1995 ALLMR ONLINE 1028 (S.C.)
Supreme Court Of India

K. RAMASWAMY AND B. L. HANSARIA, JJ.

U.P. Avas Evam Vikas Parishad and anotherAppellants v.Friends Co-op. Housing Society Ltd. and anotherRespondents.

Uttar Pradesh Urban Planning and Development Act (1973), S. 59(1)(a) - Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam (1966), S. 28 - Constitution of India, Art. 19(1)(e)

2. We have heard learned counsel on both sides. Since there is a conflict of decision rendered by the High Court of Allahabad on interpretation of exception (iii) to S. 59 (1) (a) of the U. P. Urban Plannning and Development Act (1973) (for short 'Act') We are inclined to resolve the conflict.

3. Declaration under S. 3 was published on September 3, 1977. Notification under S. 28 of the U. P. Avas Evam Vikas Parishad Adhiniyam, 1965 (for short '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 scheme 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 of 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 Act the notification under S. 28, which is equivalent 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.

A reading thereof would indicate that for the development of the area provision of the Adhiniyam shall remain suspended except in relation to three categories of the housing scheme or improvenemt schemes enumerated under the Adiniyam namely : (i) Schemes which have been notified under S. 32 of the Adhiniyam before the declaration under S. 3 of the Act; (ii) Schames for which nitification under S. 28 of the Adhiniyam has been issued befor 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.

4. 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 precondition 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.

5. This Court in Life Insurance Corpn. of India v. Escorts Ltd., (1986) 1 SCC 264 : (AIR 1986 SC 1370), 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 on 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 Lab LJ 211 at 215-16: (AIR 1961 SC 860 at p. 863) that the management need not obtain the pervious consent befor taking any action. The requirement that the management must obtain approval was distinguished from the requirement that it must obtain permission, of which mention is made in S. 33(1).

6. It is seen that 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. Neverthless, once the approval is given, all the previous acts done or actions taken in anticipation of the approval get validated and the publications made under the Act thereby become valid.

7. The question then is whether present is a fit case for our interferences under Art. 136. On similar fact 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 respondent society also consists of the members who need sites for construction of their houses. Right to shelter is a fundamental right, which spring 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 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.