Town planning should allow for some flexibility in the decision-making process :SC

This Monday, Supreme Court has observed (ASSOCIATION OF VASANTH APARTMENTS Vs. GOPINATH & OTH. D.D 13 FEB 2023)  that before a rule can have the effect of a statutory provision, two conditions must be fulfilled: (1) it must conform to the provisions of the statute under which it is framed, and (2) it must come within the scope and purview of the rule-making power of the authority framing the rule. If either of these two conditions is not fulfilled, the rule so framed would be void.

The Civil Appeal Nos. 1890-91 of 2010 were filed against a judgment by a division bench of the High Court, which set aside the judgment of the learned Single Judge in Writ Petition No. 4766 of 2007. In the writ petition, the learned Single Judge had directed the appellant association to maintain the open space area as a park with recreational facilities in accordance with the ‘DCR’. The writ petitioners were owners of certain apartments situated in a complex consisting of 12 blocks, and a portion of the land was earmarked in terms of Rule 19 of the Development Control Rules (‘DCR’) as Open Space Regulation area (‘OSR’). A gift deed was executed in favor of the Chennai Metropolitan Development Authority on 18.02.1994, but despite the lapse of 12 years, the OSR area had not been developed into a park. Writ Appeal No. 478 of 2007 was filed by one Shri Gopinath and others, and Writ Appeal No. 1026 of 2007 was filed by the Commissioner of the Corporation of Chennai and the Member Secretary of the Chennai Metropolitan Development Authority (‘CMDA’). The division bench allowed the writ appeals and set aside the judgment of the learned Single Judge. The division bench noted that the CMDA and the Corporation of Chennai were taking all efforts to lay a pucca road in the OSR area for the convenience of nearly one lakh people in the area, including the residents of Vasanth Apartments.

Keyaram Hotels Pvt. Ltd. filed a writ petition challenging a rule requiring them to gift open space reserved land to the Commissioner Corporation of Madras for communal and recreational use. The petitioners argued that the rule infringed upon their property rights and was contrary to the law. The relief sought is to declare the rule void and obtain sanction without insisting on the rule.

Supreme Court noticed that In Vasanth Apartments, land gifted in compliance with a rule was sought to be used as a road. In Keyaram Hotels, the OSR area was not sought to be maintained as a road, but access through a public road was deemed contrary to the communal purpose of the OSR meant for the benefit of hotel patrons and facilities provided in the hotel and its premises.

The Supreme Court observed that there was no reference to this argument in the writ petition or review petition, and that a certain measure of free play should be given to the planning authority when it comes to town planning. The Court also observes that the impugned rule provides for the reservation of open space and communal facilities, and that it is not discriminatory. The Court notes that the burden of proof in a challenge to a provision based on discrimination 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.

The Supreme Court further observed that before a rule can have the effect of a statutory provision, two conditions must be fulfilled: (1) it must conform to the provisions of the statute under which it is framed, and (2) it must come within the scope and purview of the rule-making power of the authority framing the rule. If either of these two conditions is not fulfilled, the rule so framed would be void.

The Supreme Court held that Rule 19 of the DCR is a statutory provision that is not ultra vires the Act and does not violate Article 14 or 300A of the Indian Constitution. It directs that areas designated as OSR must be used strictly for that purpose and not diverted for any other use, including as dumping yards.

In the case of Civil Appeal Nos. 1890-1891 of 2010, the Court avoids any potential injustice caused by the use of a kachha road as a public road by directing that any excess (news) land from the gifted property be used only for the purpose of OSR. The Court also suggests that the Authority may consider allowing the Association of Vasanth Apartments Owners to maintain the said area in accordance with the Court's directions. The Court disposes of Civil Appeals 1890-1891 of 2010 and dismisses the other appeals and writ petition.

ASSOCIATION OF VASANTH APARTMENTS  Vs.  GOPINATH & OTH.