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

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

ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1107 V. GOPINATH & ORS. [K. M. JOSEPH, J.]

88Copy pinpoint88. Still further, the Court held as follows: A “6. Reserving any site for any street, open space, park, school etc. in a layout plan is normally a public purpose as it is inherent in such reservation that it shall be used by the public in general. The effect of such reservation is that the owner ceases to be a legal owner of the land in dispute and he holds the land for the benefit of the society or the public in general. It may result in creating an obligation in nature of trust and may preclude the owner from transferring or selling his interest in it. It may be true as held by the High Court that the interest which is left in the owner is a residuary interest which may be nothing more than a right to hold this land in trust for the specific purpose specified by the coloniser in the sanctioned layout plan. But the question is, does it entitle the Corporation to claim that the land so specified should be transferred to the authority free of cost. That is not made out from any provision in the Act or on any principle of law. …” (Emphasis supplied) D

T. VIJAYALAKSHMI AND OTHERS V. TOWN PLANNING MEMBER AND ANOTHER44

89Copy pinpoint89. In this case, the appellants were the owners of agricultural land, who had been permitted to use the same for non-agricultural purposes in 2004. An application was filed for approval of a building plan. This Court, inter alia, held as follows: “15. The law in this behalf is explicit. Right of a person to construct residential houses in the residential area is a valuable right. The said right can only be regulated in terms of a regulatory statute but unless there exists a clear provision the same cannot be taken away. It is also a trite law that the building plans are required to be dealt with in terms of the existing law. Determination of such a question cannot be postponed far less taken away. Doctrine of legitimate expectation in a case of this nature would have a role to play. G xxx xxx xxx

18. It is, thus, now well-settled law that an application for grant of permission for construction of a building is required to be decided 44 (2006) 8 SCC 502 H

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90Copy pinpoint90. The matter arose under the Maharashtra Regional Town Planning Act, 1966 (MRTP). The Development Control Rules were directed to be amended by the Government under Section 37 of the said law. The case of the respondents before this Court was that the matter travelled beyond the powers of the State Government under Section 37(2) of the Act. We notice the following: “5. Making of DCR or amendments thereof are legislative functions. Therefore, Section 37 has to be viewed as repository of legislative powers for effecting amendments to DCR. That legislative power of amending DCR is delegated to the State Government. As we have already pointed out, the true interpretation of Section 37(2) permits the State Government to make necessary modifications or put conditions while granting sanction. In Section 37(2), the legislature has not intended to provide for a public hearing before according sanction. The procedure for making such amendment is provided in Section 37. Delegated legislation cannot be questioned for violating the principles of natural justice in its making except when the statute itself provides for that requirement. Where the legislature has not chosen to provide for any notice or hearing, no one can insist upon it and it is not permissible to read natural justice into such legislative activity. Moreover, a provision for “such inquiry as it may consider necessary” by a subordinate legislating body is generally an enabling provision to facilitate the subordinate legislating body to obtain relevant information from any source and it is not intended to vest any right in anybody. (Union of India v. Cynamide India Ltd. [(1987) 2 SCC 720] , SCC paras 5 and 27. See generally H.S.S.K. Niyami v. Union of India [(1990) 4 SCC 516] and Canara Bank v. Debasis Das [(2003) 4 SCC 45 H (2004) 10 SCC 796

ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1109 V. GOPINATH & ORS. [K. M. JOSEPH, J.]

557 : 2003 SCC (L&S) 507] .) While exercising legislative A functions, unless unreasonableness or arbitrariness is pointed out, it is not open for the Court to interfere. (See generally ONGC v. Assn. of Natural Gas Consuming Industries of Gujarat [1990 Supp SCC 397] .) Therefore, the view adopted by the High Court does not appear to be correct. B

6. DCR are framed under Section 158 of the Act. Rules framed under the provisions of a statute form part of the statute. (See General Officer Commanding-in-Chief v. Dr. Subhash Chandra Yadav [(1988) 2 SCC 351 : 1988 SCC (L&S) 542 : (1988) 7 ATC 296] , SCC para 14.) In other words, DCR have statutory force. It is also a settled position of law that there could C be no “promissory estoppel” against a statute. (A.P. Pollution Control Board II v. Prof. M.V. Nayudu [(2001) 2 SCC 62] , SCC para 69, STO v. Shree Durga Oil Mills [(1998) 1 SCC 572] , SCC paras 21 and 22 and Sharma Transport v. Govt. of A.P. [(2002) 2 SCC 188] , SCC paras 13 to 24.) Therefore, the D High Court again went wrong by invoking the principle of “promissory estoppel” to allow the petition filed by the respondents herein.” TUKARAM KANA JOSHI AND OTHERS V.MAHARASHTRA INDUSTRIAL DEVELOPMENT CORPORATION AND OTHERS46 E

91Copy pinpoint91. In the said case, the land of the appellants was taken over by the agents of the State. Compensation, despite repeated requests, was not made available. This Court held: “11. There are authorities which state that delay and laches extinguish the right to put forth a claim. Most of these authorities pertain to service jurisprudence, grant of compensation for a wrong done to them decades ago, recovery of statutory dues, claim for educational facilities and other categories of similar cases, etc. Though, it is true that there are a few authorities that lay down that delay and laches debar a citizen from seeking remedy, even if his fundamental right has been violated, under Article 32 or 226 of the Constitution, the case at hand deals with a different scenario altogether. The functionaries of the State took over possession of

46 (2013) 1 SCC 353 H

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A the land belonging to the appellants without any sanction of law. The appellants had asked repeatedly for grant of the benefit of compensation. The State must either comply with the procedure laid down for acquisition, or requisition, or any other permissible statutory mode. There is a distinction, a true and concrete distinction, between the principle of “eminent domain” and “police 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.” D

92Copy pinpoint92. This has been followed in Bhimandas Ambwani (Dead) Through Lrs. v. Delhi Power Company Limited47 (See paragraph 13 of the said Judgment). JILUBHAI NANBHAI KHACHAR AND OTHERS V. E STATE OF GUJARAT AND ANOTHER⁴⁸

93Copy pinpoint93. We have already adverted to it earlier. STATE OF GUJARAT V. SHANTILAL MANGALDAS AND OTHERS49

94Copy pinpoint94. The said decision was rendered by a Constitution Bench of this Court. The matter in issue was the validity of Sections 55 and 67 of the Bombay Town Planning Act (Act 27 of 1955). The High Court had declared the provisions violative of Article 31(2) of the Constitution. This Court embarked upon elaborate consideration of the provisions of the Act, and it will be profitable, if we advert to paragraph-22, wherein, G the Court, after referring to the provisions of Article 31, as amended by the Fourth Amendment in the year 1955, proceeded to hold as follows:

47 (2013) 14 SCC 195 48 1995 Supp (1) SCC 596 49 (1969) 1 SCC 509 H

ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1111 V. GOPINATH & ORS. [K. M. JOSEPH, J.]

“22. The following principles emerge from an analysis of clauses A (2) and (2-A): compulsory acquisition or requisition may be made for a public purpose alone, and must be made by authority of law. Law which deprives a person of property but does not transfer ownership of the property or right to possession of the property to the State or a corporation owned or controlled by the State is not a law for compulsory acquisition or requisition. The law, under the authority of which property is compulsorily acquired or requisitioned, must either fix the amount of compensation or specify the principles on which, and the manner in which, the compensation is to be determined and given. If these conditions are fulfilled the validity of the law cannot be questioned on the plea that it does not provide adequate compensation to the owner. xxx xxx xxx

26. Article 31 guarantees that the law providing for compulsory acquisition must provide for determining the giving of compensation for the property acquired. The expression “compensation” is not defined in the Constitution. Under the Land Acquisition Act D compensation is always paid in terms of money. But that is no reason for holding that compensation which is guaranteed by Article 31(2) for compulsory acquisition must be paid in terms of money alone. A law which provides for making satisfaction to an expropriated owner by allotment of other property may be deemed to be a law providing for compensation. In ordinary parlance the expression “compensation” means anything given to make things equivalent; a thing given to or to make amends for loss, recompense, remuneration or pay; it need not therefore necessarily be in terms of money. The phraseology of the Constitutional provision also indicates that compensation need not necessarily be in terms of money, because it expressly provides that the law may specify the principles on which, and the manner in which, compensation is to be determined and “given”. If it were to be in terms of money alone, the expression “paid” would have been more appropriate.”

95Copy pinpoint95. In the course of its Judgment, the Court disapproved observations contained in P. VajraveluMudaliar v. Special Deputy G Collector for Land Acquisition and another 50. Equally, the Court overruled the decision of this Court in Union of India v. Metal Corporation of India Ltd. and another51. 50

(1965) 1 SCR 614

51 (1967) 1 SCR 255) H

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96Copy pinpoint96. It was relying on these two judgments, inter alia, that this Court found that the High Court had wrongly concluded that in order that compensation based on market value be sufficient for the purpose of Article 31(2), it must be a just equivalent. We may also notice that the Court repelled the attempt on behalf of the State that because the object of the Act was to promote public health, it fell within the exception to B Article 31(5)(b)(ii).

