U.P. Avas Evam Vikas Parishad Versus Ram Krishna and others [ALL SC 2002 FEBRUARY ]

AIR 2002 SC 1056 : (2002) 1 SCR 988 : (2002) 3 SCC 11 : JT 2002 (2) SC 45 : (2002) 2 SCALE 125

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WITH

(Before : G. B. Pattanaik, S. N. Phukan And S. N. Variava, JJ.)

Civil Appeals Nos. 1806 with 1807 of 1986, with 1380 of 1991, Decided on : 13-02-2002.

Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965—Sections 16, 28 and 32— Uttar Pradesh Urban Planning and Development Act, 1973—Section 59.

Counsel for the Parties:

Dinesh Dwivedi and Yogeshwar Prasad, Sr. Advocates, P.N. Gupta, Ms. Rachna Gupta, Dr. I.P. Singh, Sunil Gupta, Vivek Vishnoi, Ms. Lipika Sharma and Pramod Dayal, Advocates with him, for appearaing parties.

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S. N. Variava, J—These Appeals are against a Judgment dated 3rd October, 1985.

2. 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.

3. 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 and another vs. Friends Co-op. Housing Society Ltd. and another reported in (1995) 3 Suppl. SCC 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.

4. However, when this matter reached hearaing 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 Co-operative Housing Society Ltd. and another reported in (1995) 3 Suppl. SCC 456 and, therefore, the appeals deserve to be allowed. We have looked into the said decision and are of the opinionOpinion A judge's written explanation of a decision of the court. In an appeal, multiple opinions may be written. The court’s ruling comes from a majority of judges and forms the majority opinion. A dissenting opinion disagrees with the majority because of the reasoning and/or the principles of law on which the decision is based. A concurring opinion agrees with the end result of the court but offers further comment possibly because they disagree with how the court reached its conclusion. 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 recoord, 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 Evan 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.

5. 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. Sections 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 Govenrment 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 ` 20 lakhs then the Board could sanction the scheme with or without modifications. If the estimated cost of the scheme exceeds ` 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 sanctiond 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.

6. 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 person 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.

7. 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.

8. It was then found by the Govenrment 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 schems 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.

9. 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 jurisdictionJurisdiction Authority by which courts receive and decide cases. Limited Jurisdiction: the authority over only particular types of cases, or cases under a prescribed amount in controversy, or seeking only certain types of relief, the District Court is a court of limited jurisdiction. Original Jurisdiction: Jurisdiction of the first court to hear a case. of the Development Authorities. With the 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 therien as development area or which having been notified under Section 28 of the said Adhiniyam before the said declaration 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)”.

10. 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 declaration 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.

11. In this case the scheme falls in category (c) above. On an interpretation of this provision the High Court has held that only those scheme which are initiated with the prior approval of the State Government would be exempted.

12. 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 Goverment are exempted. Mr. Gupta submitted that there could be no notification under Section 28 before approval is granted by the State Govenrment. He submitted that the approval of the State Govenrment 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 Govenrment on 11th June. 1982. He submits that this shows that the scheme was not initiated with the approval of the State Govenrment. 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 Section 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 Govenrment”. 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 timeTime Where any expression of it occurs in any Rules, or any judgment, order or direction, and whenever the doing or not doing of anything at a certain time of the day or night or during a certain part of the day or night has an effect in law, that time is, unless it is otherwise specifically stated, held to be standard time as used in a particular country or state. (In Physics, time and Space never exist actually-“quantum entanglement”)”, “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 Gutpa 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.

13. 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.

14. 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.

15. We are also in agreementContract An agreement enforceable by law is a contract. All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Indian Contract Act. with the observations in the Friends Co-operative 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 permision is granted, even though it may be granted subsequently, all further steps can be taken and the Board could then proceed. We, therefore, approve the ratio laid down in Friends Co-op. Housing Society Ltd.’s case.

16. 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.

17. 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 in Friends Co-operative Housing Society Ltd.’ case this Court had refused to interfere.

18. It is true that in Friends Co-operative Housing Society Ltd.’ 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.

19. The appeals stand disposed of accordingly. There will be no order as to cots.

CIVIL APPEAL NO. 1380 OF 1991

U. P. Avas Evam Vikas Parishad Lucknow Appellant vs. Neel Kant and others, Respondents.

20. This appeal stands disposed of in terms of the Judgment dated 13th Februay, 2002 passed in C.A. No. 1806 of 1986 and C.A. No. 1807 of 1986.