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High Court Of Madhya Pradesh
C. P. SEN, Y. B. SURYAVANSHI
ANUPAM SHAHAKARI GRIHA NIRMAN SAMITHI MARYADIT, RAIPUR - Appellant
Versus
STATE OF M.P. - Respondents
MISC. PETN. 3857 Of 1987
Decided On : 08/25/1988
M. P. NAGAR TATHA GRAM NIVESH ADHINIYAM, 1973 - DEVELOPMENT OF LAND - PERMISSION - DEEMED PERMISSION - DRAFT SCHEME - PUBLICATION - VALIDITY - DISCRIMINATION - TOWN AND COUNTRY PLANNING AUTHORITY - NO OBJECTION CERTIFICATE - ISSUANCE - CONDITIONS - INTERPRETATION OF STATUTES - MANDATORY PROVISIONS - COMPLIANCE - LEGAL PRINCIPLES.
Fact of the Case:
The petitioner, a cooperative housing society, purchased agricultural land in Raipur, Madhya Pradesh, with the aim of providing plots to its members for construction of houses. The petitioner applied to the Regional Joint Director (respondent 2) for permission to develop the land under Section 29 of the M. P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 (the 'Adhiniyam'). Respondent 2 refused permission on the ground that the area came within the draft scheme of the Raipur Development Authority (respondent 3). The petitioner challenged the refusal of permission and the validity of the draft scheme.
Finding of the Court:
The court held that the petitioner had obtained a deemed permission for development of the land under Section 30(5) of the Adhiniyam, as respondent 2 failed to communicate his decision within 60 days of receiving the application. The court also held that the draft scheme published by respondent 3 was invalid and inoperative as it was not published within two years of the declaration of intention to prepare the scheme, as required under Section 50(3) of the Adhiniyam. Additionally, the court found that respondent 3 had discriminated against the petitioner by refusing to issue a no-objection certificate, while issuing such certificates to other societies and individuals in similar circumstances.
Issues: 1. Whether the petitioner had obtained a deemed permission for development of the land under Section 30(5) of the Adhiniyam? 2. Whether the draft scheme published by respondent 3 was valid and operative? 3. Whether respondent 3 had discriminated against the petitioner by refusing to issue a no-objection certificate?
Ratio Decidendi: 1. The court interpreted Section 30(5) of the Adhiniyam and held that if the Director (or the Regional Joint Director, in this case) fails to communicate his decision regarding grant or refusal of permission for development of the land within 60 days, permission shall be deemed to have been granted to the applicant on the expiry of the period. The court found that respondent 2 had not communicated his decision within 60 days, and therefore, the petitioner had obtained a deemed permission. 2. The court interpreted Section 50(3) of the Adhiniyam and held that the draft scheme should be published within two years of the declaration of intention to prepare the scheme. The court found that respondent 3 had not published the draft scheme within two years, and therefore, the draft scheme was invalid and inoperative. 3. The court found that respondent 3 had issued no-objection certificates to other societies and individuals in similar circumstances, while refusing to issue such a certificate to the petitioner. The court held that this was a clear case of discrimination.
Final Decision: The court allowed the petition, quashed the draft scheme published by respondent 3, and declared that the petitioner had obtained a deemed permission for development of its land under Section 30(5) of the Adhiniyam.
( 1 ) THIS is a petition under Art. 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. Co-operative 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 S. 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 suchdate, as may be specified therein. Under S. 25, the use and development of the land shall conform to the provisions of the development plan, and S. 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 S. 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 S. 30, the Director may grant permission unconditionally or conditionally, or refuse permission by stating the grounds for the same. Under sub-s. (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 Ss. 29 and 30 of the Adhiniyam. In exercise of the powers conferred by S. 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 S. 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 S. 38 by notification dated 7-4-1977. Under S. 50 (1) the Town and Country Planning Authority may, at any time, declare its intention to prepare a town development scheme. Under sub-s. (3), not later than two years from such declaration, the Town and Country Development Authority shall prepare a town development
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