97Copy pinpoint97. Regarding purport of the Fourth Amendment, in Shantilal Mangaldas (supra), this Court declared as follows: “41. The principal effect of this amendment, in so far as that is relevant in this appeal, was to snap the link which, according to this Court, existed between clauses (1) and (2) — that was achieved by enacting clause (2-A); greater clarity was secured by enacting in clause (2) that property shall be compulsorily acquired only for a public purpose; and by authority of law which provides for compensation, and either fixes the amount of compensation or specifies the principles on which, and the manner in which, compensation is to be determined and given; and that the law for acquisition or requisition shall not be called in question in any court on the ground that the compensation provided thereby is not adequate. By the amendment made in Article 31-A certain classes of statutes were placed with retrospective effect outside the purview of attack before the Courts on the ground of infringement of the fundamental rights under Articles 14, 19 and 31, and by the addition of certain Acts in the Ninth Schedule a challenge to those Acts that they infringed any fundamental rights in Part III could not be entertained. But the amendments made in F Article 31 were not given any retrospective operation. The result was that in cases where acquisition was made pursuant to the statutes enacted before April 27, 1955, the law declared in Mrs Bela Banerjee case and Subodh Gopal Base case continued to apply.”

98Copy pinpoint98. The Judgment in Shantilal Mangaldas (supra) has been G approved of and followed in the case by a Constitution Bench in Prakash Amichand Shah v. State of Gujarat and others52.

99Copy pinpoint99. The Court repelled the argument that the decision in Shantilal Mangaldas (supra) was overruled by the Judgment in His Holiness 52 H (1986) 1 SCC 581

ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1113 V. GOPINATH & ORS. [K. M. JOSEPH, J.]

Kesavananda Bharati Sripadagalvaru v. State of Kerala and A another 53.

100Copy pinpoint100. This Court also made the following observations, which incidentally are relied upon by the respondents to contend that the developer of property would be entitled to benefits when there is planned development: B “16. The re-arrangement of titles in the various plots and reservation of lands for public purposes require financial adjustments to be made. The owner who is deprived of his land has to be compensated, and the owner who obtains a re-constituted plot in surroundings which are conducive to better sanitary living C conditions has to contribute towards the expenses of the scheme. This is because on the making of a Town Planning Scheme the value of the plot rises and a part of the benefit which arises out of a unearned rise in prices is directed to be contributed towards financing of the scheme which enables the residents in that area to more amenities, better facilities and healthier living conditions. D …”

101Copy pinpoint101. This Court in Babulal Badriprasad Varma v. Surat Municipal Corporation and others54, while dealing with the Gujarat Town Planning and Urban Development Act, 1976, inter alia, held: “33. We are, however, not unmindful of the fact that a statute of E town planning ex facie is not a statute for acquisition of a property. An owner of a plot is asked to part therewith only for providing for better facilities of which he would also be a beneficiary. Every step taken by the State does not involve application of the doctrine of eminent domain. F

34. In this case, the appellant did not oppose the draft scheme. It accepted that the State had a right to do so. Existence of a public purpose and increase in the valuation of the property was admitted. There exists a distinction in the action of the planning authority as regards vesting of a property in it and one so as to enable it to create a third-party interest vis-à-vis for the purpose of reallotment G thereof. In the former case, the vesting of the land may be held to be an act of acquisition, whereas in the latter, it would be distribution of certain benefits having regard to the purpose sought to be 53 (1973) 4 SCC 225 54 (2008) 12 SCC 401 H

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102Copy pinpoint102. In the recent Judgment, again, a Bench of three learned Judges of this Court, followed the Judgment in Chairman, Indore Vikas Pradhikaran (supra). C NARAYANRAO JAGOBAJI GOWANDE PUBLIC TRUST V. STATE OF MAHARASHTRA AND OTHERS55

103Copy pinpoint103. The dispute revolved around a condition in a development agreement executed between the appellant-Trust and the Nagpur Improvement Trust (for short, ‘NIT’). Under such condition, the appellant D was to transfer the land and/or primary school open land in the layout free-of-cost and the NIT was free to dispose of such land as per its Rules and Regulations. We notice that the predecessor-in-interest of the appellant was given permission by the NIT, under which, an area was reserved for a primary school which was a public utility land. The NIT E allotted the land in the layout approved in favour of the appellant’s predecessor to a third party for construction of a college. Several contentions were arrayed against the allotment, including that the NIT did not have any power to insert such a condition and that there was no power to acquire land de hors the Act, under which, it was created. This Court dismissed the appeal and upheld the view of the High Court. F In doing so, this Court held as follows: “34. We have carefully heard both the parties at length and have also given our conscious thought to the materials on record and the relevant provisions of law. We are of the view that the High Court in its judgment and order has rightly held that Respondent 1 G State and Respondent 2 NIT are bound to stick to the development plan and scheme. It has placed reliance upon the decision of this Court in Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemicals Ltd. [Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemicals Ltd., (2007) 8 SCC 705] , wherein this Court, 55 H (2016) 4 SCC 443

ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1115 V. GOPINATH & ORS. [K. M. JOSEPH, J.]

while dealing with the aspect of town planning and Articles 300-A A and 14 of the Constitution of India, has observed as under: (SCC p. 730, paras 46-47) “46. … The courts must make an endeavour to strike a balance between public interest on the one hand and protection of a constitutional right to hold property, on the other. B

47. For the aforementioned purpose, an endeavour should be made to find out as to whether the statute takes care of public interest in the matter vis-à-vis the private interest, on the one hand, and the effect of lapse and/or positive inaction on the part of the State and other planning authorities, on the other.” C xxx xxx xxx

36. The High Court has, further, rightly held that the impugned clause contained in the said development agreement is neither void nor illegal for want of consideration. It has also been rightly D held by it that after consideration of the whole scheme of the NIT Act, particularly, the provisions under Sections 29 to 70 and 121 of the said Act read with the terms and conditions of the said development agreement entered into between the parties, it is clear that the said development agreement creates reciprocal rights and obligations between the parties with some objects. E xxx xxx xxx

38. Thus, seeking abandonment of acquisition of the land as provided under Section 68 of the NIT Act is a huge benefit which the appellant Trust has gained from the agreement. Further, it is F not open for the appellant Trust to avail only the beneficial part of the said development agreement to form a layout plan and allow the sites to be allotted in favour of the allottees, when it itself is not willing to discharge the obligation of transferring the reserved land for public utility purpose, as agreed upon in the development agreement. G

39. Further, the High Court has rightly observed that another benefit derived by the appellant Trust from the said development agreement is immediate and reciprocal sanction for the development of the said land with permission for the commercial usage of the same, presuming that there would be no acquisition.” H

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A YOGENDRA PAL AND OTHERS V. MUNICIPALITY, BATHINDA AND ANOTHER56

104Copy pinpoint104. The case arose under the Punjab Municipal Act, 1911. The State Government, acting under Section 192(3) of the Municipal Law, sanctioned a Town Planning Scheme, under which, an area of 22.23 B acres was transferred to the Municipal Committee. No compensation was paid to the owners. The High Court upheld the provision. Section 192(1)(c), inter alia, provided for transfer, to the Committee, of land, either on payment of compensation or otherwise. The contention taken by the respondent was that it was only a transfer of land and not acquisition. This Court found that the provision did contain a restriction on the maximum amount of land which could be transferred and also maximum amount of land which could be transferred without payment of compensation. This Court found that there was no guideline in the Act providing for as to when compensation was payable or could be denied. The Court also took note of the width of the expression ‘public purpose’, for achieving which, the land could be transferred. It was further noticed that the said expression suggested that the purpose concerned cannot be of benefit only and exclusively to the transferor- landowner. It was to be a utility to members of the public in general. The fact that the transferor-landowner would also benefit, did not make any difference. The use of the word ‘transferred’ as against ‘acquired’ and the contention that, ‘therefore, the rights of the land owner continued’, was rejected. Section 192(c) was contrasted with Section 169 and it was found that the latter provision was confined to use of the land for laying public streets, and what is more, the land could be acquired by paying compensation. Section 169 also contemplated restoration to the original owner, if the land could not be used as a public street. We may bear in mind the following discussions in the context of the facts of the case before us: “18. The next contention is that the transfer of the land is also for the benefit of the transferor landowner and in fact the balance of the land which remains with him appreciates in value to an extent which more than sufficiently compensates him for the loss of the land. Hence there is no need to pay him separate compensation for the extent of land up to 25 per cent transferred to the Municipal Committee. The contention suffers from several fallacies. In the 56 (1994) 5 SCC 709 H

ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1117 V. GOPINATH & ORS. [K. M. JOSEPH, J.]

