Holding

Rule 19(b)(II)(vi) and Regulation 29(7)(a) requiring a 10% open‑space reservation and a compulsory gift deed are valid, statutory, and do not infringe Articles 14 or 300A.

Summary

The Supreme Court upheld the validity of Rule 19(b)(II)(vi) of the Tamil Nadu Development Control Rules and Regulation 29(7)(a), which require that layouts exceeding 10,000 square metres reserve 10% of the area as open space for communal and recreational purposes and transfer that land to the local authority free of cost via a registered gift deed. The Court held that the rule is a statutory provision within the powers granted under the Tamil Nadu Town and Country Planning Act, 1971, and does not violate Article 14 of the Constitution, nor does it amount to deprivation of property under Article 300A. Consequently, the appeals and the writ petition challenging the rule were dismissed.

Issues considered

The rule mandating a compulsory gift deed of 10% open space reservation violates Article 14 (discriminatory classification).
The rule is ultra vires of the Tamil Nadu Town and Country Planning Act, 1971.
The rule amounts to deprivation of property under Article 300A and requires compensation.
The requirement of a compulsory gift deed is invalid as it exceeds the delegated legislative power.
The Development Control Rules have statutory force and are part of the Master Plan.

Legislation cited

Constitution of Indias. 14, s. 19(1)(f), s. 300A, s. 31(1), s. 31(2), s. 31A, s. 31B, s. 31C, s. 4(42)
Land Acquisition Act, 1894s. 36, s. 37, s. 6
Tamil Nadu Apartment Ownership Act, 1994s. 12, s. 18, s. 25, s. 26, s. 6
Tamil Nadu Town & Country Planning Act, 1971s. 122, s. 123, s. 124, s. 17, s. 20, s. 24, s. 26, s. 28, s. 32, s. 33, s. 35, s. 36, s. 37, s. 39, s. 48, s. 49, s. 50, s. 52, s. 53, s. 54, s. 55

Subjects

Open Space ReservationTown PlanningCompulsory Gift DeedArticle 14Article 300AStatutory RuleEminent DomainPublic PurposeDiscriminationRegulatory Law

Judgment

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

ASSOCIATION OF VASANTH APARTMENTS’ OWNERS A
v.
V. GOPINATH & ORS.
(Civil Appeal 1890-91 of 2010)
FEBRUARY 13, 2023 B

[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 C
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 D
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 E
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 F
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 G
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 H
1019
1020 SUPREME COURT REPORTS [2023] 9 S.C.R.

A – 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
B
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
C 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
D
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,
E 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
F
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
G 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
H Property – Held: Stipulating the conditions that a person who seeks
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1021
V. GOPINATH & ORS.

to develop his property in a sprawling and ever-growing urban A
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. B
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) C
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 D
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 E
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 F
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] G
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
H
1022 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 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
B
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.
C 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
D 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
E 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
F 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][1148-
G F-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
H
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1023
V. GOPINATH & ORS.

association or flat owners association for maintaining such A
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
B
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 C
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
D
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 E
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, F
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 G
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
H
1024 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 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,
B
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
C ‘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
D 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
E 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,
F there would be no merit in the contention. [Para 177][1163-A-D]
Indian Young Lawyers Association (Sabarimala Temple-
IN RE) v. State of Kerala and others (2019) 11 SCC 1 :
[2018] 9 SCR 561; K.T. Plantation Private Limited and
another v. State of Karnataka (2011) 9 SCC 1 : [2011]
G 13 SCR 636; His Holiness Kesavananda Bharati
Sripadagalvaru v. State of Kerala and another (1973)
4 SCC 225 - followed.

H
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1025
V. GOPINATH & ORS.

Global Energy Ltd. and another v. Central Electricity A
Regulatory Commission (2009) 15 SCC 570 : [2009] 9
SCR 22; T. Vijayalakshmi v. Town Planning Member
(2006) 8 SCC 502 : [2006] 7 Suppl. SCR 534; Indore
Vikas Pradhikaran v. Pure Industrial Coke & Chemicals
Ltd. (2007) 8 SCC 705: [2007] 6 SCR 799; Jilubhai
B
Nanbhai Khachar and Others v. State of Gujarat and
Another 1995 Supp (1) SCC 596 : [1994] 1 Suppl. SCR
807; Pt. Chet Ram Vashist (dead) by Lrs. v. Municipal
Corporation of Delhi (1995) 1 SCC 47 : [1994] 5 Suppl.
SCR 180; Pune Municipal Corporation and Another v.
Promoters and Builders Association and Another (2004) C
10 SCC 796 : [2004] 2 Suppl. SCR 207; State of
Gujarat v. Shantilal Mangaldas and Others (1969) 1
SCC 509 : [1969] 3 SCR 341; Narayanrao Jagobaji
Gowande Public Trust v. State of Maharashtra and
others (2016) 4 SCC 443; Bishambhar Dayal Chandra
D
Mohan and others v. State of Uttar Pradesh and others
(1982) 1 SCC 39 : [1982] 1 SCR 1137 Bengal Immunity
Company Limited v. State of Bihar and others [1955] 2
SCR 603; Virender Gaur and Others v. State of Haryana
and Others (1995) 2 SCC 577 : [1994] 6 Suppl. SCR
78; Ahmedabad St. Xavier’s College Society v. State of E
Gujarat (1974) 1 SCC 717 : [1975] 1 SCR 173 - relied
on.
Yogendra Pal and Others v. Municipality, Bathinda and
Another (1994) 5 SCC 709 : [1994] 1 Suppl. SCR 693;
State of Tamil Nadu v. P. Krishnamurthy (2006) 4 SCC F
517 : [2006] 3 SCR 396; Rustom Cavasjee Cooper
(Banks Nationalisation) v. Union of India (1970) 1 SCC
248 : [1970] 3 SCR 530; Nagpur Improvement Trust
and another v. Vithal Rao and other (1973) 1 SCC 500
: [1973] 3 SCR 39; Shayara Bano v. Union of India
and others (2017) 9 SCC 1 : [2017] 9 SCR 797; G
Nareshbhai Bhagubhai and others v. Union of India
and others (2019) 15 SCC 1 : [2019] 10 SCR 88;
Behram Khurshid Pesikaka v. State of Bombay [1955]
1 SCR 613; SahuMadho Das and others v. Pandit
Mukand Ram and another [1955] 2 SCR 22; Rajendra H
1026 SUPREME COURT REPORTS [2023] 9 S.C.R.

A Shankar Shukla and others v. State of Chhattisgarh and
others (2015) 10 SCC 400 : [2015] 11 SCR 723; B.K.
Ravichandra and others v. Union of India and others
2020 SCCONLINE SC 950; Lalaram and others v.
Jaipur Development Authority and another (2016) 11
SCC 31 : [2015] 14 SCR 403; State of Jammu & Kashmir
B
v. Lakhwinder Kumar and others (2013) 6 SCC 333 :
[2013] 2 SCR 1070; Pune Municipal Corporation and
another v. Promoters and Builders Association and
another (2004) 10 SCC 796 : [2004] 2 Suppl. SCR 207;
Bangalore Medical Trust v. B.S. Muddappa and others
C (1991) 4 SCC 54 : [1991] 3 SCR 102; Atlas Cycle
Industries Ltd. and others v. State of Haryana (1979) 2
SCC 196 : [1979] 1 SCR 1070; State of Maharashtra
and another v. Basantibai Mohanlal Khetan and others
(1986) 2 SCC 516 : [1986] 1 SCR 707; R.K. Mittal
and others v. State of Uttar Pradesh and others (2012)
D
2 SCC 232 : [2011] 15 SCR 877; New Delhi Municipal
Council and others v. Tanvi Trading and Credit Private
Limited and others (2008) 8 SCC 765 : [2008] 12
SCR 867; Union of India and Another v. Cynamide India
Limited and Another (1987) 2 SCC 720 : [1987] 2
E SCR 841; General Officer Commanding-in-Chief and
another v. Dr. Subhash Chandra Yadav and another
(1988) 2 SCC 351 : [1988] 3 SCR 62; Kunj Behari Lal
Butail and others v. State of H.P. and others (2000) 3
SCC 40 : [2000] 1 SCR 1054; Prakash Amichand Shah
v. State of Gujarat (1981) 3 SCC 508 : [1982] 1
F
SCR 81; Deputy Commissioner and Collector v. Durga
Nath Sarma AIR 1968 SC 394 : [1968] 1 SCR 561;
Tukaram Kana Joshi v. MIDC (2013) 1 SCC 353 :
[2012] 13 SCR 29; Bhimandas Ambwani (Dead)
through LRs v. Delhi Power Company Ltd. 2013 14 SCC
G 195 : [2013] 1 SCR 996; Coffee Board, Karnataka,
Bangalore v. Commissioner of Commercial Taxes,
Karnataka and others (1988) 3 SCC 263: [1988] 1
Suppl. SCR 348; Tukaram Kana Joshi and Others v.
Maharashtra Industrial Development Corporation and
Others (2013) 1 SCC 353 : [2012] 13 SCR 29 ;
H
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1027
V. GOPINATH & ORS.

BhimandasAmbwani (Dead) Through Lrs. v. Delhi Power A
Company Limited (2013) 14 SCC 195 : [2013] 1
SCR 996; P. Vajravelu Mudaliar v. Special Deputy
Collector for Land Acquisition and another [1965] 1
SCR 614; Union of India v. Metal Corporation of India
Ltd. and another [1967] 1 SCR 255; Prakash Amichand
B
Shah v. State of Gujarat and others (1986) 1 SCC 581
: [1985] 3 Suppl. SCR 1025; Babulal Badriprasad
Varma v. Surat Municipal Corporation and others
(2008) 12 SCC 401 : [2008] 7 SCR 564; Ravindra
Ramchandra Waghmare v. Indore Municipal
Corporation and others (2017) 1 SCC 667 : [2016] 9 C
SCR 373; Rajiv Sarin and another v. State of
Uttarakhand others (2011) 8 SCC 708 : [2011] 9
SCR 1012; Delhi Transport Corpn. v. D.T.C. Mazdoor
Congress (1991) Suppl.1 SCC 600 : [1990] 1 Suppl.
SCR 142; Taherakhatoon (D) By LRs. v. Salambin
D
Mohammad 1 (1999) 2 SCC 635:[1999] 1 SCR 901 -
referred to.
M. Krishnasamy v. Member Secretary, Chennai
Metropolitan Development Authority, Gandhi Irwin
Road, Egmore, Chennai-8 (2013) 1 CTC 80 - referred
to. E

James Patrick Nollan v. Calefornia Coastal Commission
483 US 825, 97 L Ed 2d 677; Florance Dolan v. City
of Tigard 512 US 374; Agins v. City of Tiburon 447 US
255 (1980); Village of Euclid v. Ambler Reality Company
272 US 365; Linda Lingle, Governor of Hawaii, et al. F
v. Chevron U.S.A.INC. 544 US 528, 161 L.Ed.2d 876;
Village of Euclid, Ohio Et Al v. Ambler Reality Company
272 US 365 (1926); Coy A.Koontz v. St. Johns River
Water Management District 133 S.Ct. 2586 - referred
to. G
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 H
1028 SUPREME COURT REPORTS [2023] 9 S.C.R.

A [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
B [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
C
[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
D
[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
E
[2008] 12 SCR 867 referred to Para 25
[1987] 2 SCR 841 referred to Para36
[1988] 3 SCR 62 referred to Para 52

F [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
G [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
H
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1029
V. GOPINATH & ORS.

[1988] 1 Suppl. SCR 348 referred to Para 84 A
[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 B
[1967] 1 SCR 255 referred to Para 95
[1985] 3 Suppl. SCR 1025 referred to Para 98
(1973) 4 SCC 225 followed Para 99
C
[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
D
[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
E
[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.
F
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. G
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 H
1030 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 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.
B
The Judgment of the Court was delivered by
K. M. JOSEPH, J.
1. Civil Appeal Nos. 1890-91 of 2010 is connected with the other
cases. We are disposing of the Appeals and the Writ Petition filed under
C Article 32, having generated certain common issues by the following
common Judgment.
INDEX*
ABOUT THE CASES AND THE PARTIES .................. 3
D The case of Association of Vasanth Apartments
Owners ................................................................................. 3
The case of Keyaram Hotels Pvt. Ltd. ........................... 8
CREDAI; Writ Petition No. 591/15 under
E Article 32 ........................................................................... 19
SUBMISSIONS OF APPELLANTS/PETITIONER ... 22
SUBMISSIONS OF SHRI N. SUBRAMANIYAN,
ADVOCATE IN C.A. 7334 OF 2013 [KEYARAM
F HOTELS P. LIMITED] .................................................. 25
SUBMISSIONS OF MS. V. MOHANA, SENIOR
ADVOCATE ON BEHALF OF THE WRIT
PETITOINERIN WRIT PETITION (CIVIL) NO. 591
G
OF 2015. ............................................................................. 29
SUBMISSIONS OF SHRI AMIT ANAND TIWARI;
ADDITIONAL A.G. ON BEHALF OF STATE OF

H *Pagination in the Index is as per the Original Judgment.
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1031
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

TAMIL NADU AND ‘CMDA’........................................ 35 A
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 B
IN CIVIL APPEAL NO.7848 OF 2013 ......................... 46
ANALYSIS ......................................................................... 47
THE GIFT DEED IN VASANTH APARTMENTS
C
CASE .................................................................................. 82
WHETHER THE IMPUGNED RULE VIOLATES
ARTICLE 14 OF THE CONSTITUTION? IS
IT DISCRIMINATORY? ................................................ 86
D
IS THE IMPUGNED RULE/ REGULATION ULTRA
VIRES? .............................................................................. 91
THE IMPACT OF SECTIONS 36 AND 37 ................. 95
IS THE IMPUGNED RULE/REGULATION BAD
E
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 F
THE RIGHTS REGIME ............................................... 114
DOWN MEMORY LANE ............................................ 134
PT. CHET RAM VASHIST (DEAD) BY LRS.
V. MUNICIPAL CORPORATION OF DELHI ... 134 G
T. VIJAYALAKSHMI AND OTHERS V. TOWN
PLANNING MEMBER AND ANOTHER ........... 137
PUNE MUNICIPAL CORPORATION AND
H
1032 SUPREME COURT REPORTS [2023] 9 S.C.R.

A ANOTHERV. PROMOTERS AND BUILDERS
ASSOCIATION AND ANOTHER .........................138
TUKARAM KANA JOSHI AND OTHERS V.
MAHARASHTRA INDUSTRIAL DEVELOPMENT
B CORPORATION AND OTHERS ..........................140
JILUBHAI NANBHAI KHACHAR AND OTHERS
V. STATE OF GUJARAT AND ANOTHER ..........142
STATE OF GUJARAT V. SHANTILAL MANGALDAS
C
AND OTHERS ..........................................................142
NARAYANRAO JAGOBAJI GOWANDE PUBLIC
TRUST V. STATE OF MAHARASHTRA AND
OTHERS .....................................................................148
D
YOGENDRA PAL AND OTHERS V. MUNICIPALITY,
BATHINDA AND ANOTHER ................................151
VIRENDER GAUR AND OTHERS V. STATE OF
HARYANA AND OTHERS .....................................154
E
A BRIEF LOOK AT THE FIFTH AMENDMENT
CASES IN THE UNITED STATES .............................176
ENTRY 42 OF LIST III OF THE SEVENTH

F 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
G 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
H
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1033
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

their case that they were owners of certain apartments situated in a 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
B
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 C
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
D
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. E
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 F
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 G
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 H
1034 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 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
B
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
C 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.”
D “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
E 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
F area for the convenience of nearly one lakh people in the area
including the residents of Vasanth Apartments. In this city, ill-
famous for its bumper to bumper traffic and the related 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
G 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,
H
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1035
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

and the prayer in the writ petition itself is misconceived, both these A
writ appeals are allowed, thus setting aside the order passed by
the learned single Judge. No costs. Consequently, M.P.No.2 of
2007 in W.A.No.1026 of 2007 is closed.”
3. C.A. No. 7847-48 of 2013 arising out of SLP (C)No. 25709-
25710 of 2011 is again filed by the Association of Vasanth B
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 C
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. D

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.
E
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. F
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 G
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
H
1036 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 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
B
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.
C
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
D 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.
E
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
F 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
G 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.
H
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1037
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

The relief sought is to declare Rule 19(b)(I)(v) of the DCR A
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 B
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 C
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 D
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 E
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 F
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 G
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
H
1038 SUPREME COURT REPORTS [2023] 9 S.C.R.

A proposal of the petitioner consists of group of two blocks of
basement plus ground plus three floors buildings in a site of an
extent of more than 10,000 M2, the same was examined by this
respondent under Development Control Rules 19 (b) (II) (1) to
(V) and (VI) - C related to group development. While the
Development Control rule l9(b)(II) (1) to (v) deals with the open
B
spaces to be left around the buildings, distance to be maintained
between the buildings etc, the rule 19(b)(II) (VI-C) prescribes as
following:
“C) SITE EXTENT above 10,000 m2

C 10 percent of the area excluding roads shall be reserved and
this space shall be transferred to the authority or to the local
body designated by it, free of cost, through a deed. It is
obligatory to reserve the 10 percent of the site area and no
charges can be accepted in lieu, m case of new developments
or redevelopments”
D
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
E No.82/17789/94, dated 13.09.1194 stipulating certain conditions
and requesting, the petitioner to,
i) pay the following charges
a) Development charges: Rs. 82,000/-
b) Security Deposit
F
for the building: Rs. 8, 00, 000/-
ii) hand over the 10% Open Space Reservation Area reserved
and shown in the plan to the third respondent through a registered
gift deed.
G The petitioner has not paid the security Deposit, but however
obtained a direction from this Hon’ble Court to accept the Bank
Guarantee towards the security Deposit and furnished the same
to the second respondent along with his consent letter dated
28.02.1995 accepting the conditions stipulated in letter No. 82/
17789 /94, dated 13.09.1994. In the said letter dated 13.09.1994
H
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1039
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

of the second respondent, one of the condition is that the petitioner A
should hand over the 10% Open Space Reservation Area to the
Commissioner, Corporation of Madras, free of cost, through a·
registered gift deed, which is a lawful condition under Development
Control Rule 19 (b)(II) (VI - C). It is respectfully denied that the
petitioner has not made any representation to relax the condition
B
of gifting of the Open Space Reservation Area and the same was
never under the consideration of the second respondent.”
“Para 7. It is submitted that the second respondent has requested
the petitioner to transfer the 10% Open Space Reservation Area
free of cost, through a registered gift deed in favour of the third
respondent as per the provisions of Development Control Rules C
19 (b) (II) (VI - C), under group development regulations and not
as contended by the petitioner under rule 19 (b) (I) (V), which
related to special Buildings. The Development Control Rule 19
(b) (II) (VI - C) is as follows:
“C) SITE EXTENT above 10,000 m2 D
10 percent. of the area excluding roads shall be reserved and
this space shall be transferred to the authority or to the local
body designated by it, free of cost, through a deed. It is
obligatory to reserve the 10 percent of the site area and no
charges can be accepted in lieu, in case of new developments E
or redevelopments”
Explanation: -
(3) The land so reserved shall be free from any construction
by the owner or promoter or developer. The land for communal
and recreational purposes shall be restricted at ground level in F
a shape and location to be specified by the MMDA”
The Development Control Rule is the integral part of the Master
Plan and was framed under section 17 of the Town and Country
Planning Act. The second respondent exercised the power vested
in it, since the total extent of the petitioner’s site is more than G
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.”
H
1040 SUPREME COURT REPORTS [2023] 9 S.C.R.

A “Para 8. The petitioner is challenging the concept of reserving the
10 % area for open space and recreational purposes. This is a
statutory requirement under Development Control Rule 19 (b) (ii)
(vi - c) for all the proposals of group development, where the
extent of the site is more than 10,000 m2. Further the city is fastly
developing and individual houses are being demolished and multi
B
family apartments are constructed in the same site where there
was only one family residing therein earlier. The intense vertical
developments make the city more dense demanding more water,
pollution free air, noise free atmosphere etc. The city is already
over congested and therefore more open spaces have to be created
C wherever new developments or redevelopment takes place. The
open spaces so created serve as long space to the city benefiting
the community at large. The open space enable to make the
environment clean and provide fresh air, besides facilitating the
ground water recharge in a city where water scarcity is a perennial
problem.”
D
“Para 9. The petitioner has also questioned the transfer of open
space reservation in favour of the Madras Corporation. It is
submitted that in practice, the developers take up the development
of properties and construct the buildings providing necessary open
spaces as per Development Control Rules. After completion of
E the construction they sell out the building in portions to various
persons and later the open space reserved become no man’s land
without any care for its maintenance. If the ownership of the
open space reservation for communal and recreational purpose,
suppressing the facts later, after passage of time. Therefore, it is
F essential that the ownership of the open Space Reservation area
should be vested with the civic authority, which is responsible for
the maintenance of the parks and play fields in the city. The civic
authority is maintaining many parks and play grounds such as
Elliot’s Beach Garden, Anna Nagar, Thiru Vi Ka park etc. Which
are maintained very well. It is also therefore essential that the
G 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 general public without any restriction.
Therefore, transferring the OSR area to the Civic body will not
amount to talking away the rights of the property owner and it is
H intended for the benefit of the community at large.”
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1041
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

“Para 10. In the case of the petitioner, it is submitted that the 10 A
% Open Space Reservation Area is very close to his hotel
buildings. Therefore, if the ownership were to be vested with the
petitioner, it is most likely to be misused by the petitioner for Hotel
related activities, rather than allowing it to the use of general public.
It is also likely that over a period of the time the OSR area would
be misused for commercial purposes by the petitioner under the B
guise of improving it.
The petitioner has also expressed that the maintenance of the 10
% Open Space Reservation Area will be done by him. It is
submitted that the entrusting the maintenance of the Open Space
Reservation area is at the discretion of the second and third C
respondents. The development Control Rule 19 (a) (II) (Vii)
prescribes as follows:
“ The authority reserves the right to enforce the maintenance of
such reserved land by the owner to the satisfaction of the Authority
or order the owner to transfer the land to the authority or local
D
body designated by it, free of cost, through a deed, to the Authority
or the local body designated by the authority as case may be,
reserve the right to dedicate on entrusting the maintenance work
to institution / individual o merits of the case.
It is submitted that as per the provisions of the Development
Control Rule 19 (b) (II) (Vii) this second respondent reserves the E
right to decide on entrusting the maintenance of OSR area to the
petitioner. It become the bounden duty of the state Government
to safeguard the interest of the public at large and the state
government have the statutory power and have approved the
development control rules as an integral part of the master plan
F
for the benefit of the public and to enforce it accordingly. Therefore,
the reservation of 10% OSR area in a statutory requirement. Under
the above said circumstances the petitioner is not deprived of
their right of enjoyment of the properly by implementing of the
rules framed under the Town and Country Planning Act. The writ
petition is devoid of merits and the same has to be dismissed in G
limini.
Therefore, it is prayed that this Hon’ble Court may be pleased to
pass an order by dismissing the writ petition and thus render
justice”.
(Emphasis supplied) H
1042 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 8. The Corporation of Madras also filed a counter affidavit. Therein
it was inter alia stated that the OSR land should have access from a
public street as per which the development authority directed the petitioner
to execute the gift deed to the Corporation as it had to be used for
communal and recreation purpose. In the reply affidavit, the petitioner
took the stand that the impugned rule does not fall under Section 17. The
B
OSR under the Act is only an amenity for the benefit of the property
owner. The rule was projected as an executive order falling beyond the
Act. Any misuse could be dealt with under the law.
CREDAI; Writ Petition No. 591/15 under Article 32
C 9. The last of the litigation with which we are concerned is Writ
Petition no. 591 of 2015. This is a writ petition sought to be maintained
under Article 32. The writ petition has been filed by an association which
the petitioner describes as the Confederation of the Real Estates
Developers Association of India (CREDAI).
D 10. This petition is filed under Article 32 of the Constitution of
India. It is filed by a Federation of registered Association claiming to be
an Apex body of the organised union and state real estate developers,
builders across India. In the Additional affidavit filed, it is contended that
the total number of members of Petitioner is 350 and that of Chennai
Chapter is 163 members. The relief sought in the writ petition is as
E follows:
“(a) allow the present writ petition and issue a writ of Certiorari
quashing Regulation 29(7)(a) (at pg.221 Vol. 2) as well as Annexure
XX (at pgs.293-294 Vol. 2) of the Development Regulations for
Chennai Metropolitan Area issued by the Respondent No.2 as
F being ultra vires, unconstitutional and violative of the fundamental
rights of the Petitioner; and”
11. However, in the additional affidavit filed on 8.12.2021, we
may notice paragraph 4.
“4. That, in so far as challenge to Regulation 29(7)(a) in the present
G
writ petition is concerned, the petitioner is restricting its challenge
only to the latter part of the provision i.e., the requirement to
transfer free of cost through a registered gift deed, 10% area
reserved for recreational purposes only and not the space set
apart for roads.”
H
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1043
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

12. We may notice the grounds taken in the writ petition. It is A
contended that by the impugned regulations there is expropriation of the
private property of the petitioner’s members Association. Reliance is
placed on the judgment in Chet Ram Vashist (Dead) by LRs v. Municipal
corporation of Delhi1. Support is drawn from Article 300A. It is sought
to be contended that allowing use of the OSR Area amounts to a blatant
B
exercise of the power of eminent domain. Transfer of property of the
petitioner is sought to be achieved through the impugned regulation. In
fact, in ground (i), it is submitted that expropriation of land is possible at
best by way of plenary legislation and the impugned regulation not being
such a legislation, it is vulnerable. The impugned regulation is contrary to
the Act. The Act regulates the land use. The authorities under the Act C
cannot change the user of a land. In other words, the point is that allowing
use of area meant for recreational purpose by the members of the general
public is expropriatory and contrary to the Act. It is also contended that
the impugned regulation is unreasonable and disproportionate.
13. We have heard Shri Gopal Sankaranarayanan, learned Senior D
Counsel on behalf of the appellants in C.A. No. 7847 of 2013. We also
heard Shri N Subramaniyan, learned counsel on behalf of M/s. Keyaram
Hotel Pvt. Ltd. (C.A. No. 7334 of 2013). We further heard Smt. V.
Mohana learned senior counsel on behalf of the writ petitioner (writ
petition no. 591 of 2015). We also heard the learned counsel on behalf of
the appellants in C.A. No. 1890-91 of 2010. We further heard the learned E
counsel Shri K.S. Suresh on behalf of Association of Vasanth
Apartments’ Owners which has in C.A. No. 7848 of 2013 challenged
the judgment rejecting the review petition filed in the writ petition
unsuccessfully challenging the rule.
14. We heard Shri Sanjay R. Hegde learned senior counsel on F
behalf of the corporation of Chennai and heard Shri Amit Anand Tiwari,
AAG on behalf of the Government of Tamil Nâdu and also the CMDA.
We finally heard Shri JayanthMuth Raj, learned Senior Counsel on behalf
of the appellants in Writ Appeal no. 478 of 2007 who are the persons
residing in the area and whose writ appeal stood allowed by the High
G
Court.
SUBMISSIONS OF APPELLANTS/PETITIONER
15. In Civil Appeal Nos. 7847 of 2013, Shri Gopal
Sankaranarayanan would contend that a compelled gift attracted the
1
(1995) 1 SCC 47 H
1044 SUPREME COURT REPORTS [2023] 9 S.C.R.

A wrath of Article 300A of the Constitution. There was clearly deprivation
of property. It was without the authority of law. It was without the
authority of law because ‘DCR’ was not statutory in nature, having
been made by the CMDA without any provision enabling it to make
statutory rules. The power to make rules was vested with the State
Government under Section 122 of the Tamil Nadu Town & Country
B
Planning Act, 1971 (hereinafter referred to as the ‘Act’). Section 9C
relied upon by the respondents did not clothe the authority with power to
make rules. Equally,Section 17 would not come to the aid of the
respondents. Therefore, the rule was not law within the meaning of
Article 300A. There is no law made by the competent legislature
C empowering deprivation of the property of the appellants.
16. Even a law made by the legislature could not result in the
deprivation of property in the manner which is purported to be achieved
through what is described as a rule which in fact is not a statutory rule.
It is his contention that the survey of the Act would reveal that wherever
D the land is reserved, the lawgiver has contemplated that the land should
be acquired. The concept of acquisition is traced to Entry 42 of List III
of Part VII of the Constitution. In other words, unless land is acquired
under the relevant law which undoubtedly involves payment of
compensation there would be no justification in law to compel a person
topart with his property by what is described as a compelled gift. There
E is no compensation payable under the gift admittedly. Therefore, this
amounts to the execution of the gift which is a direct result of the rule
which so mandated the execution of the gift. It is clearly expropriatory.
The law at any rate, it is contended that is, the impugned rule, is palpably
and manifestly arbitrary. Similar arguments have, no doubt, been addressed
F by the other learned senior counsel appearing on behalf of both the
appellants and the writ petitioner.There are various other ancillary
submissions which had been taken up.
17. There is also a further case that the rule falls foul of Article 14
for another reason. It is complained that the rule produces classification
G which is not permitted under Article 14. In other words, it is pointed out
that for layout upto 3,000 sq. metres, there is no requirement to execute
a gift. In respect of layout which is in excess of 3,000 sq. metres and
which is less than 10,000 sq. metres, there is no such requirement and in
place of a gift, it is open to the proponent of the project to give the
equivalent value. It is without any rational basis, and therefore,attracting
H
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1045
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

the vice of class legislation or unreasonable classification resulting in A
equals being treated differently, that in respect of projects involving more
than 10,000 square metres, the builder is bound to execute a gift in favour
of the authority.
SUBMISSIONS OF SHRI N. SUBRAMANIYAN,
ADVOCATE IN C.A. 7334 OF 2013 [KEYARAM HOTELS B
P. LIMITED]
18. In this case, the appellant is the owner and continues to be the
owner of the layout area. The gift was effected as per an undertaking
given to the High Court but subject to the Writ Petition. Secondly, there
is no laches or delay. Immediately as the condition was sought to be C
imposed, the Writ Petition was filed in the year 1995. At best, Rule 19
can be only a Statutory Order/Notification/ Guideline and it cannot be
considered more than a Subordinate Legislation. Relying on the principles
laid down for impugning Subordinate Legislation in State of Tamil Nadu
v. P. Krishnamurthy2, it is contended that the Rule, Rule 19(b)(2)(vi)(c)
violates Sections 36 to 39. Harmoniously reading Section 17 and Section D
20 and Sections 36 to 39 of the Act, would establish that the reserved
lands (made for open spaces) under Section 17(2)(k) and Section 20(1)(k),
should be acquired within three years, failing which, the lands shall get
reverted to the owner. In the case of regulating the use of lands, such as
putting restrictions on the use of land under Section 17(2)(l) and Section E
20(1)(n), within the planning area, do not call for compensation. Section
17(2)(b), as also Sections 21(1)(k) and (n) relating to detailed development
plans, are the only provisions dealing with the open spaces. Proviso to
Section 39(1) require the respondents to pay compensation for all items,
except the matters that fall under Section 17(2)(l) and Section 20(n),
again, both of which are regulatory. Sections 48, 49 and 52 to 54 are F
projected to contend that the object of the Act is to regulate the
development and not to deprive land. Sections 52 to 54 also mandate,
payment of compensation. Exceptions to the ’Pay compensation’
principle, involve cases, where there is no mandate to reserve land for
public purposes. There is no power, as claimed under Sections 9C, 17, G
20 and 35 or Section 124, to make the impugned Rule. It is further
contended that the impugned Rule contravenes and is inconsistent with
the Sections 6(2), 12 and 18 of the Tamil Nadu Apartment Ownership
Act, 1994 and, hence, is void. The appellant, having developed two blocks,
2
(2006) 4 SCC 517 H
1046 SUPREME COURT REPORTS [2023] 9 S.C.R.

