opinion that delegated power to legislateby making rules ‘for carrying out the purposes of the Act’ is ageneral delegation without laying down any guidelines; it cannotbe so exercised as to bring into existence substantive rights orobligations or disabilities not contemplated by the provisions ofthe Act itself.”

[See also State of Kerala v. Unni [(2007) 2 SCC 365] (SCC paras32 to 37) and A.P. Electricity Regulatory Commission v. R.V.K.DEnergy (P) Ltd. [(2008) 17 SCC 769 : (2008) 9 Scale 529] ]

55. The case law is relied upon to contend that the impugnedprovisions, in the cases before us, purport to achieve, what is notcontemplated by the Act. In other words, the Act does not contemplatethe execution of the gift deed. It becomes impermissible for the DelegateEof the Law Giver to make subordinate legislation to provide so. We mayonly finally notice the recent Judgment of this Court in Indian Young-Lawyers Association and others (Sabarimala TempleIn Re.) v. Stateof Kerala and others33, where this Court has reiterated the aforesaidprinciples. (See paragraphs 137 to 140 and paragraph 373).

FTHE IMPACT OF SECTIONS 36 AND 37

56. The appellants/petitioner would argue that Sections 36 and 37contemplate acquisition of the lands which are reserved. This meansthat there cannot be gift deed, as contemplated in the impugned Rules/Regulations.

57. We are afraid that though at first blush, the argument mayappear to be attractive, it cannot pass muster on deeper scrutiny. WhatSection 36 provides is, for power to acquire land, under the LandAcquisition Act. It goes on to provide that any land required, reserved ordesignated in regional plan, master plan, detailed development plan, is

deemed to be land needed for public purpose under the Land AcquisitionAct. What is more, such land can be acquired under the said law, asmodified in the Act. It is thereafter that Section 37 contemplates thatupon publication of the notice in Government Gazette of the preparationof 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 acquisitionby purchase of any land. It is apparently land, which is covered by Section36, which means land which is required, reserved or designated in amaster plan, inter alia. (2) The Planning Authority may apply to theGovernment for acquiring such land under the Land Acquisition Act.Section 37(2) goes on to provide that if an application is received and ifthe Government is satisfied that the land is needed for the public purpose,the Government may make declaration in the manner provided in Section6 of the Land Acquisition Act 1894. It will be noticed that what iscontemplated under Sections 36 and 37 is that it is in regard to any land,which is required, reserved or designated in plan that the question ofacquiring such land arises.In other words, if the property is neededunder the plan and it is shown as required, reserved or designated, assuch, in the plan, then, it is open to the Authority acting in coordinationwith the Government to acquire such land so that the lofty goal of plannedand orderly development, contemplated in the plan, is achieved. In thisconnection, it is relevant to notice that Section 37 kicks in immediatelyupon the publication of notice for the preparation of the plan. Thenotice is published under Section 26 or Section 27. Such notice is publishedafter the consent of the Government is received under Section 25. It isnext relevant to notice Section 38. Section 38 allows the period of threeyears from the date of publication of the notice under Section 26 orSection 27 for the Government to publish the declaration contemplatedunder Section 37, which, no doubt, amounts to declaration under Section6 of the Land Acquisition Act. Section 38 provides that if the declarationis not made under Section 37 of the Act, the land shall be deemed to bereleased from such reservation, allotment or designation. The time limitof three years, not being observed for acquiring the land by way ofpurchase, also has the same result, viz., the land, which in the plan, isshown as reserved, allotted or designated, shall be freed from suchreservation, allotment or designation.

58. We are, in these cases, dealing with the reservation of land bya person, who applies for development of the land and, more specifically,

ABC

Afor the purpose of group development. The person, who applies, becomesobliged under Rule 19(b) to reserve 10 per cent of his land excludingroads, for communal and recreational purposes. This is reservation tobe made by person applying for planning permission on the basis of theextent of the layout. It is, no doubt, premised on the land being in excessof certain threshold becoming subject matter of the planning permission.BThe 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 shape and location to be specifiedby the CMDA (See Clause (3) of the Explanation in Rules.). Therefore,the exact land to be reserved under the impugned Rule, will vary fromCcase to case. It is not to be confused with the areas required, reservedor designated in the plan. In fact, in Annexure XX, which is the subjectmatter of the 2008 Regulations, the specific requirement in regard to theplace where the OSR is to be located is indicated as the place where theproperty abuts public road.

D59. From the Preamble to the DCR, it would appear that the firstmaster plan was prepared in 1975 for the Chennai Metropolitan Areaand the Government approved it on 04.12.1976. As found by V.Ramasubramanium, J. in the Judgment, which we have elaboratelyreferred to, the DCR came to be issued along with the first master plan.Thereafter, as noticed by him, to deal with group development or flats,Ethe issue was taken up by the CMDA by letter dated 22.03.1981,Government issued GoMS dated 08.10.1982. The learned Judge hasfound that the Government exercised power under Section 32 of theAct. What we are indicating is that the reservation of the land forcommunal or recreational purposes in individual cases, on the basis ofFapplications made by persons, is not to be conflated with the land whichis declared as required, reserved or designated in the master plan, interalia, which latter categories alone are the subject matter of Sections 36and 37 of the Act.

IS THE IMPUGNED RULE/REGULATION BAD FORTHE REASON THAT IT IS CONTRARY TO THEGMANDATE OF SECTION 39 OF THE ACT?

60. Section 39 of the Act, reads as follows:

“39. Right to compensation. - (1) Any person whose property isinjuriously affected by virtue of any of the provisions contained inHany regional plan, master plan, detailed development plan or

new town development plan made under this Act shall, if he prefersa claim for the purpose to the Tribunal with such particulars andwithin such period as may be prescribed, be entitled to obtaincompensation in respect thereof as determined by the Tribunal:

Provided that property shall not be deemed to be injuriously affectedby reason of any of the provisions inserted in any developmentplan which impose any condition or restriction in regard to any ofthe 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 inclauses (m) and (n) of sub-section (1) of section 20, as the casemay be.

(2) If, at any time after the day on which any regional plan, masterplan, detailed development plan, or new town development planhas come into force, such plan is varied, or revoked, any personwho has incurred any expenditure for the purpose of complyingwith such plan, shall, if he prefers claim for the purpose to theTribunal with such particulars and within such time as may beprescribed, be entitled to obtain compensation in respect thereofas determined by the Tribunal, if by reason only of the variation orrevocation of such plan, such expenditure has ceased to be in anyway beneficial to him.”

61. What Section 39 contemplates is the following:

person must be injuriously affected on account of any of theprovisions contained in regional plan, master plan, detailed developmentplan or new town development plan, under the Act. Should this occur,the affected party becomes entitled to move the Tribunal and seekcompensation, which is to be determined by the Tribunal. The provisoto Section 39(1), however, declares that property shall not be deemed tobe injuriously affected on account of any development plan, which mayimpose certain conditions, which are specified in Section 15(2)(f), Section17(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 plan for the development orre-development or improvement of the area within the jurisdictionof planning authority and includes regional plan, master plan,detailed development plan and new town development planprepared under the Act.”

A63. Therefore, development plan would embrace master plan.The effect of the proviso is that, in respect of the matters contained inthe proviso, the law declares that there would not be claim forcompensation on the basis that the property of person is injuriouslyaffected as result of the contents of the development plan in relation tomatters specified in the proviso. The word ‘injuriously affected’ wouldBapparently mean that person has land, which is adversely affected asa result of the coming into operation of the development plan. Section15(2)(f) deals with demarcation of objects and buildings of archaeologicalor historical interests or of natural beauty or actually used for religiouspurposes or as regarded by the public with veneration. Similarly, SectionC17(2)(k) deals with control of architectural features, elevation and frontageof buildings and structures. Section 17(2)(l), which is also referred to inthe proviso, deals with matters relating to zonal regulations, location, theheight, the number of storeys, size of buildings and other structures, thesize of the yards and other open spaces and the use of buildings,structures and land. If anyone is otherwise injuriously affected as resultDof any of these aspects provided for in master plan under Section 17,he cannot make complaint of it under Section 39 and claim compensationfor it. The master plan provides for zones, nine in number. One of thezones is open space zone. Open space requirements are separatelystipulated in respect of other zones. Similarly, Section 20, which dealsEwith 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 tothe character, density, architectural features and height of buildings,Fthe building or control lines for roads, railway lines and powersupply lines and the purposes to which buildings or specified areasmay or may not be appropriated and the provision and maintenanceof sufficient open spaces about buildings;”

64. perusal of Section 39 would clearly reveal that right to

compensation is conferred on any person whose property is ‘injuriouslyGaffected’ by any of the provisions contained in the master plan. personseeking to develop his land and if he falls within the ambit of rule/regulationin question cannot be described as person whose property is injuriouslyaffected by the provisions of the master plan inter alia. The very languageused in Section 39 appears to be incongruous with the raising of anyHsuch claim.It is not as if the parties have in this case raised any suchclaim.The contention taken in the case of M/s. Keyaram Hotels is thatSection 39 provides for compensation to persons who are affected inthe manner provided in the said provision. The provision actually dealswith cases of person having property, who, with the making of masterplan, inter alia, becomes injuriously affected. The words ‘injuriouslyaffected’ would bear meaning if expounded with reference to personwho has property and that property becomes injuriously affected byvirtue of the provision of any master plan. Take for instance, the land ofa person is found to fall in zone which is earmarked in the primaryresidential use zone. The provision in the DCR which forms part of theplan 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 beunderstood as qualifying the ambit of the main provision which itselfmust be understood has application in cases where person is injuriouslyaffected by the provision of master plan interalia.

65. We are reinforced in our view that the contention of theappellants is misplaced with reference to the concept of ‘injuriouslyaffected’ finding expression in Section 39, having regard to the decisionby this Court in Prakash Amichand Shah v. State of Gujarat34. Thiswas also case relating to town planning.It arose under the BombayTown Planning Act. We may only refer to paragraph 10 which reads asfollows:

“10. Section 69 states that the owner of any property or rightwhich is injuriously affected by the making of town planningscheme shall be entitled to obtain compensation from the localauthority or from any person benefited or partly from the localauthority and partly from such person as the Town Planning Officermay in each case determine. It seems obvious that the propertyor right which is injuriously affected by the making of townplanning scheme is property or right other than that acquired forthe purposes of the scheme. The property or right affected remainswith the owner who is entitled to compensation for such injuriousaffection. When under the Act plot of land is taken for thepurposes of town planning scheme, it cannot be suggested thatthat land itself is injuriously affected; such view is unsupportableboth as matter of language and having regard to the scheme ofthe Act. On behalf of the appellant it was urged that clause (xiii)would cover the case of the appellant if only we read few words

Ain that clause and that we should do so to avoid injustice beingdone to the appellant and the owners of land similarly situated.That we are afraid is not possible. We find no compelling reasonfor restructuring the clause, and taking acquisition of land to mean“injurious affection” of the land acquired would be inconsistentwith the entire scheme of the Act. We may refer to clauseB“fourthly” of Section 23(1) of the Land Acquisition Act, 1894 whichrequires the court to take into consideration in determining theamount of compensation to be awarded for land acquired underthat Act, the damage sustained by the “person interested” “byreason of the acquisition injuriously affecting his other property”.CThe expression “person interested” as defined in Section 3 of theLand Acquisition Act means all persons calming an interest incompensation to be made on account of the acquisition of landunder that Act. It is made clear in clause “fourthly” that thedamage is for injurious affection of some property other than theland acquired. The sense in which the expression “injuriousDaffection” is used in Section 23(1) of the Land Acquisition Act isthe generally accepted meaning of that expression and we findnothing in the Act concerned in this case that suggests that itshould be construed differently.”66. The case of person developing land being subjected to theErequirement of leaving 10 percent of the property in situation wheremore than nearly 2 and half acres is being developed in an urbanmetropolis as space for communal and recreational purposes cannot besaid to be person ‘injuriously affected’ within the meaning ofSection 39.

FTHE IMPACT OF SECTIONS 48 TO 55

67. The contention is taken that Sections 48 and 49 do not authoriseor enable deprivation of person’s property sought to be developed freeof cost.Equally, it is contended that Sections 52 to 54 obligate the state toacquire lands even if permission for development is rejected or if any ofGthe conditions for any permission is objected or even if any modificationsof already given permission is not acceptable to the owner. It is alsocontended that Sections 52 to 54 patently provide for compensation.Therefore, the impugned rule which provides for compelled gift involvingtransfer of right to property free of cost is ultravires. It is the furtherHcontention that the legislature took extraordinary care to ensure that

landowner is not affected or injured even slightly because of the planninglaw. The exceptions from obligation to pay compensation are providedin Sections 17(2)(k) and (l) which relate to the use of land and do notprovide for reserving any land for public purpose.

68. Section 47 of the Act comes under Chapter VI which dealswith control of development and use of land. It declares that afterthecoming into operation of any development plan in any area, any person,other than the government or local authority, cannot use or cause to beused any land otherwise in accordance with the development plan.Thiswould mean that once development plan which includesa master plancomes into operation which happens on the approval of the governmentbeing published under Section 30 of the Act in the Gazette,Developmentactivities must be carried on only in accordance with the terms of themaster plan. Section 48 is intended to place restrictions on buildings andland when notice in the Gazette is published under Section 26, interalia. With the publication of the notice which is prelude to the cominginto operation of the plan under Section 30, Section 48 prohibits theerection of any building or other work or other excavationas enumeratedtherein except with written permission of the planning authority andsubject to such conditions. Section 49 provides for application for suchpermission when notice of preparation of master plan, interalia, ispublished under Section 26 of the Act inviting the restrictions contemplatedin Section 48. It is dealing with such situation, namely, when the masterplan, inter alia, has not come into operation and only notice is publishedunder Section 26, inter alia, that Section 49(2) provides for three matterswhich are to guide the planning authority in deciding whether permissionshould 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 Section49 is to remain in force for period of three years from the date ofpermission. It can be extended but subject to maximum period of threeyears.Section 52 provides for an obligation to acquire land or building. Itoperates in the following circumstances. land may be required orreserved or designated in any development plan which includes masterplan. person must be interested in the land or building which is so

Arequired, reserved or designated in such plan. He must have made anapplication seeking permission.The application must have been eitherrefused or granted, subject to conditions. For the section to operate thefollowing further conditions must exist. The refusal to grant permissionshould result in the land or building becoming incapable of reasonablybeneficial use in the condition in which the land is.This means that as aBresult of the land or building being required, reserved or designated inthe plan, the person interested in the land or building is unable to use theland for which he could have used, but for the requirement, reservationor designation in the plan, and it has resulted in the rejection of hisapplication for permission to develop the property. Then the law hasCgiven the person so aggrieved to serve notice described as the‘acquisition notice’ calling upon the government to acquire his interest inthe land or building. The same would be the position if permission isgranted but subject to the conditions which render the land incapable ofbeneficial use. Section 53 deals with refusal of permission or grant ofpermission subject to conditions in certain other cases. Infact, the provisoDin Section 53 declares that no compensation can be claimed under themain provision if the refusal or grant of permission subject to conditionsis based on any provision of any development plan. Section 54 dealswith cases of permission which is granted for any development underthe Act being revoked or modified.Section 54(2) contemplates

Ecompensation for the expenditure which is incurred for carrying out thedevelopment based on the grant of permission which was renderedabortive by the revocation.Section 55 declares that nothing in the Actconfers any right to obtain compensation in respect of development madeby person after notice in the Gazette is published under Section 26,inter alia, without obtaining the permission as required under Section 49.FSub-section 2 of Section 55 reads as follows: -

“(2). Whether any property is alleged to be injuriously affected byreason of any of the provisions contained in any developmentplan, no compensation shall be paid in respect thereof, if or in sofar as the provisions are such as would have been enforceableGwithout any compensation under any law, rule or regulation orbye-law at the time in force.”

70. We are unable to find merit in the contention that Rule 19 ofthe DCR or the regulation which is impugned is in anyway ultravires ofthe provision of the Act and the arguments suggestive of the same areHrepelled.

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 onthe score that it contravened the provisions of the Tamil Nadu ApartmentOwnership Act, 1994 which got presidential assent on 06.04.1995 andcame to be notified on 24.04.1995, we do not think that the appellantshould be permitted to test the validity of the impugned rule on groundwhich was not raised before the High Court.It is true that the gift deedwas executed on 22.05.1996. But this was not ground which wasurged before the court and we do not intend to explore the contention inthis proceeding.

72. We have found that the impugned rule/ regulation cannot besaid to be ultra vires the parent act. This is after finding that the rule hasstatutory force.

THE RIGHTS REGIME

73. It is necessary to deal with right, person has, as an ownerof property. In Salmond on Jurisprudence 12[th] Edition, we note thefollowing:

“Secondly, the owner normally has right to use and enjoy thething owned: right to manage it, i.e., the right to decide how it shallbe used; and the right to the income from it. Whereas the right topossess is right in the strict sense, these rights are in fact liberties:the owner has liberty to use the thing, i.e., he is under no dutynot to use it, in contrast with others who are under duty not touse or interfere with it.”

74. We may however notice the following:

“This does not mean, however, that an owner whose property isunencumbered has completely unlimited rights. To describesomeone as an absolute owner of property is to say two things; itis to assert that his title to the property is indisputable, and that hehas all the rights of ownership allowed by the legal system inquestion. We have seen that the rights of ownership may be limitedby the adverse dominant rights of an encumbrancer or by therights of the possessor (who is in fact one very special type of anencumbrancer). They may also be limited by special provisions oflaw such as Town & Country planning law, which regulates forsocial purposes the use which an owner may make office land.But in addition to being restricted by such specific provisions of

Apublic law, and owner’s rights are restricted by whole variety ofprovisions of the ordinary law, according to which various harmfuland dangerous types of conduct qualify as criminal or tortious;the fact that I am the owner of knife will not entitle me to use itto kill Smith. We may say that an owner is free to use and disposeof his property as he pleases, except in so far as he does notBinfringe his duties to specific encumbrancers, his duties underspecial regulations concerning the use of property (f) and hisgeneral duties under the general law of the land (f).”