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

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A that the provisions of Section 192(1)(c) are violative of Article 14 of the Constitution.” VIRENDER GAUR AND OTHERS V. STATE OF HARYANA AND OTHERS57

105Copy pinpoint105. In the said case, the appellant surrendered 25 per cent of her B land to the Municipality, which was a condition for sanction for construction of a building. The land stood vested with the Municipality. The land in question stood earmarked for open spaces. A Dharamshala came to be put-up for the Punjab Samaj Sabha on the basis of allotment to it. It was contended that in the construction of the Dharamshala, even if there was a public purpose, the Government could not direct the C Municipality to permit land use, defeating the scheme, which provided for keeping the land open. This Court described environment ‘as a polycentric and multifaceted problem, affecting human existence’.

106Copy pinpoint106. The Court, in Virender Gaur (supra), further found power to the Municipality under Section 66 to transfer the land vested in it. The D Court went on to hold, inter alia, as follows: “11. It is seen that the open lands, vested in the Municipality, were meant for the public amenity to the residents of the locality to maintain ecology, sanitation, recreation, playground and ventilation purposes. The buildings directed to be constructed necessarily affect the health and the environment adversely, sanitation and other effects on the residents in the locality. Therefore, the order passed by the Government and the action taken pursuant thereto by the Municipality would clearly defeat the purpose of the scheme. Shri D.V. Sehgal, learned Senior Counsel, again contended that two decades have passed by and that, therefore, the Municipality is entitled to use the land for any purpose. We are unable to accept the self-destructive argument to put a premium on inaction. The land having been taken from the citizens for a public purpose, the Municipality is required to use the land for the protection or preservation of hygienic conditions of the local residents in particular and the people in general and not for any other purpose. Equally acceptance of the argument of Shri V.C. Mahajan encourages pre-emptive action and conduct, deliberately chartered out to frustrate the proceedings and to make the result

57 (1995) 2 SCC 577 H

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fait accompli. We are unable to accept the argument of fait accompli on the touchstone of prospective operation of our order.”

107Copy pinpoint107. This Court also distinguished Yogendra Pal (supra) in this regard.

108Copy pinpoint108. There is a contention of the appellants and the writ petitioners that, at any rate, the law is an expropriatory legislation. This is for the reason that it operates to deprive a person of his land without his consent. [See in this regard Chairman, Indore Vikas Pradhikaran (supra), which has discussed this aspect elaborately.] For reasons already given and to follow, we are unable to agree. C

109Copy pinpoint109. We agree that the law, undoubtedly, is that the planning law cannot be interpreted as justifying an inroad into the rights of a private person to construct a suitable building for the purpose of carrying on his business.

110Copy pinpoint110. In Ravindra Ramchandra Waghmare v. Indore Municipal D Corporation and others58, after an elaborate reference to Chairman, Indore Vikas Pradhikaran (supra) and K.T. Plantations (supra), this Court, inter alia, held as follows: “76. …It is apparent from the aforesaid dictum that Article 300-A enables the State to put restrictions on the right by law but the same should not be arbitrary or excessive or beyond what is required in public interest. The imposition of restriction must not be disproportionate to a situation or statute. Legislation providing for deprivation of property under Article 300-A must be just, fair and reasonable. Thus, it cannot be said that illusory compensation is provided under Section 306 read with Section 387. The decision renders no help to the cause espoused on behalf of the appellants and on a closer scrutiny, rather counters it. Based on the aforesaid principles we find no malady in the provisions in question which may be required to be cured.”

111Copy pinpoint111. No doubt, the Court, in the said case also, after referring to G Rajiv Sarin and another v. State of Uttarakhand others 59, found that the case at hand was not a case of no compensation. Incidentally, this Court also followed the Judgment in Shantilal Mangaldas (supra): 58 (2017) 1 SCC 667 59 (2011) 8 SCC 708 H

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A “83. As already held a law seeking to acquire private property for public purpose cannot say that “no compensation” would be paid. The present case is a case of payment of “no compensation” at all. In the case at hand, the forest land which was vested in the State by operation of law cannot be said to be non-productive or unproductive by any stretch of imagination. The property in question was definitely a productive asset. That being so, the criteria to determine possible income on the date of vesting would be to ascertain such compensation paid to similarly situated owners of neighbouring forests on the date of vesting. Even otherwise, the Revenue Authority can always make an estimation of possible income on the date of vesting if the property in question had been exploited by the appellants and then calculate compensation on the basis thereof in terms of Sections 18(1)(cc) and 19(1)(b) of the KUZALR Act.”

112Copy pinpoint112. In Rajiv Sarin (supra), the U.P. Zamindari Abolition and D Land Reforms Act, 1950, the Kumaun and Uttarakhand Abolition and Land Reforms Act, 1960, introduced the U.P. Act in the Uttarakhand and Kumaun region. The rights of every intermediary in respect of forest land came to be vested with the State Government. This was as a result of an amendment. The amendment and Notice came to be challenged. This Court, speaking through a Constitution Bench, held, inter alia, as follows: “68. The incident of deprivation of property within the meaning of Article 300-A of the Constitution normally occurred mostly in the context of public purpose. Clearly, any law, which deprives a person of his private property for private interest, will be amenable to judicial review. In the last sixty years, though the concept of public purpose has been given quite wide interpretation, nevertheless, the “public purpose” remains the most important condition in order to invoke Article 300-A of the Constitution.

69. With regard to claiming compensation, all modern Constitutions G which are invariably of democratic character provide for payment of compensation as the condition to exercise the right of expropriation. The Commonwealth of Australia Constitution Act, the French Civil Code (Article 545), the Fifth Amendment to the Constitution of USA and the Italian Constitution provided principles H

ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1121 V. GOPINATH & ORS. [K. M. JOSEPH, J.]

of “just terms”, “just indemnity”, “just compensation” as A reimbursement for the property taken, have been provided for.

70. Under the Indian Constitution, the field of legislation covering claim for compensation on deprivation of one’s property can be traced to Schedule VII List III Entry 42 of the Constitution. The Constitution (Seventh Amendment) Act, 1956 deleted Schedule B VII List I Entry 33, List II Entry 36 and reworded List III Entry 42 relating to “acquisition and requisitioning of property”. The right to property being no more a fundamental right, a legislation enacted under the authority of law as provided in Article 300-A of the Constitution is not amenable to judicial review merely for alleged violation of Part III of the Constitution. xxx xxx xxx

73. It was further submitted that the inherent powers of public purpose and eminent domain are embodied in Article 300-A, and Entry 42, List III, “acquisition and requisitioning of property” which necessarily connotes that the acquisition and requisitioning of property will be for a public use and for compensation and whenever a person is deprived of his property, the limitations as implied in Article 300-A as well as Entry 42, List III will come into the picture and the Court can always examine the legality and validity of the legislation in question. It was further submitted that awarding nil compensation is squarely amenable to judicial review under Articles 32 and 226 of the Constitution of India. xxx xxx xxx

77. Article 31(2) of the Constitution has since been repealed by the Constitution (Forty-fourth Amendment) Act, 1978. It is to be noted that Article 300-A was inserted by the Constitution (Forty- fourth Amendment) Act, 1978 by practically re-inserting Article 31(1) of the Constitution. Therefore, right to property is no longer a fundamental right but a right envisaged and conferred by the G Constitution and that also by retaining only Article 31(1) of the Constitution and specifically deleting Article 31(2), as it stood. In view of the aforesaid position the entire concept of right to property has to be viewed with a different mindset than the mindset which was prevalent during the period when the concept of eminent H

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A domain was the embodied provision of fundamental rights. But even now as provided under Article 300-A of the Constitution the State can proceed to acquire land for specified use but by enacting a law through State Legislature or by Parliament and in the manner having force of law.”

113Copy pinpoint113. The Court also reiterated the distinction between ‘no compensation’ and ‘Nil compensation’, as laid down in K.T. Plantations (supra). The Court proceeded to find that it was a case of ‘no compensation’ at all, and therefore, it attracted the vice of illegal deprivation of property and gave relief on the said basis. This is after finding that the property in question was a productive asset. C

114Copy pinpoint114. In W.P. No. 591/15, the challenge is to Regulation 29(7)(a) and Annexure XX. It is first necessary to notice the scheme of Regulation 29(7). “29(7) (a) The space set apart for roads (except those which D may remain private) and the 10% area reserved for recreational purposes shall be transferred to the Authority or Agency or the Local Body designated by the Authority free of cost through a registered gift deed before the actual approval of the layout under the provisions of the T & CP Act. The exact mode of conveyance should be consistent with the relevant enactment and regulations. E (b) In cases of industrial estates developed by Government agencies the Authority reserves the right to allow them to retain the spaces set apart for roads and the recreational spaces as parks/play grounds and maintain them for the purposes to the satisfaction of the Authority. (c) The Authority reserves the right to reserve space for recessed bus stops as part of the road space in the layouts exceeding 2 hectares, where found necessary on public interest and this part of the road space also be transferred free of cost as stated in the sub rule 7(a) above.”

