Madhya Pradesh High Court
Anupam Shahakari Griha Nirman Samithi ... vs State Of Madhya Pradesh And Ors. on 25 August, 1988
Equivalent citations: AIR1989MP163, AIR 1989 MADHYA PRADESH 163
JUDGMENT C.P. Sen, J.
1. This is a petition under Article 226 of the Constitution for quashing of the order of respondent 2 dated 20-11-1987, refusing permission for development of the land, and the order dated 16-11-1987 of respondent 3, refusing to issue no objection certificate to the petitioner-society for development of the land for housing purposes. The petitioner is also seeking a declaration that the draft scheme published in the M.P. Gazette dated 11-9-1987 be declared invalid, and non-existing and a declaration that there is a deemed permission granted to the petitioner to develop the land.
2. The petitioner is a co-operative housing society registered under the M.P. Cooperative Societies Act, 1960. M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973, (hereafter referred to as the 'Adhiniyam') has been enacted to make provision for planning and development and use of land, to make better provision for the preparation of development plans and zoning plans with a view to ensuring that town planning schemes are made in a proper manner and their execution is made effective to constitute Town and Country Planning Authority for proper implementation of town and country development plan. Under Chap. IV, the State Government may, by notification, constitute planning areas for the purposes of the Act and defines the limits thereof. Section 14 enjoins on the Director to prepare a development plan. Such a development plan for the Raipur City was sanctioned by the State Government on or about 9-9-1976. Chapter VI of the Adhiniyam deals with control of development and use of land. Under Section 24 thereof, the overall control of development and use of the land vests in the State Government and subject to rules framed under the Adhiniyam, the overall control of development and use of land in the planning area shall vest in the Director. The State Government by notification, may apply the said rules to any planning area, from such date, as may be specified therein. Under Section 25, the use and development of the land shall conform to the provisions of the development plan, and Section 26 prohibits development of any land without the permission in writing of the Director. Section 27 provides for development undertaken on behalf of the Union or the State Government. Section 28 deals with development by local authority or by any authority constituted under this Act. Under Section 29, any other person intending to carry out any development of any land shall make an application in writing to the Director for permission in such form and containing such particulars and accompanied by such documents, as may be prescribed. Under Section 30, the Director may grant permission unconditionally or conditionally, or refuse permission by stating the grounds for the same. Under Sub-section (5) if the Director does not communicate his decision, whether to grant or refuse, to grant permission, within sixty days from the date of receipt of application, such permission shall be deemed to have been granted to the applicant on the expiry of sixty days. The Regional Joint Director (respondent 2 has been delegated certain powers of the Director, among others, under Sections 29 and 30 of the Adhiniyam. In exercise of the powers conferred by Section 85 of the Adhiniyam, the State Government has framed the M.P. Nagar Tatha Gram Nivesh Niyam, 1975 (hereafter referred to as the 'Niyam'). Chapter VII deals with the constitution of Town and Country Development Authority. Under Section 38, the State Government may, by notification, establish a Town and Country Development Authority by such name and for such area, as may be specified in the notification. The Raipur Development Authority was constituted under Section 38 by notification dated 7-4-1977. Under Section 50(1) the Town and Country Planning Authority may, at any time, declare its intention to prepare a town development scheme. Under Sub-section (3), not later than two years from such declaration, the Town and Country Development Authority shall prepare a town development scheme in draft form and publish it in such form and manner as may be prescribed, together with a notice inviting objections and suggestions. The Town and Country Development Authority has to prepare final scheme after considering all the objections and suggestions. There are restrictions on use of land and land development, under Section 53, as from the date of publication of the declaration to prepare a town development scheme, save in accordance with the development authorised by the Director, Under Section 54, if the Town and Country Development Authority fails to implement the town development scheme within a period of three years from the date of publication of final scheme, it shall, on the expiry of the said period, lapse.
