U.P. Avas
Evam Vikas Parishad Vs. Ram Krishna & Ors [2002] Insc 72 (13 February 2002)
G.B.
Pattanaik, S.N. Phukan & S.N. Variava
Appeal (civil) 1380 of 1991 WITHC.A. No. 1807 of 1986.
S. N.
VARIAVA, J.
These
Appeals are against a Judgment dated 3rd October, 1985.
Briefly
stated the facts are as follows:
The
area in question was declared as a development area on 20th August, 1974. On 8th, 15th and 20th March, 1980,
the scheme in question was notified under Section 28 of the Uttar Pradesh Avas Evam
Vikas Parishad Adhiniyam, 1965 (hereinafter referred to as the Adhiniyam). The
State Government approved the scheme on 11th June, 1982. The scheme came to be notified
under Section 32 of the Adhiniyam on 28th August, 1982. The Respondent then challenged the
scheme on the ground that the scheme having been notified prior to the sanction
of the State Government was null and void and could not be given effect to.
This submission found favour with the High Court, who allowed the writ petition
by the impugned judgment.
Thus
the question for consideration is whether a scheme notified under Section 28 of
the Adhiniyam is liable to be struck down if it has not been approved by the
State Government prior to its publication. This question has been answered by
this Court in the case of U.P. Avas Evam Vikas Parishad & another vs.
Friends Coop. Housing Society Ltd. and another reported in 1995 Supp (3) S.C.C.
456. In this case it has been held that prior approval was not necessary. It is
held that the Petitioner Board could not implement the scheme until approval
was given by the State Government. It is held that once the approval is given,
all the previous acts done and actions taken get validated and the publications
made under the Adhiniyam also become valid. This decision covers this case
squarely.
However,
when this matter reached hearing before a Bench of this Court it was referred
to a larger Bench, inter alia with the following observations :
"When
the matters were taken up, learned counsel stated that these appeals stand concluded
by a decision of this Court in U.P. Avas Evam Vikas Parishad and another vs.
Friends Cooperative Housing Society Ltd. and another reported in 1995 Supp (3)
S.C.C. 456 and, therefore, the appeals deserve to be allowed. We have looked
into the said decision and are of the opinion that the said decision requires
consideration by a Bench of three Judges. The learned Judges in the said
decision read initiation of the Scheme under Section 28 of the Adhiniyam and
whereas the initiation of the Scheme is to be found under Section 16 of the Adhiniyam.
Unless there is approval of the State Government of the Scheme initiated under
Section 16 of the Adhiniyam, such a Scheme cannot be published under Section 28
of the Adhiniyam. There is no approval of the State Government to the Scheme
initiated by the Parishad on record, and in the absence of such an approval,
any subsequent approval by the State Government of the Scheme published under
Section 28 of the Adhiniyam would not cure the defect.
Since
this Bench consists of two Judges, it cannot take a view contrary to the
decision taken in the case of U.P. Avas Evam Vikas Parishad and another
(supra), which was rendered by two Hon'ble Judges, we are, therefore, of the
opinion that these matters require to be decided by a Bench of three Hon'ble
Judges." Hence this matter has been placed before this Bench.
At
this stage certain provisions of the Adhiniyam may be looked at.
Section
16 of the said Adhiniyam provides that the Board may frame a housing or
improvement scheme
(a) its
own motion or
(b) at
the instance of a local authority or
(c) when
it is so directed by the State Government.
It
further provides that the Board may refuse to frame a scheme at the instance of
a local authority, under certain contingencies, in which case it shall intimate
its decision to the local authority within a year from the date of receipt of
the request. Section 16 further provides that the local authority may on
receipt of such intimation appeal to the State Government and the order passed
by the State Government would be binding on the Board.
Section
17 lays down matters which are to be provided for in a scheme.
Section
18 to 27 deal with different types of schemes which could be framed by the
Board. In this matter we are not concerned with the different schemes. Mr.
Sunil Gupta however drew the attention of this Court to Section 18(2), which
provides that the State Government could direct the Board to undertake a
housing or improvement scheme of a type not specified. Section 28 provides that
when a scheme has been framed, it will be notified by the Board in the manner
laid down therein. Under Section 29 the Board must serve a notice, to the
persons concerned stating, that the Board proposed to acquire their land or
building for execution of the scheme. Section 30 provides that objections may
be filed by the persons concerned. Under Section 31 the scheme could be
abandoned or modified after considering the objections. Section 31 further
provides that if the estimated cost of the scheme does not exceed Rs. 20 lakhs
then the Board could sanction the scheme with or without modifications. If the
estimated cost of the scheme exceeds Rs. 20 lakhs, the scheme has to be
submitted to the State Government for sanction. The State Government could then
sanction the scheme with or without modifications or refuse to sanction the
scheme. Section 32 provides that if the scheme is sanctioned by the Board or
the State Government, it will be notified in the Gazette and that the scheme
would come into force from the date of notification.