(Emphasis supplied)

C75. In T. Vijayalakshmi v. Town Planning Member,[35] this Courtwhile dealing with case arising under the Town Planning Law had thisto say:

“13. Town Planning legislations are regulatory in nature. The rightto property of person would include right to construct building.DSuch right, however, can be restricted by reason of legislation.15. The law in this behalf is explicit. Right of person to constructresidential houses in the residential area is valuable right. Thesaid right can only be regulated in terms of regulatory statutebut unless there exists clear provision the same cannot be takenEaway.It is also trite law that the building plans are required to bedealt with in terms of the existing law. Determination of such aquestion cannot be postponed far less taken away. Doctrine oflegitimate expectation in case of this nature would have roleto play.”

F(Emphasis supplied)76. In Indore Vikas Pradhikaran v. Pure Industrial Coke &Chemicals Ltd.,36 this Court was again dealing with case under thetown Planning Law. The following statement requires to be noticed:

“45. Town and country planning involving land development ofGthe cities which are sought to be achieved through the process ofland use, zoning plan and regulating building activities must receivedue attention of all concerned. We are furthermore not obliviousof the fact that such planning involving highly complex cities

35(2006) 8 SCC 502H36(2007) 8 SCC 705

depends upon scientific research, study and experience and, thus,deserves due reverence.

46. Where, however, scheme comes into force, although it maycause hardship to the individual owners as they may be preventedfrom 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 manner as resultwhereof greater hardship is not caused to the citizens than actuallycontemplated thereby. Whereas an attempt should be made toprevent unplanned and haphazard development but the same wouldnot mean that the court would close its eyes to the blatant illegalitiescommitted by the State and/or the statutory authorities inimplementation thereof. Implementation of such land developmentas also building laws should be in consonance with public welfareand convenience. In United States of America zoning ordinancesare enacted pursuant to the police power delegated by the State.Although in India the source of such power is not police powerbut if zoning classification imposes unreasonable restrictions, itcannot be sustained. The public authority may have generalconsiderations, safety or general welfare in mind, but the samewould become irrelevant, as thereby statutory rights of partycannot be taken away. The courts must make an endeavour tostrike balance between public interest on the one hand andprotection of constitutional right to hold property, on the other.

47. For the aforementioned purpose, an endeavour should be madeto find out as to whether the statute takes care of public interestin the matter vis-à-vis the private interest, on the one hand, andthe effect of lapse and/or positive inaction on the part of the Stateand other planning authorities, on the other.

52. The courts should, therefore, strive to find balance of thecompeting interests.

Human rights issue

53. The right to property is now considered to be not only aconstitutional right but also human right.

Interpretation of the Act

57. The Act being regulatory in nature as by reason thereof theright of an owner of property to use and develop stands restricted,

Arequires strict construction. An owner of land ordinarily would beentitled to use or develop the same for any purpose unless thereexists certain regulation in statute or statutory rules. Regulationscontained in such statute must be interpreted in such manner soas to least interfere with the right to property of the owner ofsuch land. Restrictions are made in larger public interest. SuchBrestrictions, indisputably must be reasonable ones.(See BalramKumawat v. Union of India [(2003) 7 SCC 628] ; KrishiUtpadan Mandi Samiti v. PilibhitPantnagar Beej Ltd. [(2004)1 SCC 391] and Union of India v. West Coast Paper MillsLtd. [(2004) 2 SCC 747] ) The statutory scheme contemplatesCthat person and owner of land should not ordinarily be deprivedfrom the user thereof by way of reservation or designation.

58. Expropriatory legislation, as is well-known, must be given astrict construction.

(Emphasis supplied)

77. An owner of land may not have an absolute and unqualifiedright which is the idea which not unnaturally comes to mind when theidea of ownership is under consideration. As we have already noted, theright is capable of being regulated and restricted under law relating toTown Planning. Proceeding on the basis that DCR is law, the questionEwould arise under the said law whether person can use his land as hechooses. Zoning requirements have been put in place. Primarily in aresidential zone, can anyone put up an industrial establishment if the saiduse is prohibited? The answer is quite clearly in the negative. Can anyoneconstruct building in excess of the stipulated requirement as to theFheight of the building or contravening restrictions such as setback, floorspace area etc.? The answer cannot be in the affirmative.

78. At this juncture, we may also notice the scheme of theConstitution as regards property rights. When Constitution was originallyenacted the right to acquire, hold and dispose of property was guaranteedGas fundamental right to citizens of India vide Article 19(1)(f). Thiswas, however, made subject to reasonable restrictions which could nodoubt be imposed by law under Article 19(5). That apart, Article 31originally provided as follows:

“31. (1) No person shall be deprived of his property save byauthority of law.H

(2) No property, movable or immovable, including any interest in,or in any company owning, any commercial of industrialundertaking shall be taken possession of or acquired for publicpurposes under any law authorising the taking of such possessionor such acquisition, unless the law provides for compensation forthe property taken possession of or acquired and either fixes theamount of the compensation, or specifies the principles on which,and the manner in which, the compensation is to be determinedand given.

(3) No such law as is referred to in clause (2) made by thelegislature of State shall have effect unless such law, havingbeen reserved for the consideration of the President, has receivedhis assent.

(4) If any Bill pending at the commencement of this Constitutionin the legislature of State has, after it has, been passed by suchLegislature, been reserved for the consideration of the Presidentand has received his assent, then, notwithstanding anything in thisConstitution, the law so assented to shall not be called in questionin any court on the ground that it contravenes the provisions ofclause (2).

(5) Nothing in clause (2) shall affect—

(a) the provisions of any existing law other than law to whichthe provisions of clause (6) apply, or

(b) the provisions of any law which the State may hereaftermake—

(i) for the purpose of imposing or levying any tax or penalty, or

(ii) for the promotion of public health or the prevention of dangerto life or property, or

(iii) in pursuance of any agreement entered into between theGovernment of the Dominion of India or the Government of Indiaand the Government of any other country, or otherwise, withrespect to property declared by law to be evacuee property.

(6) Any law of the State enacted not more than eighteen monthsbefore the commencement of this Constitution may within threemonths from such commencement be submitted to the Presidentfor his certification; and thereupon, if the President by public

ABC

Anotification so certifies, it shall not be called in question in anycourt 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 (FourthBAmendment) Act and after the amendment, the amended provision readas follows:

The Constitution (Fourth Amendment) Act amended clause (2)and inserted new clause (2-A). The amended clause (2) andthe new clause (2-A) are in these terms:C

“31. (2) No property shall be compulsorily acquired or requisitionedsave for public purpose and save by authority of law whichprovides for compensation for the property so acquired orrequisitioned and either fixes the amount of the compensation orspecifies the principles on which, and the manner in which, theDcompensation is to be determined and given; and no such lawshall be called in question in any court on the ground that thecompensation provided by that law is not adequate.

(2-A). Where law does not provide for the transfer of theownership or right to possession of any property to the State or toEa corporation owned or controlled by the State, it shall not bedeemed to provide for the compulsory acquisition or requisitioningof property, notwithstanding that it deprives any person of hisproperty.”

80. At this juncture again, we must notice the aspect of PoliceFpower, in contrast with the Doctrine of Eminent Domain.

81. In the judgment of this court in Deputy Commissioner andCollector v. Durga Nath Sarma37, this Court has noticed the amendmentof Article 31 as noticed hereinbefore and has expounded the law in thefollowing paragraph:G“10. Our attention has been drawn to certain opinions expressedin our earlier decisions that Article 31(2) occupies the field ofeminent domain and Article 31(5)(b)(ii) contains saving clausewith regard to the police powers of the State. The concepts ofeminent domain and police powers are borrowed from American

H37AIR 1968 SC 394

law. The constitutional guarantee of the due process clause in theUnited States Constitution requires that no private property shallbe taken for public use without just compensation. In the exerciseof its police power, the State may pass regulations designed toensure public health, public morals, public safety as also publicconvenience or general prosperity, see Chicago, Burlington &Quincy Railway company v. People of the State of Illinois [200US 561 : 50 LEd 596, 609] . In the exercise of its eminent domainpower, the State may take any property from the owner and mayappropriate it for public purposes. The police and eminent domainpowers are essentially distinct. Under the police power manyrestrictions may be imposed and the property may even bedestroyed without compensation being given, whereas under thepower of eminent domain, the property may be appropriated topublic use on payment of compensation only. The distinctionbetween the two powers is brought out clearly in the followingpassage in American Jurisprudence, 2nd Edn., Vol. 16, Article301 p. 592:

“The state, under the police power, cannot in any manneractually take and appropriate property for public use withoutcompensation, for such action is repugnant to the constitutionalguaranty that where private property is appropriated for publicuse, the owner shall receive reasonable compensation. Thus, thereis vital difference, which is recognised by the authorities, betweenan Act passed with exclusive reference to the police power of thestate, without any purpose to take and apply property to publicuses, and an Act which not only declares the existence of anuisance created by the condition of particular property, but inaddition, 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 ofan Act to enable the city of Boston to abate nuisance existingtherein and for the preservation of the public health in the cityby improving the drainage of the territory was sustained on theground that the Act provided for payment of just compensation.The Court pointed out that private property the condition ofwhich was such as to endanger the public health could not belegally 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 : 72LEd 523, 527] an Ordinance establishing public hack standon private property without payment of compensation wasstruck down on the ground that assuming that the creation ofthe public hack stand would be proper exercise of the policepower it did not follow that the due process clause would notsafeguard to the owner just compensation for the use of theproperty. In United States v. Caltex (Philippines) [344 US149 : 97 LEd 157] the Court held that no compensation waspayable by the United States for the destruction by its retreatingarmy of private property to prevent its falling into enemy hands.But the Court recognised that compensation would be payablefor the army’s requisitioning of private property for itssubsequent use. The Court said that in times of imminent perilsuch as when fire threatened whole community — thesovereign could, with immunity, destroy the property of fewthat the property of many and the lives of many more could besaved. Indeed, it would be folly not to destroy some building sothat an entire town may be saved from the conflagration, aswill appear from the following historic incident referred toin Respublica v. Sparhawk [1 Dall 357, 363 : 1 LEd 174] :

“We find, indeed, memorable instance of folly recorded inthe 3rd Vol. of Clarendon’s History, where it is mentioned,that the Lord Mayor of London in 1666, when the city was onfire, would not give directions for, or consent to, the pullingdown forty wooden houses or to removing the furniture etc.belonging to the lawyers of the temple, then on the circuit, forfear he should be answerable for trespass; and inconsequence of this conduct, half that great city was burnt.”

If Article 31(5)(b)(ii) is regarded as saving clause with regardto the police power of the State, it is clear that under law designedto promote public health or to prevent danger to life or propertythe State may in cases of imminent peril destroy or impair thevalue of private property without any obligation to paycompensation, but it cannot arrogate to itself the power to acquireand appropriate to its own use private property without paymentof compensation.

82. We may also notice that in Tukaram Kana Joshi v. MIDC38,while dealing with case of acquisition of land, this Court held as follows:

“11. …The appellants had asked repeatedly for grant of the benefitof compensation. The State must either comply with the procedurelaid down for acquisition, or requisition, or any other permissiblestatutory mode. There is distinction, true and concretedistinction, between the principle of “eminent domain” and “policepower” of the State. Under certain circumstances, the police powerof the State may be used temporarily, to take possession ofproperty but the present case clearly shows that neither of thesaid powers have been exercised. question then arises withrespect to the authority or power under which the State enteredupon the land. It is evident that the act of the State amounts toencroachment, in exercise of “absolute power” which in commonparlance is also called abuse of power or use of muscle power.To further clarify this position, it must be noted that the authoritieshave treated the landowner as “subject” of medieval India, butnot as “citizen” under our Constitution.”83. It has been followed inBhimandas Ambwani (Dead) throughLRs v. Delhi Power Company Ltd.[39].

84. While on the issue relating to the aspect of acquisition, casearose under the Coffee Act in Coffee Board, Karnataka, Bangalorev. Commissioner of Commercial Taxes, Karnataka and others40 andthe question which arose was whether the coffee grower who made asale made compulsorily to the Coffee Board amounted to sale or was itan acquisition. It is apposite that we advert to the following paragraphs:

“28. Since all persons including the Coffee Board are prohibitedfrom purchasing/selling coffee in law, there could be no sale orpurchase to attract the imposition of sales/purchase tax it wasurged. Even if there was compulsion there would be sale aswas the position in Vishnu Agencies [(1978) 2 SCR 433 : (1978)1 SCC 520 : 1978 SCC (Tax) 31 : AIR 1978 SC 449] . This Courttherein approved the minority opinion of Hidayatullah, J. in NewIndia Sugar Mills v. CST [New India Sugar Mills Ltd. v. CST,AIR 1963 SC 1207 : 1963 Supp (2) SCR 459 : (1963) 14 STC

38 (2013) 1 SCC 35339 (2013) 14 SCC 19540 (1988) 3 SCC 263,

ABC

A316] . In the nature of the transactions contemplated under theAct mutual assent either express or implied is not totally absent inthis case in the transactions under the Act. Coffee growers havea volition or option, though minimal or nominal to enter into thecoffee growing trade. Coffee growing was not compulsory. Ifanyone decides to grow coffee or continue to grow coffee, heBmust transact in terms of the regulation imposed for the benefit ofthe coffee growing industry. Section 25 of the Act provides theBoard 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 thecoffee. Fixation of price is regulation but is matter of dealingCbetween the parties. There is no time fixed for delivery of coffeeeither to the Board or the curer. These indicate consensualitywhich is not totally absent in the transaction.”

It was found that it was sale which took place.

85. Article 31 stands omitted and Article 19(1)(f) also standsDdeleted by way of the Forty-Fourth Amendment to the Constitution whichcame into effect from 20.06.1979. It is by the very same amendmentthat Article 300A was inserted in the Constitution. Article 300A is aresurrection of Article 31 (1). This Court in the judgment in JilubhaiNanbhai Khachar v. State of Gujarat41 held as follows:

“34. The right of eminent domain is the right of the sovereignEState, through its regular agencies, to reassert, either temporarilyor permanently, its dominion over any portion of the soil of theState including private property without its owner’s consent onaccount of public exigency and for the public good. Eminent domainis the highest and most exact idea of property remaining in theFGovernment, or in the aggregate body of the people in theirsovereign capacity. It gives the right to resume possession of theproperty in the manner directed by the Constitution and the lawsof the State, whenever the public interest requires it. The term‘expropriation’ is practically synonymous with the term “eminentdomain”.G

(Emphasis supplied)

This Court opined that the right to property is not basic featureof the Constitution [See paragraph 30]. We may also notice the followingviews: -H411995 (suppl.) 1 SCC 596

“48. The word ‘property’ used in Article 300-A must be understoodin the context in which the sovereign power of eminent domain isexercised by the State and property expropriated. No abstractprinciples could be laid. Each case must be considered in the lightof its own facts and setting. The phrase “deprivation of the propertyof person” must equally be considered in the fact situation of acase. Deprivation connotes different concepts. Article 300-A getsattracted to an acquisition or taking possession of private property,by necessary implication for public purpose, in accordance withthe law made by Parliament or State Legislature, rule or astatutory order having force of law. It is inherent in every sovereignState by exercising its power of eminent domain to expropriateprivate property without owner’s consent. Prima facie, Statewould be the judge to decide whether purpose is public purpose.But it is not the sole judge. This will be subject to judicial reviewand it is the duty of the court to determine whether particularpurpose is public purpose or not. Public interest has alwaysbeen considered to be an essential ingredient of public purpose.But every public purpose does not fall under Article 300-A norevery exercise of eminent domain an acquisition or takingpossession under Article 300-A.Generally speaking preservationof public health or prevention of damage to life and property areconsidered to be public purposes. Yet deprivation of property forany such purpose would not amount to acquisition or possessiontaken under Article 300-A. It would be by exercise of the police-power of the State. In other words, Article 300A only limits thepowers of the State that no person shall be deprived of his propertysave by authority of law. There has to be no deprivation withoutany sanction of law. Deprivation by any other mode is notacquisition or taking possession under Article 300-A. In otherwords, if there is no law, there is no deprivation. Acquisition ofmines, minerals and quarries is deprivation under Article 300-A.”

(Emphasis supplied)

86. Constitution Bench has considered the aspects arising outof the changes brought by the amendment to the Constitution by theinsertion of Article 300A in the judgment of this Court in K.T. PlantationPrivate Limited v. State of Karnataka42. We may advert to the followingviews:

42 (2011) 9 SCC 1

“178. The principles of eminent domain, as such, are not seenincorporated in Article 300-A, as we see, in Article 30(1-A), aswell as in the second proviso to Article 31-A(1) though we caninfer those principles in Article 300-A. The provision for paymentof compensation has been specifically incorporated in Article 30(1-A) as well as in the second proviso to Article 31-A(1) for achievingspecific objectives. The Constitution (Forty-fourth Amendment)Act, 1978 while omitting Article 31 brought in substantiveprovision clause (1-A) to Article 30. Resultantly, though noindividual or even educational institution belonging to majoritycommunity shall have any fundamental right to compensation incase of compulsory acquisition of his property by the State, aneducational institution belonging to minority community shall havesuch fundamental right to claim compensation in case the Stateenacts law providing for compulsory acquisition of any propertyof an educational institution established and administered by aminority community. Further, the second proviso to Article 31-A(1) prohibits the legislature from making law which does notcontain provision for payment of compensation at rate not lessthan the market value which follows that law which does notcontain such provision shall be invalid and the acquisitionproceedings would be rendered void.

