Association of Vasanth Apartments' Owners vs V. Gopinath & Ors.
Background
Under Rule 19 of the Chennai Development Control Rules, anyone developing a layout larger than 10,000 sq. metres must set apart 10% of the land as open space for communal and recreational use and gift it free of cost to the Chennai Metropolitan Development Authority (CMDA). Vasanth Apartments in Velachery, 12 blocks with about 180 homes, was built under such an approval, and the developer gifted about 1,164 sq. metres as OSR in February 1994. The land was never turned into a park; instead the Chennai Corporation laid a kachha road across it in 2003 that thousands of local residents used as a shortcut. The apartment owners' association went to court asking that the land be maintained as a park; a Single Judge agreed, but the Division Bench reversed him in 2007 finding the association had no right in the land. The association separately challenged Rule 19 itself as an unconstitutional taking of property, and other builders (Keyaram Hotels, CREDAI) joined in attacking the rule.
Decision Breakdown
In a 244-page judgment the Supreme Court upheld the OSR rule on every ground: it is statutory, within the powers of the Tamil Nadu Town and Country Planning Act, not arbitrary or discriminatory under Article 14, and not a violation of the right to property under Article 300A. The Court reasoned that reserving open space is a legitimate condition attached to the privilege of developing land, serving vital public interests such as green cover, oxygen supply and recreation for all; the word "communal" in the rule means the public at large, not just the residents of a particular complex. As for Vasanth Apartments, the Court noted that the gift was made by the developer, not the residents, that the residents never held any property right in the OSR land, and that they challenged the rule only twelve years after the gift. Since a road had apparently existed on part of the land even at the time of the gift and was used by huge numbers of people, the Court declined to order it removed; but it directed that any gifted land beyond the road must be used only as OSR, and that the CMDA may consider letting the association maintain that area. Crucially, the Court laid down that OSR land can never be diverted to any other purpose. It must not be used as a dumping yard or for anything other than open space, and the authorities are duty-bound to enforce this. The Vasanth appeals were disposed of on these terms, and the other appeals and CREDAI's writ petition were dismissed.
Lesson Learnt
Requiring developers to surrender a share of a layout as public open space is a valid planning condition, not an unconstitutional confiscation. Home-buyers do not own that reserved land, but everyone, residents and neighbours alike, has a legally enforceable expectation that it stays open space and is never diverted to dumping or other uses.