We are disposing of the Appeals and the Writ Petition filed under Article 32, having generated certain common issues by the following common Judgment. 8 CREDAI; Writ Petition No 591/15 under Article 32……………… 85 IS THE IMPUGNED RULE/ REGULATION BAD FOR THE REASON THAT IT IS CONTRARY TO THE MANDATE OF SECTION 39 OF THE ACT? 137 PUNE MUNICIPAL CORPORATION AND ANOTHER V. 140 JILUBHAI NANBHAI KHACHAR AND OTHERS V. STATE OF HARYANA AND OTHERS 154
A BRIEF LOOK AT THE FIFTH AMENDMENT CASES IN THE UNITED STATES…………………………………………………………………………. 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’.
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’). 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 6 the compound wall for about a length of 30 feet separating the unbridged 11 feet wide open canal upto ground level, so as to close the way once and for all. 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.” 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. 25709-25710 of 2011 is again filed by the Association of Vasanth Apartments’ Owners i.e., the appellants in C.A. 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. 7847 of 2013 is filed against the same.
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. 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. Petitioners undertake to keep 10% of the area to be developed excluding roads as open space for communal and recreational purpose.
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 total floor area of the Hotel Buildings is about 13,300 M2. As the proposal of the petitioner consists of group of two blocks of basement plus ground plus three floors buildings in a site of an extent of more than 10,000 M2, the same was examined by this respondent under Development Control Rules 19 (b) (II) (1) to (V) and (VI) – C related to group development. It is obligatory to reserve the 10 percent of the site area and no charges can be accepted in lieu, m case of new developments or redevelopments ” The second respondent examined the planning permission application of the petitioner and having satisfied with the plans with reference to the Development Control Rules and in View of the fact that the petitioner already earmarked 1070 m2 being the 10 % open Space Reservation area in the plan, sent a letter in No.82/17789/94, dated 13.09.1194 stipulating certain conditions and requesting, the petitioner to, i) pay the following charges a) Development charges: Rs. In the said letter dated 13.09.1994 of the second respondent, one of the condition is that the petitioner should hand over the 10% Open Space Reservation Area to the Commissioner, Corporation of Madras, free of cost, through a registered gift deed, which is a lawful condition under Development Control Rule 19 (b)(II) (VI – C). The second respondent exercised the power vested in it, since the total extent of the petitioner’s site is more than 10,000 m2, the insisting of the requirements of reservation of 10 % Open Space Reservation Area and consequent direction to the petitioner to hand over the same to the third respondent through a registered gift deed as per Development Control Rules 19(b)(II) (VI- C) is well within the jurisdiction of the second respondent.”
The open space enable to make the environment clean and provide fresh air, besides facilitating the ground water recharge in a city where water scarcity is a perennial problem.” Therefore, it is essential that the ownership of the open Space Reservation area should be vested with the civic authority, which is responsible for the maintenance of the parks and play fields in the city. It is also therefore essential that the open Space Reservation Area should be located in a location shape and size which is accessible from the public road not only to the Civic Authority but also to the 17 general public without any restriction. It is submitted that as per the provisions of the Development Control Rule 19 (b) (II) (Vii) this second respondent reserves the right to decide on entrusting the maintenance of OSR area to the petitioner.
Therefore, it is prayed that this Hon’ble Court may be pleased to pass an order by dismissing the writ petition and thus render justice”. The writ petition has been filed by an association which the petitioner describes as the Confederation of the Real Estates Developers Association of India (CREDAI). The relief sought in the writ petition is as follows: “(a) allow the present writ petition and issue a writ of Certiorari quashing Regulation 29(7)(a) (at pg.221 Vol. Transfer of property of the petitioner is sought to be achieved through the impugned regulation. We have heard Shri Gopal Sankaranarayanan, learned Senior Counsel on behalf of the appellants in C.A. We also heard Shri N Subramaniyan, learned counsel on behalf of M/s. We also heard the learned counsel on behalf of the appellants in C.A. We finally heard Shri JayanthMuth Raj, learned Senior Counsel on behalf of the appellants in Writ Appeal no. Even a law made by the legislature could not result in the deprivation of property in the manner which is purported to be achieved through what is described as a rule which in fact is not a statutory rule.
There is also a further case that the rule falls foul of Article 14 for another reason. It is complained that the rule produces classification which is not permitted under Article 14. In respect of layout which is in excess of 3,000 sq. It is without any rational basis, and therefore, 25 attracting the vice of class legislation or unreasonable classification resulting in equals being treated differently, that in respect of projects involving more than 10,000 square metres, the builder is bound to execute a gift in favour of the authority. Harmoniously reading Section 17 and Section 20 and Sections 36 to 39 of the Act, would establish that the reserved lands (made for open spaces) under Section 17(2)(k) and Section 20(1)(k), should be acquired within three years, failing which, the lands shall get reverted to the owner. It is further contended that the impugned Rule contravenes and is inconsistent with the Sections 6(2), 12 and 18 of the Tamil Nadu Apartment Ownership Act, 1994 and, hence, is void. Even 28 the State Legislature has no power to seek transfer of lands to the State free-of-cost. Union of India, Nagpur Improvement Trust and another v. Union of India and others and Indian Young Lawyers Association (Sabarimala Temple-IN RE) v.
Rule, made under the Rule-making power cannot empower the deprivation of any substantive right, which include property. It is further pointed out that Fundamental Right violation is projected in Grounds-L, M and N. The fact that the petitioner is an Association of real estate developers cannot detract from the matter being justiciable and a Constitutional Court should not countenance technical pleas, when Fundamental Rights are at stake.
If gift is comprehended in Section 20(1)(d), it would be in conflict with Section 39. Section 124, under which Regulations can be made, cannot empower any Authority to create or takeaway or deprive a person of their property, by a manner, not provided for under the Act [See Indian Young Lawyers Association and others (Sabarimala Temple-In Re.) ]. The Court is requested to mould the relief appropriately so that the lands so transferred in favour of the Authority may be reverted to the persons directly benefiting therefrom, i.e., the Residents’ Welfare Associations or the residual owners of the developed areas.