115Copy pinpoint115. Regulation 29(3)(b) deals with the width of the streets and roads within the layout. It inter alia provides for the width and the streets of the roads and passages. Thereunder, in the remarks column, it is provided that starting with the minimum width of 7.2 meters in regard to streets intended to serve not more than 16 plots / or subject to a maximum H

ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1123 V. GOPINATH & ORS. [K. M. JOSEPH, J.]

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

(a) The land for community recreational purposes shall be restricted to ground level, in a shape and location to be specified by the Chennai Metropolitan Development Authority. The land so reserved shall be free from any ·construction by the layout owner, developer or promoter (b) The building and use of land shall conform to the conditions that may be imposed while sanctioning the layout. The space set apart for commercial, institutional, industrial or other uses shall be deemed to be zoned for commercial, institutional; industrial or corresponding uses under the Master Plan.”

116Copy pinpoint116. We may notice at this juncture that there is no challenge to Regulation 29(6). The second most important aspect we notice is that the land for community recreational purposes shall be restricted to the ground level in a shape and location to be specified by the CMDA. Further the land reserved is to be free from any construction by the layout owner, developer and promoter. Further the use of the land shall conform to the conditions that may be imposed while sanctioning the layout. H

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117Copy pinpoint117. Before we pass on to the impugned regulation, namely, Regulation 29 (7) (a), we must also undoubtedly notice Annexure XX which is also under challenge. “ANNEXURE XX Reservation of land for community recreational purposes in case B of special buildings/ Group Developments/ multi-storeyed building developments (1) The reservation of land for community recreational purposes such as park / playground shall be as given below at gr9und level in a shape and location ‘abutting a public road to be specified by Chennai Metropolitan Development Authority: C

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

(2) The site so reserved shall be exclusive of ‘the setback spaces and. spacing between blocks prescribed in these rules, and shall· be free from any construction / structure. (3) For the purpose of this regulation, existing development is defined as one where the extent of ground area covered by structures already existing (prior to application for planning permission) is 25 per cent and above of the total site area. (4) In case of additions to existing developments, where it is difficult to leave the 10 per cent area as open space for community recreational purposes, the Authority reserves the right to collect the market value of equivalent land in lieu of the land to be reserved. C However, if on a future date, the applicant wants to demolish the existing structure and raise new structures on the site in question, the community recreational space as per the rule shall be reserved. (5) The Authority reserves· the right to enforce the maintenance of such reserved lands by the owner to the satisfaction of the D Authority or order the owner to transfer the land to the Authority or any local body designated by it free of cost, through a registered gift deed. The Authority or the local body designated by it, as the case may be, reserves the right to decide on entrusting the maintenance work to any institution / individual on the merits of the case.”

118Copy pinpoint118. It will be noticed on a perusal of Annexure XX that the reservation for community recreation purposes such as park, playground is to be at ground level in a shape and location abutting a public road to be specified by the CDMA. Thereafter, the requirement relating to executing the gift deed in respect of layout in excess of 10000 square meters is laid down. It is after this that we must notice Regulation 29 (7)(a). “29(7)(a) The space set apart for. roads (except those which may remain private) and the 10% area reserved for recreational purposes shall be transferred to the Authority or Agency or the Local Body designated by the Authority free of cost through a registered gift deed before the actual approval of the layout under the provisions of the T & CP Act. The exact mode of conveyance should be consistent with the relevant enactment and regulations.” H

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119Copy pinpoint119. From the additional affidavit which we have already noticed, the challenge is limited by the petitioner to the stipulation in Regulation 29(7)(a) so far as the requirement of transferring the space set apart for recreational purposes. In other words, the petitioners accept the validity of Regulation 29(7)(a) otherwise. Rule 29 reads as follows: - B “29. Layout and sub-division regulations: This regulation seeks to ensure access to plots by ‘way of roads and private passages, creating hierarchy of roads depending on the road length and intensity of developments in the area and also to provide adequate linkages to the existing roads and proposed C roads in the Master Plan and Detailed Development Plan and further to provide proper circulation pattern in the area, providing required recreational spaces such as parks / playgrounds, and providing spaces for common amenities such as schools, post and telegraph offices, fire stations, police stations etc. D (1) The minimum extent of plots and frontage shall be as prescribed for various uses and types of developments given in the DR Nos. 25,26,27 and 28. (2) (a) The minimum width of the public streets/road on which the site abuts or gains access shall be 7.2m. for residential layout E developments and 9m. for industrial layout developments. For subdivisions the minimum width of the passage /public streets/ road on which the site abuts or gains access shall be as required for different uses and types of developments.

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

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A 29(3)(b) for Industrial Development

Note: Not withstanding anything contained above Authority D reserves the right to revise layouts proposed by the applicant and applied for sanction in order to provide for better adequate linkages proper circulation pattern requirements considering local conditions etc.”

120Copy pinpoint120. It becomes clear that in regard to streets and roads what is contemplated under the regulation is that under 29 (3)(a) (B) all streets will become public. This is to be read along with Regulation 29(7)(a). It is apparently to ensure that the roads which are covered by 29(3)(a)(B) which are to be treated as public are so maintained that it is insisted under 29(7)(a) that a gift deed be executed. In other words, keeping in mind the preambular portion of Regulation 29 which proclaims that the regulation seeks to provide access to plots by way of roads and private passages creating a hierarchy of roads based on road length, intensity of developments in the area and also provide adequate linkages to the existing roads and proposed roads in the Master Plan and a detailed development plan and to provide proper circulation pattern in the area inter alia, we must arrive at the conclusion that visionary perspective of town planning would require an imaginative full play being given.Meticulous requirements of futuristic needs of an ever-growing Metropolis when a large area such as what would be found in a layout of more than 10000 square meters which is nearly one hectare of land in the metropolitan area must be factored in. Circulation of traffic between H

ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1129 V. GOPINATH & ORS. [K. M. JOSEPH, J.]

parts of the area would require the roads being thrown open to the public A so that different parts of the metropolitan area can be easily accessed. In fact, even the writ petitioner by seeking to limit the challenge in the first place only to Regulation 29(7)(a) and not to Regulation 29(3)(a)(B) under which anyway the streets are declared as public acknowledges the need for and justification for the declaration of roads being public. B

121Copy pinpoint121. The argument of the respondent appears to be as follows: The execution of a gift deed acts as a safety valve or a safeguard to check the possibility that the developer would resile from the assurance or violate the guarantee that the land, which is reserved as an open space, will not be constructed upon. In other words, if the execution of C the gift deed is insisted upon to ensure that in the future, there would not be any contravention of the requirement, inter alia, that the area be used as an open space, then, the complaint, which is lodged against the impugned Rule, as also the Regulation, may not stand scrutiny. In regard to the impugned Regulation, it must be borne in mind, as we have already noticed that in the additional affidavit filed by the Writ Petitioner in Writ D Petition (C) No. 591 of 2015, the challenge in the writ petition has been limited to the latter part of the provision, i.e., the requirement to transfer free-of-cost, through a registered gift deed, the 10 per cent recreational area reserved for recreational purposes only and not the space set apart for roads. Here, we must observe that as already found by us, that there is no challenge toRegulation 29(6). The writ petitioner does not seek to, bring under a cloud, Regulation 29(7)(a) otherwise.

122Copy pinpoint122. The result of the above discussion is as follows: We must proceed on the basis that Regulation 29(6) holds good. This means that when the layout is above 10,000 square meters, reservation of 10 per cent for recreational purposes has to be made. Regulation 29(6)(a) stipulates that the land for the communal and recreational purposes, is to be restricted to the ground level and in a shape and location to be specified by the Authority. It is also to be reserved free from any construction. Therefore, the reservation, which is mandated in terms of Regulation 29(6)(a), and which cannot be a subject matter of a claim for compensation under Section 39 of the Act, is to become the subject matterof the gift deed. The execution of the gift deed, if it is understood as merely as an insurmountable obstacle for an unscrupulous developer to get around the laudable mandate to preserve the requisite H

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A area as open space, cannot be rendered vulnerable. Even if, no gifts were to be executed, the property covered by the open space requirement, would be put beyond the domain and control of the developer. Future generations of successors-in-interest or anyone, who claims under him, will be effectively prevented from setting up any claim over the area. Viewed in this perspective and understanding the gift as not conferring B ownership of the area comprised in the open space, we would think that the impugned provisions would pass muster. It would prevent any kind of abuse. It is clear that the Regulation, properly understood, prescribe for the open space and merely provides for the facilitation and preservation of the open space. C A BRIEF LOOK AT THE FIFTH AMENDMENT CASES IN THE UNITED STATES

123Copy pinpoint123. The Fifth Amendment to the U.S. Constitution, inter alia, declares ‘nor shall private property be taken for public use without just compensation’. This limb of the Fifth Amendment has spawned a large body of case law. We may only advert to a few of them. In Agins (supra), the brief facts were as follows: The owners of a five-acre parcel of unimproved land challenged the placing of the land by adopting of Zoning Ordinances, by which, the land was placed in residential planned development and open space zone, which permitted the owners to build between 1 and 5 single family residences. The appellants asserted infraction of the Fifth and the Fourteenth Amendments and sought damages for inverse condemnation. (Inverse condemnation amounts to proceedings seeking compensation for compulsorily acquiring land without there being any formal proceedings for acquisition). The challenge was repelled by the U.S. Supreme Court. It was found that there was no violation of the Takings Clause in the Fifth Amendment. It must be made clear that the Taking Clause is based on the prohibition against the taking of private property for public use without just compensation. The Court, inter alia, held as follows:

ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1131 V. GOPINATH & ORS. [K. M. JOSEPH, J.]