A the developed building comes under the said 1994 Act. It applies to
apartments constructed prior to its commencement. The impugned Rule,
being inconsistent with Sections 6(2), 12, 18, 25 and 26 of the Act had
become inoperative. The impugned Rule is alleged to be violative of the
Land Acquisition Act, 1894 and hence, void, in view of Article 254(2) of
the Constitution. It is sought to be contended that since Entry 42 of the
B
Concurrent List provides for acquisition and requisition, any State
Legislature, seeking to put in place, a law to acquire lands with lesser
compensation, it would be impermissible. It would be discriminatory.
The Act took care to incorporate Land Acquisition Act by reference
under Section 36 of the Act. This meant that depravation of property,
C without compensation, was not contemplated. Sections 36 and 37 are
invoked. Even the State Legislature has no power to seek transfer of
lands to the State free-of-cost. Even a single owner could construct a
luxury independent bungalow with 3000 square meters and he will not
be required to spare any land to society whereas 184 owners who
constructed 184 flats with each family having 59.7 square meters would
D
have to spare 10 per cent of their land free-of-cost. This is unconscionable.
No civilised society would expect or require or steal someone’s property
for their betterment and the Rule of Equality requires the beneficiary to
share the costs. Appellants rely on Rustom Cavasjee Cooper (Banks
Nationalisation) v. Union of India3, Nagpur Improvement Trust and
E another v. Vithal Rao and others4, K.T. Plantation Private Limited
and another v. State of Karnataka5. The appellant would pray that the
Rule be declared null and void and it be declared that the ownership of
the OSR lands revert back to the appellants.
SUBMISSIONS OF MS. V. MOHANA, SENIOR
F ADVOCATE ON BEHALF OF THE WRIT PETITOINER
IN WRIT PETITION (CIVIL) NO. 591 OF 2015.
19. The objections to the challenge to the Regulation on the ground
that the Rule/Regulation had continued on the Rule Book for long, cannot,
by itself, be a ground to repel the challenge. [See ShayaraBano v. Union
G of India and others 6 and Indian Young Lawyers Association
(Sabarimala Temple-IN RE) v. State of Kerala and others7]. Doctrine
3
(1970) 1 SCC 248
4
(1973) 1 SCC 500
5
(2011) 9 SCC 1
6
(2017) 9 SCC 1
7
H (2019) 11 SCC 1
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1047
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

of Laches and Delay cannot become a constitutional limitation on court’s A
power. Expropriation of property can only be done by plenary legislation,
i.e., by Parliament or by State Legislature. Rule, made under the Rule-
making power cannot empower the deprivation of any substantive right,
which include property. An expropriatory law must, at any rate, be
construed strictly and must not be brought to life in the absence of specific
B
express provisions [See Nareshbhai Bhagubhai and others v. Union
of India and others8]. The State is blowing hot and cold in regard to
power to make Regulations. Reference is made to Sections 47 and 55 to
contend that the bar on compensation will not apply in case of deprivation
of property. Neither the provisions of the master plan nor provision relating
to control of development, authorised deprivation of property without C
payment of compensation. The present is a case of no compensation
and not nil compensation. The decision in K.T. Plantations Limited v.
State of Karnataka9, is relied upon. The laudable object cannot legitimise
the violation of the Fundamental Right or Constitutional Guarantee. It is
pointed out that in Ground-K of the Writ Petition, it is contented that
D
arbitrary restrictions on the petitioner to use his property through Executive
action, attracted Article 14. It is further pointed out that Fundamental
Right violation is projected in Grounds-L, M and N. Equally, Article 300A
and Article 14 forms the subject matter of Grounds-C, D, E, F, G, H, I
and J, it is submitted. It is contended that the repeal of the Regulation,
which is impugned, by the Rules of 2019, would not save the Regulation E
from the vice of invalidity. Reliance is placed on the decision of this
Court in Behram Khurshid Pesikaka v. State of Bombay 10. The
impugned Regulations would constitute law for the purpose of Article 13
in this regard. The declaration of the Regulation falling foul of
Fundamental Rights, would have the effect of rendering such law void
ab initio. Reliance is placed on the 2019 Rules and the repealing and F
saving provision [Rule 74(3)]. It is contended, in short, that the rights
and obligations, apart from the express savings under the 2019 Rules,
would remain intact. With reference to Sections 49 and 50 of the Act, it
is contended that permissions under the Development Regulations of
2008 would continue to be governed by the Regulations. Thus, repeal G
does not render the present Writ Petition academic or infructuous. The
fact that the petitioner is an Association of real estate developers cannot
detract from the matter being justiciable and a Constitutional Court should
8
(2019) 15 SCC 1
9
(2011) 9 SCC 1
10
(1955) 1 SCR 613 H
1048 SUPREME COURT REPORTS [2023] 9 S.C.R.

A not countenance technical pleas, when Fundamental Rights are at stake.
When otherwise, considering the importance of this matter, bearing in
mind the interplay between the Fundamental Rights and Article 300A,
this Court, despite any delay, should consider the challenge. Petitioner is
restricting the challenge to Regulation 29(7)(a) only to the latter part,
viz., the requirement to transfer free-of-cost, the 10 per cent area reserved
B for recreational purposes. Section 20(1)(d), employing the word
‘otherwise’, cannot encompass a gift. A gift would be without
compensation, which would be contrary to the provisions of the Act.
Sections 36 to 39 make it clear that whenever an acquisition was
contemplated, it was deemed to be a public purpose and payment of
C compensation has been provided for. If gift is comprehended in Section
20(1)(d), it would be in conflict with Section 39. Earmarking or reserving
an area, may not constitute an injury. But the compulsory gifting of the
same, without any compensation, coupled with changing of the character
of the property from private to public, reaches an injury. The person
must be compensated. Reliance is placed on SahuMadho Das and
D others v. Pandit Mukand Ram and another11 and Rajendra Shankar
Shukla and others v. State of Chhattisgarh and others 12. Reliance
is placed in M. Krishnasamy v. Member Secretary, Chennai
Metropolitan Development Authority, Gandhi Irwin Road, Egmore,
Chennai-813 to contend that a Single Judge of the Madras High Court
E doubted the very demand for conveying of OSR land. Regulatory law,
depriving a person of property, must be strictly construed. In this regard
reliance is placed on B.K. Ravichandra and others v. Union of India
and others14. Section 124, under which Regulations can be made, cannot
empower any Authority to create or takeaway or deprive a person of
their property, by a manner, not provided for under the Act [See Indian
F Young Lawyers Association and others (Sabarimala Temple-In
Re.)15]. The Regulation represents the case of action in excess of power.
The lands, which have been transferred, are not being used for the purpose
of open space. They are being used as dump yard or other use. The
valuable easementry rights or lung space of the residents are lost. The
G frontage of the property and its aesthetic appearance is affected. The
rights of the members of the petitioners’Association under Article 19(1)(g)
11
(1955) 2 SCR 22
12
(2015) 10 SCC 400
13
(2013) 1 CTC 80
14
2020 SCCONLINE SC 950
15
H (2019) 11 SCC 1
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1049
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

is violated. In answer to the contention of the respondent, that wherever A
compensation is compulsorily payable, the Constitution itself has made
provision as is clear from Article 30(1A) it is sought to be rebuffed. It is
pointed out that Article 30(1A) is only an additional protection.
Compensation must be paid, when property is deprived for a public
purpose. Reliance is placed on decisions of this Court, including the
B
decision of this Court in Lalaram and others v. Jaipur Development
Authority and another16. The Court is requested to mould the relief
appropriately so that the lands so transferred in favour of the Authority
may be reverted to the persons directly benefiting therefrom, i.e., the
Residents’ Welfare Associations or the residual owners of the developed
areas. It is further prayed that the Court may fix a time limit, within C
which, interested parties to whom the land is to be reverted may apply
for seeking such reversion. No other developments/redevelopments
should be made on such lands except in accordance with law.
20. Shri Sanjay Hedge, learned Senior Counsel, for the Corporation
of Chennai, supported the judgments. He contended that the impugned D
provision promoted a salutary goal. He highlighted the public interest
involved.
SUBMISSIONS OF SHRI AMIT ANAND TIWARI;
ADDITIONAL A.G. ON BEHALF OF STATE OF TAMIL
NADU AND ‘CMDA’. E
21. Section 124 of the Act confers powers to make the Regulations.
Reliance is placed on Section 9C(ii) to empower CMDA to prepare the
master plan or any detailed development plan. Reliance is also placed on
Section 17. The DCR and the Regulations are part of the master plan.
Section 2(36) defines ‘public purpose’ as ‘any purpose which is useful F
to the public or any class or section of the public’. Reserving any site,
plot for communal/recreational purposes in layout plan, is public purpose.
Section 47 is relied upon to contend that the DCR is statutory in nature.
Equally, Sections 17, 18 and 20 are invoked along with Section 124, to
contend that the DCR is statutory. Section 2(15) of the Act includes
master plan. Sections 105 and 111 give an overriding effect to the Act. G
All the Rules and Regulations, which will include the master plan, are to
prevail notwithstanding anything inconsistent with the same contained in
any other law, inter alia. Further, it is contended that the DCR and the
Regulations have been subsumed under the Tamil Nadu Combined
16
(2016) 11 SCC 31 H
1050 SUPREME COURT REPORTS [2023] 9 S.C.R.

A Development and Building Rules, 2019. Rule 74(3) of the 2019 Rules, is
relied upon to contend that it creates a legal fiction that anything done
under the Rules/Regulations, is deemed to have been done under the
2019 Regulations. Reliance is placed on Judgment in Bengal Immunity
Company Limited v. State of Bihar and others17. The word ‘including’
extends and enlarges the scope of the Clause [See State of Jammu &
B
Kashmir v. Lakhwinder Kumar and others18]. If challenge to the Rules/
Regulations succeeds, it will also render the sanction of the 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.
C 22. It is further contended that the Rules/Regulations, being part
of the master plan, are statutory and being framed under the Statute,
they operate as law under Article 300A. Reliance is placed on Pune
Municipal Corporation and another v. Promoters and Builders
Association and another19. Reliance placed by appellants on Pt. Chet
D Ram Vashist (Dead) by Lrs. v. Municipal Corporation of Delhi20, is
alleged to be misplaced. In the said case, there is no provision in the
Delhi Municipal Corporation Act, 1957, under which, the Corporation
could pass a Resolution to ask the appellant therein to transfer property
free of cost. It is further contended that the Court may bear in mind that
the Act replaced the Tamil Nadu Town and Country Planning Act, 1920,
E which was based on the British Town and Country Planning and Housing
Act, 1909. From the Statements of Objects and Reasons, it is contended
that the Act was based on the Model Town and Country Planning Bill,
which was prepared by the Ministry of Health and Housing of the
Government of India after a comprehensive study of various Town
F Planning Enactments in the western countries. The regional concept in
the Maharashtra Town and Country Planning Act, 1966 also made its
presence felt. The Act is designed to serve legitimate state interest of
planned development down to the regional limit.Crowded urban areas,
create adverse living conditions. The reservation of open space for parks
and playgrounds is universally recognised. The decision of this Court in
G Bangalore Medical Trust v. B.S. Muddappa and others21, is relied

17
(1955) 2 SCR 603
18
(2013) 6 SCC 333)
19
(2004) 10 SCC 796
20
(1995) 1 SCC 47
21
H (1991) 4 SCC 54
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1051
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

upon. It is contended that the Act requires only the simple laying of A
Rules and Regulations under Section 123 of the Act. The laying of the
Rules, which is not mandatory, if not followed, will not affect the validity
of the Rules/Regulations. The terms of Section 123(2) are relied upon to
contend that the Rules will come into effect even before they are placed
before the Legislative Assembly and any modification made by the
B
Assembly, will apply only from the date it is carried out. Reliance is
placed on Atlas Cycle Industries Ltd. and others v. State of Haryana22.
It is further contended that acquisition under Chapter IV of the Act is
not required in the facts. The area is not reserved in the master plan nor
was any Notice published under Section 26 or 27. Acceptance of
appellant’s contention would involve the need to compulsorily acquire all C
the reserved lands including areas such as setback areas, open spaces
and other reserved area.Such interpretation would also render the
provisions of Chapter VI, in particular Section 55, otiose. Chapter IV
apply to areas reserved and notified in the master plan itself or to an
area in excess of 10 per cent for proposed developed area of 3000 and
D
above square meters or where area reserved is sought to be utilised for
purpose not being communal or recreational, or areas, for which, there
are other exceptions in the impugned Rules/Regulations. Section 20(1)(d)
stipulates that a detailed development plan may propose or provide for
acquisition by purchase, exchange or otherwise, of any land. The words
‘or otherwise’ include a transfer of 10 per cent of the land by way of a E
gift. It is further contended that there is no constitutional obligation to
pay compensation. The Act contemplates divestment of property without
compensation as is evident from Sections 31 and 55 read with Sections
17 and 20. It is a settled position of law that Article 300A does not
involve or compel payment of compensation. Support is drawn from
F
Judgment of this Court in K.T. Plantation Private Limited and another.
v. State of Karnataka23:
“183. Payment of compensation amount is a constitutional
requirement under Article 30(1-A) and under the second proviso
to Article 31-A(1), unlike Article 300-A. After the Forty-fourth
Amendment Act, 1978, the constitutional obligation to pay G
compensation to a person who is deprived of his property primarily
depends upon the terms of the statute and the legislative policy.
Article 300-A, however, does not prohibit the payment of just
22
(1979) 2 SCC 196
23
(2011) 9 SCC 1 H
1052 SUPREME COURT REPORTS [2023] 9 S.C.R.

A compensation when a person is deprived of his property, but the
question is whether a person is entitled to get compensation, as a
matter of right, in the absence of any stipulation in the statute,
depriving him of his property.
xxx xxx xxx
B 192. At this stage, we may clarify that there is a difference
between “no” compensation and “nil” compensation. A law
seeking to acquire private property for public purpose cannot say
that “no compensation shall be paid”. However, there could be a
law awarding “nil” compensation in cases where the State
undertakes to discharge the liabilities charged on the property under
C acquisition and onus is on the Government to establish validity of
such law. In the latter case, the Court in exercise of judicial review
will test such a law keeping in mind the above parameters.
xxx xxx xxx
205. Plea of unreasonableness, arbitrariness, proportionality, etc.
D always raises an element of subjectivity on which a court cannot
strike down a statute or a statutory provision, especially when the
right to property is no more a fundamental right. Otherwise the
court will be substituting its wisdom to that of the legislature, which
is impermissible in our constitutional democracy.”
E 23. It is contended that nil compensation, as contemplated in
paragraph 192, is applicable as a State undertakes to discharge liability
for providing spaces for requirement for recreational and communal use,
which is a public purpose. The area taken under the gift deed from the
appellant in Civil Appeal No. 7334 of 2012 has been developed as a
walkers’ park and used by the public. It is contended that town planning
F
legislation has been viewed differently as it served a legitimate State
interest. Even in the United States, where the Fifth Amendment to the
U.S. Constitution contemplates compensation for taking, for public use,
private property, courts have upheld validity of zoning regulations which
substantially limit the rights of the owners to develop land. Compensation
G has been refused. Reliance is placed on Agins v. City of Tiburon24. In
India, there is no constitutional guarantee for payment of compensation
especially when they are required to serve a legitimate public purpose.
The gift of property, apart from serving the larger interest of the
community, would also be conducive to the interests of the appellants.
24
H 447 US 255 (1980)
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1053
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

Refuting the contention of the appellants that the land which is transferred A
can be used only by the members of the society and not by the members
of the general public, it is pointed out that since reservation is for
communal and recreational purposes, the word ‘communal purpose’ must
be understood to mean that it is meant for community at large. In the
case of proposed development area being 3000 square meters – 10000
B
square meters, ‘public access is specifically excluded, as the Rules/
Regulations provide that public access to area earmarked for transfer to
Authority, will not be insisted upon’.
24. There is no violation of Article 14. Classification based on size
of plot has a clear nexus with the object, viz., planned development.
Reliance is placed on Judgment of this Court in State of Maharashtra C
and another v. Basantibai Mohanlal Khetan and others25. As far as
Civil Appeal No(s). 1890-1891 of 2010 is concerned, the complaint of
the appellants that the land transferred under the gift was being made
use of as a road, which is impermissible, it is contended that it is
misleading. It is the case of the respondent that the 10 per centland D
transferred, already had a kachha road on the said land and it was
being used by the public. The appellants tried to prevent the use of the
road. The High Court considered the Report of the Court Commissioner
and concluded that furbishing of the road served a larger public interest
and provided better connectivity to a larger population. Alternatively,
assuming communal purpose, would not include construction of roads E
on OSR land, in the facts of the case, appeal is made that this Court may
not interfere in the Extraordinary Jurisdiction under Article 136.
SUBMISSIONS MADE BY SRI JAYANTH MUTHRAJ,
SENIOR ADVOCATE RESPONDENTS NOS. 1 AND 2 IN
C.A. NO. 1890 OF 2010. F
25. The developers had transferred, in the interest of public, 1100
square meters of land, to the Authority for roads, parks and other open
spaces by the gift deed dated 18.02.1994. In the year 2003, the Corporation
of Chennai laid metal road, which provided a direct and short link to the
Velacherry 100 feet bypass road to enable thousands of general public G
to have easy access and movements. The appellant-association has no
locus as it is neither the owner of the property nor has any usage right
been assigned to it. The CMDA is the absolute owner of the gifted
property. The public road was laid as per the terms of the gift. The
25
(1986) 2 SCC 516 H
1054 SUPREME COURT REPORTS [2023] 9 S.C.R.

A property is used for communal purpose. The word ‘communal’ means
public. He relies on the definition of the word ‘communal’ in the
International Websters Comprehensive Dictionary of the English
Language Encyclopaedic Edition (2004 Edition) to mean ‘common; public;
belonging to a community’. He also would contend that the DCR was
prepared in accordance with Section 17 read with Section 9C, Section
B
20(1)(d) and Section 20(1)(k) and Section 35 with Section 124. Rules
and Regulations are authorised. He relies on the Judgement of this Court
in R.K. Mittal and others v. State of Uttar Pradesh and others 26 and
New Delhi Municipal Council and others v. Tanvi Trading and Credit
Private Limited and others27. The impugned Rule is not an expropriatory
C action. It is only regulatory. The Rule is informed by intelligible differentia
having a nexus with the object. The challenge is academic as the DCR
is already repealed by the Regulation made on 02.09.2008. There is
latches in filing the Writ Petition after 13 years of the execution of the
gift deed. Even assuming the Rule is bad, the gift deed is beyond challenge.
The appellants having maintained Writ Petition (Civil) No. 4766 of 2007,
D
based on the gift deed, cannot challenge the validity of the gift deed in
the subsequent Writ Petition. Estoppel and constructive res judicata
are principles which are enlisted in support.
SUBMISSIONS BY SHRI K.S. SURESH, ADVOCATE IN
CIVIL APPEAL NO.7848 OF 2013
E
26. Shri K.S. Suresh, learned counsel appearing in C.A. No. 7848
of 2013, (the appeal by Vasanth Apartment Owners Association challenges
the order in the review petition) would submit that there is no power to
compel gift of land which is not required, reserved or designated. He
refers to Section 36 and would contend that there is no power beyond
F the same to demand the transfer of land. The rule providing for a compelled
gift is not within the objects, provisions and policies of the Act. One of
the zones reserved is for open space and recreational use. Sections 36
and 37 only provide for acquisition of land in such zones. Legislative
policy is not to acquire land without paying fair market value. Planning
G permission cannot result in deprivation of property. The DCR are not
the rules made under the Act. The authority is competent only to make
regulation under Section 124. In the absence of express power to demand
a gift, there cannot be an implied power. The Act is regulatory and not a
26
(2012) 2 SCC 232
27
H (2008) 8 SCC 765
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1055
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

taxing legislation. The appellants are entitled to restitution. Otherwise, A
he adopts the arguments of the Shri Gopal Sankarnarayanan made in
C.A. No. 7847 of 2013. He would also in his rejoinder submission point
out that support cannot be derived from Section 17 having regard to
Section 12. He would reiterate the argument that the State Government
also has no power relying on the judgment reported in (2003) 5 SCC
B
622. He would contend that the words in Section 122(1) empowering
making rules ‘for carrying out the purposes of the act’ is unbridled and it
must be understood as meant for regulating the use of land.
ANALYSIS
27. We have noticed the facts in the case of Vasanth Apartments C
and in the case of Keyaram Hotels. In the case of Vasanth Apartments,
the land which was gifted by the owner in compliance with the impugned
rule has been sought to be made use as a road. In the case of 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 D
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. E
28. Whether impugned rule is statutory or it has statutory
underpinning? Whether it is law?
The argument of the appellants appears to be, that the impugned
rule is not a statutory rule. Instead, the further case is that the impugned
rule is not a rule made under Section 122 of the Act. Section 123 F
contemplates placing of rules made under Section 122 before the
legislative assembly. The said procedure has not been followed as regards
the impugned rule. Therefore, it is not open to the respondents to claim
that the impugned rule is a statutory rule. It is nothing but an executive
fiat. If it is merely executive in nature, then it is not open to the G
respondents to direct the owners to execute a gift deed of valuable
property, and thus, deprive the owners of the rights over their property.
29. The argument, on the other hand, of the respondents is that
the DCR of which the impugned rule, is apart of the Master Plan and
there is statutory authority in regard to the making of a Master Plan
H
1056 SUPREME COURT REPORTS [2023] 9 S.C.R.

A located in Section 17 of the Act. In other words, the argument of the
respondents is that the court,when it approaches the issue raised in this
case, cannot have a pedantic view and understand a Master Plan as one
which is limited or confined to mere drawings. The Master Plan as
contemplated in the Act in regard to a Metropolitan Authority like the
CMDA must be viewed on a larger canvass. The plan was put in place
B
for catering to the needs of an ever-growing Metropolis.Various
restrictions necessarily have to be put in place to provide for an orderly
development of such a sprawling urban area. The larger public interest
of the entirety of the residents of such an area had to be envisaged and
it is in this regard that the concept of OSR must be viewed. The Master
C Plan goes to meticulous details about what is permitted and what is not.
30. A perusal of the writ petition No.23397 of 2007 being the
petition filed by the Association of Vasanth Apartments Owners wherein
Rule 19 has been challenged, reveals the following pleading:
It is specifically stated that Rule 19 of the DCR which forms part
D of the Master Plan prepared under Section 17 of the Act mandates
reservation of 10% as open space for open and recreational
facilities when the area exceeds 10000 sq. meters. The gift in the
case was executed in the year 1994 (16.02.1994). It is further
contended that under the rule the second respondent was to
E maintain it either on their own or through the local body. The
second respondent is the authority. Thereafter since the second
respondent has not developed OSR area as park, petitioner wanted
to maintain the OSR as Park. Reference is made to Writ Petition
No. 4766 of 2007 and the developments including the order passed
by the learned single judge and also writ appeal (writ appeal no.
F 478 of 2007) wherein an interim order was passed. Thus, the writ
petition is filed in the year 2007. Now let us look at the grounds
urged:
(1) Rule 19(b) of the DCR is beyond the rule making power
conferred on the first respondent. The Act does not
G empower the first respondent (the State of Tamil Nadu) to
make the DCR. Section 36 contemplates acquisition where
land is reserved for open space. Therefore, the rule is ultra
vires.
(2) There is an absolute right to enjoy the property. This is a
H constitutional right under Article 300A of the Constitution.
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1057
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

Unless there is acquisition and payment of due A
compensation, Article 300A is violated.Therefore, the rule
is unconstitutional.
(3) The rule empowers the Authority to maintain the OSR area
themselves or through others without permitting ownersto
themselves to do so. The respondents have no right to B
possess and manage the same. Therefore, the impugned
rule authorising the second respondent to maintain and
manage the OSR area is unconstitutional.
(4) The DCR not having been placed before the legislative
assembly, it has no force of law. C
(5) The impugned rule without any guideline enables exercise
of arbitrary power.
(6) There is no power with first respondent State to usurp the
lands free of cost, and that too selectively, under the guise
of regulating the development of the area. D
The prayer is to declare Rule 19 (b) of the DCR relating to group
development in so far as it mandates the transfer of 10% area of the
layout of any developmental plan having area 10,000 sq. meter or more
reserved as open space for communal and recreational purposes to the
second respondent or the local body designated by it, free of cost through E
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 office of the 4th respondent
pursuant to the impugned rule are unconstitutional and null and void and F
consequently direct the 3rd respondent to enter in their records the
members of the petitioner Association as Owners of the said OSR area
and pass such further or other orders as this Hon’ble Court may deem
fit and proper in the circumstances of the case and thus render justice.
31. Before we deal with the issue we must bear in mind as to
G
what is law. Article 13 of the Constitution reads as follows: -
“Article 13. Laws inconsistent with or in derogation of the
fundamental rights. — (1) All laws in force in the territory of
India immediately before the commencement of this Constitution,
in so far as they are inconsistent with the provisions of this Part,
shall, to the extent of such inconsistency, be void. H
1058 SUPREME COURT REPORTS [2023] 9 S.C.R.

A (2) The State shall not make any law which takes away or abridges
the rights conferred by this Part and any law made in contravention
of this clause shall, to the extent of the contravention, be void.
(3) In this article, unless the context otherwise requires, —
(a) “law” includes any Ordinance, order, bye-law, rule, regulation,
B notification, custom or usage having in the territory of India the
force of law;
(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,
C notwithstanding that any such law or any part thereof may not be
then in operation either at all or in particular areas.
[(4) Nothing in this article shall apply to any amendment of this
Constitution made under article 368.]”

D 32. Existing law has been defined in Article 366. It reads as
follows:-
“Article 366. (10) “existing law” means any law, Ordinance, order,
bye-law, rule or regulation passed or made before the
commencement of this Constitution by any Legislature, authority
or person having power to make such a law, Ordinance, order,
E
bye-law, rule or regulation;”
33. Law in force is an expression found in Article 372 of the
Constitution. It reads as follows: -
“Article 372. — The expression “law in force” in this article shall
F 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.”
G 34. Section 3(29) of the General Clauses Act, 1897 defines Indian
Law as:
(29) “Indian law” shall mean any Act, Ordinance, Regulation, rule,
order, bye-law or other instrument which before the
commencement of the Constitution, had the force of law in any
H Province of India or part thereof, or thereafter has the force of
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1059
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

law in any Part A State or Part C State or Part thereof, but does A
not include any Act of Parliament of the United Kingdom or any
Order in Council, rule or other instrument made under such Act;
35. In Salmond on Jurisprudence 12th Edition, it is profitable to
notice the following discussion:
Law as the dictate of reason: natural law B

The idea that in reality law consist of rules in accordance with
reason and nature has formed the basis of a variety of natural law
theories ranging from classical times to present day(q). The central
notion is that there exist objective moral principles which depend
on the essential nature of the universe and which can be discovered C
by natural reason, and that ordinary human law is only truly law in
so far as it conforms to these principles. These principles of justice
and morality constitute the natural law, which is valid of necessity,
because the rules for human conduct are logically connected with
truths concerning human nature. D
Law as the command of the sovereign: imperative law
Diametrically opposed to the theory of natural law is the positivist,
or imperative, theory of law (j). This theory distinguishes the
question whether a rule is a legal rule from the question whether
it is a just rule (k), and seeks to define law, not by reference to its E
content but according to the formal criteria which differentiate
legal rules from other rules such as those of morals, etiquette, and
so on.
Xxx xxx xxx
F
According to Austin, whose version of the theory will be considered
here, positive law has three characteristic features. It is a type of
command, it is laid down by a political sovereign and it is
enforceable by sanction.
Xxx xxx xxx
G
We must now distinguish commands which are laws from
commands which are not. Imagine a state governed by an absolute
ruler R. Here the law is what R command. But is the converse
true? Are all R’s commands law?
Xxx xxx xxx H
1060 SUPREME COURT REPORTS [2023] 9 S.C.R.

A Now if particular commands can qualify as laws, how can we
distinguish laws from commands which are not? Everyday life is
sprinkled with examples of people giving commands to others:
masters give orders to servants, teachers to pupils, parents to
children and so forth.
B Xxx xxx xxx
Such criticism overlook the importance of Austin’s second
requirement: for to qualify as law a command must have been
given by a political superior, or sovereign.
Xxx xxx xxx
C
To define law as a command can mislead us in several ways.
First, though this may be a not 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
D means to achieve certain results: e.g., laws giving citizens the
right to vote, laws conferring on lease-holders the right to buy the
reversion, laws concerning the sale of property and the making of
wills: indeed the bulk of law of contract and of property consists
of such power-conferring rules. At this point the theory could be
E saved by arguing that a rule conferring a right on one person is
really an indirect command addressed to another: a law
empowering the citizen to vote is really an order to the returning
officer to register the vote.
Xxx xxx xxx
F Thirdly, “command” conjures of the picture of an order given by
one particular commander on one particular occasion to one
particular recipient. Laws differ in that they can and do continue
in existence long after the extinction of the actual law-giver (r).
Xxx xxx xxx
G But whether we define law as a command or a rule, we must still
distinguish commands (or rules) which are law from those which
are not. For Austin, as we saw, a command can only be law if it
emanates from a sovereign. This raises the question how far there
can exist laws other than those made by the sovereign. Obviously
H in a complex modern state it would be impossible for a sovereign
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1061
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

to enact every legal rule: much law-making will in fact be done by A
subordinates to whom legislative powers have been delegated. A
good deal of English law consists of such delegated legislation,
e.g., regulation made by Ministers under Acts of Parliament. Here
Austin finds no problem, since he sees no difficulty in the notion
of a sovereign conferring law-making powers on others (u).
B
36. The distinguishing feature of law has been the subject matter
of considerable debate and we may only for the purpose of these cases
note that one of the essential features which mark out law from an
executive order is that ‘law’ has general application. In other words, law
sets out principles and rules which apply to all of those who would be
within its purview otherwise. A law is not to be viewed as particularised C
decisions of the executive. Law is generally to have operation in the
future. This court speaking through O. Chinnappa Reddy, J. held in Union
of India and Another v. Cynamide India Limited and Another.28:
“5. The second observation we wish to make is, legislative action,
plenary or subordinate, is not subject to rules of natural justice. In D
the case of Parliamentary legislation, the proposition is self-evident.
In the case of subordinate legislation, it may happen that Parliament
may itself provide for a notice and for a hearing — there are
several instances of the legislature requiring the subordinate
legislating authority to give public notice and a public hearing before E
say, for example, levying a municipal rate — in which case the
substantial non-observance of the statutorily prescribed mode of
observing natural justice may have the effect of invalidating the
subordinate legislation…”.
“7. The third observation we wish to make is, price fixation is F
more in the nature of a legislative activity than any other. It is true
that, with the proliferation of delegated legislation, there is a
tendency for the line between legislation and administration to
vanish into an illusion. Administrative, quasi-judicial decisions tend
to merge in legislative activity and, conversely, legislative activity
tends to fade into and present an appearance of an administrative G
or quasi-judicial activity. Any attempt to draw a distinct line
between legislative and administrative functions, it has been said,
is “difficult in theory and impossible in practice”. Though difficult,
it is necessary that the line must sometimes be drawn as different
28
(1987) 2 SCC 720 H
1062 SUPREME COURT REPORTS [2023] 9 S.C.R.

