{"id":67277,"date":"2002-02-13T00:00:00","date_gmt":"2002-02-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/u-p-avas-evam-vikas-parishad-vs-ram-krishna-ors-on-13-february-2002"},"modified":"2015-07-19T12:05:45","modified_gmt":"2015-07-19T06:35:45","slug":"u-p-avas-evam-vikas-parishad-vs-ram-krishna-ors-on-13-february-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/u-p-avas-evam-vikas-parishad-vs-ram-krishna-ors-on-13-february-2002","title":{"rendered":"U.P. Avas Evam Vikas Parishad vs Ram Krishna & Ors on 13 February, 2002"},"content":{"rendered":"
Supreme Court of India<\/div>\n
U.P. Avas Evam Vikas Parishad vs Ram Krishna & Ors on 13 February, 2002<\/div>\n
Author: S N Variava<\/div>\n
Bench: G.B. Pattanaik, S.N. Phukan, S.N. Variava<\/div>\n
           CASE NO.:\nAppeal (civil) 1806  of  1986\nAppeal (civil)\t1380\t of  1991\n\n\n\nPETITIONER:\nU.P. AVAS EVAM VIKAS PARISHAD\n\n\tVs.\n\nRESPONDENT:\nRAM KRISHNA  & ORS.\n\nDATE OF JUDGMENT:\t13\/02\/2002\n\nBENCH:\nG.B. Pattanaik, S.N. Phukan & S.N. Variava\n\n\n\n\nJUDGMENT:\n<\/pre>\n
WITHC.A. No. 1807 of 1986.\n<\/p>\n
J U D G M E N T<\/p>\n
S. N. VARIAVA, J.\n<\/p>\n
These Appeals are against a Judgment dated 3rd October, 1985.
\nBriefly stated the facts are as follows:\n<\/p>\n
The area in question was declared as a development area on 20th
\nAugust, 1974.  On 8th, 15th and 20th March, 1980, the scheme in question was
\nnotified  under Section 28 of the Uttar Pradesh Avas Evam Vikas Parishad
\nAdhiniyam, 1965 (hereinafter referred to as the Adhiniyam). The State
\nGovernment approved the scheme on 11th June, 1982.  The scheme came to
\nbe notified under Section 32 of the Adhiniyam  on 28th August, 1982.  The
\nRespondent then challenged the scheme on the ground that the scheme
\nhaving been notified prior to the sanction of the State Government was null
\nand void and could not be given effect to.  This submission found favour
\nwith the High Court, who allowed the writ petition by the impugned
\njudgment.\n<\/p>\n
Thus the question for consideration is whether a scheme notified
\nunder Section 28 of the Adhiniyam is liable to be struck down if it has not
\nbeen approved by the State Government prior to its publication.\t This
\nquestion has been answered by this Court in the case of\t U.P. Avas Evam
\nVikas Parishad & another vs. Friends Coop. Housing Society Ltd. and
\nanother reported in 1995 Supp (3) S.C.C. 456.  In this case it has been held
\nthat prior approval was not necessary.\tIt is held that the Petitioner\tBoard
\ncould not implement the scheme until approval was given by the State
\nGovernment.  It is held that once the approval is given, all the previous acts
\ndone and actions taken get validated and the publications made under the
\nAdhiniyam also become valid.  This decision covers this case squarely.
\nHowever, when this matter reached hearing before a Bench of this
\nCourt it was referred to a larger Bench, inter alia with the following
\nobservations :\n<\/p>\n
“When the matters were taken up, learned counsel stated
\nthat these appeals stand concluded by a decision of this Court in
\nU.P. Avas Evam Vikas Parishad and another  vs.\tFriends
\nCooperative Housing Society Ltd. and another reported in 1995
\nSupp (3) S.C.C. 456 and, therefore, the appeals deserve to be
\nallowed. We have looked into the said decision and are of the
\nopinion that the said decision requires consideration by a Bench
\nof three Judges.  The learned Judges in the said decision read
\ninitiation of the Scheme under Section 28 of the Adhiniyam and
\nwhereas the initiation of the Scheme is to be found under
\nSection 16 of the Adhiniyam.  Unless there is approval of the
\nState Government of the Scheme initiated under Section 16 of
\nthe Adhiniyam,\tsuch a Scheme cannot be published under
\nSection 28 of the Adhiniyam.  There is no approval of the State
\nGovernment to the Scheme initiated by the Parishad on record,
\nand in the absence of such an approval, any subsequent
\napproval by the State Government of the Scheme published
\nunder Section 28 of the Adhiniyam would not cure the defect.\n<\/p>\n
Since this Bench consists of two Judges, it cannot take a
\nview contrary to the decision taken in the case of U.P. Avas
\nEvam Vikas Parishad and another (supra), which was rendered
\nby two Hon’ble Judges, we are, therefore, of the opinion that
\nthese matters require to be decided by a Bench of three Hon’ble
\nJudges.”\n<\/p>\n
Hence this matter has been placed before this Bench.
