Holding

Approval under Exception (iii) of Section 59(1)(a) need not be obtained prior to the notification; once granted, it validates earlier acts, rendering the notification and declaration valid.

Summary

The Uttar Pradesh Avas Evam Vikas Parishad issued a notification under Section 28 of the 1965 Adhiniyam on 7 June 1982 and later obtained Government approval on 24 August 1982, followed by a declaration under Section 32 on 28 February 1987. Friends Cooperative Housing Society filed a writ petition contending that the notification and declaration were invalid because prior approval under Exception (iii) of Section 59(1)(a) of the Uttar Pradesh Urban Planning and Development Act, 1973 had not been obtained. The Allahabad High Court held the notification and declaration inoperative, prompting an appeal to the Supreme Court. The Supreme Court examined the language of Exception (iii) and held that prior approval is not a pre‑condition; once the State Government gives approval, earlier acts undertaken in anticipation are validated. Consequently, the notification and declaration were deemed valid. The Court also noted that the respondents' right to shelter, derived from Articles 19(1)(e) and 21 of the Constitution, does not warrant interference in this case. The appeal was dismissed.

Issues considered

Whether prior approval of the State Government under Exception (iii) of Section 59(1)(a) of the U.P. Urban Planning and Development Act, 1973 is a pre‑condition for the validity of a notification under Section 28 and a declaration under Section 32 of the U.P. Avas Evam Vikas Parishad Adhiniyam, 1965.
Whether the Supreme Court can interfere with the High Court's decision on the validity of the notification and declaration.

Legislation cited

Industrial Disputes Acts. 33(2)(b)
Land Acquisition Act, 1890s. 4(1), s. 6
Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965s. 28, s. 3, s. 32
Uttar Pradesh Urban Planning and Development Act, 1973s. 59(1)(a)

Subjects

U.P. Urban Planning and Development ActAvas Evam Vikas Parishad Adhiniyamnotificationdeclarationprior approvalException (iii)right to shelterArticle 19(1)(e)Article 21housing schemeland acquisition

Judgment

U.P. AVAS EVAM VIKAS PARISHAD AND ANR. A
v.
FRIENDS COOPERATIVE HOUSING SOCIETY LTD. AND ANR.

APRIL 24, 1995

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

, U.P. Urban Planning and Developm.ent Act, 1973: Section 59( l)(a)-
) Exception IIl-fnterpretation of

U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 :
c
Housing Scheme-Notifications for--<Jovemment approval subsequent
to issue of notification-Held approval valid dates previous action taken in
anticipation of a approval-Notification and declaration published under
Sections 28 and 32 held valid.

For a development scheme the appellant·Vikas Parishad published
D
a Notification dated 7th June, 1982 under Section 28 of the U.P. Avas Evam
Vikas Parishad Adhiniyam, 1965. It sought Government's approval of the
scheme on July 27, 1982 which was granted on August 24, 1982. The
declaration under Section 32 was published on February 28, 1987. The
respondents filed a writ petition before the High Court which held that the E
notification issued under Section 28 and the declaration Issued under
Section 32 of the Adhiniyam were invalid and Inoperative since the prior
approval of the Government was not obtained under Exception (Iii) to
.. J Section 59(1)(a) of the U.P. Urban Planning and Development Act, 1973.

Against the decision of the High Court an appeal was preferred F
before this Court.

Dismissing the appeal, this Court

HELD : 1. The approval envisaged under Exception (Iii) of Section
59(l)(a) of the U.P. Urban Planning and Development Act, 1973 is to enable G
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
get validated and the publications made under the Act thereby become H
729
730 SUPREME COURT REPORTS [1995] 3 S.C.R.

A valid. If prior approval would have been a pre- condition for further steps,
the Act would have said so. This not having been done, 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
B the guise of framing the schemes. [732-H, 733-A, 732-C]

Life Insurance Corporation of India v. Escorts Ltd. & Ors., [1986] 1
SCC 264 and Lord Krishna Textiles Mills Ltd. v. Workmen, [1961] 1 L.LJ.
211, referred to.

C Narinder Mohan Foundation Tmst v. Special Land Acquisition Officer,
Meerut, Writ Petition No. 17372 of 1987 decided by Allahabad High Court
on 18.3.1993, disapproved.

2. On similar facts when the appellant itself has compromised with
others and the same has not been extended to the respondents, it is not a
D fit case for Court's 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 Article 19(1)(e) and right to life under Article 21 of the Con-
stitution. No doubt their construction has also to be in accordance with
E lay out and building rules but that would not be a ground to refuse
permission to them when they approach the authorities to sanction the
same in accordance with law. [733-B, CJ

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5433 of
1995.
F
From the Judgment and Order dated 19.8.1994 of the Allahabad
High Court in C.M.W.P. No. 14708 of 1984.

M.N. Krishnamani and P.K. Jain for the Appellants.

G A.S. Pundir for the Respondents.

The following Order of the Court was delivered :

Leave granted.

H We }ave heard learned counsel on both sides. Since there is a
U.P. AVAS EVAM VJKAS PARIS HAD •.. FRIENDS COOPERATIVE HOUSING SOCIETY LID. 731

conflict of decisions rendered by the High Court of Allahabad on inter- A
pretation of exception (iii) to s.59(1)(a) of the U.P. Urban Planning and
Development Act, 1973 (for short, 'Act'), we are inclined to resolve the
conflict.

Declaration under s.3 was published on September 3, 1977. Notifica-
tion under s.28 of the U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 B
(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 C
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, Meeru~ 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, D
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 E
(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 having
been notified under s.28 of the said Adhiniyam before the said
declarations are thereafter 'approved' by the State Government for F
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 the Special Avas Parishad
Schemes shall in respect of a development area remain
suspended ..... "
G
) 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 Adhiniyama, namely, : (i) Schemes which have been
notified under s.32 of the Adhiniyam before the declaration under s.3 of H
r

732 SUPREME COURT REPORTS [1995) 3 S.C.R.

A 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.

B 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 Art would have said so.
c 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 im-
plementation of the scheme alone should be acquired and not in excess in
the guise of framing the schemes.

D
This Court in Life Insurance Corpn. of India v. Escorts Ltd. & Ors.,
[1986] 1 sec 264, considering the distinction between "special permission"
r
11 11
and general permission", "previous approval or prior approval" in para-
11

graph 63 held that 11we are conscious that the word 11prior11 11 previous" may
be implied if the contextual situation or the object and design of the
E legislation demands it, we find no such compelling circumstances justifying
reading ·any such i'11plication into s.29{1) of the Act". Ordinarily, the
difference between approval and permission i~ 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 sub-
sequently granted may validate the previous act As to the word "approval"
F
in s.33(2)(b) of the Industrial Disputes Act, it was stated in Lord Krishna
textiles Mills Ltd. v. Workmen, [1961] 1 L.LJ. 211 at 215-16 that the
management need not obtain the previous consent before taking any action.
The requirement that the management must obtain approval was distin-
guished from the requirement that it must obtain permission, of which
G mention is made in s.33{1).

.f
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 Govern-
H ment, the Board may not effectively implement the scheme. Nevertheless,
\

U.P. AVAS EVAM VIKAS PARISHADv. FRIENDS COOPERATIVE HOUSING SOCIETY LID. 733

• -'I" once the approval is given, all the previous acts done or actions taken in A
anticipation of the approval get validated and the publications made under
·the Act thereby become 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 B
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 ~ccordance with C
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.
D
T.N.A. Appeal dismissed.