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

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A requirement of the doctrine is that the person complaining of the condition must demonstrate that it is unreasonable in the special sense that it takes away or abridges the exercise of a right protected by an explicit provision of the Constitution (see William W. Van Alstyne: ”The Demise of the Right-Privilege Distinction in Constitutional Law” [81 Harv Law Rev 1439]).” B

156Copy pinpoint156. In a case involving exercise of power to terminate service of a permanent employee of public/semi government undertaking or statutory corporations only by giving a month’s notice, this Court inter alia held in Delhi Transport Corpn. v. D.T.C. Mazdoor Congress69 as follows:

C 283. The problem also could be broached from the angle whether the State can impose unconstitutional conditions as part of the contract or statute or rule etc. In (1959-60) 73 Harvard Law Review, in the Note under the caption ‘Unconstitutional Condition’ at pages 1595-96 it is postulated that the State is devoid of power to impose unconstitutional conditions in the contract that the power D to withhold largesse has been asserted by the State in four areas i.e. (1) regulating the right to engage in certain activities; (2) administration of government welfare programme; (3) government employment; and (4) procurement of contracts. It was further adumberated at pages 1602-03 thus: E “The sovereign’s constitutional authority to choose those with whom it will contract for goods and services is in effect a power to withhold the benefits to be derived from economic dealings with the government. As government activity in the economic sphere increases, the contracting power enables the F government to control many hitherto unregulated activities of contracting parties through the imposition of conditions. Thus, regarding the government as a private entrepreneur threatens to impair constitutional rights…. The government, unlike a private individual, is limited in its ability to contract by the Constitution. The federal contracting power is based upon the G Constitution’s authorisation of these acts ‘necessary and proper’ to the carrying out of the functions which it allocates to the national government. Unless the objectives sought by terms and conditions in government contracts requiring the 69 (1991) Suppl.1 SCC 600 H

ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1151 V. GOPINATH & ORS. [K. M. JOSEPH, J.]

surrender of rights are constitutionally authorised, the conditions must fall as ultra vires exercise of power.” Again at page 1603, it is further emphasised thus: “When conditions limit the economic benefits to be derived from dealings with the government to those who forego the exercise of constitutional rights, the exclusion of those retaining their rights from participation in the enjoyment of these benefits may be violative of the prohibition, implicit in the due process clause of Fifth Amendment and explicit in the equal protection clause of the Fourteenth Amendment against unreasonable discrimination in the governmental bestow of advantages. C Finally, disabling those exercising certain rights from participating in the advantages to be derived from contractual relations with the government may be a form of penalty lacking in due process. To avoid invalidation for any of the above reasons, it must be shown that the conditions imposed are necessary to secure the legitimate objectives of the contract, ensure its effective use, or protect society from the potential harm which may result from the contractual relationship between the government and the individual.”

157Copy pinpoint157. The Doctrine of Unconstitutional Condition involves a person having to give-up a Constitutional Right as a condition to obtain a benefit he is otherwise entitled to. While it is in the context of Article 300A, to be understood that the Right to Property cannot be deprived except in accordance with law and even as held in K.T. Plantations (supra) that such law must be fair and reasonable,once it is found that there is such a law, then, even if there is deprivation, it cannot be found that Article F 300A is violated. We have already found, in fact, that there is no deprivation in the context of the impugned Rules/Regulations. In the conspectus of the DCR/ Regulation, the nature of the right to property available under the Constitution as expounded in K.T. Plantations (supra), the seemingly never ending imperative needs of an urban metropolis, the indisputable need to set apart 10% for the recreational purpose and the G discussion we have already made with regard to the effect of the gift and the purpose it serves, we are of the view that the rule/regulation may not give rise to any room for invoking the doctrine of unconstitutional condition.We must continue to remain alive to the vital dimension which we have already indicated that the impugned provision essentially pertains H

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A to what can be described as purely commercial projects though it is linked with property rights. In other words, particularly from the stand point of invoking the doctrine of unconstitutional condition, the distinction between the person putting up a residential building and the proponent of a complex, commercial project in a metropolis cannot be lost sight of. At any rate, we cannot in the conspectus of the Rule/Regulation and the salutary purpose, it seeks to achieve hold the requirement as an “unreasonable condition in a special sense”.[See para 155]