Thus
under the Adhiniyam there is no provision for sanctioning the scheme prior to
its notification under Section 28. The question of sanction, by the Board or
the State Government, can only arise after the scheme has been notified under
Section 28 and objections thereon are heard and decided.
This
is logical. The sanction has to be to the final scheme and not to any draft
scheme which has been framed. For purpose of granting a sanction, the Board
and/or the State Government, has to consider not just the scheme but also the
objections of the persons concerned. Only then can the sanctioning authority
apply its mind as to whether the scheme is to be sanctioned and if so with what
modifications if any. In our view mere framing of a scheme, under Section 16,
does not amount to initiation. Initiation is only when notice is given to the
public or the concerned parties of the scheme. This is by way of Notification
under Section 28.
The
Uttar Pradesh Urban Planning and Development Act, 1973 provided, in Section 3
thereof, for declaration of certain areas as development areas. The U.P. Urban
Planning and Development Act provides for preparation of a Master Plan and Land
Development Plans for the development areas. Under Section 14 of the Act no
development can take place in a development area without permission in writing.
Thus by Section 59 the operations of the Adhiniyam was repealed. However
housing or improvement schemes, the execution of which had commenced before June 12, 1973, and which were specified by the
State Government by notification in that behalf in the Gazette were permitted
to continue.
It was
then found by the Government that there was necessity for framing more housing
schemes. Therefore Section 59 of the Uttar Pradesh Urban Planning and
Development Act, 1973 was further amended by the U.P. Act 13 of 1975. By this
amendment all housing and improvement schemes which had been notified under
Section 32 of the Adhiniyam before the declaration of the area comprised
therein as the development area were exempted. Thus now more schemes were exempted/permitted.
As
there was greater need for housing schemes Section 59 of the Uttar Pradesh
Urban Planning and Development Act, 1973 was further amended by the U.P. Act 47
of 1976. The Statement of the Object and Reasons of the 1976 Act provides that
one of the reasons for such amendment is to authorize the Board to initiate new
schemes in areas falling within the jurisdiction of the Development
Authorities. With this object in view the exception now provides as follows :
"(except
in relation to those housing or improvement schemes which have either been
notified under Section 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 Section 28 of the said Adhiniyam before the
said declarations are thereafter approved by the State Government for
continuance 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 Special Avas Parishad Schemes)".
Thus
three distinct types of schemes are now exempted viz :-
(a)
Housing and improvement schemes which have been notified under Section 32 of the
Adhiniyam Act before declaration of the area comprised therein as development
area;
(b)
Schemes which have been notified under Section 28 of the Adhiniyam Act before
the said declarations and which are thereafter approved by the State Government
for continuance under the Petitioner Board; and
(c)
Which are initiated after such declaration with the approval of the State Government.
In
this case the scheme falls in category (c) above. On an interpretation of this
provision the High Court has held that only those schemes which are initiated
with the prior approval of the State Government would be exempted.
Mr.
Gupta, on behalf of the Respondent has adopted the reasoning of the High Court
and has submitted that only such scheme as have been initiated with the
approval of the State Government are exempted. Mr. Gupta submitted that there
could be no notification under Section 28 before approval is granted by the
State Government. He submitted that the approval of the State Government was
sought by the Board after all the three notifications under Section 28 of the Adhiniyam
had been published in the Gazette. He points out that the approval was given by
the State Government on 11th
June, 1982. He submits
that this shows that the scheme was not initiated with the approval of the
State Government. He submits that the approval has been given much after the
initiation of scheme. He submits that as the scheme was not initiated with the
approval of the State Government, it is not covered by the third exception. He
submits that the result is that the scheme is not covered by any exception
whatsoever and the provisions of the Adhiniyam, by operation of law, remain
under suspension for the disputed land and could not be invoked by the Board.
