Town Planning – Chennai Metropolitan Area – Development Control Regulations – Open Space Reservation (OSR) charges – Levy in lieu of land – Validity – Sub-division of property prior to coming into force of the First Master Plan on 05.08.1975 – Effect – Exemption under Annexure XX of the Development Regulations – Scope.
Where the property in question was derived through a series of registered instruments beginning with a partition deed dated 23.04.1949 and subsequent gift deeds of 1972 and 1973, resulting in an identifiable parcel of 11 grounds standing in the name of one of the heirs, and such division stood recognised by the issue of separate pattas prior to 05.08.1975, held, the sub-division had occurred long before the Development Regulations came into force. The subsequent purchase by the respondent in 2008 did not constitute a fresh sub-division attracting Regulation 29 or liability for Open Space Reservation charges.
Once the documentary record – comprising registered partition and gift deeds and revenue pattas – was produced, the burden shifted to the planning authority to prove that the sub-division was not lawfully effected prior to 05.08.1975. In the absence of any such material, a bald assertion that sub-division occurred in 2008 was a mere ipse dixit and could not prevail over unimpeached public documents.
The exemption provided in Annexure XX of the Development Regulations is categorical, that “for the first 3000 square metres – Nil”. The respondent’s site measuring 2229 sq. m. squarely fell within the “Nil” slab. Attempt to recombine it notionally with the erstwhile 21-ground parent estate contrary both to fact and to the plain text of the Regulation, held, impermissible.
No layout having been formed by the respondent, provisions applicable to layout promoters were inapplicable. The levy of ₹1,64,50,000/- towards Open Space Reservation charges was unsustainable.
Held, the High Court rightly quashed the levy and directed refund with interest at 8% per annum. Findings being concurrent and based upon registered instruments and public records, suffered from no perversity warranting interference under Article 136 of the Constitution.2025 INSC 1200 NON- REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3051 OF 2015
CHENNAI METROPOLITAN
DEVELOPMENT AUTHORITY …APPELLANT(S)
VERSUS
DR. KAMALA SELVARAJ …RESPONDENT(S)
J U D G M E N T
ARAVIND KUMAR, J.
1. This appeal, is directed against the judgment and final order dated
21.12.2011 passed by the Division Bench of the High Court of Judicature
at Madras in Writ Appeal No. 303 of 2011 affirming the judgment dated
13.07.2010 rendered by the Single Judge in Writ Petition No. 6495 of
2010, whereby the demand raised by the appellant–Authority for a sum of
₹1,64,50,000/– (Rupees One Crore Sixty Four Lakhs Fifty Thousand
Only) towards Open Space Reservation charges was quashed and a
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direction was issued to refund the said sum with interest at the rate of 8
(eight) per cent per annum.
2. In order to appreciate the controversy, it becomes necessary to
narrate the facts in some detail.
3. The property in question traces its lineage to the estate of one Haji
Syed Ali Akbar Ispahani, who died leaving behind his widow, his sons, and
daughters. The heirs, in order to bring about a complete division of their
respective rights, executed a registered partition deed dated 23 April
1949 (Document No. 6119 of 1949, Registrar of Madras). Under the terms
of this instrument, an extent of about 21 (twenty-one grounds) situated in
Survey No. 126/2 of Nungambakkam Village fell to the share of Syed
Jawad Ispahani, one of the sons.
4. In the years that followed, the members of the Ispahani family
dealt with their shares through a series of registered conveyances. By two
gift deeds dated 30.03.1972 and 20.02.1973 (registered as Document Nos.
4138 of 1972 and 1372 of 1973), Syed Jawad Ispahani gifted to his
son Syed Ali Ispahani two parcels measuring 5¼ grounds and 5¾ grounds,
in all 11 grounds. By a further family arrangement and gifts interse, Syed
Mehdi Ispahani, another son, came to hold about 10 grounds, while Syed
Ali Ispahani remained in possession of the 11 grounds.
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5. The materials on record disclose that even prior to the coming into
force of the First Master Plan on 05 August 1975, these divisions were
recognised, and separate pattas were issued in the name of Syed Ali
Ispahani for his holding of 11 grounds and 52 sq. ft., thereby evidencing
official recognition of the sub-division.
