Raipur Development Authority Vs. Anupam Sahkari
Griha Nirman Samiti & Ors  INSC 164 (30 March 2000)
appellant raises the question of interpretation of sub-sections (2) and (3) of
Section 50 of the M.P. Town and Country Development Act, 1973, (for short the
Act) read with Rule 18 of the M.P. Town and Country Development Rules, 1975
(for short the Rules).
appeal is directed against the judgment and order dated 25.8.1988 of the High
Court, which allowed the writ petition of the respondent no.1, by quashing the
draft scheme for the development in respect of some of the villages including Shankar
Nagar of Raipur, to which we are concerned,
published under Section 50 (3) of the Act in M.P.
dated 4.9.1987/11.9.1987 and by holding in his favour deemed permission under
Section 30(5) of the Act to develop its land.
hereby give some of the bare factual matrix to appreciate the controversies in
this appeal. The appellant is a statutory authority under the Act. The
respondent no.1 is a Cooperative Housing Society registered under the M.P.
Housing Act, 1960. The aforesaid 1973 Act has been enacted to make provisions
for planning, development and use of land for proper development, with a view
to ensure that town planning schemes are made effectively under Chapter IV of
the Act. The State Government through notification constitutes planning areas
and defines its limit. Section 14 enjoins the Director to prepare a development
plan. Such development plan is sanctioned by the State Government, which for
the Raipur city was sanctioned on or before
9.9.1976. Chapter VI deals with control, development and use of land. Under
Section 24, the overall control, development and use of land vests in the State
Government subject to the rules framed under the Act.
25 enjoins, the use and development of the land must conform to the provisions
of the sanctioned development plan, Section 26 prohibits development of any
land without the permission in writing of the Director. Section 27 refers to
the development undertaken by the Union
or the State Government. Section 28 refers to the development undertaken by a
local body or any authority constituted under the Act, while Section 29 refers
to the development of the land by any other person. Section 30 empowers the
Director to grant permission conditionally, unconditionally or refuse
permission while sub-section (5) refers to a case, where the authority fails to
communicate his order on ones application under Section 29 for development
within 60 days of its making, then permission would be deemed to have been
granted after expiring of the said period. Under Section 50(1), the Town and
Country Development Authority may, at any time, declare its intention to
prepare a town development scheme which may be published within thirty days
thereafter under sub- section (2). Under sub-section (3) the draft scheme is to
be published within two years of the publication under sub-section (2), in the
form and the manner as prescribed under Rule 18 and within 30 days of this
publication, objections and suggestions could be filed before the concerned
authority who has to consider and decide the same and make if any consequential
the date of the final publication of the scheme under sub-section (7),
restrictions are imposed for the use and development of the land by virtue of
Section 53, which has to be only in accordance with the development authorised
by the Director under Section 54.
case in the writ petition before the High Court was that its society provides
for its members, who belong to economically weaker section, plots for the
construction of houses. It purchased 25 acres of agricultural land in Shankar Nagar,
Circle No.1, in the year 1985-86. This was purchased, since the State
Government through its policy decision dated 30.10.1981 decided to encourage
housing societies to construct houses in towns of over two lacs of population.
It stipulated, 25% of the available land was to be given to the housing
societies for construction of houses and in case government lands falls short
of this, it may acquire any land for the societies.