179. Looking at the history of the various constitutionalamendments, judicial pronouncements and the Statement of Objectsand Reasons contained in the Forty-fourth Amendment Bill whichled to the Forty-fourth Amendment Act we have no doubt that theintention of Parliament was to do away with the fundamental rightto acquire, hold and dispose of the property. But the question isFwhether the principles of eminent domain are completelyobliterated when person is deprived of his property by theauthority of law under Article 300-A of the Constitution.

Public purpose

180. Deprivation of property within the meaning of Article 300-A, generally speaking, must take place for public purpose or publicinterest. The concept of eminent domain which applies when aperson is deprived of his property postulates that the purpose mustbe primarily public and not primarily of private interest and merelyincidentally beneficial to the public. Any law, which deprives aperson of his private property for private interest, will be unlawful

and unfair and undermines the rule of law and can be subjected tojudicial review. But the question as to whether the purpose isprimarily 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 isinvariably the rule for depriving person of his property, violationof which is amenable to judicial review. Let us now examinewhether the requirement of payment of compensation is the ruleafter the deletion of Article 31(2).

183. Payment of compensation amount is constitutionalrequirement under Article 30(1-A) and under the second provisoto Article 31-A(1), unlike Article 300-A. After the Forty-fourthAmendment Act, 1978, the constitutional obligation to paycompensation to person who is deprived of his property primarilydepends upon the terms of the statute and the legislative policy.Article 300-A, however, does not prohibit the payment of justcompensation when person is deprived of his property, but thequestion is whether person is entitled to get compensation, as amatter of right, in the absence of any stipulation in the statute,depriving him of his property.188. We find no apparent conflict with the words used in List IIIEntry 42 so as to infer that the payment of compensation is inbuiltor 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 personof his property under Article 300-A, is precondition, but nocompensation or nil compensation or its illusiveness has to bejustified by the State on judicially justiciable standards. Measuresdesigned to achieve greater social justice, may call for lessercompensation and such limitation by itself will not make legislationinvalid or unconstitutional or confiscatory. In other words, the rightto claim compensation or the obligation to pay, though not expresslyincluded in Article 300-A, it can be inferred in that article and it isfor the State to justify its stand on justifiable grounds which maydepend upon the legislative policy, object and purpose of the statuteand host of other factors.

190. Article 300-A would be equally violated if the provisions oflaw authorising deprivation of property have not been compliedwith. While enacting Article 300-A Parliament has only borrowedArticle 31(1) (the “Rule of Law” doctrine) and not Article 31(2)(which had embodied the doctrine of eminent domain). Article300-A enables the State to put restrictions on the right to propertyby law. That law has to be reasonable. It must comply with otherprovisions of the Constitution. The limitation or restriction shouldnot be arbitrary or excessive or what is beyond what is requiredin public interest. The limitation or restriction must not bedisproportionate to the situation or excessive.

191. The legislation providing for deprivation of property underArticle 300-A must be “just, fair and reasonable” as understoodin terms of Articles 14, 19(1)(g), 26(b), 301, etc. Thus in eachcase, courts will have to examine the scheme of the impugnedAct, its object, purpose as also the question whether payment ofnil compensation or nominal compensation would make theimpugned law unjust, unfair or unreasonable in terms of otherprovisions of the Constitution as indicated above.

192. At this stage, we may clarify that there is differencebetween “no” compensation and “nil” compensation. lawseeking to acquire private property for public purpose cannot saythat “no compensation shall be paid”. However, there could be alaw awarding “nil” compensation in cases where the Stateundertakes to discharge the liabilities charged on the property underacquisition and onus is on the Government to establish validity ofsuch law. In the latter case, the Court in exercise of judicial reviewwill test such law keeping in mind the above parameters.

209. Statutes are many which though deprive person of hisproperty, have the protection of Article 30(1-A), Articles 31-A,31-B, 31-C and hence are immune from challenge under Article19 or Article 14. On deletion of Article 19(1)(f) the availablegrounds of challenge are Article 14 [Ed.: It would seem that forstatutes not protected by Arts. 31-A, 31-B or 31-C, Art. 14simpliciter is available as ground of challenge. For statutesprotected by Arts. 31-A, 31-B and 31-C, it would seem that achallenge under Art. 14 would be maintainable only when taken asa part of the basic structure of the Constitution, as explained

in I.R. Coelho, (2007) 2 SCC 1.] , the basic structure and the ruleof law, apart from the ground of legislative competence. In I.R.Coelho case [(2007) 2 SCC 1] the basic structure was defined interms of fundamental rights as reflected under Articles 14, 15, 19,20, 21 and 32. In that case the Court held that statutes mentionedin Schedule IX are immune from challenge on the ground ofviolation of fundamental rights, but if such laws violate the basicstructure, they no longer enjoy the immunity offered by ScheduleIX.”

(Emphasis supplied)

DOWN MEMORY LANE

PT. CHET RAM VASHIST (DEAD) BY LRS. V. MUNICIPALCORPORATION OF DELHI43

87. In the said case, the Municipal Corporation of Delhi passed aResolution that, building activity in certain areas, be allowed, subject tothe condition that the open spaces for parks and schools was to betransferred to the Corporation. This led to civil suit by the appellant,challenging the Resolution. This Court found that Section 313 of theDelhi Municipal Corporation Act, 1957, did not empower the Corporationto claim any property in the manner done. It was further found that theResolution was contrary to the language used in Section 313 and violateda civil right, which vests in every owner, to hold his land and transfer it inaccordance with law. The finding of the High Court that condition wasonly 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 exercisedunder Section 313 of the Act. This section falls in Chapter XVwhich deals with streets. The public streets are dealt from Section298 to Section 311 whereas private streets are dealt from Section312 to Section 330. Section 312 obliges an owner of any landutilising, selling, leasing out or otherwise disposing of the land forthe construction of building to layout and make street or streetsgiving access to the plots into which the land may be divided andconnect it with an existing or public street. Section 313 requiressuch owner to submit layout plan before utilising the land forany of the purposes mentioned in Section 312 and send it to the

Commissioner with layout plan showing the particulars mentionedin clauses (a) to (e). The reservation or allotment of any site inthe layout plan for any open space, park or school is to be providedby clause (b) of Section 313. Section 316 entitles the Commissionerto declare private street to be public street on the request ofowners. Section 317 prohibits person from constructing orprojecting any structure which will encroach upon, overhang orproject into private street. In fact the entire cluster of sectionsfrom 312 to 330 of which Section 313 is part, deals with privatestreets only. There is no provision in this chapter or any otherprovision in the Act which provides that any space reserved forany open space or park shall vest in the Corporation. Even privatestreet can be declared to be public on the request of owners ofthe building and then only it vests in the Corporation. In absenceof any provision, therefore, in the Act the open space left forschool or park in private colony cannot vest in the Corporation.That is why in England whenever private colony is developed ora private person leaves an open space or park to be used forpublic purpose he is required to issue what is termed as ‘BlightNotice’ to the local body to get the land transferred in its favouron payment of compensation. Section 313 which empowers theCommissioner to sanction layout plan, does not contemplatevesting of the land earmarked for public purpose to vest in theCorporation or to be transferred to it. The requirement in law ofrequiring an owner to reserve any site for any street, open space,park, recreation ground, school, market or any other publicpurposes is not the same as to claim that the open space or parkso earmarked shall vest in the Corporation or stand transferred toit. Even plain reading of sub-section (5) indicates that the landwhich is subject-matter of layout plan cannot be dealt with bythe owner except in conformity with the order of the StandingCommittee. In other words the section imposes bar on exerciseof power by the owner in respect of land covered by the layoutplan. But it does not create any right or interest of the Corporationin the land so specified. The resolution of the Standing Committee,therefore, that the area specified in the layout plan for the parkand school shall vest in the Corporation free of cost, was not inaccordance with law.”

(Emphasis supplied)

88. Still further, the Court held as follows:

“6. Reserving any site for any street, open space, park, schooletc. in layout plan is normally public purpose as it is inherent insuch reservation that it shall be used by the public in general. Theeffect of such reservation is that the owner ceases to be legalowner of the land in dispute and he holds the land for the benefitof the society or the public in general. It may result in creating anobligation in nature of trust and may preclude the owner fromtransferring or selling his interest in it. It may be true as held bythe High Court that the interest which is left in the owner is aresiduary interest which may be nothing more than right to holdthis land in trust for the specific purpose specified by the coloniserin the sanctioned layout plan. But the question is, does it entitlethe Corporation to claim that the land so specified should betransferred to the authority free of cost. That is not made outfrom any provision in the Act or on any principle of law. …”

(Emphasis supplied)

T. VIJAYALAKSHMI AND OTHERS V. TOWNPLANNING MEMBER AND ANOTHER44

89. In this case, the appellants were the owners of agriculturalland, who had been permitted to use the same for non-agricultural purposesin 2004. An application was filed for approval of building plan. ThisCourt, inter alia, held as follows:

“15. The law in this behalf is explicit. Right of person to constructresidential houses in the residential area is valuable right.Thesaid right can only be regulated in terms of regulatory statutebut unless there exists clear provision the same cannot be takenaway. It is also trite law that the building plans are required tobe dealt with in terms of the existing law. Determination of such aquestion cannot be postponed far less taken away. Doctrine oflegitimate expectation in case of this nature would have roleto play.

xxxxxxxxx

18. It is, thus, now well-settled law that an application for grant ofpermission for construction of building is required to be decided

EFG

in accordance with law applicable on the day on which suchpermission is granted. However, statutory authority must exerciseits jurisdiction within reasonable time. (See KuldeepSingh v. Govt. of NCT of Delhi [(2006) 5 SCC 702: (2006) 6Scale 588].)”

BPUNE MUNICIPAL CORPORATION AND ANOTHERV. PROMOTERS AND BUILDERS ASSOCIATION ANDANOTHER45

90. The matter arose under the Maharashtra Regional TownPlanning Act, 1966 (MRTP). The Development Control Rules wereCdirected to be amended by the Government under Section 37 of the saidlaw. The case of the respondents before this Court was that the mattertravelled beyond the powers of the State Government under Section37(2) of the Act. We notice the following:

“5. Making of DCR or amendments thereof are legislativeDfunctions. Therefore, Section 37 has to be viewed as repositoryof legislative powers for effecting amendments to DCR. Thatlegislative power of amending DCR is delegated to the StateGovernment. As we have already pointed out, the trueinterpretation of Section 37(2) permits the State Government tomake necessary modifications or put conditions while grantingEsanction. In Section 37(2), the legislature has not intended toprovide for public hearing before according sanction. Theprocedure for making such amendment is provided in Section 37.Delegated legislation cannot be questioned for violating theprinciples of natural justice in its making except when the statuteFitself provides for that requirement. Where the legislature has notchosen to provide for any notice or hearing, no one can insistupon it and it is not permissible to read natural justice into suchlegislative activity. Moreover, provision for “such inquiry as itmay consider necessary” by subordinate legislating body isgenerally an enabling provision to facilitate the subordinateGlegislating body to obtain relevant information from any sourceand it is not intended to vest any right in anybody. (Union ofIndia v. Cynamide India Ltd. [(1987) 2 SCC 720] , SCC paras 5and 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 SCC (L&S) 507] .) While exercising legislativefunctions, unless unreasonableness or arbitrariness is pointed out,it is not open for the Court to interfere. (Seegenerally ONGC v. Assn. of Natural Gas Consuming Industriesof Gujarat [1990 Supp SCC 397] .) Therefore, the view adoptedby the High Court does not appear to be correct.

6. DCR are framed under Section 158 of the Act. Rules framedunder the provisions of statute form part of the statute.(See General Officer Commanding-in-Chief v. Dr. SubhashChandra Yadav [(1988) 2 SCC 351 : 1988 SCC (L&S) 542 :(1988) 7 ATC 296] , SCC para 14.) In other words, DCR havestatutory force. It is also settled position of law that there couldbe no “promissory estoppel” against statute. (A.P. PollutionControl Board II v. Prof. M.V. Nayudu [(2001) 2 SCC 62] , SCCpara 69, STO v. Shree Durga Oil Mills [(1998) 1 SCC 572] ,SCC paras 21 and 22 and Sharma Transport v. Govt. ofA.P. [(2002) 2 SCC 188] , SCC paras 13 to 24.) Therefore, theHigh Court again went wrong by invoking the principle of“promissory estoppel” to allow the petition filed by the respondentsherein.”

TUKARAM KANA JOSHI AND OTHERS V.MAHARASHTRAINDUSTRIAL DEVELOPMENT CORPORATION AND OTHERS46

91. In the said case, the land of the appellants was taken over bythe agents of the State. Compensation, despite repeated requests, wasnot made available. This Court held:

“11. There are authorities which state that delay and lachesextinguish the right to put forth claim. Most of these authoritiespertain to service jurisprudence, grant of compensation for wrongdone to them decades ago, recovery of statutory dues, claim foreducational facilities and other categories of similar cases, etc.Though, it is true that there are few authorities that lay downthat delay and laches debar citizen from seeking remedy, evenif his fundamental right has been violated, under Article 32 or 226of the Constitution, the case at hand deals with different scenarioaltogether. The functionaries of the State took over possession of

ABC

1110SUPREME COURT REPORTS

Athe land belonging to the appellants without any sanction of law.The appellants had asked repeatedly for grant of the benefit ofcompensation. The State must either comply with the procedurelaid down for acquisition, or requisition, or any other permissiblestatutory mode. There is distinction, true and concretedistinction, between the principle of “eminent domain” and “policeBpower” of the State. Under certain circumstances, the police powerof the State may be used temporarily, to take possession ofproperty but the present case clearly shows that neither of thesaid powers have been exercised. question then arises withrespect to the authority or power under which the State enteredCupon the land. It is evident that the act of the State amounts toencroachment, in exercise of “absolute power” which in commonparlance is also called abuse of power or use of muscle power.To further clarify this position, it must be noted that the authoritieshave treated the landowner as “subject” of medieval India, butnot as “citizen” under our Constitution.”D92. This has been followed in Bhimandas Ambwani (Dead)Through Lrs. v. Delhi Power Company Limited47 (See paragraph 13of the said Judgment).

JILUBHAI NANBHAI KHACHAR AND OTHERS V.ESTATE OF GUJARAT AND ANOTHER48

93. We have already adverted to it earlier.

STATE OF GUJARAT V. SHANTILAL MANGALDASAND OTHERS49

F94. The said decision was rendered by Constitution Bench ofthis Court. The matter in issue was the validity of Sections 55 and 67 ofthe Bombay Town Planning Act (Act 27 of 1955). The High Court haddeclared the provisions violative of Article 31(2) of the Constitution.This Court embarked upon elaborate consideration of the provisions ofthe Act, and it will be profitable, if we advert to paragraph-22, wherein,Gthe Court, after referring to the provisions of Article 31, as amended bythe Fourth Amendment in the year 1955, proceeded to hold as follows:

47 (2013) 14 SCC 19548 1995 Supp (1) SCC 59649(1969) 1 SCC 509H

“22. The following principles emerge from an analysis of clauses(2) and (2-A): compulsory acquisition or requisition may be madefor public purpose alone, and must be made by authority of law.Law which deprives person of property but does not transferownership of the property or right to possession of the property tothe State or corporation owned or controlled by the State is nota law for compulsory acquisition or requisition. The law, underthe authority of which property is compulsorily acquired orrequisitioned, must either fix the amount of compensation or specifythe principles on which, and the manner in which, the compensationis to be determined and given. If these conditions are fulfilled thevalidity of the law cannot be questioned on the plea that it doesnot provide adequate compensation to the owner.

xxx xxx

26. Article 31 guarantees that the law providing for compulsoryacquisition must provide for determining the giving of compensationfor the property acquired. The expression “compensation” is notdefined in the Constitution. Under the Land Acquisition Actcompensation is always paid in terms of money. But that is noreason for holding that compensation which is guaranteed by Article31(2) for compulsory acquisition must be paid in terms of moneyalone. law which provides for making satisfaction to anexpropriated owner by allotment of other property may be deemedto be law providing for compensation. In ordinary parlance theexpression “compensation” means anything given to make thingsequivalent; thing given to or to make amends for loss, recompense,remuneration or pay; it need not therefore necessarily be in termsof money. The phraseology of the Constitutional provision alsoindicates that compensation need not necessarily be in terms ofmoney, because it expressly provides that the law may specifythe principles on which, and the manner in which, compensationis to be determined and “given”. If it were to be in terms of moneyalone, the expression “paid” would have been more appropriate.”

95. In the course of its Judgment, the Court disapprovedobservations contained in P. VajraveluMudaliar v. Special DeputyCollector for Land Acquisition and another50. Equally, the Courtoverruled the decision of this Court in Union of India v. Metal51Corporation of India Ltd. and another.

50 (1965) 1 SCR 614

51 (1967) 1 SCR 255)

A96. It was relying on these two judgments, inter alia, that thisCourt found that the High Court had wrongly concluded that in orderthat compensation based on market value be sufficient for the purposeof Article 31(2), it must be just equivalent. We may also notice that theCourt repelled the attempt on behalf of the State that because the objectof the Act was to promote public health, it fell within the exception toBArticle 31(5)(b)(ii).