Equally, Sections 17, 18 and 20 are invoked along with Section 124, to contend that the DCR is statutory. If challenge to the Rules/Regulations succeeds, it will also render the sanction of the (1955) 2 SCR 603 (2013) 6 SCC 333) 37 development plans, illegal, which will necessitate petitioners applying afresh under the 2019 Rules, whereunder also, the prescription of 10 per cent land being gifted, exists. It is further contended that the Court may bear in mind that the Act replaced the Tamil Nadu Town and Country Planning Act, 1920, which was based on the British Town and Country Planning and Housing Act, 1909. The terms of Section 123(2) are relied upon to contend that the Rules will come into effect even before they are placed before the (1991) 4 SCC 54 39 Legislative Assembly and any modification made by the Assembly, will apply only from the date it is carried out. Chapter IV apply to areas reserved and notified in the master plan itself or to an area in excess of 10 per cent for proposed developed area of 3000 and above square meters or where area reserved is sought to be utilised for purpose not being communal or recreational, or areas, for which, there are other exceptions in the impugned Rules/Regulations. Article 300-A, however, does not prohibit the payment of just compensation when a person is deprived of his property, but the question is whether a person is entitled to get compensation, as a matter of right, in the absence of any stipulation in the statute, depriving him of his property. A law seeking to acquire private property for public purpose cannot say that “no compensation shall be paid”. However, there could be a law awarding “nil” compensation in cases where the State undertakes to discharge the liabilities charged on the property under acquisition and onus is on the Government to establish validity of such law. It is contended that nil compensation, as contemplated in paragraph 192, is applicable as a State undertakes to discharge liability for providing spaces for requirement for recreational and communal use, which is a public purpose. Refuting the contention of the appellants that the land which is transferred can be used only by the members of the society and not by the members of the general public, it is pointed out that since reservation is for communal and recreational purposes, the word ‘communal purpose’ must be understood to mean that it is meant for community at large. 1890-1891 of 2010 is concerned, the complaint of the appellants that the land transferred under the gift was being made use of as a road, which is impermissible, it is contended that it is misleading. The public road was laid as per the terms of the gift. Even assuming the Rule is bad, the gift deed is beyond challenge. The appellants having maintained Writ Petition (Civil) No 4766 of 2007, (2012) 2 SCC 232 (2008) 8 SCC 765 46 based on the gift deed, cannot challenge the validity of the gift deed in the subsequent Writ Petition. 7848 of 2013, (the appeal by Vasanth Apartment Owners Association challenges the order in the review petition) would submit that there is no power to compel gift of land which is not required, reserved or designated. In the case of 48 Keyaram Hotels the pertinent point which must be noticed is that the OSR area is not sought to be so maintained as road but access to the public by having an entrance to the area through a public road is sought to be projected as being contrary to the very concept of OSR meant for communal purpose, if the word ‘communal’ is to be understood as being confined to benefit the interest of the community which in the context of the case is the community of persons who patronise the hotel and who used the facilities provided in the hotel and its premises.
The argument, on the other hand, of the respondents is that the DCR of which the impugned rule, is a part of the Master Plan and there is statutory authority in regard to the making of a Master Plan located in Section 17 of the Act. The Master Plan as contemplated in the Act in regard to a Metropolitan Authority like the CMDA must be viewed on a larger canvass. Reference is made to Writ Petition No 4766 of 2007 and the developments including the order passed by the learned single judge and also writ appeal (writ appeal no. Therefore, the impugned rule 52 authorising the second respondent to maintain and manage the OSR area is unconstitutional. meter or more reserved as open space for communal and recreational purposes to the second respondent or the local body designated by it, free of cost through a registered deed and empowering the second respondent or any authority other than the association of resident owners to maintain the said OSR area of the respective layout, and the gift deed executed and registered as Document No.262 dated 18.02.94 in the 53 office of the 4 respondent pursuant to the impugned rule are unconstitutional and null and void and consequently direct the 3 respondent to enter in their records the members of the petitioner Association as Owners of the said OSR area and pass such further or other orders as this Hon’ble Court may deem fit and proper in the circumstances of the case and thus render justice.
(3) In this article, unless the context otherwise requires, — (a) “law” includes any Ordinance, order, bye- law, rule, regulation, notification, custom or usage having in the territory of India the force of law; 54 (b) “laws in force” includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas. — The expression “law in force” in this article shall include a law passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that it or parts of it may not be then in operation either at all or in particular areas.” 55 34. In Salmond on Jurisprudence 12 Edition, it is profitable to notice the following discussion: Law as the dictate of reason: natural law The idea that in reality law consist of rules in accordance with reason and nature has formed the basis of a variety of natural law theories ranging from classical times to present day(q). 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). First, though this may be a not 57 in appropriate way of describing certain portions of law such as the criminal law, the greater part of a legal system consists of laws which neither command nor forbid things to be come, but which empower people by certain means to achieve certain results: e.g., laws giving citizens the right to vote, laws conferring on lease-holders the right to buy the reversion, laws concerning the sale of property and the making of wills: indeed the bulk of law of contract and of property consists of such power-conferring rules. Xxx xxx xxx But whether we define law as a command or a rule, we must still distinguish commands (or rules) which are law from those which are not.
The distinguishing feature of law has been the subject matter of considerable debate and we may only for the purpose of these cases note that one of the essential features which mark out law from an executive order is that ‘law’ has general application. Administrative, quasi-judicial decisions tend to merge in legislative activity and, conversely, legislative activity tends to fade into and present an appearance of an administrative or quasi-judicial activity. “Legislation is the process of formulating a general rule of conduct without reference to particular cases and usually operating in future; administration is the process of performing particular acts, of issuing particular orders or of making decisions which apply general rules to particular cases.” The object of the rule, the reach of its application, the rights and obligations arising out of it, its intended effect on past, present and future events, its form, the manner of its promulgation are some factors which may help in drawing the line between legislative and non-legislative acts.” 37. A mature system of law normally sets up that type of legal order known as the State, but we cannot say a priori that without the State no law can exist.” 61 38.
It inter alia provided for passage, streets and roads and cul-de-sacs and it is thereunder that in respect of reservation of land for communal and recreational purpose in a layout or sub division that the DCR contemplated inter alia the impugned provisions. These rules to prevail :- (a) In the application of these rules if there is conflict between the requirements under these rules and the requirements under any other Act or rules or by laws in force the requirements under these rules and the provisions of Chennai City Municipal Corporation Act, Tamil Nadu Distrit Municipal Act or Panchayat Act or any other law relating to the local authority for the time being in force or any rule, by law or regulation made under the said act or laws, 63 such provisions which are contrary to these rules shall stand suspended. Section 9 (c)(ii) declares that subject to the provisions of the Act and the rules made under the Act, the functions of the Authority is to inter alia prepare a Master Plan referred to under sub-Section (2) of Section 17.
Section 17(2) reads as follows: 64 “(2) The master plan may purpose or provide for all or any of the following matters, namely: – (a) the manner in which the land in the planning area shall be used; (b) the allotment or reservation of land for residential, commercial, industrial and agricultural purposes and for parks, play- fields and open spaces; (c) the allotment and reservation of land for public buildings, institutions and for civic amenities; (d) the making of provision for national highways, arterial roads, ring roads, major streets, lines of communication including railways, airports and canals; (e) the traffic and transportation pattern and traffic circulation pattern; (f) the major road and street improvements; (g) the areas reserved for future development, expansion and for new housing; (h) the provision for the improvement of areas of bad layout or obsolete development and slum areas and for relocation of population; (i) the amenities, services and utilities; (j) the provision for detailed development of specific areas for housing, shopping, industries and civic amenities and educational and cultural facilities; (k) the control of architectural features, elevation and frontage of buildings and structures; (l) the provision for regulating Section 24 of the Act contemplates that as soon as may be after the Master Plan inter alia has been submitted to the Government, the Government may not later than the time prescribed direct the appropriate Planning Authority to make such modification in the Master Plan inter alia. Section 28 contemplates approval by the Government after consulting the Director of Town and Country Planning of the Plan submitted under Section 26(2). Even according to the petitioner in Association of Vasanth Apartments Owners, the DCR is a part of the Master Plan.
