CASE NO.: Appeal (civil) 1806 of 1986 Appeal (civil) 1380 of 1991 PETITIONER: U.P. AVAS EVAM VIKAS PARISHAD Vs. RESPONDENT: RAM KRISHNA & ORS. DATE OF JUDGMENT: 13/02/2002 BENCH: G.B. Pattanaik, S.N. Phukan & S.N. Variava JUDGMENT:
WITHC.A. No. 1807 of 1986.
J U D G M E N T
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
J U D G M E N T
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.