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5. The further condition imposed by the 3rd respondent to provide exclusive frontage for the said open space area opening into the main road is unconscionable in law and contrary to the spirit of the Act. Such stipulation is in terrorum. The relief sought is to declare Rule 19(b)(I)(v) of the DCR void. That apart sanction is sought without insisting on the rule.

6. We may notice the relevant contents of the counter affidavit filed by the respondent State. The case set up inter alia is that the CMDA had carried out necessary survey and prepared the master plan which lays down policies and programmes which are necessary to regulate the growth of the area and also to ensure its economic viability, social stability and sound management for the present and the foreseeable future and orderly development required the same. The DCR was an integral part of the master plan. Any person wanting to develop a property within the Metropolitan area must apply for permission and the CMDA is empowered to enforce such conditions and restrictions as was necessary under the rules. It is in public interest. If the ownership of the open OSR area were to be allowed to vest with the original land owner, then the concerned owner would have a chance to convert the same for construction, the area specially reserved as open space, for communal recreation by suppressing the said fact after passage of time. Hence, it is necessary that the open space area should be vested with the civil authorities who are responsible for maintenance of parks and play fields in the sites. The open space reservation is provided to create lung space in the city and to have sufficient open space for the use of society.

i) pay the following charges

a) Development charges: Rs. 82,000/-

b) Security Deposit for the building: Rs. 8, 00, 000/-

ii) hand over the 10% Open Space Reservation Area reserved and shown in the plan to the third respondent through a registered gift deed.

The petitioner has not paid the security Deposit, but however obtained a direction from this Hon'ble Court to accept the Bank Guarantee towards the security Deposit and furnished the same to the second respondent along with his consent letter dated 28.02.1995 accepting the conditions stipulated in letter No. 82/ 17789 /94, dated 13.09.1994. In the said letter dated 13.09.1994 of the second respondent, one of the condition is that the petitioner should hand over the 10% Open Space Reservation Area to the Commissioner, Corporation of Madras, free of cost, through a· registered gift deed, which is a lawful condition under Development Control Rule 19 (b)(II) (VI - C). It is respectfully denied that the petitioner has not made any representation to relax the condition of gifting of the Open Space Reservation Area and the same was never under the consideration of the second respondent.” “Para 7. It is submitted that the second respondent has requested the petitioner to transfer the 10% Open Space Reservation Area free of cost, through a registered gift deed in favour of the third respondent as per the provisions of Development Control Rules 19 (b) (II) (VI - C), under group development regulations and not as contended by the petitioner under rule 19 (b) (I) (V), which related to special Buildings. The Development Control Rule 19 (b) (II) (VI - C) is as follows:

The Development Control Rule is the integral part of the Master Plan and was framed under section 17 of the Town and Country Planning Act. The second respondent exercised the power vested in it, since the total extent of the petitioner's site is more than 10,000 m2, the insisting of the requirements of reservation of 10 % Open Space Reservation Area and consequent direction to the petitioner to hand over the same to the third respondent through a registered gift deed as per Development Control Rules 19(b)(II) (VI- C) is well within the jurisdiction of the second respondent.” “Para 8. The petitioner is challenging the concept of reserving the 10 % area for open space and recreational purposes. This is a statutory requirement under Development Control Rule 19 (b) (ii) (vi - c) for all the proposals of group development, where the extent of the site is more than 10,000 m2. Further the city is fastly developing and individual houses are being demolished and multi family apartments are constructed in the same site where there was only one family residing therein earlier. The intense vertical developments make the city more dense demanding more water, pollution free air, noise free atmosphere etc. The city is already over congested and therefore more open spaces have to be created wherever new developments or redevelopment takes place. The open spaces so created serve as long space to the city benefiting the community at large. The open space enable to make the environment clean and provide fresh air, besides facilitating the ground water recharge in a city where water scarcity is a perennial problem.” “Para 9. The petitioner has also questioned the transfer of open space reservation in favour of the Madras Corporation. It is submitted that in practice, the developers take up the development of properties and construct the buildings providing necessary open spaces as per Development Control Rules. After completion of the construction they sell out the building in portions to various persons and later the open space reserved become no man's land without any care for its maintenance. If the ownership of the open space reservation for communal and recreational purpose, suppressing the facts later, after passage of time. Therefore, it is essential that the ownership of the open Space Reservation area should be vested with the civic authority, which is responsible for the maintenance of the parks and play fields in the city. The civic authority is maintaining many parks and play grounds such as Elliot's Beach Garden, Anna Nagar, Thiru Vi Ka park etc. Which are maintained very well. It is also therefore essential that the open Space Reservation Area should be located in a location shape and size which is accessible from the public road not only to the Civic Authority but also to the general public without any restriction. Therefore, transferring the OSR area to the Civic body will not amount to talking away the rights of the property owner and it is intended for the benefit of the community at large.” “Para 10. In the case of the petitioner, it is submitted that the 10 % Open Space Reservation Area is very close to his hotel buildings. Therefore, if the ownership were to be vested with the petitioner, it is most likely to be misused by the petitioner for Hotel related activities, rather than allowing it to the use of general public. It is also likely that over a period of the time the OSR area would be misused for commercial purposes by the petitioner under the guise of improving it.
The petitioner has also expressed that the maintenance of the 10 % Open Space Reservation Area will be done by him. It is submitted that the entrusting the maintenance of the Open Space Reservation area is at the discretion of the second and third respondents. The development Control Rule 19 (a) (II) (Vii) prescribes as follows:
" The authority reserves the right to enforce the maintenance of such reserved land by the owner to the satisfaction of the Authority or order the owner to transfer the land to the authority or local body designated by it, free of cost, through a deed, to the Authority or the local body designated by the authority as case may be, reserve the right to dedicate on entrusting the maintenance work to institution / individual o merits of the case.