The Master Plan accompanied with the DCR were to hold sway. The Government all throughout plays the pivotal and leading role and it is only with the imprimatur of approval by the Government that the Plan read with the Rules assumed force. It was the contention of the petitioner therein that the charges could be levied only if land of an extent equivalent to 10% of the total area was not reserved for open space and conveyed to the local body. The fact that the said land has been developed into a park and that it is now maintained by the Corporation of Chennai, is beyond any pale of doubt. Chet Ram Vashist vs Municipal Corporation 71 of Delhi 1995 (1) SCC 47, the Supreme Court held that the effect of reserving any site for open space, park etc., in a layout is that the owner ceases to be a legal owner of the land in dispute and that he would hold the said land for the benefit of the society or the public in general. Surat Municipal Corporation MANU/SC/7606/2008 : 2008 (12) SCC 401 , the Supreme Court pointed out that a statute of town planning ex facie is not a statute for acquisition of a property. Hence it is presented as follows: – (i) Section 9C, Chapter II-A of the Tamil Nadu Town and Country Planning (Amendment) Act, 1973 (Tamil Nadu Act No 22 of 1974) prescribed that the Madras Metropolitan Development Authority shall carry out a survey of Madras Metropolitan area and prepare a Master Plan as referred to in Section 17.
(vi) Rule 19 of the Development Control Rules, which comes under Part III, under the heading “General Provisions” deals with layout and subdivision. But when developers started promoting flats, the issue was taken up by the Madras Metropolitan Development Authority with the Government, in a letter dated 22.3.1981. Nilmeters 74 (ii) Between 3000 square meters and 10,000 square meters 10% of the area excluding roads or in the alternative, he/she shall pay the market value of the equivalent land excluding the first 3000 square meters as per the valuation of the registration department.
Nil (ii) Between 3000 square meters and 10,000 square meters 10% of the area excluding roads or in the alternative, he shall pay the market value of the equivalent land excluding the first 3000 square meters as per the valuation of the Registration Department. But the Amendments introduced by the said Government Order covered only layouts of the extent between 3,000 sq.meters and 10,000 sq.meters. Above 10,000 square meters 10 percent of the area excluding roads shall be reserved and this space shall be maintained as Community Recreational Open 77 Space to the satisfaction of the authority or transferred to the authority for maintenance. Above 10,000 square meters 10 percent of the area excluding roads shall be reserved and this space shall be transferred to the authority or to the local body designated by it, free of cost, through a deed.
Therefore, a Draft Second Master Plan 2011 was prepared and submitted to the Government and the Government gave its consent to it under G.O.Ms. No 14819 of 1995 was eventually dismissed on 10.7.2001, the Government returned the Draft Second Master Plan to the CMDA for suitable modifications. As part of the Second Master Plan, a set of Regulations known as “Development Regulations” were issued and they came into force on 2.9.2008. A careful survey of (i) the provisions that existed from 1975 till 2008 under the First Master Plan and the Development Control Rules, and (ii) the provisions that exist with effect from 2008 under the Second Master Plan and the Development Regulations, would show that layouts had always been classified into 3 categories.
Similarly, the Rules have consistently given two options, either to hand over 10% of the area excluding roads or to pay the market value of equivalent land, in so far as layouts whose total extent of land is between 3,000 sq.meters and 10,000 sq.meters. No 940, Housing and Urban Development, dated 8.10.1982, (3) the Development Control Rules as of September, 2004 (hosted in the official website) and the Table contained therein under Rules 19(a) & 19(b), and (4) Regulation 29 and Annexure XX under the Development Regulations of the year 2008.” We are fortified in our conclusion that the Rule in question was statutory in nature. It is undoubtedly true that Section 122 speaks of the power of the Government to make rules. The complaint about there being no rationale in allowing a developer who develops a layout which is between 3000 sq.m.
10% of the total area consisting of 1164 sq. The CMDA was either to maintain the OSR area on its own or to permit the appellant Association to maintain the same. feet, as open regulation space (OSR area) for road and park and gifted the same as per the gift deed. Inbanayagi, Hindu, aged about 40 years, wife of Shri K.S.Dasarathan. Ramasamy Road, Alwarpet, Madras, hereinafter called “THE DONOR” of the one part; 85 and The Madras Metropolitan Development Authority, represented by its Member Secretary, having their office at No.8, Gandhi Irwin Road, “Thalamuthu Natarajan Building”, Egmore, Madras, hereinafter called “THE DONEE” on the other part; WHEREAS the “DONOR” is well sufficiently entitled, free from all encumbrances, the piece of lands for roads and parks hereunder described and intended to be hereby granted conveyed and assigned.
Now this indenture witnesseth that the DONOR doth hereby give, grant, convey and assign in the interest of public unto the DONEE who hereby accepts the same all that lands for roads, parks and other open space situated in S.Nos.379 / 1, (part) and 380 / 4 (part) which is for the use of the public comprised in layout sketch enclosed, within registration subdistrict of Madras South and registration district of Madras Central and more particularly described in the schedule hereunder written and the DONOR doth hereby covenant with the DONEE that the DONOR now does have good right to grant, convey and assign the lands of roads/parks hereby granted conveyed and assigned upto the “DONEE” with the manner aforesaid and that the “DONEE” shall and may at all times hereafter peacefully and quietly 86 possess and enjoy the said lands of roads/parks free from all encumbrances whatsoever without any lawful eviction, interruption, claim, whatsoever, from or by the “DONOR” or any person claiming under or interest for him and further that the “DONOR” and all person having lawfully or equitably claiming any rights on roads/parks or interest with the said premises or any part 23397 of 2007) the only feeble reference, if at all we can understand the same to be one, is ground (F) where what is contended is that the CMDA had no power under the Constitution to usurp the lands of citizens free of cost, that too selectively, under the guise of regulating the development of the area. Therefore, the impugned rule mandating the transfer of OSR area free of cost has no rational basis and hence arbitrary. Municiplaity, Bhatinda, reported in AIR 1994 Supreme Court 2550 [relevant para- 9] has held that the statutory provisions U/S 192(1)(c) of the Punjab Municipal Act’1911 and U/S 203(1)(c) of Haryana Municipal Act’1973 enabling the State to seek transfer of land to the extent of 25% of the private land free of cost while developing a building scheme as violative of Art.14 of the Constitution of India. In regard to the grant of 89 development permit up to 3000 sq. mtr., 10% of the area excluding roads is to be maintained as open space. It is no doubt true that that in cases falling in the said category namely group developments which comprise of an area in excess of 3,000 sq.
