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

The Judgment of the Court was delivered by K. M. JOSEPH, J.

1Copy pinpoint1. 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

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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

2Copy pinpoint2. 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 in accordance with law if there is any violation. It was found to be the duty of the respondents to maintain such open areas as parks and on there being afailure on their part, the association of the residents should be welcomed to do the same subject to the rules.Writ Appeal no. 478 of 2007 was filed by one Shri Gopinath and others. They were persons who were living in the neighbourhood.Writ Appeal no. 1026 of 2007 was filed by the Commissioner of the Corporation of Chennai and the Member Secretary of the Chennai Metropolitan Development Authority (hereinafter referred to as the ‘CMDA’). It was by the judgment impugned in Civil Appeal Nos. 1890-91 of 2010, the division bench allowed the Writ Appeals and set aside the judgment of the learned Single Judge. 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 by the Advocate-Commissioner and the photographs filed before us and the other materials available on record that in the OSR area, there is a katcha road, which is said to have been laid by the Corporation in the year 2003. Probably because of this katcha road and the usage of the same as road by all the residents in the locality, the occupants of the Vasanth Apartments might have felt disturbance, which would have prompted them to make a representation to the Corporation to develop a park in the said area or in the alternative to permit them to develop and maintain a park for their recreational purpose besides illegally constructing a compound wall, separating the petrol bunk and the compound wall H

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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 part of their lay out.” “18. It has also been alleged that under similar circumstances, the CMDA has permitted all the residents associations in Velachery to maintain the open spaces as recreational parks in the nearby area viz. K.G. Apartments, Sai Sarovar etc. Each case has to be viewed and decided on its own merits and since in the case on hand, in the interest of thousands of general public residing in and around the area, the authorities have taken a wise decision to lay a road to have easy and immediate access to the 100 ft. road, the same cannot be found fault with.” 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.”

3Copy pinpoint3. 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

4Copy pinpoint4. 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

5Copy pinpoint5. 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

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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.

6Copy pinpoint6. We may notice the relevant contents of the counter affidavit filed by the respondent State. The case set up inter alia is that the CMDA had carried out necessary survey and prepared the master plan which lays down policies and programmes which are necessary to regulate the growth of the area and also to ensure its economic viability, social stability and sound management for the present and the foreseeable future and orderly development required the same. The DCR was an integral part of the master plan. Any person wanting to develop a property within the Metropolitan area must apply for permission and the CMDA is empowered to enforce such conditions and restrictions as was necessary under the rules. It is in public interest. If the ownership of the open OSR area were to be allowed to vest with the original land owner, then the concerned owner would have a chance to convert the same for construction, the area specially reserved as open space, for communal recreation by suppressing the said fact after passage of time. Hence, it is necessary that the open space area should be vested with the civil authorities who are responsible for maintenance of parks and play fields in the sites. The open space reservation is provided to create lung space in the city and to have sufficient open space for the use of society.

7Copy pinpoint7. 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

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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 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 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

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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 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 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 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 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 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 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 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 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 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 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 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 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

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8Copy pinpoint8. 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

9Copy pinpoint9. 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).

10Copy pinpoint10. 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 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 being ultra vires, unconstitutional and violative of the fundamental rights of the Petitioner; and”

11Copy pinpoint11. 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 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.]

12Copy pinpoint12. We may notice the grounds taken in the writ petition. It is 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 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.

13Copy pinpoint13. 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 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.

14Copy pinpoint14. We heard Shri Sanjay R. Hegde learned senior counsel on 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

15Copy pinpoint15. In Civil Appeal Nos. 7847 of 2013, Shri Gopal Sankaranarayanan would contend that a compelled gift attracted the 1 (1995) 1 SCC 47 H

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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 empowering deprivation of the property of the appellants.

16Copy pinpoint16. 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 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 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.

17Copy pinpoint17. There is also a further case that the rule falls foul of Article 14 for another reason. It is complained that the rule produces classification which is not permitted under Article 14. In 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]

18Copy pinpoint18. 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

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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, 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 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 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.

19Copy pinpoint19. 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 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 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 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 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 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

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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 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 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 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 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 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 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.

20Copy pinpoint20. Shri Sanjay Hedge, learned Senior Counsel, for the Corporation of Chennai, supported the judgments. He contended that the impugned 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

21Copy pinpoint21. 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

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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.

22Copy pinpoint22. 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

(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 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 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

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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.”

23Copy pinpoint23. 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’.

24Copy pinpoint24. 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 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 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

25Copy pinpoint25. 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

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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

26Copy pinpoint26. 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

27Copy pinpoint27. 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

28Copy pinpoint28. 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.

29Copy pinpoint29. 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

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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.

30Copy pinpoint30. 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 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 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 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 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 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.

31Copy pinpoint31. Before we deal with the issue we must bear in mind as to 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

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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, 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, 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.]”

32Copy pinpoint32. 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, bye-law, rule or regulation;”

33Copy pinpoint33. 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 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.”

34Copy pinpoint34. 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;

35Copy pinpoint35. 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

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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 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 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

36Copy pinpoint36. 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 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 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 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

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