# ASSOCIATION OF VASANTH APARTMENTS' OWNERS v. V. GOPINATH & ORS

- **Citation:** 2023 INSC 123
- **Court:** Supreme Court of India
- **Decided:** 2023-02-13
- **Bench:** K. M. Joseph, Pamidighantam Sri Narasimha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/association-of-vasanth-apartments-owners-v-v-gopinath-ors-37836
- **Pages:** 146

## Headnote

Tamil Nadu Town & Country Planning Act, 1971 - s.39 -
Development Control Rules - Rule 19 - Regulation 29(6) - Chennai
Metropolitan Area - Appellants were owners of certain apartments
situated in a complex which consisted of 12 blocks - Total area of
the layout was more than 10,000 sq. metres - Portion of land was
earmarked in terms of Rule 19 of the Development Control Rules
(DCR) as Open Space Regulation Area (OSR) - Said rule mandates
that 10% of the area of any developmental plan having area 10,000
sq. meter or more should be reserved as open space for communal
and recreational use and that such open space area must be
transferred to the local authority free of cost through a registered
gift deed - Gift deed was executed in favour of Chennai Municipal
Development Authority - However, despite lapse of 12 years of the
gift, the OSR area had not been developed into a park - Writ Petition
filed by apartment owners challenging the vires of the rule 19 of
DCR - Single Judge of High Court disposed of the writ petition by
directing the appellant association to maintain the open space area
as a park with recreational facilities in accordance with the 'DCR'
- Division Bench set aside the judgment passed by the Single Judge
and upheld the validity of the said rule - On appeal, held: It cannot
be said that the impugned rule violates Art.14 on the score that it is
discriminatory - In a challenge to a provision based on
discrimination under Art.14, the burden is on the applicant to lay
clear foundation in pleadings and further to discharge the burden
by making good the case and the court will not lightly enter a finding
of discrimination - Town planning being a complex subject involving
various inputs and value judgments which are intended to ensure
the orderly, visionary and planned development, they require greater
deference from courts - When the layout is above 10,000 square
meters, reservation of 10% for recreational purposes has to be made
[2023] 9 S.C.R. 1019 : 2023 INSC 123
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- The developer must also transfer such reserved space in favour
of the local authority, free of cost, through a registered gift deed
allowing the local authority to maintain the open space area - The
challenge to the Rule, on the basis of Article 300A and, indeed,
Art.14 as well by Association of Vasanth Apartment Owners
Association must fail, as it cannot even be their case that their right
in property was deprived - The appellants never had any proprietary
right in the property to allege deprivation of the same - Even if the
Rule is found bad, there can be no question of voiding the gift at
the appellant's instance - No merit in the contention that Rule 19 of
the DCR or the regulation which is impugned is in anyway ultra
vires of the provision of the Act - It cannot be accepted, in the
context of the Act of the Rules/ Regulations, that, in such a large
project, when the layout is more than 10,000 square metres,
executing a gift deed, which would ensure compliance, would fall
foul of the requirement of either Article 14 or Article 300A of the
Constitution - The developer/owner, remained only a trustee even
without a gift - The provision for setting apart 10 per cent, is
invulnerable - The area will even without a gift remain out of bounds
for the project proponent/owner - The OSR, being an inviolable
requirement, the additional requirement, meant and understood as
a measure to ensure compliance and prevent misuse and or disuse,
must not be understood as deprivation - The gift will not convert
the Local Body into an absolute owner - Instead, in place of the
original owner, continuing as a trustee, the Local Authority becomes
the trustee - The purpose and the nature of the obligation will remain
and haunt both the Local Body as also the original owner - The
Rule/Regulation at any rate also, is a law which sanctions deprivation
even assuming there is deprivation - However, in substance, the
Rule/Regul

## Text

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ASSOCIATION OF VASANTH APARTMENTS' OWNERS
v.
V. GOPINATH & ORS.
(Civil Appeal 1890-91 of 2010)
FEBRUARY 13, 2023
[K. M. JOSEPH AND PAMIDIGHANTAM SRI
NARASIMHA, JJ.]
