Evam Vikas Parishad & Anr Vs. Friends Coop. Housing Society Ltd. & Anr
 INSC 234 (24
K. Ramaswamy, K. Hansaria B.L. (J)
1996 AIR 114 1995 SCC Supl. (3) 456 1995 SCALE (3)604
O R D
have heard learned counsel on both sides. Since there is a conflict of
decisions rendered by the High Court of Allahabad on interpretation of
exception (iii) to s.59(1) (a) of the U.P. Avas Evam Vikas Parishad Adhiniya
1965 (for short, 'Adhiniyam'), we are inclined to resolve the conflict.
under s.3 was published on September 3, 1977.
Notification under s.28 of the Adhiniyam was published on June 7, 1982. Immediately the appellant had
sought for the approval of the Government through the letter dated July 27, 1982. The Government approved the schem
on August 24, 1982. The declaration under s. 32 of the
Adhiniyam was published on February 28, 1987.
The respondents filed writ Petition No. 14708/84. The Division Bench following
the ratio in writ Petition No. 17372/87 dated March 18, 1993 titled Narinder
Mohan Foundation Trust v. Special Land Acquisition Officer, Meerut, allowed the
writ petition declaring that since prior approval of the Government was not
obtained under exception (iii) to s. 59(1) (a) of the Adhiniyam, the
notification under s. 28, which is equivalant to s.4(1) of the Land Acquisition
Act, 1890 and the declaration under s.32, which is equivalent to s.6
declaration, are invalid and inoperative. Thus this appeal by special leave.
part of s.59(1) (a) reads thus:
Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam 1965 (Except in relation to
those housing or improvement schemes which have either been notified under s.32
of Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 before the
declaration of the area comprised therein as development area or which having
been notified under s.28 of the said Adhiniyam before the said declarations are
thereafter `approved' by the State Government for constinuance under the said Adhiniyam
or which are initiated after such declaration "with the approval" of
the State Government hereinafter in this section referred to as the Special Avas
Parishad Schemes shall in respect of a development area remain
suspended...." A reading thereof would indicate that for the development
of the area the provision of the Adhiniyam shall remain suspended except in
relation to three categories of the housing scheme or improvement schemes
enumerated under the Act, namely, :
Schemes which have been notified under s. 32 of the Adhiniyam before the
declaration under s.3 of the Act;
Schemes for which notification under s.28 of the Adhiniyam has been issued
before the notification under s.3 of the Act and are thereafter approved by the
State Govt. for continuance; and
Schemes which are initiated after the declaration under s.3 of the Act with the
approval of the State Government.
to be seen that the language employed therein is that the approval of the State
Government is necessary.
is whether it would be prior approval or approval given subsequent to the
notification under s.28 or declaration under s.32 is valid in law. If prior
approval would have been a pre-condition for further steps, the Act would have
said so. This not having been done, it seems to us what is material is to
obtain approval of the State Government. The reason appears to be that when the
schemes have been framed, the land suitably required for effective
implementation of the scheme alone should be acquired and not in excess in the
guise of framing the schemes.
Court in Life Insurance Corpn. of India v. Escorts Ltd. & Ors, 1986 (1) SCC
264, considering the distinction between "special permission" and
"general permission", "previous approval" or "prior
approval" in paragraph 63 held that "we are conscious that the word
"prior" or "previous" may be implied if the contextual
situation or the object and design of the legislation demands it, we find no
such compelling circumstances justifying reading any such implication into s.29(1)
of the Act". Ordinarily, the difference between approval and permission is
that in the first case the action holds good until it is disapproved, while in
the other case it does not become effective until permission is obtained. But
permission subsequently granted may validate the previous act. As to the word
"approval" in s. 33(2) (b) of the Industrial Disputes Act, it was
stated in Lord Krishna Textiles Mills Ltd. v. Workmen, 1961(1) L.L.J. 211 at
215-16 that the management need not obtain the previous consent before taking
any action. The requirement that the managment must obtain the previous consent
before taking any action. The requirement that the managment must obtain
approval was distinguished from the requirement that it must obtain permission,
of which mention is made in s.33(1).
seen that the approval envisaged under exception (iii) of s.59(1) (a), is to
enable the Parishad to proceed further in implementation of the scheme framed
by the Board.
approval is given by the Government, the Board may not effectively implement
the scheme. Nevertheless, once the approval is given, all the previous acts
done or actions taken in anticipation of the approval gets validated and the
publications made under the Act thereby becomes valid.
question then is whether present is a fit case for our interference under
Art.136. On similar facts when the appellant itself has compromised with others
and the same has not been extended to the respondents, we think that it is not
a fit case for our interference. The respondents' society also consist of the
members who need sites for construction of their houses. Right to shelter is a
fundamental right, which springs from the right to residence assured in Art.19(1)
(e) and right to life under Art.21 of the Constitution. No doubt their
construction has also to be in accordance with lay out and building rules but
that would not be a ground to refuse permission to them when they approached
the authorities to sanction the same in accordance with law.
law is declared accordingly, but the appeal is dismissed.