3. The petitioner's case is that its aims and objects are to provide for its members, who belong to economically weaker sections of the society, plots of land for construction of houses. The society purchased about 25 acres of agricultural land details of which are given in para 2 of the petition, in Patwari Halka No. 110, in village Shankar Nagar, Circle No. 1, Raipur, by registered sale deeds in the year 1985-86 after'obtaining the requisite permission from the competent authority, under the Urban Land (Ceiling and Regulation) Act, 1976. The society was actuated to purchase the said land, since respondent 1, State Government, by its policy decision dated 30-10-1981, decided to encourage housing societies in towns of over two lacs of population that 25% of the available land will be given to the housing societies for construction of houses and if such Government lands are not available, then to acquire land for the societies. Respondent 3 declared its intention to prepare development scheme under Section 50(1) of the Adhiniyam by notification in the M.P. Gazette dated 30-3-1985 for villages Gudiyari, Mowa, Telibandha. Murena, Tikrapara and Shankar Nagar. The draft scheme under Section 53 of the Adhiniyam, in respect of village Shankar Nagar alone was published in the M.P. Gazette dated 11-9-1987. The petitioner then applied to respondent 2, Regional Joint Director, for permission to develop land, on 2-6-1986. The petitioner was told that necessary fees should be deposited, after permission is granted, but on 6-10-1986, the application for permission was filed, since the petitioner did not produce no objection certificate from respondent 3. According to the petitioner, no such certificate is required to be submitted along with the application for permission in Form VII, but, as advised, the petitioner applied for no objection certificate to respondent 3, on 1-1-1987 and reminders were sent on 23-2-1987 and 18-9-1987. However, the petitioner was informed on 16-11-1987 that no such certificate can be issued, as the draft development scheme has already been published, under Section 50(3) of the Adhiniyam. According to the petitioner, the society has been invidiously discriminated and there is violation of its fundamental rights under Article 14 of the Constitution, inasmuch as respondent 3 has issued no objection certificates to two societies and one individual person, after respondent 3 has notified its intention to prepare development scheme on 30-3-1985. Since respondent 2 did not communicate his decision regarding grant or refusal of permission within 60 days of the receipt of the application on 2-6-1986, there was a deemed permission to the petitioner under Section 30(5) of the Act, and the petitioner is entitled to proceed with his development plan of the purchased land. Besides, since the town development scheme in the draft form was not published within 2 years from 30-3-1985, as required under Section 50(3), the draft scheme published on 11-9-1987 was invalid and inoperative. It was also a mandatory requirement under the rules that the draft scheme should also be published in one or two local newspapers, along with the publication in the gazette, but the publication in the local newspaper was after 2 months on 7-11-1987. Therefore, in any case, the draft scheme not being published within two years of 30-3-1985, it is of no avail to respondent 3.
4. No returns have been filed on behalf of respondents 1 and 2, i.e., the State and the Regional Joint Director, but during the course of arguments, the learned Dy. Advocate General, who appeared for all the respondents, contended that respondents 1 and 2 are adopting the return filed by respondent 3. As per return of respondent 3, it declared its intention to prepare the development scheme under Section 50(1) by notification in the M.P. Gazette on 6-9-1985 and thereafter the draft scheme was published, inviting objections and suggestions, in the M.P. Gazette on 4-9-1987, i.e., within two years of its declaration of intention to prepare the draft scheme and as such the draft scheme has been published as per rules. The petitioner has filed its objection on 1-10-1987 and it will be considered under Section 50(5) of the Adhiniyam, before analysing the scheme. Due to oversight, the draft scheme was again published in the gazette on 11-9-1987. The return is silent regarding declaration of intention published in the M.P. Gazette on 30-3-1985, as alleged by the petitioner, but respondent 2 refers to the M.P. Gazette dated 6-9-1985 about declaration of its intention to prepare draft scheme, which means the declaration of intention to prepare the draft scheme was twice published, so also the draft scheme. According to respondent 3, since the draft scheme was published, so no-objection certificate could not be issued to the petitioner, in view of Section 53 the permission was also not granted under Section 29. Respondent 3 also contended that since the administrator has been appointed to manage the affairs of the society, the present petition filed by the Chairman of the Society is not competent. It is also contended that the petitioner-society has already developed 33.65 acres of land for construction of senior HIG, junior HIG, MIG and LIG houses and as such it is not a society of members belonging to weaker sections of the society.