97. Regarding purport of the Fourth Amendment, in ShantilalMangaldas(supra), this Court declared as follows:

“41. The principal effect of this amendment, in so far as that isrelevant in this appeal, was to snap the link which, according toCthis Court, existed between clauses (1) and (2) — that wasachieved by enacting clause (2-A); greater clarity was securedby enacting in clause (2) that property shall be compulsorilyacquired only for public purpose; and by authority of law whichprovides for compensation, and either fixes the amount ofDcompensation or specifies the principles on which, and the mannerin which, compensation is to be determined and given; and thatthe law for acquisition or requisition shall not be called in questionin any court on the ground that the compensation provided therebyis not adequate. By the amendment made in Article 31-A certainclasses of statutes were placed with retrospective effect outsideEthe purview of attack before the Courts on the ground ofinfringement of the fundamental rights under Articles 14, 19 and31, and by the addition of certain Acts in the Ninth Schedule achallenge to those Acts that they infringed any fundamental rightsin Part III could not be entertained. But the amendments made in

FArticle 31 were not given any retrospective operation. The resultwas that in cases where acquisition was made pursuant to thestatutes enacted before April 27, 1955, the law declared in MrsBela Banerjee case and Subodh Gopal Base case continuedto apply.”

98. The Judgment in Shantilal Mangaldas(supra) has beenGapproved of and followed in the case by Constitution Bench inPrakash52Amichand Shah v. State of Gujarat and others.

99. The Court repelled the argument that the decision inShantilalMangaldas(supra) was overruled by the Judgment in His HolinessH52 (1986) 1 SCC 581

Kesavananda Bharati Sripadagalvaru v. State of Kerala and53another.

100. This Court also made the following observations, whichincidentally are relied upon by the respondents to contend that thedeveloper of property would be entitled to benefits when there is planneddevelopment:

“16. The re-arrangement of titles in the various plots and reservationof lands for public purposes require financial adjustments to bemade. The owner who is deprived of his land has to becompensated, and the owner who obtains re-constituted plot insurroundings which are conducive to better sanitary livingconditions has to contribute towards the expenses of the scheme.This is because on the making of Town Planning Scheme thevalue of the plot rises and part of the benefit which arises out ofa unearned rise in prices is directed to be contributed towardsfinancing of the scheme which enables the residents in that areato more amenities, better facilities and healthier living conditions.…”

101. This Court in Babulal Badriprasad Varma v. SuratMunicipal Corporation and others54, while dealing with the GujaratTown Planning and Urban Development Act, 1976, inter alia, held:

“33. We are, however, not unmindful of the fact that statute oftown planning ex facie is not statute for acquisition of property.An owner of plot is asked to part therewith only for providingfor better facilities of which he would also be beneficiary. Everystep taken by the State does not involve application of the doctrineof eminent domain.

34. In this case, the appellant did not oppose the draft scheme. Itaccepted that the State had right to do so. Existence of publicpurpose and increase in the valuation of the property was admitted.There exists distinction in the action of the planning authority asregards vesting of property in it and one so as to enable it tocreate third-party interest vis-à-vis for the purpose of reallotmentthereof. In the former case, the vesting of the land may be held tobe an act of acquisition, whereas in the latter, it would be distributionof certain benefits having regard to the purpose sought to be53 (1973) 4 SCC 22554 (2008) 12 SCC 401

1114SUPREME COURT REPORTS

Aachieved by statute involving town planning. It was on that legalprinciple, this Court in State of Gujarat v. ShantilalMangaldas [(1969) 1 SCC 509 : (1969) 3 SCR 341] opined thatwhen development is made, the owner of the property getsmuch more than what he would have got, if the same remainedundeveloped in the process as by reason thereof he gets the benefitBof living in developed town having good town planning.”

(Emphasis supplied)

102. In the recent Judgment, again, Bench of three learnedJudges of this Court, followed the Judgment inChairman, Indore VikasPradhikaran(supra).C

NARAYANRAO JAGOBAJI GOWANDE PUBLIC TRUSTV. STATE OF MAHARASHTRA AND OTHERS55

103. The dispute revolved around condition in developmentagreement executed between the appellant-Trust and the NagpurImprovement Trust (for short, ‘NIT’). Under such condition, the appellantDwas to transfer the land and/or primary school open land in the layoutfree-of-cost and the NIT was free to dispose of such land as per itsRules and Regulations. We notice that the predecessor-in-interest of theappellant was given permission by the NIT, under which, an area wasreserved for primary school which was public utility land. The NITEallotted the land in the layout approved in favour of the appellant’spredecessor to third party for construction of college. Severalcontentions were arrayed against the allotment, including that the NITdid not have any power to insert such condition and that there was nopower 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.FIn doing so, this Court held as follows:

“34. We have carefully heard both the parties at length and havealso given our conscious thought to the materials on record andthe relevant provisions of law. We are of the view that the HighCourt in its judgment and order has rightly held that Respondent 1GState and Respondent 2 NIT are bound to stick to the developmentplan and scheme. It has placed reliance upon the decision of thisCourt in Indore Vikas Pradhikaran v. Pure Industrial Coke &Chemicals Ltd. [Indore Vikas Pradhikaran v. Pure IndustrialCoke & Chemicals Ltd., (2007) 8 SCC 705] , wherein this Court,

H55 (2016) 4 SCC 443

while dealing with the aspect of town planning and Articles 300-Aand 14 of the Constitution of India, has observed as under: (SCCp. 730, paras 46-47)

“46. … The courts must make an endeavour to strike balancebetween public interest on the one hand and protection of aconstitutional right to hold property, on the other.

47. For the aforementioned purpose, an endeavour should be madeto find out as to whether the statute takes care of public interestin the matter vis-à-vis the private interest, on the one hand, andthe effect of lapse and/or positive inaction on the part of the Stateand other planning authorities, on the other.”

xxx xxx

xxx

36. The High Court has, further, rightly held that the impugnedclause contained in the said development agreement is neithervoid nor illegal for want of consideration. It has also been rightlyheld by it that after consideration of the whole scheme of the NITAct, particularly, the provisions under Sections 29 to 70 and 121of the said Act read with the terms and conditions of the saiddevelopment agreement entered into between the parties, it isclear that the said development agreement creates reciprocal rightsand obligations between the parties with some objects.

xxx xxxxxx

38. Thus, seeking abandonment of acquisition of the land asprovided under Section 68 of the NIT Act is huge benefit whichthe appellant Trust has gained from the agreement. Further, it isnot open for the appellant Trust to avail only the beneficial part ofthe said development agreement to form layout plan and allowthe sites to be allotted in favour of the allottees, when it itself isnot willing to discharge the obligation of transferring the reservedland for public utility purpose, as agreed upon in the developmentagreement.

39. Further, the High Court has rightly observed that another benefitderived by the appellant Trust from the said developmentagreement is immediate and reciprocal sanction for thedevelopment of the said land with permission for the commercialusage of the same, presuming that there would be no acquisition.”

1116SUPREME COURT REPORTS

AYOGENDRA PAL AND OTHERS V. MUNICIPALITY,BATHINDA AND ANOTHER56

104. The case arose under the Punjab Municipal Act, 1911. TheState Government, acting under Section 192(3) of the Municipal Law,sanctioned Town Planning Scheme, under which, an area of 22.23Bacres was transferred to the Municipal Committee. No compensationwas paid to the owners. The High Court upheld the provision. Section192(1)(c), inter alia, provided for transfer, to the Committee, of land,either on payment of compensation or otherwise. The contention takenby the respondent was that it was only transfer of land and notacquisition. This Court found that the provision did contain restrictionCon the maximum amount of land which could be transferred and alsomaximum amount of land which could be transferred without paymentof compensation. This Court found that there was no guideline in theAct providing for as to when compensation was payable or could bedenied. The Court also took note of the width of the expression ‘publicDpurpose’, for achieving which, the land could be transferred. It wasfurther noticed that the said expression suggested that the purposeconcerned cannot be of benefit only and exclusively to the transferor-landowner. It was to be utility to members of the public in general. Thefact that the transferor-landowner would also benefit, did not make anydifference. The use of the word ‘transferred’ as against ‘acquired’ andEthe contention that, ‘therefore, the rights of the land owner continued’,was rejected. Section 192(c) was contrasted with Section 169 and itwas found that the latter provision was confined to use of the land forlaying public streets, and what is more, the land could be acquired bypaying compensation. Section 169 also contemplated restoration to theForiginal owner, if the land could not be used as public street. We maybear in mind the following discussions in the context of the facts of thecase before us:

“18. The next contention is that the transfer of the land is also forthe benefit of the transferor landowner and in fact the balance ofGthe land which remains with him appreciates in value to an extentwhich more than sufficiently compensates him for the loss of theland. Hence there is no need to pay him separate compensationfor the extent of land up to 25 per cent transferred to the MunicipalCommittee. The contention suffers from several fallacies. In the

56 (1994) 5 SCC 709H

first instance, as the provisions of the section themselves pointout, the land is to be transferred for public purpose including foruse as public street. The purpose of the transfer itself suggeststhat the transferor landowner is not exclusively to be benefited bythe public purpose. He enjoys the benefit, if any, along with theother 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 MunicipalCommittee, assuming it increases the value of the remaining land,also contributes to the increase in the value of the land of all otherlandowners, which lands are similarly benefited by the said publicpurpose. There is, therefore, no reason why the landowner whoseland is “transferred” for the purpose alone should pay for theincrease in the value of his remaining land in terms of the transferredland. In fact, whereas it is only the remaining land of the transferorlandowner which is benefited by such increase in value, if any,the whole of the land in the possession of the other landowners isbenefited by the accretion in value. Thus, on both accounts, thereis clear violation of Article 14 of the Constitution to make onlythe transferor landowner suffer for the public purpose. What isfurther, it is problematic and is in the realm of speculation as towhether the appreciation of the value of the remaining propertyof the transferor landowner will always be equivalent to or morethan the value of the land transferred to the Municipal Committee,assuming that the public purpose for which the land is taken overcontributes to the increase in the value of the remaining property.Lastly, and this is equally important, in many cases the accretionto the value of the remaining property may merely be on paperand be poor consolation to the transferor landowner if he cannotor is unable for one reason or the other to sell or otherwise disposeof the said property. On the other hand, in such cases, the accretionin value may prove burden if the property tax, wealth tax, estateduty etc. are calculated on the basis of the market value of theproperty. The so-called increase in the value of the property maythus prove liability to those who cannot dispose of their property.Looked at from any angle, the argument that the transferorlandowner is benefited because his remaining property appreciatesin value and, therefore, he need not be paid separate compensationfor the land which is transferred, is untenable in law. We thus find

1118SUPREME COURT REPORTS

Athat the provisions of Section 192(1)(c) are violative of Article 14of the Constitution.”

VIRENDER GAUR AND OTHERS V. STATE OFHARYANA AND OTHERS57

105. In the said case, the appellant surrendered 25 per cent of herBland to the Municipality, which was condition for sanction forconstruction of building. The land stood vested with the Municipality.The land in question stood earmarked for open spaces. Dharamshalacame to be put-up for the Punjab Samaj Sabha on the basis of allotmentto it. It was contended that in the construction of the Dharamshala,even if there was public purpose, the Government could not direct theCMunicipality to permit land use, defeating the scheme, which providedfor keeping the land open. This Court described environment ‘as apolycentric and multifaceted problem, affecting human existence’.106. The Court, in Virender Gaur(supra), further found powerto the Municipality under Section 66 to transfer the land vested in it. TheDCourt went on to hold, inter alia, as follows:

“11. It is seen that the open lands, vested in the Municipality, weremeant for the public amenity to the residents of the locality tomaintain ecology, sanitation, recreation, playground and ventilationpurposes. The buildings directed to be constructed necessarilyEaffect the health and the environment adversely, sanitation andother effects on the residents in the locality. Therefore, the orderpassed by the Government and the action taken pursuant theretoby the Municipality would clearly defeat the purpose of thescheme. Shri D.V. Sehgal, learned Senior Counsel, againcontended that two decades have passed by and that, therefore,Fthe Municipality is entitled to use the land for any purpose. Weare unable to accept the self-destructive argument to put premiumon inaction. The land having been taken from the citizens for apublic purpose, the Municipality is required to use the land for theprotection or preservation of hygienic conditions of the localGresidents in particular and the people in general and not for anyother purpose. Equally acceptance of the argument of Shri V.C.Mahajan encourages pre-emptive action and conduct, deliberatelychartered out to frustrate the proceedings and to make the result

fait accompli. We are unable to accept the argument of faitaccompli on the touchstone of prospective operation of our order.”

107. This Court also distinguished Yogendra Pal(supra) in thisregard.

108. There is contention of the appellants and the writ petitionersthat, at any rate, the law is an expropriatory legislation. This is for thereason that it operates to deprive 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 givenand to follow, we are unable to agree.

109. We agree that the law, undoubtedly, is that the planning lawcannot be interpreted as justifying an inroad into the rights of privateperson to construct suitable building for the purpose of carrying on hisbusiness.

110. In Ravindra Ramchandra Waghmare v. Indore MunicipalCorporation and others58, after an elaborate reference to Chairman,Indore Vikas Pradhikaran(supra) and K.T. Plantations(supra), thisCourt, inter alia, held as follows:

“76. …It is apparent from the aforesaid dictum that Article 300-Aenables the State to put restrictions on the right by law but thesame should not be arbitrary or excessive or beyond what isrequired in public interest. The imposition of restriction must notbe disproportionate to situation or statute. Legislation providingfor deprivation of property under Article 300-A must be just, fairand reasonable. Thus, it cannot be said that illusory compensationis provided under Section 306 read with Section 387. The decisionrenders no help to the cause espoused on behalf of the appellantsand on closer scrutiny, rather counters it. Based on the aforesaidprinciples we find no malady in the provisions in question whichmay be required to be cured.”

111. No doubt, the Court, in the said case also, after referring toRajiv Sarin and another v. State of Uttarakhand others59, found thatthe case at hand was not case of no compensation. Incidentally, thisCourt also followed the Judgment in Shantilal Mangaldas(supra):

58 (2017) 1 SCC 667

59 (2011) 8 SCC 708

A“83. As already held law seeking to acquire private property forpublic purpose cannot say that “no compensation” would be paid.The present case is case of payment of “no compensation” atall. In the case at hand, the forest land which was vested in theState by operation of law cannot be said to be non-productive orunproductive by any stretch of imagination. The property inBquestion was definitely productive asset. That being so, the criteriato determine possible income on the date of vesting would be toascertain such compensation paid to similarly situated owners ofneighbouring forests on the date of vesting. Even otherwise, theRevenue Authority can always make an estimation of possibleCincome on the date of vesting if the property in question had beenexploited by the appellants and then calculate compensation onthe basis thereof in terms of Sections 18(1)(cc) and 19(1)(b) ofthe KUZALR Act.”

112. In Rajiv Sarin(supra), the U.P. Zamindari Abolition andDLand Reforms Act, 1950, the Kumaun and Uttarakhand Abolition andLand Reforms Act, 1960, introduced the U.P. Act in the Uttarakhandand Kumaun region. The rights of every intermediary in respect of forestland came to be vested with the State Government. This was as resultof an amendment. The amendment and Notice came to be challenged.This Court, speaking through Constitution Bench, held, inter alia, asEfollows:

“68. The incident of deprivation of property within the meaning ofArticle 300-A of the Constitution normally occurred mostly in thecontext of public purpose. Clearly, any law, which deprives aperson of his private property for private interest, will be amenableFto judicial review. In the last sixty years, though the concept ofpublic purpose has been given quite wide interpretation,nevertheless, the “public purpose” remains the most importantcondition in order to invoke Article 300-A of the Constitution.

69. With regard to claiming compensation, all modern ConstitutionsGwhich are invariably of democratic character provide for paymentof compensation as the condition to exercise the right ofexpropriation. The Commonwealth of Australia Constitution Act,the French Civil Code (Article 545), the Fifth Amendment to theConstitution of USA and the Italian Constitution provided principles

of “just terms”, “just indemnity”, “just compensation” asreimbursement for the property taken, have been provided for.

70. Under the Indian Constitution, the field of legislation coveringclaim for compensation on deprivation of one’s property can betraced to Schedule VII List III Entry 42 of the Constitution. TheConstitution (Seventh Amendment) Act, 1956 deleted ScheduleVII List I Entry 33, List II Entry 36 and reworded List III Entry42 relating to “acquisition and requisitioning of property”. Theright to property being no more fundamental right, legislationenacted under the authority of law as provided in Article 300-A ofthe Constitution is not amenable to judicial review merely for allegedviolation of Part III of the Constitution.

xxx

73. It was further submitted that the inherent powers of publicpurpose and eminent domain are embodied in Article 300-A, andEntry 42, List III, “acquisition and requisitioning of property” whichnecessarily connotes that the acquisition and requisitioning ofproperty will be for public use and for compensation andwhenever person is deprived of his property, the limitations asimplied in Article 300-A as well as Entry 42, List III will come intothe picture and the Court can always examine the legality andvalidity of the legislation in question. It was further submitted thatawarding nil compensation is squarely amenable to judicial reviewunder Articles 32 and 226 of the Constitution of India.

xxx

77. Article 31(2) of the Constitution has since been repealed bythe Constitution (Forty-fourth Amendment) Act, 1978. It is to benoted that Article 300-A was inserted by the Constitution (Forty-fourth Amendment) Act, 1978 by practically re-inserting Article31(1) of the Constitution. Therefore, right to property is no longera fundamental right but right envisaged and conferred by theConstitution and that also by retaining only Article 31(1) of theConstitution and specifically deleting Article 31(2), as it stood. Inview of the aforesaid position the entire concept of right to propertyhas to be viewed with different mindset than the mindset whichwas prevalent during the period when the concept of eminent

Adomain was the embodied provision of fundamental rights. Buteven now as provided under Article 300-A of the Constitution theState can proceed to acquire land for specified use but by enactinga law through State Legislature or by Parliament and in the mannerhaving force of law.”

B113. The Court also reiterated the distinction between ‘nocompensation’ and ‘Nil compensation’, as laid down inK.T. Plantations(supra). The Court proceeded to find that it was case of ‘nocompensation’ at all, and therefore, it attracted the vice of illegaldeprivation of property and gave relief on the said basis. This is afterfinding that the property in question was productive asset.C

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 Regulation29(7).