A legal rights and consequences may ensue. The distinction between
the two has usually been expressed as “one between the general
and the particular”. “A legislative act is the creation and
promulgation of a general rule of conduct without reference to
particular cases; an administrative act is the making and issue of
a specific direction or the application of a general rule to a
B
particular case in accordance with the requirements of policy”.
“Legislation is the process of formulating a general rule of conduct
without reference to particular cases and usually operating in
future; administration is the process of performing particular acts,
of issuing particular orders or of making decisions which apply
C general rules to particular cases.” It has also been said: “Rule-
making is normally directed toward the formulation of requirements
having a general application to all members of a broadly identifiable
class” while, “an adjudication, on the other hand, applies to specific
individuals or situations”. But, this is only a broad distinction, not
necessarily always true. Administration and administrative
D
adjudication may also be of general application and there may be
legislation of particular application only. That is not ruled out. Again,
adjudication determines past and present facts and declares rights
and liabilities while legislation indicates the future course of action.
Adjudication is determinative of the past and the present while
E legislation is indicative of the future. The object of the rule, the
reach of its application, the rights and obligations arising out of it,
its intended effect on past, present and future events, its form, the
manner of its promulgation are some factors which may help in
drawing the line between legislative and non-legislative acts.”
F 37. Paton in his work on Jurisprudence says this about the law.
“Law may shortly be described in terms of a legal order tacitly or
formally accepted by a community. It consists of the body of rules
which are seen to operate as binding rules in that community,
backed by some mechanism accepted by the community by means
of which sufficient compliance with the rules may be secured to
G enable the system or set of rules to continue to be seen as binding
in nature. A mature system of law normally sets up that type of
legal order known as the State, but we cannot say a priori that
without the State no law can exist.”
38. In the DCR the preamble recites that Section 9 (c) of the Act
H prescribes that the Authority is to carry out a survey of the Chennai
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1063
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

Metropolitan Area and prepare a Master Plan referred to in Section 17. A
It is further stated that having carried out necessary surveys and studies,
the Master Plan prepared in 1975 stood approved by government on
04.12.1976. The DCR inter alia provides as follows:
No development as defined in the Act is permissible without written
permission. It provides for the manner of obtaining permission. B
Rule 3 proclaimed that no development shall be in contravention
of the DCR. Site approval is made mandatory. The land use
classification was put into place. The DCR divided land use in
terms of 9 separate zones which included primary residential zone,
mixed residential zone, institutional use zone, open space and
recreational use zone etc. There were detailed restrictions put in C
place qua the zones in regard to what activities were permitted as
also what were prohibited. Part III commencing with Rule 17
was captured under the Caption ‘General Provisions’. It is under
this chapter that Rule 19 made its appearance. Rule 19 dealt with
Layout and sub division. It inter alia provided for passage, streets D
and roads and cul-de-sacs and it is thereunder that in respect of
reservation of land for communal and recreational purpose in a
layout or sub division that the DCR contemplated inter alia the
impugned provisions. Rule 20 provided for parking. Rule 21 dealt
with architectural control. Rule 22 provided for preservation of
buildings of historical or architectural interest. Rule 23 dealt with E
tree preservation. Rule 24 dealt with advertisement control. Rule
25 provided for Airport zone and Microwave Zone. In fact, Rule
26 may be noticed at this stage in full.
“26. These rules to prevail :- (a) In the application of these
rules if there is conflict between the requirements under these F
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
G
rule, by law or regulation made under the said act or laws,
such provisions which are contrary to these rules shall stand
suspended. (b) The notifications made under the Municipal
and Panchayat Acts and the Tamil Nadu Public Health Act,
1939 (Tamil Nadu Act III of 1939) as regards setting of the
H
1064 SUPREME COURT REPORTS [2023] 9 S.C.R.

A Industrial and Residential area in the Chennai Metropolitan
Area will cease to operate from the date of commencement
of these rules. 27.”
Rule 27 dealt with identification of boundaries. Rule 28 provided
for delegation of power. Rule 29 made contravention of the rules
B punishable with fine.
39. Section 9(c) must be read along with Section 17 of the Act.
Section 9 (c)(ii) declares that subject to the provisions of the Act and the
rules made under the Act, the functions of the Authority is to inter alia
prepare a Master Plan referred to under sub-Section (2) of Section 17.
Section 17 deals with Master Plans. Section 17 contemplates that the
C Local Planning Authority (which is mentioned under Section 4(b) of the
Act) shall within such time as may be prescribed and after consulting
the Regional Planning Authority (see Section 4(a) of the Act) and the
Local Authority, prepare and submit to the Government, a Plan called
the Master Plan. Section 17(2) reads as follows:
D “(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,
E 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,
F 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 (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;
H (i) the amenities, services and utilities;
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1065
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

(j) the provision for detailed development of specific areas for A
housing, shopping, industries and civic amenities and educational
and cultural facilities;
(k) the control of architectural features, elevation and frontage of
buildings and structures;
(l) the provision for regulating the zone, the location, height, number B
of storeyes and size of buildings and other structures, the size of
the yards and other open spaces and the use of buildings, structures
and land;
(m) the stages by which the master plan shall be carried out;
and (n) such other matters as may be prescribed.” C
40. The Act as noted contemplates preparation of detailed
development plan also. Section 24 of the Act contemplates that as soon
as may be after the Master Plan inter alia has been submitted to the
Government, the Government may not later than the time prescribed
direct the appropriate Planning Authority to make such modification in
the Master Plan inter alia. Thereupon, the modified Plan has to be D
resubmitted to the Government. Thereupon, the Government may give
the consent for publication of the notice under Section 26 of the
preparation of the Master Plan inter alia. Moving on to Section 26, it
contemplates publication in the Gazette, of the notice of the preparation
of the Master Plan inter alia. The notice must indicate the place or places
E
where the copies may be inspected. More importantly, objections and
suggestions in writing are to be invited within such period as is specified
in the said notice. The period shall not be less than two months from the
publication of the notice. Section 26 (2) contemplates that a reasonable
opportunity of being heard must be provided to any person including
representative of the Government Authority, who have made any F
objection. The Planning Authority can make amendments based on the
objections and with the amendments, if any, carried out, the Plan is again
submitted to the Government. Section 28 contemplates approval by the
Government after consulting the Director of Town and Country Planning
of the Plan submitted under Section 26(2). The approval may be with or
without modification. Again, it is open to the Government to return the G
Plan, to modify the plan, or to prepare a fresh Plan in accordance with
such directions as the Government may issue in this behalf and
resubmitted to the Government for approval. The approval which is
granted under Section 28 by the Government to a Master Plan inter alia
is to be published by the Government in the gazette and leading H
1066 SUPREME COURT REPORTS [2023] 9 S.C.R.

A newspapers. The notification must indicate the place and time at which
the Plan shall be open to inspection to the public. The Plan shall come
into operation from the date of publication in the Tamil Nâdu Government
Gazette. Section 32 of the Act provides for variation, revocation and
modification of regional plans, Master Plan and the new development
plan, at any time, by a subsequent plan prepared and approved under the
B Act.
41. Even according to the petitioner in Association of Vasanth
Apartments Owners, the DCR is a part of the Master Plan. This is
precisely the argument of the respondent as well. We are in agreement
with the stand taken by the petitioner and the respondent. The DCR is a
C part of the Master Plan. The process involved in the making of the
Master Plan points to active participation of all stakeholders. The plan
which is apparently tentatively prepared must first receive approval from
the Government before the notice of its preparation is published. It is
upon such notice being published, objections are also invited. It is open
to the Planning Authority to amend the Plan, paying heed to the objections
D found to be with merit. Again, the matter goes to the Government.
Government has the power again to return it. Government as well may
approve the Plan. As we have already found Master Plan cannot be
conflated with a set of drawings or maps. It must, in the context of law
in question, be extended to encompass within its embrace rules by which
alone the Plan can become workable and the sublime goal of the lawgiver
E attained. The Master Plan accompanied with the DCR were to hold
sway. It was to have general application. It was intended to bind everyone.
It created rights and liabilities. It was not intended for any particular
person. It was to operate in the future. It carried with it the attributes of
law. The Government all throughout plays the pivotal and leading role
F and it is only with the imprimatur of approval by the Government that the
Plan read with the Rules assumed force. Government undoubtedly had
power to make rules under Section 122 of the Act. We would therefore
hold that the DCR which held the field till 2008 when Regulations were
enacted had the force of law.
42. It is profitable for us at this juncture to look at what a learned
G single judge had to say regarding the history of the ‘DCR’ and the
regulation. Justice V. Ramasubramanian, while judge of the High court,
has rendered judgment reported in M. Krishnasamy V. The Member
Secretary, Chennai Metropolitan Development Authority and
Another 29. It was rendered on 25.09.2012. The petitioner therein
29
H 2013 1 CTC 80
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1067
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

challenged a communication by the member secretary of the authority A
rejecting the request to waive open space reservation charges for the
grant of planning permission. The amount of OSR charge demanded
was Rs.58,50,000. It was the contention of the petitioner therein that the
charges could be levied only if land of an extent equivalent to 10% of the
total area was not reserved for open space and conveyed to the local
body. It was his case that his predecessor in title had already earmarked B
10% of the total area and handed it over to the Corporation of Chennai.
A draft deed of conveyance was also submitted by his predecessor which
could not be executed on account of the lethargy on the part of the
corporation but possession was taken in 1976. The learned single judge
went on to find as a matter of fact that though a gift deed as such was C
not executed, the land was in public domain for the past 36 years and no
one except the local body would lay a claim on the said land. The Court
held;
“Para 12. Though in paragraph 10 of the counter affidavit, the
first respondent has claimed that OSR land was neither gifted nor
D
handed over to the Corporation, the same appears to be an incorrect
statement. The Corporation has categorically confirmed that the
land of the extent of 6 grounds 170 sq. ft., had been handed over
by the original owner. This is also corroborated by (i) a letter of
the Assistant Engineer of the Corporation of Chennai dated
29.1.1976 and (ii) the handing over-taking over certificate dated E
11.2.1976 signed by an Officer of the Deputy Collector’s office
and the Corporation of Chennai. The fact that the said land has
been developed into a park and that it is now maintained by the
Corporation of Chennai, is beyond any pale of doubt. But it is
equally true that no deed of conveyance/gift was executed and
F
registered by the original promoter in favour of the Corporation.
Nevertheless, the land is in public domain for the past 36 years
and no one except the local body, can today lay a claim on the
said land of the extent of 6 grounds and 170 sq. ft. Therefore, on
the first question, it has to be held that OSR land has already been
handed over to the local body.” G
43. Thereafter it is interesting that the learned Single Judge holds
as follows: -
“Para 13. Incidentally it must be pointed out that in Pt. Chet Ram
Vashist vs. Municipal Corporation of Delhi {1995 (1) SCC 47},
the Supreme Court held that the effect of reserving any site for H
1068 SUPREME COURT REPORTS [2023] 9 S.C.R.

A open space, park etc., in a layout is that the owner ceases to be a
legal owner of the land in dispute and that he would hold the said
land for the benefit of the society or the public in general. It was
further held in the said decision that the entitlement of the
Corporation or the local body to demand the transfer of the land
to them, is not made out from the provisions of any Act or on any
B principle of law. The Court pointed out that the Corporation may
get a right as custodian of public interest to manage it in the interest
of the society in general. However, the right to manage as a local
body, was held by the Supreme Court in the said decision, to be
not the same thing as to claim transfer of the property to itself.
C The decision in Pt. Chet Ram Vashist, was followed in Chairman,
Indore Vikas Pradhikaran vs. Pure Industrial Coke & Chemicals
Ltd {MANU/SC/7706/2007 : 2007 (8) SCC 705}. Again in Babulal
Badriprasad Varma vs. Surat Municipal Corporation {MANU/
SC/7606/2008 : 2008 (12) SCC 401}, the Supreme Court pointed
out that a statute of town planning ex facie is not a statute for
D acquisition of a property. The Court further observed that every
step taken by the State does not involve application of the Doctrine
of Eminent Domain.”
Para 16.At this juncture, a small prelude is necessary, to understand
how the liability to earmark open space for public and recreational
purposes, in a land developed into a layout and how the liability to
E
pay OSR charges, came into existence. Hence it is presented as
follows: -
(i) Section 9C, Chapter II-A of the Tamil Nadu Town and Country
Planning (Amendment) Act, 1973 (Tamil Nadu Act No. 22 of
1974) prescribed that the Madras Metropolitan Development
F Authority shall carry out a survey of Madras Metropolitan area
and prepare a Master Plan as referred to in Section 17.
(ii) Accordingly, MMDA carried out necessary surveys and studies
and prepared the First Master Plan for the Chennai Metropolitan
Area in 1975. The Government approved the same in G.O.Ms.
No. 2395, Rural Development and Local Administration dated
G
4.12.1976.
(iii) The First Master Plan covered an extent of approximately
1170 sq. kms. It included within the City of Chennai, a part of
Ambattur Taluk, Tambaram Taluk, Tiruvallur Taluk, Chengalpet
Taluk, Sriperumbudur Taluk, Ponneri Taluk and Poonamallee
H Taluk.
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1069
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

(iv) Under the said Plan, all lands in the Metropolitan Area were A
categorised into 10 zones such as Primary Residential Use Zone,
Mixed Residential Use Zone, Commercial Use Zone, Light
Industrial Use Zone, General Industrial Use Zone, Special and
Hazardous Industrial Use Zone, Institutional Use Zone, Open
Space and Recreational Use Zone, Agricultural Use Zone and
B
Non-Urban Use Zone.
(v) Along with the First Master Plan, a set of rules known as
Development Control Rules were issued by the Government.
These rules dealt with (i) permission for development (ii) use zones
and (iii) general provisions.
(vi) Rule 19 of the Development Control Rules, which comes C
under Part III, under the heading “General Provisions” deals with
layout and subdivision.
(vii) The liability to reserve a portion of the site in a layout as open
space, arose out of Rule 19 of the Development Control Rules, till
these rules were in operation. D
Para 17. Rule 19 of the Development Control Rules contains a
Table which prescribes the minimum width of the streets and roads
in different types of layouts. Just below the Table under Rule 19,
there is a Note. The said Note contains 3 prescriptions. The third
prescription in the said Note contains a Table indicating the extent E
of land to be reserved for communal and recreational purposes in
a layout or subdivision for residential, commercial, industrial or
combination of such uses.
Para 21. It may be of interest to note that at the time when the
First Master Plan was conceived in 1975, the concept of “Group
F
Development” or “Flats”, had not gained momentum in the City
of Chennai. Therefore, the Development Control Rules did not
contain specific provisions to regulate the same. But when
developers started promoting flats, the issue was taken up by the
Madras Metropolitan Development Authority with the
Government, in a letter dated 22.3.1981. On the basis of the said G
letter of the Member Secretary and the recommendations of the
Technical Committee of MMDA and the response of the public
to the proposed amendment to the Rules, the Government issued
G.O.Ms. No. 940, Housing and Urban Development, dated
8.10.1982, approving the Draft Rules for incorporation in the
H
1070 SUPREME COURT REPORTS [2023] 9 S.C.R.

A Development Control Rules with certain modifications. They were
issued by the Government in exercise of the power conferred by
Section 32 of the Tamil Nadu Town and Country Planning Act,
1971.
Para 22. By the Amendment so made to the Development Control
B Rules, sub-rules (b) & (c) were inserted under Rule 19. While
sub-rule (b) dealt with “Special Buildings”, sub-rule (c) dealt with
“Set Back” for residential and commercial. Under Clause (v) of
sub-rule (c) of Rule 19, the extent of land to be reserved for
Community Recreational Purposes, was indicated in a tabular
column. It reads as follows:
C

D

E
Para 23. But in so far as “Group Development/Flats” are
concerned, the open space to be reserved for Community
Recreational Purposes was indicated in a separate Table in the
same Government Order G.O. Ms. No. 940, dated 08.10.1982, as
follows:
F

G

H
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1071
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

Para 24. Rule 19(a) & (b) was amended further by G.O.Ms. No. A
35, Housing and Urban Development, dated 9.1.1989. But the
Amendments introduced by the said Government Order covered
only layouts of the extent between 3,000 sq.meters and 10,000
sq.meters. In other words, layouts of larger extents above 10,000
sq.meters, were not covered by the said Amendment.
B
Para 25. There appears to be a subsequent amendment. Though
the year of such amendment is not clear, the Development Control
Rules hosted in the Internet by the CMDA, as amended upto
September 2004, contains two Tables, one in respect of normal
buildings under Rule 19(a) and another in respect of “Special
Buildings and Group Developments” under Rule 19(b). The Table C
under Rule 19(a) is as follows:

D

E

F

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

H
1072 SUPREME COURT REPORTS [2023] 9 S.C.R.

A

B

C

Para 27. After a spurt in developmental activities, the CMDA felt
a need for a Second Master Plan for the Chennai Metropolitan
D Area. Therefore, a Draft Second Master Plan 2011 was prepared
and submitted to the Government and the Government gave its
consent to it under G.O.Ms. No. 59, Housing and Urban
Development Department, dated 30.6.1995. After public
consultation, it was submitted to the Government in December
E 1995 for approval. But approval could not be granted on account
of an interim prohibitory order granted by this Court in a Writ
Petition. Though the Writ Petition W.P. No. 14819 of 1995 was
eventually dismissed on 10.7.2001, the Government returned the
Draft Second Master Plan to the CMDA for suitable modifications.
This was under G.O.Ms. No. 408, dated 5.10.2001.
F Para 28. Thereafter, a revised Draft Second Master Plan with
the year 2026 as the horizon year, was prepared and submitted to
the Government in December 2005. The Government again
returned it under G.O.Ms. No. 331, H & UD Department, dated
5.12.2006, with a direction to incorporate certain developments in
G the field and to submit a fresh proposal for consent. This was
done in February 2007 and the Government gave its consent on
30.3.2007.
Para 29. Thereafter, copies of the Draft Second Master Plan were
made available to the public and also hosted in the official website
of the First Respondent. Subsequently public consultations were
H
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1073
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

conducted in April and July 2007 and a two-day workshop was A
also held in August 2007. Thereafter, the draft was finalised and
submitted to the Government. Finally, the Second Master Plan for
Chennai Metropolitan Area was approved by the Government of
Tamil Nadu in G.O.Ms. No. 190, Housing and Urban Development,
dated 2.9.2008 and it was notified in the Gazette on the same day.
B
As part of the Second Master Plan, a set of Regulations known
as “Development Regulations” were issued and they came into
force on 2.9.2008.
Para 30. Regulation 26 of the Development Regulations 2008,
contains stipulations regarding “Special Buildings”. A Special
Building is defined in Regulation 2(40) to mean (i) a residential or C
commercial building with more than two floors, or (ii) a residential
building with more than 6 dwelling units or (iii) a commercial building
exceeding a floor area of 300 sq.meters.”
44. After referring to Rule 27 dealing with group developments
and Rule 29 which dealing with layout and sub division regulations and D
finding it to correspond to Rule 19 of the DCR and further noticing Rule
27 in greater detail, the learned Single Judge then proceeds to hold further
as follows: -
“Para 34. A careful survey of (i) the provisions that existed from
1975 till 2008 under the First Master Plan and the Development E
Control Rules, and (ii) the provisions that exist with effect from
2008 under the Second Master Plan and the Development
Regulations, would show that layouts had always been classified
into 3 categories. They are, (i) those whose total land extent is
upto 3,000 sq.meters, (ii) those whose total land extent is between
3,000 sq.meters and 10,000 sq.meters, and (iii) those whose total F
land extent is above 10,000 sq.meters.
Para 35. Consistently, the Development Control Rules which were
in force till 2008 and the Development Regulations which are in
force from 2008, have exempted layouts whose total extent of
land is upto 3,000 sq.meters, from the obligation to reserve any G
open space. Similarly, the Rules have consistently given two
options, either to hand over 10% of the area excluding roads or to
pay the market value of equivalent land, in so far as layouts whose
total extent of land is between 3,000 sq.meters and 10,000
sq.meters. H
1074 SUPREME COURT REPORTS [2023] 9 S.C.R.

A Para 36. But, in respect of layouts whose total extent of land is
above 10,000 sq.meters, the Rules have always insisted upon
handing over of Open Space Reservation land to the extent of
10% of the total area. In respect of layouts whose total extent is
above 10,000 sq.meters, it was made clear by the successive
Government Orders that no charges in lieu of 10% of the area
B
can be accepted. This is borne out by—
(1) G.O.Ms. No. 743, Housing and Urban Development, dated
10.5.1979,
(2) G.O.Ms. No. 940, Housing and Urban Development, dated
C 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
D Regulations of the year 2008.”
We are fortified in our conclusion that the Rule in question was
statutory in nature. Section 123 (2) contemplates that every rule made
under the Act is to be laid as soon as may be on the table of the Legislative
Assembly and it inter alia enables the Assembly to modify the rule and
E if the Assembly decides that the rule should not be made or give it a
modified operation or no effect, then such a decision of the Assembly
will prevail. It is to be noticed that this is after providing that unless
otherwise expressed, the rules come into force on the day on which they
are published in the Gazette. This shows that the rule has life without
F reference to the Legislative Assembly. It is undoubtedly true that Section
122 speaks of the power of the Government to make rules. While it is
true that the Master Plan is to be prepared by the CMDA and the rules
would form part of the Master Plan, the scheme of the rules would
show that it is only with the approval of the Government that the rules
along with the Master Plan come into force. We have already noticed
G the effect of Section 32 as indeed it was considered by the learned
Single Judge in the judgment we have referred to.
THE GIFT DEED IN VASANTH APARTMENTS CASE
45. The complaint about there being no rationale in allowing a
developer who develops a layout which is between 3000 sq.m. and 10000
H
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1075
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

sq.m. to pay the equivalent is to be found both in the circumstance that A
it is permitted only when there is a physical complaint and also it is
obvious that the local Authority would be expected to plough back the
money equivalent into making available alternate facility by way of OSR
in such cases.
46. It is necessary to notice the relevant facts in the case relating B
to Vasanth Apartments in greater detail. The writ petition filed by the
Association of Vasanth Owners is in the year 2007. The Vasanth
Apartments is located at 100 feet bye-pass road, Velacherry. The
apartments were promoted as group developments in terms of approval
granted by the CMDA on 16.05.1997. The Apartments consist of 12
blocks, out of which 11 blocks consist of 4 storeys and house about 180 C
dwellings.The total area of the layout is more than 10,000 sq. mtr. 10%
of the total area consisting of 1164 sq. mtr. was reserved for use as
OSR. A gift was executed on 10.02.1994 under the DCR. The CMDA
was either to maintain the OSR area on its own or to permit the appellant
Association to maintain the same. 180 families residing in the campus do D
not have any park and any recreational facility despite the OSR.
Thereafter, there is reference to attempts being made by some persons
to encroach on the said OSR area for some other purposes. Several
loads of earth was dumped in the OSR area. The case on the other hand
of the respondents as can be seen from the writ appeal is that at the time
of construction, the land owners earmarked the portion of the land, that E
is, 11836 sq. feet, as open space regulation (OSR area) for road and
park and gifted the same as per the gift deed.The second respondent
Corporation has formed road in that land during the year 2003 itself and
was maintaining the same. It is their case that the appellant Association
was blocking the said road. The said road is a shortest link from West F
Vellachery to East Vellachery - Vijay Nagar and this road gives access
to Venkateshwara Nagar, MGR Nagar and Devikarumariamman Nagar
etc., where one lakh people are living in Vellachery.
47. Now, it is necessary to notice the actual terms of the gift deed
which was executed on 18th February, 1994. The relevant terms read as G
follows: -
“ GIFT DEED
This indenture made on this 18th day of February 1994.
between
H
1076 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 1. Shri K.S. Dasarathan, Hindu, aged about 48 years.
2. Smt. D. Inbanayagi, Hindu, aged about 40 years, wife of Shri
K.S.Dasarathan.
both residing at 84, Dr. Natesan Road, Mylapore, Madras-4.
B 3. Shri G.T. Murugesan, Hindu, aged about 45 years.
4. Smt. M. Jayalakshmi, Hindu, aged about 40 years, wife of Shri
G.T.Murugesan.
both residing at No.35, Nainar Nadar Road, Mylapore, Madras-
4.
C
All represented by their Power Agent Shri M.S. Rajamanickam,
son of ShriM. Sivagnanam, aged about 42 years, residing at 75,
C.P. Ramasamy Road, Alwarpet, Madras, hereinafter called “THE
DONOR” of the one part;
and
D
The Madras Metropolitan Development Authority, represented
by itsMember Secretary, having their office at No.8, Gandhi Irwin
Road,”Thalamuthu Natarajan Building”, Egmore, Madras,
hereinafter called”THE DONEE” on the other part;
E WHEREAS the “DONOR” is well sufficiently entitled, free from
allencumbrances, the piece of lands for roads and parks
hereunderdescribed and intended to be hereby granted conveyed
and assigned.
WHEREAS the DONOR is the absolute GPA holder of the
F property bearing S.No.379/1 (Part) and 380 / 4 (part) of Velacherry
Village andsubmitted a proposal for development of the land in
the above S.Nos. for residential purposes.To comply with the rules
and regulations prevailingnow, the DONOR in the interest of public
has agreed to transfer the roadsand parkand other open space
hereunder described through a gift deedin favour of DONEE and
G DONEE has agreed to accept the same.
Now this indenture witnesseth that the DONOR doth hereby
give,grant, convey and assign in the interest of public unto the
DONEE whohereby accepts the same all that lands for roads,
parks and other openspace situated in S.Nos.379 / 1, (part) and
H
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1077
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

380 / 4 (part) which is for the use of the public comprised in A
layout sketch enclosed, within registration subdistrictof 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
B
the lands of roads/parkshere by granted conveyed and assigned
upto the “DONEE” with themanner aforesaid and that the
“DONEE” shall and may at all timeshereafter peacefully and
quietly possess and enjoy the said lands ofroads/parks free from
all encumbrances whatsoever without any lawfuleviction,
interruption, claim, whatsoever, from or by the “DONOR” or any C
person claiming under or interest for him and further that the
“DONOR”and all person having lawfully or equitably claiming
any rights onroads/parks or interest with the said premises or any
part thereof from under or interest for the “DONOR” or from or
under any of his ancestors shall and will from time to time and at
D
all times hereafter at the request of and cost of the “DONOR” do
execute and register or cause to be done
executed and registered all such acts, deeds and things whatsoever
forfurther and more perfectly assuring the said lands or roads and
parksevery part thereof unto the “DONEE” in the manner
aforesaid or as shallor may be reasonably required. E

THE SCHEDULE OF PROPERTY
All that piece and parcel of lands measuring 1100 square
metersreserved for parks/open spaces and marked in colour of
the layout sketchenclosed herein situated in S.No.379/1 (part) and F
380/4 (part) of Velacherry Village, Saidapet Taluk, Madras and
within the subregistration District of Madras South and
Registration District of Madras Central.
The value of property Rs.1,99,000/-.”
WHETHER THE IMPUGNED RULE VIOLATES G
ARTICLE 14 OF THE CONSTITUTION? IS IT
DISCRIMINATORY?
48. As far as this ground is concerned, we do not find any reference
to this line of argument before the High Court. In the writ petition filed
by the Vasanth Apartments (writ petition no. 23397 of 2007) the only H
1078 SUPREME COURT REPORTS [2023] 9 S.C.R.

