Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3
PETITIONER:
U.P. AVAS EVAM VIKAS PARISHAD & ANR.
Vs.
RESPONDENT:
FRIENDS COOP. HOUSING SOCIETYLTD. & ANR.
DATE OF JUDGMENT24/04/1995
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
HANSARIA B.L. (J)
CITATION:
1996 AIR 114 1995 SCC Supl. (3) 456
1995 SCALE (3)604
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Leave granted.
We have heard learned counsel on both sides. Since
there is a conflict of decisions rendered by the High Court
of Allahabad on interpretation of exception (iii) to s.59(1)
(a) of the U.P. Avas Evam Vikas Parishad Adhiniya 1965 (for
short, ’Adhiniyam’), we are inclined to resolve the
conflict.
Declaration under s.3 was published on September 3,
1977. Notification under s.28 of the Adhiniyam was published
on June 7, 1982. Immediately the appellant had sought for
the approval of the Government through the letter dated July
27, 1982. The Government approved the schem on August 24,
1982. The declaration under s. 32 of the Adhiniyam was
published on February 28, 1987. The respondents filed writ
Petition No. 14708/84. The Division Bench following the
ratio in writ Petition No. 17372/87 dated March 18, 1993
titled Narinder Mohan Foundation Trust v. Special Land
Acquisition Officer, Meerut, allowed the writ petition
declaring that since prior approval of the Government was
not obtained under exception (iii) to s. 59(1) (a) of the
Adhiniyam, the notification under s. 28, which is equivalant
to s.4(1) of the Land Acquisition Act, 1890 and the
declaration under s.32, which is equivalent to s.6
declaration, are invalid and inoperative. Thus this appeal
by special leave.
Relevant part of s.59(1) (a) reads thus:
"The Uttar Pradesh Avas Evam Vikas
Parishad Adhiniyam 1965 (Except in
relation to those housing or improvement
schemes which have either been notified
under s.32 of Uttar Pradesh Avas Evam
Vikas Parishad Adhiniyam, 1965 before
the declaration of the area comprised
therein as development area or which
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3
having been notified under s.28 of the
said Adhiniyam before the said
declarations are thereafter ‘approved’
by the State Government for
constinuance 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 the Special Avas
Parishad Schemes shall in respect of a
development area remain suspended...."
A reading thereof would indicate that for the development of
the area the provision of the Adhiniyam shall remain
suspended except in relation to three categories of the
housing scheme or improvement schemes enumerated under the
Act, namely, : (i) Schemes which have been notified under s.
32 of the Adhiniyam before the declaration under s.3 of the
Act; (ii) Schemes for which notification under s.28 of the
Adhiniyam has been issued before the notification under s.3
of the Act and are thereafter approved by the State Govt.
for continuance; and (iii) Schemes which are initiated after
the declaration under s.3 of the Act with the approval of
the State Government.
It is to be seen that the language employed therein is
that the approval of the State Government is necessary.
Question is whether it would be prior approval or approval
given subsequent to the notification under s.28 or
declaration under s.32 is valid in law. If prior approval
would have been a pre-condition for further steps, the Act
would have said so. This not having been done, it seems to
us what is material is to obtain approval of the State
Government. The reason appears to be that when the schemes
have been framed, the land suitably required for effective
implementation of the scheme alone should be acquired and
not in excess in the guise of framing the schemes.
This Court in Life Insurance Corpn. of India v. Escorts
Ltd. & Ors, 1986 (1) SCC 264, considering the distinction
between "special permission" and "general permission",
"previous approval" or "prior approval" in paragraph 63 held
that "we are conscious that the word "prior" or "previous"
may be implied if the contextual situation or the object and
design of the legislation demands it, we find no such
compelling circumstances justifying reading any such
implication into s.29(1) of the Act". Ordinarily, the
difference between approval and permission is that in the
first case the action holds good until it is disapproved,
while in the other case it does not become effective until
permission is obtained. But permission subsequently granted
may validate the previous act. As to the word "approval" in
s. 33(2) (b) of the Industrial Disputes Act, it was stated
in Lord Krishna Textiles Mills Ltd. v. Workmen, 1961(1)
L.L.J. 211 at 215-16 that the management need not obtain the
previous consent before taking any action. The requirement
that the managment must obtain the previous consent before
taking any action. The requirement that the managment must
obtain approval was distinguished from the requirement that
it must obtain permission, of which mention is made in
s.33(1).
It is seen that the approval envisaged under exception
(iii) of s.59(1) (a), is to enable the Parishad to proceed
further in implementation of the scheme framed by the Board.
Until approval is given by the Government, the Board may not
effectively implement the scheme. Nevertheless, once the
approval is given, all the previous acts done or actions
taken in anticipation of the approval gets validated and the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3
publications made under the Act thereby becomes valid.
The question then is whether present is a fit case for
our interference under Art.136. On similar facts when the
appellant itself has compromised with others and the same
has not been extended to the respondents, we think that it
is not a fit case for our interference. The respondents’
society also consist of the members who need sites for
construction of their houses. Right to shelter is a
fundamental right, which springs from the right to residence
assured in Art.19(1) (e) and right to life under Art.21 of
the Constitution. No doubt their construction has also to be
in accordance with lay out and building rules but that would
not be a ground to refuse permission to them when they
approached the authorities to sanction the same in
accordance with law.
The law is declared accordingly, but the appeal is
dismissed.