\nAt this stage certain provisions of the Adhiniyam may be looked at.
\nSection 16 of the said Adhiniyam provides that the Board may frame a
\nhousing or improvement scheme (a) its own motion or (b) at the instance of
\na local authority or (c) when it is so directed by the State Government.  It
\nfurther provides that the Board may refuse to frame a scheme at the instance
\nof a local authority, under certain contingencies, in which case it shall
\nintimate its decision to the local authority within a year from the date of
\nreceipt of the request.\t Section 16 further provides that the local authority
\nmay on receipt of such intimation appeal to the State Government and the
\norder passed by the State Government would be binding on the Board.
\nSection 17 lays down matters which are to be provided for in a scheme.
\nSection 18 to 27 deal with different types of schemes which could be framed
\nby the Board.  In this matter we are not concerned with the different
\nschemes.  Mr. Sunil Gupta however drew the attention of this Court to
\nSection 18(2), which provides that the State Government could direct the
\nBoard to undertake a housing or improvement scheme of a type not
\nspecified.  Section 28 provides that when a scheme has been framed, it will
\nbe notified by the Board in the manner laid down therein.  Under Section 29
\nthe Board must serve a notice, to the persons concerned stating, that the
\nBoard proposed to acquire their land or building for execution of the
\nscheme. Section 30 provides that objections may be filed by the persons
\nconcerned. Under Section 31 the scheme could be abandoned or modified
\nafter considering the objections.  Section 31 further provides that if the
\nestimated cost of  the scheme does not exceed Rs. 20 lakhs then the Board
\ncould sanction the scheme with or without modifications.  If the estimated
\ncost of the scheme exceeds Rs. 20 lakhs, the scheme has to be submitted to
\nthe State Government for sanction. The State Government could then
\nsanction the scheme with or without modifications or refuse to sanction the
\nscheme. Section 32 provides that if the scheme is sanctioned by the Board or
\nthe State Government, it will be notified in the Gazette and that the scheme
\nwould come into force from the date of notification.\n<\/p>\n
Thus under the Adhiniyam there is no provision for sanctioning the
\nscheme prior to its notification under Section 28.  The question of sanction,
\nby the Board or the State Government, can only arise after the scheme has
\nbeen notified under Section 28 and objections thereon are heard and decided.
\nThis is logical.  The sanction has to be to the final scheme and not to any
\ndraft scheme which has been framed.  For purpose of granting a sanction, the
\nBoard and\/or the State Government, has to consider not just the scheme but
\nalso the objections of the persons concerned.  Only then can the sanctioning
\nauthority apply its mind as to whether the scheme is to be sanctioned and if
\nso with what modifications if any.  In our view mere framing of a scheme,
\nunder  Section 16, does not amount to initiation.  Initiation is only  when
\nnotice is given to the public or the concerned parties of the scheme.  This is
\nby way of Notification under Section 28.\n<\/p>\n
The Uttar Pradesh Urban Planning and Development Act, 1973
\nprovided, in Section 3 thereof, for declaration of certain areas as
\ndevelopment areas.  The U.P. Urban Planning and Development Act
\nprovides for preparation of a Master Plan and Land Development Plans for
\nthe development areas.\tUnder Section 14 of the Act no development can
\ntake place in a development area without permission in writing.\t Thus by
\nSection 59 the operations of the Adhiniyam was repealed.  However housing
\nor improvement schemes, the execution of which had commenced before
\nJune 12, 1973, and which were specified by the State Government by
\nnotification in that behalf in the Gazette were permitted to continue.
\nIt was then found by the Government that there was necessity for
\nframing more housing schemes.  Therefore Section 59 of the Uttar Pradesh
\nUrban Planning and Development Act, 1973 was further amended by the
\nU.P. Act 13 of 1975.  By this amendment all housing and improvement
\nschemes which had been notified under Section 32 of the Adhiniyam  before
\nthe declaration of the area comprised therein as the development area were
\nexempted.  Thus now more schemes were exempted\/permitted.