A feeble reference, if at all we can understand the same to be one, is
ground (F) where what is contended is that the CMDA had no power
under the Constitution to usurp the lands of citizens free of cost, that too
selectively, under the guise of regulating the development of the area. In
the written submissions, no doubt we may notice the following: -
B “(v) Further, if a plot measuring 200m x 55m abutting a road of
wide 1O m and above if developed by seeking a single approval,
it would attract the impugned rule of gifting 10% area whereas if
it is divided into 4 pieces of 50 m* 55 m and sold to 4 individuals
and then developed by the 4 persons, for the same development,
then the impugned rule will not be attracted. Therefore, the
C impugned rule mandating the transfer of OSR area free of cost
has no rational basis and hence arbitrary.
(vi) Further, if an open space is required for public purpose, then
every public would be enjoying the same. The state may tax the
public based on wealth but can not tax only a person who is
D proposing to develop an area of 10,000 sqm. Therefore, the
classification has neither any intelligible differentia nor has rational
nexus with the object of town Planning. Therefore, the impugned
rule is discriminatory and hence violative of Art.14 of Constitution
of India. The Hon’ble Court Supreme Court in Yogendra Pal &
E others Vs. 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
F Constitution of India. The Hon’ble Supreme Court while upholding
the said provisions as not violative of Arts. 19(1)(f) and 31(2) (the
then existing provisions) of Constitution of India but held the said
provisions as violative of Art. 14 of the Constitution of India.
Therefore, due to the aforesaid reasons, the mandate under the
G impugned rule to transfer the OSR area free of cost is without
any basis and hence arbitrary and unreasonable and discriminatory
and hence violative of Art.14 of the Constitution of India.”
49. In the review petition (filed as review application no. 69 of
2008) also there is no contention seeking to ventilate the complaint that
H
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1079
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

the impugned rule falls foul of Article 14 on the basis that it is A
discriminatory.
50. We are concerned in this case with the provision which provides
for town planning. In regard to such law, a certain measure of free play
is to be given to the planning authority bearing in mind that it is urban
planning what is involved. In regard to the grant of development permit B
up to 3000 sq. mtr., the rules do not contemplate any requirement in the
matter of OSR. It is a matter which goes to the wisdom and clearly falls
within the realm of policy. In other words, having regard to the size of
the development contemplated, the authority has not found it fit to provide
for reservation under the head open space. It cannot be described as
being bereft of any rationale that upon the minimum threshold of 3,000 C
sq. mtr. being breached and the layout being between 3,000 sq. mtr. and
10,000 sq. mtr., 10% of the area excluding roads is to be maintained as
open space. In other words, 10% of area would have to be reserved for
communal and recreational facilities. It is no doubt true that that in cases
falling in the said category namely group developments which comprise D
of an area in excess of 3,000 sq. mtr. and up to 10,000 sq. mtr., it is open
to the project proponent to pay the market value equal to the land on the
basis of valuation as provided therein. However, it is only if on account
of the physical constraints it is not possible to provide open space, that
payment is contemplated. Another noteworthy feature is that in cases
where the land is between 3,000 sq. mtr. and 10,000 sq. mtr. public E
access for the area as earmarked shall not be insisted upon. It is when it
comes to a case where if the area goes above 10,000 sq. mtrs., that it
becomes obligatory to reserve 10% of the area excluding road and the
OSR reserved is to be transferred by way of gift deed.
51. We are unable to persuade ourselves to hold that the impugned F
rule violates Article 14 on the score that it is discriminatory. In a challenge
to a provision based on discrimination under Article 14, the burden is on
the applicant to lay clear foundation in pleadings and further to discharge
the burden by making good the case and the court will not lightly enter a
finding of discrimination. Town planning being a complex subject involving G
various inputs and value judgements which are intended to ensure the
orderly, visionary and planned development, they require greater deference
from courts.
IS THE IMPUGNED RULE/ REGULATION ULTRA
VIRES? H
1080 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 52. It has been contended on behalf of the appellants/writ petitioner
that the impugned provisions represent a case of they being ultra vires.
In General Officer Commanding-in-Chief and another v. Dr.
Subhash Chandra Yadav and another30, this Court was considering
the validity of Rule 5C of the Cantonment Funds Servants Rules, 1937.
It was contended that it was contrary to Section 280(2)(c) of the
B
Cantonment Act, 1924. The argument was accepted. The argument of
the appellant, that in view of the provision in the Parent Act that Rules,
when published, would have effect as if they were enacted in the Act,
was repelled. We notice only the following discussion:
“14. This contention is unsound. It is well settled that rules framed
C under the provisions of a statute form part of the statute. In other
words, rules have statutory force. But before a rule can have the
effect of a statutory provision, two conditions must be fulfilled,
namely, (1) it must conform to the provisions of the statute under
which it is framed; and (2) it must also come within the scope and
D purview of the rule-making power of the authority framing the
rule. If either of these two conditions is not fulfilled, the rule so
framed would be void. The position remains the same even though
sub-section (2) of Section 281 of the Act has specifically provided
that after the rules are framed and published they shall have effect
as if enacted in the Act.”
E
53. In Kunj Behari Lal Butail and others v. State of H.P. and
others31, the Parent Act conferred power on the Delegate from the
Government, to make Rules for carrying out the purpose of the Act, a
familiar legislative device. The contention taken was that the Rule in
question revealed the Delegate surpassing its authority. We notice the
F following discussion:
“8. … Tea estates are excluded from the provisions of the Act by
Section 5. “Tea estate” is defined in the interpretation clause of
the Act to mean an area under tea plantation and includes within
the definition “such other area necessary for purposes subservient
G to a tea plantation as may be prescribed”. Rule 3 defines what
areas shall be treated as subservient to a tea plantation. The
amendment made vide notification dated 4-4-1986 places an
embargo on the right to transfer such subservient land though
30
(1988) 2 SCC 351
31
H (2000) 3 SCC 40
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1081
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

exempted from the operation of the Act. Clearly the impugned A
proviso is beyond the rule-making power of the State Government
as conferred by the Act. It is well settled that the legislature cannot
delegate its essential legislative functions which consist in the
determination or choosing of the legislative policy and of formally
enacting that policy into a binding rule of conduct. What is permitted
B
is the delegation of ancillary or subordinate legislative functions,
or, what is fictionally called, a power to fill up the details.
[See: Principles of Statutory Interpretation, Justice G.P. Singh,
(7th Edn., 1999, at pp. 689-90).]
9. In Supreme Court Employees’ Welfare Assn. v. Union of
India [(1989) 4 SCC 187 : 1989 SCC (L&S) 569 : AIR 1990 SC C
334] this Court has held:
“(A) delegated legislation or a subordinate legislation must conform
exactly to the power granted.”
(SCC p. 222, para 62)
D
“Rules, whether made under the Constitution or a statute, must
be intra vires the parent law under which power has been
delegated.”
10. In General Officer Commanding-in-Chief v. Dr Subhash
Chandra Yadav [(1988) 2 SCC 351 : 1988 SCC (L&S) 542 : E
(1988) 7 ATC 296 : AIR 1988 SC 876] it has been held: (SCC p.
357, para 14)
“[B]efore a rule can have the effect of a statutory provision, two
conditions must be fulfilled, namely, (1) it must conform to the
provisions of the statute under which it is framed; and (2) it must
F
also come within the scope and purview of the rule-making power
of the authority framing the rule. If either of these two conditions
is not fulfilled, the rule so framed would be void.”
54. Finally, we may notice Global Energy Ltd. and another v.
Central Electricity Regulatory Commission32. This Court laid down
as follows: G
“25. It is now a well-settled principle of law that the rule-making
power “for carrying out the purpose of the Act” is a general
delegation. Such a general delegation may not be held to be laying
32
(2009) 15 SCC 570
H
1082 SUPREME COURT REPORTS [2023] 9 S.C.R.

A down any guidelines. Thus, by reason of such a provision alone,
the regulation-making power cannot be exercised so as to bring
into existence substantive rights or obligations or disabilities which
are not contemplated in terms of the provisions of the said Act.
26. We may, in this connection refer to a decision of this Court
B in Kunj Behari Lal Butail v. State of H.P. [(2000) 3 SCC 40]
wherein a three-Judge Bench of this Court held as under: (SCC
p. 47, para 14)
“14. We are also of the opinion that a delegated power to legislate
by making rules ‘for carrying out the purposes of the Act’ is a
C general delegation without laying down any guidelines; it cannot
be so exercised as to bring into existence substantive rights or
obligations or disabilities not contemplated by the provisions of
the Act itself.”
[See also State of Kerala v. Unni [(2007) 2 SCC 365] (SCC paras
32 to 37) and A.P. Electricity Regulatory Commission v. R.V.K.
D
Energy (P) Ltd. [(2008) 17 SCC 769 : (2008) 9 Scale 529] ]
55. The case law is relied upon to contend that the impugned
provisions, in the cases before us, purport to achieve, what is not
contemplated by the Act. In other words, the Act does not contemplate
the execution of the gift deed. It becomes impermissible for the Delegate
E of the Law Giver to make subordinate legislation to provide so. We may
only finally notice the recent Judgment of this Court in Indian Young
Lawyers Association and others (Sabarimala Temple-In Re.) v. State
of Kerala and others33, where this Court has reiterated the aforesaid
principles. (See paragraphs 137 to 140 and paragraph 373).
F THE IMPACT OF SECTIONS 36 AND 37
56. The appellants/petitioner would argue that Sections 36 and 37
contemplate acquisition of the lands which are reserved. This means
that there cannot be a gift deed, as contemplated in the impugned Rules/
Regulations.
G 57. We are afraid that though at first blush, the argument may
appear to be attractive, it cannot pass muster on a deeper scrutiny. What
Section 36 provides is, for power to acquire land, under the Land
Acquisition Act. It goes on to provide that any land required, reserved or
designated in a regional plan, master plan, detailed development plan, is
H 33
(2019) 11 SCC 1
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1083
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

deemed to be land needed for a public purpose under the Land Acquisition A
Act. What is more, such land can be acquired under the said law, as
modified in the Act. It is thereafter that Section 37 contemplates that
upon publication of the notice in a Government Gazette of the preparation
of the plan that any land is required, reserved or designated in such plan,
the appropriate Planning Authority, which includes, no doubt, the CMDA,
B
can do two things: (1) It may enter into an agreement for the acquisition
by purchase of any land. It is apparently land, which is covered by Section
36, which means land which is required, reserved or designated in a
master plan, inter alia. (2) The Planning Authority may apply to the
Government for acquiring such land under the Land Acquisition Act.
Section 37(2) goes on to provide that if an application is received and if C
the Government is satisfied that the land is needed for the public purpose,
the Government may make a declaration in the manner provided in Section
6 of the Land Acquisition Act 1894. It will be noticed that what is
contemplated under Sections 36 and 37 is that it is in regard to any land,
which is required, reserved or designated in a plan that the question of
D
acquiring such a land arises. In other words, if the property is needed
under the plan and it is shown as required, reserved or designated, as
such, in the plan, then, it is open to the Authority acting in coordination
with the Government to acquire such land so that the lofty goal of planned
and orderly development, contemplated in the plan, is achieved. In this
connection, it is relevant to notice that Section 37 kicks in immediately E
upon the publication of a notice for the preparation of the plan. The
notice is published under Section 26 or Section 27. Such notice is published
after the consent of the Government is received under Section 25. It is
next relevant to notice Section 38. Section 38 allows the period of three
years from the date of publication of the notice under Section 26 or
F
Section 27 for the Government to publish the declaration contemplated
under Section 37, which, no doubt, amounts to a declaration under Section
6 of the Land Acquisition Act. Section 38 provides that if the declaration
is not made under Section 37 of the Act, the land shall be deemed to be
released from such reservation, allotment or designation. The time limit
of three years, not being observed for acquiring the land by way of G
purchase, also has the same result, viz., the land, which in the plan, is
shown as reserved, allotted or designated, shall be freed from such
reservation, allotment or designation.
58. We are, in these cases, dealing with the reservation of land by
a person, who applies for development of the land and, more specifically, H
1084 SUPREME COURT REPORTS [2023] 9 S.C.R.

A for the purpose of group development. The person, who applies, becomes
obliged under Rule 19(b) to reserve 10 per cent of his land excluding
roads, for communal and recreational purposes. This is a reservation to
be made by a person applying for planning permission on the basis of the
extent of the layout. It is, no doubt, premised on the land being in excess
of a certain threshold becoming subject matter of the planning permission.
B
The land so reserved is to be freed from any construction by the owner/
promoter/developer. The land for communal and recreational purposes,
is to be restricted at ground level in a shape and location to be specified
by the CMDA (See Clause (3) of the Explanation in Rules.). Therefore,
the exact land to be reserved under the impugned Rule, will vary from
C case to case. It is not to be confused with the areas required, reserved
or designated in the plan. In fact, in Annexure XX, which is the subject
matter of the 2008 Regulations, the specific requirement in regard to the
place where the OSR is to be located is indicated as the place where the
property abuts a public road.
D 59. From the Preamble to the DCR, it would appear that the first
master plan was prepared in 1975 for the Chennai Metropolitan Area
and the Government approved it on 04.12.1976. As found by V.
Ramasubramanium, J. in the Judgment, which we have elaborately
referred to, the DCR came to be issued along with the first master plan.
Thereafter, as noticed by him, to deal with group development or flats,
E the issue was taken up by the CMDA by letter dated 22.03.1981,
Government issued GoMS dated 08.10.1982. The learned Judge has
found that the Government exercised power under Section 32 of the
Act. What we are indicating is that the reservation of the land for
communal or recreational purposes in individual cases, on the basis of
F applications made by persons, is not to be conflated with the land which
is declared as required, reserved or designated in the master plan, inter
alia, which latter categories alone are the subject matter of Sections 36
and 37 of the Act.
IS THE IMPUGNED RULE/REGULATION BAD FOR
G THE REASON THAT IT IS CONTRARY TO THE
MANDATE OF SECTION 39 OF THE ACT?
60. Section 39 of the Act, reads as follows:
“39. Right to compensation. - (1) Any person whose property is
injuriously affected by virtue of any of the provisions contained in
H any regional plan, master plan, detailed development plan or a
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1085
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

new town development plan made under this Act shall, if he prefers A
a claim for the purpose to the Tribunal with such particulars and
within such period as may be prescribed, be entitled to obtain
compensation 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 B
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.
C
(2) If, at any time after the day on which any regional plan, master
plan, detailed development plan, or a new town development plan
has come into force, such plan is varied, or revoked, any person
who has incurred any expenditure for the purpose of complying
with such plan, shall, if he prefers a claim for the purpose to the
Tribunal with such particulars and within such time as may be D
prescribed, be entitled to obtain compensation in respect thereof
as determined by the Tribunal, if by reason only of the variation or
revocation of such plan, such expenditure has ceased to be in any
way beneficial to him.”
61. What Section 39 contemplates is the following: E

A person must be injuriously affected on account of any of the
provisions contained in a regional plan, master plan, detailed development
plan or a new town development plan, under the Act. Should this occur,
the affected party becomes entitled to move the Tribunal and seek
compensation, which is to be determined by the Tribunal. The proviso F
to Section 39(1), however, declares that property shall not be deemed to
be injuriously affected on account of any development plan, which may
impose certain conditions, which are specified in Section 15(2)(f), Section
17(2)(k) and (l) or in Section 20(1)(m) and (n).
62. ‘Development plan’ is defined in Section 2(15) as follows: G
“(15) “development plan” means a plan for the development or
re-development or improvement of the area within the jurisdiction
of a planning authority and includes a regional plan, master plan,
detailed development plan and a new town development plan
prepared under the Act.” H
1086 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 63. Therefore, a development plan would embrace a master plan.
The effect of the proviso is that, in respect of the matters contained in
the proviso, the law declares that there would not be a claim for
compensation on the basis that the property of a person is injuriously
affected as a result of the contents of the development plan in relation to
matters specified in the proviso. The word ‘injuriously affected’ would
B
apparently mean that a person has land, which is adversely affected as
a result of the coming into operation of the development plan. Section
15(2)(f) deals with demarcation of objects and buildings of archaeological
or historical interests or of natural beauty or actually used for religious
purposes or as regarded by the public with veneration. Similarly, Section
C 17(2)(k) deals with control of architectural features, elevation and frontage
of buildings and structures. Section 17(2)(l), which is also referred to in
the proviso, deals with matters relating to zonal regulations, location, the
height, the number of storeys, size of buildings and other structures, the
size of the yards and other open spaces and the use of buildings,
structures and land. If anyone is otherwise injuriously affected as a result
D
of any of these aspects provided for in a master plan under Section 17,
he cannot make a complaint of it under Section 39 and claim compensation
for it. The master plan provides for zones, nine in number. One of the
zones is open space zone. Open space requirements are separately
stipulated in respect of other zones. Similarly, Section 20, which deals
E with the contents of the detailed development plan, in sub-Section (1)(m),
deals essentially with buildings of archaeological and historical interests,
inter alia. Section 20(1)(n) of the Act reads as follows:
“20(1)(n) the imposition of conditions and restrictions in regard to
the character, density, architectural features and height of buildings,
F the building or control lines for roads, railway lines and power
supply lines and the purposes to which buildings or specified areas
may or may not be appropriated and the provision and maintenance
of sufficient open spaces about buildings;”
64. A perusal of Section 39 would clearly reveal that a right to
compensation is conferred on any person whose property is ‘injuriously
G affected’ by any of the provisions contained in the master plan. A person
seeking to develop his land and if he falls within the ambit of rule/regulation
in question cannot be described as a person whose property is injuriously
affected by the provisions of the master plan inter alia. The very language
used in Section 39 appears to be incongruous with the raising of any
H such claim.It is not as if the parties have in this case raised any such
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1087
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

claim.The contention taken in the case of M/s. Keyaram Hotels is that A
Section 39 provides for compensation to persons who are affected in
the manner provided in the said provision. The provision actually deals
with cases of a person having property, who, with the making of a master
plan, inter alia, becomes injuriously affected. The words ‘injuriously
affected’ would bear meaning if expounded with reference to a person
B
who has a property and that property becomes injuriously affected by
virtue of the provision of any master plan. Take for instance, the land of
a person is found to fall in a zone which is earmarked in the primary
residential use zone. The provision in the DCR which forms part of the
plan inter alia provides that all uses not specifically permitted under sub-
rule (a) and (b) will stand prohibited in the zone. The proviso is only to be C
understood as qualifying the ambit of the main provision which itself
must be understood has application in cases where a person is injuriously
affected by the provision of a master plan interalia.
65. We are reinforced in our view that the contention of the
appellants is misplaced with reference to the concept of ‘injuriously D
affected’ finding expression in Section 39, having regard to the decision
by this Court in Prakash Amichand Shah v. State of Gujarat34. This
was also a case relating to town planning.It arose under the Bombay
Town Planning Act. We may only refer to paragraph 10 which reads as
follows:
E
“10. Section 69 states that the owner of any property or right
which is injuriously affected by the making of a town planning
scheme shall be entitled to obtain compensation from the local
authority or from any person benefited or partly from the local
authority and partly from such person as the Town Planning Officer
may in each case determine. It seems obvious that the property F
or right which is injuriously affected by the making of a town
planning scheme is a property or right other than that acquired for
the purposes of the scheme. The property or right affected remains
with the owner who is entitled to compensation for such injurious
affection. When under the Act a plot of land is taken for the
G
purposes of a town planning scheme, it cannot be suggested that
that land itself is injuriously affected; such a view is unsupportable
both as a matter of language and having regard to the scheme of
the Act. On behalf of the appellant it was urged that clause (xiii)
would cover the case of the appellant if only we read a few words
34
(1981) 3 SCC 508 H
1088 SUPREME COURT REPORTS [2023] 9 S.C.R.

A in that clause and that we should do so to avoid injustice being
done to the appellant and the owners of land similarly situated.
That we are afraid is not possible. We find no compelling reason
for restructuring the clause, and taking acquisition of land to mean
“injurious affection” of the land acquired would be inconsistent
with the entire scheme of the Act. We may refer to clause
B
“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”.
C The expression “person interested” as defined in Section 3 of the
Land Acquisition Act means all persons calming an interest in
compensation to be made on account of the acquisition of land
under that Act. It is made clear in clause “fourthly” that the
damage is for injurious affection of some property other than the
land acquired. The sense in which the expression “injurious
D
affection” is used in Section 23(1) of the Land Acquisition Act is
the generally accepted meaning of that expression and we find
nothing in the Act concerned in this case that suggests that it
should be construed differently.”
66. The case of a person developing land being subjected to the
E requirement of leaving 10 percent of the property in a situation where
more than nearly 2 and a half acres is being developed in an urban
metropolis as space for communal and recreational purposes cannot be
said to be a person ‘injuriously affected’ within the meaning of
Section 39.
F THE IMPACT OF SECTIONS 48 TO 55
67. The contention is taken that Sections 48 and 49 do not authorise
or enable deprivation of a person’s property sought to be developed free
of cost.Equally, it is contended that Sections 52 to 54 obligate the state to
acquire lands even if permission for development is rejected or if any of
G the conditions for any permission is objected or even if any modifications
of already given permission is not acceptable to the owner. It is also
contended that Sections 52 to 54 patently provide for compensation.
Therefore, the impugned rule which provides for a compelled gift involving
transfer of right to property free of cost is ultravires. It is the further
H contention that the legislature took extraordinary care to ensure that a
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1089
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

landowner is not affected or injured even slightly because of the planning A
law. The exceptions from obligation to pay compensation are provided
in Sections 17(2)(k) and (l) which relate to the use of land and do not
provide for reserving any land for public purpose.
68. Section 47 of the Act comes under Chapter VI which deals
with control of development and use of land. It declares that afterthe B
coming into operation of any development plan in any area, any person,
other than the government or local authority, cannot use or cause to be
used any land otherwise in accordance with the development plan.This
would mean that once a development plan which includesa 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 C
activities must be carried on only in accordance with the terms of the
master plan. Section 48 is intended to place restrictions on buildings and
land when a notice in the Gazette is published under Section 26, inter
alia. With the publication of the notice which is a prelude to the coming
into operation of the plan under Section 30, Section 48 prohibits the D
erection of any building or other work or other excavationas enumerated
therein except with a written permission of the planning authority and
subject to such conditions. Section 49 provides for application for such
permission when notice of preparation of a master plan, interalia, is
published under Section 26 of the Act inviting the restrictions contemplated
in Section 48. It is dealing with such a situation, namely, when the master E
plan, inter alia, has not come into operation and only a notice is published
under Section 26, inter alia, that Section 49(2) provides for three matters
which are to guide the planning authority in deciding whether permission
should be granted or not. They are as follows: -
i. The purpose. F

ii.The suitability of the place for such purpose.
iii. The future development and maintenance of the planning area.
69. Section 50 provides that the permission granted under Section
49 is to remain in force for a period of three years from the date of G
permission. It can be extended but subject to a maximum period of three
years.Section 52 provides for an obligation to acquire land or building. It
operates in the following circumstances. A land may be required or
reserved or designated in any development plan which includes master
plan. A person must be interested in the land or building which is so
H
1090 SUPREME COURT REPORTS [2023] 9 S.C.R.

A required, reserved or designated in such plan. He must have made an
application seeking permission.The application must have been either
refused or granted, subject to conditions. For the section to operate the
following further conditions must exist. The refusal to grant permission
should result in the land or building becoming incapable of reasonably
beneficial use in the condition in which the land is.This means that as a
B
result of the land or building being required, reserved or designated in
the plan, the person interested in the land or building is unable to use the
land for which he could have used, but for the requirement, reservation
or designation in the plan, and it has resulted in the rejection of his
application for permission to develop the property. Then the law has
C given the person so aggrieved to serve a notice described as the
‘acquisition notice’ calling upon the government to acquire his interest in
the land or building. The same would be the position if permission is
granted but subject to the conditions which render the land incapable of
beneficial use. Section 53 deals with refusal of permission or grant of
permission subject to conditions in certain other cases. Infact, the proviso
D
in Section 53 declares that no compensation can be claimed under the
main provision if the refusal or grant of permission subject to conditions
is based on any provision of any development plan. Section 54 deals
with cases of permission which is granted for any development under
the Act being revoked or modified.Section 54(2) contemplates
E compensation for the expenditure which is incurred for carrying out the
development based on the grant of permission which was rendered
abortive by the revocation.Section 55 declares that nothing in the Act
confers any right to obtain compensation in respect of development made
by a person after a notice in the Gazette is published under Section 26,
inter alia, without obtaining the permission as required under Section 49.
F
Sub-section 2 of Section 55 reads as follows: -
“(2). Whether any property is alleged to be injuriously affected by
reason of any of the provisions contained in any development
plan, no compensation shall be paid in respect thereof, if or in so
far as the provisions are such as would have been enforceable
G without any compensation under any law, rule or regulation or
bye-law at the time in force.”
70. We are unable to find merit in the contention that Rule 19 of
the DCR or the regulation which is impugned is in anyway ultravires of
the provision of the Act and the arguments suggestive of the same are
H repelled.
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1091
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

71. Even though the appellant’s (M/s. Keyaram Hotels Pvt.Ltd.) A
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
B
which was not raised before the High Court.It is true that the gift deed
was executed on 22.05.1996. But this was not a ground which was
urged before the court and we do not intend to explore the contention in
this proceeding.
72. We have found that the impugned rule/ regulation cannot be
said to be ultra vires the parent act. This is after finding that the rule has C
statutory force.
THE RIGHTS REGIME
73. It is necessary to deal with a right, a person has, as an owner
of a property. In Salmond on Jurisprudence 12th Edition, we note the
D
following:
“Secondly, the owner normally has a right to use and enjoy the
thing owned: right to manage it, i.e., the right to decide how it shall
be used; and the right to the income from it. Whereas the right to
possess is a right in the strict sense, these rights are in fact liberties:
the owner has a liberty to use the thing, i.e., he is under no duty E
not to use it, in contrast with others who are under a duty not to
use or interfere with it.”
74. We may however notice the following:
“This does not mean, however, that an owner whose property is F
unencumbered has completely unlimited rights. To describe
someone as an absolute owner of property is to say two things; it
is to assert that his title to the property is indisputable, and that he
has all the rights of ownership allowed by the legal system in
question. We have seen that the rights of ownership may be limited
by the adverse dominant rights of an encumbrancer or by the G
rights of the possessor (who is in fact one very special type of an
encumbrancer). They may also be limited by special provisions of
law such as Town & Country planning law, which regulates for
social purposes the use which an owner may make office land.
But in addition to being restricted by such specific provisions of H
1092 SUPREME COURT REPORTS [2023] 9 S.C.R.

A public law, and owner’s rights are restricted by a whole variety of
provisions of the ordinary law, according to which various harmful
and dangerous types of conduct qualify as criminal or tortious;
the fact that I am the owner of a knife will not entitle me to use it
to kill Smith. We may say that an owner is free to use and dispose
of his property as he pleases, except in so far as he does not
B
infringe his duties to specific encumbrancers, his duties under
special regulations concerning the use of property (f) and his
general duties under the general law of the land (f).”
(Emphasis supplied)
C 75. In T. Vijayalakshmi v. Town Planning Member,35 this Court
while dealing with a case arising under the Town Planning Law had this
to say:
“13. Town Planning legislations are regulatory in nature. The right
to property of a person would include a right to construct a building.
D Such a right, however, can be restricted by reason of a legislation.
15. The law in this behalf is explicit. Right of a person to construct
residential houses in the residential area is a valuable right. The
said right can only be regulated in terms of a regulatory statute
but unless there exists a clear provision the same cannot be taken
E away.It is also a trite law that the building plans are required to be
dealt with in terms of the existing law. Determination of such a
question cannot be postponed far less taken away. Doctrine of
legitimate expectation in a case of this nature would have a role
to play.”

F (Emphasis supplied)
76. In Indore Vikas Pradhikaran v. Pure Industrial Coke &
Chemicals Ltd.,36 this Court was again dealing with a case under the
town Planning Law. The following statement requires to be noticed:
“45. Town and country planning involving land development of
G the cities which are sought to be achieved through the process of
land use, zoning plan and regulating building activities must receive
due attention of all concerned. We are furthermore not oblivious
of the fact that such planning involving highly complex cities
35
(2006) 8 SCC 502
36
H (2007) 8 SCC 705
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1093
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

depends upon scientific research, study and experience and, thus, A
deserves due reverence.
46. Where, however, a scheme comes into force, although it may
cause hardship to the individual owners as they may be prevented
from making the most profitable use of their rights over property,
having regard to the drastic consequences envisaged thereunder, B
the statute should be considered in such a manner as a result
whereof greater hardship is not caused to the citizens than actually
contemplated thereby. Whereas an attempt should be made to
prevent unplanned and haphazard development but the same would
not mean that the court would close its eyes to the blatant illegalities
committed by the State and/or the statutory authorities in C
implementation thereof. Implementation of such land development
as also building laws should be in consonance with public welfare
and convenience. In United States of America zoning ordinances
are enacted pursuant to the police power delegated by the State.
Although in India the source of such power is not police power D
but if a zoning classification imposes unreasonable restrictions, it
cannot be sustained. The public authority may have general
considerations, safety or general welfare in mind, but the same
would become irrelevant, as thereby statutory rights of a party
cannot be taken away. The courts must make an endeavour to
strike a balance between public interest on the one hand and E
protection of a constitutional right to hold property, on the other.
47. For the aforementioned purpose, an endeavour should be made
to find out as to whether the statute takes care of public interest
in the matter vis-à-vis the private interest, on the one hand, and
the effect of lapse and/or positive inaction on the part of the State F
and other planning authorities, on the other.
52. The courts should, therefore, strive to find a balance of the
competing interests.
Human rights issue
G
53. The right to property is now considered to be not only a
constitutional right but also a human right.
Interpretation of the Act
57. The Act being regulatory in nature as by reason thereof the
right of an owner of property to use and develop stands restricted, H
1094 SUPREME COURT REPORTS [2023] 9 S.C.R.

A requires strict construction. An owner of land ordinarily would be
entitled to use or develop the same for any purpose unless there
exists certain regulation in a statute or statutory rules. Regulations
contained in such statute must be interpreted in such a manner so
as to least interfere with the right to property of the owner of
such land. Restrictions are made in larger public interest. Such
B
restrictions, indisputably must be reasonable ones. (See Balram
Kumawat v. Union of India [(2003) 7 SCC 628] ; Krishi
Utpadan Mandi Samiti v. PilibhitPantnagar Beej Ltd. [(2004)
1 SCC 391] and Union of India v. West Coast Paper Mills
Ltd. [(2004) 2 SCC 747] ) The statutory scheme contemplates
C that a person and owner of land should not ordinarily be deprived
from the user thereof by way of reservation or designation.
58. Expropriatory legislation, as is well-known, must be given a
strict construction.
(Emphasis supplied)
D
77. An owner of land may not have an absolute and unqualified
right which is the idea which not unnaturally comes to mind when the
idea of ownership is under consideration. As we have already noted, the
right is capable of being regulated and restricted under a law relating to
Town Planning. Proceeding on the basis that DCR is law, the question
E would arise under the said law whether a person can use his land as he
chooses. Zoning requirements have been put in place. Primarily in a
residential zone, can anyone put up an industrial establishment if the said
use is prohibited? The answer is quite clearly in the negative. Can anyone
construct a building in excess of the stipulated requirement as to the
F height of the building or contravening restrictions such as setback, floor
space area etc.? The answer cannot be in the affirmative.
78. At this juncture, we may also notice the scheme of the
Constitution as regards property rights. When Constitution was originally
enacted the right to acquire, hold and dispose of property was guaranteed
G as a fundamental right to citizens of India vide Article 19(1)(f). This
was, however, made subject to reasonable restrictions which could no
doubt be imposed by a law under Article 19(5). That apart, Article 31
originally provided as follows:
“31. (1) No person shall be deprived of his property save by
authority of law.
H
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1095
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

(2) No property, movable or immovable, including any interest in, A
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 compensation for
the property taken possession of or acquired and either fixes the
B
amount of the compensation, or specifies the principles on which,
and the manner in which, the compensation is to be determined
and given.
(3) No such law as is referred to in clause (2) made by the
legislature of a State shall have effect unless such law, having
been reserved for the consideration of the President, has received C
his assent.
(4) If any Bill pending at the commencement of this Constitution
in the legislature of a State has, after it has, been passed by such
Legislature, been reserved for the consideration of the President
and has received his assent, then, notwithstanding anything in this D
Constitution, the law so assented to shall not be called in question
in any court on the ground that it contravenes the provisions of
clause (2).
(5) Nothing in clause (2) shall affect—
E
(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 F
(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 G
respect to property declared by law to be evacuee property.
(6) Any law of the State enacted not more than eighteen months
before the commencement of this Constitution may within three
months from such commencement be submitted to the President
for his certification; and thereupon, if the President by public H
1096 SUPREME COURT REPORTS [2023] 9 S.C.R.