2646, 2666, 57 L.Ed.2d 631 (1978). The determination that A governmental action constitutes a taking is, in essence, a determination that the public at large, rather than a single owner, must bear the burden of an exercise of state power in the public interest. Although no precise rule determines when property has been taken, see Kaiser Aetna v. United States, 444 U.S. 164, B 100 S.Ct. 383, 62 S.Ct. 332 (1979), the question necessarily requires a weighing of private and public interests. The seminal decision in Euclid v. Ambler Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926), is illustrative. In that case, the landowner challenged the constitutionality of a municipal ordinance that restricted commercial development of his property. Despite alleged C diminution in value of the owner’s land, the Court held that the zoning laws were facially constitutional. They bore a substantial relationship to the public welfare, and their enactment inflicted no irreparable injury upon the landowner.”

124Copy pinpoint124. In James Patrick Nollan v. Calefornia Coastal D Commission60, the following were the facts: The prospective purchasers of a beach front plot, which was located between two public beaches, proposed to satisfy a condition on their option to purchase by pulling down an old bungalow on the premises. It was to be replaced with a larger house. The respondent Commission E stipulatedthe condition that purchasers must give the public an easement to pass across the portion of the property which lay between the mean high tide line. The purchasers took shelter under the Takings Clause. In 5:4 Majority Judgment, the Court took the view that the Takings Clause was offended. In the course of the Judgment, the Court held, inter alia: F “[1b, 5] “Given, then, that requiring uncompensated conveyance of the easement outright would violate the Fourteenth Amendment, the question becomes whether requiring it to be conveyed as a condition for issuing a land-use permit alters the outcome. We have long recognized that land-use regulation does not effect a taking if it “substantially advance[s] legitimate state interests” and G does not “den[y] an owner economically viable use of his land,” Agins v. Tiburon, 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106 (1980). See also Penn Central Transportation Co. v. New York City, 438 U.S. 104, 127, 98 S.Ct. 2646, 2660, 57 60 483 US 825, 97 L Ed 2d 677, H

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A L.Ed.2d 631 (1978) (“[A] use restriction may constitute a ‘taking’ if not reasonably necessary to the effectuation of a substantial government purpose”).” xxx xxx xxx “[1c] The Commission argues that a permit condition that serves the same legitimate police-power purpose as a refusal to issue the permit should not be found to be a taking if the refusal to issue the permit would not constitute a taking. We agree. Thus, if the Commission attached to the permit some condition that would have protected the public’s ability to see the beach notwithstanding construction of the new house—for example, a height limitation, a width restriction, or a ban on fences—so long as the Commission could have exercised its police power (as we have assumed it could) to forbid construction of the house altogether, imposition of the condition would also be constitutional. Moreover (and here we come closer to the facts of the present case), the condition would be constitutional even if it consisted of the requirement that the Nollans provide a viewing spot on their property for passersby with whose sighting of the ocean their new house would interfere. Although such a requirement, constituting a permanent grant of continuous access to the property, would have to be considered a E taking if it were not attached to a development permit, the Commission’s assumed power to forbid construction of the house in order to protect the public’s view of the beach must surely include the power to condition construction upon some concession by the owner, even a concession of property rights, that serves the same end. If a prohibition designed to accomplish that purpose would be a legitimate exercise of the police power rather than a taking, it would be strange to conclude that providing the owner an alternative to that prohibition which accomplishes the same purpose is not. The evident constitutional propriety disappears, however, if the condition substituted for the prohibition utterly fails to further the end advanced as the justification for the prohibition.”

125Copy pinpoint125. In Florance Dolan v. City of Tigard61, again the scope of the Fifth Amendment or rather the Takings Clause thereunder, fell for consideration. The owner of a city plot applied for a building permit for a bigger store than she had with certain other facilities, including parking 61 H 512 US 374

ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1133 V. GOPINATH & ORS. [K. M. JOSEPH, J.]

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

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A that the city has identified “no special benefits” conferred on her, and has not identified any “special quantifiable burdens” created by her new store that would justify the particular dedications required from her which are not required from the public at large.” xxx xxx xxx B “[1c, 2d, 11a] We think the “reasonable relationship” test adopted by a majority of the state courts is closer to the federal constitutional norm than either of those previously discussed. But we do not adopt it as such, partly because the term “reasonable relationship” seems confusingly similar to the term “rational basis” which describes the minimal level of scrutiny under the Equal Protection Clause of the Fourteenth Amendment. We think a term such as “rough proportionality” best encapsulates what we hold to be the requirement of the Fifth Amendment. No precise mathematical calculation is required, but the city must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development.”

126Copy pinpoint126. The remand was limited to the first condition. In regard to the second condition, viz., dedication for the pedestrian bicycle pathway, the Court held as follows: E “[1g, 13] With respect to the pedestrian/bicycle pathway, we have no doubt that the city was correct in finding that the larger retail sales facility proposed by petitioner will increase traffic on the streets of the Central Business District. The city estimates that the proposed development would generate roughly 435 additional trips per day.9 Dedications for streets, sidewalks, and other public ways are generally reasonable exactions to avoid excessive congestion from a proposed property use. But on the record before us, the city has not met its burden of demonstrating that the additional number of vehicle and bicycle trips generated by petitioner’s development reasonably relate to the city’s requirement for a dedication of the pedestrian/bicycle pathway easement. The city simply found that the creation of the pathway “could offset some of the traffic demand ... and lessen the increase in traffic congestion.” As Justice Peterson of the Supreme Court of Oregon explained in his dissenting opinion, however, “[t]he findings of fact that the

ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1135 V. GOPINATH & ORS. [K. M. JOSEPH, J.]

bicycle pathway system ‘could offset some of the traffic demand’ A is a far cry from a finding that the bicycle pathway system will, or is likely to, offset some of the traffic demand.” 317 Ore., at 127, 854 P.2d, at 447 (emphasis in original). No precise mathematical calculation is required, but the city must make some effort to quantify its findings in support of the dedication for the pedestrian/ B bicycle pathway beyond the conclusory statement that it could offset some of the traffic demand generated.”

127Copy pinpoint127. No doubt, there were vigorous dissents expressed by the four learned Judges. In the dissent by Justice Stevens, with whom Justice Blackmun and Justice Ginsburg agreed, the essential nexus requirement propounded in Nollan (supra) was recognised. The dissenting Judges, C however, opposed the employment of the ‘rough proportionality’ requirement. Decrying the consequences that may follow from the requirement to make ‘individualised determinations’, the learned Judges found that the questions could be answered under the framework of the existing caselaw. The learned Judges also found that there was no basis for applying the ‘Unconstitutional Conditions’ Doctrine. We are tempted to and rightfully so, to advert to the following observations in the dissenting Judgments in regard to the true place of the Doctrine of Unconstitutional Conditions: “Even if Dolan should accept the city’s conditions in exchange for the benefit that she seeks, it would not necessarily follow that she had been denied “just compensation” since it would be appropriate to consider the receipt of that benefit in any calculation of “just compensation.” xxx xxx xxx F “In this respect, the Court’s reliance on the “unconstitutional conditions” doctrine is assuredly novel, and arguably incoherent. The city’s conditions are by no means immune from constitutional scrutiny. The level of scrutiny, however, does not approximate the kind of review that would apply if the city had insisted on a G surrender of Dolan’s First Amendment rights in exchange for a building permit.”

128Copy pinpoint128. In Linda Lingle, Governor of Hawaii, et al. v. Chevron U.S.A.INC.63 in the context of a State statute limiting the rent that oil 63 544 US 528, 161 L.Ed.2d 876 H

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A companies could charge to its dealer who lease service stations owned by the companies took the view after noticing Nollan (supra) and Dolan (supra) which we have referred to that “substantially advances” formula is not a valid Takings test initiated in Agnis (supra) and it was concluded that it has no proper place in the Takings jurisdiction.