\nAs there was greater need for housing schemes Section 59 of the Uttar
\nPradesh Urban Planning and Development Act, 1973 was further amended
\nby the U.P. Act 47 of 1976.  The Statement of the Object and Reasons of the
\n1976 Act provides  that one of the reasons for such amendment is to
\nauthorize the Board to initiate new schemes in areas falling within the
\njurisdiction of the Development Authorities.   With this object in view the
\nexception now provides as follows :\n<\/p>\n
“(except in relation to those housing or improvement
\nschemes which have either been notified under Section 32 of
\nUttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965
\nbefore the declaration of the area comprised therein as
\ndevelopment area or which having been notified under Section
\n28 of the said Adhiniyam before the said declarations are
\nthereafter approved by the State Government for continuance
\nunder the said Adhiniyam or which are initiated after such
\ndeclaration with the approval of the State Government,
\nhereinafter in this section referred to as Special Avas Parishad
\nSchemes)”.\n<\/p>\n
Thus three distinct types of schemes are now exempted viz :-\n<\/p>\n
(a)\tHousing and improvement schemes which have been notified
\nunder Section 32 of the Adhiniyam Act before declaration of the
\narea comprised therein as development area;\n<\/p>\n
(b)\tSchemes which have been notified under Section 28 of the
\nAdhiniyam Act before the said declarations and which are
\nthereafter approved by the State Government for continuance
\nunder the Petitioner Board; and<\/p>\n
(c)\tWhich are initiated after such declaration with the approval of the
\nState Government.\n<\/p>\n
In this case the scheme falls in category (c) above.  On an
\ninterpretation of this provision the High Court has held that only those
\nschemes which are initiated with the prior approval of the State  Government
\nwould be exempted.\n<\/p>\n
\tMr. Gupta, on behalf of the Respondent has adopted the reasoning of
\nthe High Court and has submitted that only such scheme as have been
\ninitiated with the approval of the State Government are exempted.  Mr.
\nGupta submitted that there could be no notification under Section 28 before
\napproval is granted by the State Government.   He submitted that the
\napproval of the State Government was sought by the Board after all the three
\nnotifications under Section 28 of the Adhiniyam had been published in the
\nGazette.  He points out that the approval was given by the State Government
\non 11th June, 1982.  He submits that this shows that the scheme was not
\ninitiated with the approval of the State Government.  He submits that the
\napproval has been given much after the initiation of scheme.  He submits
\nthat as the scheme was not initiated with the approval of the State
\nGovernment, it is not covered by the third exception.  He submits that the
\nresult is that the scheme is not covered by any exception whatsoever and the
\nprovisions of the Adhiniyam, by operation of law, remain under suspension
\nfor the disputed land and could not be invoked by the Board.  He submitted
\nthat the Board had no legal authority to issue notifications under Sections 28
\nand \/or Section 32 of the Adhiniyam and the same were wholly illegal.  Mr.
\nGupta further submitted that the language of the statute did not permit any
\nother interpretation.  He submitted that the language used is “which are
\ninitiated with the approval of the State Government”.  He submitted that the
\ndictionary meaning of word “initiation” is “to begin”; “to originate”; “to set
\nafoot” or “to start”.  He submitted that the meaning of word “with” is – “at
\nthe same time”, “in the company of”.  He submitted that the use of the word
\n“with” indicates that “initiation” and “approval” must be together.  He
\nsubmitted that the moment a scheme was framed under Section 16 it was
\n“initiated”.   He submitted that therefore the approval of the State
\nGovernment must be prior to or immediately upon the framing of such
\nscheme.\t He submitted that if there was no approval of the State Government
\nthen there could be no notification under Section 28 of the Adhiniyam.\tShri
\nGupta further submitted that the word  “approval” is different from the word
\n“permission” and therefore, there could be no subsequent approval.  Mr.