“29(7) (a) The space set apart for roads (except those whichDmay remain private) and the 10% area reserved for recreationalpurposes shall be transferred to the Authority or Agency or theLocal Body designated by the Authority free of cost through aregistered gift deed before the actual approval of the layout underthe provisions of the T & CP Act. The exact mode of conveyanceshould be consistent with the relevant enactment and regulations.E

(b) In cases of industrial estates developed by Governmentagencies the Authority reserves the right to allow them to retainthe spaces set apart for roads and the recreational spaces asparks/play grounds and maintain them for the purposes to theFsatisfaction of the Authority.

(c) The Authority reserves the right to reserve space for recessedbus stops as part of the road space in the layouts exceeding 2hectares, where found necessary on public interest and this partof the road space also be transferred free of cost as stated in theGsub rule 7(a) above.”

115. Regulation 29(3)(b) deals with the width of the streets androads within the layout. It inter alia provides for the width and the streetsof the roads and passages. Thereunder, in the remarks column, it isprovided that starting with the minimum width of 7.2 meters in regard tostreets intended to serve not more than 16 plots / or subject to maximumH

length of 120 meters, all the streets become public. The common refrainfound in the remarks column is that that all such streets shall becomepublic. We must next specifically advert to Regulation 29(6):

“29(6) Reservation of land for recreational purposes in layoutor sub’ division for residential, commercial, industrial or combinationof such uses shall be as follows.

(a) The land for community recreational purposes shall berestricted to ground level, in shape and location to be specifiedby the Chennai Metropolitan Development Authority. The land soreserved shall be free from any ·construction by the layout owner,developer or promoter

(b) The building and use of land shall conform to the conditionsthat may be imposed while sanctioning the layout. The space setapart for commercial, institutional, industrial or other uses shall bedeemed to be zoned for commercial, institutional; industrial orcorresponding uses under the Master Plan.”

116. We may notice at this juncture that there is no challenge toRegulation 29(6). The second most important aspect we notice is thatthe land for community recreational purposes shall be restricted to theground level in shape and location to be specified by the CMDA.Further the land reserved is to be free from any construction by thelayout owner, developer and promoter. Further the use of the land shallconform to the conditions that may be imposed while sanctioning thelayout.

1124SUPREME COURT REPORTS

A117. Before we pass on to the impugned regulation, namely,Regulation 29 (7) (a), we must also undoubtedly notice Annexure XXwhich is also under challenge.

“ANNEXURE XX

Reservation of land for community recreational purposes in caseBof special buildings/ Group Developments/ multi-storeyed buildingdevelopments

(1) The reservation of land for community recreational purposessuch as park / playground shall be as given below at gr9und levelin shape and location ‘abutting public road to be specified byChennai Metropolitan Development Authority:CD

(2) The site so reserved shall be exclusive of ‘the setback spacesand. spacing between blocks prescribed in these rules, and shall·be free from any construction / structure.

(3) For the purpose of this regulation, existing development isdefined as one where the extent of ground area covered bystructures already existing (prior to application for planningpermission) is 25 per cent and above of the total site area.

(4) In case of additions to existing developments, where it is difficultto leave the 10 per cent area as open space for communityrecreational purposes, the Authority reserves the right to collectthe market value of equivalent land in lieu of the land to be reserved.However, if on future date, the applicant wants to demolish theexisting 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 maintenanceof such reserved lands by the owner to the satisfaction of theAuthority or order the owner to transfer the land to the Authorityor any local body designated by it free of cost, through registeredgift deed. The Authority or the local body designated by it, as thecase may be, reserves the right to decide on entrusting themaintenance work to any institution / individual on the merits ofthe case.”

118. It will be noticed on perusal of Annexure XX that thereservation for community recreation purposes such as park, playgroundis to be at ground level in shape and location abutting public road tobe specified by the CDMA. Thereafter, the requirement relating toexecuting the gift deed in respect of layout in excess of 10000 squaremeters 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 mayremain private) and the 10% area reserved for recreationalpurposes shall be transferred to the Authority or Agency or theLocal Body designated by the Authority free of cost through aregistered gift deed before the actual approval of the layout underthe provisions of the T & CP Act. The exact mode of conveyanceshould be consistent with the relevant enactment and regulations.”

ABC

119. From the additional affidavit which we have already noticed,the challenge is limited by the petitioner to the stipulation in Regulation29(7)(a) so far as the requirement of transferring the space set apart forrecreational purposes. In other words, the petitioners accept the validityof Regulation 29(7)(a) otherwise. Rule 29 reads as follows: -

B“29. Layout and sub-division regulations:

This regulation seeks to ensure access to plots by ‘way of roadsand private passages, creating hierarchy of roads depending onthe road length and intensity of developments in the area and alsoto provide adequate linkages to the existing roads and proposedroads in the Master Plan and Detailed Development Plan andfurther to provide proper circulation pattern in the area, providingrequired recreational spaces such as parks / playgrounds, andproviding spaces for common amenities such as schools, post andtelegraph offices, fire stations, police stations etc.

(1) The minimum extent of plots and frontage shall be as prescribedfor 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 whichthe site abuts or gains access shall be 7.2m. for residential layoutdevelopments and 9m. for industrial layout developments. Forsubdivisions the minimum width of the passage /public streets/road on which the site abuts or gains access shall be as requiredfor different uses and types of developments.

(b) The minimum width stated above shall be the existing width ofthe 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 minimumrequirements given below:

(a) for Residential developments

A29(3)(b) for Industrial Development

Note: Not withstanding anything contained above AuthorityDreserves the right to revise layouts proposed by the applicant andapplied for sanction in order to provide for better adequate linkagesproper circulation pattern requirements considering local conditionsetc.”

120. It becomes clear that in regard to streets and roads what iscontemplated under the regulation is that under 29 (3)(a) (B) all streetsEwill become public. This is to be read along with Regulation 29(7)(a).

It is apparently to ensure that the roads which are covered by29(3)(a)(B) which are to be treated as public are so maintained that it isinsisted under 29(7)(a) that gift deed be executed. In other words,keeping in mind the preambular portion of Regulation 29 which proclaimsFthat the regulation seeks to provide access to plots by way of roads andprivate passages creating hierarchy of roads based on road length,intensity of developments in the area and also provide adequate linkagesto the existing roads and proposed roads in the Master Plan and detaileddevelopment plan and to provide proper circulation pattern in the areaGinter alia, we must arrive at the conclusion that visionary perspective oftown planning would require an imaginative full play beinggiven.Meticulous requirements of futuristic needs of an ever-growingMetropolis when large area such as what would be found in layoutof more than 10000 square meters which is nearly one hectare of land inthe metropolitan area must be factored in. Circulation of traffic betweenH

parts of the area would require the roads being thrown open to the publicso that different parts of the metropolitan area can be easily accessed.In fact, even the writ petitioner by seeking to limit the challenge in thefirst place only to Regulation 29(7)(a) and not to Regulation 29(3)(a)(B)under which anyway the streets are declared as public acknowledgesthe need for and justification for the declaration of roads being public.

121. The argument of the respondent appears to be as follows:

The execution of gift deed acts as safety valve or safeguardto check the possibility that the developer would resile from the assuranceor violate the guarantee that the land, which is reserved as an openspace, will not be constructed upon. In other words, if the execution ofthe gift deed is insisted upon to ensure that in the future, there would notbe any contravention of the requirement, inter alia, that the area beused as an open space, then, the complaint, which is lodged against theimpugned Rule, as also the Regulation, may not stand scrutiny. In regardto the impugned Regulation, it must be borne in mind, as we have alreadynoticed that in the additional affidavit filed by the Writ Petitioner in WritPetition (C) No. 591 of 2015, the challenge in the writ petition has beenlimited to the latter part of the provision, i.e., the requirement to transferfree-of-cost, through registered gift deed, the 10 per cent recreationalarea reserved for recreational purposes only and not the space set apartfor roads. Here, we must observe that as already found by us, that thereis no challenge toRegulation 29(6). The writ petitioner does not seek to,bring under 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 andrecreational purposes, is to be restricted to the ground level and in ashape and location to be specified by the Authority. It is also to be reservedfree from any construction. Therefore, the reservation, which is mandatedin terms of Regulation 29(6)(a), and which cannot be subject matter ofa claim for compensation under Section 39 of the Act, is to become thesubject matterof the gift deed. The execution of the gift deed, if it isunderstood as merely as an insurmountable obstacle for an unscrupulousdeveloper to get around the laudable mandate to preserve the requisite

1130SUPREME COURT REPORTS

Aarea as open space, cannot be rendered vulnerable. Even if, no giftswere to be executed, the property covered by the open space requirement,would be put beyond the domain and control of the developer. Futuregenerations 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 conferringBownership of the area comprised in the open space, we would think thatthe impugned provisions would pass muster. It would prevent any kindof abuse. It is clear that the Regulation, properly understood, prescribefor the open space and merely provides for the facilitation andpreservation of the open space.CA BRIEF LOOK AT THE FIFTH AMENDMENT CASESIN 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 justcompensation’. This limb of the Fifth Amendment has spawned largeDbody of case law. We may only advert to few of them. In Agins(supra), the brief facts were as follows:

The owners of five-acre parcel of unimproved land challengedthe placing of the land by adopting of Zoning Ordinances, by which, theland was placed in residential planned development and open space zone,Ewhich permitted the owners to build between 1 and 5 single familyresidences. The appellants asserted infraction of the Fifth and theFourteenth Amendments and sought damages for inverse condemnation.(Inverse condemnation amounts to proceedings seeking compensationfor compulsorily acquiring land without there being any formal proceedingsFfor acquisition). The challenge was repelled by the U.S. Supreme Court.It was found that there was no violation of the Takings Clause in theFifth Amendment. It must be made clear that the Taking Clause is basedon the prohibition against the taking of private property for public usewithout just compensation. The Court, inter alia, held as follows:

G“The application of general zoning law to particular propertyeffects taking if the ordinance does not substantially advancelegitimate state interests, see Nectow v. Cambridge, 277 U.S.183, 188, 48 S.Ct. 447, 448, 72 L.Ed. 842 (1928), or denies anowner economically viable use of his land, see Penn CentralTransp. 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 thatgovernmental action constitutes taking is, in essence, adetermination that the public at large, rather than single owner,must bear the burden of an exercise of state power in the publicinterest. Although no precise rule determines when property hasbeen taken, see Kaiser Aetna v. United States, 444 U.S. 164,100 S.Ct. 383,62 S.Ct. 332 (1979), the question necessarily requiresa weighing of private and public interests. The seminal decisionin Euclid v. Ambler Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed.303 (1926), is illustrative. In that case, the landowner challengedthe constitutionality of municipal ordinance thatrestricted commercial development of his property. Despite allegeddiminution in value of the owner’s land, the Court held that thezoning laws were facially constitutional. They bore substantialrelationship to the public welfare, and their enactment inflicted noirreparable injury upon the landowner.”

124. In James Patrick Nollan v. Calefornia CoastalCommission60, the following were the facts:

The prospective purchasers of beach front plot, which waslocated between two public beaches, proposed to satisfy condition ontheir option to purchase by pulling down an old bungalow on the premises.It was to be replaced with larger house. The respondent Commissionstipulatedthe condition that purchasers must give the public an easementto pass across the portion of the property which lay between the meanhigh tide line. The purchasers took shelter under the Takings Clause. In5:4 Majority Judgment, the Court took the view that the Takings Clausewas offended. In the course of the Judgment, the Court held, inter alia:

“[1b, 5] “Given, then, that requiring uncompensated conveyanceof the easement outright would violate the Fourteenth Amendment,the question becomes whether requiring it to be conveyed as acondition for issuing land-use permit alters the outcome. Wehave long recognized that land-use regulation does not effect ataking if it “substantially advance[s] legitimate state interests” anddoes not “den[y] an owner economically viable use of hisland,” Agins v. Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141,65 L.Ed.2d 106 (1980). See also Penn Central TransportationCo. v. New York City, 438 U.S. 104, 127, 98 S.Ct. 2646, 2660, 57

ABC

L.Ed.2d 631 (1978)(“[A] use restriction may constitute ‘taking’if not reasonably necessary to the effectuation of substantialgovernment purpose”).”

xxxxxx

“[1c] The Commission argues that permit condition that servesBthe same legitimate police-power purpose as refusal to issuethe permit should not be found to be taking if the refusal to issuethe permit would not constitute taking. We agree. Thus, if theCommission attached to the permit some condition that wouldhave protected the public’s ability to see the beach notwithstandingCconstruction of the new house—for example, height limitation,a width restriction, or ban on fences—so long as the Commissioncould have exercised its police power (as we have assumed itcould) to forbid construction of the house altogether, imposition ofthe condition would also be constitutional. Moreover (and herewe come closer to the facts of the present case), the conditionDwould be constitutional even if it consisted of the requirement thatthe Nollans provide viewing spot on their property for passersbywith whose sighting of the ocean their new house would interfere.Although such requirement, constituting permanent grant ofcontinuous access to the property, would have to be considered aEtaking if it were not attached to development permit, theCommission’s assumed power to forbid construction of the housein order to protect the public’s view of the beach must surelyinclude the power to condition construction upon some concessionby the owner, even concession of property rights, that servesthe same end. If prohibition designed to accomplish that purposeFwould be legitimate exercise of the police power rather than ataking, it would be strange to conclude that providing the owneran alternative to that prohibition which accomplishes the samepurpose is not. The evident constitutional propriety disappears,however, if the condition substituted for the prohibition utterly failsGto further the end advanced as the justification for the prohibition.”

125. In Florance Dolan v. City of Tigard61, again the scope ofthe Fifth Amendment or rather the Takings Clause thereunder, fell forconsideration. The owner of city plot applied for building permit fora bigger store than she had with certain other facilities, including parkingH61 512 US 374

area. The permission though granted came with two conditions. Theowner was to dedicate to the city, as greenway, portion of her lotwithin the 100-year floodplain of creek, which flowed through onecorner and along one boundary of the lot. The owner had also to dedicateto the city as pedestrian/bicycle pathway, an additional 15-foot strip ofland adjacent to the floodplain. Her request for variance of the conditionswas rejected. This stand was approved by the Authorities as also theCourt of Appeals with four learned Judges dissenting with the Majority,remitted the matter back. Distinguishing the decision in Village of Euclidv. Ambler Reality Company62 and Agins(supra), the Court held, interalia, as follows:“9. The sort of land use regulations discussed in the cases justcited, however, differ in two relevant particulars from the presentcase. First, they involved essentially legislative determinationsclassifying entire areas of the city, whereas here the city made anadjudicative decision to condition petitioner’s application for abuilding permit on an individual parcel. Second, the conditionsimposed were not simply limitation on the use petitioner mightmake of her own parcel, but requirement that she deed portionsof the property to the city. In Nollan, supra, we held thatgovernmental authority to exact such condition wascircumscribed by the Fifth and Fourteenth Amendments. Underthe well-settled doctrine of “unconstitutional conditions,” thegovernment may not require person to give up constitutionalright—here the right to receive just compensation when propertyis taken for public use—in exchange for discretionary benefitconferred by the government where the benefit sought has littleor no relationship to the property. See Perry v. Sindermann, 408U.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., 391U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968).

Petitioner contends that the city has forced her to choose betweenthe building permit and her right under the Fifth Amendment tojust compensation for the public easements. Petitioner does notquarrel with the city’s authority to exact some forms of dedicationas condition for the grant of building permit, but challenges theshowing 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” createdby her new store that would justify the particular dedicationsrequired from her which are not required from the public at large.”

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B“[1c, 2d, 11a] We think the “reasonable relationship” test adoptedby majority of the state courts is closer to the federal constitutionalnorm than either of those previously discussed. But we do notadopt it as such, partly because the term “reasonable relationship”seems confusingly similar to the term “rational basis” whichCdescribes the minimal level of scrutiny under the Equal ProtectionClause of the Fourteenth Amendment. We think term such as“rough proportionality” best encapsulates what we hold to be therequirement of the Fifth Amendment. No precise mathematicalcalculation is required, but the city must make some sort ofindividualized determination that the required dedication is relatedDboth in nature and extent to the impact of the proposeddevelopment.”

126. The remand was limited to the first condition. In regard tothe second condition, viz., dedication for the pedestrian bicycle pathway,the Court held as follows:

“[1g, 13] With respect to the pedestrian/bicycle pathway, we haveno doubt that the city was correct in finding that the larger retailsales facility proposed by petitioner will increase traffic on thestreets of the Central Business District. The city estimates thatthe proposed development would generate roughly 435 additionalFtrips per day.[9]Dedications for streets, sidewalks, and other publicways are generally reasonable exactions to avoid excessivecongestion from proposed property use. But on the record beforeus, the city has not met its burden of demonstrating that theadditional number of vehicle and bicycle trips generated bypetitioner’s development reasonably relate to the city’s requirementGfor dedication of the pedestrian/bicycle pathway easement. Thecity simply found that the creation of the pathway “could offsetsome of the traffic demand ... and lessen the increase in trafficcongestion.”

As Justice Peterson of the Supreme Court of Oregon explainedHin his dissenting opinion, however, “[t]he findings of fact that the

bicycle pathway system ‘could offset some of the traffic demand’is far cry from finding that the bicycle pathway system will, oris likely to, offset some of the traffic demand.” 317 Ore., at 127,854 P.2d, at 447 (emphasis in original). No precise mathematicalcalculation is required, but the city must make some effort toquantify its findings in support of the dedication for the pedestrian/bicycle pathway beyond the conclusory statement that it couldoffset some of the traffic demand generated.”

