| 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 – The developer must also transfer such reserved space in favour of the local authority, free of cost, through a registered gift deed allowing the local authority to maintain the open space area – The challenge to the Rule, on the basis of Article 300A and, indeed, Art.14 as well by Association of Vasanth Apartment Owners Association must fail, as it cannot even be their case that their right in property was deprived – The appellants never had any proprietary right in the property to allege deprivation of the same – Even if the Rule is found bad, there can be no question of voiding the gift at the appellant’s instance – No merit in the contention that Rule 19 of the DCR or the regulation which is impugned is in anyway ultra vires of the provision of the Act – It cannot be accepted, in the context of the Act of the Rules/ Regulations, that, in such a large project, when the layout is more than 10,000 square metres, executing a gift deed, which would ensure compliance, would fall foul of the requirement of either Article 14 or Article 300A of the Constitution – The developer/owner, remained only a trustee even without a gift – The provision for setting apart 10 per cent, is invulnerable – The area will even without a gift remain out of bounds for the project proponent/owner – The OSR, being an inviolable requirement, the additional requirement, meant and understood as a measure to ensure compliance and prevent misuse and or disuse, must not be understood as deprivation – The gift will not convert the Local Body into an absolute owner – Instead, in place of the original owner, continuing as a trustee, the Local Authority becomes the trustee – The purpose and the nature of the obligation will remain and haunt both the Local Body as also the original owner – The Rule/Regulation at any rate also, is a law which sanctions deprivation even assuming there is deprivation – However, in substance, the Rule/Regulation cannot be understood as deprivation under Art.300A – The areas covered by the OSR cannot be diverted for any other purpose – The respondents are dutybound to ensure that the area set apart as OSR is stringently utilised only for the purpose in the Rule/Regulation – No area meant for OSR shall be utilised as dumping yards or any other purpose other than as OSR. Constitution of India, 1950 – Art. 14, 19(1)(f), 19(5), 31 & 300A and Seventh Schedule, List III, Entry 42 – Doctrine of Eminent Domain – Right To Property – Acquisition and Requisitioning of Property – Held: Stipulating the conditions that a person who seeks to develop his property in a sprawling and ever-growing urban metropolis which is sought to be regulated by a law relating to a town planning cannot be viewed as acquisition of land within the meaning of Entry 42 in List III – A case of compulsory acquisition would be without there being any volition or consent of a person. Words and Phrase – word ‘communal’ – Meaning. |