\nGupta further submitted that if a subsequent approval was contemplated then
\nthere would have been no need to create a third category as it could have
\nbeen provided in the second category itself that scheme notified under
\nSection 28, whether before or after declaration, would be exempted, if
\nthereafter approved by the State Government.\n<\/p>\n
We are unable to accept the submissions of Mr. Gupta.  The object of
\nexempting more schemes is to permit more housing schemes.  In our view
\nthe clause is quite clear.  This being a beneficial measure cannot be strictly
\nconstrued. It has to be given a liberal interpretation.\t The word “initiated” is
\nfollowed by the words “after such declaration”.\t Thus the High Court was
\nnot right in clubbing the words “initiated” and the word “with” together.  If
\nthe Legislature intended to permit a scheme for which previous approval was
\nrequired then the Legislature would have specifically so provided.  To be
\nnoted that when the Legislature wanted to provide for previous approval it
\nhas specifically so provided.  This is clear from Sections 56 and 58 which
\nuse the words “Previous approval”.  Our interpretation is further fortified by
\nthe fact that under the Adhiniyam there is no provision for granting of
\napproval\/sanction prior to the Notification under Section 28.  If the
\nLegislature wanted to make a complete departure from the procedure set out
\nin the Adhiniyam it would have had to specifically provide for such a
\ncontingency.  We also fail to understand what approval the State
\nGovernment can give without first knowing what the objections of the
\nparties concerned is.  It is only after the objections are considered that the
\nState Government can decide whether the scheme is to be approved and if so
\nwhether it needs any modification.\n<\/p>\n
We cannot accept Mr. Gupta’s submission that if the Legislature had
\nintended a subsequent approval it would have so provided in clause (b)
\nabove.\tThree separate categories are being exempted.\tThe third category is
\ndifferent from the second category.  It would thus not have been possible to
\nmake a provision for third and separate\t category in the second exception.\n<\/p>\n
\tWe are also in agreement with the observations in the Friends
\nCooperative Housing Society Ltd.’s case (supra) that the language used
\nmerely shows that the approval of the State Government is necessary.  The
\nSection nowhere provides that prior approval is a pre-condition. What is
\nmaterial is to obtain approval of the State Government.\t Till approval of the
\nState Government is not obtained the scheme could not be notified under
\nSection 32.  But once permission is granted, even though it may be granted
\nsubsequently, all further stapes can be taken and the Board could then
\nproceed.  We, therefore, approve the ratio laid down in Friends Coop.
\nHousing Society Ltd.’s case.\n<\/p>\n
\t  As stated above the scheme has been approved by the State
\nGovernment on 11th June, 1982 and it has been notified under Section 32 on
\n28th August, 1982.  In this view of the matter, the impugned judgment
\ncannot be sustained.  It is accordingly set aside.\n<\/p>\n
\tAt this stage Mr. Gupta submitted that no stay had been granted by
\nthis Court.  He submitted that many of the Respondents have constructed
\nbungalows on the plots and are staying on the plots.  He submitted that this
\nis a fit case where, even though this Court is now laying down the law, this
\nCourt should not  interfere.  He points out that in Friends Cooperative
\nHousing Society Ltd.’s case this Court had refused to interfere.
\nIt is true that in Friends Cooperative Housing Society Ltd.’s case this
\nCourt did not interfere.  However that was on the basis that the appellants
\ntherein had compromised with some persons.  Here the Appellants have not
\ncompromised with anybody.  He submitted that this Court may consider case
\ndirecting the authorities to release the Respondent’s land from acquisition.
\nWe however note that on 26th April, 1985, a statement had been made on
\nbehalf of the Appellants that there was likelihood of releasing the land from
\nacquisition since it was occupied by residential houses.  In our view these
\nare not matters in respect of which we can make any provision in this order.
\nIt will be for the Respondents to apply before the concerned authority for
\nreleasing their land from acquisition.\tWe are quite sure that if such
\napplications are made the same will be considered sympathetically and in the
\nright spirit.\n<\/p>\n
\tThe appeals stand disposed of accordingly.  There will be no order as
\nto costs.\n<\/p>\n
…J.\n<\/p>\n
(G.B. PATTANAIK)<\/p>\n
…J.\n<\/p>\n
(S.N. PHUKAN)<\/p>\n
..J.\n<\/p>\n
(S. N. VARIAVA)<\/p>\n
February 13, 2002.\n<\/p>\n
IN THE SUPREME COURT OF INDIA
\nCIVIL APPELLATE JURISDICTION
\nCIVIL APPEAL NO. 1380 OF 1991<\/p>\n
U.P. Avas Evam Vikas Parishad Lucknow\t     .. Appellant
\nVersus
\nNeel Kant  & Ors.\t\t\t\t.. Respondents<\/p>\n
J U D G M E N T<\/p>\n
S. N. VARIAVA, J.\n<\/p>\n
This appeal stands disposed of\tin terms of the Judgment dated
\n13th  February, 2002 passed in C.A. Nos. 1806 of 1986 & C.A. No. 1807 of
\n1986.\n<\/p>\n
…J.\n<\/p>\n
(G.B. PATTANAIK)<\/p>\n
…J.\n<\/p>\n
(S.N. PHUKAN)<\/p>\n
..J.\n<\/p>\n
(S. N. VARIAVA)<\/p>\n
February 13, 2002.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India U.P. Avas Evam Vikas Parishad vs Ram Krishna & Ors on 13 February, 2002 Author: S N Variava Bench: G.B. Pattanaik, S.N. Phukan, S.N. Variava 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-67277","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nU.P. 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