127. No doubt, there were vigorous dissents expressed by thefour learned Judges. In the dissent by Justice Stevens, with whom JusticeBlackmun and Justice Ginsburg agreed, the essential nexus requirementpropounded in Nollan(supra) was recognised. The dissenting Judges,however, opposed the employment of the ‘rough proportionality’requirement. Decrying the consequences that may follow from therequirement to make ‘individualised determinations’, the learned Judgesfound that the questions could be answered under the framework of theexisting caselaw. The learned Judges also found that there was no basisfor applying the ‘Unconstitutional Conditions’ Doctrine. We are temptedto and rightfully so, to advert to the following observations in the dissentingJudgments in regard to the true place of the Doctrine of UnconstitutionalConditions:

“Even if Dolan should accept the city’s conditions in exchangefor the benefit that she seeks, it would not necessarily follow thatshe had been denied “just compensation” since it would beappropriate to consider the receipt of that benefit in any calculationof “just compensation.”

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“In this respect, the Court’s reliance on the “unconstitutionalconditions” doctrine is assuredly novel, and arguably incoherent.The city’s conditions are by no means immune from constitutionalscrutiny. The level of scrutiny, however, does not approximate thekind of review that would apply if the city had insisted on asurrender of Dolan’s First Amendment rights in exchange for abuilding permit.”

128. In Linda Lingle, Governor of Hawaii, et al. v. ChevronU.S.A.INC.63 in the context of State statute limiting the rent that oil

Acompanies could charge to its dealer who lease service stations ownedby the companies took the view after noticingNollan(supra) andDolan(supra) which we have referred to that “substantially advances” formulais not valid Takings test initiated inAgnis (supra) and it was concludedthat it has no proper place in the Takings jurisdiction.

B129. In Village of Euclid, Ohio Et Al v. Ambler RealityCompany64, the village of Euclid lay in the form of parallelogram. Theappellant was the owner of the land measuring 68 acres. The entirearea of the village was divided into six classes of use places.

130. We may notice they appear to be similar to the zonesCcontemplated under the DCR in the instant cases. There were restrictionsin 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 tobe challenged on the ground that it deprived the appellant of its righttoliberty and property without due process of law as also equal protectionof the law under the Fourteenth Amendment to the U.S. Constitution.DCertain provisions of the State Constitution were also relied upon.

131. Though in the context of the validity of the restrictions underthe Zoning Ordinance, we notice the prescience of mind with which theCourt approached the matter and refused to apply constitutionalsafeguards:

“Building zone laws are of modern origin. They began in thiscountry about 25 years ago. Until recent years, urban life wascomparatively simple; but, with the great increase andconcentration of population, problems have developed, andconstantly are developing, which require, and will continue toFrequire, additional restrictions in respect of the use and occupationof 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, centuryago, or even half century ago, probably would have beenGrejected as arbitrary and oppressive. Such regulations aresustained, under the complex conditions of our day, for reasonsanalogous to those which justify traffic regulations, which, beforethe advent of automobiles and rapid transit street railways, wouldhave been condemned as fatally arbitrary and unreasonable.”

132. In the recent judgment relating to land use in the UnitedStates reported inCoy A. Koontz v. St. Johns River Water ManagementDistrict65, the Court, speaking through the majority Judgment (5:4), hadthe following facts before it. The petitioner therein decided to develop a3.7 acre section of his property and he applied for certain permits requiredin this regard. To mitigate the environmental effects of his proposal, thepetitioner offered to foreclose any possible future development of theapproximately 11 acres southern section of his land by deeding to thedistrict conservation easement on that portion of his property. TheDistrict, however wanted the petitioner to reduce the size of developmentto 1 acre and deed the conservation easement to the remaining extent of13.9 acres. The District wanted the petitioner to make improvement toDistrict owned wet lands, several miles away. The District hinted allthat it would consider alternative wherein monetary equivalent wasproposed. It is in these facts that the majority view was inter alia asfollows: -

“II [1,2] We have said in variety of contexts that “thegovernment may not deny benefit to person because heexercises constitutional right.” Regan v. TaxationWithRepresentation of Wash.,461 U.S. 540, 545, 103 S.Ct. 1997,76 L.Ed.2d 129 (1983). See also, e.g., Rumsfeld v. Forum forAcademic and Institutional Rights, Inc., 547 U.S. 47, 59–60,126 S.Ct. 1297, 164 L.Ed.2d 156 (2006); Rutan v. RepublicanParty of Ill., 497 U.S. 62, 78, 110 S.Ct. 2729, 111 L.Ed.2d 52(1990).”

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“A second reality of the permitting process is that many proposedland uses threaten to impose costs on the public that dedicationsof property can offset. Where building proposal wouldsubstantially increase traffic congestion, for example, officialsmight condition permit approval on the owner’s agreement to deedover the land needed to widen public road.”

“(3) …Under Nollan and Dolan the government may choosewhether and how permit applicant is required to mitigate theimpacts of proposed development, but it may not leverage its

65 133 S.Ct. 2586 (2013)

legitimate interest in mitigation to pursue governmental ends thatlack an essential nexus and rough proportionality to those impacts.”

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“(7) …Extortionate demands for property in the land-use permittingcontext run afoul of the Takings Clause not because they takeproperty but because they impermissibly burden the right not tohave property taken without just compensation. As in otherunconstitutional conditions cases in which someone refuses to cedea constitutional right in the face of coercive pressure, theimpermissible denial of governmental benefit is constitutionallycognizable injury.”

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“(13) …We agree with respondent that, so long as permittingauthority offers the landowner at least one alternative that wouldsatisfy Nollan and Dolan, the landowner has not been subjectedDto an unconstitutional condition.”

133. It is noteworthy to begin with that in India there is no provisionsimilar 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 person could not bedeprived of his property except after payment of compensation. Article31 stands deleted by the Forty-FourthAmendment. In Article 300A, whathas been inserted by the same amendment is only the first limb of Article31, viz., no person shall be deprived of his property save by authority oflaw. The ambit of this Article has been discussed in the decision inK.T.Plantations(supra).

F134. Even under the Takings clause, we may only noticeNollan-Dolan(supra) and as interpreted by the majority inKoontz(supra) it isopen to the government to consider how the permit applicant must mitigatethe impacts of proposed development and what is required to makeState action legitimate is that the conditions imposed must bear anessential nexus and rough proportionality to the impacts perceived.G

ENTRY 42 OF LIST III OF THE SEVENTH SCHEDULE

135. Is the impugned Rule/Regulation, case where it would besaid that Entry 42 in List III to the Seventh Schedule applies? In otherwords, is there acquisition of land and is it case of exercise of eminentdomain by the state? Is it case where the impugned provisions are

more relatable to the exercise of police power? Does the impugnedprovision constitute deprivation of property within the meaning of Article300A? Since we have held that the impugned provision in the case ofthe rule is law, would not the Rule be law which provides for deprivationof property, and therefore, there is no violation involved at all. Does theimpugned Rule bring about deprivation and for which compensation mustbe paid, failing which it cannot but perish by placing it side by side withArticle 300A?

136. We have noticed that right from 1975 onwards with thepromulgation of DCR along with master plan, and subsequently, in theyear 2008, with the enactment of the regulations, and still, what is more,in supersession of the Regulations by the Rules of 2019,the Law Giverhas put in place the requirement of making available 10 percent of landexcluding 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 isinvolved is acquisition of the property or an exercise of the power ofeminent domain,we are of the view that stipulating the conditions that aperson who seeks to develop his property in sprawling and ever-growingurban metropolis which is sought to be regulated by law relating to atown planning cannot be viewed as acquisition of land within the meaningof Entry 42 in List III. Acquisition of land involves, no doubt, compulsorydivesting of the rights of person in his property.138. We must bear in mind that while right to hold and enjoyproperty was Fundamental Right under Article 19(1)(f), w.e.f. 1978 itceased to be Fundamental Right. Equally, Article 31, which was also aFundamental Right in regard to property, including the right tocompensation as provided under Article 31(2) stood deleted. Article 300Awas inserted resurrecting only Article 31(1).The right to propertyhasbeen described by this Court as Statutory Right; human right andalso constitutional right. We must therefore proceed on the basis that aperson would continue to have despite the Forty-FourthAmendment, astatutory right, human right and constitutional right to property.

139. An acquisition is compulsory vesting of the property of aperson with the state. It is traceable undoubtedly to the power of eminentdomain assured to every sovereign. It can undoubtedly be exercisedonly for securing public interest as contrasted with promotion of privateinterest (See K.T. Plantation(supra)[66]).

A140. K.T. Plantations(supra) was case which involved thevalidity of law which provided for compulsory acquisition under theState enactment. The understanding of this Courtin K.T. Plantations(supra) was that person cannot be deprived of his property merely byexecutive fiat without any specific legal authority or without support oflaw made by competent Legislature (See paragraph-168).We mustBnotice here that law for the scope of Article 300A has been explained bythis Court in Bishambhar Dayal Chandra Mohan and others v. Stateof Uttar Pradesh and others67 (paragraph-41) as follows:

“41. There still remains the question whether the seizure of wheatamounts to deprivation of property without the authority of law.Article 300-A provides that no person shall be deprived of hisproperty save by authority of law. The State Government cannotwhile taking recourse to the executive power of the State underArticle 162, deprive person of his property. Such power can beexercised only by authority of law and not by mere executivefiat or order. Article 162, as is clear from the opening words, issubject to other provisions of the Constitution. It is, therefore,necessarily subject to Article 300-A. The word “law” in thecontext of Article 300-A must mean an Act of Parliament or of aState legislature, rule, or statutory order, having the force oflaw, that is positive or State made law. The decisions in WazirChand 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 ofPunjab [AIR 1961 SC 1570 : (1962) 2 SCR 69 : (1963) 1 SCJ405] are an authority for the proposition that an illegal seizureamounts 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 goodsin possession of the petitioner in India at the instance of the policeof the State of Jammu & Kashmir. The seizure was admittedlynot under the authority of law, inasmuch as it was not under theorders of any Magistrate; nor was it under Sections 51, 96, 98 and165 of the Code of Criminal Procedure, 1898, since no report ofany offence committed by the petitioner was made to the policein India, and the Indian police were not authorised to make anyinvestigation. In those circumstances, the Court held that the seizurewas not with the authority of law and amounted to an infringement

of the fundamental right under Article 31(1). The view wasreaffirmed in Bishan Das case [AIR 1961 SC 1570 : (1962) 2SCR 69 : (1963) 1 SCJ 405].”

141. What this Court in K.T. Plantations(supra) meant was todistinguish ‘law’ as legislative measure as distinct from mere Executivefiat.

142. The intention of Parliament was to do away with theFundamental Right to acquire, hold and dispose of property (Seeparagraph-179). Deprivation of property must take place for publicpurpose primarily (See paragraph-180). Public purpose must be givenan expansive meaning(See paragraph-181). Payment of compensationisa constitutional requirement under Article 30(1)(A) and under the secondproviso to Article 31(A)(1) unlike Article 300A. After the Forty-FourthAmendment, the constitutional obligation to pay compensation toa person deprived of his property is dependent on the Statute. (See para183). We may refer to the following observations in paragraph 188:

“188. We find no apparent conflict with the words used in List IIIEntry 42 so as to infer that the payment of compensation is inbuiltor 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.”

143. This would mean that the argument of the parties, based onthe 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 personof his property under Article 300-A, is precondition, but nocompensation or nil compensation or its illusiveness has to bejustified by the State on judicially justiciable standards. Measuresdesigned to achieve greater social justice, may call for lessercompensation and such limitation by itself will not make legislationinvalid or unconstitutional or confiscatory. In other words, the rightto claim compensation or the obligation to pay, though not expresslyincluded in Article 300-A, it can be inferred in that article and it isfor the State to justify its stand on justifiable grounds which maydepend upon the legislative policy, object and purpose of the statuteand host of other factors.”

144. We may also recapture paragraphs-191 and 192:

A“191. The legislation providing for deprivation of property underArticle 300-A must be “just, fair and reasonable” as understoodin terms of Articles 14, 19(1)(g), 26(b), 301, etc. Thus in eachcase, courts will have to examine the scheme of the impugnedAct, its object, purpose as also the question whether payment ofnil compensation or nominal compensation would make theBimpugned law unjust, unfair or unreasonable in terms of otherprovisions of the Constitution as indicated above.”

“192. At this stage, we may clarify that there is differencebetween “no” compensation and “nil” compensation. lawseeking to acquire private property for public purpose cannot sayCthat “no compensation shall be paid”. However, there could be alaw awarding “nil” compensation in cases where the Stateundertakes to discharge the liabilities charged on the property underacquisition and onus is on the Government to establish validity ofsuch law. In the latter case, the Court in exercise of judicial reviewDwill test such law keeping in mind the above parameters.”

145. perusal of the paragraphs, which we have adverted to,would reveal that, while in paragraph-189, it is made to appear that nocompensation or nil compensation or its illusiveness has to be justified onjudicially justifiable standards, in paragraph-192, it is held that lawEproviding for acquisition of private property for public purpose cannotsay that no compensation could be paid. At this juncture, we consider itapposite 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 publicinterest e.g. in connection with health, sanitation, zoning regulation,urban planning and so on from the power of taxation, by whichthe owner of private property is compelled to contribute portionof it for the public purposes and from the war power, involving thedestruction of private property in the course of military operations.The police power fetters rights of property while eminent domaintakes them away. Power of taxation does not necessarily involvea taking of specific property for public purposes, though analogousto eminent domain as regards the purposes to which thecontribution of the taxpayer is to be applied. Further, there areseveral significant differences between regulatory exercises ofthe police powers and eminent domain of deprivation of property.

Regulation does not acquire or appropriate the property for theState, which appropriation does and regulation is imposed severallyand individually, while expropriation applies to an individual or agroup of owners of properties.”

146. What is of interest to this Court in these cases is theobservation that eminent domain is to be contrasted with police power,where restrictions are put in public interest, in connection with zoningregulations, urban planning, inter alia, by which the owner of privateproperty is compelled to contribute portion of it for public purpose. Nodoubt, it is also held that Regulation does not acquire or appropriate theproperty.

147. We must appreciate the issues before us in the light of thesaid exposition.

148. The impugned provision does not represent in our view, acase of compulsory acquisition of land. case of compulsory acquisitionwould be without there being any volition or consent of person. TheState purports to divest his rights in property and vest the rights with theState. The impugned provision does not appear to us to be case ofsuch acquisition as is contemplated ina law which is made with referencetoEntry 42 in List III. In this context, we must also deal with the casebased on Section 20 of the Act. Section 20 deals with contents of detaileddevelopment plan.Section 20 (d) reads as follows and it provides, interalia, the contents:

“Section 20(d). The acquisition by purchase, exchange or otherwiseof any land or other immovable property within the area includedin the detailed development plan whether required immediately ornot.”

149. From perusal of the said provisions, what it contemplated,can be summed-up as follows. detailed development plan can proposeor provide to purchase or exchange any land or immovable property.Theland may be required immediately or it may be not so immediatelyrequired. What is important is apart from purchase and exchange, theproperty maybe ‘acquired otherwise’.We are not concerned with achallenge to Section 20.As Section 20 stands acquisition by way of agiftcannot be said to be incongruous merely by reference to the twoother expressly articulated modes of transfer of title,viz., purchase andexchange. Undoubtedly, gift is transfer of property without there

Abeing any valuable consideration. It is an act of volition of the owner.Inother words, if plan does provide that right in land or other immovableproperty may be acquired in terms of gift which may be executed, itmay not involve straining the plain language, and also involvepouringmeaning into the width of the expression ‘otherwise’ just as muchas it avoids placing narrow connotation on word of wide import.B

150. The decision in Pandit ChetramVashishta(supra) was adecision,which turned on the absence of any power under which theopen space or park was to stand vested in corporation or to standtransferred to it. In fact, this Court found that the effect of the reservationwas that the donor ceased to be the legal owner of the land in dispute.CHe held the land for the benefit of society or the public in general. Thedonor became essentially trustee preventing alienation of his right.The court however drew distinction between the owner beingtransformed into the trustee and being prevented from transferring hisrights and the local body being vested with the rights of the owner. AsDfar as the impugned provisions in these cases are concerned, the DCRnot only obliges setting apart certain percentage (10 percent) for thecommunal and recreational purposes in respect of very large projectsbut also transfer, is to be made of the property so set apart by theowner. We will delve upon the impact of this decision at later point oftime in different context. At the same time, we must also bear in mind,Ethe Judgment of this Court in Yogendra Pal and others(supra). InYogendra Pal and others, we have already noticed the facts.What wasinvolved there was the violation of Section 192(1)(c) of the PunjabMunicipal Act, 1911. The provision provided that the Municipal Committeemay prepare building scheme, which may, inter alia, provide that theFamount of land in unbuilt area shall be transferred to the committee forpublic purposes including use as public streets by owners of land eitheron payment of compensation or otherwise, provided that the total amountso transferred shall not exceed thirty-five per cent, and the amounttransferred without payment shall not exceed twenty-five per cent, of

any one owner’s land within such unbuilt area. What appealed to thisGCourt as the basis for transgression of Article 14 has been adverted toby us and which is contained in paragraphs-14 and 15 of the saidJudgment. It must be remembered that the principal plank of attackagainst 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. TheHtransfer effected in the said case, it may be noticed was prior to

20.06.1979 on which date the Forty-FourthAmendment came into being.Therefore, the case was that it amounted to acquisition of property.ThisCourt found merit in the contention that what was involved was actuallyacquisition and the transfer was not merely for limited purpose. It wasfound that there was no provision in the Act to suggest that despiteemployment of the land for public purpose, the ownership and possessionor occupation continued with the landowner.The landowner wascompelled to enjoy rights only as member of the public. The Court alsorejected the case of the transfer being only for limited purpose. Aperusal of Section 192(1)(c) reveals that the said provision is notcomparable with the provision impugned in the cases before us. Section192(1)(c) of the Punjab Tenancy Act, 1911 was clearly in the nature ofacquisition.The rights of the person were extinguished effectively.Theprovision vested power or discretion to acquire land either on paymentof compensation or otherwise. As already noticed, this was done at atime when Article 19(1)(f) and Article 31 of the Constitution, both beingFundamental Rights, continued to hold the field. No doubt, the decisionis rested ultimately on the impugned provision being found to be contraryto Article 14. What is pertinent, however, is that, in the case of the Rule/Regulation impugned, as we have already found, is not case of exerciseof power of eminent domain, and it is not case of acquisition by meansof compulsory exaction of the property. What is involved in these cases,is different factual matrix.A person or group of persons, owning anextent of land, which is in excess of 10,000 square metres in fast-growing urban metropolis, wish to develop the land. It is, apparently,acommercial venture. They put-up, what is called, special buildings orgroup development. This involves making optimum use of the land byputting up vertical constructions. In other words, ordinarily, large numberof persons would come to occupy the area with layout of more than10,000 square metres. The Law Giver has contemplated provision ofroads within the layout of roads. In fact, the roads are themselves tobecome public.Interestingly, even in the challenge made by the WritPetitioner in Writ Petition No. 651 of 2015,viz., the petitioner hasspecifically limited the challenge to the regulation to the requirement ofgifting the area comprised in the land for communal and recreationalpurposes. The Regulations, as did the Rules, provide for the roads tobecome publicand become open to the members of the public.A gift, inthis regard, is not ironically objected to.