other hand, according to respondent no.1, the appellant published its intention
to prepare a development scheme under sub-section (2) of Section 50 through
notification in the M.P. Gazette dated 30.3.1985 including the village Shankar Nagar,
Raipur. Respondent no.1 during this period applied on 2.6.1986 to respondent
no.2, the Regional Joint Director for permission to develop its land under
Section 29 and stated that necessary fees shall be deposited, after permission
is given. Respondent no.1 through another application applied for no objection
certificate to respondent no.3 on 1.1.1987. On it an order dated 16.11.1987 was
passed that no such certificate could be issued, as draft development scheme
has already been published. With reference to the first application dated
2.6.1986, respondents case is, since respondent no.2 did not communicate any of
his decision either granting or refusing the permission, hence after 60 days of
the said application, it matured into deemed permission by virtue of sub-
section (5) of Section 30. Next challenge to the draft scheme is that it was
not published within two years from the date of publication under sub- section
(2) of Section 30 viz., from 30.3.1985 in term of sub-section (3) of Section 50
hence the same is non est and inoperative. It is also submitted that Rule 18(2)
requires publication of the draft scheme under sub-section (3) of Section 50,
in the gazette and in one or more local paper which means publication in both,
i.e., in the gazette and the newspaper has to be simultaneously within a period
of two years and the publication in the newspaper was only made admittedly on
7.11.1987 which itself is more than two months from the date of publication
under sub-section (3) of Section 50 in the gazette. Thus for all these reasons
the draft scheme published is invalid and inoperative. Aggrieved by order dated
20.11.1987 passed by the Joint Director, town and country planning, refusing
permission for development and order dated 1.11.1987 issued by Chief Executive
Officer, Raipur Development Authority refusing to issue no objection
certificate, the respondent No. 1 filed the aforesaid writ petition which is
allowed by the impugned order by which the aforesaid draft scheme of the
appellant in respect of village Shankar Nagar of Raipur was quashed. It also
held that respondents application dated 2.6.1986, after expiry of 60 days, in
the absence of any order qualified as deemed permission under sub-section (5)
of Section 30 of the Act.
by this the appellant have filed the present appeal.
first contention raised for the appellant is, whether on the facts and
circumstances of this case, in view of sub-section (5) of Section 30 of the
Act, could it be said it to be a case of deemed permission. For the ready
reference Section 30 is quoted hereunder:-
Grant or refusal of permission (1) On receipt of an application under Section
29 the Director may, subject to the provisions of this Act, by order in writing
(a) grant the permission unconditionally;
the permission, subject to such conditions, as may be deemed necessary under
order granting permission subject to conditions, or refusing permission shall
state the grounds for imposing such conditions or for such refusal.
Any permission granted under sub-section (2) with or without conditions shall
be in such manner as may be prescribed.
Every order under sub-section (2) shall be communicated to the applicant in
such manner as may be prescribed.
the Director does not communicate his decision whether to grant or refuse to
the permission applicant within [sixty days] from the date of receipt of his
application, such permission shall be deemed to have been granted to the
applicant on the date immediately following the date of expiry of [sixty days];
that in computing the period of [sixty days] the period in between the date of
requisitioning any further information or documents from the applicant and the
date receipt of such information or documents form the applicant shall be
sub-section (5), if the Director does not communicate his decision either
granting unconditionally or conditionally or refusing the permission then
within 60 days from the date of the receipt of such application, the permission
would be deemed to have been granted. But significantly proviso to it extends
this period by excluding the period during which any further information or
document is requisitioned from the applicant to the date of its receipt. It is
not in dispute that respondent no.1 applied for the development of the land
under Section 29 on 2.6.1986. The 60 days expires on 2.8.1986. The respondent
case is till this date the Director has neither refused nor granted the
permission hence it would be deemed to have been granted. On the other hand,
appellant strongly relies on the five communications send by the Joint
Director, town and country planning, to respondent no.1 seeking certain informations
with regard to the development permission which was not forthcoming, for this
reason, the case of the respondent was closed, which is evidenced from the
letter dated 6.10.1986. Thus question of deemed permission would not arise in
view of the said proviso. This letter refers to the said five earlier
communications, namely, letters dated 18.6.1986, 1.7.1986, 21.7.1986, 31.7.1986
and 9.9.1986. The letter records:
to the above letters with reference to the above subject. The information asked
from you is still not received. Therefore the case is closed and filed.
for full more than four months, since making of the said application the
information was not forthcoming.