158Copy pinpoint158. The case of the CMDA is that in view of the benefits which accrue, it could be a case of nil compensation. The distinction between nil compensation and no compensation has been laid down to be that in the former it is permissible on the basis that it becomes liable to discharge the liability in regard to the person/property. In the context of the rule/ regulation, we would not think that there would be violation of Article 300A on the basis of it being a deprivation of property involving breach of a mandate to pay compensation. It must be at once noticed that what is involved is the need to execute a gift.By its very nature, in the case of a gift, there cannot be any valuable consideration. If compensation is to be paid then it would cease to be a gift. Having regard to the discussion we have made regarding the validity of the rule/regulation otherwise, we do not think that execution of the gift which we have found transformed the donee not as the absolute owner but as trustee would require having regard to the salutary purpose, the need to pay compensation.It may not be a case where the respondent discharges any liability as such. It is another matter that the project proponent stands to make a considerable profit as a result of the permission granted.

159Copy pinpoint159. In case there is no requirement to execute a gift of OSR F area in terms of Pandit Chetram Vashishta (supra), the project proponent/owner would remain in the position of a trustee. As a trustee in law is the legal owner, and therefore this being the position in law, he may not be disabled from transferring the property in any manner. However, as he is under obligation as a trustee to maintain the property G as OSR, he cannot defeat the obligation by transferring the same and it can lead to abuse. No doubt, he would be prohibited from raising any construction over the OSR area. One of the bundle of rights of an owner, however, which would survive after the owner steps into the shoes of a trustee, could be said to be the power to exclude ‘others’ from the OSR area. The attribute of ownership of property consisting of the power to H

ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1153 V. GOPINATH & ORS. [K. M. JOSEPH, J.]

exclude others may continue with the project proponent in the absence A of a gift. Now, interestingly, this again would depend upon the interpretation of the words ‘communal and recreational purpose’. This is for the reason that if the OSR area can be accessed by members of the general public as contended by the respondents, then, the project proponent cannot possibly have the right of an owner to exclude them. B Equally, even with the requirement to maintain the OSR area in the absence of the demand for a gift, it could be said that the sole project of proponent could have the right to remain in possession. Another dimension may be noticed. What would happen if the OSR area is acquired in the exercise of the power of eminent domain for the public purpose? Who would be entitled to the compensation, if a gift is made in terms of the impugned Rule/Regulation? We would think that since the interpretation we are placing is that the gift under the Rule/Regulation is intended only to ensure due compliance with the requirement of the OSR area being effected and to prevent misuse by the owner, as between the original owner and the local authority,it would be the original owner, who may be entitled to the compensation.

160Copy pinpoint160. The time, therefore, is ripe to deal with the meaning of the words open space reservation of land for communal and recreational purposes.

161Copy pinpoint161. Group development falls under Rule 19(b)(2) of the DCR. E Group development is defined as accommodation for residential or commercial or combination of such activities housed in two or more blocks of buildings in a particular site irrespective of whether these structures are interconnected or not. Rule 19(b)(ii) proceeded to provide for the minimum width of the public road on which the site abuts. The vehicular access way including passage if any within the site was to have a minimum width. It also referred to set back requirements.Parking standardswere prescribed [See 19(b)(ii)(v)]. It is, thereafter, that the open space requirement was provided by declaring that reservation of land for communal and recreational purposes shall be as follows and it must at this juncture be noticed that there is an explanation,which reads as follows: - “Explanation: - (1) For the purposes of this rules, existing development defined as one “Where the extent of ground area covered by structures H

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A already existing (prior to application) in 25% and above of the total site area”. (2) In case of existing development where it is difficult to leave the 10% area as open space for communal / recreational purposes, the Authority reserves the right to collect the market value of equivalent land in lieu of the land to be reserved. However, if on a future date the developer wants to demolish the existing structures and raise new structures on the site in question, the communal and recreational space shall be reserved, as per rule. (3) The land so reserved shall be free from any construction by the owner or promoter or developer. The land for communal and recreational purposes shall be restricted at ground level in a shape and location to be specified by the Chennai Metropolitan Development Authority.”