Tamil Nadu Town & Country Planning Act, 1971 - s.39 -
Development Control Rules - Rule 19 - Regulation 29(6) - Chennai
Metropolitan Area - Appellants were owners of certain apartments
situated in a complex which consisted of 12 blocks - Total area of
the layout was more than 10,000 sq. metres - Portion of land was
earmarked in terms of Rule 19 of the Development Control Rules
(DCR) as Open Space Regulation Area (OSR) - Said rule mandates
that 10% of the area of any developmental plan having area 10,000
sq. meter or more should be reserved as open space for communal
and recreational use and that such open space area must be
transferred to the local authority free of cost through a registered
gift deed - Gift deed was executed in favour of Chennai Municipal
Development Authority - However, despite lapse of 12 years of the
gift, the OSR area had not been developed into a park - Writ Petition
filed by apartment owners challenging the vires of the rule 19 of
DCR - Single Judge of High Court disposed of the writ petition by
directing the appellant association to maintain the open space area
as a park with recreational facilities in accordance with the 'DCR'
- Division Bench set aside the judgment passed by the Single Judge
and upheld the validity of the said rule - On appeal, held: It cannot
be said that the impugned rule violates Art.14 on the score that it is
discriminatory - In a challenge to a provision based on
discrimination under Art.14, the burden is on the applicant to lay
clear foundation in pleadings and further to discharge the burden
by making good the case and the court will not lightly enter a finding
of discrimination - Town planning being a complex subject involving
various inputs and value judgments which are intended to ensure
the orderly, visionary and planned development, they require greater
deference from courts - When the layout is above 10,000 square
meters, reservation of 10% for recreational purposes has to be made
[2023] 9 S.C.R. 1019 : 2023 INSC 123
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- The developer must also transfer such reserved space in favour
of the local authority, free of cost, through a registered gift deed
allowing the local authority to maintain the open space area - The
challenge to the Rule, on the basis of Article 300A and, indeed,
Art.14 as well by Association of Vasanth Apartment Owners
Association must fail, as it cannot even be their case that their right
in property was deprived - The appellants never had any proprietary
right in the property to allege deprivation of the same - Even if the
Rule is found bad, there can be no question of voiding the gift at
the appellant's instance - No merit in the contention that Rule 19 of
the DCR or the regulation which is impugned is in anyway ultra
vires of the provision of the Act - It cannot be accepted, in the
context of the Act of the Rules/ Regulations, that, in such a large
project, when the layout is more than 10,000 square metres,
executing a gift deed, which would ensure compliance, would fall
foul of the requirement of either Article 14 or Article 300A of the
Constitution - The developer/owner, remained only a trustee even
without a gift - The provision for setting apart 10 per cent, is
invulnerable - The area will even without a gift remain out of bounds
for the project proponent/owner - The OSR, being an inviolable
requirement, the additional requirement, meant and understood as
a measure to ensure compliance and prevent misuse and or disuse,
must not be understood as deprivation - The gift will not convert
the Local Body into an absolute owner - Instead, in place of the
original owner, continuing as a trustee, the Local Authority becomes
the trustee - The purpose and the nature of the obligation will remain
and haunt both the Local Body as also the original owner - The
Rule/Regulation at any rate also, is a law which sanctions deprivation
even assuming there is deprivation - However, in substance, the
Rule/Regulation cannot be understood as deprivation under
Art.300A - The areas covered by the OSR cannot be diverted for
any other purpose - The respondents are dutybound to ensure that
the area set apart as OSR is stringently utilised only for the purpose
in the Rule/Regulation - No area meant for OSR shall be utilised as
dumping yards or any other purpose other than as OSR.
Constitution of India, 1950 - Art. 14, 19(1)(f), 19(5), 31 &
300A and Seventh Schedule, List III, Entry 42 - Doctrine of Eminent
Domain - Right To Property - Acquisition and Requisitioning of
Property - Held: Stipulating the conditions that a person who seeks
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to develop his property in a sprawling and ever-growing urban
metropolis which is sought to be regulated by a law relating to a
town planning cannot be viewed as acquisition of land within the
meaning of Entry 42 in List III - A case of compulsory acquisition
would be without there being any volition or consent of a person.
Words and Phrase - word 'communal' - Meaning.