contents of this letter clearly reveal that the case of the respondent no.1 was
ordered to be closed and filed. This letter reveals that period of sixty days
has not come to an end, in view of the said proviso as information was not sent
as asked for. So question of deemed permission would not arise. Then further it
constitutes to be a case of rejection of its application.
letter was communicated to respondent no.1. He did not file any appeal or
revision as contemplated under Sections 31 and 32 of the said Act. Thus we have
no hesitation to hold that the High Court committed error in recording the
finding that it is a case of deemed permission.
submission on behalf of the respondent is that the draft scheme was not
published within two years from the date of publication of the declaration
under sub-section (2) of Section 50. Submission is that declaration under
sub-section (2) was published on 30.3.1985, hence the publication under
sub-section (3) of Section 50 of the draft scheme made on 4.9.1987 is beyond
the period of two years.
other hand the case of the appellant is that publication under sub-section (2)
was made on 6.9.1985 and since the draft scheme under sub-section (3) of
Section 50 was published in the gazette on 4.9.1987 it is within the period of
two years, hence no violation.
50 and its sub-sections (1), (2) and (3) are quoted hereunder:-
Preparation of town development schemes. (1) The Town and Country Development
Authority may, at any time, declare its intention to prepare a town development
Not later than thirty days from the date of such declaration of intention to
make a scheme, the Town and Country Development Authority shall publish the
declaration in the Gazette and in such other manner as may be prescribed.
Not later than two years from the date of publication of the declaration under
sub-section (2) the Town and Country Development Authority shall prepare a town
development scheme in draft form and publish it in such form and manner as may
be prescribed together with a notice inviting objections and suggestions from
any person with respect to the said draft development scheme before such date
as may be specified therein, such date being not earlier than thirty days from
the date of publication of such notice.
not disputed that there are two publications under sub-section (2) in the M.P.
Gazette, one is dated 30.3.1985 and the other is dated 6.9.1985. Both the
aforesaid gazette publications record intent of the appellant to prepare town
development scheme under sub-section (2) of Section 50. It is not revealed from
the records as to why two such publications were made for the same purpose on
two different dates. Still on these facts question that arises for our
consideration is, as to what would be the starting point for computing the
period of two years. In our considered opinion, it would not have any ill
consequential effect on the appellants, on account of two such publication. Any
intention even if published under sub- section (2) of Section 50 if it is made
to lapse, not proceeded with for any reason and for some reasons another such
publication is made, in the absence of any embargo under the Act or Rules to
which we have not been pointed, it would not invalidate this second such publication.
In other words, even if after publication of the first intention, either it is
given a go-by or otherwise on rethinking, if another such intention is
published it would be a valid notice when it is published under sub-section
(2). If that be so, the period of limitation would start from the later such
publication. In the present case it would be 6.9.1985.
appellants were persuing its draft scheme only in pursuance to the publication
made on 30.3.1985, the question of limitation would have gained relevant and
valid consideration but when it published another such intend subsequently, the
period has to be from this later publication. Admittedly the publication under
sub-section (3) of Section 50 was made on 4.9.1987 which is within period of two
years from the date of the publication dated 6.9.1985 under sub-section (2).
Thus the draft scheme cannot be held to be invalid on this score.
it is submitted that period of two years as required by Section 50 sub-section
(3) is a period between the date of publication under sub-section (2) and the
date of publication under sub-section (3) and it has to be in such form and
manner as prescribed under the rules. Rule 18(2) prescribe the form which
requires publication in the M.P. Gazette and one or more local Hindi newspaper.
Thus publication would be complete only when publication both in the gazette
and newspaper is made and since the publication in the newspaper was made more
than two months after the date of publication in the gazette as aforesaid, not
being published within two years, it is contrary to the requirement of the
rules. It could be valid only, if both the publications in the gazette and
local newspaper are made simultaneously. The High Court upheld this contention
and held draft scheme to be invalid on this score. We have considered the
finding of the High Court and the submission of learned counsel for the
respondent. To appreciate this Rule 18 (1) and (2) is quoted hereunder:- Rule
18.- Preparation of Town Development Schemes.