162Copy pinpoint162. In the case of Writ Petition No. 691 of 2015 wherein the regulation of the year 2008 has been challenged as we have noticed there is no challenge to Regulation 29(6)(a), which, inter alia, provides how the land reserved is to be restricted at the ground level. It is true that there is a challenge to Annexure XX, which we have extracted in paragraph 118 of the judgment. But the absence of challenge to Regulation 29(6) is fatal.We must proceed on the basis that there is no challenge to the terms of the explanation to Rule 19(b)(II)(vi) which in Clause (iii) provides that the land so reserved shall be free from any construction by the owner, promoter or developer, and what is more important, the manner in which the land is to be provided for communal and recreational purpose is that it is to be restricted at ground level in a shape and location to be specified by the Chennai Metropolitan Development Authority. This provision has not been expressly challenged. In the absence of a challenge, what is contained in a rule and also the like provision in the regulation, the resultant position would be the exact shape and the location is to be determined by the CMDA.

163Copy pinpoint163. The problem, however, still persists in the form of the meaning of the words‘communal and recreational purpose’ in the case of a site having an extent between 3,000 square metres to 10,000 square metres. Rule 19 (b)(vi) to 19(2)(b)(vi) contemplate that the space so required is to be transferred to the authority or local body designated by the authority free of cost through a deed. It is further provided that the local body H may provide the residents association or flat owners association for

ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1155 V. GOPINATH & ORS. [K. M. JOSEPH, J.]

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

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A (4) Structures incidental to the main activities such as water-closet, bath and pump room shall not be construed as individual blocks for the purpose of these rules. But, these structures shall not be permitted in the prescribed set back spaces. III (a) Notwithstanding anything mentioned above layouts for group housing, Economically Weaker Section Housing, sites and services projects, slum improvement schemes may be approved, subject to such conditions as may be stipulated by the Authority.”

164Copy pinpoint164. The impact of Rule 19 (b)(II)(vii) is as follows. It empowers the CMDA to enforce the maintenance of the reserved areas by the owner to the satisfaction of the authority or to order the owner to transfer the land to the authority or any local body free of cost through a deed. The authority also reserves the right to decide on entrusting the maintenance work to institutions/individual on the merits of the case. It is noteworthy that there is no challenge to Rule 19(b)(II)(vii). It would appear that when a gift is executed then the duty of maintaining can be given to institution/individual on the merits of the case. This would mean that even the project proponent or other individual/individuals who may have an interest as in the case of Vasant Apartments Owners Association, the said Association could be asked to maintain the open area.

165Copy pinpoint165. The impression we gather on reading the contents of reservation to be made in respect of site having an extent between 3,000 to 10,000 square metres is that the reserved area is to be maintained as a park. When it comes to the site having more than 10,000 square meters, the provision that public access for area shall not be insisted upon is not to be found. This means that when it comes to the layout which in the wisdom and the policy of the Rule Maker, which as we have seen, has been made after the process undergone under the Act, as we have noticed, and apparently, after hearing objections, if any, and with the approval of the government that, were a large chunk of land be developed for group development, as defined, and certain percentage, which in these cases is 10 percent or 1/10th of the total layout excluding roads is to be set apart as the OSR area. The word park is not in any way inconsistent with recreational purpose. It does not require much imagination to conclude that in an urban area and with a site being in excess of 10,000 square metres (nearly two and a half acres) where group development takes place,there would be a large number of people who would occupy the said area. Group development can be substantially

ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1157 V. GOPINATH & ORS. [K. M. JOSEPH, J.]