A notification so certifies, it shall not be called in question in any
court on the ground that it contravenes the provisions of clause
(2) of this article or has contravened the provisions of sub-section
(2) of Section 209 of the Government of India Act, 1935.”
79. This Article 31 came to be amended by Constitution (Fourth
B Amendment) Act and after the amendment, the amended provision read
as follows:
The Constitution (Fourth Amendment) Act amended clause (2)
and inserted a new clause (2-A). The amended clause (2) and
the new clause (2-A) are in these terms:
C “31. (2) No property shall be compulsorily acquired or requisitioned
save for a public purpose and save by authority of a law which
provides for compensation for the property so acquired or
requisitioned and either fixes the amount of the compensation or
specifies the principles on which, and the manner in which, the
D compensation is to be determined and given; and no such law
shall be called in question in any court on the ground that the
compensation provided by that law is not adequate.
(2-A). Where a law does not provide for the transfer of the
ownership or right to possession of any property to the State or to
E a corporation owned or controlled by the State, it shall not be
deemed to provide for the compulsory acquisition or requisitioning
of property, notwithstanding that it deprives any person of his
property.”
80. At this juncture again, we must notice the aspect of Police
F power, in contrast with the Doctrine of Eminent Domain.
81. In the judgment of this court in Deputy Commissioner and
Collector v. Durga Nath Sarma37, this Court has noticed the amendment
of Article 31 as noticed hereinbefore and has expounded the law in the
following paragraph:
G “10. Our attention has been drawn to certain opinions expressed
in our earlier decisions that Article 31(2) occupies the field of
eminent domain and Article 31(5)(b)(ii) contains a saving clause
with regard to the police powers of the State. The concepts of
eminent domain and police powers are borrowed from American
37
H AIR 1968 SC 394
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1097
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

law. The constitutional guarantee of the due process clause in the A
United States Constitution requires that no private property shall
be taken for public use without just compensation. In the exercise
of its police power, the State may pass regulations designed to
ensure public health, public morals, public safety as also public
convenience or general prosperity, see Chicago, Burlington &
B
Quincy Railway company v. People of the State of Illinois [200
US 561 : 50 LEd 596, 609] . In the exercise of its eminent domain
power, the State may take any property from the owner and may
appropriate it for public purposes. The police and eminent domain
powers are essentially distinct. Under the police power many
restrictions may be imposed and the property may even be C
destroyed without compensation being given, whereas under the
power of eminent domain, the property may be appropriated to
public use on payment of compensation only. The distinction
between the two powers is brought out clearly in the following
passage in American Jurisprudence, 2nd Edn., Vol. 16, Article
D
301 p. 592:
“The state, under the police power, cannot in any manner
actually take and appropriate property for public use without
compensation, for such action is repugnant to the constitutional
guaranty that where private property is appropriated for public
use, the owner shall receive reasonable compensation. Thus, there E
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 F
addition, and as the best means of accomplishing the end in view,
authorizes the same property to be appropriated by the public.”
In Sweet v. Rechel [159 US 380 : 40 LEd 188] the validity of
an Act to enable the city of Boston to abate a nuisance existing
therein and for the preservation of the public health in the city G
by improving the drainage of the territory was sustained on the
ground that the Act provided for payment of just compensation.
The Court pointed out that private property the condition of
which was such as to endanger the public health could not be
legally taken by the Commonwealth and appropriated to public
H
1098 SUPREME COURT REPORTS [2023] 9 S.C.R.

A use without reasonable compensation to the owner.
In Delaware L. & W.R. Co. v. Morristown [276 US 182 : 72
LEd 523, 527] an Ordinance establishing a public hack stand
on private property without payment of compensation was
struck down on the ground that assuming that the creation of
the public hack stand would be a proper exercise of the police
B
power it did not follow that the due process clause would not
safeguard to the owner just compensation for the use of the
property. In United States v. Caltex (Philippines) [344 US
149 : 97 LEd 157] the Court held that no compensation was
payable by the United States for the destruction by its retreating
C army of private property to prevent its falling into enemy hands.
But the Court recognised that compensation would be payable
for the army’s requisitioning of private property for its
subsequent use. The Court said that in times of imminent peril
such as when fire threatened a whole community — the
sovereign could, with immunity, destroy the property of a few
D
that the property of many and the lives of many more could be
saved. Indeed, it would be folly not to destroy some building so
that an entire town may be saved from the conflagration, as
will appear from the following historic incident referred to
in Respublica v. Sparhawk [1 Dall 357, 363 : 1 LEd 174] :
E “We find, indeed, a memorable instance of folly recorded in
the 3rd Vol. of Clarendon’s History, where it is mentioned,
that the Lord Mayor of London in 1666, when the city was on
fire, would not give directions for, or consent to, the pulling
down forty wooden houses or to removing the furniture etc.
F belonging to the lawyers of the temple, then on the circuit, for
fear he should be answerable for a trespass; and in
consequence of this conduct, half that great city was burnt.”
If Article 31(5)(b)(ii) is regarded as a saving clause with regard
to the police power of the State, it is clear that under a law designed
G 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
compensation, but it cannot arrogate to itself the power to acquire
and appropriate to its own use private property without payment
of compensation.
H
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1099
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

82. We may also notice that in Tukaram Kana Joshi v. MIDC38, A
while dealing with a case of acquisition of land, this Court held as follows:
“11. …The appellants had asked repeatedly for grant of the benefit
of compensation. The State must either comply with the procedure
laid down for acquisition, or requisition, or any other permissible
statutory mode. There is a distinction, a true and concrete B
distinction, between the principle of “eminent domain” and “police
power” of the State. Under certain circumstances, the police power
of the State may be used temporarily, to take possession of
property but the present case clearly shows that neither of the
said powers have been exercised. A question then arises with
respect to the authority or power under which the State entered C
upon the land. It is evident that the act of the State amounts to
encroachment, in exercise of “absolute power” which in common
parlance is also called abuse of power or use of muscle power.
To further clarify this position, it must be noted that the authorities
have treated the landowner as a “subject” of medieval India, but D
not as a “citizen” under our Constitution.”
83. It has been followed in Bhimandas Ambwani (Dead) through
LRs v. Delhi Power Company Ltd.39.
84. While on the issue relating to the aspect of acquisition, a case
arose under the Coffee Act in Coffee Board, Karnataka, Bangalore E
v. Commissioner of Commercial Taxes, Karnataka and others 40 and
the question which arose was whether the coffee grower who made a
sale made compulsorily to the Coffee Board amounted to sale or was it
an acquisition. It is apposite that we advert to the following paragraphs:
“28. Since all persons including the Coffee Board are prohibited F
from purchasing/selling coffee in law, there could be no sale or
purchase to attract the imposition of sales/purchase tax it was
urged. Even if there was compulsion there would be a sale as
was the position in Vishnu Agencies [(1978) 2 SCR 433 : (1978)
1 SCC 520 : 1978 SCC (Tax) 31 : AIR 1978 SC 449] . This Court
therein approved the minority opinion of Hidayatullah, J. in New G
India Sugar Mills v. CST [New India Sugar Mills Ltd. v. CST,
AIR 1963 SC 1207 : 1963 Supp (2) SCR 459 : (1963) 14 STC
38
(2013) 1 SCC 353
39
(2013) 14 SCC 195
40
(1988) 3 SCC 263, H
1100 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 316] . In the nature of the transactions contemplated under the
Act mutual assent either express or implied is not totally absent in
this case in the transactions under the Act. Coffee growers have
a volition or option, though minimal or nominal to enter into the
coffee growing trade. Coffee growing was not compulsory. If
anyone decides to grow coffee or continue to grow coffee, he
B
must transact in terms of the regulation imposed for the benefit of
the coffee growing industry. Section 25 of the Act provides the
Board with the right to reject coffee if it is not up to the standard.
Value to be paid as contemplated by the Act is the price of the
coffee. Fixation of price is regulation but is a matter of dealing
C between the parties. There is no time fixed for delivery of coffee
either to the Board or the curer. These indicate consensuality
which is not totally absent in the transaction.”
It was found that it was a sale which took place.
85. Article 31 stands omitted and Article 19(1)(f) also stands
D deleted by way of the Forty-Fourth Amendment to the Constitution which
came into effect from 20.06.1979. It is by the very same amendment
that Article 300A was inserted in the Constitution. Article 300A is a
resurrection of Article 31 (1). This Court in the judgment in Jilubhai
Nanbhai Khachar v. State of Gujarat41 held as follows:
“34. The right of eminent domain is the right of the sovereign
E
State, through its regular agencies, to reassert, either temporarily
or permanently, its dominion over any portion of the soil of the
State including private property without its owner’s consent on
account of public exigency and for the public good. Eminent domain
is the highest and most exact idea of property remaining in the
F Government, or in the aggregate body of the people in their
sovereign capacity. It gives the right to resume possession of the
property in the manner directed by the Constitution and the laws
of the State, whenever the public interest requires it. The term
‘expropriation’ is practically synonymous with the term “eminent
domain”.
G
(Emphasis supplied)
This Court opined that the right to property is not a basic feature
of the Constitution [See paragraph 30]. We may also notice the following
views: -
41
H 1995 (suppl.) 1 SCC 596
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1101
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

“48. The word ‘property’ used in Article 300-A must be understood A
in the context in which the sovereign power of eminent domain is
exercised by the State and property expropriated. No abstract
principles could be laid. Each case must be considered in the light
of its own facts and setting. The phrase “deprivation of the property
of a person” must equally be considered in the fact situation of a
case. Deprivation connotes different concepts. Article 300-A gets B
attracted to an acquisition or taking possession of private property,
by necessary implication for public purpose, in accordance with
the law made by Parliament or a State Legislature, a rule or a
statutory order having force of law. It is inherent in every sovereign
State by exercising its power of eminent domain to expropriate C
private property without owner’s consent. Prima facie, State
would be the judge to decide whether a purpose is a public purpose.
But it is not the sole judge. This will be subject to judicial review
and it is the duty of the court to determine whether a particular
purpose is a public purpose or not. Public interest has always
been considered to be an essential ingredient of public purpose. D
But every public purpose does not fall under Article 300-A nor
every exercise of eminent domain an acquisition or taking
possession under Article 300-A. Generally speaking preservation
of public health or prevention of damage to life and property are
considered to be public purposes. Yet deprivation of property for E
any such purpose would not amount to acquisition or possession
taken under Article 300-A. It would be by exercise of the police
power of the State. In other words, Article 300-A only limits the
powers of the State that no person shall be deprived of his property
save by authority of law. There has to be no deprivation without
any sanction of law. Deprivation by any other mode is not F
acquisition or taking possession under Article 300-A. In other
words, if there is no law, there is no deprivation. Acquisition of
mines, minerals and quarries is deprivation under Article 300-A.”
(Emphasis supplied)
86. A Constitution Bench has considered the aspects arising out G
of the changes brought by the amendment to the Constitution by the
insertion of Article 300A in the judgment of this Court in K.T. Plantation
Private Limited v. State of Karnataka42. We may advert to the following
views:
42
(2011) 9 SCC 1 H
1102 SUPREME COURT REPORTS [2023] 9 S.C.R.

A “178. The principles of eminent domain, as such, are not seen
incorporated in Article 300-A, as we see, in Article 30(1-A), as
well as in the second proviso to Article 31-A(1) though we can
infer those principles in Article 300-A. The provision for payment
of compensation has been specifically incorporated in Article 30(1-
A) as well as in the second proviso to Article 31-A(1) for achieving
B
specific objectives. The Constitution (Forty-fourth Amendment)
Act, 1978 while omitting Article 31 brought in a substantive
provision clause (1-A) to Article 30. Resultantly, though no
individual or even educational institution belonging to majority
community shall have any fundamental right to compensation in
C case of compulsory acquisition of his property by the State, an
educational institution belonging to a minority community shall have
such fundamental right to claim compensation in case the State
enacts a law providing for compulsory acquisition of any property
of an educational institution established and administered by a
minority community. Further, the second proviso to Article 31-
D A(1) prohibits the legislature from making a law which does not
contain a provision for payment of compensation at a rate not less
than the market value which follows that a law which does not
contain such provision shall be invalid and the acquisition
proceedings would be rendered void.
E 179. Looking at the history of the various constitutional
amendments, judicial pronouncements and the Statement of Objects
and Reasons contained in the Forty-fourth Amendment Bill which
led to the Forty-fourth Amendment Act we have no doubt that the
intention of Parliament was to do away with the fundamental right
to acquire, hold and dispose of the property. But the question is
F
whether the principles of eminent domain are completely
obliterated when a person is deprived of his property by the
authority of law under Article 300-A of the Constitution.
Public purpose

G 180. Deprivation of property within the meaning of Article 300-
A, generally speaking, must take place for public purpose or public
interest. The concept of eminent domain which applies when a
person is deprived of his property postulates that the purpose must
be primarily public and not primarily of private interest and merely
incidentally beneficial to the public. Any law, which deprives a
H person of his private property for private interest, will be unlawful
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1103
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

and unfair and undermines the rule of law and can be subjected to A
judicial review. But the question as to whether the purpose is
primarily public or private, has to be decided by the legislature,
which of course should be made known.
Compensation
182. We have found that the requirement of public purpose is B
invariably the rule for depriving a person of his property, violation
of which is amenable to judicial review. Let us now examine
whether the requirement of payment of compensation is the rule
after the deletion of Article 31(2).
183. Payment of compensation amount is a constitutional C
requirement under Article 30(1-A) and under the second proviso
to Article 31-A(1), unlike Article 300-A. After the Forty-fourth
Amendment Act, 1978, the constitutional obligation to pay
compensation to a person who is deprived of his property primarily
depends upon the terms of the statute and the legislative policy.
Article 300-A, however, does not prohibit the payment of just D
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.
188. We find no apparent conflict with the words used in List III E
Entry 42 so as to infer that the payment of compensation is inbuilt
or inherent either in the words “acquisition and requisitioning”
under List III Entry 42. Right to claim compensation, therefore,
cannot be read into the legislative List III Entry 42.
189. Requirement of public purpose, for deprivation of a person F
of his property under Article 300-A, is a precondition, but no
compensation or nil compensation or its illusiveness has to be
justified by the State on judicially justiciable standards. Measures
designed to achieve greater social justice, may call for lesser
compensation and such a limitation by itself will not make legislation G
invalid or unconstitutional or confiscatory. In other words, the right
to claim compensation or the obligation to pay, though not expressly
included in Article 300-A, it can be inferred in that article and it is
for the State to justify its stand on justifiable grounds which may
depend upon the legislative policy, object and purpose of the statute
and host of other factors. H
1104 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 190. Article 300-A would be equally violated if the provisions of
law authorising deprivation of property have not been complied
with. While enacting Article 300-A Parliament has only borrowed
Article 31(1) (the “Rule of Law” doctrine) and not Article 31(2)
(which had embodied the doctrine of eminent domain). Article
300-A enables the State to put restrictions on the right to property
B
by law. That law has to be reasonable. It must comply with other
provisions of the Constitution. The limitation or restriction should
not be arbitrary or excessive or what is beyond what is required
in public interest. The limitation or restriction must not be
disproportionate to the situation or excessive.
C 191. The legislation providing for deprivation of property under
Article 300-A must be “just, fair and reasonable” as understood
in terms of Articles 14, 19(1)(g), 26(b), 301, etc. Thus in each
case, courts will have to examine the scheme of the impugned
Act, its object, purpose as also the question whether payment of
D nil compensation or nominal compensation would make the
impugned law unjust, unfair or unreasonable in terms of other
provisions of the Constitution as indicated above.
192. At this stage, we may clarify that there is a difference
between “no” compensation and “nil” compensation. A law
E seeking to acquire private property for public purpose cannot say
that “no compensation shall be paid”. However, there could be a
law awarding “nil” compensation in cases where the State
undertakes to discharge the liabilities charged on the property under
acquisition and onus is on the Government to establish validity of
such law. In the latter case, the Court in exercise of judicial review
F will test such a law keeping in mind the above parameters.
209. Statutes are many which though deprive a person of his
property, have the protection of Article 30(1-A), Articles 31-A,
31-B, 31-C and hence are immune from challenge under Article
19 or Article 14. On deletion of Article 19(1)(f) the available
G grounds of challenge are Article 14 [Ed.: It would seem that for
statutes not protected by Arts. 31-A, 31-B or 31-C, Art. 14
simpliciter is available as a ground of challenge. For statutes
protected by Arts. 31-A, 31-B and 31-C, it would seem that a
challenge under Art. 14 would be maintainable only when taken as
H a part of the basic structure of the Constitution, as explained
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1105
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

in I.R. Coelho, (2007) 2 SCC 1.] , the basic structure and the rule A
of law, apart from the ground of legislative competence. In I.R.
Coelho case [(2007) 2 SCC 1] the basic structure was defined in
terms of fundamental rights as reflected under Articles 14, 15, 19,
20, 21 and 32. In that case the Court held that statutes mentioned
in Schedule IX are immune from challenge on the ground of
B
violation of fundamental rights, but if such laws violate the basic
structure, they no longer enjoy the immunity offered by Schedule
IX.”
(Emphasis supplied)
DOWN MEMORY LANE C
PT. CHET RAM VASHIST (DEAD) BY LRS. V. MUNICIPAL
CORPORATION OF DELHI43
87. In the said case, the Municipal Corporation of Delhi passed a
Resolution that, building activity in certain areas, be allowed, subject to
the condition that the open spaces for parks and schools was to be D
transferred to the Corporation. This led to a civil suit by the appellant,
challenging the Resolution. This Court found that Section 313 of the
Delhi Municipal Corporation Act, 1957, did not empower the Corporation
to claim any property in the manner done. It was further found that the
Resolution was contrary to the language used in Section 313 and violated E
a civil right, which vests in every owner, to hold his land and transfer it in
accordance with law. The finding of the High Court that condition was
only one involving transfer of the right of management, was not accepted.
In fact, this Court also held, inter alia, as follows:
“5. The power directing transfer of the land has been exercised F
under Section 313 of the Act. This section falls in Chapter XV
which deals with streets. The public streets are dealt from Section
298 to Section 311 whereas private streets are dealt from Section
312 to Section 330. Section 312 obliges an owner of any land
utilising, selling, leasing out or otherwise disposing of the land for
the construction of building to layout and make a street or streets G
giving access to the plots into which the land may be divided and
connect it with an existing or public street. Section 313 requires
such owner to submit a layout plan before utilising the land for
any of the purposes mentioned in Section 312 and send it to the
43
(1995) 1 SCC 47 H
1106 SUPREME COURT REPORTS [2023] 9 S.C.R.

A Commissioner with a layout plan showing the particulars mentioned
in clauses (a) to (e). The reservation or allotment of any site in
the layout plan for any open space, park or school is to be provided
by clause (b) of Section 313. Section 316 entitles the Commissioner
to declare a private street to be a public street on the request of
owners. Section 317 prohibits a person from constructing or
B
projecting any structure which will encroach upon, overhang or
project into a private street. In fact the entire cluster of sections
from 312 to 330 of which Section 313 is a part, deals with private
streets only. There is no provision in this chapter or any other
provision in the Act which provides that any space reserved for
C any open space or park shall vest in the Corporation. Even a private
street can be declared to be a public on the request of owners of
the building and then only it vests in the Corporation. In absence
of any provision, therefore, in the Act the open space left for
school or park in a private colony cannot vest in the Corporation.
That is why in England whenever a private colony is developed or
D
a private person leaves an open space or park to be used for
public purpose he is required to issue what is termed as ‘Blight
Notice’ to the local body to get the land transferred in its favour
on payment of compensation. Section 313 which empowers the
Commissioner to sanction a layout plan, does not contemplate
E vesting of the land earmarked for a public purpose to vest in the
Corporation or to be transferred to it. The requirement in law of
requiring an owner to reserve any site for any street, open space,
park, recreation ground, school, market or any other public
purposes is not the same as to claim that the open space or park
so earmarked shall vest in the Corporation or stand transferred to
F
it. Even a plain reading of sub-section (5) indicates that the land
which is subject-matter of a layout plan cannot be dealt with by
the owner except in conformity with the order of the Standing
Committee. In other words the section imposes a bar on exercise
of power by the owner in respect of land covered by the layout
G plan. But it does not create any right or interest of the Corporation
in the land so specified. The resolution of the Standing Committee,
therefore, that the area specified in the layout plan for the park
and school shall vest in the Corporation free of cost, was not in
accordance with law.”
H (Emphasis supplied)
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1107
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

88. Still further, the Court held as follows: A
“6. Reserving any site for any street, open space, park, school
etc. in a layout plan is normally a public purpose as it is inherent in
such reservation that it shall be used by the public in general. The
effect of such reservation is that the owner ceases to be a legal
owner of the land in dispute and he holds the land for the benefit B
of the society or the public in general. It may result in creating an
obligation in nature of trust and may preclude the owner from
transferring or selling his interest in it. It may be true as held by
the High Court that the interest which is left in the owner is a
residuary interest which may be nothing more than a right to hold
this land in trust for the specific purpose specified by the coloniser C
in the sanctioned layout plan. But the question is, does it entitle
the Corporation to claim that the land so specified should be
transferred to the authority free of cost. That is not made out
from any provision in the Act or on any principle of law. …”
(Emphasis supplied) D

T. VIJAYALAKSHMI AND OTHERS V. TOWN
PLANNING MEMBER AND ANOTHER44
89. In this case, the appellants were the owners of agricultural
land, who had been permitted to use the same for non-agricultural purposes E
in 2004. An application was filed for approval of a building plan. This
Court, inter alia, held as follows:
“15. The law in this behalf is explicit. Right of a person to construct
residential houses in the residential area is a valuable right. The
said right can only be regulated in terms of a regulatory statute F
but unless there exists a clear provision the same cannot be taken
away. It is also a trite law that the building plans are required to
be dealt with in terms of the existing law. Determination of such a
question cannot be postponed far less taken away. Doctrine of
legitimate expectation in a case of this nature would have a role
to play. G
xxx xxx xxx
18. It is, thus, now well-settled law that an application for grant of
permission for construction of a building is required to be decided
44
(2006) 8 SCC 502 H
1108 SUPREME COURT REPORTS [2023] 9 S.C.R.

A in accordance with law applicable on the day on which such
permission is granted. However, a statutory authority must exercise
its jurisdiction within a reasonable time. (See Kuldeep
Singh v. Govt. of NCT of Delhi [(2006) 5 SCC 702: (2006) 6
Scale 588].)”
B PUNE MUNICIPAL CORPORATION AND ANOTHER
V. PROMOTERS AND BUILDERS ASSOCIATION AND
ANOTHER 45
90. The matter arose under the Maharashtra Regional Town
Planning Act, 1966 (MRTP). The Development Control Rules were
C directed to be amended by the Government under Section 37 of the said
law. The case of the respondents before this Court was that the matter
travelled beyond the powers of the State Government under Section
37(2) of the Act. We notice the following:
“5. Making of DCR or amendments thereof are legislative
D functions. Therefore, Section 37 has to be viewed as repository
of legislative powers for effecting amendments to DCR. That
legislative power of amending DCR is delegated to the State
Government. As we have already pointed out, the true
interpretation of Section 37(2) permits the State Government to
make necessary modifications or put conditions while granting
E sanction. In Section 37(2), the legislature has not intended to
provide for a public hearing before according sanction. The
procedure for making such amendment is provided in Section 37.
Delegated legislation cannot be questioned for violating the
principles of natural justice in its making except when the statute
F itself provides for that requirement. Where the legislature has not
chosen to provide for any notice or hearing, no one can insist
upon it and it is not permissible to read natural justice into such
legislative activity. Moreover, a provision for “such inquiry as it
may consider necessary” by a subordinate legislating body is
generally an enabling provision to facilitate the subordinate
G legislating body to obtain relevant information from any source
and it is not intended to vest any right in anybody. (Union of
India v. Cynamide India Ltd. [(1987) 2 SCC 720] , SCC paras 5
and 27. See generally H.S.S.K. Niyami v. Union of India [(1990)
4 SCC 516] and Canara Bank v. Debasis Das [(2003) 4 SCC
45
H (2004) 10 SCC 796
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1109
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

557 : 2003 SCC (L&S) 507] .) While exercising legislative A
functions, unless unreasonableness or arbitrariness is pointed out,
it is not open for the Court to interfere. (See
generally ONGC v. Assn. of Natural Gas Consuming Industries
of Gujarat [1990 Supp SCC 397] .) Therefore, the view adopted
by the High Court does not appear to be correct.
B
6. DCR are framed under Section 158 of the Act. Rules framed
under the provisions of a statute form part of the statute.
(See General Officer Commanding-in-Chief v. Dr. Subhash
Chandra Yadav [(1988) 2 SCC 351 : 1988 SCC (L&S) 542 :
(1988) 7 ATC 296] , SCC para 14.) In other words, DCR have
statutory force. It is also a settled position of law that there could C
be no “promissory estoppel” against a statute. (A.P. Pollution
Control Board II v. Prof. M.V. Nayudu [(2001) 2 SCC 62] , SCC
para 69, STO v. Shree Durga Oil Mills [(1998) 1 SCC 572] ,
SCC paras 21 and 22 and Sharma Transport v. Govt. of
A.P. [(2002) 2 SCC 188] , SCC paras 13 to 24.) Therefore, the D
High Court again went wrong by invoking the principle of
“promissory estoppel” to allow the petition filed by the respondents
herein.”
TUKARAM KANA JOSHI AND OTHERS V.MAHARASHTRA
INDUSTRIAL DEVELOPMENT CORPORATION AND OTHERS46 E
91. In the said case, the land of the appellants was taken over by
the agents of the State. Compensation, despite repeated requests, was
not made available. This Court held:
“11. There are authorities which state that delay and laches
extinguish the right to put forth a claim. Most of these authorities F
pertain to service jurisprudence, grant of compensation for a wrong
done to them decades ago, recovery of statutory dues, claim for
educational facilities and other categories of similar cases, etc.
Though, it is true that there are a few authorities that lay down
that delay and laches debar a citizen from seeking remedy, even G
if his fundamental right has been violated, under Article 32 or 226
of the Constitution, the case at hand deals with a different scenario
altogether. The functionaries of the State took over possession of

46
(2013) 1 SCC 353
H
1110 SUPREME COURT REPORTS [2023] 9 S.C.R.

A the land belonging to the appellants without any sanction of law.
The appellants had asked repeatedly for grant of the benefit of
compensation. The State must either comply with the procedure
laid down for acquisition, or requisition, or any other permissible
statutory mode. There is a distinction, a true and concrete
distinction, between the principle of “eminent domain” and “police
B
power” of the State. Under certain circumstances, the police power
of the State may be used temporarily, to take possession of
property but the present case clearly shows that neither of the
said powers have been exercised. A question then arises with
respect to the authority or power under which the State entered
C upon the land. It is evident that the act of the State amounts to
encroachment, in exercise of “absolute power” which in common
parlance is also called abuse of power or use of muscle power.
To further clarify this position, it must be noted that the authorities
have treated the landowner as a “subject” of medieval India, but
not as a “citizen” under our Constitution.”
D
92. This has been followed in Bhimandas Ambwani (Dead)
Through Lrs. v. Delhi Power Company Limited47 (See paragraph 13
of the said Judgment).
JILUBHAI NANBHAI KHACHAR AND OTHERS V.
E STATE OF GUJARAT AND ANOTHER48
93. We have already adverted to it earlier.
STATE OF GUJARAT V. SHANTILAL MANGALDAS
AND OTHERS49

F 94. The said decision was rendered by a Constitution Bench of
this Court. The matter in issue was the validity of Sections 55 and 67 of
the Bombay Town Planning Act (Act 27 of 1955). The High Court had
declared the provisions violative of Article 31(2) of the Constitution.
This Court embarked upon elaborate consideration of the provisions of
the Act, and it will be profitable, if we advert to paragraph-22, wherein,
G the Court, after referring to the provisions of Article 31, as amended by
the Fourth Amendment in the year 1955, proceeded to hold as follows:

47
(2013) 14 SCC 195
48
1995 Supp (1) SCC 596
49
(1969) 1 SCC 509
H
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1111
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

“22. The following principles emerge from an analysis of clauses A
(2) and (2-A): compulsory acquisition or requisition may be made
for a public purpose alone, and must be made by authority of law.
Law which deprives a person of property but does not transfer
ownership of the property or right to possession of the property to
the State or a corporation owned or controlled by the State is not
a law for compulsory acquisition or requisition. The law, under B
the authority of which property is compulsorily acquired or
requisitioned, must either fix the amount of compensation or specify
the principles on which, and the manner in which, the compensation
is to be determined and given. If these conditions are fulfilled the
validity of the law cannot be questioned on the plea that it does
C
not provide adequate compensation to the owner.
xxx xxx xxx
26. Article 31 guarantees that the law providing for compulsory
acquisition must provide for determining the giving of compensation
for the property acquired. The expression “compensation” is not
defined in the Constitution. Under the Land Acquisition Act D
compensation is always paid in terms of money. But that is no
reason for holding that compensation which is guaranteed by Article
31(2) for compulsory acquisition must be paid in terms of money
alone. A law which provides for making satisfaction to an
expropriated owner by allotment of other property may be deemed E
to be a law providing for compensation. In ordinary parlance the
expression “compensation” means anything given to make things
equivalent; a thing given to or to make amends for loss, recompense,
remuneration or pay; it need not therefore necessarily be in terms
of money. The phraseology of the Constitutional provision also
indicates that compensation need not necessarily be in terms of F
money, because it expressly provides that the law may specify
the principles on which, and the manner in which, compensation
is to be determined and “given”. If it were to be in terms of money
alone, the expression “paid” would have been more appropriate.”
95. In the course of its Judgment, the Court disapproved
observations contained in P. VajraveluMudaliar v. Special Deputy G
Collector for Land Acquisition and another 50. Equally, the Court
overruled the decision of this Court in Union of India v. Metal
Corporation of India Ltd. and another51.
50
(1965) 1 SCR 614
51
(1967) 1 SCR 255) H
1112 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 96. It was relying on these two judgments, inter alia, that this
Court found that the High Court had wrongly concluded that in order
that compensation based on market value be sufficient for the purpose
of Article 31(2), it must be a just equivalent. We may also notice that the
Court repelled the attempt on behalf of the State that because the object
of the Act was to promote public health, it fell within the exception to
B
Article 31(5)(b)(ii).
97. Regarding purport of the Fourth Amendment, in Shantilal
Mangaldas (supra), this Court declared as follows:
“41. The principal effect of this amendment, in so far as that is
relevant in this appeal, was to snap the link which, according to
C this Court, existed between clauses (1) and (2) — that was
achieved by enacting clause (2-A); greater clarity was secured
by enacting in clause (2) that property shall be compulsorily
acquired only for a public purpose; and by authority of law which
provides for compensation, and either fixes the amount of
D compensation or specifies the principles on which, and the manner
in which, compensation is to be determined and given; and that
the law for acquisition or requisition shall not be called in question
in any court on the ground that the compensation provided thereby
is not adequate. By the amendment made in Article 31-A certain
classes of statutes were placed with retrospective effect outside
E the purview of attack before the Courts on the ground of
infringement of the fundamental rights under Articles 14, 19 and
31, and by the addition of certain Acts in the Ninth Schedule a
challenge to those Acts that they infringed any fundamental rights
in Part III could not be entertained. But the amendments made in
F Article 31 were not given any retrospective operation. The result
was that in cases where acquisition was made pursuant to the
statutes enacted before April 27, 1955, the law declared in Mrs
Bela Banerjee case and Subodh Gopal Base case continued
to apply.”
98. The Judgment in Shantilal Mangaldas (supra) has been
G
approved of and followed in the case by a Constitution Bench in Prakash
Amichand Shah v. State of Gujarat and others52.
99. The Court repelled the argument that the decision in Shantilal
Mangaldas (supra) was overruled by the Judgment in His Holiness
52
H (1986) 1 SCC 581
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1113
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

Kesavananda Bharati Sripadagalvaru v. State of Kerala and A
another 53.
100. This Court also made the following observations, which
incidentally are relied upon by the respondents to contend that the
developer of property would be entitled to benefits when there is planned
development: B
“16. The re-arrangement of titles in the various plots and reservation
of lands for public purposes require financial adjustments to be
made. The owner who is deprived of his land has to be
compensated, and the owner who obtains a re-constituted plot in
surroundings which are conducive to better sanitary living C
conditions has to contribute towards the expenses of the scheme.
This is because on the making of a Town Planning Scheme the
value of the plot rises and a part of the benefit which arises out of
a unearned rise in prices is 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. D
…”
101. This Court in Babulal Badriprasad Varma v. Surat
Municipal Corporation and others54, while dealing with the Gujarat
Town Planning and Urban Development Act, 1976, inter alia, held:
“33. We are, however, not unmindful of the fact that a statute of E
town planning ex facie is not a statute for acquisition of a property.
An owner of a plot is asked to part therewith only for providing
for better facilities of which he would also be a beneficiary. Every
step taken by the State does not involve application of the doctrine
of eminent domain.
F
34. In this case, the appellant did not oppose the draft scheme. It
accepted that the State had a right to do so. Existence of a public
purpose and increase in the valuation of the property was admitted.
There exists a distinction in the action of the planning authority as
regards vesting of a property in it and one so as to enable it to
create a third-party interest vis-à-vis for the purpose of reallotment G
thereof. In the former case, the vesting of the land may be held to
be an act of acquisition, whereas in the latter, it would be distribution
of certain benefits having regard to the purpose sought to be
53
(1973) 4 SCC 225
54
(2008) 12 SCC 401
H
1114 SUPREME COURT REPORTS [2023] 9 S.C.R.