It has been contended on behalf of the appellants/writ petitioner that the impugned provisions represent a case of they being ultra vires. But before a rule can have the effect of a statutory provision, two conditions must be fulfilled, namely, ( 1 ) it must conform to the provisions of the statute under which it is framed; and ( 2 ) it must also come within the scope and purview of the rule-making power of the (1988) 2 SCC 351 92 authority framing the rule. and others, the Parent Act conferred power on the Delegate from the Government, to make Rules for carrying out the purpose of the Act, a familiar legislative device. Union of India [(1989) 4 SCC 187 : 1989 SCC (L&S) 569 : AIR 1990 SC] this Court has held: “(A) delegated legislation or a subordinate legislation must conform exactly to the power granted.”
(SCC p. 357, para 14) “[B]efore a rule can have the effect of a statutory provision, two conditions must be fulfilled, namely, ( 1 ) it must conform to the provisions of the statute under which it is framed; and ( 2 ) it must also come within the scope and purview of the rule-making power of the authority framing the rule. [(2000) 3 SCC 40] wherein a three-Judge Bench of this Court held as under: (SCC p. Unni [(2007) 2 SCC 365] (SCC paras 32 to 37) and A.P.
It goes on to provide that any land required, reserved or designated in a regional plan, master plan, detailed development plan, is deemed to be land needed for a public purpose under the Land Acquisition Act. Section 37(2) 97 goes on to provide that if an application is received and if the Government is satisfied that the land is needed for the public purpose, the Government may make a declaration in the manner provided in Section 6 of the Land Acquisition Act 1894. Section 38 allows the period of three years from the date of 98 publication of the notice under Section 26 or Section 27 for the Government to publish the declaration contemplated under Section 37, which, no doubt, amounts to a declaration under Section 6 of the Land Acquisition Act.
Section 38 provides that if the declaration is not made under Section 37 of the Act, the land shall be deemed to be released from such reservation, allotment or designation. in the Judgment, which we have elaborately referred to, the DCR came to be issued along with the first master plan. – (1) Any person whose property is injuriously affected by virtue of any of the provisions contained in any regional plan, master plan, detailed development plan or a new town development plan made under this Act shall, if he prefers a claim for the purpose to the Tribunal with such particulars and within such period as may be prescribed, be entitled to obtain compensation 101 in respect thereof as determined by the Tribunal: Provided that property shall not be deemed to be injuriously affected by reason of any of the provisions inserted in any development plan which impose any condition or restriction in regard to any of the matters specified in clause (f) of sub-section (2) of section 15, or in clauses (k) and (l) of sub-section (2) of section 17 or in clauses (m) and (n) of sub- section (1) of section 20, as the case may be. Should this occur, the affected party becomes entitled to move the Tribunal and seek compensation, which is to be determined by the 102 Tribunal. The proviso to Section 39(1), however, declares that property shall not be deemed to be injuriously affected on account of any development plan, which may impose certain conditions, which are specified in Section 15(2)(f), Section 17(2)(k) and (l) or in Section 20(1)(m) and (n).
Section 17(2)(l), which is also referred to in the proviso, deals with matters relating to zonal regulations, location, the height, the number of storeys, size of buildings and other structures, the size of the yards and other open spaces and the use of buildings, structures and land. Similarly, Section 20, which 104 deals with the contents of the detailed development plan, in sub-Section (1)(m), deals essentially with buildings of archaeological and historical interests, inter alia. The provision actually deals with cases of a person having property, who, with the making of a master plan, inter alia, becomes injuriously affected. Section 69 states that the owner of any property or right which is injuriously affected by the making of a town planning scheme shall be entitled to obtain compensation from the local authority or from any person benefited or partly from the local authority and partly from such person as the Town Planning Officer may in each case determine. It seems obvious that the property or right which is injuriously affected by the making of a town planning scheme is a property or right other than that acquired for the purposes of the scheme. We may refer to clause “fourthly” of Section 23(1) of the Land Acquisition Act, 1894 which requires the court to take into consideration in determining the amount of compensation to be awarded for land acquired under that Act, the damage sustained by the “person interested” “by reason of the acquisition injuriously affecting his other property”. The contention is taken that Sections 48 and 49 do not authorise or enable deprivation of a person’s property sought to be developed free of cost. This would mean that once a development plan which includes a master plan comes into operation which happens on the approval of the government being published under Section 30 of the Act in the Gazette, Development activities must be carried on only in accordance with the terms of the master plan. It is dealing with such a situation, namely, when the master plan, inter alia, has not come into operation and only a notice is published under Section 26, inter alia, that Section 49(2) provides for three matters which are to guide the planning authority in deciding whether permission should be granted or not. Section 50 provides that the permission granted under Section 49 is to remain in force for a period of three years from the date of permission. A person must be interested in the land or building which is so required, reserved or designated in such plan. Section 53 deals with refusal of permission or grant of permission subject to conditions in certain other cases. Section 55 declares that nothing in the Act confers any right to obtain compensation in respect of development made by a person after a notice in the Gazette is published under Section 26, inter alia, without obtaining the permission as required under Section 49. Ltd.) attempt to invite us to pronounce on the validity of the impugned rule on the score that it contravened the provisions of the Tamil Nadu Apartment Ownership Act, 1994 which got presidential assent on 06.04.1995 and came to be notified on 24.04.1995, we do not think that the appellant should be permitted to test the validity of the impugned rule on a ground which was not raised before the High Court.
Whereas the right to possess is a right in the strict sense, these rights are in fact liberties: the owner has a liberty to use the thing, i.e., he is under no duty not to use it, in contrast with others who are under a duty not to use or interfere with it.” We may however notice the following: “This does not mean, however, that an owner whose property is unencumbered has completely unlimited rights. They 115 may also be limited by special provisions of law such as Town & Country planning law, which regulates for social purposes the use which an owner may make office land. Town Planning Member, this Court while dealing with a case arising under the Town Planning Law had this to say: “13. The right to property of a person would include a right to construct a building. Town and country planning involving land development of the cities which are sought to be achieved through the process of land use, zoning plan and regulating building activities must receive due attention of all concerned. For the aforementioned purpose, an endeavour should be made to find out as to whether the statute takes care of public interest in the matter vis–vis the private interest, on the one hand, and the effect of lapse and/or positive inaction on the part of the State and other planning authorities, on the other. The Act being regulatory in nature as by reason thereof the right of an owner of 118 property to use and develop stands restricted, requires strict construction. Regulations contained in such statute must be interpreted in such a manner so as to least interfere with the right to property of the owner of such land. Proceeding on the basis that DCR is law, the question would arise under the said law whether a person can use his land as he chooses.