Disposing of the Appeals and Writ Petition, the Court
HELD: 1. This Court must proceed on the basis that
Regulation 29(6) holds good. This means that when the layout is
above 10,000 square meters, reservation of 10 per cent for
recreational purposes has to be made. Regulation 29(6)(a)
stipulates that the land for the communal and recreational
purposes, is to be restricted to the ground level and in a shape
and location to be specified by the Authority. It is also to be
reserved free from any construction. Therefore, the reservation,
which is mandated in terms of Regulation 29(6)(a), and which
cannot be a subject matter of a claim for compensation under
Section 39 of the Act, is to become the subject matter of the gift
deed. The execution of the gift deed, if it is understood as merely
as an insurmountable obstacle for an unscrupulous developer to
get around the laudable mandate to preserve the requisite area
as open space, cannot be rendered vulnerable. Even if, no gifts
were to be executed, the property covered by the open space
requirement, would be put beyond the domain and control of the
developer. Future generations of successors-in-interest or
anyone, who claims under him, will be effectively prevented from
setting up any claim over the area. Viewed in this perspective
and understanding the gift as not conferring ownership of the
area comprised in the open space, the impugned provisions would
pass muster. It would prevent any kind of abuse. It is clear that
the Regulation, properly understood, prescribe for the open space
and merely provides for the facilitation and preservation of the
open space. [Para 122][1129-F-H; 1130-A-C]
2. Stipulating the conditions that a person who seeks to
develop his property in a sprawling and ever-growing urban
metropolis which is sought to be regulated by a law relating to a
town planning cannot be viewed as acquisition of land within the
ASSOCIATION OF VASANTH APARTMENTS' OWNERS v.
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meaning of Entry 42 in List III. Acquisition of land involves, no
doubt, compulsory divesting of the rights of a person in his
property. The impugned provision does not represent a case of
compulsory acquisition of land. A case of compulsory acquisition
would be without there being any volition or consent of a person.
The State purports to divest his rights in property and vest the
rights with the State. The impugned provision does not appear to
be a case of such acquisition as is contemplated in a law which is
made with reference to Entry 42 in List III. [Para 137 &
148][1139-D-E; 1143-D]
3. The very goal of town planning requires nothing less.
Once the goal of executing the gift and the results it produces in
law, are appreciated in the above manner, the apprehensions and
the contentions of the appellant/petitioner lose their sheen. One
is unable to accept, in the context of the Act of the Rules/
Regulations, that, in such a large project, when the layout is more
than 10,000 square metres, executing a gift deed, which would
ensure compliance, would fall foul of the requirement of either
Article 14 or Article 300A. The developer/owner, remained only
a trustee even without a gift. The provision for setting apart 10
per cent, is invulnerable. The area will even without a gift remain
out of bounds for the project proponent/owner. The OSR, being
an inviolable requirement, the additional requirement, meant and
understood as a measure to ensure compliance and prevent misuse
and or disuse, must not be understood as deprivation. The gift
will not convert the Local Body into an absolute owner. Instead,
in place of the original owner, continuing as a trustee, the Local
Authority becomes the trustee. The purpose and the nature of
the obligation will remain and haunt both the Local Body as also
the original owner. The Rule/Regulation at any rate also, is a law
which sanctions deprivation even assuming there is deprivation.
However, in substance, the Rule/Regulation cannot be
understood as deprivation under Article 300A. [Para 154][1148F-H; 1149-A-B]
4. Rule 19(b)(vi) to 19(2)(b)(vi) contemplate that the space
so required is to be transferred to the authority or local body
designated by the authority free of cost through a deed. It is
further provided that the local body may provide the residents
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association or flat owners association for maintaining such
reserved space as park. Significantly, in the case of a site having
an extent between 3,000 to 10,000 square metres, the Rule
declares that public access to the area as earmarked will not be
insisted upon. When it comes to the extent of the site with which
this Court is concerned, viz, where the extent of site exceeds
10,000 square metres, the requirement in the Rule, viz., is
common to 10 per cent of area excluding road had to be
transferred by a gift is insisted upon. It is provided that it is
obligatory to transfer the reserved 10 percent of the site area.
