Summary
Chennai's planning rules required developers of layouts above 10,000 square metres to reserve ten per cent, excluding roads, as open space for communal and recreational use and to gift it free to the planning authority or local body. An apartment owners' association, a hotel company and a developers' federation challenged the requirement. The Supreme Court upheld it. The rules form part of the statutory Master Plan and are law, intra vires and not discriminatory. The gift makes the local body only a trustee bound to keep the land as open space, so there is no acquisition or unconstitutional deprivation under Article 300A. For large layouts the public may use the space, and it cannot be diverted to other uses.
Issues
- Whether Rule 19(b) of the Development Control Rules for the Chennai Metropolitan Area and Regulation 29(7)(a) with Annexure XX of the Development Regulations, 2008, requiring transfer free of cost by gift of ten per cent of a layout above 10,000 square metres reserved for communal and recreational purposes, have the force of law and are intra vires the Tamil Nadu Town and Country Planning Act, 1971.
- Whether the compelled gift amounts to acquisition without compensation or deprivation of property violating Articles 14 and 300A, or an unconstitutional condition on development permission, and whether 'communal' use confines the open space to the occupants of the development.
Provisions considered
- Sections 9C, 17, 20(1)(d), 24 to 32, 36 to 39, 47 to 55, 122 and 123, Tamil Nadu Town and Country Planning Act, 1971The Development Control Rules were issued with the Master Plan prepared by the authority under Sections 9C and 17, published for objections and approved by Government, and amended under Section 32; they are general, prospective and binding and so have the force of law, laying under Section 123 not being a condition of validity. Sections 36 to 38 concern land required, reserved or designated in the plan itself, not a developer's reservation in a layout; a developer meeting the open space condition is not 'injuriously affected' under Section 39; and Section 20(1)(d) permits acquisition 'otherwise', which can include a gift. (¶¶ 38, 39, 40, 41, 44, 57, 58, 59, 61, 63, 64, 66, 68, 69, 70, 72, 149)
- Articles 14, 300A and Entry 42 of List III, Constitution of IndiaFollowing K.T. Plantation and Jilubhai Nanbhai Khachar, Article 300A requires deprivation only by authority of law, compensation depending on the statute; town planning conditions on a large commercial development are an exercise of regulatory power, not acquisition under Entry 42, and graded thresholds of 3,000 and 10,000 square metres are policy choices that do not offend Article 14, especially as discrimination was not properly pleaded. (¶¶ 48, 50, 51, 85, 86, 137, 138, 139, 142, 143, 146, 148, 154)
- Rule 19(b)(II)(vi)-(vii) and Explanation; Regulations 29(6), 29(7)(a) and Annexure XX, Development Control Rules for Chennai Metropolitan Area and Development Regulations, 2008Ten per cent of a layout above 10,000 square metres excluding roads must be reserved at ground level free of construction in a shape and location fixed by the authority and transferred by gift deed, with no payment in lieu; Regulation 29(6) and the Explanation were not challenged, and the authority may entrust maintenance to an institution or individual, including a residents' association. (¶¶ 7, 114, 116, 117, 118, 120, 122, 161, 162, 164)
Held
- The impugned gift provision is not compulsory acquisition but a safeguard ensuring that the inviolable open space reservation is not built on, sold or misused by developers and their successors; read with Chet Ram Vashist, where reservation already made the owner a trustee, the gift does not make the local body an absolute owner but substitutes it as trustee obliged to maintain the land as open space, without power to transfer or build, and on any acquisition of the area the original owner may claim compensation. So understood there is no deprivation under Article 300A, and even if there were, it is by authority of law. (¶¶ 121, 122, 150, 153, 154, 158, 159)
- Yogendra Pal concerned a provision in the nature of acquisition while Articles 19(1)(f) and 31 were in force and is distinguishable; drawing on Nollan, Dolan and Koontz, the condition bears an essential nexus and rough proportionality to the impact of a large group development in a metropolis and is not an unconstitutional condition, particularly as it concerns commercial projects rather than individual homes; and since a gift by nature carries no consideration, no compensation is required. (¶¶ 134, 150, 155, 157, 158, 170)
- For layouts above 10,000 square metres, unlike those between 3,000 and 10,000 square metres where public access is not insisted on, 'communal' extends to members of the general public, consistent with the object of providing lung space and the Andhra Pradesh and Bombay rules and American dedication cases; the authorities are bound to use such land only for communal and recreational purposes and never as dumping yards. The Vasanth Apartments association, which neither owned nor gifted the land, challenged the rule twelve years after the developer's gift and after relying on the deed in an earlier petition, and cannot void the gift. (¶¶ 151, 165, 169, 170, 175, 176, 177, 178)
Result
Civil Appeal Nos. 1890-1891 of 2010 disposed of: the road laid on the gifted land, used by the public since before the 1994 gift, is not to be reversed, but any excess gifted area is to be used only as open space and the authority may consider entrusting its maintenance to the appellant association; Civil Appeal Nos. 7334 and 7847-7848 of 2013 and Writ Petition (C) No. 591 of 2015 dismissed subject to the directions that open space reservation areas shall not be diverted to any other purpose; no costs.