When Constitution was originally enacted the right to acquire, hold and dispose of property was guaranteed as a fundamental right to citizens of India vide Article 19(1)(f). (2) No property, movable or immovable, including any interest in, or in any company owning, any commercial of industrial undertaking shall be taken possession of or acquired for public purposes under any law authorising the taking of such possession or such acquisition, unless the law provides for 120 compensation for the property taken possession of or acquired and either fixes the amount of the compensation, or specifies the principles on which, and the manner in which, the compensation is to be determined and given. (5) Nothing in clause (2) shall affect— ( a ) the provisions of any existing law other than a law to which the provisions of clause (6) apply, or ( b ) the provisions of any law which the State may hereafter make— ( i ) for the purpose of imposing or levying any tax or penalty, or ( ii ) for the promotion of public health or the prevention of danger to life or property, or ( iii ) in pursuance of any agreement entered into between the Government of the Dominion of India or the Government of India and the Government of any other country, or otherwise, with respect to property declared by law to be evacuee property. This Article 31 came to be amended by Constitution (Fourth Amendment) Act and after the amendment, the amended provision read as follows: The Constitution (Fourth Amendment) Act amended clause (2) and inserted a new clause (2-A). Our attention has been drawn to certain opinions expressed in our earlier decisions that Article 31(2) occupies the field of eminent domain and Article 31(5)( b )( ii ) contains a saving clause with regard to the police powers of the State. Under the police power many restrictions may be imposed and the property may even be destroyed without compensation being given, whereas under the AIR 1968 SC 394 123 power of eminent domain, the property may be appropriated to public use on payment of compensation only. Thus, there is a vital difference, which is recognised by the authorities, between an Act passed with exclusive reference to the police power of the state, without any purpose to take and apply property to public uses, and an Act which not only declares the existence of a nuisance created by the condition of particular property, but in addition, and as the best means of accomplishing the end in view, authorizes the same property to be appropriated by the public.” In Sweet v. Morristown [276 US 182 : 72 LEd 523, 527] an Ordinance establishing a public hack stand on private property without payment of compensation was struck down on the ground that assuming that the creation of the public hack stand would be a proper 124 exercise of the police power it did not follow that the due process clause would not safeguard to the owner just compensation for the use of the property. Indeed, it would be folly not to destroy some building so that an entire town may be saved from the conflagration, as will appear from the following historic incident referred to in Respublica v. If Article 31(5)( b )( ii ) is regarded as a saving clause with regard to the police power of the State, it is clear that under a law designed to promote public health or to prevent danger to life or property the State may in cases of imminent peril destroy or impair the value of private property without any obligation to pay 125 compensation, but it cannot arrogate to itself the power to acquire and appropriate to its own use private property without payment of compensation. While on the issue relating to the aspect of acquisition, a case arose under the Coffee Act in Coffee Board, Karnataka, Bangalore v. Even if there was compulsion there would be a sale as was the position in Vishnu Agencies [(1978) 2 SCR 433 : (1978) 1 SCC 520 : 1978 SCC (Tax) 31 : AIR 1978 SC 449]. Article 31 stands omitted and Article 19(1)(f) also stands deleted by way of the Forty-Fourth Amendment to the Constitution which came into effect from 20.06.1979.
The word ‘property’ used in Article 300- A must be understood in the context in which the sovereign power of eminent domain is exercised by the State and property expropriated. But every public purpose does not fall under Article 300-A nor every exercise of eminent domain an acquisition or taking possession under Article 300-A. In other words, Article 300-A only limits the powers of the State that no person shall be deprived of his property save by authority of law. The principles of eminent domain, as such, are not seen incorporated in Article 300- (2011) 9 SCC 1 130 A, as we see, in Article 30(1-A), as well as in the second proviso to Article 31-A(1) though we can infer those principles in Article 300- A. Deprivation of property within the meaning of Article 300-A, generally speaking, must take place for public purpose or public interest. The concept of eminent domain which applies when a person is deprived of his property postulates that the purpose must be primarily public and not primarily of private interest and merely incidentally beneficial to the public. Article 300-A, however, does not prohibit the payment of just compensation when a person is deprived of his property, but the question is whether a person is entitled to get compensation, as a matter of right, in the absence of any stipulation in the statute, depriving him of his property.
Article 300-A would be equally violated if the provisions of law authorising deprivation of property have not been complied with. Article 300-A enables the State to put restrictions on the right to property by law. Thus in each case, courts will have to examine the scheme of the impugned Act, its object, purpose as also the question whether payment of nil compensation or nominal compensation would make the impugned law unjust, unfair or unreasonable in terms other provisions of the Constitution as indicated above. Statutes are many which though deprive a person of his property, have the protection of Article 30(1-A), Articles 31-A, 31-B, 31-C and hence are immune from challenge under Article 19 or Article 14. Coelho case [(2007) 2 SCC 1] the basic structure was defined in terms of fundamental rights as reflected under Articles 14, 15, 19, 20, 21 and 32. This Court found that Section 313 of the Delhi Municipal Corporation Act, 1957, did not empower the Corporation to claim any property in the manner done. Section 313 requires such owner to submit a layout plan before utilising the land for any of the purposes mentioned in Section 312 and send it to the Commissioner with a layout plan showing the particulars mentioned in clauses ( a ) to ( e ). There is no provision in this chapter or any other provision in the Act which provides that any space reserved for any open space or park shall vest in the Corporation. The resolution of the Standing Committee, therefore, that the area specified in the layout plan for the park and school shall vest in the Corporation free of cost, was not in accordance with law.” It may be true as held by the High Court that the interest which is left in the owner is a residuary interest which may be nothing more than a right to hold this land in trust for the specific purpose specified by the coloniser in the sanctioned layout plan. The said right can only be regulated in terms of a regulatory statute but unless there exists a clear provision the same cannot be taken away. Determination of such a question cannot be postponed far less taken away.
The case of the respondents before this Court was that the matter travelled beyond the powers of the State Government under Section 37(2) of the Act. In Section 37(2), the legislature has not intended to provide for a public hearing before according sanction. Union of India [(1990) 4 SCC 516] and Canara Bank v. Subhash Chandra Yadav [(1988) 2 SCC 351 : 1988 SCC (L&S) 542 : (1988) 7 ATC 296], SCC para 14.)
In other words, DCR have statutory force. Nayudu [(2001) 2 SCC 62], SCC para 69, STO v. [(2002) 2 SCC 188], SCC paras 13 to 24.) Therefore, the High Court again went wrong by invoking the principle of “promissory estoppel” to allow the petition filed by the respondents herein.” TUKARAM KANA JOSHI AND OTHERS V. Under certain circumstances, the police power of the State may be used temporarily, to take possession of property but the present case clearly shows that neither of the said powers have been exercised. The High Court had declared the provisions violative of Article 31(2) of the Constitution. This Court embarked upon elaborate consideration of the provisions of the Act, and it will be profitable, if we advert to paragraph-22, wherein, the Court, after referring to the provisions of Article (2013) Law which deprives a person of property but does not transfer ownership of the property or right to possession of the property to the State or a corporation owned or controlled by the State is not a law for compulsory acquisition or requisition. The phraseology of the Constitutional provision also indicates that compensation need not necessarily be in terms of money, because it expressly provides that the law may specify the principles on which, and the manner in which, compensation is to be determined and “given”. Equally, the Court overruled the decision of this Court in Union of India v. It was relying on these two judgments, inter alia, that this Court found that the High Court had wrongly concluded that in order that compensation based on market value be sufficient for the purpose of Article 31(2), it must be a just equivalent. By the amendment made in Article 31-A certain classes of statutes were placed with retrospective effect outside the purview of attack before the Courts on the ground of infringement of the fundamental rights under Articles 14, 19 and 31, and by the addition of certain Acts in the Ninth Schedule a challenge to those Acts that they infringed any fundamental rights in Part III could not be entertained. The Judgment in Shantilal Mangaldas (supra) has been approved of and followed in the case by a Constitution Bench in Prakash Amichand Shah v. The Court repelled the argument that the decision in Shantilal Mangaldas (supra) was overruled by the Judgment in His Holiness Kesavananda Bharati Sripadagalvaru v.
