CAUSE TITLE:
Association of Vasanth Apartments’ Owners v. V Gopinath and Ors.
DATE OF ORDER:
10 February 2023
JUDGE(S):
Hon’ble Justice KM Joseph and Justice Pamidighantam Sri Narasimha
PARTIES:
Appellant: Association of Vasanth Apartments’ Owners
Respondent: V Gopinath and Ors.
SUBJECT:
The Hon’ble Supreme Court (hereinafter referred to as ‘Supreme Court’ or ‘the Court’), upheld Rule 19 of the Development Control Rules for the Chennai Metropolitan Area which mandated that plots with 10,000 sq. metre or more area must reserve 10% for open spaces.
Accordingly, the appeal was dismissed.
IMPORTANT PROVISIONS:
Development Control Rules for the Chennai Metropolitan Area
- Rule 19 - In any developmental plan having area 10,000 sq. metre or more, 10% of the area should be reserved as open space for communal and recreational use and that such open space area must be transferred to the local authority free of cost through a registered gift deed.
Constitution of India, 1949
- Article 14 - Equality before law - The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
- Article 254(2) - Where a law made by the Legislature of a State with respect to one of the matters enumerated in the concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State.
- Article 300A - No person shall be deprived of his property save by authority of law.
Land Acquisition Act, 1894
- Section 36 - Power to enter and take possession, and compensation on restoration - On payment of such compensation, or on executing such agreement, or on making a reference under section 35, the Collector may enter upon and take possession of the land, and use or permit the use thereof in accordance with the terms of the said notice.
- Section 37 - Difference as to condition of land - In case the Collector and persons interested differ as to the condition of the land at the expiration of the term, or as to any matter connected with the said agreement, the Collector shall refer such difference to the decision of the Court.
- Section 39 - Previous consent of appropriate Government and execution of agreement necessary
- Section 48 - Completion of acquisition not compulsory, but compensation to be awarded when not completed
- Section 49 - Acquisition of part of a house or building
- Section 50 - Acquisition of land at cost of a local authority or Company
- Section 51 - Exemption from stamp-duty and fees
- Section 52 - Notice in case of suits for anything done in pursuance of Act
- Section 53 - Code of Civil Procedure to apply to proceedings before Court
- Section 54 - Appeals in proceedings before Court
- Section 55 - Power to make rules
BRIEF FACTS:
- The appellants, Association of Vasanth Apartments’ Owners, were owners of certain apartment units situated in a complex consisting of 12 blocks with the total area of the layout being more than 10,000 sq. metres. A certain portion of that land was reserved as per the terms of Rule 19 of the Development Control Rules (DCR) as Open Space Regulation area (OSR).
- On 18.02.1994, to the effect of Rule 19, a gift deed was executed in favour of the Chennai Metropolitan Development Authority. However, even after the lapse of 12 years since the execution of the deed, the OSR area had still not been developed into a park.
- A writ petition was filed before the learned Single Judge where the appellant association was directed to develop a park in the open space area with recreational facilities in accordance with the ‘DCR’. The Court also made clear that the respondents were entitled to take action in accordance with law if there is any violation and it would be the duty of the respondents to maintain and develop the park. On failure of this duty, the residents’ association would be allowed to do the same subject to the rules.
- A writ petition was filed by the Association of Vasanth Apartments’ Owners challenging the constitutional validity of Rule 19 of DCR on the grounds that it is violative of Article 14 and Article 300A of the Indian Constitution.
QUESTIONS RAISED:
- Whether the Rule 19 of the Development Control Rules violative of Article 14 and Article 300A of the Constitution of India?
ARGUMENTS ADVANCED BY THE APPELLANT:
- The counsel for the appellant Shri Gopal Sankaranarayanan contended that Article 300A is attracted in case of a compelled gift. In the present case, there was a clear deprivation of property without the authority of law. DCR being a non-statutory buddy of rules was made by the CMDA in absence of any provision enabling it to make statutory rules without any authority of law.
- The State Government is vested with power to make rules u/s 122 of the Tamil Nadu Town & Country Planning Act, 1971. The concerned rule is not law within the scope of Article 300A. There is not any law or provision in existence which can deprive the appellant of their property.
ARGUMENTS ADVANCED BY THE RESPONDENT:
- The counsel appearing on behalf of the respondent argued that Rule 19 does not hinder the appellants’ right to their property and deprive them of it. In fact, it is a bye-law created for the administration of plots with an area of 10,000 sq. metres and more.
- It was also submitted that the gift deed executed by the residents’ association is not compelled in any sense of that word. The deed was executed in furtherance of compliance with DCR which is a statutory body of rules.
- Furthermore, it was contended that Rule 19 is well within the scope of Article 300A and no fundamental or constitutional right of the appellants has been hampered with through this rule.
ANALYSIS BY THE COURT:
- The Ld. Court observed that the impugned Rule is not violative of Article 14 of the constitution. The Court noted that in order to prove the violation of Article 14, the burden would be on the petitioner.
- The Court further observed that the requirement to leave 10% of the property as an open space for communal and recreational purposes cannot mean injury and the persons affected cannot be held entitled for compensation.
- The Court also observed that reservation of an open space cannot be said to be an “acquisition of land” and, thus, does not attract Article 300A of the constitution.
CONCLUSION
The Ld. Court held that Rule 19 of DCR is not ultra vires to the Constitution of India and the residents’ association is under obligation to reserve 10% of the land for communal and recreational purposes.
Accordingly, the appeals were dismissed.
