Madhya Pradesh High Court
The Hind Housing Co-Operative Society ... vs State Of Madhya Pradesh And Ors. on 14 October, 1986
Equivalent citations: AIR 1987 MADHYA PRADESH 193
JUDGMENT
B.C. Varma, I.
1. The petitioner is a Housing Co-operative Society, respondent No. 3 Jabalpur Development Authority (J.D.A.) is duly constituted under the M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 (Act No. 23 of 1973). In furtherance of its object of providing housing accommodation in city of Jabalpur, the J.D.A. brought into force a Housing Scheme No. 47, popularly known as the 'Madan Mahal Scheme'. The land covered under the scheme belonged to Shri Virendra Yadav and others. On 3rd Oct. 1983, the J.D.A. acting under Section 50(2) of the Act published in local newspapers its intention to bring about the Housing Scheme No. 47. The petitioner society came forward to take up the building activity in terms of that scheme and on Nov. 30, 1983, entered into an agreement with the J.D.A. in that behalf. The J.D.A. entered into possession of the land and then furnished a lay out to the petitioner society for development of the land. The site was to be developed as a residential area in accordance with the master plan. The lay out was sanctioned by the Joint Director, Town and Country Planning and the scheme was approved. The petitioner society actually started developing the site for residential buildings as per the sanctioned plan and incurred expenses in so doing. It appears that because the site in question is a part of the Madan Mahal hills situated near Sangram Sagar and the old fort and palace of Raja Madan Shah and is known for its scenic beauty, certain persons interested in preserving that beauty, started agitation against the scheme in local newspaper. The State Government was also approached. A writ bearing Miscellaneous Petition No. 628 of 1984, was filed in the High Court for quashing the Scheme No. 47. The J.D.A. and the State Government were made parties. They supported the scheme as then framed. Meanwhile, the State Government, vide order dt. 7-3-1984, in exercise of powers under Section 73 of the Act, suspended the operation of the scheme and also issued a direction that any work undertaken by any contractor in furtherance of that scheme be also suspended with immediate effect. That order obviously affected the petitioner society who immediately rushed to this Court and filed Miscellaneous Petition No. 1121 of 1984 challenging that order suspending that scheme. Both these petitions were linked for hearing together. In Miscellaneous Petition No. 628 of 1984, the court issued a direction to the Stale Government to consider and finalise that scheme and the petitioner and the persons agitating against the introduction of that scheme were asked to approach the State Government. On 4-8-1984, this court directed the State Government to take a final decision in the matter. By order dt. 31-10-1984, passed in exercise of powers under Section 74 of the Act, the State Government reached a conclusion that the scheme in question (Scheme No. 47) was not duly and legally framed in accordance with the provisions of Section 50 of the Act. It, therefore, held that it is only after the scheme is duly framed after inviting objections and taking them into consideration that the land could be acquired under the said scheme for its implementation.
2. On receipt of that matter back from the State Government, the J.D.A. published the draft development scheme in newspaper inviting objections. Objections were filed. These objections were heard by a committee of three persons. That committee ultimately finalised the scheme after taking those objections into consideration and modified that draft scheme implementing a few of the objections. The J.D.A. then approved that scheme as per report of that committee and the scheme was finally published as required by Section 50(7) of the Act. It is claimed by the J.D.A. that the scheme now finalised seeks to preserve the environmental beauty, prevent any soil erosion, the wind channel is prevented by limiting the height of the buildings, and care has been taken to preserve the famous balancing rock. On 7-10-1985 the Director, Town & Country Planning, M.P. apprised the State Government that the Scheme No. 47 proposed by the J.D. A. and finally published under Section 50(7) of the Act, was not included in Jabalpur Master Plan (Land use map). The area covered under the scheme was either the conservation or of Madan Mahal hills or was the old residential area. The Director, therefore, recommended that it will not be just to include that area in any housing scheme and, therefore, recommended that the continuance of the scheme would be contrary to the Master Plan. This recommendation was accepted by the State Government. By order dt. 25-11-1985 (Document No. 15 to the petition), the State Government in the department of Housing and Environment, did not accord approval to that scheme and opined that it would not be in the public interest to accord permission to that housing scheme. Consequently, that scheme was revoked.