This is because on the making of a Town Planning Scheme (1973) the value of the plot rises and a part of the benefit which arises out of a unearned rise in prices is (1986) 1 SCC 581 4 SCC 225 147 directed to be contributed towards financing of the scheme which enables the residents in that area to more amenities, better facilities and healthier living conditions. Shantilal Mangaldas [(1969) 1 SCC (2008) 12 SCC 401 148 509 : (1969) 3 SCR 341] opined that when a development is made, the owner of the property gets much more than what he would have got, if the same remained undeveloped in the process as by reason thereof he gets the benefit of living in a developed town having good town planning.” Under such condition, the appellant was to transfer the land and/or primary school open land in the layout free-of-cost and the NIT was free to dispose of such land as per its Rules and Regulations.
Pure Industrial Coke & Chemicals Ltd. [ Indore Vikas Pradhikaran v.
It has also been rightly held by it that after consideration of the whole scheme of the NIT Act, particularly, the provisions under Sections 29 to 70 and 121 of the said Act read with the terms and conditions of the said development agreement entered into between the parties, it is clear that the said development agreement creates reciprocal rights and obligations between the parties with some objects. Further, the High Court has rightly observed that another benefit derived by the appellant Trust from the said development 151 agreement is immediate and reciprocal sanction for the development of the said land with permission for the commercial usage of the same, presuming that there would be no acquisition.” YOGENDRA PAL AND OTHERS V. This Court found that the provision did contain a restriction on the maximum amount of land which could be transferred and also maximum amount of land which could be transferred without payment of compensation. Section 192(c) was contrasted with Section 169 and it was found that the latter provision was confined to use of the land for laying public streets, and what is more, the land could be acquired by paying compensation. There is, therefore, no reason why the landowner whose land is “transferred” for the purpose alone should pay for the increase in the value of his remaining land in terms of the transferred land. What is further, it is problematic and is in the realm of speculation as to whether the appreciation of the value of the remaining property of the transferor landowner will 154 always be equivalent to or more than the value of the land transferred to the Municipal Committee, assuming that the public purpose for which the land is taken over contributes to the increase in the value of the remaining property. The so-called increase in the value of the property may thus prove a liability to those who cannot dispose of their property. It is seen that the open lands, vested in the Municipality, were meant for the public amenity to the residents of the locality to maintain ecology, sanitation, recreation, playground and ventilation purposes.
Therefore, the order passed by the Government and the action taken pursuant thereto by the Municipality would clearly defeat the purpose of the scheme. [See in this regard Chairman, Indore Vikas Pradhikaran (supra), which has discussed this aspect elaborately.] For reasons already given and to follow, we are unable to agree. Indore Municipal Corporation and others, after an elaborate reference to Chairman, Indore Vikas Pradhikaran (supra) and K.T. No doubt, the Court, in the said case also, after referring to Rajiv Sarin and another v. Even otherwise, the Revenue Authority can always make an estimation of possible income on the date of vesting if the property in question had been exploited by the appellants and then calculate compensation on the basis thereof in terms of Sections 18(1)( cc ) and 19(1)
( b ) of the KU ZALR Act.” 112.
In the last sixty years, though the concept of public purpose has been given quite wide interpretation, nevertheless, the “public purpose” remains the most important condition in order to invoke Article 300-A of the Constitution. Under the Indian Constitution, the field of legislation covering claim for compensation on deprivation of one’s property can be traced to Schedule VII List III Entry 42 of the Constitution. It is to be noted that Article 300-A was inserted by the Constitution (Forty-fourth Amendment) Act, 1978 by practically re-inserting Article 31(1) of the Constitution. Therefore, right to property is no longer a fundamental right but a right envisaged and conferred by the Constitution and that also by retaining only Article 31(1) of the Constitution and specifically deleting Article 31(2), as it stood. “29(7) (a) The space set apart for roads (except those which may remain private) and the 10% area reserved for recreational purposes shall be transferred to the Authority or Agency or the Local Body designated by the Authority free of cost through a registered gift deed before the actual approval of the layout under the provisions of the T & CP Act. We must next specifically advert to Regulation 29(6): “29(6) Reservation of land for recreational purposes in a layout or sub’ division for residential, commercial, industrial or combination of such uses shall be as follows. Extent of layout Reservation (1) 163 (2) For the first 3000 square metres Nil Between 3000 10 per cent of the area excluding toads or in the alternative he shall pay the market value of equivalent land and excluding the first square metres 3000 square metres as per the valuation of the registration and 10,000 department. “ANNEXURE XX Reservation of land for community recreational purposes in case of special buildings/ Group Developments/ multi-storeyed building developments (1) The reservation of land for community recreational purposes such as park / playground shall be as given below at gr9und level in a shape and location ‘abutting a public road to be 165 specified by Chennai Metropolitan Development Authority: Extent of site Reservation (a)
In cases of residential developments, the Authority or the local body concerned may permit the Residents Association or Flat Owner’s Association for maintaining such reserved space as park 166 / playground and in such cases where the Authority decides to permit the Resident’s Association or Flat Owner’s Association for maintaining it, direct access from a public road for the reserved area may not be required, and right of access to the Authority or the local body concerned through set back space shall be transferred through a registered gift deed along with the reserved space. (4) In case of additions to existing developments, where it is difficult to leave the 10 per cent area as open space for community recreational purposes, the Authority reserves the right to collect the market value of equivalent land in lieu of the land to be reserved. (5) The Authority reserves the right to enforce the maintenance of such reserved lands by the owner to the satisfaction of the Authority or order the owner to transfer the land to the Authority or any local body designated by it free of cost, through a registered gift deed. From the additional affidavit which we have already noticed, the challenge is limited by the petitioner to the stipulation in Regulation 29(7)(a) so far as the requirement of transferring the space set apart for recreational purposes. For subdivisions the minimum width of the passage /public streets/road on which the site abuts or gains access shall be as required for different uses and types of developments. 170 a) For single plot b) For two to four plots 1.5 metre (ii) When it is intended to serve upto two plots and length of the passage does not exceed 40 metres) 3.0 metres The passage will remain private (iii) When it is intended to serve up to four plots and length of the passage does not exceed 80 metres) 3.6 metres -Do- than 20 plots and / or subject to a maximum 9.0 metres All streets shall become public 171 length of 240 metres (iii) Roads of length more than 240 metres but below 400 metres (iv) Roads of length between 400 metres to 1,000 metres 34.0 metres 18.0 metres All streets shall become public All streets shall become public (v) Roads of length more than 1000 metres 24.0 metres All streets shall become public 29(3) (b) for Industrial Development Description (1) Minimum width of passage (2) Remarks (3) (1) When it is intended to serve only one plot and length of the passage does not exceed 100 metres 5.0 metres The passage will remain private (2) When it is intended to serve two to five plots and the length of the passage does not exceed 120 7.2 metres -Do- 172 metres (3) When it is intended to serve more than 5 plots 12.0 metres The street shall become public. In other words, keeping in mind the preambular portion of Regulation 29 which proclaims that the regulation seeks to provide access to plots by way of roads and private passages creating a hierarchy of roads based on road length, intensity of developments in the area and also provide adequate linkages to the existing roads and proposed 173 roads in the Master Plan and a detailed development plan and to provide proper circulation pattern in the area inter alia, we must arrive at the conclusion that visionary perspective of town planning would require an imaginative full play being given. Circulation of traffic between parts of the area would require the roads being thrown open to the public so that different parts of the metropolitan area can be easily accessed. In regard to the impugned Regulation, it must be borne in mind, as we have already noticed that in the additional affidavit filed by the Writ Petitioner in Writ Petition (C) No 591 of 2015, the challenge in the writ petition has been limited to the latter part of the provision, i.e., the requirement to transfer free-of-cost, through a registered gift deed, the 10 per cent recreational area reserved for recreational purposes only and not the space set apart for roads. 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.
