T.N. RUGMANI AND ANOTHER v. C. ACHUTHA MENON AND ORS

Citation: [1990] SUPP. 3 S.C.R. 638

Court: Supreme Court of India

Bench: K.N. SAIKIA, R.M. SAHAI

Case summary

Taking up the issue of non-maintainability it may be stated that denial of constitutional remedy, for this reason, cannot be equated with bad faith or lack of bona fide....

Judgment text

The Judgment of the Court was delivered by R. M. Sabai, J. 'Much ado about nothing' or the appellants were r I T. N. RUGMANJ v. C. A. MENON [SAHA! , J. l 641 guilty of 'condemnable conduct' disentitling them from any relief in equity jurisdiction was the issue which was debated, vigorously, in these appeals directed against order of the Kerala High Court. More so because the High Court, not only, dismissed the writ petition of appellants but issued directions, in a public interest litigation to the Municipal Council to take appropriate action in relation to the construction, raised in pursuance of interim order granted by the court. Nature of public interest litigation, its pro bona pub/ico content, justification for entertaining it are not.

proposed to be gone into but it need be observed that the court being ceased of a petition dealing with same subject matter, it would have been more appropriate if, it could have exercised restraint in light of the law laid down by this Court in Chhetriya Pardushan Mukti Sangharsh Samiti v. State of U. P. & Ors. , JT 1990 3 SC 685; Ramsharan Autyanuprasi & Ors. v. Union of India & Ors. , ]1989- Suppl. 1 SCR 251 and Schidanand Pandey & Anr. v. State of West Bengal & Ors. , [1987] 2 SCC 295. Merely because authorities constituted under the statute failed in their effort to get interim order vacated was hardly any occasion for invoking jurisdic- o tion 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 the finding recorded by the High Court that the Writ Petition No. 5287/83 was not maintainable or e called Notification No. 1 shall be in Form No.

4 and shall be published on the notice board of the office of the muni· cipal council. 33(a) A notice in Form No. 5 shall also be published within 30 days ofthe date of publication of Notification No. 1 under Rule 32(a). (i) on the notice board of the office-of every Tahsildar within whose revenue jurisdiction any portion of the area proposed to be included in the scheme is situated; (ii) in the Government Gazette; and (iii) in one or more 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. '' Reading of these rules together makes it abundantly clear that the restriction Visualized, under section 15, of the Act, does not come p 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 h~ve 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 la_w or fact in issuing the direction in March .. __,• 1983, presumably, in interest of development to sanction the plan for construction of the building, Even assuming that in the interest of planned development no one could be permitted to build or construct a building unless the plan had been approved by the TUDA or it is at .

least ranted through it, the TUDA could not withhold it as it was contemplating to revive some scheme. In any case putting th~ case of TUDA at the highest and assuming that the restriction of Section 15 had come into operation it only required owner of land to construct a building after obtaining permission from the authority. It was, obviously, complied as the Govt. on intimation from TUDA modified its direction in April 1983 and permitted TUDA to sanction the plan only on the area which was not needed for widening the road. The TUDA did consider it and passed a resolution on 12th April 1983, as stated in the counter affidavit filed by it in the High Court, authorising the Chairman of TUDA and MC to negotiate with owner to find out if he was agreeable to leave sufficient road in front of proposed shop building as per shop building rules for widening the road. It was in pursuance of this that the owner ultimately agreed to leave 6 metres in front instead of 3.

5 metres as required in the bye-laws. The TUDA and MC agreed to it as appears from the statement in counter-affidavit filed by the TUDA in High Court. Relevant part of it is extracted below: "On 23. 6. 83, presumably after knowing the contents of Ext. R3(d), petitioner addressed a letter to the Sectetary, Development Authority, informing him that the petitioner is prepared to construct the building in accordance with the revised plan submitted along with letter, providing a front set back of 6 metres and a rear space of 3 metres. The development authority considered this request at its meeting on 24. 6. 83 and decided to consider the request of the petitioner for sanction after a survey of the land etc. as is seen from its resolution ll(a). " Yet the order was not passed. Be it so but it leaves hardly any room for doubt that the authorities were satisfied that if the owner constructed the building after leaving six metres it would not come in way of widening the road.

The subsequent going back on it because the owner approached the court since the matter was being delayed, to say the least, was neither proper nor fair. The entire episode was, aptly, described by the learned counsel for appellant as much ado about nothing. -~ "'" T. N. RUGMANI v. C. A. MENON (SAHA( J. ] 6')5 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. Wtit 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 TODA, 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 scheme under Section 12 of the Act and it becomes necessary to widen the road to such an extent that it may result in demolition of whole or any part of appellant's building then the appellant shall be compensated for the same, in accordance with law on the prevalent market rate. (4) Parties shall bear their costs throughout. But the direction of the learned single Judge for paying costs of Commissioner and witnesses shall remain intact. Y. Lal Appeals allowed. •