3. The petitioner challenges the order passed by the State Government (Document No. 15) on many counts. At the first place, it was stated that since the State Government has after considering the proposal, directed the scheme to be finalised, it will not be open in exercise of powers under Section 52 of the Act to say that the Scheme No. 47 is not in public interest. It was added that due to previous conduct the State Government is estopped to say that the scheme is not in public interest or that it is in violation of the master plan. The second ground of attack is that the order passed is a non-speaking order, wholly unsupported by reasons and is absolutely arbitrary. Since the authority passing that order is quasi-judicial, the order so passed must be supported by reasons. Thirdly, it was stated that the order is in violation of proviso to Section 52 of the Act as the J.D.A. afforded no opportunity of hearing. It is in violation of natural justice. The petitioner also makes a grievance that it also ought to have been heard when it was known to the Government that it has spent a considerable amount in developing the plot. It was finally stated that the grounds stated in Documents 14 and 15 leading to the revocation of the scheme are non-existent. The order passed is, therefore, said to be without any basis.
4. The J.D.A. has not filed any petition challenging the order of the State Government. In the return filed it has questioned petitioner's locus standi to file this petition. The State Government has vehemently opposed the petition on all counts and has also questioned the petitioner's locus standi to maintain the petition. We shall, therefore, first examine if the petitioner has a right to maintain this petition.
5. Lord Denning in R. v. Paddington Valuation Officer, (1966)1 QB 380 observed that Court would not listen to a merely busy body who was interfering in things which did not concern him. A person aggrieved whose legal rights have been infringed or who has any other substantial interest in impugning the order may be awarded a writ of certiorari ex debito justitiae. Even such a person may be refused the relief if his conduct has been such as to disentitle him to that relief. "Person aggrieved" has been defined as those who "have a peculiar grievance of their own beyond some grievance suffered by them in common with the rest of the public." Persons who have been deprived of their offices or proprietary rights, or who have been denied or deprived of an occupational licence, clearly fall within this category. This concept of "person aggrieved" is now being given a wider connotation and must be broadened to include members of a local community who have a special grievance of their own by virtue of their membership of that community. The prevailing concept of locus standi has been considered from all its aspects by the Supreme Court in S. P. Gupta v. President of India (properly known as Judges' appointment and transfer case) AIR 1982 SC 149. Bhagwati, J. (as he then was) and with whom Gupta, Fazal Ali, Desai, Pathak and Venkata Ramiah, JJ. concurred, first stated that the basis of entitlement under the traditional rule to judicial redress is personal injury to property, body, mind or reputation arising from violation, actual or threatened, of legal right or legally protected interest of the person seeking such redress. The learned Judge observed that this rule arose in era when private law dominated the legal scene and public law was not even born. This ancient rule in regard to locus standi postulates right/duty pattern which is commonly to be found in private law litigation. The learned Judge then in para 15 of his judgment, at page 186 of the report, proceeded to point out the following few exceptions to this traditional rule as evolved by Courts over the years :
(i) A rate payer of a local authority is accorded standing to challenge an illegal action of the local authority and can well challenge the action of a municipality in granting a cinema licence to a person.
(ii) Secondly, if a person is entitled to participate in the proceedings relating to the decision making process culminating in the impugned decision he would have locus standi to maintain an action challenging the impugned decision.
(iii) Thirdly, the statute itself may expressly recognise the locus standi of an applicant, even though no legal right or legally protected interest of the applicant has been violated resulting in legal injury to him.
(iv) Fourthly, where a person who has suffered a legal wrong or a legal injury or whose legal right or legally protected interest is violated, is unable to approach the Court on account of some disability or it is not practicable for him to move the Court for some other sufficient reasons, such as his socially or a economically disadvantaged position, some other person can invoke assistance of the Court for the purpose of providing judicial redress to the person wronged or injured, so that the legal wrong or injury caused to such person does not go unredressed and justice is done to him.
This following conclusions were drawn in para 17 of the report :
"It may therefore now be taken as well established that where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under Article 226 and in case of breach of any fundamental right of such person or determinate class of persons, in this court under Article 32 seeking judicial redress for the legal wrong or injury caused to such a person or determinate class of persons."