Viewed in this perspective and understanding the gift as not conferring ownership of the area comprised in the open space, we would think that the impugned provisions would pass muster. (Inverse condemnation amounts to proceedings seeking compensation for compulsorily acquiring land without there being any formal proceedings for acquisition). It must be made clear that the Taking Clause is based on the prohibition against the taking of private property for public use without just compensation. Although no precise rule determines when property has been taken, see Kaiser Aetna v. They bore a substantial relationship to the public welfare, and their enactment inflicted no irreparable injury upon the landowner.” 124. In 5:4 Majority Judgment, the Court took the view that the Takings Clause was offended.
Thus, if the Commission attached to the permit some 180 condition that would have protected the public’s ability to see the beach notwithstanding construction of the new house— for example, a height limitation, a width restriction, or a ban on fences—so long as the Commission could have exercised its police power (as we have assumed it could) to forbid construction of the house altogether, imposition of the condition would also be constitutional. Although such a requirement, constituting a permanent grant of continuous access to the property, would have to be considered a taking if it were not attached to a development permit, the Commission’s assumed power to forbid construction of the house in order to protect the public’s view of the beach must surely include the power to condition construction upon some concession by the owner, even a concession of property rights, that serves the same end. The owner had also to dedicate to the city as a pedestrian/bicycle pathway, an additional 15-foot strip of land adjacent to the floodplain. Second, the conditions imposed were not simply a limitation on the use petitioner might make of her own parcel, but a requirement that she deed portions of the property to the city. Petitioner does not quarrel with the city’s authority to exact some forms of dedication as a condition for the grant of a building permit, but challenges the showing made by the city to justify these exactions. In regard to the second condition, viz., dedication for the pedestrian bicycle pathway, the Court held as follows: “[1g, 13] With respect to the pedestrian/bicycle pathway, we have no doubt that the city was correct in finding that the larger retail sales facility proposed by petitioner will increase traffic on the streets of the Central Business District. But on the record before us, the city has not met its burden of demonstrating that the additional number of vehicle and bicycle trips generated by petitioner’s development reasonably relate to the city’s requirement for a dedication of the pedestrian/bicycle pathway easement. Decrying the 185 consequences that may follow from the requirement to make ‘individualised determinations’, the learned Judges found that the questions could be answered under the framework of the existing caselaw.
The level of scrutiny, however, does not approximate the kind of review that would apply if the city had insisted on a surrender of Dolan’s First Amendment rights in exchange for a building permit.” 186 128. Ambler Reality Company, the village of Euclid lay in the form of a parallelogram. Until recent years, urban life was comparatively simple; but, with the great increase and concentration of population, problems have developed, and constantly are developing, which require, and will continue to require, additional restrictions in respect of the use and occupation of private lands in urban communities. To mitigate the environmental effects of his proposal, the petitioner offered to foreclose any possible future development of the approximately 11 acres southern section of his land by deeding to the district a conservation easement on that portion of his property. 1297, 164 L.Ed.2d 156 (2006); Rutan v. 2729, 111 L.Ed.2d 52 (1990) xxxx xxxx xxxx “A second reality of the permitting process is that many proposed land uses threaten to impose costs on the public that dedications of property can offset. As in other unconstitutional conditions cases in which someone refuses to cede a constitutional right in the face of coercive pressure, the impermissible denial of a governmental benefit is a constitutionally cognizable injury.”
In Article 300A, what has been inserted by the same amendment is only the first limb 191 of Article 31, viz., no person shall be deprived of his property save by authority of law. Since we 192 have held that the impugned provision in the case of the rule is law, would not the Rule be a law which provides for deprivation of property, and therefore, there is no violation involved at all. Equally, Article 31, which was also a Fundamental Right in regard to property, including the right to compensation as provided under Article 31(2) stood deleted.
Plantations (supra) was that a person cannot be deprived of his property merely by executive fiat without any specific legal authority or without support of law made by a competent Legislature (See paragraph-168). The State Government cannot while taking recourse to the executive power of the State under Article 162, deprive a person of his property. In Wazir Chand case [AIR 1954 SC 415 : (1955) 1 SCR 408 : 1954 SCJ 600 : 1954 Cri LJ 1029] the police in India seized goods in possession of the petitioner in India at the instance of the police of the State of Jammu & Kashmir. Deprivation of property must take place for public purpose primarily (See paragraph-180). Public purpose must be given an expansive meaning (See paragraph-181). In other words, the right to claim compensation or the obligation to pay, though not expressly included in Article 300-A, it can be inferred in that article and it is for the State to justify its stand on justifiable grounds which may depend upon the legislative policy, object and purpose of the statute and host of other factors.”