conflated with flats and apartments comprised in two or more blocks or buildings as required to satisfy the requirement of group development under Rule 19(b)(II). A large number of people would occupy the said land.This is understandable having regard to the size of the layout and the definition of group building. Planned development, particularly, when it is informed by deep vision about the future does call for an expansive approach. Congestion in urban areas is a foreseen certainty. The requirement for lung space and that too the need for the same being available in the close vicinity of the area of residents is not difficult to conjure. Planned development has a considerable deal to do with the quality of the lives of the residents in an urban area, as can be perceived from provision made for aspects relating to parking, setback, roads, all of which do apparently make inroads into absolute right of property of developer. They are indispensable necessities from the standpoint of the town planner as much as it is for the residents in an urban area. While we are conscious of the fact that the DCR did contemplate open space zones which must be understood as parks, etc., as one of the zones,the idea,apparently, was to avoid concentration and the consequent need to undertake avoidable travel for the residents of an area to the site of the open space zone.An open space requirement is stipulated world over based on very formidable considerations. The fact that no construction is to be put up is the very corollary of and is in consonance with an ‘open’ space requirement. Still further, parks inevitably would have trees. E Trees ensures a steady supply of much needed oxygen. Providing other recreational measures, which are at the heart of quality of a person’s life, in keeping with modern demands, are critical elements of a legitimate public interest.

166Copy pinpoint166. Having made these observations, we pass on to consider further aspects. In the case of Vasanth Apartments, i.e., Civil Appeal Nos. 1890-1891 of 2010, the developer undoubtedly executed a gift deed. A contention is taken on behalf of the respondents including Shri Jayant MuthRaj that the donor has gifted the land for roads and parks from the perusal of thegift deed. It would appear that the donor has indeed gifted the land in question and provided that the donee may peacefully and quietly enjoy the said land ‘of roads/parks’ free from all encumbrances. At this juncture, we bear in mind the actual terms of the gift deed executed in the case of Association of Vasanth Apartments, which we have adverted to in paragraph-47 of this Judgment. H

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167Copy pinpoint167. The Division Bench has considered the report of the Advocate Commissioner also to find that there existed a kachha pathway and that is a road which is being used by thousands in terms of the gift deed which came into effect. It is their contention that even if it is found by this Court that in terms of the OSR requirement of 10 percent of the land, it can only be used as open space for communal and recreational purpose and not for a road, this Court may not interfere.

168Copy pinpoint168. Firstly, we must consider the ambit of the words communal and recreational purpose and find whether it could take in a public road for being used by members of the public generally. Equally, we must consider whether the word communal is capable of extending the benefit of the open space requirement to the members of the general public or whether it must be confined to the beneficiaries of the group development. In other words, if the word communal is interpreted as the community of the beneficiaries of the group development, then it must be understood as meaning that members of the general public cannot be permitted to partake of the benefits flowing from the open space reservation. For instance, if adjoining the site and as indicated in the explanation in a shape and location determined by the CMDA, a park is constructed. By use of the word communal and interpreting it to mean a community which is larger than the mere beneficiaries of the group development as such, then the benefit of the open space may become available to the general public in the nearby area. This would have the advantage of facilitating the members of the public avoiding travelling to the areas where there is recreation or open space, as for instance, under the zoning requirements. Undoubtedly, the absence of any construction which is indispensable to make it an open space area and which is insisted upon also will provide a large chunk of space for all the people in the area. Making available the facilities on the basis that when development is permitted, it brings in its train certain responsibilities for the project proponents which can be appreciated as legitimate State interests, is one way of approaching the issue. It must be understood in all these cases that setting apart of 10 percent of the area is actually as such not objected to. This means all parties are agreed that the law providing for setting apart of 10 percent of the total area excluding roads in the case of group development in excess of 10,000 square metres is legitimate and valid,unless we find favour with the arguments that it is otherwise constitutionally infirm.We have already found that the provision does not offend Article 14 on the ground that it represents a species of class

ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1159 V. GOPINATH & ORS. [K. M. JOSEPH, J.]

legislation. We are unable to also find that the provision is manifestly arbitrary. If in other words, there is no other basis to find the impugned rule vulnerable, we can safely proceed to hold that the requirement of OSR is not unjustified. We have noticed the stand of the two appellants and the writ petitioners also in this regard. We find that it is their stand that they are prepared to maintain the 10 percent area as OSR. What is objected is to the execution of the gift deed and allowing the property rights to change hands.This is apart from the objection to the chosen site being made accessible to the general public.

