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

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 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 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 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.”

37Copy pinpoint37. 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.”

38Copy pinpoint38. 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 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 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 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 rules and the requirements under any other Act or rules or by laws in force the requirements under these rules and the provisions of Chennai City Municipal Corporation Act, Tamil Nadu Distrit Municipal Act or Panchayat Act or any other law relating to the local authority for the time being in force or any rule, by law or regulation made under the said act or laws, 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

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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.

39Copy pinpoint39. 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, industrial and agricultural purposes and for parks, play-fields and open spaces; (c) the allotment and reservation of land for public buildings, institutions and for civic amenities; (d) the making of provision for national highways, arterial roads, ring roads, major streets, lines of communication including railways, airports and canals; (e) the traffic and transportation pattern and traffic circulation pattern; (f) the major road and street improvements; G (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 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 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

40Copy pinpoint40. 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 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 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 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

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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.

41Copy pinpoint41. 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 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 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 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.

42Copy pinpoint42. It is profitable for us at this juncture to look at what a learned 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 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 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

43Copy pinpoint43. 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

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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 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 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

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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

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

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:

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

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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 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.”

44Copy pinpoint44. After referring to Rule 27 dealing with group developments and Rule 29 which dealing with layout and sub division regulations and 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 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 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

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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 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 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 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

45Copy pinpoint45. 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 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.

46Copy pinpoint46. It is necessary to notice the relevant facts in the case relating 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 10.².1994 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 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 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.

47Copy pinpoint47. 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

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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 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 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 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 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?

48Copy pinpoint48. 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

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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 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 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.”

49Copy pinpoint49. In the review petition (filed as review application no. 69 of 2008) also there is no contention seeking to ventilate the complaint that H

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the impugned rule falls foul of Article 14 on the basis that it is discriminatory.

50Copy pinpoint50. 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 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 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 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.

51Copy pinpoint51. We are unable to persuade ourselves to hold that the impugned 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 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

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52Copy pinpoint52. 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 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 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

53Copy pinpoint53. 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 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 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 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 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.”

54Copy pinpoint54. 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

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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] ]

55Copy pinpoint55. 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

56Copy pinpoint56. 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.

57Copy pinpoint57. 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 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 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 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.

58Copy pinpoint58. 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

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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.

59Copy pinpoint59. 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, 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 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?

60Copy pinpoint60. 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.”

61Copy pinpoint61. 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).

62Copy pinpoint62. ‘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

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63Copy pinpoint63. 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 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 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, 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;”

64Copy pinpoint64. A perusal of Section 39 would clearly reveal that a right to compensation is conferred on any person whose property is ‘injuriously 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 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 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 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.

65Copy pinpoint65. We are reinforced in our view that the contention of the appellants is misplaced with reference to the concept of ‘injuriously 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 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 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

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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 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.”

66Copy pinpoint66. The case of a person developing land being subjected to the 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

67Copy pinpoint67. 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 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 contention that the legislature took extraordinary care to ensure that a

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landowner is not affected or injured even slightly because of the planning 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.

68Copy pinpoint68. Section 47 of the Act comes under Chapter VI which deals with control of development and use of land. It declares that afterthe 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 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 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.

69Copy pinpoint69. 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

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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 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 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 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 without any compensation under any law, rule or regulation or bye-law at the time in force.”

70Copy pinpoint70. 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 repelled.

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71Copy pinpoint71. 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 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.

72Copy pinpoint72. 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 statutory force. THE RIGHTS REGIME

73Copy pinpoint73. 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 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 not to use it, in contrast with others who are under a duty not to use or interfere with it.”

74Copy pinpoint74. We may however notice the following: “This does not mean, however, that an owner whose property is 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 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

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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)

75Copy pinpoint75. 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)

76Copy pinpoint76. 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

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depends upon scientific research, study and experience and, thus, 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, 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 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 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 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

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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

77Copy pinpoint77. 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 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 height of the building or contravening restrictions such as setback, floor space area etc.? The answer cannot be in the affirmative.

78Copy pinpoint78. 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 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, 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 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 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

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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.”

79Copy pinpoint79. 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.”

80Copy pinpoint80. At this juncture again, we must notice the aspect of Police F power, in contrast with the Doctrine of Eminent Domain.

81Copy pinpoint81. 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 is a vital difference, which is recognised by the authorities, between an Act passed with exclusive reference to the police power of the state, without any purpose to take and apply property to public uses, and an Act which not only declares the existence of a nuisance created by the condition of particular property, but in addition, and as the best means of accomplishing the end in view, authorizes the same property to be appropriated by the public.” In Sweet v. 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 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

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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 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 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 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.]

82Copy pinpoint82. 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 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 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.”

83Copy pinpoint83. It has been followed in Bhimandas Ambwani (Dead) through LRs v. Delhi Power Company Ltd.39.

84Copy pinpoint84. 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

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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 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 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.

85Copy pinpoint85. Article 31 stands omitted and Article 19(1)(f) also stands deleted by way of the Forty-Fourth Amendment to the Constitution which came into effect from 20.06.1979. 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

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“48. The word ‘property’ used in Article 300-A must be understood in the context in which the sovereign power of eminent domain is exercised by the State and property expropriated. 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 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 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 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 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)

86Copy pinpoint86. A Constitution Bench has considered the aspects arising out 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

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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 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 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 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 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 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 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 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 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

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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 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 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 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 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 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 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

87Copy pinpoint87. 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 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 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