A achieved by a statute involving town planning. It was on that legal
principle, this Court in State of Gujarat v. Shantilal
Mangaldas [(1969) 1 SCC 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
B
of living in a developed town having good town planning.”
(Emphasis supplied)
102. In the recent Judgment, again, a Bench of three learned
Judges of this Court, followed the Judgment in Chairman, Indore Vikas
Pradhikaran (supra).
C
NARAYANRAO JAGOBAJI GOWANDE PUBLIC TRUST
V. STATE OF MAHARASHTRA AND OTHERS55
103. The dispute revolved around a condition in a development
agreement executed between the appellant-Trust and the Nagpur
Improvement Trust (for short, ‘NIT’). Under such condition, the appellant
D
was to transfer the land and/or primary school open land in the layout
free-of-cost and the NIT was free to dispose of such land as per its
Rules and Regulations. We notice that the predecessor-in-interest of the
appellant was given permission by the NIT, under which, an area was
reserved for a primary school which was a public utility land. The NIT
E allotted the land in the layout approved in favour of the appellant’s
predecessor to a third party for construction of a college. Several
contentions were arrayed against the allotment, including that the NIT
did not have any power to insert such a condition and that there was no
power to acquire land de hors the Act, under which, it was created.
This Court dismissed the appeal and upheld the view of the High Court.
F
In doing so, this Court held as follows:
“34. We have carefully heard both the parties at length and have
also given our conscious thought to the materials on record and
the relevant provisions of law. We are of the view that the High
Court in its judgment and order has rightly held that Respondent 1
G State and Respondent 2 NIT are bound to stick to the development
plan and scheme. It has placed reliance upon the decision of this
Court in Indore Vikas Pradhikaran v. Pure Industrial Coke &
Chemicals Ltd. [Indore Vikas Pradhikaran v. Pure Industrial
Coke & Chemicals Ltd., (2007) 8 SCC 705] , wherein this Court,
55
H (2016) 4 SCC 443
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1115
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

while dealing with the aspect of town planning and Articles 300-A A
and 14 of the Constitution of India, has observed as under: (SCC
p. 730, paras 46-47)
“46. … The courts must make an endeavour to strike a balance
between public interest on the one hand and protection of a
constitutional right to hold property, on the other. B
47. For the aforementioned purpose, an endeavour should be made
to find out as to whether the statute takes care of public interest
in the matter vis-à-vis the private interest, on the one hand, and
the effect of lapse and/or positive inaction on the part of the State
and other planning authorities, on the other.” C
xxx xxx xxx
36. The High Court has, further, rightly held that the impugned
clause contained in the said development agreement is neither
void nor illegal for want of consideration. It has also been rightly D
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. E
xxx xxx xxx
38. Thus, seeking abandonment of acquisition of the land as
provided under Section 68 of the NIT Act is a huge benefit which
the appellant Trust has gained from the agreement. Further, it is F
not open for the appellant Trust to avail only the beneficial part of
the said development agreement to form a layout plan and allow
the sites to be allotted in favour of the allottees, when it itself is
not willing to discharge the obligation of transferring the reserved
land for public utility purpose, as agreed upon in the development
agreement. G

39. Further, the High Court has rightly observed that another benefit
derived by the appellant Trust from the said development
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.” H
1116 SUPREME COURT REPORTS [2023] 9 S.C.R.

A YOGENDRA PAL AND OTHERS V. MUNICIPALITY,
BATHINDA AND ANOTHER56
104. The case arose under the Punjab Municipal Act, 1911. The
State Government, acting under Section 192(3) of the Municipal Law,
sanctioned a Town Planning Scheme, under which, an area of 22.23
B acres was transferred to the Municipal Committee. No compensation
was paid to the owners. The High Court upheld the provision. Section
192(1)(c), inter alia, provided for transfer, to the Committee, of land,
either on payment of compensation or otherwise. The contention taken
by the respondent was that it was only a transfer of land and not
acquisition. This Court found that the provision did contain a restriction
C
on the maximum amount of land which could be transferred and also
maximum amount of land which could be transferred without payment
of compensation. This Court found that there was no guideline in the
Act providing for as to when compensation was payable or could be
denied. The Court also took note of the width of the expression ‘public
D purpose’, for achieving which, the land could be transferred. It was
further noticed that the said expression suggested that the purpose
concerned cannot be of benefit only and exclusively to the transferor-
landowner. It was to be a utility to members of the public in general. The
fact that the transferor-landowner would also benefit, did not make any
difference. The use of the word ‘transferred’ as against ‘acquired’ and
E
the contention that, ‘therefore, the rights of the land owner continued’,
was rejected. Section 192(c) was contrasted with Section 169 and it
was found that the latter provision was confined to use of the land for
laying public streets, and what is more, the land could be acquired by
paying compensation. Section 169 also contemplated restoration to the
F original owner, if the land could not be used as a public street. We may
bear in mind the following discussions in the context of the facts of the
case before us:
“18. The next contention is that the transfer of the land is also for
the benefit of the transferor landowner and in fact the balance of
G the land which remains with him appreciates in value to an extent
which more than sufficiently compensates him for the loss of the
land. Hence there is no need to pay him separate compensation
for the extent of land up to 25 per cent transferred to the Municipal
Committee. The contention suffers from several fallacies. In the
56
(1994) 5 SCC 709
H
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1117
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

first instance, as the provisions of the section themselves point A
out, the land is to be transferred for a public purpose including for
use as public street. The purpose of the transfer itself suggests
that the transferor landowner is not exclusively to be benefited by
the public purpose. He enjoys the benefit, if any, along with the
other members of the public. There is no reason why, therefore,
B
he should alone pay for the said benefit in terms of his land.
Secondly, the public purpose which is served by the Municipal
Committee, assuming it increases the value of the remaining land,
also contributes to the increase in the value of the land of all other
landowners, which lands are similarly benefited by the said public
purpose. There is, therefore, no reason why the landowner whose C
land is “transferred” for the purpose alone should pay for the
increase in the value of his remaining land in terms of the transferred
land. In fact, whereas it is only the remaining land of the transferor
landowner which is benefited by such increase in value, if any,
the whole of the land in the possession of the other landowners is
D
benefited by the accretion in value. Thus, on both accounts, there
is a clear violation of Article 14 of the Constitution to make only
the transferor landowner suffer for the public purpose. What is
further, it is problematic and is in the realm of speculation as to
whether the appreciation of the value of the remaining property
of the transferor landowner will always be equivalent to or more E
than the value of the land transferred to the Municipal Committee,
assuming that the public purpose for which the land is taken over
contributes to the increase in the value of the remaining property.
Lastly, and this is equally important, in many cases the accretion
to the value of the remaining property may merely be on paper
F
and be a poor consolation to the transferor landowner if he cannot
or is unable for one reason or the other to sell or otherwise dispose
of the said property. On the other hand, in such cases, the accretion
in value may prove a burden if the property tax, wealth tax, estate
duty etc. are calculated on the basis of the market value of the
property. The so-called increase in the value of the property may G
thus prove a liability to those who cannot dispose of their property.
Looked at from any angle, the argument that the transferor
landowner is benefited because his remaining property appreciates
in value and, therefore, he need not be paid separate compensation
for the land which is transferred, is untenable in law. We thus find
H
1118 SUPREME COURT REPORTS [2023] 9 S.C.R.

A that the provisions of Section 192(1)(c) are violative of Article 14
of the Constitution.”
VIRENDER GAUR AND OTHERS V. STATE OF
HARYANA AND OTHERS57
105. In the said case, the appellant surrendered 25 per cent of her
B land to the Municipality, which was a condition for sanction for
construction of a building. The land stood vested with the Municipality.
The land in question stood earmarked for open spaces. A Dharamshala
came to be put-up for the Punjab Samaj Sabha on the basis of allotment
to it. It was contended that in the construction of the Dharamshala,
even if there was a public purpose, the Government could not direct the
C
Municipality to permit land use, defeating the scheme, which provided
for keeping the land open. This Court described environment ‘as a
polycentric and multifaceted problem, affecting human existence’.
106. The Court, in Virender Gaur (supra), further found power
to the Municipality under Section 66 to transfer the land vested in it. The
D Court went on to hold, inter alia, as follows:
“11. It is seen that the open lands, vested in the Municipality, were
meant for the public amenity to the residents of the locality to
maintain ecology, sanitation, recreation, playground and ventilation
purposes. The buildings directed to be constructed necessarily
E affect the health and the environment adversely, sanitation and
other effects on the residents in the locality. Therefore, the order
passed by the Government and the action taken pursuant thereto
by the Municipality would clearly defeat the purpose of the
scheme. Shri D.V. Sehgal, learned Senior Counsel, again
contended that two decades have passed by and that, therefore,
F the Municipality is entitled to use the land for any purpose. We
are unable to accept the self-destructive argument to put a premium
on inaction. The land having been taken from the citizens for a
public purpose, the Municipality is required to use the land for the
protection or preservation of hygienic conditions of the local
G residents in particular and the people in general and not for any
other purpose. Equally acceptance of the argument of Shri V.C.
Mahajan encourages pre-emptive action and conduct, deliberately
chartered out to frustrate the proceedings and to make the result

57
(1995) 2 SCC 577
H
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1119
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

fait accompli. We are unable to accept the argument of fait A
accompli on the touchstone of prospective operation of our order.”
107. This Court also distinguished Yogendra Pal (supra) in this
regard.
108. There is a contention of the appellants and the writ petitioners
B
that, at any rate, the law is an expropriatory legislation. This is for the
reason that it operates to deprive a person of his land without his consent.
[See in this regard Chairman, Indore Vikas Pradhikaran (supra),
which has discussed this aspect elaborately.] For reasons already given
and to follow, we are unable to agree.
C
109. We agree that the law, undoubtedly, is that the planning law
cannot be interpreted as justifying an inroad into the rights of a private
person to construct a suitable building for the purpose of carrying on his
business.
110. In Ravindra Ramchandra Waghmare v. Indore Municipal
D
Corporation and others58, after an elaborate reference to Chairman,
Indore Vikas Pradhikaran (supra) and K.T. Plantations (supra), this
Court, inter alia, held as follows:
“76. …It is apparent from the aforesaid dictum that Article 300-A
enables the State to put restrictions on the right by law but the
E
same should not be arbitrary or excessive or beyond what is
required in public interest. The imposition of restriction must not
be disproportionate to a situation or statute. Legislation providing
for deprivation of property under Article 300-A must be just, fair
and reasonable. Thus, it cannot be said that illusory compensation
is provided under Section 306 read with Section 387. The decision F
renders no help to the cause espoused on behalf of the appellants
and on a closer scrutiny, rather counters it. Based on the aforesaid
principles we find no malady in the provisions in question which
may be required to be cured.”
111. No doubt, the Court, in the said case also, after referring to G
Rajiv Sarin and another v. State of Uttarakhand others 59, found that
the case at hand was not a case of no compensation. Incidentally, this
Court also followed the Judgment in Shantilal Mangaldas (supra):
58
(2017) 1 SCC 667
59
(2011) 8 SCC 708 H
1120 SUPREME COURT REPORTS [2023] 9 S.C.R.

A “83. As already held a law seeking to acquire private property for
public purpose cannot say that “no compensation” would be paid.
The present case is a case of payment of “no compensation” at
all. In the case at hand, the forest land which was vested in the
State by operation of law cannot be said to be non-productive or
unproductive by any stretch of imagination. The property in
B
question was definitely a productive asset. That being so, the criteria
to determine possible income on the date of vesting would be to
ascertain such compensation paid to similarly situated owners of
neighbouring forests on the date of vesting. Even otherwise, the
Revenue Authority can always make an estimation of possible
C income on the date of vesting if the property in question had been
exploited by the appellants and then calculate compensation on
the basis thereof in terms of Sections 18(1)(cc) and 19(1)(b) of
the KUZALR Act.”
112. In Rajiv Sarin (supra), the U.P. Zamindari Abolition and
D Land Reforms Act, 1950, the Kumaun and Uttarakhand Abolition and
Land Reforms Act, 1960, introduced the U.P. Act in the Uttarakhand
and Kumaun region. The rights of every intermediary in respect of forest
land came to be vested with the State Government. This was as a result
of an amendment. The amendment and Notice came to be challenged.
This Court, speaking through a Constitution Bench, held, inter alia, as
E
follows:
“68. The incident of deprivation of property within the meaning of
Article 300-A of the Constitution normally occurred mostly in the
context of public purpose. Clearly, any law, which deprives a
person of his private property for private interest, will be amenable
F
to judicial review. In the last sixty years, though the concept of
public purpose has been given quite wide interpretation,
nevertheless, the “public purpose” remains the most important
condition in order to invoke Article 300-A of the Constitution.
69. With regard to claiming compensation, all modern Constitutions
G
which are invariably of democratic character provide for payment
of compensation as the condition to exercise the right of
expropriation. The Commonwealth of Australia Constitution Act,
the French Civil Code (Article 545), the Fifth Amendment to the
Constitution of USA and the Italian Constitution provided principles
H
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1121
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

of “just terms”, “just indemnity”, “just compensation” as A
reimbursement for the property taken, have been provided for.
70. Under the Indian Constitution, the field of legislation covering
claim for compensation on deprivation of one’s property can be
traced to Schedule VII List III Entry 42 of the Constitution. The
Constitution (Seventh Amendment) Act, 1956 deleted Schedule B
VII List I Entry 33, List II Entry 36 and reworded List III Entry
42 relating to “acquisition and requisitioning of property”. The
right to property being no more a fundamental right, a legislation
enacted under the authority of law as provided in Article 300-A of
the Constitution is not amenable to judicial review merely for alleged
C
violation of Part III of the Constitution.
xxx xxx xxx
73. It was further submitted that the inherent powers of public
purpose and eminent domain are embodied in Article 300-A, and
Entry 42, List III, “acquisition and requisitioning of property” which D
necessarily connotes that the acquisition and requisitioning of
property will be for a public use and for compensation and
whenever a person is deprived of his property, the limitations as
implied in Article 300-A as well as Entry 42, List III will come into
the picture and the Court can always examine the legality and
E
validity of the legislation in question. It was further submitted that
awarding nil compensation is squarely amenable to judicial review
under Articles 32 and 226 of the Constitution of India.
xxx xxx xxx
77. Article 31(2) of the Constitution has since been repealed by F
the Constitution (Forty-fourth Amendment) Act, 1978. It is to be
noted that Article 300-A was inserted by the Constitution (Forty-
fourth Amendment) Act, 1978 by practically re-inserting Article
31(1) of the Constitution. Therefore, right to property is no longer
a fundamental right but a right envisaged and conferred by the G
Constitution and that also by retaining only Article 31(1) of the
Constitution and specifically deleting Article 31(2), as it stood. In
view of the aforesaid position the entire concept of right to property
has to be viewed with a different mindset than the mindset which
was prevalent during the period when the concept of eminent
H
1122 SUPREME COURT REPORTS [2023] 9 S.C.R.

A domain was the embodied provision of fundamental rights. But
even now as provided under Article 300-A of the Constitution the
State can proceed to acquire land for specified use but by enacting
a law through State Legislature or by Parliament and in the manner
having force of law.”
B 113. The Court also reiterated the distinction between ‘no
compensation’ and ‘Nil compensation’, as laid down in K.T. Plantations
(supra). The Court proceeded to find that it was a case of ‘no
compensation’ at all, and therefore, it attracted the vice of illegal
deprivation of property and gave relief on the said basis. This is after
finding that the property in question was a productive asset.
C
114. In W.P. No. 591/15, the challenge is to Regulation 29(7)(a)
and Annexure XX. It is first necessary to notice the scheme of Regulation
29(7).
“29(7) (a) The space set apart for roads (except those which
D may remain private) and the 10% area reserved for recreational
purposes shall be transferred to the Authority or Agency or the
Local Body designated by the Authority free of cost through a
registered gift deed before the actual approval of the layout under
the provisions of the T & CP Act. The exact mode of conveyance
should be consistent with the relevant enactment and regulations.
E
(b) In cases of industrial estates developed by Government
agencies the Authority reserves the right to allow them to retain
the spaces set apart for roads and the recreational spaces as
parks/play grounds and maintain them for the purposes to the
F satisfaction of the Authority.
(c) The Authority reserves the right to reserve space for recessed
bus stops as part of the road space in the layouts exceeding 2
hectares, where found necessary on public interest and this part
of the road space also be transferred free of cost as stated in the
G sub rule 7(a) above.”
115. Regulation 29(3)(b) deals with the width of the streets and
roads within the layout. It inter alia provides for the width and the streets
of the roads and passages. Thereunder, in the remarks column, it is
provided that starting with the minimum width of 7.2 meters in regard to
streets intended to serve not more than 16 plots / or subject to a maximum
H
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1123
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

length of 120 meters, all the streets become public. The common refrain A
found in the remarks column is that that all such streets shall become
public. We must next specifically advert to Regulation 29(6):
“29(6) Reservation of land for recreational purposes in a layout
or sub’ division for residential, commercial, industrial or combination
of such uses shall be as follows. B

C

D

(a) The land for community recreational purposes shall be
restricted to ground level, in a shape and location to be specified E
by the Chennai Metropolitan Development Authority. The land so
reserved shall be free from any ·construction by the layout owner,
developer or promoter
(b) The building and use of land shall conform to the conditions
that may be imposed while sanctioning the layout. The space set
apart for commercial, institutional, industrial or other uses shall be F
deemed to be zoned for commercial, institutional; industrial or
corresponding uses under the Master Plan.”
116. We may notice at this juncture that there is no challenge to
Regulation 29(6). The second most important aspect we notice is that
the land for community recreational purposes shall be restricted to the G
ground level in a shape and location to be specified by the CMDA.
Further the land reserved is to be free from any construction by the
layout owner, developer and promoter. Further the use of the land shall
conform to the conditions that may be imposed while sanctioning the
layout.
H
1124 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 117. Before we pass on to the impugned regulation, namely,
Regulation 29 (7) (a), we must also undoubtedly notice Annexure XX
which is also under challenge.
“ANNEXURE XX
Reservation of land for community recreational purposes in case
B 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 specified by
Chennai Metropolitan Development Authority:
C

D

E

F

G

H
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1125
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

(2) The site so reserved shall be exclusive of ‘the setback spaces A
and. spacing between blocks prescribed in these rules, and shall·
be free from any construction / structure.
(3) For the purpose of this regulation, existing development is
defined as one where the extent of ground area covered by
structures already existing (prior to application for planning B
permission) is 25 per cent and above of the total site area.
(4) In case of additions to existing developments, where it is difficult
to leave the 10 per cent area as open space for community
recreational purposes, the Authority reserves the right to collect
the market value of equivalent land in lieu of the land to be reserved. C
However, if on a future date, the applicant wants to demolish the
existing structure and raise new structures on the site in question,
the community recreational space as per the rule shall be reserved.
(5) The Authority reserves· the right to enforce the maintenance
of such reserved lands by the owner to the satisfaction of the D
Authority or order the owner to transfer the land to the Authority
or any local body designated by it free of cost, through a registered
gift deed. The Authority or the local body designated by it, as the
case may be, reserves the right to decide on entrusting the
maintenance work to any institution / individual on the merits of E
the case.”
118. It will be noticed on a perusal of Annexure XX that the
reservation for community recreation purposes such as park, playground
is to be at ground level in a shape and location abutting a public road to
be specified by the CDMA. Thereafter, the requirement relating to F
executing the gift deed in respect of layout in excess of 10000 square
meters is laid down. It is after this that we must notice Regulation 29
(7)(a).
“29(7)(a) The space set apart for. roads (except those which may
remain private) and the 10% area reserved for recreational G
purposes shall be transferred to the Authority or Agency or the
Local Body designated by the Authority free of cost through a
registered gift deed before the actual approval of the layout under
the provisions of the T & CP Act. The exact mode of conveyance
should be consistent with the relevant enactment and regulations.”
H
1126 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 119. From the additional affidavit which we have already noticed,
the challenge is limited by the petitioner to the stipulation in Regulation
29(7)(a) so far as the requirement of transferring the space set apart for
recreational purposes. In other words, the petitioners accept the validity
of Regulation 29(7)(a) otherwise. Rule 29 reads as follows: -
B “29. Layout and sub-division regulations:
This regulation seeks to ensure access to plots by ‘way of roads
and private passages, creating hierarchy of roads depending on
the road length and intensity of developments in the area and also
to provide adequate linkages to the existing roads and proposed
C roads in the Master Plan and Detailed Development Plan and
further to provide proper circulation pattern in the area, providing
required recreational spaces such as parks / playgrounds, and
providing spaces for common amenities such as schools, post and
telegraph offices, fire stations, police stations etc.
D (1) The minimum extent of plots and frontage shall be as prescribed
for various uses and types of developments given in the DR Nos.
25,26,27 and 28.
(2) (a) The minimum width of the public streets/road on which
the site abuts or gains access shall be 7.2m. for residential layout
E
developments and 9m. for industrial layout developments. For
subdivisions the minimum width of the passage /public streets/
road on which the site abuts or gains access shall be as required
for different uses and types of developments.

F (b) The minimum width stated above shall be the existing width of
the road and not the street alignment prescribed.
For residential development
“29(3) The width of the streets/roads and passages in the layouts.
/subdivisions / amalgamations shall conform to the minimum
G
requirements given below:
(a) for Residential developments

H
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1127
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

A

B

C

D

E

F

G

H
1128 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 29(3)(b) for Industrial Development

B

C

Note: Not withstanding anything contained above Authority
D reserves the right to revise layouts proposed by the applicant and
applied for sanction in order to provide for better adequate linkages
proper circulation pattern requirements considering local conditions
etc.”
120. It becomes clear that in regard to streets and roads what is
contemplated under the regulation is that under 29 (3)(a) (B) all streets
E
will become public. This is to be read along with Regulation 29(7)(a).
It is apparently to ensure that the roads which are covered by
29(3)(a)(B) which are to be treated as public are so maintained that it is
insisted under 29(7)(a) that a gift deed be executed. In other words,
keeping in mind the preambular portion of Regulation 29 which proclaims
F
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 roads in the Master Plan and a detailed
development plan and to provide proper circulation pattern in the area
G inter alia, we must arrive at the conclusion that visionary perspective of
town planning would require an imaginative full play being
given.Meticulous requirements of futuristic needs of an ever-growing
Metropolis when a large area such as what would be found in a layout
of more than 10000 square meters which is nearly one hectare of land in
the metropolitan area must be factored in. Circulation of traffic between
H
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1129
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

parts of the area would require the roads being thrown open to the public A
so that different parts of the metropolitan area can be easily accessed.
In fact, even the writ petitioner by seeking to limit the challenge in the
first place only to Regulation 29(7)(a) and not to Regulation 29(3)(a)(B)
under which anyway the streets are declared as public acknowledges
the need for and justification for the declaration of roads being public.
B
121. The argument of the respondent appears to be as follows:
The execution of a gift deed acts as a safety valve or a safeguard
to check the possibility that the developer would resile from the assurance
or violate the guarantee that the land, which is reserved as an open
space, will not be constructed upon. In other words, if the execution of C
the gift deed is insisted upon to ensure that in the future, there would not
be any contravention of the requirement, inter alia, that the area be
used as an open space, then, the complaint, which is lodged against the
impugned Rule, as also the Regulation, may not stand scrutiny. In regard
to the impugned Regulation, it must be borne in mind, as we have already
noticed that in the additional affidavit filed by the Writ Petitioner in Writ D
Petition (C) No. 591 of 2015, the challenge in the writ petition has been
limited to the latter part of the provision, i.e., the requirement to transfer
free-of-cost, through a registered gift deed, the 10 per cent recreational
area reserved for recreational purposes only and not the space set apart
for roads. Here, we must observe that as already found by us, that there E
is no challenge toRegulation 29(6). The writ petitioner does not seek to,
bring under a cloud, Regulation 29(7)(a) otherwise.
122. The result of the above discussion is as follows:
We must proceed on the basis that Regulation 29(6) holds good.
This means that when the layout is above 10,000 square meters, F
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 G
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 matterof 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
H
1130 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 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
B
ownership of the area comprised in the open space, we would think that
the impugned provisions would pass muster. It would prevent any kind
of abuse. It is clear that the Regulation, properly understood, prescribe
for the open space and merely provides for the facilitation and
preservation of the open space.
C A BRIEF LOOK AT THE FIFTH AMENDMENT CASES
IN THE UNITED STATES
123. The Fifth Amendment to the U.S. Constitution, inter alia,
declares ‘nor shall private property be taken for public use without just
compensation’. This limb of the Fifth Amendment has spawned a large
D body of case law. We may only advert to a few of them. In Agins
(supra), the brief facts were as follows:
The owners of a five-acre parcel of unimproved land challenged
the placing of the land by adopting of Zoning Ordinances, by which, the
land was placed in residential planned development and open space zone,
E which permitted the owners to build between 1 and 5 single family
residences. The appellants asserted infraction of the Fifth and the
Fourteenth Amendments and sought damages for inverse condemnation.
(Inverse condemnation amounts to proceedings seeking compensation
for compulsorily acquiring land without there being any formal proceedings
F for acquisition). The challenge was repelled by the U.S. Supreme Court.
It was found that there was no violation of the Takings Clause in the
Fifth Amendment. It must be made clear that the Taking Clause is based
on the prohibition against the taking of private property for public use
without just compensation. The Court, inter alia, held as follows:

G “The application of a general zoning law to particular property
effects a taking if the ordinance does not substantially advance
legitimate state interests, see Nectow v. Cambridge, 277 U.S.
183, 188, 48 S.Ct. 447, 448, 72 L.Ed. 842 (1928), or denies an
owner economically viable use of his land, see Penn Central
Transp. Co. v. New York City, 438 U.S. 104, 138, n. 36, 98 S.Ct.
H
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1131
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

2646, 2666, 57 L.Ed.2d 631 (1978). The determination that A
governmental action constitutes a taking is, in essence, a
determination that the public at large, rather than a single owner,
must bear the burden of an exercise of state power in the public
interest. Although no precise rule determines when property has
been taken, see Kaiser Aetna v. United States, 444 U.S. 164,
B
100 S.Ct. 383, 62 S.Ct. 332 (1979), the question necessarily requires
a weighing of private and public interests. The seminal decision
in Euclid v. Ambler Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed.
303 (1926), is illustrative. In that case, the landowner challenged
the constitutionality of a municipal ordinance that
restricted commercial development of his property. Despite alleged C
diminution in value of the owner’s land, the Court held that the
zoning laws were facially constitutional. They bore a substantial
relationship to the public welfare, and their enactment inflicted no
irreparable injury upon the landowner.”
124. In James Patrick Nollan v. Calefornia Coastal D
Commission60, the following were the facts:
The prospective purchasers of a beach front plot, which was
located between two public beaches, proposed to satisfy a condition on
their option to purchase by pulling down an old bungalow on the premises.
It was to be replaced with a larger house. The respondent Commission E
stipulatedthe condition that purchasers must give the public an easement
to pass across the portion of the property which lay between the mean
high tide line. The purchasers took shelter under the Takings Clause. In
5:4 Majority Judgment, the Court took the view that the Takings Clause
was offended. In the course of the Judgment, the Court held, inter alia:
F
“[1b, 5] “Given, then, that requiring uncompensated conveyance
of the easement outright would violate the Fourteenth Amendment,
the question becomes whether requiring it to be conveyed as a
condition for issuing a land-use permit alters the outcome. We
have long recognized that land-use regulation does not effect a
taking if it “substantially advance[s] legitimate state interests” and G
does not “den[y] an owner economically viable use of his
land,” Agins v. Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141,
65 L.Ed.2d 106 (1980). See also Penn Central Transportation
Co. v. New York City, 438 U.S. 104, 127, 98 S.Ct. 2646, 2660, 57
60
483 US 825, 97 L Ed 2d 677, H
1132 SUPREME COURT REPORTS [2023] 9 S.C.R.