129Copy pinpoint129. In Village of Euclid, Ohio Et Al v. Ambler Reality Company64, the village of Euclid lay in the form of a parallelogram. The appellant was the owner of the land measuring 68 acres. The entire area of the village was divided into six classes of use places.

130Copy pinpoint130. We may notice they appear to be similar to the zones C contemplated under the DCR in the instant cases. There were restrictions in regard to use, the number of dwellings and the height, inter alia. Appellant’s land fell under U-2, U-3 and U-6. The Ordinance came to be challenged on the ground that it deprived the appellant of its right toliberty and property without due process of law as also equal protection of the law under the Fourteenth Amendment to the U.S. Constitution. D Certain provisions of the State Constitution were also relied upon.

131Copy pinpoint131. Though in the context of the validity of the restrictions under the Zoning Ordinance, we notice the prescience of mind with which the Court approached the matter and refused to apply constitutional safeguards: E “Building zone laws are of modern origin. They began in this country about 25 years ago. Until recent years, urban life was comparatively simple; but, with the great increase and concentration of population, problems have developed, and constantly are developing, which require, and will continue to require, additional restrictions in respect of the use and occupation of private lands in urban communities. Regulations, the wisdom, necessity, and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive. Such regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations, which, before the advent of automobiles and rapid transit street railways, would have been condemned as fatally arbitrary and unreasonable.” 64 272 US 365 (1926) H

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132Copy pinpoint132. In the recent judgment relating to land use in the United A States reported in Coy A. Koontz v. St. Johns River Water Management District65, the Court, speaking through the majority Judgment (5:4), had the following facts before it. The petitioner therein decided to develop a 3.7 acre section of his property and he applied for certain permits required in this regard. To mitigate the environmental effects of his proposal, the B petitioner offered to foreclose any possible future development of the approximately 11 acres southern section of his land by deeding to the district a conservation easement on that portion of his property. The District, however wanted the petitioner to reduce the size of development to 1 acre and deed the conservation easement to the remaining extent of 13.9 acres. The District wanted the petitioner to make improvement to C District owned wet lands, several miles away. The District hinted all that it would consider alternative wherein monetary equivalent was proposed. It is in these facts that the majority view was inter alia as follows: - “II A [1,2] We have said in a variety of contexts that “the D government may not deny a benefit to a person because he exercises a constitutional right.” Regan v. Taxation With Representation of Wash., 461 U.S. 540, 545, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983). See also, e.g., Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 59–60, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006); Rutan v. Republican E Party of Ill., 497 U.S. 62, 78, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990).” xxxx xxxx xxxx “A second reality of the permitting process is that many proposed F land uses threaten to impose costs on the public that dedications of property can offset. Where a building proposal would substantially increase traffic congestion, for example, officials might condition permit approval on the owner’s agreement to deed over the land needed to widen a public road.” G xxxx xxxx xxxx “(3) …Under Nollan and Dolan the government may choose whether and how a permit applicant is required to mitigate the impacts of a proposed development, but it may not leverage its 65 133 S.Ct. 2586 (2013) H

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A legitimate interest in mitigation to pursue governmental ends that lack an essential nexus and rough proportionality to those impacts.” xxxx xxxx xxxx “(7) …Extortionate demands for property in the land-use permitting context run afoul of the Takings Clause not because they take property but because they impermissibly burden the right not to have property taken without just compensation. As in other unconstitutional conditions cases in which someone refuses to cede a constitutional right in the face of coercive pressure, the impermissible denial of a governmental benefit is a constitutionally cognizable injury.” xxxx xxxx xxxx “(13) …We agree with respondent that, so long as a permitting authority offers the landowner at least one alternative that would satisfy Nollan and Dolan, the landowner has not been subjected to an unconstitutional condition.”

133Copy pinpoint133. It is noteworthy to begin with that in India there is no provision similar to the Takings clause in the 5th amendment to the US constitution. It is in fact true that Article 31(2) did provide that a person could not be deprived of his property except after payment of compensation. Article E 31 stands deleted by the Forty-FourthAmendment. In Article 300A, what has been inserted by the same amendment is only the first limb of Article 31, viz., no person shall be deprived of his property save by authority of law. The ambit of this Article has been discussed in the decision in K.T. Plantations (supra).

134Copy pinpoint134. Even under the Takings clause, we may only notice Nollan- Dolan (supra) and as interpreted by the majority in Koontz (supra) it is open to the government to consider how the permit applicant must mitigate the impacts of a proposed development and what is required to make State action legitimate is that the conditions imposed must bear an essential nexus and a rough proportionality to the impacts perceived. G ENTRY 42 OF LIST III OF THE SEVENTH SCHEDULE

135Copy pinpoint135. Is the impugned Rule/Regulation, a case where it would be said that Entry 42 in List III to the Seventh Schedule applies? In other words, is there acquisition of land and is it a case of exercise of eminent domain by the state? Is it a case where the impugned provisions are

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more relatable to the exercise of police power? Does the impugned provision constitute deprivation of property within the meaning of Article 300A? Since we have held that the impugned provision in the case of the rule is law, would not the Rule be a law which provides for deprivation of property, and therefore, there is no violation involved at all. Does the impugned Rule bring about deprivation and for which compensation must be paid, failing which it cannot but perish by placing it side by side with B Article 300A?

136Copy pinpoint136. We have noticed that right from 1975 onwards with the promulgation of DCR along with a master plan, and subsequently, in the year 2008, with the enactment of the regulations, and still, what is more, in supersession of the Regulations by the Rules of 2019,the Law Giver C has put in place the requirement of making available 10 percent of land excluding roads for the purpose of communal and recreational purposes, when the layout exceeds 10000 square meters.

137Copy pinpoint137. To the question, which we posed, viz., whether what is involved is acquisition of the property or an exercise of the power of D eminent domain,we are of the view that stipulating the conditions that a person who seeks to develop his property in a sprawling and ever-growing urban metropolis which is sought to be regulated by a law relating to a town planning cannot be viewed as acquisition of land within the meaning of Entry 42 in List III. Acquisition of land involves, no doubt, compulsory divesting of the rights of a person in his property. E

138Copy pinpoint138. We must bear in mind that while right to hold and enjoy property was a Fundamental Right under Article 19(1)(f), w.e.f. 1978 it ceased to be a Fundamental Right. Equally, Article 31, which was also a Fundamental Right in regard to property, including the right to compensation as provided under Article 31(2) stood deleted. Article 300A F was inserted resurrecting only Article 31(1).The right to propertyhas been described by this Court as a Statutory Right; a human right and also a constitutional right. We must therefore proceed on the basis that a person would continue to have despite the Forty-FourthAmendment, a statutory right, a human right and a constitutional right to property.

139Copy pinpoint139. An acquisition is a compulsory vesting of the property of a G person with the state. It is traceable undoubtedly to the power of eminent domain assured to every sovereign. It can undoubtedly be exercised only for securing public interest as contrasted with promotion of private interest (See K.T. Plantation (supra)66). 66 (2011) 9 SCC 1 H

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140Copy pinpoint140. K.T. Plantations (supra) was a case which involved the validity of a law which provided for compulsory acquisition under the State enactment. The understanding of this Courtin K.T. Plantations (supra) was that a person cannot be deprived of his property merely by executive fiat without any specific legal authority or without support of law made by a competent Legislature (See paragraph-168).We must B notice here that law for the scope of Article 300A has been explained by this Court in Bishambhar Dayal Chandra Mohan and others v. State of Uttar Pradesh and others67 (paragraph-41) as follows: “41. There still remains the question whether the seizure of wheat amounts to deprivation of property without the authority of law. C Article 300-A provides that no person shall be deprived of his property save by authority of law. The State Government cannot while taking recourse to the executive power of the State under Article 162, deprive a person of his property. Such power can be exercised only by authority of law and not by a mere executive D fiat or order. Article 162, as is clear from the opening words, is subject to other provisions of the Constitution. It is, therefore, necessarily subject to Article 300-A. The word “law” in the context of Article 300-A must mean an Act of Parliament or of a State legislature, a rule, or a statutory order, having the force of law, that is positive or State made law. The decisions in Wazir E Chand v. State of H.P. [AIR 1954 SC 415: (1955) 1 SCR 408 : 1954 SCJ 600 : 1954 Cri LJ 1029] and Bishan Das v. State of Punjab [AIR 1961 SC 1570 : (1962) 2 SCR 69 : (1963) 1 SCJ 405] are an authority for the proposition that an illegal seizure amounts to deprivation of property without the authority of law. F In Wazir Chand case [AIR 1954 SC 415 : (1955) 1 SCR 408 : 1954 SCJ 600 : 1954 Cri LJ 1029] the police in India seized goods in possession of the petitioner in India at the instance of the police of the State of Jammu & Kashmir. The seizure was admittedly not under the authority of law, inasmuch as it was not under the orders of any Magistrate; nor was it under Sections 51, 96, 98 and G 165 of the Code of Criminal Procedure, 1898, since no report of any offence committed by the petitioner was made to the police in India, and the Indian police were not authorised to make any investigation. In those circumstances, the Court held that the seizure was not with the authority of law and amounted to an infringement 67 H (1982) 1 SCC 39

ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1141 V. GOPINATH & ORS. [K. M. JOSEPH, J.]

of the fundamental right under Article 31(1). The view was A reaffirmed in Bishan Das case [AIR 1961 SC 1570 : (1962) 2 SCR 69 : (1963) 1 SCJ 405].”

