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

Citation: [2023] 9 S.C.R. 1019 · Decided: 13-02-2023 · Supreme Court of India · Bench: K.M. JOSEPH · Disposal: Disposed off

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Judgment (excerpt)

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1019
1019
ASSOCIATION OF VASANTH APARTMENTS’ OWNERS
v.
V. GOPINATH & ORS.
(Civil Appeal 1890-91 of 2010)
FEBRUARY 13, 2023
[K. M. JOSEPH AND PAMIDIGHANTAM SRI
NARASIMHA, JJ.]
Tamil Nadu Town & Country Planning Act, 1971 – s.39 –
Development Control Rules – Rule 19 – Regulation 29(6) – Chennai
Metropolitan Area – Appellants were owners of certain apartments
situated in a complex which consisted of 12 blocks – Total area of
the layout was more than 10,000 sq. metres – Portion of land was
earmarked in terms of Rule 19 of the Development Control Rules
(DCR) as Open Space Regulation Area (OSR) – Said rule mandates
that 10% of the area of any developmental plan having area 10,000
sq. meter or more 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 – Gift deed was executed in favour of Chennai Municipal
Development Authority – However, despite lapse of 12 years of the
gift, the OSR area had not been developed into a park – Writ Petition
filed by apartment owners challenging the vires of the rule 19 of
DCR – Single Judge of High Court disposed of the writ petition by
directing the appellant association to maintain the open space area
as a park with recreational facilities in accordance with the ‘DCR’
– Division Bench set aside the judgment passed by the Single Judge
and upheld the validity of the said rule – On appeal, held: It cannot
be said that the impugned rule violates Art.14 on the score that it is
discriminatory – In a challenge to a provision based on
discrimination under Art.14, the burden is on the applicant to lay
clear foundation in pleadings and further to discharge the burden
by making good the case and the court will not lightly enter a finding
of discrimination – Town planning being a complex subject involving
various inputs and value judgments which are intended to ensure
the orderly, visionary and planned development, they require greater
deference from courts – When the layout is above 10,000 square
meters, reservation of 10% for recreational purposes has to be made
[2023] 9 S.C.R. 1019 : 2023 INSC 123
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SUPREME COURT REPORTS
[2023] 9 S.C.R.
– The developer must also transfer such reserved space in favour
of the local authority, free of cost, through a registered gift deed
allowing the local authority to maintain the open space area – The
challenge to the Rule, on the basis of Article 300A and, indeed,
Art.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 instance – No merit in the contention that Rule 19 of
the DCR or the regulation which is impugned is in anyway ultra
vires of the provision of the Act – It cannot be accepted, 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 of the
Constitution – 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 – The gift will not convert
the Local Body into an absolute owner – Instead, in place of the
original owner, continuing as a trustee, the Local Authority becomes
the trustee – The purpose and the nature of the obligation will 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, in substance, the
Rule/Regulation cannot be understood as deprivation under
Art.300A – The areas covered by the OSR cannot be diverted for
any other purpose – The respondents are dutybound to ensure that
the area set apart as OSR is stringently utilised only for the purpose
in the Rule/Regulation – No area meant for OSR shall be utilise

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