A L.Ed.2d 631 (1978) (“[A] use restriction may constitute a ‘taking’
if not reasonably necessary to the effectuation of a substantial
government purpose”).”
xxx xxx xxx
“[1c] The Commission argues that a permit condition that serves
B the same legitimate police-power purpose as a refusal to issue
the permit should not be found to be a taking if the refusal to issue
the permit would not constitute a taking. We agree. Thus, if the
Commission attached to the permit some condition that would
have protected the public’s ability to see the beach notwithstanding
C construction of the new house—for example, a height limitation,
a width restriction, or a ban on fences—so long as the Commission
could have exercised its police power (as we have assumed it
could) to forbid construction of the house altogether, imposition of
the condition would also be constitutional. Moreover (and here
we come closer to the facts of the present case), the condition
D would be constitutional even if it consisted of the requirement that
the Nollans provide a viewing spot on their property for passersby
with whose sighting of the ocean their new house would interfere.
Although such a requirement, constituting a permanent grant of
continuous access to the property, would have to be considered a
E taking if it were not attached to a development permit, the
Commission’s assumed power to forbid construction of the house
in order to protect the public’s view of the beach must surely
include the power to condition construction upon some concession
by the owner, even a concession of property rights, that serves
the same end. If a prohibition designed to accomplish that purpose
F would be a legitimate exercise of the police power rather than a
taking, it would be strange to conclude that providing the owner
an alternative to that prohibition which accomplishes the same
purpose is not. The evident constitutional propriety disappears,
however, if the condition substituted for the prohibition utterly fails
G to further the end advanced as the justification for the prohibition.”
125. In Florance Dolan v. City of Tigard61, again the scope of
the Fifth Amendment or rather the Takings Clause thereunder, fell for
consideration. The owner of a city plot applied for a building permit for
a bigger store than she had with certain other facilities, including parking
61
H 512 US 374
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1133
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

area. The permission though granted came with two conditions. The A
owner was to dedicate to the city, as a greenway, a portion of her lot
within the 100-year floodplain of a creek, which flowed through one
corner and along one boundary of the lot. The owner had also to dedicate
to the city as a pedestrian/bicycle pathway, an additional 15-foot strip of
land adjacent to the floodplain. Her request for variance of the conditions
B
was rejected. This stand was approved by the Authorities as also the
Court of Appeals with four learned Judges dissenting with the Majority,
remitted the matter back. Distinguishing the decision in Village of Euclid
v. Ambler Reality Company62 and Agins (supra), the Court held, inter
alia, as follows:
“9. The sort of land use regulations discussed in the cases just C
cited, however, differ in two relevant particulars from the present
case. First, they involved essentially legislative determinations
classifying entire areas of the city, whereas here the city made an
adjudicative decision to condition petitioner’s application for a
building permit on an individual parcel. Second, the conditions D
imposed were not simply a limitation on the use petitioner might
make of her own parcel, but a requirement that she deed portions
of the property to the city. In Nollan, supra, we held that
governmental authority to exact such a condition was
circumscribed by the Fifth and Fourteenth Amendments. Under
the well-settled doctrine of “unconstitutional conditions,” the E
government may not require a person to give up a constitutional
right—here the right to receive just compensation when property
is taken for a public use—in exchange for a discretionary benefit
conferred by the government where the benefit sought has little
or no relationship to the property. See Perry v. Sindermann, 408 F
U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Pickering v.
Board of Ed. of Township High School Dist. 205, Will Cty., 391
U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968).
Petitioner contends that the city has forced her to choose between
the building permit and her right under the Fifth Amendment to G
just compensation for the public easements. Petitioner does not
quarrel with the city’s authority to exact some forms of dedication
as a condition for the grant of a building permit, but challenges the
showing made by the city to justify these exactions. She argues
62
272 US 365
H
1134 SUPREME COURT REPORTS [2023] 9 S.C.R.

A that the city has identified “no special benefits” conferred on her,
and has not identified any “special quantifiable burdens” created
by her new store that would justify the particular dedications
required from her which are not required from the public at large.”
xxx xxx xxx
B “[1c, 2d, 11a] We think the “reasonable relationship” test adopted
by a majority of the state courts is closer to the federal constitutional
norm than either of those previously discussed. But we do not
adopt it as such, partly because the term “reasonable relationship”
seems confusingly similar to the term “rational basis” which
C describes the minimal level of scrutiny under the Equal Protection
Clause of the Fourteenth Amendment. We think a term such as
“rough proportionality” best encapsulates what we hold to be the
requirement of the Fifth Amendment. No precise mathematical
calculation is required, but the city must make some sort of
individualized determination that the required dedication is related
D both in nature and extent to the impact of the proposed
development.”
126. The remand was limited to the first condition. In regard to
the second condition, viz., dedication for the pedestrian bicycle pathway,
the Court held as follows:
E “[1g, 13] With respect to the pedestrian/bicycle pathway, we have
no doubt that the city was correct in finding that the larger retail
sales facility proposed by petitioner will increase traffic on the
streets of the Central Business District. The city estimates that
the proposed development would generate roughly 435 additional
F trips per day.9 Dedications for streets, sidewalks, and other public
ways are generally reasonable exactions to avoid excessive
congestion from a proposed property use. But on the record before
us, the city has not met its burden of demonstrating that the
additional number of vehicle and bicycle trips generated by
petitioner’s development reasonably relate to the city’s requirement
G for a dedication of the pedestrian/bicycle pathway easement. The
city simply found that the creation of the pathway “could offset
some of the traffic demand ... and lessen the increase in traffic
congestion.”
As Justice Peterson of the Supreme Court of Oregon explained
H in his dissenting opinion, however, “[t]he findings of fact that the
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1135
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

bicycle pathway system ‘could offset some of the traffic demand’ A
is a far cry from a finding that the bicycle pathway system will, or
is likely to, offset some of the traffic demand.” 317 Ore., at 127,
854 P.2d, at 447 (emphasis in original). No precise mathematical
calculation is required, but the city must make some effort to
quantify its findings in support of the dedication for the pedestrian/
B
bicycle pathway beyond the conclusory statement that it could
offset some of the traffic demand generated.”
127. No doubt, there were vigorous dissents expressed by the
four learned Judges. In the dissent by Justice Stevens, with whom Justice
Blackmun and Justice Ginsburg agreed, the essential nexus requirement
propounded in Nollan (supra) was recognised. The dissenting Judges, C
however, opposed the employment of the ‘rough proportionality’
requirement. Decrying the consequences that may follow from the
requirement to make ‘individualised determinations’, the learned Judges
found that the questions could be answered under the framework of the
existing caselaw. The learned Judges also found that there was no basis D
for applying the ‘Unconstitutional Conditions’ Doctrine. We are tempted
to and rightfully so, to advert to the following observations in the dissenting
Judgments in regard to the true place of the Doctrine of Unconstitutional
Conditions:
“Even if Dolan should accept the city’s conditions in exchange E
for the benefit that she seeks, it would not necessarily follow that
she had been denied “just compensation” since it would be
appropriate to consider the receipt of that benefit in any calculation
of “just compensation.”
xxx xxx xxx F
“In this respect, the Court’s reliance on the “unconstitutional
conditions” doctrine is assuredly novel, and arguably incoherent.
The city’s conditions are by no means immune from constitutional
scrutiny. The level of scrutiny, however, does not approximate the
kind of review that would apply if the city had insisted on a G
surrender of Dolan’s First Amendment rights in exchange for a
building permit.”
128. In Linda Lingle, Governor of Hawaii, et al. v. Chevron
U.S.A.INC.63 in the context of a State statute limiting the rent that oil
63
544 US 528, 161 L.Ed.2d 876 H
1136 SUPREME COURT REPORTS [2023] 9 S.C.R.

A companies could charge to its dealer who lease service stations owned
by the companies took the view after noticing Nollan (supra) and Dolan
(supra) which we have referred to that “substantially advances” formula
is not a valid Takings test initiated in Agnis (supra) and it was concluded
that it has no proper place in the Takings jurisdiction.
B 129. In Village of Euclid, Ohio Et Al v. Ambler Reality
Company64, the village of Euclid lay in the form of a parallelogram. The
appellant was the owner of the land measuring 68 acres. The entire
area of the village was divided into six classes of use places.
130. We may notice they appear to be similar to the zones
C contemplated under the DCR in the instant cases. There were restrictions
in regard to use, the number of dwellings and the height, inter alia.
Appellant’s land fell under U-2, U-3 and U-6. The Ordinance came to
be challenged on the ground that it deprived the appellant of its right
toliberty and property without due process of law as also equal protection
of the law under the Fourteenth Amendment to the U.S. Constitution.
D Certain provisions of the State Constitution were also relied upon.
131. Though in the context of the validity of the restrictions under
the Zoning Ordinance, we notice the prescience of mind with which the
Court approached the matter and refused to apply constitutional
safeguards:
E
“Building zone laws are of modern origin. They began in this
country about 25 years ago. Until recent years, urban life was
comparatively simple; but, with the great increase and
concentration of population, problems have developed, and
constantly are developing, which require, and will continue to
F require, additional restrictions in respect of the use and occupation
of private lands in urban communities. Regulations, the wisdom,
necessity, and validity of which, as applied to existing conditions,
are so apparent that they are now uniformly sustained, a century
ago, or even half a century ago, probably would have been
G rejected as arbitrary and oppressive. Such regulations are
sustained, under the complex conditions of our day, for reasons
analogous to those which justify traffic regulations, which, before
the advent of automobiles and rapid transit street railways, would
have been condemned as fatally arbitrary and unreasonable.”
64
272 US 365 (1926)
H
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1137
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

132. In the recent judgment relating to land use in the United A
States reported in Coy A. Koontz v. St. Johns River Water Management
District65, the Court, speaking through the majority Judgment (5:4), had
the following facts before it. The petitioner therein decided to develop a
3.7 acre section of his property and he applied for certain permits required
in this regard. To mitigate the environmental effects of his proposal, the
B
petitioner offered to foreclose any possible future development of the
approximately 11 acres southern section of his land by deeding to the
district a conservation easement on that portion of his property. The
District, however wanted the petitioner to reduce the size of development
to 1 acre and deed the conservation easement to the remaining extent of
13.9 acres. The District wanted the petitioner to make improvement to C
District owned wet lands, several miles away. The District hinted all
that it would consider alternative wherein monetary equivalent was
proposed. It is in these facts that the majority view was inter alia as
follows: -
“II A [1,2] We have said in a variety of contexts that “the D
government may not deny a benefit to a person because he
exercises a constitutional right.” Regan v. Taxation
With Representation of Wash., 461 U.S. 540, 545, 103 S.Ct. 1997,
76 L.Ed.2d 129 (1983). See also, e.g., Rumsfeld v. Forum for
Academic and Institutional Rights, Inc., 547 U.S. 47, 59–60,
126 S.Ct. 1297, 164 L.Ed.2d 156 (2006); Rutan v. Republican E
Party of Ill., 497 U.S. 62, 78, 110 S.Ct. 2729, 111 L.Ed.2d 52
(1990).”
xxxx xxxx xxxx
“A second reality of the permitting process is that many proposed F
land uses threaten to impose costs on the public that dedications
of property can offset. Where a building proposal would
substantially increase traffic congestion, for example, officials
might condition permit approval on the owner’s agreement to deed
over the land needed to widen a public road.”
G
xxxx xxxx xxxx
“(3) …Under Nollan and Dolan the government may choose
whether and how a permit applicant is required to mitigate the
impacts of a proposed development, but it may not leverage its
65
133 S.Ct. 2586 (2013) H
1138 SUPREME COURT REPORTS [2023] 9 S.C.R.

A legitimate interest in mitigation to pursue governmental ends that
lack an essential nexus and rough proportionality to those impacts.”
xxxx xxxx xxxx
“(7) …Extortionate demands for property in the land-use permitting
context run afoul of the Takings Clause not because they take
B property but because they impermissibly burden the right not to
have property taken without just compensation. As in other
unconstitutional conditions cases in which someone refuses to cede
a constitutional right in the face of coercive pressure, the
impermissible denial of a governmental benefit is a constitutionally
C cognizable injury.”
xxxx xxxx xxxx
“(13) …We agree with respondent that, so long as a permitting
authority offers the landowner at least one alternative that would
satisfy Nollan and Dolan, the landowner has not been subjected
D to an unconstitutional condition.”
133. It is noteworthy to begin with that in India there is no provision
similar to the Takings clause in the 5th amendment to the US constitution.
It is in fact true that Article 31(2) did provide that a person could not be
deprived of his property except after payment of compensation. Article
E 31 stands deleted by the Forty-FourthAmendment. In Article 300A, what
has been inserted by the same amendment is only the first limb of Article
31, viz., no person shall be deprived of his property save by authority of
law. The ambit of this Article has been discussed in the decision in K.T.
Plantations (supra).
F 134. Even under the Takings clause, we may only notice Nollan-
Dolan (supra) and as interpreted by the majority in Koontz (supra) it is
open to the government to consider how the permit applicant must mitigate
the impacts of a proposed development and what is required to make
State action legitimate is that the conditions imposed must bear an
essential nexus and a rough proportionality to the impacts perceived.
G
ENTRY 42 OF LIST III OF THE SEVENTH SCHEDULE
135. Is the impugned Rule/Regulation, a case where it would be
said that Entry 42 in List III to the Seventh Schedule applies? In other
words, is there acquisition of land and is it a case of exercise of eminent
H domain by the state? Is it a case where the impugned provisions are
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1139
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

more relatable to the exercise of police power? Does the impugned A
provision constitute deprivation of property within the meaning of Article
300A? Since we have held that the impugned provision in the case of
the rule is law, would not the Rule be a law which provides for deprivation
of property, and therefore, there is no violation involved at all. Does the
impugned Rule bring about deprivation and for which compensation must
be paid, failing which it cannot but perish by placing it side by side with B
Article 300A?
136. We have noticed that right from 1975 onwards with the
promulgation of DCR along with a master plan, and subsequently, in the
year 2008, with the enactment of the regulations, and still, what is more,
in supersession of the Regulations by the Rules of 2019,the Law Giver C
has put in place the requirement of making available 10 percent of land
excluding roads for the purpose of communal and recreational purposes,
when the layout exceeds 10000 square meters.
137. To the question, which we posed, viz., whether what is
involved is acquisition of the property or an exercise of the power of D
eminent domain,we are of the view that 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. Acquisition of land involves, no doubt, compulsory
divesting of the rights of a person in his property. E
138. We must bear in mind that while right to hold and enjoy
property was a Fundamental Right under Article 19(1)(f), w.e.f. 1978 it
ceased to be a Fundamental Right. Equally, Article 31, which was also a
Fundamental Right in regard to property, including the right to
compensation as provided under Article 31(2) stood deleted. Article 300A F
was inserted resurrecting only Article 31(1).The right to propertyhas
been described by this Court as a Statutory Right; a human right and
also a constitutional right. We must therefore proceed on the basis that a
person would continue to have despite the Forty-FourthAmendment, a
statutory right, a human right and a constitutional right to property.
139. An acquisition is a compulsory vesting of the property of a G
person with the state. It is traceable undoubtedly to the power of eminent
domain assured to every sovereign. It can undoubtedly be exercised
only for securing public interest as contrasted with promotion of private
interest (See K.T. Plantation (supra)66).
66
(2011) 9 SCC 1 H
1140 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 140. K.T. Plantations (supra) was a case which involved the
validity of a law which provided for compulsory acquisition under the
State enactment. The understanding of this Courtin K.T. Plantations
(supra) was that a person cannot be deprived of his property merely by
executive fiat without any specific legal authority or without support of
law made by a competent Legislature (See paragraph-168).We must
B
notice here that law for the scope of Article 300A has been explained by
this Court in Bishambhar Dayal Chandra Mohan and others v. State
of Uttar Pradesh and others67 (paragraph-41) as follows:
“41. There still remains the question whether the seizure of wheat
amounts to deprivation of property without the authority of law.
C Article 300-A provides that no person shall be deprived of his
property save by authority of law. The State Government cannot
while taking recourse to the executive power of the State under
Article 162, deprive a person of his property. Such power can be
exercised only by authority of law and not by a mere executive
D fiat or order. Article 162, as is clear from the opening words, is
subject to other provisions of the Constitution. It is, therefore,
necessarily subject to Article 300-A. The word “law” in the
context of Article 300-A must mean an Act of Parliament or of a
State legislature, a rule, or a statutory order, having the force of
law, that is positive or State made law. The decisions in Wazir
E Chand v. State of H.P. [AIR 1954 SC 415: (1955) 1 SCR 408 :
1954 SCJ 600 : 1954 Cri LJ 1029] and Bishan Das v. State of
Punjab [AIR 1961 SC 1570 : (1962) 2 SCR 69 : (1963) 1 SCJ
405] are an authority for the proposition that an illegal seizure
amounts to deprivation of property without the authority of law.
F In Wazir Chand case [AIR 1954 SC 415 : (1955) 1 SCR 408 :
1954 SCJ 600 : 1954 Cri LJ 1029] the police in India seized goods
in possession of the petitioner in India at the instance of the police
of the State of Jammu & Kashmir. The seizure was admittedly
not under the authority of law, inasmuch as it was not under the
orders of any Magistrate; nor was it under Sections 51, 96, 98 and
G 165 of the Code of Criminal Procedure, 1898, since no report of
any offence committed by the petitioner was made to the police
in India, and the Indian police were not authorised to make any
investigation. In those circumstances, the Court held that the seizure
was not with the authority of law and amounted to an infringement
67
H (1982) 1 SCC 39
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1141
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

of the fundamental right under Article 31(1). The view was A
reaffirmed in Bishan Das case [AIR 1961 SC 1570 : (1962) 2
SCR 69 : (1963) 1 SCJ 405].”
141. What this Court in K.T. Plantations (supra) meant was to
distinguish ‘law’ as a legislative measure as distinct from mere Executive
fiat. B
142. The intention of Parliament was to do away with the
Fundamental Right to acquire, hold and dispose of property (See
paragraph-179). Deprivation of property must take place for public
purpose primarily (See paragraph-180). Public purpose must be given
an expansive meaning(See paragraph-181). Payment of compensation
isa constitutional requirement under Article 30(1)(A) and under the second C
proviso to Article 31(A)(1) unlike Article 300A. After the Forty-
FourthAmendment, the constitutional obligation to pay compensation to
a person deprived of his property is dependent on the Statute. (See para
183). We may refer to the following observations in paragraph 188:
“188. We find no apparent conflict with the words used in List III D
Entry 42 so as to infer that the payment of compensation is inbuilt
or inherent either in the words “acquisition and requisitioning”
under List III Entry 42. Right to claim compensation, therefore,
cannot be read into the legislative List III Entry 42.”
143. This would mean that the argument of the parties, based on E
the impugned provisions being violative of Article 254 of the Constitution,
is untenable. We may equally notice paragraph-189:
“189. Requirement of public purpose, for deprivation of a person
of his property under Article 300-A, is a precondition, but no
compensation or nil compensation or its illusiveness has to be F
justified by the State on judicially justiciable standards. Measures
designed to achieve greater social justice, may call for lesser
compensation and such a limitation by itself will not make legislation
invalid or unconstitutional or confiscatory. In other words, the right
to claim compensation or the obligation to pay, though not expressly
included in Article 300-A, it can be inferred in that article and it is G
for the State to justify its stand on justifiable grounds which may
depend upon the legislative policy, object and purpose of the statute
and host of other factors.”
144. We may also recapture paragraphs-191 and 192:
H
1142 SUPREME COURT REPORTS [2023] 9 S.C.R.

A “191. The legislation providing for deprivation of property under
Article 300-A must be “just, fair and reasonable” as understood
in terms of Articles 14, 19(1)(g), 26(b), 301, etc. Thus in each
case, courts will have to examine the scheme of the impugned
Act, its object, purpose as also the question whether payment of
nil compensation or nominal compensation would make the
B
impugned law unjust, unfair or unreasonable in terms of other
provisions of the Constitution as indicated above.”
“192. At this stage, we may clarify that there is a difference
between “no” compensation and “nil” compensation. A law
seeking to acquire private property for public purpose cannot say
C that “no compensation shall be paid”. However, there could be a
law awarding “nil” compensation in cases where the State
undertakes to discharge the liabilities charged on the property under
acquisition and onus is on the Government to establish validity of
such law. In the latter case, the Court in exercise of judicial review
D will test such a law keeping in mind the above parameters.”
145. A perusal of the paragraphs, which we have adverted to,
would reveal that, while in paragraph-189, it is made to appear that no
compensation or nil compensation or its illusiveness has to be justified on
judicially justifiable standards, in paragraph-192, it is held that a law
E providing for acquisition of private property for public purpose cannot
say that no compensation could be paid. At this juncture, we consider it
apposite to refer to paragraph-141:
“141. Eminent domain is distinguishable alike from the police power,
by which restriction are imposed on private property in the public
F interest e.g. in connection with health, sanitation, zoning regulation,
urban planning and so on from the power of taxation, by which
the owner of private property is compelled to contribute a portion
of it for the public purposes and from the war power, involving the
destruction of private property in the course of military operations.
The police power fetters rights of property while eminent domain
G takes them away. Power of taxation does not necessarily involve
a taking of specific property for public purposes, though analogous
to eminent domain as regards the purposes to which the
contribution of the taxpayer is to be applied. Further, there are
several significant differences between regulatory exercises of
H the police powers and eminent domain of deprivation of property.
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1143
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

Regulation does not acquire or appropriate the property for the A
State, which appropriation does and regulation is imposed severally
and individually, while expropriation applies to an individual or a
group of owners of properties.”
146. What is of interest to this Court in these cases is the
observation that eminent domain is to be contrasted with police power, B
where restrictions are put in public interest, in connection with zoning
regulations, urban planning, inter alia, by which the owner of a private
property is compelled to contribute a portion of it for public purpose. No
doubt, it is also held that Regulation does not acquire or appropriate the
property.
C
147. We must appreciate the issues before us in the light of the
said exposition.
148. The impugned provision does not represent in our view, a
case of compulsory acquisition of land. A case of compulsory acquisition
would be without there being any volition or consent of a person. The D
State purports to divest his rights in property and vest the rights with the
State. The impugned provision does not appear to us to be a case of
such acquisition as is contemplated ina law which is made with reference
toEntry 42 in List III. In this context, we must also deal with the case
based on Section 20 of the Act. Section 20 deals with contents of detailed
development plan.Section 20 (d) reads as follows and it provides, inter E
alia, the contents:
“Section 20(d). The acquisition by purchase, exchange or otherwise
of any land or other immovable property within the area included
in the detailed development plan whether required immediately or
not.” F
149. From a perusal of the said provisions, what it contemplated,
can be summed-up as follows. A detailed development plan can propose
or provide to purchase or exchange any land or immovable property.The
land may be required immediately or it may be not so immediately
required. What is important is apart from purchase and exchange, the G
property maybe ‘acquired otherwise’.We are not concerned with a
challenge to Section 20.As Section 20 stands acquisition by way of a
giftcannot be said to be incongruous merely by reference to the two
other expressly articulated modes of transfer of title,viz., purchase and
exchange. Undoubtedly, a gift is a transfer of property without there
H
1144 SUPREME COURT REPORTS [2023] 9 S.C.R.

A being any valuable consideration. It is an act of volition of the owner.In
other words, if a plan does provide that right in land or other immovable
property may be acquired in terms of a gift which may be executed, it
may not involve straining the plain language, and also involve
pouringmeaning into the width of the expression ‘otherwise’ just as much
as it avoids placing a narrow connotation on a word of wide import.
B
150. The decision in Pandit ChetramVashishta (supra) was a
decision,which turned on the absence of any power under which the
open space or park was to stand vested in a corporation or to stand
transferred to it. In fact, this Court found that the effect of the reservation
was that the donor ceased to be the legal owner of the land in dispute.
C He held the land for the benefit of society or the public in general. The
donor became essentially a trustee preventing alienation of his right.
The court however drew a distinction between the owner being
transformed into the trustee and being prevented from transferring his
rights and the local body being vested with the rights of the owner. As
D far as the impugned provisions in these cases are concerned, the DCR
not only obliges setting apart a certain percentage (10 percent) for the
communal and recreational purposes in respect of very large projects
but also a transfer, is to be made of the property so set apart by the
owner. We will delve upon the impact of this decision at a later point of
time in a different context. At the same time, we must also bear in mind,
E the Judgment of this Court in Yogendra Pal and others (supra). In
Yogendra Pal and others, we have already noticed the facts.What was
involved there was the violation of Section 192(1)(c) of the Punjab
Municipal Act, 1911. The provision provided that the Municipal Committee
may prepare a building scheme, which may, inter alia, provide that the
F amount of land in unbuilt area shall be transferred to the committee for
public purposes including use as public streets by owners of land either
on payment of compensation or otherwise, provided that the total amount
so transferred shall not exceed thirty-five per cent, and the amount
transferred without payment shall not exceed twenty-five per cent, of
any one owner’s land within such unbuilt area. What appealed to this
G Court as the basis for transgression of Article 14 has been adverted to
by us and which is contained in paragraphs-14 and 15 of the said
Judgment. It must be remembered that the principal plank of attack
against the provision in question was that it fell foul of Article 19(1)(f)
read with Article 31 of the Constitution as the Articles stood then. The
H transfer effected in the said case, it may be noticed was prior to
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1145
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

20.06.1979 on which date the Forty-FourthAmendment came into being. A
Therefore, the case was that it amounted to acquisition of property.This
Court found merit in the contention that what was involved was actually
acquisition and the transfer was not merely for a limited purpose. It was
found that there was no provision in the Act to suggest that despite
employment of the land for public purpose, the ownership and possession
B
or occupation continued with the landowner.The landowner was
compelled to enjoy rights only as a member of the public. The Court also
rejected the case of the transfer being only for a limited purpose. A
perusal of Section 192(1)(c) reveals that the said provision is not
comparable with the provision impugned in the cases before us. Section
192(1)(c) of the Punjab Tenancy Act, 1911 was clearly in the nature of C
acquisition.The rights of the person were extinguished effectively.The
provision vested power or a discretion to acquire land either on payment
of compensation or otherwise. As already noticed, this was done at a
time when Article 19(1)(f) and Article 31 of the Constitution, both being
Fundamental Rights, continued to hold the field. No doubt, the decision
D
is rested ultimately on the impugned provision being found to be contrary
to Article 14. What is pertinent, however, is that, in the case of the Rule/
Regulation impugned, as we have already found, is not a case of exercise
of power of eminent domain, and it is not a case of acquisition by means
of compulsory exaction of the property. What is involved in these cases,
is a different factual matrix.A person or a group of persons, owning an E
extent of land, which is in excess of 10,000 square metres in a fast-
growing urban metropolis, wish to develop the land. It is, apparently,a
commercial venture. They put-up, what is called, special buildings or
group development. This involves making optimum use of the land by
putting up vertical constructions. In other words, ordinarily, large number
F
of persons would come to occupy the area with a layout of more than
10,000 square metres. The Law Giver has contemplated provision of
roads within the layout of roads. In fact, the roads are themselves to
become public.Interestingly, even in the challenge made by the Writ
Petitioner in Writ Petition No. 651 of 2015,viz., the petitioner has
specifically limited the challenge to the regulation to the requirement of G
gifting the area comprised in the land for communal and recreational
purposes. The Regulations, as did the Rules, provide for the roads to
become publicand become open to the members of the public.A gift, in
this regard, is not ironically objected to.
H
1146 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 151. We have noticed from the pleadings that the appellants and
the petitioner substantially do not challenge the setting apart of land for
the purpose of communal or recreational purpose. The objections appear
to be as follows. The word ‘communal’ must be contextually interpreted
to confine the benefit of reservation for the occupants of the buildings
and it must not be made available to the members of the public. In the
B
case of Vasanth Apartments, they object to the land set apart under the
gift deed, being used to cater to the members of the public in general, by
converting it into a public road. In fact, it must be remembered that in
the case of Vasanth Apartments, as rightly pointed out by Shri Jayant
MuthRaj, learned Senior Counsel, the gift was not executed by the
C members of the Association. The property was gifted by the developer
as a condition for developing the land. The developer, in other words,
who put together the project or developed the project, is the person who
would have a right to have the property revested.He accepts the gift. It
is obvious that having been a partyto the gift it may not lie in his mouth to
impeach the same. [See in this regard the Judgment of this Court in
D
Narayanrao Jagobaji (supra)]. It is not as if the members of the Vasanth
Apartment Owners Association claim to have an assignment of the right
over the land which is gifted from the original owner. Therefore, as far
as the members of the Vasanth Apartment Owners Association are
concerned, on the factual basis available, it may not lie in their mouth,
E noticing two other features as well, to contend that the Court must
invalidate the Rule. The gift was executed in the year 1994. The Writ
Petition is filed almost 12 years after. Secondly, the first Writ Petition,
filed by the members of the Vasanth Apartment Owners Association,
was by drawing support from the gift deed. They wanted that the property
must be continued as recreational and OSR area. A learned Single Judge
F
allowed the writ petition. Thereafter, there were two Writ Appeals filed,
one by persons who claimed that the area was being used as a public
road, and another, by the Corporation of Chennai and the CMDA. There
was an interim Order passed by the Division Bench. It is thereafter, that
the second Writ Petition is filed by them challenging the Rule. While,it is
G true that mere passage of time will not make an unconstitutional provision
valid, the delay, with which a prevailing Statute is impugned, becomes a
factor, which the Court would not ignore. In this case, as if such factors
were not sufficient, we notice the further development. The Rules came
to be repealed by the Regulations in the year 2008 and the Regulation
stood repealed in the year 2019 by Statutory Rules made in the said
H
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1147
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

year. The challenge to the Rule, on the basis of Article 300A and, indeed, A
Article 14 as well by Association of Vasanth Apartment Owners
Association must fail, as it cannot even be their case that their right in
property was deprived. The appellants never had any proprietary right
in the property to allege deprivation of the same. Even if the Rule is
found bad, there can be no question of voiding the gift at the appellant’s
B
instance.
152. In the case of M/s. Keyaram Hotels Pvt. Ltd., their
complaints, apart from those dealing with legality of the Rule on other
grounds, which we had noticed and discussed, remain the following.
Before we go to the other complaints, we have already noticed, in C
paragraph 10 of the Writ Petition, the appellant/petitioner (M/s. Keyaram
Hotels Pvt. Ltd.) has expressed its willingness for stipulating open space
as required for communal and recreation use of the occupiers and lawful
uses of the building and it was specifically averred that it would satisfy
the public interest. It is specifically undertaken that they will keep 10
percent of the area as open space for communal and recreational D
purpose. However, they have raised the complaint that further, apart
from the direction to execute the gift, the condition, imposed to provide
exclusive frontage for the said open space into the main road, is
unsustainable in law. It is the complaint that the attempt to the third
respondent is to gain entry into the property of the petitioner to make use E
of the open space reserved, detrimental to the rights of the property
owner.
153. The matter may be viewed in the following manner. In the
facts in Pandit Chetram Vashishta (supra), it was held that the position
of the developer, would be that of a trustee. It was so held in the absence F
of a statutory mandate. Now, in this case, there is a statutory mandate to
execute a gift deed. The question would arise as to what would be the
nature of the rights of the donee, viz., the local authority. Would the
donee become an absolute owner? Can the local authority transfer the
land? Can the local authority build on the OSR area? The answer to all
these questions is only in the negative. Unlike the donee, in the case of a G
gift, the local authority cannot in anyway acquire the right as the absolute
owner. Just as in the case of Pandit Chetram Vashishta (supra), where
the developer would be a trustee, we would think that the Rule, if is to be
upheld, in the conspectus of the law and bearing in mind the object, the
transfer by way of a gift to the donee will be only for the purpose of H
1148 SUPREME COURT REPORTS [2023] 9 S.C.R.