141Copy pinpoint141. What this Court in K.T. Plantations (supra) meant was to distinguish ‘law’ as a legislative measure as distinct from mere Executive fiat. B

142Copy pinpoint142. The intention of Parliament was to do away with the Fundamental Right to acquire, hold and dispose of property (See paragraph-179). Deprivation of property must take place for public purpose primarily (See paragraph-180). Public purpose must be given an expansive meaning(See paragraph-181). Payment of compensation isa constitutional requirement under Article 30(1)(A) and under the second C proviso to Article 31(A)(1) unlike Article 300A. After the Forty- FourthAmendment, the constitutional obligation to pay compensation to a person deprived of his property is dependent on the Statute. (See para 183). We may refer to the following observations in paragraph 188: “188. We find no apparent conflict with the words used in List III D Entry 42 so as to infer that the payment of compensation is inbuilt or inherent either in the words “acquisition and requisitioning” under List III Entry 42. Right to claim compensation, therefore, cannot be read into the legislative List III Entry 42.”

143Copy pinpoint143. This would mean that the argument of the parties, based on the impugned provisions being violative of Article 254 of the Constitution, is untenable. We may equally notice paragraph-189: “189. Requirement of public purpose, for deprivation of a person of his property under Article 300-A, is a precondition, but no compensation or nil compensation or its illusiveness has to be 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.”

144Copy pinpoint144. We may also recapture paragraphs-191 and 192: H

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A “191. The legislation providing for deprivation of property under Article 300-A must be “just, fair and reasonable” as understood in terms of Articles 14, 19(1)(g), 26(b), 301, etc. Thus in each case, courts will have to examine the scheme of the impugned Act, its object, purpose as also the question whether payment of nil compensation or nominal compensation would make the 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.”

145Copy pinpoint145. A perusal of the paragraphs, which we have adverted to, would reveal that, while in paragraph-189, it is made to appear that no compensation or nil compensation or its illusiveness has to be justified on judicially justifiable standards, in paragraph-192, it is held that a law providing for acquisition of private property for public purpose cannot say that no compensation could be paid. At this juncture, we consider it apposite to refer to paragraph-141: “141. Eminent domain is distinguishable alike from the police power, by which restriction are imposed on private property in the public interest e.g. in connection with health, sanitation, zoning regulation, urban planning and so on from the power of taxation, by which the owner of private property is compelled to contribute a portion of it for the public purposes and from the war power, involving the destruction of private property in the course of military operations. The police power fetters rights of property while eminent domain takes them away. Power of taxation does not necessarily involve a taking of specific property for public purposes, though analogous to eminent domain as regards the purposes to which the contribution of the taxpayer is to be applied. Further, there are several significant differences between regulatory exercises of the police powers and eminent domain of deprivation of property.

ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1143 V. GOPINATH & ORS. [K. M. JOSEPH, J.]

Regulation does not acquire or appropriate the property for the A State, which appropriation does and regulation is imposed severally and individually, while expropriation applies to an individual or a group of owners of properties.”

146Copy pinpoint146. What is of interest to this Court in these cases is the observation that eminent domain is to be contrasted with police power, B where restrictions are put in public interest, in connection with zoning regulations, urban planning, inter alia, by which the owner of a private property is compelled to contribute a portion of it for public purpose. No doubt, it is also held that Regulation does not acquire or appropriate the property. C

147Copy pinpoint147. We must appreciate the issues before us in the light of the said exposition.

148Copy pinpoint148. The impugned provision does not represent in our view, a case of compulsory acquisition of land. A case of compulsory acquisition would be without there being any volition or consent of a person. The D State purports to divest his rights in property and vest the rights with the State. The impugned provision does not appear to us to be a case of such acquisition as is contemplated ina law which is made with reference toEntry 42 in List III. In this context, we must also deal with the case based on Section 20 of the Act. Section 20 deals with contents of detailed development plan.Section 20 (d) reads as follows and it provides, inter E alia, the contents: “Section 20(d). The acquisition by purchase, exchange or otherwise of any land or other immovable property within the area included in the detailed development plan whether required immediately or not.” F

149Copy pinpoint149. From a perusal of the said provisions, what it contemplated, can be summed-up as follows. A detailed development plan can propose or provide to purchase or exchange any land or immovable property.The land may be required immediately or it may be not so immediately required. What is important is apart from purchase and exchange, the G property maybe ‘acquired otherwise’.We are not concerned with a challenge to Section 20.As Section 20 stands acquisition by way of a giftcannot be said to be incongruous merely by reference to the two other expressly articulated modes of transfer of title,viz., purchase and exchange. Undoubtedly, a gift is a transfer of property without there H

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A being any valuable consideration. It is an act of volition of the owner.In other words, if a plan does provide that right in land or other immovable property may be acquired in terms of a gift which may be executed, it may not involve straining the plain language, and also involve pouringmeaning into the width of the expression ‘otherwise’ just as much as it avoids placing a narrow connotation on a word of wide import. B

150Copy pinpoint150. The decision in Pandit ChetramVashishta (supra) was a decision,which turned on the absence of any power under which the open space or park was to stand vested in a corporation or to stand transferred to it. In fact, this Court found that the effect of the reservation was that the donor ceased to be the legal owner of the land in dispute. C He held the land for the benefit of society or the public in general. The donor became essentially a trustee preventing alienation of his right. The court however drew a distinction between the owner being transformed into the trustee and being prevented from transferring his rights and the local body being vested with the rights of the owner. As D far as the impugned provisions in these cases are concerned, the DCR not only obliges setting apart a certain percentage (10 percent) for the communal and recreational purposes in respect of very large projects but also a transfer, is to be made of the property so set apart by the owner. We will delve upon the impact of this decision at a later point of time in a different context. At the same time, we must also bear in mind, the Judgment of this Court in Yogendra Pal and others (supra). In Yogendra Pal and others, we have already noticed the facts.What was involved there was the violation of Section 192(1)(c) of the Punjab Municipal Act, 1911. The provision provided that the Municipal Committee may prepare a building scheme, which may, inter alia, provide that the amount of land in unbuilt area shall be transferred to the committee for public purposes including use as public streets by owners of land either on payment of compensation or otherwise, provided that the total amount so transferred shall not exceed thirty-five per cent, and the amount transferred without payment shall not exceed twenty-five per cent, of any one owner’s land within such unbuilt area. What appealed to this G Court as the basis for transgression of Article 14 has been adverted to by us and which is contained in paragraphs-14 and 15 of the said Judgment. It must be remembered that the principal plank of attack against the provision in question was that it fell foul of Article 19(1)(f) read with Article 31 of the Constitution as the Articles stood then. The H transfer effected in the said case, it may be noticed was prior to

ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1145 V. GOPINATH & ORS. [K. M. JOSEPH, J.]

20.⁶.1979 on which date the Forty-FourthAmendment came into being. A Therefore, the case was that it amounted to acquisition of property.This Court found merit in the contention that what was involved was actually acquisition and the transfer was not merely for a limited purpose. It was found that there was no provision in the Act to suggest that despite employment of the land for public purpose, the ownership and possession or occupation continued with the landowner.The landowner was compelled to enjoy rights only as a member of the public. The Court also rejected the case of the transfer being only for a limited purpose. A perusal of Section 192(1)(c) reveals that the said provision is not comparable with the provision impugned in the cases before us. Section 192(1)(c) of the Punjab Tenancy Act, 1911 was clearly in the nature of acquisition.The rights of the person were extinguished effectively.The provision vested power or a discretion to acquire land either on payment of compensation or otherwise. As already noticed, this was done at a time when Article 19(1)(f) and Article 31 of the Constitution, both being Fundamental Rights, continued to hold the field. No doubt, the decision is rested ultimately on the impugned provision being found to be contrary to Article 14. What is pertinent, however, is that, in the case of the Rule/ Regulation impugned, as we have already found, is not a case of exercise of power of eminent domain, and it is not a case of acquisition by means of compulsory exaction of the property. What is involved in these cases, is a different factual matrix.A person or a group of persons, owning an extent of land, which is in excess of 10,000 square metres in a fast- growing urban metropolis, wish to develop the land. It is, apparently,a commercial venture. They put-up, what is called, special buildings or group development. This involves making optimum use of the land by putting up vertical constructions. In other words, ordinarily, large number of persons would come to occupy the area with a layout of more than 10,000 square metres. The Law Giver has contemplated provision of roads within the layout of roads. In fact, the roads are themselves to become public.Interestingly, even in the challenge made by the Writ Petitioner in Writ Petition No. 651 of 2015,viz., the petitioner has specifically limited the challenge to the regulation to the requirement of gifting the area comprised in the land for communal and recreational purposes. The Regulations, as did the Rules, provide for the roads to become publicand become open to the members of the public.A gift, in this regard, is not ironically objected to. H