The Town and Country Development Authority shall publish a notice under
sub-section (2) of Section 50 inn Form XIII declaring the intention of making a
town development scheme in the Gazette and by means of an advertisement in one
or more local Hindi newspaper. Copies thereof shall also be available for
inspection in the office of the Town and Country Development Authority and
Regional Offices of Town and Country Planning Department concerned.
Not later than two years from the date of publication of the declaration in the
form of the notice referred to in sub-rule (1) the Town and Country Development
Authority shall publish a public notice under sub-section (3) of Section 50 in
Form XIV in the Madhya Pradesh Rajpatra and in one or more local Hindi
newspaper to give due publicity intimating that the draft town development
scheme has been prepared and is available for inspection in the Office of the
Town & Country Development Authority and regional office of Town and
Country Planning Department concerned during office hours inviting objections
and suggestions with respect to the said draft within a period of thirty days
from the date of publication of such notice.
18 prescribes the form and manner of such publication. Sub-rule (1) refers to
the publication of notice under sub-section (2) of Section 50 to be in Form
XIII of the intention of making a town development scheme.
rule (2) refers to the publication of notice of draft scheme contemplated under
sub-section (3) of Section 50 to be in Form XIV. This further records, it
should be published in the Madhya Pradesh Gazette and in one or more local
Hindi newspaper to give due publicity that the draft town development scheme
has been prepared and is available for inspection in the office of the Town and
Country Development Authority, inviting objections and suggestions with respect
to the said draft. If we read in coherence both Section 50 sub-section (3) and
sub-section (2) with Rule 18, the limitation of two years starts from the date
of the publication under sub-section (2) of Section 50 in Form XIII and ends
with the publication of draft scheme under sub-section (3) of Section 50 in
Form XIV, when it is published in Madhya Pradesh Gazette. The publication in
one or more local Hindi newspaper as stated in sub-rule (2) of Rule 18 is to
give due publicity to the public at large so that they may file their
objections to the draft scheme.
publication in Gazette is also notice to the public at large it is always open
for the legislature, as in the present case, to give extra publicity to the
public through the publication in any local daily. In fact, Rule 2 with respect
to the publication in the Hindi newspaper records:
one or more local Hindi newspaper to give due publicity intimating that the
draft town development scheme has been prepared and is available for
supplied} However, for computing the period of two years, the moment it is
published in the official gazette it is to be taken to be the date of
publication under sub-section (3) of Section 50. As we have said, further
publication in one or more local Hindi newspaper is required only for giving
due publicity, for making larger section of people aware of such a scheme.
(2) of Rule 18 requires:
later than two years from the date of publication of the declaration in the
form of the notice referred to in sub-rule (1) the Town and Country Development
Authority shall publish a public notice under sub-section (3) of Section 50 in
Form XIV in the Madhya Pradesh Rajpatra (Madhya Pradesh Govt. Gazette)..
when the publication in form XIV in the Madhya Pradesh Gazette is made, the
compliance of the form and procedure of this Rule is complete. So if this
publication is made within two years of the publication under sub-section (2)
of Section 50, no invalidity could be attributable to any scheme under it. In
view of this, it is not necessary to go into another question, whether this
compliance is mandatory or directory. The submission that for computing period
of two years the compliance of publication would only be completed if it is
also published simultaneously in the local newspaper has no merit. There are
two parts of sub-rule (2) of Rule 18. The first part we have quoted above and
the second part which is disjoint with the word and is for another purpose,
which is quoted hereunder: ..and in one or more local Hindi newspaper to give
due publicity intimating that the draft Town and Country Development Scheme has
been prepared and is available for inspection.inviting objections and suggestions.within
a period of thirty days of the publication of such notice.
later part of this rule confers a right on persons to file objection or give
suggestion to the published draft scheme. So for counting the period of thirty
days, it is the date when the draft scheme is published in the newspaper is to
be taken as the date of the starting point.