No charges can be accepted in the case of new development or
re-developments. In the case of Rule 19(b)(II)(vi) in the case of
site having extent between 3,000 square metres to 10,000 square
metres, the CMDA or the local body may permit the residents
association or flat owners association for maintaining the reserved
space as parks. In the case of site having extent of above 10,000
square metres under the column 'reservation', it is not provided
that the flat owners or residents association may be permitted to
maintain the reserved park. [Para 163][1154-G-H; 1155-A-D]
5. The impression which gathers on reading the contents
of reservation to be made in respect of site having an extent
between 3,000 to 10,000 square metres is that the reserved area
is to be maintained as a park. When it comes to the site having
more than 10,000 square meters, the provision that public access
for area shall not be insisted upon is not to be found. This means
that when it comes to the layout which in the wisdom and the
policy of the Rule Maker, which has been made after the process
undergone under the Act, and apparently, after hearing objections,
if any, and with the approval of the government that, were a large
chunk of land be developed for group development, as defined,
and certain percentage, which in these cases is 10 per cent or 1/
10th of the total layout excluding roads is to be set apart as the
OSR area. The word park is not in any way inconsistent with
recreational purpose. It does not require much imagination to
conclude that in an urban area and with a site being in excess of
10,000 square metres (nearly two and a half acres) where group
development takes place, there would be a large number of
people who would occupy the said area. Group development can
ASSOCIATION OF VASANTH APARTMENTS' OWNERS v.
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be substantially conflated with flats and apartments comprised in
two or more blocks or buildings as required to satisfy the
requirement of group development under Rule 19(b)(II). A large
number of people would occupy the said land. This is
understandable having regard to the size of the layout and the
definition of group building. Planned development, particularly,
when it is informed by deep vision about the future does call for
an expansive approach. [Para 165][1165-E-H; 1166-A-B]
6. The word 'communal' must be understood as where the
layout exceeds 10000 sq.meters entitling members of the general
public also to avail the benefit of the OSR area. Once, the word
'communal' is so understood it further fortifies the conclusion
that there would be no infraction of Article 300A or Article 14 as
understanding the execution of the gift deed as obligating the
donee only to act as a trustee to ensure the fulfilment of the
sublime goal of the law and since the owner/developer would not
have a right to exclude others or to claim exclusive right to
possession which would be incongruous to recognising the right
of the members of the general public to access to the OSR area.
The Rule / Regulation can withstand the challenge based on Article
300A on the basis that properly appreciated the "so called
compelled gift" would be valid. Even proceeding on the basis
that a challenge to Rule 19(b) would imply a challenge to the
Explanation as well, on the reasoning which has appealed to this
Court, namely, about the nature of the right under the Gift Deed
as also finding that the word 'communal' is intended to reach the
benefit of the OSR area to the members of the public as well,
there would be no merit in the contention. [Para 177][1163-A-D]
Indian Young Lawyers Association (Sabarimala TempleIN RE) v. State of Kerala and others (2019) 11 SCC 1 :
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another v. State of Karnataka (2011) 9 SCC 1 : [2011]
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ASSOCIATION OF VASANTH APARTMENTS' OWNERS v.
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Shankar Shukla and others v. State of Chhattisgarh and
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Case Law Reference
[1994] 5 Suppl. SCR 180
relied on
Para 12
[2006] 3 SCR 396
referred to
Para 18
[1970] 3 SCR 530
referred to
Para 18
ASSOCIATION OF VASANTH APARTMENTS' OWNERS v.
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[1973] 3 SCR 39
referred to
Para 18
[2011] 13 SCR 636
followed
Para 18
[2017] 9 SCR 797
referred to
Para 19
[2018] 9 SCR 561
referred to
Para 19
[2019] 10 SCR 88
referred to
Para 19
[1955] 1 SCR 613
referred to
Para 19
[1955] 2 SCR 22
relied on
Para 19
[2015] 11 SCR 723
referred to
Para 19
[2015] 14 SCR 403
referred to
Para 19
[1955] 2 SCR 603
referred to
Para 21
[2013] 2 SCR 1070
referred to
Para 21
[2004] 2 Suppl. SCR 207
relied on
Para 22
[1991] 3 SCR 102
referred to
Para 22
[2011] 13 SCR 636
referred to
Para 22
[1986] 1 SCR 707
referred to
Para 24
[2011] 15 SCR 877
referred to
Para 25
[2008] 12 SCR 867
referred to
Para 25
[1987] 2 SCR 841
referred to
Para36
[1988] 3 SCR 62
referred to
Para 52
[2000] 1 SCR 1054
referred to
Para 53
[2018] 9 SCR 561
followed
Para 55
[1982] 1 SCR 81
referred to
Para 65
[2006] 7 Suppl. SCR 534
relied on
Para 75
[2007] 6 SCR 799
relied on
Para 76
[1968] 1 SCR 561
referred to
Para 81
[2012] 13 SCR 29
referred to
Para 82
[2013] 1 SCR 996
referred to
Para 83
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[1988] 1 Suppl. SCR 348
referred to
Para 84
[1994] 1 Suppl. SCR 807
relied on
Para 85
[2012] 13 SCR 29
referred to
Para 90
[1969] 3 SCR 341
referred to
Para 93
[1965] 1 SCR 614
referred to
Para 95
[1967] 1 SCR 255
referred to
Para 95
[1985] 3 Suppl. SCR 1025
referred to
Para 98
(1973) 4 SCC 225
followed
Para 99
[2008] 7 SCR 564
referred to
Para 101
(2016) 4 SCC 443
referred to
Para 102
[1994] 1 Suppl. SCR 693
referred to
Para 103
[1994] 6 Suppl. SCR 78
relied on
Para 104
[2016] 9 SCR 373
referred to
Para 110
[2011] 9 SCR 1012
referred to
Para 111
[1982] 1 SCR 1137
relied on
Para 140
[1975] 1 SCR 173
relied on
Para 155
[1990] 1 Suppl. SCR 142
referred to
Para 156
[1999] 1 SCR 901
referred to
Para 178
CIVIL APPELLATE/ORIGINAL JURISDICTION : Civil Appeal
Nos.1890-1891 of 2010.