He submitted that the Board had no legal authority to issue notifications under
Sections 28 and /or Section 32 of the Adhiniyam and the same were wholly
illegal. Mr. Gupta further submitted that the language of the statute did not
permit any other interpretation. He submitted that the language used is
"which are initiated with the approval of the State Government". He
submitted that the dictionary meaning of word "initiation" is
"to begin"; "to originate"; "to set afoot" or
"to start". He submitted that the meaning of word "with" is
- "at the same time", "in the company of". He submitted
that the use of the word "with" indicates that "initiation"
and "approval" must be together. He submitted that the moment a
scheme was framed under Section 16 it was "initiated". He submitted
that therefore the approval of the State Government must be prior to or
immediately upon the framing of such scheme. He submitted that if there was no
approval of the State Government then there could be no notification under
Section 28 of the Adhiniyam. Shri Gupta further submitted that the word
"approval" is different from the word "permission" and
therefore, there could be no subsequent approval. Mr. Gupta further submitted
that if a subsequent approval was contemplated then there would have been no
need to create a third category as it could have been provided in the second
category itself that scheme notified under Section 28, whether before or after
declaration, would be exempted, if thereafter approved by the State Government.
We are
unable to accept the submissions of Mr. Gupta. The object of exempting more
schemes is to permit more housing schemes. In our view the clause is quite
clear. This being a beneficial measure cannot be strictly construed. It has to
be given a liberal interpretation. The word "initiated" is followed
by the words "after such declaration". Thus the High Court was not
right in clubbing the words "initiated" and the word "with"
together. If the Legislature intended to permit a scheme for which previous
approval was required then the Legislature would have specifically so provided.
To be noted that when the Legislature wanted to provide for previous approval
it has specifically so provided. This is clear from Sections 56 and 58 which
use the words "Previous approval". Our interpretation is further
fortified by the fact that under the Adhiniyam there is no provision for
granting of approval/sanction prior to the Notification under Section 28. If
the Legislature wanted to make a complete departure from the procedure set out
in the Adhiniyam it would have had to specifically provide for such a
contingency. We also fail to understand what approval the State Government can
give without first knowing what the objections of the parties concerned is. It
is only after the objections are considered that the State Government can
decide whether the scheme is to be approved and if so whether it needs any
modification.
We
cannot accept Mr. Gupta's submission that if the Legislature had intended a
subsequent approval it would have so provided in clause (b) above. Three
separate categories are being exempted. The third category is different from
the second category. It would thus not have been possible to make a provision
for third and separate category in the second exception.
We are
also in agreement with the observations in the Friends Cooperative Housing
Society Ltd.'s case (supra) that the language used merely shows that the
approval of the State Government is necessary. The Section nowhere provides
that prior approval is a pre-condition. What is material is to obtain approval
of the State Government. Till approval of the State Government is not obtained
the scheme could not be notified under Section 32. But once permission is
granted, even though it may be granted subsequently, all further stapes can be
taken and the Board could then proceed. We, therefore, approve the ratio laid
down in Friends Coop. Housing Society Ltd.'s case.
As
stated above the scheme has been approved by the State Government on 11th June, 1982 and it has been notified under
Section 32 on 28th
August, 1982. In this
view of the matter, the impugned judgment cannot be sustained. It is
accordingly set aside.
At
this stage Mr. Gupta submitted that no stay had been granted by this Court. He
submitted that many of the Respondents have constructed bungalows on the plots
and are staying on the plots. He submitted that this is a fit case where, even
though this Court is now laying down the law, this Court should not interfere.
He points out that in Friends Cooperative Housing Society Ltd.'s case this Court
had refused to interfere.
It is
true that in Friends Cooperative Housing Society Ltd.'s case this Court did not
interfere. However that was on the basis that the appellants therein had
compromised with some persons. Here the Appellants have not compromised with
anybody. He submitted that this Court may consider case directing the
authorities to release the Respondent's land from acquisition.
We
however note that on 26th
April, 1985, a
statement had been made on behalf of the Appellants that there was likelihood
of releasing the land from acquisition since it was occupied by residential
houses. In our view these are not matters in respect of which we can make any
provision in this order.
It
will be for the Respondents to apply before the concerned authority for
releasing their land from acquisition. We are quite sure that if such
applications are made the same will be considered sympathetically and in the
right spirit.
The
appeals stand disposed of accordingly. There will be no order as to costs.
...J.
(G.B.
PATTANAIK) ...J.
(S.N.
PHUKAN) ..J.
(S. N.
VARIAVA) February 13,
2002.
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL
APPEAL NO. 1380 OF 1991 U.P. Avas Evam Vikas Parishad Lucknow .. Appellant Versus Neel Kant &
Ors. .. Respondents
S. N.
VARIAVA, J.
This
appeal stands disposed of in terms of the Judgment dated 13th February, 2002 passed in C.A. Nos. 1806 of 1986
& C.A. No. 1807 of 1986.
...J.
(G.B.
PATTANAIK) ...J.
(S.N.
PHUKAN) ..J.
(S. N.
VARIAVA) February 13,
2002.
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