Supreme Court Upholds Rule Requiring Builders To Reserve Open Spaces In Developed Plots

The Supreme Court has upheld a rule which mandated that builders should reserve open spaces in the plots developed by them. The rule in question was Rule 19 of the Development Control Rules for the Chennai Metropolitan Area. The Rule mandated 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. So, the Chennai Metropolitan Development Authority would be empowered to maintain the open space area.   

A bench comprising Justices KM Joseph and PS Narasimha rejected the pleas to declare Rule 19 as void. The bench held that Rule 19 did not violate Article 14 for being unreasonable or violate the right to property under Article 300A of the Constitution.

The bench also rejected the argument that such compulsory reservation of open space in favour of the local authority will amount to acquisition of land.

As regards the argument on Article 14 violation, the judgment authored by Justice Joseph observed

 "We are unable to persuade ourselves to hold that the impugned rule violates Article 14 on the score that it is discriminatory. In a challenge to a provision based on discrimination under Article 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 judgements which are intended to ensure the orderly, visionary and planned development, they require greater deference from courts."

The Court further held that the case of a person developing land being subjected to the requirement of leaving 10 percent of the property as space for communal and recreational purposes cannot be said to be a person ‘injuriously affected’ so as to be entitled for compensation.  

Reservation of open spaces will not amount to compulsory acquisition

The Court expressed the view that the condition for open space reservation cannot be viewed as acquisition of land (para 137).

"The impugned provision does not represent in our view, a case of compulsory acquisition of land. A case of compulsory acquisition would be without there being any volition or consent of a person. The State purports to divest his rights in property and vest the rights with the State. The impugned provision does not appear to us to be a case of such acquisition as is contemplated in a law which is made with reference to Entry 42 in List II".

The Court also did not find fault with the condition to transfer the open space to the local authority through gift.

"We are unable to accept, 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. 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. As already discussed, 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. TheRule/Regulation at any rate also, is a law which sanctions deprivation even assuming there is deprivation. However, we are of the view that, insubstance, the Rule/Regulation cannot be understood as deprivation under Article 300A"

Open spaces cannot be diverted

The Court also directed that the areas covered by the Open Space Regulations cannot be diverted for any other purpose.

"The respondents(local authorities) 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 area meant for OSR shall be utilised as dumping yards or any other purpose other than as OSR"

Case Title : Association of Vasanth Apartments Owners vs V Gopinath and others

Citation : 2023 LiveLaw (SC) 105

For Appellant(s) Mr. N. Subramaniyan, Adv. Ms. Neha Rathi, AOR Mr. Kamal Kishore, Adv. Mr. D. L. Chidananda, AOR Mr. Pranav Sachdeva, AOR Mr. N Subramaniyan, Adv. Mr. Ajay Aggarwal, Adv. Mr. Jatin Bhardwaj, Adv.

For Respondent(s) Mr. R. Raja S. Padian, Adv. Mr. Hitesh Kumar Sharma, Adv. Mr. T.L. Subramaniyam, Adv. Mr. V. Shrivalli Ranam, Adv. Mr. K. S. Subbili, Adv. Mr. V. J. Gopal Narayan, Adv. 1 Civil Appeal Nos. 1890-1891/2010 etc. Mr. R. Nedumaran, AOR Mr. B. Balaji, AOR Mr. Jayanth Muth Raj, Sr. Adv. Ms. Malavika Jayanth, Adv. Mr. Prabhu Ramasubramanian, Adv. Ms. Miranda Solaman, Adv. Mr. P. V. Dinesh, AOR Mr. M. Yogesh Kanna, AOR Mr. Amit Anand Tiwari, A.A.G. Dr. Joseph Aristotle S., AOR Mr. Shobhit Dwivedi, Adv. Ms. Nupur Sharma, Adv. Mr. D. Kumanan, AOR Ms. Deepa S., Adv. Mr. Sheikh F. Kalia, Adv. Ms. Racheeta Chawla, Adv. Ms. Divya Singh, Adv. Mr. Vinodh Kanna B., AOR Mr. T. R. B. Sivakumar, AOR

Building rules- Supreme Court upheld a rule which mandated that builders should reserve open spaces in the plots developed by them- Regulation 19 of Development Control Rules for the Chennai Metropolitan Area.

Building Rules - Mandate to reserve 10% open space area does not violate Article 14 and 300A of the Constitution- It does not amount to compulsory acquisition-Para 51, 66, 137,148, 154

Building rules- Open Spaces -Areas covered by the Open Space Regulations cannot be diverted for any other purpose- The respondents(local authorities) 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 area meant for OSR shall be utilised as dumping yards or any other purpose other than as OSR-Para 178

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