From the Judgment and Order dated 09.10.2007 of the High Court
of Madras in WA Nos.478 and 1026 of 2007.
With
Civil Appeal Nos.7334 of 2013, 7847-7848 of 2013 And Writ
Petition (Civil) No.591 of 2015.
Amit Anand Tiwari, AAG, Ms. V. Mohana, Gopal
Sankaranarayanan, 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, Pranav
Sachdeva, Jatin Bhardwaj, N. Subramaniyan, K. S. Suresh, Ajay
ASSOCIATION OF VASANTH APARTMENTS' OWNERS v.
V. GOPINATH & ORS.
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Aggarwal, Ms. Aditi Gupta, R. Nedumaran, B. Balaji, Prabhu
Ramasubramanian, Ms. Malavika Jayanth, P. V. Dinesh, M. Yogesh
Kanna, 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.
The Judgment of the Court was delivered by
K. M. JOSEPH, J.
1. Civil Appeal Nos. 1890-91 of 2010 is connected with the other
cases. We are disposing of the Appeals and the Writ Petition filed under
Article 32, having generated certain common issues by the following
common Judgment.
INDEX*
ABOUT THE CASES AND THE PARTIES .................. 3
The case of Association of Vasanth Apartments
Owners ................................................................................. 3
The case of Keyaram Hotels Pvt. Ltd. ........................... 8
CREDAI; Writ Petition No. 591/15 under
Article 32 ...........................................................................19
SUBMISSIONS OF APPELLANTS/PETITIONER ...22
SUBMISSIONS OF SHRI N. SUBRAMANIYAN,
ADVOCATE IN C.A. 7334 OF 2013 [KEYARAM
HOTELS P. LIMITED] ..................................................25
SUBMISSIONS OF MS. V. MOHANA, SENIOR
ADVOCATE ON BEHALF OF THE WRIT
PETITOINERIN WRIT PETITION (CIVIL) NO. 591
OF 2015..............................................................................29
SUBMISSIONS OF SHRI AMIT ANAND TIWARI;
ADDITIONAL A.G. ON BEHALF OF STATE OF
*Pagination in the Index is as per the Original Judgment.
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TAMIL NADU AND 'CMDA'........................................35
SUBMISSIONS MADE BY SRI JAYANTH
MUTHRAJ, SENIOR ADVOCATE RESPONDENTS
NOS. 1 AND 2 IN C.A. NO. 1890 OF 2010. ................44
SUBMISSIONS BY SHRI K.S. SURESH, ADVOCATE
IN CIVIL APPEAL NO.7848 OF 2013 .........................46
ANALYSIS .........................................................................47
THE GIFT DEED IN VASANTH APARTMENTS
CASE ..................................................................................82
WHETHER THE IMPUGNED RULE VIOLATES
ARTICLE 14 OF THE CONSTITUTION? IS
IT DISCRIMINATORY? ................................................86
IS THE IMPUGNED RULE/ REGULATION ULTRA
VIRES? ..............................................................................91
THE IMPACT OF SECTIONS 36 AND 37 .................95
IS THE IMPUGNED RULE/REGULATION BAD
FOR THE REASON THAT IT IS CONTRARY TO
THE MANDATE OF SECTION 39 OF THE
ACT? ............................................................................... 100
THE IMPACT OF SECTIONS 48 TO 55 ................. 108
THE RIGHTS REGIME ............................................... 114
DOWN MEMORY LANE............................................ 134
PT. CHET RAM VASHIST (DEAD) BY LRS.