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151Copy pinpoint151. We have noticed from the pleadings that the appellants and the petitioner substantially do not challenge the setting apart of land for the purpose of communal or recreational purpose. The objections appear to be as follows. The word ‘communal’ must be contextually interpreted to confine the benefit of reservation for the occupants of the buildings and it must not be made available to the members of the public. In the case of Vasanth Apartments, they object to the land set apart under the gift deed, being used to cater to the members of the public in general, by converting it into a public road. In fact, it must be remembered that in the case of Vasanth Apartments, as rightly pointed out by Shri Jayant MuthRaj, learned Senior Counsel, the gift was not executed by the members of the Association. The property was gifted by the developer as a condition for developing the land. The developer, in other words, who put together the project or developed the project, is the person who would have a right to have the property revested.He accepts the gift. It is obvious that having been a partyto the gift it may not lie in his mouth to impeach the same. [See in this regard the Judgment of this Court in D Narayanrao Jagobaji (supra)]. It is not as if the members of the Vasanth Apartment Owners Association claim to have an assignment of the right over the land which is gifted from the original owner. Therefore, as far as the members of the Vasanth Apartment Owners Association are concerned, on the factual basis available, it may not lie in their mouth, E noticing two other features as well, to contend that the Court must invalidate the Rule. The gift was executed in the year 1994. The Writ Petition is filed almost 12 years after. Secondly, the first Writ Petition, filed by the members of the Vasanth Apartment Owners Association, was by drawing support from the gift deed. They wanted that the property must be continued as recreational and OSR area. A learned Single Judge F allowed the writ petition. Thereafter, there were two Writ Appeals filed, one by persons who claimed that the area was being used as a public road, and another, by the Corporation of Chennai and the CMDA. There was an interim Order passed by the Division Bench. It is thereafter, that the second Writ Petition is filed by them challenging the Rule. While,it is G true that mere passage of time will not make an unconstitutional provision valid, the delay, with which a prevailing Statute is impugned, becomes a factor, which the Court would not ignore. In this case, as if such factors were not sufficient, we notice the further development. The Rules came to be repealed by the Regulations in the year 2008 and the Regulation stood repealed in the year 2019 by Statutory Rules made in the said H

ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1147 V. GOPINATH & ORS. [K. M. JOSEPH, J.]

year. The challenge to the Rule, on the basis of Article 300A and, indeed, A Article 14 as well by Association of Vasanth Apartment Owners Association must fail, as it cannot even be their case that their right in property was deprived. The appellants never had any proprietary right in the property to allege deprivation of the same. Even if the Rule is found bad, there can be no question of voiding the gift at the appellant’s B instance.

152Copy pinpoint152. In the case of M/s. Keyaram Hotels Pvt. Ltd., their complaints, apart from those dealing with legality of the Rule on other grounds, which we had noticed and discussed, remain the following. Before we go to the other complaints, we have already noticed, in paragraph 10 of the Writ Petition, the appellant/petitioner (M/s. Keyaram Hotels Pvt. Ltd.) has expressed its willingness for stipulating open space as required for communal and recreation use of the occupiers and lawful uses of the building and it was specifically averred that it would satisfy the public interest. It is specifically undertaken that they will keep 10 percent of the area as open space for communal and recreational purpose. However, they have raised the complaint that further, apart from the direction to execute the gift, the condition, imposed to provide exclusive frontage for the said open space into the main road, is unsustainable in law. It is the complaint that the attempt to the third respondent is to gain entry into the property of the petitioner to make use of the open space reserved, detrimental to the rights of the property owner.

153Copy pinpoint153. The matter may be viewed in the following manner. In the facts in Pandit Chetram Vashishta (supra), it was held that the position of the developer, would be that of a trustee. It was so held in the absence of a statutory mandate. Now, in this case, there is a statutory mandate to execute a gift deed. The question would arise as to what would be the nature of the rights of the donee, viz., the local authority. Would the donee become an absolute owner? Can the local authority transfer the land? Can the local authority build on the OSR area? The answer to all these questions is only in the negative. Unlike the donee, in the case of a G gift, the local authority cannot in anyway acquire the right as the absolute owner. Just as in the case of Pandit Chetram Vashishta (supra), where the developer would be a trustee, we would think that the Rule, if is to be upheld, in the conspectus of the law and bearing in mind the object, the transfer by way of a gift to the donee will be only for the purpose of H

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A ensuring that the object of the law is attained, i.e., the property is maintained as OSR. The local authority, under the gift deed, would be a mere trustee. As trustee, it will be the obligation of the local authority to ensure that all such lands, set apart under the impugned Rules/ Regulations, are effectively maintained as such. In this regard, in the Open Space Act, 1906, a U.K. Law, Section 3 reads as follows: B “3 Transfer to local authority of spaces held by trustees for purposes of publicrecreation. (1) Where any land is held by trustees (not being trustees elected or appointed under any local or private Act of Parliament) upon trust for the purposes of public recreation, the trustees may, in pursuance of a special resolution, transfer the land to any local authority by a free gift absolutely or for a limited term, and, if the local authority accept the gift, they shall hold the land on the trusts and subject to the conditions on and subject to which the trustees held the same, or on such other trusts and subject to such other conditions (so that the land be appropriated to the purposes of public recreation) as may be agreed on between the trustees and the local authority with the approval of the Charity Commission. (2) Subject to the obligation of the land so transferred being used for the purposes ofpublic recreation, the local authority may hold the land as and for the purposes of anopen space under this Act.”

154Copy pinpoint154. The very goal of town planning requires nothing less. Once the goal of executing the gift and the results it produces in law, are appreciated in the above manner, we find that the apprehensions and the contentions of the appellant/petitioner lose their sheen. We are unable to accept, in the context of the Act of the Rules/ Regulations, that, in such a large project, when the layout is more than 10,000 square metres, executing a gift deed, which would ensure compliance, would fall foul of the requirement of either Article 14 or Article 300A. The developer/ owner, remained only a trustee even without a gift. The provision for setting apart 10 per cent, is invulnerable. The area will even without a gift remain out of bounds for the project proponent/owner. The OSR, being an inviolable requirement, the additional requirement, meant and understood as a measure to ensure compliance and prevent misuse and or disuse, must not be understood as deprivation. As already discussed, the gift will not convert the Local Body into an absolute owner. Instead, H in place of the original owner, continuing as a trustee, the Local Authority

ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1149 V. GOPINATH & ORS. [K. M. JOSEPH, J.]

becomes the trustee. The purpose and the nature of the obligation will A remain and haunt both the Local Body as also the original owner. The Rule/Regulation at any rate also, is a law which sanctions deprivation even assuming there is deprivation. However, we are of the view that, in substance, the Rule/Regulation cannot be understood as deprivation under Article 300A. B

155Copy pinpoint155. We have indicated earlier that this Court has recognised Right to Property as a Constitutional Right on account of insertion of Article 300A. In the context of the Principle of Unconstitutional Condition, as recognised in the United States, could it be said that the impugned Rule/ Regulation presents a case of an unconstitutional condition? While, as already found by us, the impugned provisions, do not make out a case of acquisition as it is not a compulsory divesting of title and a gift is executed on the basis that the project proponent/owner volunteers to execute the gift deed andno doubt, in view of the Rule, the execution of the gift deed, finally, brings in the element of consent and takes the transaction out of the Doctrine of Eminent Domain, which requires compulsory acquisition de hors the consent of the person having interest in the property, but then the question arises, whether the impugned provisions involves a person having a Constitutional Right under Article 300A, having to sacrifice his Right as a condition to obtain the development permit. This Court has declared the right of a person to construct a building, is a right under the law, viz., the Statute, which governs the same. In the said sense, it becomes a Statutory Right. The right is hedged in necessarily with limitations and conditions. Now, superimposing the mandate of Article 300A, the question arises, whether the instant case involves employment of an unconstitutional condition. In Ahmedabad St. Xavier’s College Society v. State of Gujarat68, Justice Mathew while dealing with the contentof the right guaranteed under Article 30(1) in regard to recognition or affiliation held inter alia as follows: “158. The doctrine of “unconstitutional condition” means any stipulation imposed upon the grant of a governmental privilege which in effect requires the recipient of the privilege to relinquish some constitutional right. This doctrine takes for granted that ‘the petitioner has no right to be a policeman’ but it emphasizes the right he is conceded to possess by reason of an explicit provision of the Constitution, namely, his right “to talk politics”. The major 68 (1974) 1 SCC 717 H