In the same sequel, it was stressed that the cause of justice can never be allowed to be thwarted by any procedural technicalities for it must not be forgotten that procedure is but a handmaiden of justice. The following note of caution was also sounded :
"But we must hasten to make it clear that the individual who moves the Court for judicial redress in cases of this kind must be acting bona fide with a view to vindicating the cause of justice and if he is acting for personal gain or private profit or out of political motivation or other oblique consideration, the court should not allow itself to be activised at the instance of such person and must reject his application at the thrshold, whether it be in the form of a letter addressed to the court or even in the form of a regular writ petition filed in Court."
Similar view was expressed in a later decision reported in People's Union for Democratic Rights v. Union of India, AIR 1982 SC 1473.
6. In the instant case, the Jabalpur Development Authority against whom a writ/direction is sought to implement a particular Housing Scheme in Madan Mahal area, is an authority constituted under Section 38 of the Nagar Tatha Gram Nivesh Adhiniyam, 1973 (Act No. 23 of 1973). According to Sub-section (2) of Section 38, it shall be the duty of the authority constituted under Section 38(1) to implement the proposal in the development plan, prepare one or more town development schemes and acquisition and development of land for the purpose of expansion or improvement of the area specified in the notification under Sub-section (1). Section 50 of the Adhiniyam permits the Town and Country Development Authority to declare its intention to prepare a town development scheme. It is not the petitioner's case that the respondent No. 3 as Town and Country Development Authority is not acting towards improving the Jabalpur town by bringing about development schemes and thereby is failing in its duty cast under the Adhiniyam and as the petitioner is one of the persons interested in the development of the town, he has a right to maintain this petition for direction to the authority to act for the better development of town in terms of the various: provisions of the Adhiniyam. Instead, the petitioner wants a particular proposed scheme to be implemented. Needless to say that any scheme can be enforced only in accordance with the provisions of the Adhiniyam to which we shall presently refer. No scheme in contravention of those provisions can be allowed to be implemented.
7. When a town development scheme is contemplated, Section 50(1) requires the aurhority to declare its intention in that behalf. Within 30 days of the declaration of such intention to make a scheme, the authority is required to publish a declaration in Gazette and in the manner prescribed. Then, according to Sub-section (3), within two years from the date of publication of declaration under Sub-section (2), the authority shall prepare a town development scheme in draft form and publish such form in the manner as may be prescribed together with notice inviting objections and suggestions from any person with regard to the said development scheme. Before such draft scheme is approved under Sub-section (4), the authority shall consider the objections and suggestions, if any received within the period specified in notice under Sub-section (3) and shall also give reasonable opportunity to such persons affected thereby as are desirous of being heard. It shall also constitute a committee consisting of a Chief Executive Officer of the Authority and two other members in accordance with Sub-section (5) and shall consider the report of such committee. It may be mentioned that this committee is also enjoined with duty to hear persons as are desirousof being heard and shall submit report to the authority with its proposals on various topics as enumerated thereunder. The approved development scheme is then required to be published by the authority in the Gazette and in such other manner as may be prescribed specifying the date on which it shall come into operation. Section 52 empowers the State Government, if it considers it necessary in public interest so to do, to give directions to the Town and Country Development Authority to frame a Town Development Scheme, to modify a town development scheme during execution, and to revoke a town development scheme, for reasons to be specified in such directions; and directions given by the State Government under this section shall be binding on the Town and Country Development Authority. Before, however, the State Government makes any such direction as envisaged under Section 52, the Town and Country Development Authority shall be given an opportunity to present its case. These various provisions would show that from the time of declaration of intention to prepare a town and country development scheme up to the stage of its finalisation including the making of the directions by the State Government during the execution of such scheme, the participation of persons affected by such scheme is envisaged only after the publication of the declaration of intention to prepare a town and country development scheme in the Gazette and within two years thereof. The right is of being heard in accordance with Sub-section (3) of Section 50 and that too extends only to such persons who are affected by such scheme. The petitioner does not allege that he intervened at that stage and has no grievance to make that although he was affected by the scheme, he was not then heard.