A151. We have noticed from the pleadings that the appellants andthe petitioner substantially do not challenge the setting apart of land forthe purpose of communal or recreational purpose. The objections appearto be as follows. The word ‘communal’ must be contextually interpretedto confine the benefit of reservation for the occupants of the buildingsand it must not be made available to the members of the public. In theBcase of Vasanth Apartments, they object to the land set apart under thegift deed, being used to cater to the members of the public in general, byconverting it into public road. In fact, it must be remembered that inthe case of Vasanth Apartments, as rightly pointed out by Shri JayantMuthRaj, learned Senior Counsel, the gift was not executed by theCmembers of the Association. The property was gifted by the developeras condition for developing the land. The developer, in other words,who put together the project or developed the project, is the person whowould have right to have the property revested.He accepts the gift. Itis obvious that having been partyto the gift it may not lie in his mouth toimpeach the same. [See in this regard the Judgment of this Court inDNarayanrao Jagobaji(supra)]. It is not as if the members of the VasanthApartment Owners Association claim to have an assignment of the rightover the land which is gifted from the original owner. Therefore, as faras the members of the Vasanth Apartment Owners Association areconcerned, on the factual basis available, it may not lie in their mouth,Enoticing two other features as well, to contend that the Court mustinvalidate the Rule. The gift was executed in the year 1994. The WritPetition 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 propertymust be continued as recreational and OSR area. learned Single JudgeFallowed the writ petition. Thereafter, there were two Writ Appeals filed,one by persons who claimed that the area was being used as publicroad, and another, by the Corporation of Chennai and the CMDA. Therewas an interim Order passed by the Division Bench. It is thereafter, thatthe second Writ Petition is filed by them challenging the Rule. While,it isGtrue that mere passage of time will not make an unconstitutional provisionvalid, the delay, with which prevailing Statute is impugned, becomes afactor, which the Court would not ignore. In this case, as if such factorswere not sufficient, we notice the further development. The Rules cameto be repealed by the Regulations in the year 2008 and the Regulationstood repealed in the year 2019 by Statutory Rules made in the saidH

year. The challenge to the Rule, on the basis of Article 300A and, indeed,Article 14 as well by Association of Vasanth Apartment OwnersAssociation must fail, as it cannot even be their case that their right inproperty was deprived. The appellants never had any proprietary rightin the property to allege deprivation of the same. Even if the Rule isfound bad, there can be no question of voiding the gift at the appellant’sinstance.

152. In the case of M/s. Keyaram Hotels Pvt. Ltd., theircomplaints, apart from those dealing with legality of the Rule on othergrounds, which we had noticed and discussed, remain the following.

Before we go to the other complaints, we have already noticed, inparagraph 10 of the Writ Petition, the appellant/petitioner (M/s. KeyaramHotels Pvt. Ltd.) has expressed its willingness for stipulating open spaceas required for communal and recreation use of the occupiers and lawfuluses of the building and it was specifically averred that it would satisfythe public interest. It is specifically undertaken that they will keep 10percent of the area as open space for communal and recreationalpurpose. However, they have raised the complaint that further, apartfrom the direction to execute the gift, the condition, imposed to provideexclusive frontage for the said open space into the main road, isunsustainable in law. It is the complaint that the attempt to the thirdrespondent is to gain entry into the property of the petitioner to make useof the open space reserved, detrimental to the rights of the propertyowner.

153. The matter may be viewed in the following manner. In thefacts inPandit Chetram Vashishta(supra), it was held that the positionof the developer, would be that of trustee. It was so held in the absenceof statutory mandate. Now, in this case, there is statutory mandate toexecute gift deed. The question would arise as to what would be thenature of the rights of the donee, viz., the local authority. Would thedonee become an absolute owner? Can the local authority transfer theland? Can the local authority build on the OSR area? The answer to allthese questions is only in the negative. Unlike the donee, in the case of agift, the local authority cannot in anyway acquire the right as the absoluteowner. Just as in the case of Pandit Chetram Vashishta(supra), wherethe developer would be trustee, we would think that the Rule, if is to beupheld, in the conspectus of the law and bearing in mind the object, thetransfer by way of gift to the donee will be only for the purpose of

Aensuring that the object of the law is attained, i.e., the property ismaintained as OSR. The local authority, under the gift deed, would be amere trustee. As trustee, it will be the obligation of the local authority toensure that all such lands, set apart under the impugned Rules/Regulations, are effectively maintained as such. In this regard, in theOpen Space Act, 1906, U.K. Law, Section 3 reads as follows:B

“3 Transfer to local authority of spaces held by trustees forpurposes of publicrecreation.

(1) Where any land is held by trustees (not being trustees electedor appointed under any local or private Act of Parliament) uponCtrust for the purposes of public recreation, the trustees may, inpursuance of special resolution, transfer the land to any localauthority by free gift absolutely or for limited term, and, if thelocal authority accept the gift, they shall hold the land on the trustsand subject to the conditions on and subject to which the trusteesheld the same, or on such other trusts and subject to such otherDconditions (so that the land be appropriated to the purposes ofpublic recreation) as may be agreed on between the trustees andthe local authority with the approval of the Charity Commission.

(2) Subject to the obligation of the land so transferred being usedfor the purposes ofpublic recreation, the local authority may holdEthe land as and for the purposes of anopen space under this Act.”

154. The very goal of town planning requires nothing less. Oncethe goal of executing the gift and the results it produces in law, areappreciated in the above manner, we find that the apprehensions and thecontentions of the appellant/petitioner lose their sheen. We are unable toFaccept, in the context of the Act of the Rules/ Regulations, that, in sucha large project, when the layout is more than 10,000 square metres,executing gift deed, which would ensure compliance, would fall foul ofthe requirement of either Article 14 or Article 300A. The developer/owner, remained only trustee even without gift. The provision forGsetting apart 10 per cent, is invulnerable. The area will even without agift remain out of bounds for the project proponent/owner. The OSR,being an inviolable requirement, the additional requirement, meant andunderstood as measure to ensure compliance and prevent misuse andor disuse, must not be understood as deprivation. As already discussed,the gift will not convert the Local Body into an absolute owner. Instead,Hin place of the original owner, continuing as trustee, the Local Authority

becomes the trustee. The purpose and the nature of the obligation willremain and haunt both the Local Body as also the original owner. TheRule/Regulation at any rate also, is law which sanctions deprivationeven assuming there is deprivation. However, we are of the view that, insubstance, the Rule/Regulation cannot be understood as deprivation underArticle 300A.

155. We have indicated earlier that this Court has recognised Rightto Property as Constitutional Right on account of insertion of Article300A. In the context of the Principle of Unconstitutional Condition, asrecognised in the United States, could it be said that the impugned Rule/Regulation presents case of an unconstitutional condition? While, asalready found by us, the impugned provisions, do not make out case ofacquisition as it is not compulsory divesting of title and gift is executedon the basis that the project proponent/owner volunteers to execute thegift deed andno doubt, in view of the Rule, the execution of the gift deed,finally, brings in the element of consent and takes the transaction out ofthe Doctrine of Eminent Domain, which requires compulsory acquisitionde hors the consent of the person having interest in the property, butthen the question arises, whether the impugned provisions involves aperson having Constitutional Right under Article 300A, having tosacrifice his Right as condition to obtain the development permit. ThisCourt has declared the right of person to construct building, is rightunder the law, viz., the Statute, which governs the same. In the saidsense, it becomes Statutory Right. The right is hedged in necessarilywith limitations and conditions. Now, superimposing the mandate of Article300A, the question arises, whether the instant case involves employmentof an unconstitutional condition. In Ahmedabad St. Xavier’s CollegeSociety v. State of Gujarat68, Justice Mathew while dealing with thecontentof the right guaranteed under Article 30(1) in regard to recognitionor affiliation held inter alia as follows:

“158. The doctrine of “unconstitutional condition” means anystipulation imposed upon the grant of governmental privilegewhich in effect requires the recipient of the privilege to relinquishsome constitutional right. This doctrine takes for granted that ‘thepetitioner has no right to be policeman’ but it emphasizes theright he is conceded to possess by reason of an explicit provisionof the Constitution, namely, his right “to talk politics”. The major

requirement of the doctrine is that the person complaining of thecondition must demonstrate that it is unreasonable in the specialsense that it takes away or abridges the exercise of rightprotected by an explicit provision of the Constitution (see WilliamW. Van Alstyne: ”The Demise of the Right-Privilege Distinctionin Constitutional Law” [81 Harv Law Rev 1439]).”

156. In case involving exercise of power to terminate service ofa permanent employee of public/semi government undertaking or statutorycorporations only by giving month’s notice, this Court inter alia held inDelhi Transport Corpn. v. D.T.C. Mazdoor Congress69 as follows:

283. The problem also could be broached from the angle whetherthe State can impose unconstitutional conditions as part of thecontract or statute or rule etc. In (1959-60) 73 Harvard LawReview, in the Note under the caption ‘Unconstitutional Condition’at pages 1595-96 it is postulated that the State is devoid of powerto impose unconstitutional conditions in the contract that the powerto withhold largesse has been asserted by the State in four areasi.e. (1) regulating the right to engage in certain activities; (2)administration of government welfare programme; (3) governmentemployment; and (4) procurement of contracts. It was furtheradumberated at pages 1602-03 thus:

“The sovereign’s constitutional authority to choose those withwhom it will contract for goods and services is in effect apower to withhold the benefits to be derived from economicdealings with the government. As government activity in theeconomic sphere increases, the contracting power enables theFgovernment to control many hitherto unregulated activities ofcontracting parties through the imposition of conditions. Thus,regarding the government as private entrepreneur threatensto impair constitutional rights…. The government, unlike aprivate individual, is limited in its ability to contract by theConstitution. The federal contracting power is based upon theGConstitution’s authorisation of these acts ‘necessary andproper’ to the carrying out of the functions which it allocatesto the national government. Unless the objectives sought byterms and conditions in government contracts requiring the

surrender of rights are constitutionally authorised, the conditionsmust fall as ultra vires exercise of power.”

Again at page 1603, it is further emphasised thus:

“When conditions limit the economic benefits to be derivedfrom dealings with the government to those who forego theexercise of constitutional rights, the exclusion of those retainingtheir rights from participation in the enjoyment of these benefitsmay be violative of the prohibition, implicit in the due processclause of Fifth Amendment and explicit in the equal protectionclause of the Fourteenth Amendment against unreasonablediscrimination in the governmental bestow of advantages.Finally, disabling those exercising certain rights from participatingin the advantages to be derived from contractual relations withthe government may be form of penalty lacking in due process.To avoid invalidation for any of the above reasons, it must beshown that the conditions imposed are necessary to securethe legitimate objectives of the contract, ensure its effectiveuse, or protect society from the potential harm which may resultfrom the contractual relationship between the government andthe individual.”157. The Doctrine of Unconstitutional Condition involves personhaving to give-up Constitutional Right as condition to obtain benefithe is otherwise entitled to. While it is in the context of Article 300A, tobe understood that the Right to Property cannot be deprived except inaccordance with law and even as held in K.T. Plantations(supra) thatsuch law must be fair and reasonable,once it is found that there is sucha law, then, even if there is deprivation, it cannot be found that Article300A is violated. We have already found, in fact, that there is nodeprivation in the context of the impugned Rules/Regulations. In theconspectus of the DCR/ Regulation, the nature of the right to propertyavailable under the Constitution as expounded inK.T. Plantations(supra),the seemingly never ending imperative needs of an urban metropolis, theindisputable need to set apart 10% for the recreational purpose and thediscussion we have already made with regard to the effect of the giftand the purpose it serves, we are of the view that the rule/regulationmay not give rise to any room for invoking the doctrine of unconstitutionalcondition.We must continue to remain alive to the vital dimension whichwe have already indicated that the impugned provision essentially pertains

Ato what can be described as purely commercial projects though it islinked with property rights. In other words, particularly from the standpoint of invoking the doctrine of unconstitutional condition, the distinctionbetween the person putting up residential building and the proponent ofa complex, commercial project in metropolis cannot be lost sight of. Atany rate, we cannot in the conspectus of the Rule/Regulation and theBsalutary purpose, it seeks to achieve hold the requirement as an“unreasonable condition in special sense”.[See para 155]

158. The case of the CMDA is that in view of the benefits whichaccrue, it could be case of nil compensation. The distinction betweennil compensation and no compensation has been laid down to be that inCthe former it is permissible on the basis that it becomes liable to dischargethe liability in regard to the person/property. In the context of the rule/regulation, we would not think that there would be violation of Article300A on the basis of it being deprivation of property involving breachof mandate to pay compensation. It must be at once noticed that whatDis involved is the need to execute gift.By its very nature, in the case ofa gift, there cannot be any valuable consideration. If compensation is tobe paid then it would cease to be gift. Having regard to the discussionwe have made regarding the validity of the rule/regulation otherwise,we do not think that execution of the gift which we have foundtransformed the donee not as the absolute owner but as trustee wouldErequire having regard to the salutary purpose, the need to paycompensation.It may not be case where the respondent dischargesany liability as such. It is another matter that the project proponent standsto make considerable profit as result of the permission granted.

159. In case there is no requirement to execute gift of OSRFarea in terms of Pandit Chetram Vashishta (supra), the projectproponent/owner would remain in the position of trustee. As trusteein law is the legal owner, and therefore this being the position in law, hemay not be disabled from transferring the property in any manner.However, as he is under obligation as trustee to maintain the propertyGas OSR, he cannot defeat the obligation by transferring the same and itcan lead to abuse. No doubt, he would be prohibited from raising anyconstruction 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 atrustee, could be said to be the power to exclude ‘others’ from the OSRarea. The attribute of ownership of property consisting of the power toHexclude others may continue with the project proponent in the absenceof gift. Now, interestingly, this again would depend upon theinterpretation of the words ‘communal and recreational purpose’. Thisis for the reason that if the OSR area can be accessed by members ofthe general public as contended by the respondents, then, the projectproponent cannot possibly have the right of an owner to exclude them.Equally, even with the requirement to maintain the OSR area in theabsence of the demand for gift, it could be said that the sole project ofproponent could have the right to remain in possession. Another dimensionmay be noticed. What would happen if the OSR area is acquired in theexercise of the power of eminent domain for the public purpose? Whowould be entitled to the compensation, if gift is made in terms of theimpugned Rule/Regulation? We would think that since the interpretationwe are placing is that the gift under the Rule/Regulation is intended onlyto ensure due compliance with the requirement of the OSR area beingeffected and to prevent misuse by the owner, as between the originalowner and the local authority,it would be the original owner, who may beentitled to the compensation.

160. The time, therefore, is ripe to deal with the meaning of thewords open space reservation of land for communal and recreationalpurposes.

161. Group development falls under Rule 19(b)(2) of the DCR.Group development is defined as accommodation for residential orcommercial or combination of such activities housed in two or moreblocks of buildings in particular site irrespective of whether thesestructures are interconnected or not. Rule 19(b)(ii) proceeded to providefor the minimum width of the public road on which the site abuts. Thevehicular access way including passage if any within the site was tohave minimum width. It also referred to set back requirements.Parkingstandardswere prescribed [See 19(b)(ii)(v)]. It is, thereafter, that theopen space requirement was provided by declaring that reservation ofland for communal and recreational purposes shall be as follows and itmust at this juncture be noticed that there is an explanation,which readsas follows: -

“Explanation: -

(1) For the purposes of this rules, existing development defined asone “Where the extent of ground area covered by structures

[2023] 9 S.C.R.

Aalready existing (prior to application) in 25% and above of thetotal site area”.

(2) In case of existing development where it is difficult to leavethe 10% area as open space for communal / recreational purposes,the Authority reserves the right to collect the market value ofBequivalent land in lieu of the land to be reserved. However, if on afuture date the developer wants to demolish the existing structuresand raise new structures on the site in question, the communaland recreational space shall be reserved, as per rule.

(3) The land so reserved shall be free from any construction byCthe owner or promoter or developer. The land for communal andrecreational purposes shall be restricted at ground level in shapeand location to be specified by the Chennai MetropolitanDevelopment Authority.”

