Chennai Metropolitan Dev. Authority vs Dr. Kamala Selvaraj

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)

JUDGMENT

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

Signature Not Verified ₹1,64,50,000/– (Rupees One Crore Sixty Four Lakhs Fifty Thousand Digitally signed by CHETAN ARORA Date: 2025.10.08

Only) towards Open Space Reservation charges was quashed and a 17:23:54 IST Reason:

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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.

4 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 (twenty-

one) 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

6 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 sub-

division 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

7 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

8 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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