8. What happened in the present case is that at the initial stage of declaring its intention to prepare the scheme in question (Scheme No. 47), the authority did not resort to the mandatory provisions of Section 50. No publication was made, no objections were invited, no committee was constituted to submit its report but only publication was made of a resolution adopted in meeting of the Jabalpur Development Authority dt. 15-9-83. This was published in local newspaper of 3-10-83. This publication was a declaration of an intention to prepare Scheme No. 47. No further action was taken in accordance with the various provisions of Section 50. However, on 30-11-83, the Jabalpur Development Authority entered into an agreement with the petitioner (Document No. 1 filed with petition). A reading of this document would show that on the same day, i.e., on 30-11-83, the J.D.A. had entered into another agreement with the owners of the land by virtue of which the land is said to be acquired. It may be mentioned that the development authority has a right to acquire the land only after the publication of the final town development scheme under Section 50 and within three years therefrom. This may be done by agreement between the owner and the authority but on authority's failure to acquire, the State Government may at the request of the town development authority proceed to acquire such lands under the provisions of Land Acquisition Act, 1894. Apparently, as stated above, by 30-11-83, there was no final publication of the scheme as required by Sub-section (7) of Section 50. In spite of this and in spite of the apparent non-compliance of the various provisions of Section 50 and in spite of not allowing the proposed scheme to pass through the various stages envisaged under Section 50, the petitioner could persuade the J.D.A. to take up the development work in that area in terms contained in Document No. 1. Not only this, the J.D.A. obtained some deposits from the petitioner as cost of internal development work and supervision charges and allowed the petitioner society to enter upon that land. This certainly could not be done and was not permissible until the scheme was finally published in terms of Sub-section (7) of Section 50. If, therefore, the petitioner society could successfully persuade the J.D.A. and the owner of the land to allow it to enter upon that land, part with certain money to the society and to develop that land without the scheme having lawfully come into force in the manner provided under Section 50, the petitioner must thank himself and should work out its right only against the J.D.A. For this reason, the petitioner cannot be heard to say that the scheme must be finalised and should be implemented. It has no locus standi to ask for a direction to bring about any such scheme and the petitioner's case does not fall in any of the exceptions noted in S. P. Gupta's case (AIR 1982 SC 149) (supra).
9. Learned counsel for the petitioner urged that the petitioner is a person directly affected and the averments in the petition also show that he claims a right to intervene and maintain this petition because rights have accrued to himself and other person and the petitioner in particular has spent a huge amount for development of the land as an agent of the J.D.A. We have pointed out that at the stage when the petitioner intervened, the J. D. A. had not and could not acquire any interest in the land nor could any other person make any investment upon that land with a view to develop it. If the petitioner and the J.D.A. joined hands to circumvent and bypass the mandatory provisions contained in Section 50, the petitioner cannot be heard to say that it should be allowed to claim enforcement of such scheme because his interests are involved and he has spent substantial amount towards implementation of the scheme. In fact, at the stage when the petitioner came on the scene, the scheme was only at its very preliminary stage. We have earlier shown that precisely for this reason a direction was given by the High Court in earlier writ petition to the J.D.A. and the State Government to proceed in the matter of finalisation of the scheme in the manner provided in Section 50. The scheme was not finalised by the State Government and the petitioner cannot claim that the scheme be finalised and brought into force simply because he has spent certain amount over the development of the land. We are, therefore, of the opinion that the petitioner is not entitled to maintain this petition which must be dismissed on this ground alone. This is more so because the J.D.A. has itself abandoned that scheme when the State Government did not accord its approval to it. The J.D.A. has not come up to question the order of the State Government disapproving the scheme. It may also be noted that under Section 52, it is the town and country development authority alone which is given an opportunity of being heard before a direction to modify or to revoke a particular scheme is made by the Government. No other party is entitled to be heard at that stage. This is additional reason to hold that the petitioner has no right to make a grievance if a town and country planning scheme is modified or revoked and not finalised.