V. MUNICIPAL CORPORATION OF DELHI ... 134
T. VIJAYALAKSHMI AND OTHERS V. TOWN
PLANNING MEMBER AND ANOTHER ........... 137
PUNE MUNICIPAL CORPORATION AND
ASSOCIATION OF VASANTH APARTMENTS' OWNERS v.
V. GOPINATH & ORS. [K. M. JOSEPH, J.]
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ANOTHERV. PROMOTERS AND BUILDERS
ASSOCIATION AND ANOTHER .........................138
TUKARAM KANA JOSHI AND OTHERS V.
MAHARASHTRA INDUSTRIAL DEVELOPMENT
CORPORATION AND OTHERS ..........................140
JILUBHAI NANBHAI KHACHAR AND OTHERS
V. STATE OF GUJARAT AND ANOTHER..........142
STATE OF GUJARAT V. SHANTILAL MANGALDAS
 AND OTHERS ..........................................................142
NARAYANRAO JAGOBAJI GOWANDE PUBLIC
TRUST V. STATE OF MAHARASHTRA AND
OTHERS.....................................................................148
YOGENDRA PAL AND OTHERS V. MUNICIPALITY,
BATHINDA AND ANOTHER ................................151
VIRENDER GAUR AND OTHERS V. STATE OF
HARYANA AND OTHERS .....................................154
A BRIEF LOOK AT THE FIFTH AMENDMENT
CASES IN THE UNITED STATES .............................176
ENTRY 42 OF LIST III OF THE SEVENTH
SCHEDULE ....................................................................191
THE UPSHOT OF THE ABOVE DISCUSSION ......242
ABOUT THE CASES AND THE PARTIES
The case of Association of Vasanth Apartments Owners
2. Civil Appeal Nos. 1890-91 of 2010 is directed against the
judgment dated 19.10.2007 rendered by a division bench of the High
Court. Writ Appeal No. 478 of 2007 and Writ Appeal No. 1026 of 2007
were appeals generated by the judgment which was rendered by the
learned Single Judge, in Writ Petition No. 4766 of 2007 dated 20.02.2007.
By the same the learned Single Judge allowed the writ petition filed by
the writ petitioners who are the appellants before us. It was inter alia
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their case that they were owners of certain apartments situated in a
complex which consisted of 12 blocks. The total area of the layout was
more than 10,000 sq. metres. A portion of the land was earmarked in
terms of Rule 19 of the Development Control Rules (hereinafter referred
to as 'DCR') as Open Space Regulation area (hereinafter referred to
as 'OSR'). A gift deed was executed in favour of the Chennai
Metropolitan Development Authority on 18.02.1994. However, despite
the lapse of 12 years of the gift, the OSR area had not been developed
into a park. The learned Single Judge disposed of the writ petition by
directing the appellant association to maintain the open space area as a
park with recreational facilities in accordance with the 'DCR'. It was
also made clear that it is always open to the respondents to take action
in accordance with law if there is any violation. It was found to be the
duty of the respondents to maintain such open areas as parks and on
there being afailure on their part, the association of the residents should
be welcomed to do the same subject to the rules.Writ Appeal no. 478 of
2007 was filed by one Shri Gopinath and others. They were persons
who were living in the neighbourhood.Writ Appeal no. 1026 of 2007 was
filed by the Commissioner of the Corporation of Chennai and the Member
Secretary of the Chennai Metropolitan Development Authority
(hereinafter referred to as the 'CMDA'). It was by the judgment
impugned in Civil Appeal Nos. 1890-91 of 2010, the division bench allowed
the Writ Appeals and set aside the judgment of the learned Single Judge.