there are two possible interpretations, the one which subserve to the intend of
the legislature is to be accepted. The object of the aforesaid Act is for
planned development and thus the interpretation, which upholds any such scheme
should be followed. Heydons principle is now well recognised in interpreting
any enactment. It lays down that courts must see, (a) what was the law before
making of the Act; (b) what was the mischief or defect for which the law did
not provide; (c) what is the remedy that the Act has provided; (d) what is the
reason of the remedy. It states that courts must adopt that construction which
suppresses the mischief and advances the remedy. This has been approved by this
count in number of decisions. One of and Anr., 1981 (4) SCC 173.
remedy that aforesaid Act has provided is for smooth and fast development of
the areas brought under the Act through development schemes. We find the
interpretation given by the High Court which not only impedes advancement of
this remedy but is contrary to the provisions of this Act. So, we have no
hesitation to hold that the High Court committed an error in holding that publication
in the M.P.
and local newspaper must be simultaneously.
all the aforesaid reasons we have no hesitation to hold, simultaneous
publication both in the gazette and any local Hindi newspaper even if not made
would not invalidate the draft scheme.
submission is publication under sub-section (2) of Section 50 has to be within
30 days from the date of declaration of the intention to prepare a development
scheme under sub-section (1). In other words, submission is unless publication
under sub-section (2) is made within 30 days from the date of declaration under
sub-section (1), the draft scheme must fall as this has not been done. Firstly,
we do not find any such material on record as to when declaration of intention
to make such draft scheme was made nor we find any such submission made by
respondent no.1 before the High Court in the writ petition. Thus it has no
merit and hence rejected.
it is submitted that respondent no.1 application dated 1.1.1987 to the Chief
Executive Officer of the appellant for the grant of no objection certificate
was rejected on 16.11.1987 by him and also by the Joint Director, Town and
Country Planning through order dated 20.11.1987 are liable to be set aside, as
there is no provision under the Act or the Rules, requiring such no objection
certificate. This is misconceived which we shall be referring hereinafter. It
seems respondent no.1 made two applications for the development. First is on
2.6.1986 and the second is, as aforesaid, dated 1.1.1987.
the 1st application dated 2.6.1986, we have already recorded that there is no
deemed permission under sub-section (5) of Section 30. In fact, proceeding in
pursuance to the same was closed for the lack of response from the respondent
in respect of information sought. The second application is dated 1.1.1987 in
which the respondent-society states about purchasing certain lands in villages
and this society itself seeks issuance of no objection certificate from the
appellant. However, the Chief Executive Officer rejected this through an order
dated 16.11.1987 as the land in question which is situate in, the village Shankar
Nagar, in which a draft scheme, as aforesaid, has already been published.
Admittedly when a draft scheme is published a sanction could only be in terms
of the said scheme and no independent development plan in contradiction of the
same could be sanctioned. Similarly, through letter/order dated 20.11.1987 the
Joint Director, Town and Country Planning also did not approve the application
of respondent no.1 as applied area comes under the residential scheme of Raipur
Development Authority which has already been published in the gazette. We do
not find any illegality in the said two orders. This apart, respondent no.1, if
aggrieved, had a remedy either by preferring an appeal or revision against it
under Section 31 or 32 of the Act. Even otherwise, we feel if any development
scheme is published either by the Union Government, State Government or local
authority any application by any person under Section 29 for development cannot
have its way in contradiction to such scheme. The scheme was framed in the year
1985, because of this long litigation delay is being caused in implementing the
same with full force. The courts should normally refrain from interfering with
the same, unless it is violative of the Act, rule or any constitutional
all the aforesaid reasons, we find merit in this appeal and hold that the High
Court committed error in quashing the draft scheme and allowing the application
of respondent no.1. Thus we allow the present appeal and set aside the judgment
and order dated 25.8.1988 passed by the High Court. Costs on the parties.