5. After having heard the parties, we are of opinion that this petition has to be allowed. The petitioner applied to respondent 2 for permission to develop the lands purchased, by registered sale deeds in the year 1985-86, under Section 29 of the Adhiniyam, on 2-6-1986.1 Niyam 12 prescribes that the application shall be in Form VII for permission for development of land. Form VII mentions what documents have to accompany the application for permission. There is no mention of enclosing any no-objection certificate from the Town and Country Development Authority, yet respondent 2 wrongly filed the application on the ground that the petitioner has not furnished "no, objection certificate" from respondent 3. There was also correspondence between the parties and respondent 2 was insisting on production of no objection certificate, and ultimately by order dated 20-11-1987, permission has been refused on the pretext that the area comes within the draft scheme of respondent 3. Under Section 30(5) if respondent 2 failed to communicate his decision regarding grant or refusal to grant permission for development of the land within 60 days, on the expiry of the period, permission shall be deemed to have been granted. As such, the petitioner got a deemed permission on the failure of respondent 2 to communicate his decision within 60 days of the receipt of the application. The period of 60 days is not extended under the proviso to this sub-section, merely because respondent 2 was insisting on production of no objection certificate, when no such certificate was required to be produced under the Act and the rules, nor prescribed in Form No. VII. The petitioner did apply to respondent 3 for issue of no objection certificate on 1-1-1987, but the no objection certificate was refused on 16-11-1987, since respondent 3 had published the draft scheme and it was said no such certificate could be issued in view of Section 53. Respondent 3 declared its intention to prepare town development scheme as back as on 30-3-1985, according to the petitioner, and as back as on 6-9-1985, according to respondent 3, yet respondent 3 issued no objection certificate to one Awaiti Co-operative Housing Society, Raipur, on 20-11-1985 and to one Chhattisgarh Regional Housing Co-operative Housing Society on 30-12-1985; and to an individual, Kewalchand Amalokchand Jain on 14-8-1987. In their cases, respondent 3 did not take the plea that no objection certificate could not be issued in view of the declaration of its intention to prepare the town development scheme under Section 50(1). It is a clear case of discrimination in refusing such a certificate to the petitioner for the adjoining area in similar circumstances.
6. Respondent 3 declared its intention to prepare the town development scheme, as per the gazette notification dated 30-3-1985, according to the petitioner, but by gazette notification dated 6-9-1985, according to respondent 3. Since the town development scheme in draft form was not published within two years of 30-3-1985, publication of the draft scheme in the gazette on 11-9-1987, according to the petitioner, and in the gazette dated 4-9-1987, according to respondent 3, is of no avail and the draft scheme so published is invalid and inoperative. Besides, Rule 18(2) requires that the draft scheme shall be published in the M.P. Gazette and in one or more local Hindi newspapers to give due publicity to intimate that the draft town development scheme has been prepared and is available for inspection. Though the draft scheme was published in the gazette on 11-9-1987/4-9-1987, the publication in the local Hindi paper was only on 7-11-1987. There is non-compliance of Rule 18(2) in not simultaneously publishing the draft scheme in the local Hindi newspaper. The publication in the newspaper was after two months. So the draft scheme is vitiated on this account also. The Supreme Court, in State of U.P. v. Singhara Singh, AIR 1964 SC 358, held that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that the other methods of performance are necessarily forbidden. The Supreme Court, in Giriwar Prasad v. Dukhu Lal, AIR 19.68 SC 90, held that on facts there was no publication in two issues of two newspapers as required by Section 3(2) and the notification was published in the gazette on 14-11-1951. This omission brought about non-compliance with the mandatory provision of Section 3(2), with the result that Section 4(a) did not become applicable at that time and consequently the estate holder continued to be the proprietor and was not divested of his rights in the estate. The Supreme Court was considering the provisions of Bihar Land Reforms Act, 1950. Under Section 3(1) the State Government may, from time to time, by notification declare that the estates or tenures of a proprietor or tenure-holder specified in the notification, have passed to and become vested in the State. Under Sub-section (2), the notification was to be published in official gazette and at least two issues of two newspapers, having circulation in the State of Bihar. Although there was a publication of the notification in the Gazette, but there was no such publication in two local newspapers which was mandatory and, therefore, the Supreme Court held that there was consequently no vesting under Section 4(a) of the Act.
7. With the result, the petition is allowed and the draft scheme in respect of village Shankar Nagar of Raipur, published under Section 50(3) of the Adhiniyam, published in M.P. Gazette dated 4-9-1987/11-9-1987, is quashed and it is declared that there was a deemed permission granted to the petitioner for development of its land under Section 30(5) of the Adhiniyam. Under the circumstances, there shall be no order as to costs. The outstanding security amount shall be refunded to the petitioner.