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TMI Blog1990 (12) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... han Mukti Sangharsh Samiti v. State of U.P. [1990] 3 SCR 739, Ramsharan Autyanuprasi v. Union of India, AIR 1989 SC 549 and Sachidanand Pandey v. State of West Bengal [1987] 2 SCR 223. Merely because authorities constituted under the statute failed in their effort to get interim order vacated was hardly any occasion for invoking jurisdiction under Article 226 by way of public interest litigation. We stop at this as what started as grievance against flagrant disregard of provisions of law by the Urban Development Authority and Municipal Council of Trichur (for brevity TUDA and MC respectively) for unjustifiably, withholding permission to raise construction on land which was not earmarked for any scheme for planned development under Town Planning Act (referred as Act) changed complexion with appearance of no less a person than ex-Chief Minister of the State espousing social cause, joined, later, by a local editor, of newspaper, as well, and this Writ Petition No. 11011/83 became the main petition with impleadment of the appellant and Shri Unnikrishnan (hereinafter referred as UK) the petitioner of Petition No. 5287/83. However, we may hasten to add, to obviate any misgiving, that if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute filed an affidavit admitting that Writ Petition No. 5287 of 1983 was filed on his behalf by his father as holder of power of attorney. He explained that his name was wrongly described in cause title as MBUK. And his father, who signed on his behalf, inadvertently failed to notice the mistake. This was admitted even by EPG, when he appeared as witness. The petition was, thus, filed by a person who was very much there except that his name was incorrectly mentioned. The High Court in view of these facts, unnecessarily, made too much of small inadvertent mistake. From evidence on record, specially deposition of EPG, it is clear that on the date when petition was filed UK was the real owner and there was only a proposal between EPG and Shanker Narayanan (referred as SN) for sale of land in dispute which materialised long after filing of the petition. Therefore, SN could not have filed the petition in March 1983. Accepting everything found by the High Court SN, utmost, was an interested person who could not have approached the Court for issuing a writ of mandamus to State Government since on the date of filing of petition no right or title vested, in the land in dispute, in him. Nor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mptions which are unfounded and proceeded more on imagination than truth. The learned judge drew adverse inference against appellant and fastened falsehood on him because he could not have succeeded in persuading the court that he was not possessed of any land. But what was lost sight of was that ownership of 18 cents of land, only, or number of buildings was totally irrelevant for the relief sought in the petition. The claim was grounded on failure of TUDA to obey direction issued by Govt. to grant permission to construct on the land in respect of which no development scheme was pending and not on possession of any building, land or house. The High Court, thus proceeded on irrelevant considerations in recording the finding that the interim order was obtained by, 'projecting poignant personal grievance'. 6. As regards finding of forgery, fraud and misrepresentation the High Court found. that since the application for permission for sanction, before the local authorities, representation before the Govt., orders in pursuance of it and various other letters exchanged between authorities and the person applying for permission were not signed by the person on whose behalf they w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... already failed. He was informed in December 1982 by TUDA that his application shall be considered after records had been received from Municipality. In the meantime permission had been obtained by M B, brother-in-law of EPG whose wife and son, like his, had inherited the property from the mother-in-law. And it was obtained through none else but SN as appears from deposition of MB. Consequently EPG also entered into proposal with SN in January or February 1983 to sell his land as he was willing to take chance of obtaining permission. But no agreement of sale was executed till June 1983, much after the permission had been obtained. The High Court did not give any weight to the circumstance that in absence of any agreement of sale EPG could have refused to sell it to SN. EPG admitted to have signed an application for sanction of the map. But the application on which sanction was granted was not the one signed by him. From this denial of signature the High Court drew inference against the appellant. But it did not make any effort to advert to other part of the statement which would have demonstrated that the sanction was obtained with his knowledge. It stood clinched by the averments i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mage or injury to any person or to support any claim or title or to commit any act with intention to deceive another. 7. Mistake in mention of names occurring, probably, due to instructions is clear as the application for permission was made in the name of MBUK whereas the representation was made to Govt. in name of MB and writ petition was filed by MBUK. All this was certainly improper. But once EPG filed writ petition and stated about each and every of these applications and that they contained true facts, about which there was never any dispute, then at least his tacit consent express or implied was there. Substantive offence of forgery and ingredients of fraud and misrepresentation or the manner of their proof and procedure to establish them are not necessary to be examined but the High Court was certainly not justified in assuming these against appellant without any finding that the signatures were made to cause harm to person on whose behalf they were made or without their knowledge or that they were untrue. In fact the statements in the applications or representations did not contain any factual inaccuracy. Truly speaking not much survived after EPG took the responsibility i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even this body did not take any step at least till June 83. Effect of lapse of scheme in 1978 and its non-revival till 1983 was that all lands which were subject matter of acquisition stood automatically released and it was available to be used by owners subject to any restriction, for instance, sanction of map etc. by MC. Yet unfortunately, whenever any owner approached the MC and TUDA he was subjected to undue harassment with the result that they approached the Govt. against unreasonable attitude of local authorities and the Govt. after ascertaining from Town Planner