162. In the case of Writ Petition No. 691 of 2015 wherein theDregulation of the year 2008 has been challenged as we have noticedthere is no challenge to Regulation 29(6)(a), which, inter alia, provideshow the land reserved is to be restricted at the ground level. It is truethat there is challenge to Annexure XX, which we have extracted inparagraph 118 of the judgment. But the absence of challenge to Regulation29(6) is fatal.We must proceed on the basis that there is no challenge toEthe 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 bythe owner, promoter or developer, and what is more important, the mannerin which the land is to be provided for communal and recreational purposeis that it is to be restricted at ground level in shape and location to beFspecified by the Chennai Metropolitan Development Authority. Thisprovision has not been expressly challenged. In the absence of achallenge, what is contained in rule and also the like provision in theregulation, the resultant position would be the exact shape and the locationis to be determined by the CMDA.

G163. The problem, however, still persists in the form of the meaningof the words‘communal and recreational purpose’ in the case of sitehaving 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 isto be transferred to the authority or local body designated by the authorityfree of cost through deed. It is further provided that the local bodyHmay provide the residents association or flat owners association for

maintaining such reserved space as park. Significantly, in the case of asite having an extent between 3,000 to 10,000 square metres, the Ruledeclares that public access to the area as earmarked will not be insistedupon. When it comes to the extent of the site with which this Court isconcerned, viz, where the extent of site exceeds 10,000 square metres,the requirement in the Rule, viz., is common to 10 percent of area excludingroad had to be transferred by gift is insisted upon. It is provided that itis obligatory to transfer the reserved 10 percent of the site area. Nocharges 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) inthe case of site having extent between 3,000 square metres to 10,000square metres, the CMDA or the local body may permit the residentsassociation or flat owners association for maintaining the reserved spaceas parks. In the case of site having extent of above 10,000 square metresunder the column ‘reservation’, it is not provided that the flat owners orresidents 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 themaintenanceof such reserved lands by the owner tothe satisfaction of theAuthority or order the owner to transfer the land to the Authorityor any local body designated by it, free of cost, through deed,the Authority as the case may be, reserve the right to decide onentrusting the maintenance work to institution/individual on meritsof the case.

Explanations under DCR 19 (b):-

(1) For Economically Weaker Section group housing, the set backshall be 4.5 metre from the site boundary and the spacing betweenthe blocks shall be minimum of 3 metres. The vehicular accessway within the site shall have minimum width of 4.5 metres.Other stipulations shall be as in rule 19(b) (II) above. But, thisshall be applied only in sites duly declared for Economically WeakerSection housing by Government.

(2) The corridor within the buildings shall be accordance with thestandard prescribed in Annexure XII-A.

(3) In matter of standards other than specified in these rules, thestipulation and the specifications laid down by the Indian StandardsInstitutions shall apply.

A(4) Structures incidental to the main activities such as water-closet,bath and pump room shall not be construed as individual blocksfor the purpose of these rules. But, these structures shall not bepermitted in the prescribed set back spaces.

III (a) Notwithstanding anything mentioned above layouts for groupBhousing, Economically Weaker Section Housing, sites and servicesprojects, slum improvement schemes may be approved, subjectto such conditions as may be stipulated by the Authority.”

164. The impact of Rule 19 (b)(II)(vii) is as follows. It empowersthe CMDA to enforce the maintenance of the reserved areas by theCowner to the satisfaction of the authority or to order the owner to transferthe land to the authority or any local body free of cost through deed.The authority also reserves the right to decide on entrusting themaintenance work to institutions/individual on the merits of the case. Itis noteworthy that there is no challenge to Rule 19(b)(II)(vii). It wouldappear that when gift is executed then the duty of maintaining can beDgiven to institution/individual on the merits of the case. This would meanthat even the project proponent or other individual/individuals who mayhave 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 ofEreservation to be made in respect of site having an extent between 3,000to 10,000 square metres is that the reserved area is to be maintained asa park. When it comes to the site having more than 10,000 square meters,the provision that public access for area shall not be insisted upon is notto be found. This means that when it comes to the layout which in theFwisdom and the policy of the Rule Maker, which as we have seen, hasbeen made after the process undergone under the Act, as we havenoticed, and apparently, after hearing objections, if any, and with theapproval of the government that, were large chunk of land be developedfor group development, as defined, and certain percentage, which inthese cases is 10 percent or 1/10[th] of the total layout excluding roads isGto be set apart as the OSR area. The word park is not in any wayinconsistent with recreational purpose. It does not require muchimagination to conclude that in an urban area and with site being inexcess of 10,000 square metres (nearly two and half acres) wheregroup development takes place,there would be large number of peopleHwho would occupy the said area. Group development can be substantiallyconflated with flats and apartments comprised in two or more blocks orbuildings as required to satisfy the requirement of group developmentunder Rule 19(b)(II). large number of people would occupy the saidland.This is understandable having regard to the size of the layout andthe definition of group building. Planned development, particularly, whenit is informed by deep vision about the future does call for an expansiveapproach. Congestion in urban areas is foreseen certainty. Therequirement for lung space and that too the need for the same beingavailable in the close vicinity of the area of residents is not difficult toconjure. Planned development has considerable deal to do with thequality of the lives of the residents in an urban area, as can be perceivedfrom provision made for aspects relating to parking, setback, roads, allof which do apparently make inroads into absolute right of property ofdeveloper. They are indispensable necessities from the standpoint of thetown planner as much as it is for the residents in an urban area. Whilewe are conscious of the fact that the DCR did contemplate open spacezones which must be understood as parks, etc., as one of the zones,theidea,apparently, was to avoid concentration and the consequent need toundertake avoidable travel for the residents of an area to the site of theopen space zone.An open space requirement is stipulated world overbased on very formidable considerations. The fact that no constructionis 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 steady supply of much needed oxygen. Providing otherrecreational measures, which are at the heart of quality of person’slife, in keeping with modern demands, are critical elements of legitimatepublic interest.

166. Having made these observations, we pass on to considerfurther aspects. In the case of Vasanth Apartments, i.e., Civil AppealNos. 1890-1891 of 2010, the developer undoubtedly executed gift deed.A contention is taken on behalf of the respondents including Shri JayantMuthRaj that the donor has gifted the land for roads and parks from theperusal of thegift deed. It would appear that the donor has indeed giftedthe land in question and provided that the donee may peacefully andquietly enjoy the said land ‘of roads/parks’ free from all encumbrances.At this juncture, we bear in mind the actual terms of the gift deedexecuted in the case of Association of Vasanth Apartments, which wehave adverted to in paragraph-47 of this Judgment.

A167. The Division Bench has considered the report of the AdvocateCommissioner also to find that there existed kachha pathway and thatis road which is being used by thousands in terms of the gift deedwhich came into effect. It is their contention that even if it is found bythis Court that in terms of the OSR requirement of 10 percent of theland, it can only be used as open space for communal and recreationalBpurpose and not for road, this Court may not interfere.

168. Firstly, we must consider the ambit of the words communaland recreational purpose and find whether it could take in public roadfor being used by members of the public generally. Equally, we mustconsider whether the word communal is capable of extending the benefitCof the open space requirement to the members of the general public orwhether it must be confined to the beneficiaries of the group development.In other words, if the word communal is interpreted as the community ofthe beneficiaries of the group development, then it must be understoodas meaning that members of the general public cannot be permitted toDpartake of the benefits flowing from the open space reservation. Forinstance, if adjoining the site and as indicated in the explanation in ashape and location determined by the CMDA, park is constructed. Byuse of the word communal and interpreting it to mean communitywhich is larger than the mere beneficiaries of the group development assuch, then the benefit of the open space may become available to theEgeneral public in the nearby area. This would have the advantage offacilitating the members of the public avoiding travelling to the areaswhere there is recreation or open space, as for instance, under the zoningrequirements. Undoubtedly, the absence of any construction which isindispensable to make it an open space area and which is insisted uponFalso will provide large chunk of space for all the people in the area.Making available the facilities on the basis that when development ispermitted, it brings in its train certain responsibilities for the projectproponents which can be appreciated as legitimate State interests, isone way of approaching the issue. It must be understood in all thesecases that setting apart of 10 percent of the area is actually as such notGobjected to. This means all parties are agreed that the law providing forsetting apart of 10 percent of the total area excluding roads in the caseof group development in excess of 10,000 square metres is legitimateand valid,unless we find favour with the arguments that it is otherwiseconstitutionally infirm.We have already found that the provision does notHoffend Article 14 on the ground that it represents species of class

legislation. We are unable to also find that the provision is manifestlyarbitrary. If in other words, there is no other basis to find the impugnedrule vulnerable, we can safely proceed to hold that the requirement ofOSR is not unjustified. We have noticed the stand of the two appellantsand the writ petitioners also in this regard. We find that it is their standthat they are prepared to maintain the 10 percent area as OSR. What isobjected is to the execution of the gift deed and allowing the propertyrights to change hands.This is apart from the objection to the chosen sitebeing 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 thegift in the said case could be supported, the mere resolution was notsufficient. The position still was found to be that the original owner wouldcontinue to be trustee. He cannot transfer or change the nature of theproperty. In fact, in the decision reported inVirender Gaur(supra), thisCourt discountenanced conversion of what was an OSR area into landon which construction though for what was projected as laudable objectwas carried out. We are of the view that bearing in mind the laudableobject the law relating to town planning which has been the very basisfor our reasoning otherwise, we must clarify that what the Rule and theRegulation mandatorily stipulated was the dedication and maintenanceof 10 percent of the area for communal and recreation purposes areaonly. There is inviolable duty on the part of all including the local bodyand the CMDA to ensure that an area which is set apart or purported tobe set apart in terms of the OSR requirement under the Rule/Regulationin question is used only for communal and recreational purpose. Wenotice in, this regard, the complaint of Ms. V. Mohana, learned SeniorCounsel, as indeed the other counsel that only lip service is being paid tothe projected sublime object of maintaining OSR. This cannot be permitted.

170. Unrelentingly persevering is the aspect relating to the contoursof 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 havinga size of 3,000 square metres to 10,000 square metres, the law giver hasprovided 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) providingfor plot size in excess of 10,000 square metres, it is apparent that theaccess of the members of the general public to the OSR area is to bepermitted. This result is inevitable having regard to the fact that unlike

Athe immediate predecessors, viz., plot size having 3,000 to 10,000 squaremetres wherein it has been indicated that public access shall not beinsisted upon such relaxation is conspicuous by its absence. The wisdomand the value judgement, which underlies permitting or contemplatingpublic access to the OSR area, can be understood only in terms of thedifference in the size. Once wisdom and value judgment are beyondBthe pale of judicial review and scrutiny, and further, it is found that theproject developer and also the beneficiaries of the group developmentare duty-bound for maintaining an OSR area, then the matter goes to thelegitimacy of the public or State interest. The consequences of executingthe gift deed and the underlying purpose have been adverted to by usCalready. In fact, apart from it being legitimate public purpose, even therough proportionality concept in Nollan (supra) would appear to besatisfied.

171. In the case of M/s. Keyaram Hotels Pvt. Ltd., the terms ofthe gift deed provide that the gift is made so that the donee may at allDtimes, peacefully and quietly, possess and enjoy the said portion only asopen space, free from all encumbrances, without any lawful eviction,interruption, claim whatsoever from the donor. perusal of Rule 19(b)(II)(vi) in relation to the extent of size between 3,000 and 10,000square metres contemplates that the reserved area is to maintained as aEpark.

172. We notice that under Rule 61 of the Andhra Pradesh GroupDevelopment Scheme, sub-Rule (7) reads as follows:

“61(7) Minimum of 10% of site area shall be earmarked fororganised pen space and be utilised as greenery and shall beFprovided over and above the mandatory setbacks at suitablelocation accessible to entire community to the satisfaction of thecompetent authority. Such open space shall be open to sky andshall 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 behanded over to local body at free of cost through registered giftdeed before issue of occupancy certificate. The society /

association may in turn enter into agreement with the local authorityfor utilizing, managing and maintaining the roads and open spaces.In case of any violation of encroachment, the local authority shallsummarily demolish the encroachments and resume back the roadsand 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 1001square meters to 2500 square meters, wherein 15 per cent is to be keptas open space. For an area of 2501 square meters to 10000 squaremeters, 20 per cent has to be kept as open space. In the case of residentialand commercial layout for area above 10000 square meters, ‘25’ percent has to be maintained as open space. There are certain exceptions.The ownership, no doubt, is to vest by deed of conveyance in all theproperty owners on account of whose holdings, the recreational space isassigned. It also appears to provide that the remaining area of recreationalopen space or playground (that is after excluding structures providingfor pavilions, gymnasium, clubhouses, etc.), is to be made accessible toall members as place of recreation, garden or playground.

175. The words ‘communal and recreational purpose’, for whichthe 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 meaning,which would be in keeping with the object of law, enable members ofthe public as well, to gain access when the layout is more than 10000square meters. In this regard even in Pt. Chetram(supra) we recapturethe following:

“6. Reserving any site for any street, open space, park, schooletc. in layout plan is normally public purpose as it is inherent insuch reservation that it shall be used by the public in general. Theeffect of such reservation is that the owner ceases to be legalowner of the land in dispute and he holds the land for the benefitof the society or the public in general. It may result in creating anobligation in nature of trust and may preclude the owner fromtransferring or selling his interest in it. It may be true as held bythe High Court that the interest which is left in the owner is aresiduary interest which may be nothing more than right to holdthis land in trust for the specific purpose specified by the coloniserin the sanctioned layout plan. But the question is, does it entitle

Athe Corporation to claim that the land so specified should betransferred to the authority free of cost. That is not made outfrom any provision in the Act or on any principle of law. …”

176. Rule 61(7) of the Andhra Pradesh Rules in Andhra Pradesh,which we have referred to, is unambiguous that the area used asB‘greenery’ shall be accessible to the ‘entire community’. It is to be securedby means of the gift contemplated in Rule 61(14). While, we cannot besitting in Judgment over the said Rule, we would think that the purport ofthe impugned Rule/Regulation must be understood as persuading theCourt to not place narrow interpretation.

177. In this regard we find reassurance in the view taken by thecourts in the United States even in the presence of the taking clauseunder the 5[th] 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. — municipality canrequire the developer of new subdivision to provide such facilitiesas roads, streets, sewers, and playgrounds as condition to platapproval. In the leading case of Ayres v. City Council requirementthat the subdivider dedicate land for road and street purposes andEleave undeveloped an accompanying area for trees and shrubberywas approved on the theory that since the new subdivision createdthe need for and would specially benefit from the improvements,the developer and ultimate purchasers rather than the entirecommunity should bear the cost of providing them. In caseinvolving required reservation of land for public park the argumentFthat this would be an unconstitutional taking of land was rejectedon the theory that the subdivider would be compensated by theshare of the benefits to the whole community which accrued tohis particular development. The Pennsylvania Supreme Court hastaken contrary view, however. And where the need for aGparticular improvement is general one, not specificallyattributable to the subdivider’s activity, the entire municipality mustbear the cost.”

We would therefore come to the conclusion that the word‘communal’ must be understood as where the layout exceeds 10000Hsq.meters entitling members of the general public also to avail the benefit

of the OSR area. Once, the word ‘communal’ is so understood it furtherfortifies us in our conclusion that there would be no infraction of Article300A or Article 14 as understanding the execution of the gift deed asobligating the donee only to act as trustee to ensure the fulfilment ofthe sublime goal of the law and since the owner/developer would nothave right to exclude others or to claim exclusive right to possessionwhich would be incongruous to recognising the right of the members ofthe general public to access to the OSR area.This discussion furnishesour rationale to uphold the Rule / Regulation and to hold that it canwithstand the challenge based on Article 300A on the basis that properlyappreciated the “so called compelled gift” would be valid. Even proceedingon the basis that challenge to Rule 19(b) would imply challenge tothe Explanation as well, on the reasoning which has appealed to us,namely, about the nature of the right under the Gift Deed as also findingthat the word ‘communal’ is intended to reach the benefit of the OSRarea to the members of the public as well, there would be no merit in thecontention.

THE UPSHOT OF THE ABOVE DISCUSSION:

178. The upshot of the above discussion may be summed-up asfollows:

ABC

I.Rule 19 of the DCR, which is impugned, is statutory innature;

II.Rule 19 is not ultra vires the Act;

III.The impugned Regulation is not ultra vires the Act;

IV.Neither the impugned Rule nor the Regulation violatesArticle 14 of the Constitution of India;

V.The impugned Rule/Regulation does not violate Article 300Aof the Constitution of India;G

VI.The areas covered by the OSR cannot be diverted for anyother purpose. The respondents are duty-bound to ensurethat the area set apart as OSR is stringently utilised onlyfor the purpose in the Rule/Regulation. We direct that no

1164SUPREME COURT REPORTS

Aarea meant for OSR shall be utilised as dumping yards orany other purpose other than as OSR;

VII. As far as Civil Appeal Nos. 1890-1891 of 2010 areconcerned, we are of the view that in view of the fact thatthere appears to have been kachha road, even at theBtime of the gift executed as early as in February, 1994 andit was being used as road by large numbers of membersof the public to reverse the position on the ground, mayproduce great deal of injustice, which we would avoid byresorting to the principle enunciated in the decision of thisCCourt referred to in Taherakhatoon (D) By LRs. v.Salambin Mohammad70. However, if the property giftedis in excess of the area used for the road, we direct that theexcess land shall be used for the purpose of OSR only.Wealso direct that the Authority may consider making availablethe maintenance of the said area to the appellants, namely,DAssociation of Vasanth Apartments Owners, if they areprepared to maintain it in terms of the observations containedin this judgment.

179. Civil Appeals 1890-1891 of 2010 are disposed of. The otherAppeals and the Writ Petition will stand dismissed subject to theEobservations/directions we have made earlier. No order as to costs.

Bibhuti Bhushan Bose(Assisted by : Shubhash Thakur andRahul Rathi, LCRAs)

Appeals and Writ Petition disposed of.