We notice the following findings and relief granted: -
"17. When the land has been assigned in the year 1994 in favour
of the CMDA by way of the Gift Deed, neither the CMDA nor
the Corporation of Chennai have taken any step to make use of
the land for the interest of public. It is clear from the report filed
by the Advocate-Commissioner and the photographs filed before
us and the other materials available on record that in the OSR
area, there is a katcha road, which is said to have been laid by the
Corporation in the year 2003. Probably because of this katcha
road and the usage of the same as road by all the residents in the
locality, the occupants of the Vasanth Apartments might have felt
disturbance, which would have prompted them to make a
representation to the Corporation to develop a park in the said
area or in the alternative to permit them to develop and maintain a
park for their recreational purpose besides illegally constructing a
compound wall, separating the petrol bunk and the compound wall
ASSOCIATION OF VASANTH APARTMENTS' OWNERS v.
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for about a length of 30 feet separating the unbridged 11 feet
wide open canal upto ground level, so as to close the way once
and for all. At this juncture, it is to be pointed out that the Vasanth
Apartments is divided by a compound wallfrom this area and it is
It also not made clear by the Vasanth Apartments Owners
Association that the said land, which was gifted to the CMDA, is
part of their lay out."
"18. It has also been alleged that under similar circumstances, the
CMDA has permitted all the residents associations in Velachery
to maintain the open spaces as recreational parks in the nearby
area viz. K.G. Apartments, Sai Sarovar etc. Each case has to be
viewed and decided on its own merits and since in the case on
hand, in the interest of thousands of general public residing in and
around the area, the authorities have taken a wise decision to lay
a road to have easy and immediate access to the 100 ft. road, the
same cannot be found fault with."
"19. Further more, it has been brought to our notice that with a
view to form connecting road to 100 feet bye-pass road, the
Chennai Corporation has already addressed the Commissioner,
Hindu Religious and Charitable Endowments Department to
transfer and convey the land belonging to Arulmigu Dhandeeswarar
Temple, Velachery, Chennai in favour of the Corporation and also
obtained the said land to form the connecting road from Hindu
Religious and Charitable Endowments Department."
"20. Thus, though belatedly, now the CMDA and the Corporation
of Chennai are taking all efforts to lay a pucca road in the OSR
area for the convenience of nearly one lakh people in the area
including the residents of Vasanth Apartments. In this city, illfamous for its bumper to bumper traffic and the related hazards
faced by the road users day in and day out, any such step taken
by the civic authorities to ease such bottleneck traffic congestions
should be appreciated and welcomed without allowing anybody
to put spokes in the wheel of development, as /3 has been
attempted on the part of the Association of Vasanth Apartments
Owners in the case on hand.
For all the above reasons, since it has been found that the writ
petitioner has no right or interest, whatsoever, in the OSR land,
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and the prayer in the writ petition itself is misconceived, both these
writ appeals are allowed, thus setting aside the order passed by
the learned single Judge. No costs. Consequently, M.P.No.2 of
2007 in W.A.No.1026 of 2007 is closed."
3. C.A. No. 7847-48 of 2013 arising out of SLP (C)No. 2570925710 of 2011 is again filed by the Association of Vasanth
Apartments'Owners i.e., the appellants in C.A. No. 1890-91 of 2010.
This is a separate litigation though having a bearing on the issue. In this
appeal, Writ Petition No. 23397 of 2007 came to be filed by the appellant
Association challenging the vires of Rule 19 of the 'DCR' under which
a gift had to be executed in respect of the land comprised in 10% as we
shall see in greater detail. The Writ Petition, came to be dismissed by the
division bench by its judgment dated 06.03.2008 and it upheld the validity
of the rule. C.A. No. 7847 of 2013 is filed against the same. A review
filed turned unsuccessful. The order in the review has led to the appeal,
C.A. No. 7848 of 2013.
The case of Keyaram Hotels Pvt. Ltd.
4. Writ Petition no. 11934 of 1995 brings in the next appeal which
is C.A. No. 7334 of 2013. The above writ petition was filed by M/s.
Keyaram Hotel Pvt. Ltd. The challenge in the said writ petition was to
the very same rule.
5. The case set up in short is as follows. The petitioners are the
owners of about 62 grounds. It applied for the sanction of a building plan
in the year 1975 for the construction of a hotel. There is reference to an
earlier writ petition and contempt proceeding. Suffice it to notice, that
planning permission was granted after a delay of 12 years on 08.09.1992.
It is their case that it was faced with certain difficulties in the construction.