Also Read: https://newslaw.in/case-type/criminal/dereliction-of-duty-and-grave-lapses-a-legal-analysis/
Thus in each case, courts will have to examine the scheme of the impugned Act, its object, purpose as also the question whether payment of nil compensation or nominal compensation would make the impugned law unjust, unfair or unreasonable in terms of other provisions of the Constitution as indicated above.” 198 “192. in connection with health, sanitation, zoning regulation, urban planning and so on from the power of taxation, by which the owner of private property is compelled to contribute a portion of it for the public 199 purposes and from the war power, involving the destruction of private property in the course of military operations. What is of interest to this Court in these cases is the observation that eminent domain is to be contrasted with police power, where restrictions are put in public interest, in connection with zoning regulations, urban planning, inter alia, by which the owner of a private property is compelled to contribute a portion of it for public purpose. The acquisition by purchase, exchange or otherwise of any land or other immovable property within the area included in the detailed development plan whether required immediately or not.” In other words, if a plan does provide that right in land or other immovable property may be acquired in terms of a gift which may be executed, it may not involve straining the plain language, and also involve pouring meaning into the width of the expression ‘otherwise’ just as much as it avoids placing a narrow connotation on a word of wide import. The court however drew a distinction between the owner being transformed into the trustee and being prevented from transferring his rights and the local body being vested with the rights of the owner.
At the same time, we must also bear in mind, the Judgment of this Court in Yogendra Pal and others (supra). This Court found merit in the contention that what was involved was actually acquisition and the transfer was not merely for a limited purpose. What is pertinent, however, is that, in the case of the Rule/Regulation impugned, as we have already found, is not a case of exercise of power of eminent domain, and it is not a case of acquisition by means of compulsory exaction of 205 the property. , the petitioner has specifically limited the challenge to the regulation to the requirement of gifting the area comprised in the land for communal and recreational purposes.
In the case of Vasanth Apartments, they object to the land set apart under the gift deed, being used to cater to the members of the public in general, by converting it into a public road. Secondly, the first Writ Petition, filed by the members of the Vasanth Apartment Owners Association, was by drawing support from the gift deed. The challenge to the Rule, on the basis of Article 300A and, indeed, Article 14 as well by Association of Vasanth Apartment Owners Association must fail, as it cannot even be their case that their right in property was deprived. Ltd.) has expressed its willingness for stipulating open space as required for communal and recreation use of the occupiers and lawful uses of the building and it was specifically averred that it would satisfy the public interest. Just as in the case of Pandit Chetram Vashishta (supra), where the developer would be a trustee, we would think that the Rule, if is to be upheld, in the conspectus of the law and bearing in mind the object, the transfer by way of a gift to the donee will be only for the purpose of ensuring that the object of the law is attained, i.e., the property is maintained as OSR. (1) Where any land is held by trustees (not being trustees elected or appointed under any local or private Act of Parliament) upon trust for the purposes of public recreation, the trustees may, in pursuance of a special resolution, transfer the land to any local authority by a free gift absolutely or for a limited term, and, if the local authority accept the gift, they shall hold the land on the trusts and subject to the conditions on and subject to which the trustees held the same, or on such other trusts and subject to such other conditions (so that the land be appropriated to the purposes of public recreation) as may be agreed on between the trustees and the local authority with the approval of the Charity Commission.
The area will even without a gift remain out of bounds for the project proponent/owner. However, we are of the view that, in substance, the Rule/Regulation cannot be understood as deprivation under Article 300A. This Court has declared the right of a person to construct a building, is a right under the law, viz., the Statute, which governs the same. This doctrine takes for granted that ‘the petitioner has no right to be a policeman’ but it emphasizes the right he is conceded to possess by reason of an explicit provision of the Constitution, namely, his right “to talk politics”. In (1959-60) 73 Harvard Law Review, in the Note under the caption ‘Unconstitutional Condition’ at pages 1595-96 it is postulated that the State is devoid of power to impose unconstitutional conditions in the contract that the power to withhold largesse has been asserted by the State in four areas i.e.
Unless the objectives sought by terms and conditions in government contracts requiring the surrender of rights are constitutionally authorised, the conditions must fall as ultra vires exercise of power.” Again at page 1603, it is further emphasised thus: “When conditions limit the economic benefits to be derived from dealings with the government to those who forego the exercise of constitutional rights, the exclusion of those retaining their rights from participation in the enjoyment of these benefits may be violative of the prohibition, implicit in the due process clause of Fifth Amendment and explicit in the equal protection clause of the Fourteenth Amendment against unreasonable discrimination in the governmental bestow of advantages. Plantations (supra) that such law must be fair and reasonable, once it is found that there is such a law, then, even if there is deprivation, it cannot be found that Article 300A is violated. Plantations (supra), the seemingly never ending imperative needs of an urban metropolis, the indisputable need to set apart 10% for the recreational purpose and the discussion we have already made with 218 regard to the effect of the gift and the purpose it serves, we are of the view that the rule/regulation may not give rise to any room for invoking the doctrine of unconstitutional condition. In the context of the rule/regulation, we would not think that there would be violation of Article 300A on the basis of it being a deprivation of property involving breach of a mandate to pay compensation. In case there is no requirement to execute a gift of OSR area in terms of Pandit Chetram Vashishta 220 (supra), the project proponent/owner would remain in the position of a trustee. Equally, even with 221 the requirement to maintain the OSR area in the absence of the demand for a gift, it could be said that the sole project of proponent could have the right to remain in possession.
We would think that since the interpretation we are placing is that the gift under the Rule/Regulation is intended only to ensure due compliance with the requirement of the OSR area being effected and to prevent misuse by the owner, as between the original owner and the local authority, it would be the original owner, who may be entitled to the compensation. It is, thereafter, that the open space requirement was provided by declaring that reservation of land for communal and recreational purposes shall be as follows and it must at this juncture be noticed that there is an explanation, which reads as follows: – “Explanation: – (1) For the purposes of this rules, existing development defined as one “Where the extent of ground area covered by structures already existing (prior to application) in 25% and above of the total site area”. In the case of Writ Petition No 691 of 2015 wherein the regulation of the year 2008 has been challenged as we have noticed there is no challenge to Regulation 29(6)(a), which, inter alia, provides how the land reserved is to be restricted at the ground level. We must proceed on the basis that there is no challenge to the terms of the explanation to Rule 19(b)(II)(vi) which in Clause (iii) provides that the land so reserved shall be free from any construction by the owner, promoter or developer, and what is more important, the manner in which the land is to be provided for communal and recreational purpose 224 is that it is to be restricted at ground level in a shape and location to be specified by the Chennai Metropolitan Development Authority. It will be noticed that in the case of Rule 19(b)(II)(vi) in the case of site having extent between 3,000 square metres to 10,000 square metres, the CMDA or the local body may permit the residents association or flat owners association for maintaining the reserved space as parks.
Explanations under DCR 19 (b):- (1) For Economically Weaker Section group housing, the set back shall be 4.5 metre from the site boundary and the spacing between the blocks shall be a minimum of 3 metres. III (a) Notwithstanding anything mentioned above layouts for group housing, Economically Weaker Section Housing, sites and services projects, slum improvement schemes may be approved, subject to such conditions as may be stipulated by the Authority.” 227 164.
Case Title: ASSOCN. OF VASANTH APPTS. OWNERS Vs. V. GOPINANTH AND ORS. (2023 INSC 123)
Case Number: C.A. No.-001890-001891 / 2010