10. We now proceed to consider certain submissions made by the learned counsel for the petitioner on the merits of the case. It was urged that before the State Government turned down the scheme by Document No. 15 in exercise of powers under Section 52 of the Adhiniyam, the petitioner should have been heard. This is said to be so because of the requirements of natural justice as also because the order directly affects the petitioners. We have earlier pointed out that Section 52 (c) which permits the State Government to revoke a town development scheme, only requires that the order/direction itself shall contain reason for so doing and that an opportunity should be given to the town and country planning development authority before the direction to revoke the scheme is made. Under the Adhiniyam, therefore, the only person entitled to be heard was the J. D. A. before the order contained in Document No. 15 was passed by the State Government. We have earlier pointed out that the petitioner came and involved himself at such a stage when there was no scheme as such and what was done was only making of a preliminary publication. Petitioner's learned counsel relied upon National Textile Workers' Union v. P.B. Ramakrishnan, AIR 1983 SC 75 to say that the audi alteram partem rule requires that the petitioner should be heard before the order revoking the scheme was passed. It is true that the said rule which mandates that no one shall be condemned unheard is one of the basic principles of natural justice and is applicable also to quasi-judicial or even to an administrative proceeding involving adverse civil consequences. In that case, the workers of a company were permitted to intervene in the winding up petition although they had no right under the Companies Act to make any such petition because no provision in the Companies Act exclude the workers from appearing at the hearing of winding up petition and because a final order winding up petition would have resulted in termination of the employment without giving them an opportunity of being heard. That case is clearly distinguishable from the present one. Here the petitioner risked certain amount in improving the land even at the preliminary stage of the formation of the scheme and before the scheme could pass through various stages as required by Section 50 and before it was finalised and a publication in that behalf was made. Even the land could not be acquired at that stage by the J. D. A. It appears that either under some misapprehension or under a hope of finalisation of the scheme, the petitioner risked the amount and undertook the development of the land. However, for this he cannot be heard to say that a right has accrued to him of being heard before the scheme was abandoned by the State Government. In our opinion, the petitioner is not right in contending that the order (Document No. 15) is bad because the petitioner was not heard before it was passed.
11. It was next argued that the impugned order (Documents Nos. 14 and 15) are arbitrary and non-speaking orders and the grounds stated therein are non-existent. It is, therefore, urged that those orders are liable to be quashed on this count. Section 52(1) (c) of the Adhiniyam permits the State Government to give direction to the Town and Country Development Authority to revoke a town development scheme for reasons to be specified in such direction. The requirement, therefore, is that the reasons for revoking a scheme must be contained in that direction itself. A perusal of Document No. 14 which is a recommendation made by the Director, Town and Country Planning, Madhya Pradesh and the subsequent order (Document No. 15) passed by the State Government accepting that recommendation indicate that the land notified under Scheme No. 47 is not proposed for residence under the master plan. It is a conservation area. The Jabalpur Development Authority has taken up the scheme without proper enquiry and without any demarcation and, therefore, the implementation of the scheme shall be contrary to the master-plan. Such recommendation made by the Director, Town and Country Planning was accepted by the State Government. The State Government, therefore, passed an order vide Document No. 15 that it will not be in the public interest to permit the scheme on a hill side as the scheme tends to destroy the natural beauty. The order also says that it will not be in the public interest to permit a housing scheme in that area as the trees there have to be preserved. The direction itself indicates that before making it the State Government has considered the objections received against the scheme, the explanation of the Jabalpur Development Authority to those objections and the report and recommendation of the Director, Town and Country Planning. We are of the opinion, that the direction contains necessary reasonsand that those reasons have sound basis. The direction/orders, therefore, cannot be struck down either because it is a non-speaking or arbitrary order or that the reasons contained therein have no foundation. This contention is, therefore, rejected.