that no scheme was pending directed the authorities concerned to sanction plan and permit construction. The earliest such order, which is on record, was passed in 1979 in favour of one Shri Unni in respect of land adjacent to land in dispute. Similar order was passed on application of MB in 1982 in respect of survey No. 887 and 888, a property part of which is in dispute, and, which had come to share of the wives and sons of the two son-in-laws MB and EPG on death of their mother-in-law in 1980. In March 1983, TUDA appears to have taken a decision to notify the West Road Development Scheme of 1976 out the Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken up matter with the Government on which a letter was sent on 25th April to MB to meet the District Collector, Chairman, TUDA and the Municipal Chairman, Trichur at 11-00 a.m. on 29th April for negotiation in connection with the approval of the proposed shopping-cum-office building. Meeting as directed did take place. And on the same day, a letter was sent that in consequence of discussion, the applicant had no objection to provide a setback of 6 mts. in front provided he was permitted to construct without leaving any open space in the rear. Requirement under bye-law was to provide front setback of 3.5 mts. only. Correspondence thereafter went on between TUDA and the Government and on 16th June, the Government issued a letter to the TUDA which is extracted below: With reference to the Letter cited, I am to inform you that Government's intention is not to stall the proper development of the area. As the authority has not so far published the notification Under Section 8 of the Town Planning Act and the party has been waiting for approval for the proposed construction for a long time, the party subject to the following conditions: The party will leave the minimum necessary la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision of writ petition. After grant of interim order, UK, the owner handed over possession, in the last week of July, to SN and executed the sale deed in favour of his wife, in Oct. 1983. 9. The appellants appear to have raised construction and, probably, attempted to add another storey for which they had no permission, therefore, in December 1983, another petition No. 11011/83 was filed in public interest by Shri Achuta Menon, the ex-Chief Minister of the State. It was alleged that Government was not discharging its obligation by fulfilling non -official vacancies on the Board of TUDA. No exception could be taken to it but after mentioning it, the petition proceeded with its real purpose by alleging collusion between appellant and Government, thus, seeking interim order restraining appellant from raising any construction. It was alleged that for implementation of DTP scheme for West Fort Road with width of 25 mts., 10 mts. could be required from the land in dispute besides a setback of 4.5 mts. Plea of ultra vires and mala fide of the Government was raised as, even, when TUDA decided on 2-3-83 to notify the scheme, the Government by its order dated 3-3-83 stayed the issuance of n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t clearly, that when direction was issued by State Govt. on 25th March, 1983 no scheme had been framed by the TUDA under the Town Planning Act. There was, therefore, no statutory requirement for petitioner to have approached it nor was there any power in TUDA to refuse it. The practice of MC to sanction a plan subject to its approval by TUDA, as a matter of routine cannot be appreciated. There can be no rationale for the two authorities to be oblivious of their responsibility by not being aware of latest position and escape by passing on, what is required to be done by one, to other by issuing such orders, unmindful of untold misery and hardship it causes to an ordinary man. But for such attitude permission could not have been refused to EPG in Dec. 82. However, we may not be understood as saying that TUDA should be ignored. What is being stressed is that if in absence of any scheme the development authority receives the plan it should endorse it without any delay. But in this case things moved much ahead. The Govt. which is the ultimate authority whose functions are discharged by local bodies issued directions to TUDA that in absence of any scheme there was no justification to wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... newspapers circulating in the revenue division in which such area is situated. 33(b) after the issue of a notification Under Section 8, the Chairman shall send a notice to every owner who is concerned, drawing his attention to the provisions of Section 15. 13. Reading of these rules together makes it abundantly clear that the restriction, visualized, Under Section 15, of the Act, does not come into operation prior to publication of the second notification under Rule 33(b). This notice was not published till September 1983. That is clear from affidavit filed by TUDA in this Court. It gives out details of resolutions passed by TUDA from 2nd March 1983 deciding to revive eight schemes including West Road Scheme, taking decision on 24th June to notify the scheme Under Section 8 of the Act, publication of notice in Form 4 under Rule 32(a) on 27th June and issuance of notice in Form 5 under Rule 33(b) on 3rd Sept. 1983. Therefore, strictly speaking, the TUDA could not have exercised any power till Sept. 1983 either of sanctioning the plan or withholding it. The State Govt., thus, even in absence of any necessity to get approval of TUDA, did not commit any error in law or fact in issuing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entire episode was, aptly, described by the learned Counsel for appellant as much ado about nothing. 14. For the reasons stated above the appeals succeed and are allowed. Order dated 25th March 1985 and 12th April 1985 passed by the learned single Judge and Division Bench of the High Court are quashed. The Writ Petition No. 5287/83 is allowed subject to following directions. Writ Petition No. 11011/83 is dismissed, except to the extent the Court directed the Govt. To fill the posts of non-official members. (1) The appellant shall be permitted to raise construction in accordance with permission granted by the Municipal Council and the TUDA, if it has not been completed as yet. (2) From the Commissioner's report and the Surveyor's report it appears that drain is in the appellant's land, therefore, the requirement of leaving 6 metres was complied with. However, we still leave it open to the TUDA to examine the matter and in case there is any breach and the appellant had encroached upon .5 or .6 over and above the land which he was required to leave then the area being nominal it may be compounded in accordance with law. (3) In case the State Govt. finally sanctions the sc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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