Areas Covered By Open Space Regulation Cannot Be Diverted For Any Other Purpose- SC Upholds Validity Of Rule 19 Of Development Control Rules
A Supreme Court Bench of Justice KM Joseph and Justice Pamidighantam Sri Narasimha has issued clarifications regarding the Development Control Rules (DCR), and has upheld the validity of Rule 19 and Regulation 29(7) of the DCR.
It has also clarified that the areas covered by the Open Space Regulation (OSR) cannot be diverted for any other purpose.
Senior Advocate V Mohana, Counsel N Subramaniyan, and Counsel KS Suresh appeared for the petitioner side. Additional AG Amit Anand Tiwari appeared for the State of Tamil Nadu and the CMDA, while Senior Advocate Jayanth Muthraj appeared for the respondent side.
In this case, the Apex Court framed the following issues and answered them accordingly:
(i) Whether Rule 19 of the DCR is violative of Article 14 of the Constitution?
The Court observed that "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."
(ii) Whether Rule 19 and Regulation 29(7) of the DCR are ultra vires?
Holding that the impugned Rule and Regulation were not ultra vires, the Court observed that "the Act does not contemplate the execution of the gift deed. It becomes impermissible for the Delegate of the Law Giver to make subordinate legislation to provide so."
(iii) Whether Rule 19 and Regulation 29(7) of the DCR are bad for the reason that it is contrary to the mandate of Section 39 of the Land Acquisition Act of 1894?
The Court noted that "the contention of the appellants is misplaced with reference to the concept of ‘injuriously affected’ finding expression in Section 39". Holding that the impugned Rule and Regulation were not bad in law, the Court observed that "The case of a person developing land being subjected to the requirement of leaving 10 percent of the property in a situation where more than nearly 2 and a half acres is being developed in an urban metropolis as space for communal and recreational purposes cannot be said to be a person ‘injuriously affected’ within the meaning of Section 39."
The Court also confirmed that the areas covered by the OSR cannot be diverted for any other purpose apart from those mentioned in the statute.
Subsequently, the appeals were disposed of. No orders were passed as to costs.
Cause Title: Association Of Vasanth Appartments' Owners v. V. Gopinath And Ors.