A revised plan was submitted and building permission was sought for on
17.08.1994 for the construction of a hotel and hotel annexe building etc.
which consisted of a basement, ground floor and three further floors. By
letter dated 13.09.1994 issued by the second respondent thepetitioner
was to gift the open space reserved area to the Commissioner Corporation
of Madras. We may notice further that the third respondent sent
communication on 01.12.1994. It is stated inter alia that the structure
which existed within the OSR area should be demolished after due sanction
and that the OSR land should be free from any structure and be fenced
by providing separate entrance from the road side. There is no mention
ASSOCIATION OF VASANTH APARTMENTS' OWNERS v.
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about the gift deed. The petitioner sought a month's time to comply with
the conditions in letter dated 01.12.1994. However, the respondent insisted
on compliance with the requirement of executing a gift deed. In the writ
petition, an interim Order dated 13.03.1996 was passed directing
permission after recording undertaking by petitioner to execute gift deed
without prejudice to the rights of the petitioner. Petitioner executed gift
deed on 22.05.1996. Petitioner's revised plan was approved as a group
development on 24.04.1999. The grounds urged against the rule appear
to be as follows:
1.
The rule is an illegal infraction of the petitioner's right to
hold and enjoy the property.
2.
The rule is contrary to the Act and derogatory to the interest
of the land owners.
3.
The stipulation is violative of the civil right vested in every
owner of the property to hold his land and the right to
safeguard public interest cannot be stretched to create a
right and title in favour of a local body in the manner
contemplated by the respondents 1 and 2. It could only
impose a condition to keep such land as open for being
used by the user of such building for their communal or
recreational purpose.
4.
The provision for open space with respect to a special
building is for the communal and recreational purposes of
the people who shared their accommodation in the said
building or otherwise lawfully use the same. It is not intended
to take away the proprietary right of the owners. The
expression of willingness by the petitioner to provide the
stipulated open space reserved for communal and
recreational use of the occupiers will satisfy the public
interest and object of the legislation. Petitioners undertake
to keep 10% of the area to be developed excluding roads
as open space for communal and recreational purpose.
5.
The further condition imposed by the 3rd respondent to
provide exclusive frontage for the said open space area
opening into the main road is unconscionable in law and
contrary to the spirit of the Act. Such stipulation is in
terrorum.
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The relief sought is to declare Rule 19(b)(I)(v) of the DCR
void.That apart sanction is sought without insisting on the rule.
6. We may notice the relevant contents of the counter affidavit
filed by the respondent State. The case set up inter alia is that the CMDA
had carried out necessary survey and prepared the master plan which
lays down policies and programmes which are necessary to regulate the
growth of the area and also to ensure its economic viability, social stability
and sound management for the present and the foreseeable future and
orderly development required the same. The DCR was an integral part
of the master plan. Any person wanting to develop a property within the
Metropolitan area must apply for permission and the CMDA is
empowered to enforce such conditions and restrictions as was necessary
under the rules. It is in public interest. If the ownership of the open OSR
area were to be allowed to vest with the original land owner, then the
concerned owner would have a chance to convert the same for
construction, the area specially reserved as open space, for communal
recreation by suppressing the said fact after passage of time. Hence, it
is necessary that the open space area should be vested with the civil
authorities who are responsible for maintenance of parks and play fields
in the sites. The open space reservation is provided to create lung space
in the city and to have sufficient open space for the use of society.
7. A counter affidavit was filed by the Chief Planner of the CMDA
and the stand taken was to seek support under Section 17 of the Act
read with Section 49. The impugned Rule has been also referred to. As
regards the facts, it is stated as follows: -
"Para 5. petitioner submitted the application on 17 .08.1994 for
planning Permission for the proposed construction of Hotel
Complex consisting of group of two massive blocks of Basement
plus ground plus three floors building and four small buildings at
D.No.l& 2, Harrington road, Chetput, Madras - 31 in R.S.No.355
of Nungambakkam Village. The total floor area of the Hotel
Buildings is about 13,300 M2. The extent of the site is about 10692
M2. In the plan submitted by the petitioner there are certain existing
structures also, which are to be demolished for the construction
of the proposed hotel buildings consisting of basement plus ground
plus three floors, after demolishing the existing structures. In the
plan submitted by the petitioner he has also shown the area to be
reserved and handed over as open space reservation. As the
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proposal of the petitioner consists of group of two blocks of
basement plus ground plus three floors buildings in a site of an
extent of more than 10,000 M2, the same was examined by this
respondent under Development Control Rules 19 (b) (II) (1) to
(V) and (VI) - C related to group development.