169Copy pinpoint169. We have noticed that in Pandit Chetram Vashishta (supra), this Court has held that in the absence of valid provision under which the gift in the said case could be supported, the mere resolution was not sufficient. The position still was found to be that the original owner would continue to be a trustee. He cannot transfer or change the nature of the property. In fact, in the decision reported in Virender Gaur (supra), this Court discountenanced conversion of what was an OSR area into land on which construction though for what was projected as a laudable object was carried out. We are of the view that bearing in mind the laudable object the law relating to town planning which has been the very basis for our reasoning otherwise, we must clarify that what the Rule and the Regulation mandatorily stipulated was the dedication and maintenance of 10 percent of the area for communal and recreation purposes area only. There is inviolable duty on the part of all including the local body and the CMDA to ensure that an area which is set apart or purported to be set apart in terms of the OSR requirement under the Rule/Regulation in question is used only for communal and recreational purpose. We notice in, this regard, the complaint of Ms. V. Mohana, learned Senior Counsel, as indeed the other counsel that only lip service is being paid to the projected sublime object of maintaining OSR. This cannot be permitted.

170Copy pinpoint170. Unrelentingly persevering is the aspect relating to the contours of the word communal in the setting of the Rules/regulations and Act. Rules do shed some light in Rule 19 (b)(II)(vi). In regard to plots having a size of 3,000 square metres to 10,000 square metres, the law giver has provided that it shall not be necessary to provide access to the public. When it comes to the impugned Rule, viz., Rule 19 (b)(II)(vi) providing for plot size in excess of 10,000 square metres, it is apparent that the access of the members of the general public to the OSR area is to be permitted. This result is inevitable having regard to the fact that unlike H

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A the immediate predecessors, viz., plot size having 3,000 to 10,000 square metres wherein it has been indicated that public access shall not be insisted upon such a relaxation is conspicuous by its absence. The wisdom and the value judgement, which underlies permitting or contemplating public access to the OSR area, can be understood only in terms of the difference in the size. Once wisdom and a value judgment are beyond the pale of judicial review and scrutiny, and further, it is found that the project developer and also the beneficiaries of the group development are duty-bound for maintaining an OSR area, then the matter goes to the legitimacy of the public or State interest. The consequences of executing the gift deed and the underlying purpose have been adverted to by us already. In fact, apart from it being a legitimate public purpose, even the rough proportionality concept in Nollan (supra) would appear to be satisfied.

171Copy pinpoint171. In the case of M/s. Keyaram Hotels Pvt. Ltd., the terms of the gift deed provide that the gift is made so that the donee may at all times, peacefully and quietly, possess and enjoy the said portion only as open space, free from all encumbrances, without any lawful eviction, interruption, claim whatsoever from the donor. A perusal of Rule 19 (b)(II)(vi) in relation to the extent of size between 3,000 and 10,000 square metres contemplates that the reserved area is to maintained as a E park.

172Copy pinpoint172. We notice that under Rule 61 of the Andhra Pradesh Group Development Scheme, sub-Rule (7) reads as follows: “61(7) Minimum of 10% of site area shall be earmarked for organised pen space and be utilised as greenery and shall be F provided over and above the mandatory setbacks at suitable location accessible to entire community to the satisfaction of the competent authority. Such open space shall be open to sky and shall not be over cellar floors. (Emphasis supplied) G

173Copy pinpoint173. We may also notice sub-Rule 61(14): “(14) All roads and open spaces mentioned in this Rule shall be handed over to local body at free of cost through a registered gift deed before issue of occupancy certificate. The society / H

ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1161 V. GOPINATH & ORS. [K. M. JOSEPH, J.]

association may in turn enter into agreement with the local authority A for utilizing, managing and maintaining the roads and open spaces. In case of any violation of encroachment, the local authority shall summarily demolish the encroachments and resume back the roads and open spaces and keep it under its custody.”

174Copy pinpoint174. Under Regulation 23 of the DCR for Greater Bombay, 1991, B open space is to be provided, in fact, for any layout, starting from 1001 square meters to 2500 square meters, wherein 15 per cent is to be kept as open space. For an area of 2501 square meters to 10000 square meters, 20 per cent has to be kept as open space. In the case of residential and commercial layout for area above 10000 square meters, ‘25’ per cent has to be maintained as open space. There are certain exceptions. The ownership, no doubt, is to vest by a deed of conveyance in all the property owners on account of whose holdings, the recreational space is assigned. It also appears to provide that the remaining area of recreational open space or playground (that is after excluding structures providing for pavilions, gymnasium, clubhouses, etc.), is to be made accessible to all members as a place of recreation, garden or playground.