A ensuring that the object of the law is attained, i.e., the property is
maintained as OSR. The local authority, under the gift deed, would be a
mere trustee. As trustee, it will be the obligation of the local authority to
ensure that all such lands, set apart under the impugned Rules/
Regulations, are effectively maintained as such. In this regard, in the
Open Space Act, 1906, a U.K. Law, Section 3 reads as follows:
B
“3 Transfer to local authority of spaces held by trustees for
purposes of publicrecreation.
(1) Where any land is held by trustees (not being trustees elected
or appointed under any local or private Act of Parliament) upon
C 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
D conditions (so that the land be appropriated to the purposes of
public recreation) as may be agreed on between the trustees and
the local authority with the approval of the Charity Commission.
(2) Subject to the obligation of the land so transferred being used
for the purposes ofpublic recreation, the local authority may hold
E the land as and for the purposes of anopen space under this Act.”
154. The very goal of town planning requires nothing less. Once
the goal of executing the gift and the results it produces in law, are
appreciated in the above manner, we find that the apprehensions and the
contentions of the appellant/petitioner lose their sheen. We are unable to
F 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
G setting apart 10 per cent, is invulnerable. The area will even without a
gift remain out of bounds for the project proponent/owner. The OSR,
being an inviolable requirement, the additional requirement, meant and
understood as a measure to ensure compliance and prevent misuse and
or disuse, must not be understood as deprivation. As already discussed,
the gift will not convert the Local Body into an absolute owner. Instead,
H in place of the original owner, continuing as a trustee, the Local Authority
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1149
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

becomes the trustee. The purpose and the nature of the obligation will A
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, we are of the view that, in
substance, the Rule/Regulation cannot be understood as deprivation under
Article 300A.
B
155. We have indicated earlier that this Court has recognised Right
to Property as a Constitutional Right on account of insertion of Article
300A. In the context of the Principle of Unconstitutional Condition, as
recognised in the United States, could it be said that the impugned Rule/
Regulation presents a case of an unconstitutional condition? While, as
already found by us, the impugned provisions, do not make out a case of C
acquisition as it is not a compulsory divesting of title and a gift is executed
on the basis that the project proponent/owner volunteers to execute the
gift deed andno doubt, in view of the Rule, the execution of the gift deed,
finally, brings in the element of consent and takes the transaction out of
the Doctrine of Eminent Domain, which requires compulsory acquisition D
de hors the consent of the person having interest in the property, but
then the question arises, whether the impugned provisions involves a
person having a Constitutional Right under Article 300A, having to
sacrifice his Right as a condition to obtain the development permit. This
Court has declared the right of a person to construct a building, is a right
under the law, viz., the Statute, which governs the same. In the said E
sense, it becomes a Statutory Right. The right is hedged in necessarily
with limitations and conditions. Now, superimposing the mandate of Article
300A, the question arises, whether the instant case involves employment
of an unconstitutional condition. In Ahmedabad St. Xavier’s College
Society v. State of Gujarat68, Justice Mathew while dealing with the F
contentof the right guaranteed under Article 30(1) in regard to recognition
or affiliation held inter alia as follows:
“158. The doctrine of “unconstitutional condition” means any
stipulation imposed upon the grant of a governmental privilege
which in effect requires the recipient of the privilege to relinquish G
some constitutional right. This doctrine takes for granted that ‘the
petitioner has no right to be a policeman’ but it emphasizes the
right he is conceded to possess by reason of an explicit provision
of the Constitution, namely, his right “to talk politics”. The major
68
(1974) 1 SCC 717 H
1150 SUPREME COURT REPORTS [2023] 9 S.C.R.

A requirement of the doctrine is that the person complaining of the
condition must demonstrate that it is unreasonable in the special
sense that it takes away or abridges the exercise of a right
protected by an explicit provision of the Constitution (see William
W. Van Alstyne: ”The Demise of the Right-Privilege Distinction
in Constitutional Law” [81 Harv Law Rev 1439]).”
B
156. In a case involving exercise of power to terminate service of
a permanent employee of public/semi government undertaking or statutory
corporations only by giving a month’s notice, this Court inter alia held in
Delhi Transport Corpn. v. D.T.C. Mazdoor Congress69 as follows:
C 283. The problem also could be broached from the angle whether
the State can impose unconstitutional conditions as part of the
contract or statute or rule etc. In (1959-60) 73 Harvard Law
Review, in the Note under the caption ‘Unconstitutional Condition’
at pages 1595-96 it is postulated that the State is devoid of power
to impose unconstitutional conditions in the contract that the power
D to withhold largesse has been asserted by the State in four areas
i.e. (1) regulating the right to engage in certain activities; (2)
administration of government welfare programme; (3) government
employment; and (4) procurement of contracts. It was further
adumberated at pages 1602-03 thus:
E “The sovereign’s constitutional authority to choose those with
whom it will contract for goods and services is in effect a
power to withhold the benefits to be derived from economic
dealings with the government. As government activity in the
economic sphere increases, the contracting power enables the
F government to control many hitherto unregulated activities of
contracting parties through the imposition of conditions. Thus,
regarding the government as a private entrepreneur threatens
to impair constitutional rights…. The government, unlike a
private individual, is limited in its ability to contract by the
Constitution. The federal contracting power is based upon the
G Constitution’s authorisation of these acts ‘necessary and
proper’ to the carrying out of the functions which it allocates
to the national government. Unless the objectives sought by
terms and conditions in government contracts requiring the
69
(1991) Suppl.1 SCC 600
H
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1151
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

surrender of rights are constitutionally authorised, the conditions A
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 B
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. C
Finally, disabling those exercising certain rights from participating
in the advantages to be derived from contractual relations with
the government may be a form of penalty lacking in due process.
To avoid invalidation for any of the above reasons, it must be
shown that the conditions imposed are necessary to secure
the legitimate objectives of the contract, ensure its effective D
use, or protect society from the potential harm which may result
from the contractual relationship between the government and
the individual.”
157. The Doctrine of Unconstitutional Condition involves a person
having to give-up a Constitutional Right as a condition to obtain a benefit E
he is otherwise entitled to. While it is in the context of Article 300A, to
be understood that the Right to Property cannot be deprived except in
accordance with law and even as held in K.T. Plantations (supra) that
such law must be fair and reasonable,once it is found that there is such
a law, then, even if there is deprivation, it cannot be found that Article F
300A is violated. We have already found, in fact, that there is no
deprivation in the context of the impugned Rules/Regulations. In the
conspectus of the DCR/ Regulation, the nature of the right to property
available under the Constitution as expounded in K.T. Plantations (supra),
the seemingly never ending imperative needs of an urban metropolis, the
indisputable need to set apart 10% for the recreational purpose and the G
discussion we have already made with regard to the effect of the gift
and the purpose it serves, we are of the view that the rule/regulation
may not give rise to any room for invoking the doctrine of unconstitutional
condition.We must continue to remain alive to the vital dimension which
we have already indicated that the impugned provision essentially pertains H
1152 SUPREME COURT REPORTS [2023] 9 S.C.R.

A to what can be described as purely commercial projects though it is
linked with property rights. In other words, particularly from the stand
point of invoking the doctrine of unconstitutional condition, the distinction
between the person putting up a residential building and the proponent of
a complex, commercial project in a metropolis cannot be lost sight of. At
any rate, we cannot in the conspectus of the Rule/Regulation and the
B
salutary purpose, it seeks to achieve hold the requirement as an
“unreasonable condition in a special sense”.[See para 155]
158. The case of the CMDA is that in view of the benefits which
accrue, it could be a case of nil compensation. The distinction between
nil compensation and no compensation has been laid down to be that in
C the former it is permissible on the basis that it becomes liable to discharge
the liability in regard to the person/property. In the context of the rule/
regulation, we would not think that there would be violation of Article
300A on the basis of it being a deprivation of property involving breach
of a mandate to pay compensation. It must be at once noticed that what
D is involved is the need to execute a gift.By its very nature, in the case of
a gift, there cannot be any valuable consideration. If compensation is to
be paid then it would cease to be a gift. Having regard to the discussion
we have made regarding the validity of the rule/regulation otherwise,
we do not think that execution of the gift which we have found
transformed the donee not as the absolute owner but as trustee would
E require having regard to the salutary purpose, the need to pay
compensation.It may not be a case where the respondent discharges
any liability as such. It is another matter that the project proponent stands
to make a considerable profit as a result of the permission granted.
159. In case there is no requirement to execute a gift of OSR
F area in terms of Pandit Chetram Vashishta (supra), the project
proponent/owner would remain in the position of a trustee. As a trustee
in law is the legal owner, and therefore this being the position in law, he
may not be disabled from transferring the property in any manner.
However, as he is under obligation as a trustee to maintain the property
G as OSR, he cannot defeat the obligation by transferring the same and it
can lead to abuse. No doubt, he would be prohibited from raising any
construction over the OSR area. One of the bundle of rights of an owner,
however, which would survive after the owner steps into the shoes of a
trustee, could be said to be the power to exclude ‘others’ from the OSR
area. The attribute of ownership of property consisting of the power to
H
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1153
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

exclude others may continue with the project proponent in the absence A
of a gift. Now, interestingly, this again would depend upon the
interpretation of the words ‘communal and recreational purpose’. This
is for the reason that if the OSR area can be accessed by members of
the general public as contended by the respondents, then, the project
proponent cannot possibly have the right of an owner to exclude them.
B
Equally, even with the requirement to maintain the OSR area in the
absence of the demand for a gift, it could be said that the sole project of
proponent could have the right to remain in possession. Another dimension
may be noticed. What would happen if the OSR area is acquired in the
exercise of the power of eminent domain for the public purpose? Who
would be entitled to the compensation, if a gift is made in terms of the C
impugned Rule/Regulation? We would think that since the interpretation
we are placing is that the gift under the Rule/Regulation is intended only
to ensure due compliance with the requirement of the OSR area being
effected and to prevent misuse by the owner, as between the original
owner and the local authority,it would be the original owner, who may be
D
entitled to the compensation.
160. The time, therefore, is ripe to deal with the meaning of the
words open space reservation of land for communal and recreational
purposes.
161. Group development falls under Rule 19(b)(2) of the DCR. E
Group development is defined as accommodation for residential or
commercial or combination of such activities housed in two or more
blocks of buildings in a particular site irrespective of whether these
structures are interconnected or not. Rule 19(b)(ii) proceeded to provide
for the minimum width of the public road on which the site abuts. The
vehicular access way including passage if any within the site was to F
have a minimum width. It also referred to set back requirements.Parking
standardswere prescribed [See 19(b)(ii)(v)]. It is, thereafter, that the
open space requirement was provided by declaring that reservation of
land for communal and recreational purposes shall be as follows and it
must at this juncture be noticed that there is an explanation,which reads G
as follows: -
“Explanation: -
(1) For the purposes of this rules, existing development defined as
one “Where the extent of ground area covered by structures
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1154 SUPREME COURT REPORTS [2023] 9 S.C.R.

A already existing (prior to application) in 25% and above of the
total site area”.
(2) In case of existing development where it is difficult to leave
the 10% area as open space for communal / recreational purposes,
the Authority reserves the right to collect the market value of
B equivalent land in lieu of the land to be reserved. However, if on a
future date the developer wants to demolish the existing structures
and raise new structures on the site in question, the communal
and recreational space shall be reserved, as per rule.
(3) The land so reserved shall be free from any construction by
C the owner or promoter or developer. The land for communal and
recreational purposes shall be restricted at ground level in a shape
and location to be specified by the Chennai Metropolitan
Development Authority.”
162. In the case of Writ Petition No. 691 of 2015 wherein the
D regulation of the year 2008 has been challenged as we have noticed
there is no challenge to Regulation 29(6)(a), which, inter alia, provides
how the land reserved is to be restricted at the ground level. It is true
that there is a challenge to Annexure XX, which we have extracted in
paragraph 118 of the judgment. But the absence of challenge to Regulation
29(6) is fatal.We must proceed on the basis that there is no challenge to
E 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
is that it is to be restricted at ground level in a shape and location to be
F specified by the Chennai Metropolitan Development Authority. This
provision has not been expressly challenged. In the absence of a
challenge, what is contained in a rule and also the like provision in the
regulation, the resultant position would be the exact shape and the location
is to be determined by the CMDA.

G 163. The problem, however, still persists in the form of the meaning
of the words‘communal and recreational purpose’ in the case of a site
having an extent between 3,000 square metres to 10,000 square metres.
Rule 19 (b)(vi) to 19(2)(b)(vi) contemplate that the space so required is
to be transferred to the authority or local body designated by the authority
free of cost through a deed. It is further provided that the local body
H may provide the residents association or flat owners association for
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1155
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

maintaining such reserved space as park. Significantly, in the case of a 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 percent of area excluding
B
road had to be transferred by a gift is insisted upon. It is provided that it
is obligatory to transfer the reserved 10 percent of the site area. No
charges can be accepted in the case of new development or re-
developments. It will be noticed that in the case of Rule 19(b)(II)(vi) in
the case of site having extent between 3,000 square metres to 10,000
square metres, the CMDA or the local body may permit the residents C
association or flat owners association for maintaining the reserved space
as parks. In the case of site having extent of above 10,000 square metres
under the column ‘reservation’, it is not provided that the flat owners or
residents association may be permitted to maintain the reserved park.
However, it will be noticed that Rule 19(b)(II)(vii) reads as follows: -
D
“(vii) The Authority reserves the right to enforce themaintenance
of such reserved lands by the owner tothe 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 deed,
the Authority as the case may be, reserve the right to decide on
entrusting the maintenance work to institution/individual on merits E
of the case.
Explanations under DCR 19 (b):-
(1) For Economically Weaker Section group housing, the set back
shall be 4.5 metre from the site boundary and the spacing between F
the blocks shall be a minimum of 3 metres. The vehicular access
way within the site shall have a minimum width of 4.5 metres.
Other stipulations shall be as in rule 19(b) (II) above. But, this
shall be applied only in sites duly declared for Economically Weaker
Section housing by Government.
G
(2) The corridor within the buildings shall be accordance with the
standard prescribed in Annexure XII-A.
(3) In matter of standards other than specified in these rules, the
stipulation and the specifications laid down by the Indian Standards
Institutions shall apply.
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1156 SUPREME COURT REPORTS [2023] 9 S.C.R.

A (4) Structures incidental to the main activities such as water-closet,
bath and pump room shall not be construed as individual blocks
for the purpose of these rules. But, these structures shall not be
permitted in the prescribed set back spaces.
III (a) Notwithstanding anything mentioned above layouts for group
B 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.”
164. The impact of Rule 19 (b)(II)(vii) is as follows. It empowers
the CMDA to enforce the maintenance of the reserved areas by the
C owner to the satisfaction of the authority or to order the owner to transfer
the land to the authority or any local body free of cost through a deed.
The authority also reserves the right to decide on entrusting the
maintenance work to institutions/individual on the merits of the case. It
is noteworthy that there is no challenge to Rule 19(b)(II)(vii). It would
appear that when a gift is executed then the duty of maintaining can be
D given to institution/individual on the merits of the case. This would mean
that even the project proponent or other individual/individuals who may
have an interest as in the case of Vasant Apartments Owners Association,
the said Association could be asked to maintain the open area.
165. The impression we gather on reading the contents of
E 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
F wisdom and the policy of the Rule Maker, which as we have seen, has
been made after the process undergone under the Act, as we have
noticed, and apparently, after hearing objections, if any, and with the
approval of the government that, were a large chunk of land be developed
for group development, as defined, and certain percentage, which in
these cases is 10 percent or 1/10th of the total layout excluding roads is
G 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
H who would occupy the said area. Group development can be substantially
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1157
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

conflated with flats and apartments comprised in two or more blocks or A
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
B
approach. Congestion in urban areas is a foreseen certainty. The
requirement for lung space and that too the need for the same being
available in the close vicinity of the area of residents is not difficult to
conjure. Planned development has a considerable deal to do with the
quality of the lives of the residents in an urban area, as can be perceived
from provision made for aspects relating to parking, setback, roads, all C
of which do apparently make inroads into absolute right of property of
developer. They are indispensable necessities from the standpoint of the
town planner as much as it is for the residents in an urban area. While
we are conscious of the fact that the DCR did contemplate open space
zones which must be understood as parks, etc., as one of the zones,the
D
idea,apparently, was to avoid concentration and the consequent need to
undertake avoidable travel for the residents of an area to the site of the
open space zone.An open space requirement is stipulated world over
based on very formidable considerations. The fact that no construction
is to be put up is the very corollary of and is in consonance with an
‘open’ space requirement. Still further, parks inevitably would have trees. E
Trees ensures a steady supply of much needed oxygen. Providing other
recreational measures, which are at the heart of quality of a person’s
life, in keeping with modern demands, are critical elements of a legitimate
public interest.
166. Having made these observations, we pass on to consider F
further aspects. In the case of Vasanth Apartments, i.e., Civil Appeal
Nos. 1890-1891 of 2010, the developer undoubtedly executed a gift deed.
A contention is taken on behalf of the respondents including Shri Jayant
MuthRaj that the donor has gifted the land for roads and parks from the
perusal of thegift deed. It would appear that the donor has indeed gifted
the land in question and provided that the donee may peacefully and G
quietly enjoy the said land ‘of roads/parks’ free from all encumbrances.
At this juncture, we bear in mind the actual terms of the gift deed
executed in the case of Association of Vasanth Apartments, which we
have adverted to in paragraph-47 of this Judgment.
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1158 SUPREME COURT REPORTS [2023] 9 S.C.R.

A 167. The Division Bench has considered the report of the Advocate
Commissioner also to find that there existed a kachha pathway and that
is a road which is being used by thousands in terms of the gift deed
which came into effect. It is their contention that even if it is found by
this Court that in terms of the OSR requirement of 10 percent of the
land, it can only be used as open space for communal and recreational
B
purpose and not for a road, this Court may not interfere.
168. Firstly, we must consider the ambit of the words communal
and recreational purpose and find whether it could take in a public road
for being used by members of the public generally. Equally, we must
consider whether the word communal is capable of extending the benefit
C
of the open space requirement to the members of the general public or
whether it must be confined to the beneficiaries of the group development.
In other words, if the word communal is interpreted as the community of
the beneficiaries of the group development, then it must be understood
as meaning that members of the general public cannot be permitted to
D partake of the benefits flowing from the open space reservation. For
instance, if adjoining the site and as indicated in the explanation in a
shape and location determined by the CMDA, a park is constructed. By
use of the word communal and interpreting it to mean a community
which is larger than the mere beneficiaries of the group development as
such, then the benefit of the open space may become available to the
E
general public in the nearby area. This would have the advantage of
facilitating the members of the public avoiding travelling to the areas
where there is recreation or open space, as for instance, under the zoning
requirements. Undoubtedly, the absence of any construction which is
indispensable to make it an open space area and which is insisted upon
F also will provide a large chunk of space for all the people in the area.
Making available the facilities on the basis that when development is
permitted, it brings in its train certain responsibilities for the project
proponents which can be appreciated as legitimate State interests, is
one way of approaching the issue. It must be understood in all these
cases that setting apart of 10 percent of the area is actually as such not
G
objected to. This means all parties are agreed that the law providing for
setting apart of 10 percent of the total area excluding roads in the case
of group development in excess of 10,000 square metres is legitimate
and valid,unless we find favour with the arguments that it is otherwise
constitutionally infirm.We have already found that the provision does not
H offend Article 14 on the ground that it represents a species of class
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1159
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

legislation. We are unable to also find that the provision is manifestly A
arbitrary. If in other words, there is no other basis to find the impugned
rule vulnerable, we can safely proceed to hold that the requirement of
OSR is not unjustified. We have noticed the stand of the two appellants
and the writ petitioners also in this regard. We find that it is their stand
that they are prepared to maintain the 10 percent area as OSR. What is
B
objected is to the execution of the gift deed and allowing the property
rights to change hands.This is apart from the objection to the chosen site
being made accessible to the general public.
169. We have noticed that in Pandit Chetram Vashishta (supra),
this Court has held that in the absence of valid provision under which the C
gift in the said case could be supported, the mere resolution was not
sufficient. The position still was found to be that the original owner would
continue to be a trustee. He cannot transfer or change the nature of the
property. In fact, in the decision reported in Virender Gaur (supra), this
Court discountenanced conversion of what was an OSR area into land
on which construction though for what was projected as a laudable object D
was carried out. We are of the view that bearing in mind the laudable
object the law relating to town planning which has been the very basis
for our reasoning otherwise, we must clarify that what the Rule and the
Regulation mandatorily stipulated was the dedication and maintenance
of 10 percent of the area for communal and recreation purposes area E
only. There is inviolable duty on the part of all including the local body
and the CMDA to ensure that an area which is set apart or purported to
be set apart in terms of the OSR requirement under the Rule/Regulation
in question is used only for communal and recreational purpose. We
notice in, this regard, the complaint of Ms. V. Mohana, learned Senior
Counsel, as indeed the other counsel that only lip service is being paid to F
the projected sublime object of maintaining OSR. This cannot be permitted.
170. Unrelentingly persevering is the aspect relating to the contours
of the word communal in the setting of the Rules/regulations and Act.
Rules do shed some light in Rule 19 (b)(II)(vi). In regard to plots having
a size of 3,000 square metres to 10,000 square metres, the law giver has G
provided that it shall not be necessary to provide access to the public.
When it comes to the impugned Rule, viz., Rule 19 (b)(II)(vi) providing
for plot size in excess of 10,000 square metres, it is apparent that the
access of the members of the general public to the OSR area is to be
permitted. This result is inevitable having regard to the fact that unlike H
1160 SUPREME COURT REPORTS [2023] 9 S.C.R.

A the immediate predecessors, viz., plot size having 3,000 to 10,000 square
metres wherein it has been indicated that public access shall not be
insisted upon such a relaxation is conspicuous by its absence. The wisdom
and the value judgement, which underlies permitting or contemplating
public access to the OSR area, can be understood only in terms of the
difference in the size. Once wisdom and a value judgment are beyond
B
the pale of judicial review and scrutiny, and further, it is found that the
project developer and also the beneficiaries of the group development
are duty-bound for maintaining an OSR area, then the matter goes to the
legitimacy of the public or State interest. The consequences of executing
the gift deed and the underlying purpose have been adverted to by us
C already. In fact, apart from it being a legitimate public purpose, even the
rough proportionality concept in Nollan (supra) would appear to be
satisfied.
171. In the case of M/s. Keyaram Hotels Pvt. Ltd., the terms of
the gift deed provide that the gift is made so that the donee may at all
D times, peacefully and quietly, possess and enjoy the said portion only as
open space, free from all encumbrances, without any lawful eviction,
interruption, claim whatsoever from the donor. A perusal of Rule 19
(b)(II)(vi) in relation to the extent of size between 3,000 and 10,000
square metres contemplates that the reserved area is to maintained as a
E park.
172. We notice that under Rule 61 of the Andhra Pradesh Group
Development Scheme, sub-Rule (7) reads as follows:
“61(7) Minimum of 10% of site area shall be earmarked for
organised pen space and be utilised as greenery and shall be
F provided over and above the mandatory setbacks at suitable
location accessible to entire community to the satisfaction of the
competent authority. Such open space shall be open to sky and
shall not be over cellar floors.
(Emphasis supplied)
G
173. We may also notice sub-Rule 61(14):
“(14) All roads and open spaces mentioned in this Rule shall be
handed over to local body at free of cost through a registered gift
deed before issue of occupancy certificate. The society /
H
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1161
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

association may in turn enter into agreement with the local authority A
for utilizing, managing and maintaining the roads and open spaces.
In case of any violation of encroachment, the local authority shall
summarily demolish the encroachments and resume back the roads
and open spaces and keep it under its custody.”
174. Under Regulation 23 of the DCR for Greater Bombay, 1991, B
open space is to be provided, in fact, for any layout, starting from 1001
square meters to 2500 square meters, wherein 15 per cent is to be kept
as open space. For an area of 2501 square meters to 10000 square
meters, 20 per cent has to be kept as open space. In the case of residential
and commercial layout for area above 10000 square meters, ‘25’ per C
cent has to be maintained as open space. There are certain exceptions.
The ownership, no doubt, is to vest by a deed of conveyance in all the
property owners on account of whose holdings, the recreational space is
assigned. It also appears to provide that the remaining area of recreational
open space or playground (that is after excluding structures providing
for pavilions, gymnasium, clubhouses, etc.), is to be made accessible to D
all members as a place of recreation, garden or playground.
175. The words ‘communal and recreational purpose’, for which
the OSR area is to be used, in the case of the impugned Rule/Regulation,
appears to indicate that the word ‘communal’ is to be given a meaning,
which would be in keeping with the object of law, enable members of E
the public as well, to gain access when the layout is more than 10000
square meters. In this regard even in Pt. Chetram (supra) we recapture
the following:
“6. Reserving any site for any street, open space, park, school
etc. in a layout plan is normally a public purpose as it is inherent in F
such reservation that it shall be used by the public in general. The
effect of such reservation is that the owner ceases to be a legal
owner of the land in dispute and he holds the land for the benefit
of the society or the public in general. It may result in creating an
obligation in nature of trust and may preclude the owner from G
transferring or selling his interest in it. It may be true as held by
the High Court that the interest which is left in the owner is a
residuary interest which may be nothing more than a right to hold
this land in trust for the specific purpose specified by the coloniser
in the sanctioned layout plan. But the question is, does it entitle
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1162 SUPREME COURT REPORTS [2023] 9 S.C.R.

A the Corporation to claim that the land so specified should be
transferred to the authority free of cost. That is not made out
from any provision in the Act or on any principle of law. …”
176. Rule 61(7) of the Andhra Pradesh Rules in Andhra Pradesh,
which we have referred to, is unambiguous that the area used as
B ‘greenery’ shall be accessible to the ‘entire community’. It is to be secured
by means of the gift contemplated in Rule 61(14). While, we cannot be
sitting in Judgment over the said Rule, we would think that the purport of
the impugned Rule/Regulation must be understood as persuading the
Court to not place a narrow interpretation.
C 177. In this regard we find reassurance in the view taken by the
courts in the United States even in the presence of the taking clause
under the 5th Amendment to the U.S. Constitution. In an Article titled
“Techniques for Preserving Open Spaces” published in 75 Harv. L. Rev.
1622, we find the following:
D “Required Dedication and Reservation. — A municipality can
require the developer of a new subdivision to provide such facilities
as roads, streets, sewers, and playgrounds as a condition to plat
approval. In the leading case of Ayres v. City Council a requirement
that the subdivider dedicate land for road and street purposes and
E leave undeveloped an accompanying area for trees and shrubbery
was approved on the theory that since the new subdivision created
the need for and would specially benefit from the improvements,
the developer and ultimate purchasers rather than the entire
community should bear the cost of providing them. In a case
involving required reservation of land for a public park the argument
F that this would be an unconstitutional taking of land was rejected
on the theory that the subdivider would be compensated by the
share of the benefits to the whole community which accrued to
his particular development. The Pennsylvania Supreme Court has
taken a contrary view, however. And where the need for a
G particular improvement is a general one, not specifically
attributable to the subdivider’s activity, the entire municipality must
bear the cost.”
We would therefore come to the conclusion that the word
‘communal’ must be understood as where the layout exceeds 10000
H sq.meters entitling members of the general public also to avail the benefit
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1163
V. GOPINATH & ORS. [K. M. JOSEPH, J.]

of the OSR area. Once, the word ‘communal’ is so understood it further A
fortifies us in our conclusion that there would be no infraction of Article
300A or Article 14 as understanding the execution of the gift deed as
obligating the donee only to act as a trustee to ensure the fulfilment of
the sublime goal of the law and since the owner/developer would not
have a right to exclude others or to claim exclusive right to possession
B
which would be incongruous to recognising the right of the members of
the general public to access to the OSR area.This discussion furnishes
our rationale to uphold the Rule / Regulation and to hold that it can
withstand the challenge based on Article 300A on the basis that properly
appreciated the “so called compelled gift” would be valid. Even proceeding
on the basis that a challenge to Rule 19(b) would imply a challenge to C
the Explanation as well, on the reasoning which has appealed to us,
namely, about the nature of the right under the Gift Deed as also finding
that the word ‘communal’ is intended to reach the benefit of the OSR
area to the members of the public as well, there would be no merit in the
contention.
D
THE UPSHOT OF THE ABOVE DISCUSSION:
178. The upshot of the above discussion may be summed-up as
follows:

E
I. Rule 19 of the DCR, which is impugned, is statutory in
nature;
II. Rule 19 is not ultra vires the Act;
III. The impugned Regulation is not ultra vires the Act; F

IV. Neither the impugned Rule nor the Regulation violates
Article 14 of the Constitution of India;
V. The impugned Rule/Regulation does not violate Article 300A
of the Constitution of India; G

VI. The areas covered by the OSR cannot be diverted for any
other purpose. The respondents are duty-bound to ensure
that the area set apart as OSR is stringently utilised only
for the purpose in the Rule/Regulation. We direct that no
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1164 SUPREME COURT REPORTS [2023] 9 S.C.R.

A area meant for OSR shall be utilised as dumping yards or
any other purpose other than as OSR;
VII. As far as Civil Appeal Nos. 1890-1891 of 2010 are
concerned, we are of the view that in view of the fact that
there appears to have been a kachha road, even at the
B time of the gift executed as early as in February, 1994 and
it was being used as a road by large numbers of members
of the public to reverse the position on the ground, may
produce a great deal of injustice, which we would avoid by
resorting to the principle enunciated in the decision of this
C Court referred to in Taherakhatoon (D) By LRs. v.
Salambin Mohammad70. However, if the property gifted
is in excess of the area used for the road, we direct that the
excess land shall be used for the purpose of OSR only.We
also direct that the Authority may consider making available
the maintenance of the said area to the appellants, namely,
D Association of Vasanth Apartments Owners, if they are
prepared to maintain it in terms of the observations contained
in this judgment.
179. Civil Appeals 1890-1891 of 2010 are disposed of. The other
Appeals and the Writ Petition will stand dismissed subject to the
E observations/directions we have made earlier. No order as to costs.

Bibhuti Bhushan Bose Appeals and Writ Petition disposed of.
(Assisted by : Shubhash Thakur and
Rahul Rathi, LCRAs)
F

G

70
H (1999) 2 SCC 635