6. On 20.11.1984, out of his holding of 11 grounds, Syed Ali
Ispahani executed a gift deed (Document No. 519 of 1984, Sub-Registrar,
Thousand Lights) gifting away a small portion of 125 sq. ft. to the
Laymen’s Evangelical Fellowship. This left with him a balance extent
of 10 grounds and 2275 sq. ft.
7. On 08 February 2008, the respondent herein, a medical
professional intending to establish a super-speciality hospital, purchased
from Syed Ali Ispahani under a registered sale deed (Doc. No. 1215 of
2008) the aforesaid 10 grounds and 2275 sq. ft., equivalent to about 2229
square metres.
8. Upon purchase, the respondent applied on 28.01.2009 to the
appellant–Authority for planning permission. The application was initially
rejected on the ground that the proposal was hit by Regulation 26(2) of the
Development Regulations. The State Government, however, by G.O.Ms.
No. 84 dated 02.06.2009, granted exemption from Regulation 26(2),
subject to compliance with technical conditions.
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9. Thereafter, by communication dated 30.10.2009, the appellant–
Authority demanded, inter alia, a sum of ₹1,64,50,000/– (Rupees One
Crore Sixty Four Lakhs Fifty Thousand Only) as Open Space Reservation
charges (hereinafter referred to as “OSR”), calculated in lieu of land. The
respondent made a representation pointing out that her site was less than
3000 square metres in extent and hence exempt under Annexure XX of the
Development Regulations. By order dated 03.02.2010, Chennai
Metropolitan Development Authority (hereinafter referred to as
“CMDA”) rejected this representation and insisted on payment.
10. In order to secure permission and avoid delay, the respondent,
under protest, deposited the demanded sum [i.e., 1,64,50,000/– (Rupees ₹
One Crore Sixty Four Lakhs Fifty Thousand Only)] on 06.04.2010 and
simultaneously approached the High Court under Article 226 of the
Constitution. The learned Single Judge, by judgment dated 13.07.2010,
held that the levy was unsustainable and directed refund. The Division
Bench, by the impugned judgment dated 21.12.2011, concurred with the
Single Judge and dismissed the appeal.
11. Shri Balaji Subramaniam, Learned Counsel on behalf of the
Appellant vehemently contended that High Court had erred in overlooking
the fact that the respondent’s holding formed part of a larger property
measuring twenty-one grounds, equivalent to about 4682 square metres.
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He urged that the purchase of 2008 amounted to a fresh sub-division and,
therefore, Regulation 29 of the Development Regulations was attracted. He
further submitted that the exemption contemplated for sites below 3000
square metres could not be claimed, since the parent holding was above the
threshold. Lastly, he submitted that pattas or private family arrangements
cannot take the place of statutory sub-division approval, and that the levy
of OSR charges was, therefore, valid.
12. Shri Vikas Mehta, Learned Counsel on behalf of the Respondent
supported the reasoning of the courts below. He submitted that the
documentary trail commencing with the partition deed of 1949, followed
by the gift deeds of 1972 and 1973, conclusively established that the
respondent’s vendor held an independent parcel of 11 grounds long before
1975. He also specifically urged that the issuance of separate pattas, placed
the matter beyond the pale of controversy. He further submitted that out of
the 11 grounds, 125 sq. ft. had been gifted away in 1984, leaving 10
grounds and 2275 sq. ft., which were conveyed to the respondent in 2008.
The argument that the purchase constituted a fresh sub-division was wholly
misconceived. Learned counsel further contended that Annexure XX of the
Development Regulations, by its plain terms, exempts the first 3000 square
metres, and since the respondent’s site is 2229 square metres, no OSR is
leviable. Hence, he prayed for dismissal of the appeal.
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13. We have heard Shri Balaji Subramaniam, Learned Counsel
appearing on behalf of the appellant–Authority and Shri Vikas Mehta,
Learned Counsel appearing on behalf of the respondent and we have given
anxious consideration to the rival submissions and minutely examined the
material on record.