175Copy pinpoint175. The words ‘communal and recreational purpose’, for which the OSR area is to be used, in the case of the impugned Rule/Regulation, appears to indicate that the word ‘communal’ is to be given a meaning, which would be in keeping with the object of law, enable members of the public as well, to gain access when the layout is more than 10000 square meters. In this regard even in Pt. Chetram (supra) we recapture the following: “6. Reserving any site for any street, open space, park, school etc. in a layout plan is normally a public purpose as it is inherent in 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 H

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A the Corporation to claim that the land so specified should be transferred to the authority free of cost. That is not made out from any provision in the Act or on any principle of law. …”

176Copy pinpoint176. Rule 61(7) of the Andhra Pradesh Rules in Andhra Pradesh, which we have referred to, is unambiguous that the area used as B ‘greenery’ shall be accessible to the ‘entire community’. It is to be secured by means of the gift contemplated in Rule 61(14). While, we cannot be sitting in Judgment over the said Rule, we would think that the purport of the impugned Rule/Regulation must be understood as persuading the Court to not place a narrow interpretation.

177Copy pinpoint177. In this regard we find reassurance in the view taken by the courts in the United States even in the presence of the taking clause under the 5th Amendment to the U.S. Constitution. In an Article titled “Techniques for Preserving Open Spaces” published in 75 Harv. L. Rev. 1622, we find the following: D “Required Dedication and Reservation. — A municipality can require the developer of a new subdivision to provide such facilities as roads, streets, sewers, and playgrounds as a condition to plat approval. In the leading case of Ayres v. City Council a requirement that the subdivider dedicate land for road and street purposes and leave undeveloped an accompanying area for trees and shrubbery was approved on the theory that since the new subdivision created the need for and would specially benefit from the improvements, the developer and ultimate purchasers rather than the entire community should bear the cost of providing them. In a case involving required reservation of land for a public park the argument that this would be an unconstitutional taking of land was rejected on the theory that the subdivider would be compensated by the share of the benefits to the whole community which accrued to his particular development. The Pennsylvania Supreme Court has taken a contrary view, however. And where the need for a G particular improvement is a general one, not specifically attributable to the subdivider’s activity, the entire municipality must bear the cost.” We would therefore come to the conclusion that the word ‘communal’ must be understood as where the layout exceeds 10000 H sq.meters entitling members of the general public also to avail the benefit

ASSOCIATION OF VASANTH APARTMENTS’ OWNERS v. 1163 V. GOPINATH & ORS. [K. M. JOSEPH, J.]

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

178Copy pinpoint178. The upshot of the above discussion may be summed-up as follows:

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

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

VI. The areas covered by the OSR cannot be diverted for any other purpose. The respondents are duty-bound to ensure that the area set apart as OSR is stringently utilised only for the purpose in the Rule/Regulation. We direct that no H

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A area meant for OSR shall be utilised as dumping yards or any other purpose other than as OSR; VII. As far as Civil Appeal Nos. 1890-1891 of 2010 are concerned, we are of the view that in view of the fact that there appears to have been a kachha road, even at the B time of the gift executed as early as in February, 1994 and it was being used as a road by large numbers of members of the public to reverse the position on the ground, may produce a great deal of injustice, which we would avoid by resorting to the principle enunciated in the decision of this C Court referred to in Taherakhatoon (D) By LRs. v. Salambin Mohammad70. However, if the property gifted is in excess of the area used for the road, we direct that the excess land shall be used for the purpose of OSR only.We also direct that the Authority may consider making available the maintenance of the said area to the appellants, namely, D Association of Vasanth Apartments Owners, if they are prepared to maintain it in terms of the observations contained in this judgment.

179Copy pinpoint179. Civil Appeals 1890-1891 of 2010 are disposed of. The other Appeals and the Writ Petition will stand dismissed subject to the E observations/directions we have made earlier. No order as to costs.

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

70 H (1999) 2 SCC 635