12. It was also argued for the petitioner that earlier the State Government had formed an opinion that the Scheme No. 47 be finalised and, therefore, now it cannot turn round to say that the scheme is not in public interest or is in violation of the master-plan. The State Government is, therefore, said to be estopped from revoking the scheme. The basis for this argument seems to be certain earlier action of the Jabalpur Development Authority and the State Government in its Town and Country Planning Department relating to this scheme, The averments in the petition and the documents filed along with it in this behalf show that the Jabalpur Development Authority published an intention to take up this development scheme. The petitioner-society entered into an agreement with the Jabalpur Development Authority pursuant to the publication so made. The draft lay-out of the scheme is said to have been approved by the Joint Director, Town and Country Planning, Madhya Pradesh. Certain persons objected to such a scheme and filed a petition in this High Court questioning the activities of the petitioner and that of the Jabalpur Development Authority in this regard (Miscellaneous Petition No. 628 of 1984). Through a return filed in that petition, the Jabalpur Development Authority supported that scheme. The Joint Director, Town and Country Planning also supported that scheme. However, during the pendency of that petition, the Secretary of the Government of Madhya Pradesh in Housing and Environment Department passed an order purporting to act under Section 73 of the Adhiniyam stopping the implementation of Scheme No. 47. The Jabalpur Development Authority was asked to stop any further development of the land through the petitioner. The petitioner then questioned that order of the State Government in Miscellaneous Petition No. 1121 of 1984. In a return filed in that petition, the Director, Town and Country Planning supported the action and stated that the plan was approved by the State Government. The High Court, however, treated that order of the State Government as an interim order and directed the State Government to take a final decision soon. It was thereafter that the Jabalpur Development Authority was directed to take steps under Section 50 of the Adhiniyam. Then after receiving all the relevant reports, the State Government directed revocation of the scheme. One thing which is clear is that the development work undertaken by the petitioner either under the contract or as an agent of the Jabalpur Development Authority was at a stage when the scheme had actually not come into force and was only at the initial stage of proposal. Even if for any reason the department of Town and Country Planning or any other authority had approved the plans or even observed that it was in accordance with the Town and Development Scheme, it was all done before steps were taken to bring about a proper housing scheme as required by Section 50 of the Adhiniyam. As we have shown earlier, the land could be acquired and the petitioner could be asked to take up the development and the construction work only thereafter. There was, therefore, no representation by the State Government of having approved or sanctioned any scheme in terms of Section 50 of the Adhiniyam which led the petitioner to enter into contract with the Jabalpur Development Authority and proceed to develop the land and invest capital in so doing. For this reason, we cannot hold that the State Government is estopped from directing revocation of the scheme in exercise of power under Section 52 (1)(c) of the Adhiniyam.
13. Equally untenable is the argument based upon the contention that having once formed an opinion that the schemes in public interest, the State Government cannot exercise power under Section 52(1)(c) of the Adhiniyam to revoke the scheme as being not in public interest. Reliance upon the provisions of Section 74 of the Adhiniyam in this behalf is entirely misplaced. When earlier it is alleged that the Town and Country Planning Department of the State opined that scheme was in accordance with the Master Plan, in fact, there was no scheme as such under the Adhiniyam. At the cost of repetition, it must be stated that at that stage only a preliminary proposal was made and published by the J. D. A. If, therefore, there had been any correspondence between the J.D.A. and the Director/Joint Director, Town and Country Planning of the State, and if some opinion has been expressed by Town and Country Planning Department, it cannot be said that the said expression of the opinion was an order under Section 74 of the Adhiniyam. As the scheme of the Adhiniyam appears after a housing scheme is finalised under Section 50 of the Adhiniyam, the power is given to the State Government under Section 52 to give directions including direction to revoke the town development scheme. The powers under Section 74 of the Adhiniyam are powers of review. The State Government is permitted thereunder to review the town improvement schemes etc. sanctioned under any enactment for the time being in force and permits the State Government to revoke, vary or modify any State Government Scheme, plan, permission, or sanction in order to bring such scheme, plan, permission or sanction in conformity with the provisions of the Act. We are of the opinion that any expression or opinion by the Town and Country Planning Authorities prior to the coming into force of the Scheme No. 47 will not estop the Government from forming of opinion leading to an action under Section 52(1)(c) of the Adhiniyam based upon the material put before it and collected under the steps taken under Section 50 of the Adhiniyam. This argument, therefore, also fails.
14. No other point was urged. The petition fails and is dismissed. There shall be no order as to costs. Security amount be refunded to the petitioner.