14. The fulcrum of the appellant’s case rests on the proposition that the
property must be viewed with reference to the parent extent of 21 (twentyone) grounds and that the sub-division occurred only in 2008 namely after
regulation coming into force. We find no merit in this contention. The
documentary record demonstrates otherwise. The partition deed
dated 23.04.1949 (Doc. No. 6119/1949) clearly disclose 21 (twenty-one)
grounds in Survey No. 126/2, Nungambakkam Village, was allotted
to Syed Jawad Ispahani. By two registered gift deeds, namely, one
dated 30.03.1972 (Doc. No. 4138/1972) gifting 5¼ grounds, and another
dated 20.02.1973 (Doc. No. 1372/1973) gifting 5¾ grounds, said Syed
Jawad Ispahani conveyed in total 11 (eleven) grounds to his son Syed Ali
Ispahani. These deeds, executed years prior to 05 August 1975, are
unimpeached, form part of the record, and signify a lawful familial
conveyance or arrangement.
15. In pursuance of these gifts, separate pattas were issued
recognising 11(eleven) grounds and 52 sq. ft. in the name of Syed Ali
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Ispahani. The issuance of pattas, a public act of the revenue authority,
evidences official acknowledgment of an independent parcel. It is well
settled that revenue entries, though not constituting title, corroborate
possession and demarcation, and when read alongside registered
conveyances, they establish the existence of a separate holding.
Subsequently, on 20.11.1984, Syed Ali further gifted 125 sq. ft. out of his
11 (eleven) grounds to a charitable body, leaving 10 grounds and 2275 sq.
ft. This sequence of transactions shows, with clarity, that well before the
respondent’s purchase in 2008, the land had long been treated as a
separate, identifiable holding. The respondent’s sale deed
of 08.02.2008 (Doc. No. 1215/2008), conveying 10 grounds from Syed
Ali, is therefore but the culmination of this historical chain of transactions.
16. Once this series of registered deeds and pattas were produced and
the initial evidentiary burden was discharged, same shifted to the
appellant–Authority to establish that, notwithstanding these instruments,
the property was not lawfully sub-divided prior to 05 August 1975. This
burden has not been discharged. No material has been placed to show that
the pattas were procured post-1975, nor is there any evidence that the subdivision lacked recognition under planning law as it then stood. The
appellant’s bald assertion that sub-division occurred in 2008 is a mere ipse
dixit, devoid of proof, and cannot prevail over contemporaneous registered
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instruments whose authenticity is not in dispute. The High Court was right
in relying upon these materials to hold that the sub-division existed prior to
1975 and same cannot be faulted. To disturb such a finding would amount
to reappreciation of evidence, which this Court in exercise of its
jurisdiction under Article 136 will not ordinarily undertake, particularly
where the findings are concurrent, supported by public documents, and
findings suffer from no perversity.
17. On the second limb, Annexure XX of the Development
Regulations is categorical: “for the first 3000 square metres — Nil.” The
respondent’s holding being 2229 square metres falls squarely within the
Nil slab. The attempt to recombine it notionally with the erstwhile 21-
ground parent estate is contrary both to fact and to the text of the
regulation. To accept such a construction would be to ignore the legislative
exemption and retroactively enlarge the liability.
18. The High Court was also correct in observing that the respondent
had not formed any layout. Consequently, there was no occasion to invoke
provisions meant for layout promoters. The respondent merely sought to
develop her site by constructing a hospital.
19. We find ourselves in respectful agreement with the conclusions of
the Single Judge and the Division Bench. The findings are based upon an
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appreciation of registered instruments and public records, and cannot be
characterised as perverse.
20. This Court has consistently held that in the exercise of jurisdiction
under Article 136, interference is warranted only where manifest illegality,
perversity, or grave miscarriage of justice is demonstrated. No such
infirmity is made out here. On the contrary, the concurrent reasoning of the
courts below is in consonance with both fact and law.
21. In the result, the appeal being bereft of merit and is accordingly
dismissed. The direction of the High Court to refund the sum of
₹1,64,50,000/– (Rupees One Crore Sixty Four Lakhs Fifty Thousand
Only) with interest at 8% per annum, to the extent not already complied
with, shall stand affirmed and appellant is directed to pay the said amount
to the respondent(s) within six (6) weeks from today. There shall be no
order as to costs. All pending applications stands disposed.
.……………………………., J.
[ARAVIND KUMAR]
.……………………………., J.
[N.V. ANJARIA]
New Delhi;
October 08th, 2025.
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