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PETITIONER: T.N. RUGMANI AND ANOTHER

       Vs.

RESPONDENT: C. ACHUTHA MENON AND ORS.

DATE OF JUDGMENT20/12/1990

BENCH: SAHAI, R.M. (J) BENCH: SAHAI, R.M. (J) SAIKIA, K.N. (J)

CITATION:  1991 AIR  983            1990 SCR  Supl. (3) 638  1991 SCC  Supl.  (1) 520 JT 1991 (1)   265  1990 SCALE  (2)1317

ACT:     Town   Planning  Act/Town  Planning--Sections   8,   10, 15/Rules  32  (a) and 33(a) (b)--Trichur  Urban  Development Authority--Sanction for construction of building----Validity of.

HEADNOTE:   Municipal  Council  of  Trichur  framed  certain  schemes, including the West Road Scheme in 1976 and thus intended  to acquire  the lands in question but since the scheme was  not published for two years, as required by law, it lapsed, with the  result the lands sought to be acquired  stood  released from  acquisition. In 1981 the State Government  constituted TUDA under Town Planning Act but even this body did not take any  step till June 1983. The owners of the land  were  thus free  to  use their lands subject to  any  restriction,  for instance  sanction of maps etc. by Municipal  Council.  Even though  the  lands  in question did not  form  part  of  any plan/scheme.  The owners thereof were subjected to  a  great deal of harassment whenever anyone of them approached  these authorities, M.C. and TUDA for permission to construct or to approve the map. This led these owners to approach the State Government  against  unreasonable attitude  of  these  local authorities and the Government after as certaining from  the Town Planner that no scheme was pending directed the author- ities  concerned to sanction plan and  permit  construction. Such  an order in respect of survey Nos. 887 and 888,  owned by  Unnikrishnan  was passed in 1982. In March  1983,  TUDA, took a decision to notify that West Road Development  Scheme of 1976 but the Government stayed it. Thereupon Unnikrishnan M.B. Menon filed an application before the Municipal  Corpo- ration for permission to build on the disputed land, a  shop building. It was sanctioned by the Municipal Council subject to its approval by the TUDA which in turn informed that  the application  would be considered after notification  of  the scheme. The State Government when informed however, took the view  that  it would be unfair to deny the  petitioners  the permission applied for as it was the fault of the  authority not to have taken prompt action to get the necessary records and notify the scheme and consequently, the State Government directed  the authority to accord its approval to the  plans

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submitted by the petitioners. Some negotiations between  the TUDA and the petitioners thereafter proceeded regarding 639 providing set-backs etc. but the TUDA did not pass any order permit.  ting construction. Thereupon  Unnikrishnan  through EPG filed a writ petition (No. 5287 of 1988) before the High Court  complaining against the flagrant disregard of  provi- sions  of  law by the Urban Development  Authority  and  the Municipal  Council. Trichur and praying for a  mandamus  di- recting these authorities to accord permission to the  peti- tioner to raise construction in compliance with the  permis- sion  granted by the State Government. By an  interim  order dated  5.7.1983, the High Court directed the TUDA to  permit the  petitioner to construct a building in  accordance  with the permission granted by the Trichur Municipality. On  29th July, the TUDA passed the order permitting the petitioner to construct subject to decision of writ petition. After  grant of  interim order, UK, the owner, handed over possession  of the  land to SN and executed the sale deed in favour of  his wife in October 1983. It appears the appellants attempted to raise further construction by adding another story for which they had no permission.     In  order to change their said action, a  writ  petition was  filed  by Shri Achuta Menon, Ex-Chief Minister  of  the State-respondent under the public interest litigation alleg- ing  that the Government was not discharging its  Obligation of  fulfilling non-official vacancies on the board of  TUDA. The petition further alleged connivance between the  Govern- ment and the petitioner-UK in securing permission  regarding construction  attributing the same to the influence that  UK was  wielding with the Government. The High Court  dismissed the  writ  petition filed by UK holding the same to  be  not maintainable  for  lack of bona-fide and  allowed  the  writ petition fried by the respondent and gave certain directions to  the Municipal Corporation to take appropriate action  in relation to the construction, raised in pursuance of interim order  granted by the High Court. The Division Bench  having affirmed the order passed by the Single Judge, these appeals have been filed in this Court, against those orders Allowing the appeals, this Court,     HELD:  On the issue of non-maintainability, it may be stated  that denial of constitutional remedy, for this  rea- son, cannot be equated with bad faith or lack of  bona-fide. The  scope of the two are different. In one a person may  be honest  and his grievance genuine, yet the Court may not  be able to grant him any relief as any part of it the cause  of action  did  not arise within the  territorial  jurisdiction exercised by the High Court or the petition may be defective as  the person approaching may not be entitled to  file  it. That is something akin to lack of jurisdiction. 640 The  other,  namely, dismissal for bad faith arises  due  to improper conduct of the person invoking jurisdiction  either before or after presentation of the petition. [641H-642B]     Even  an  unassailable cause or  illegal  and  arbitrary order  may fail to move the conscience of the Court  due  to inequitable  and unjustifiable behavior or conduct in  equi- table  jurisdiction. The basic error committed by  the  High Court  was  that  it did not keep in  mind  the  distinction between non-maintainability and lack of bona-fide. [642C]     The TUDA acted arbitrarily and without any justification in withholding the permission. [652C]     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). [653F]

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   Even  assuming that in the interest of planned  develop- ment,  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 routed through it, the TUDA could not  withhold it as it was contemplating to revive some scheme. [654B]     Chhetriya  Pardushan Mukti Sangharsh Samiti v. State  of U.P. and Ors., JT 1990 3 SC 685; Ramsharan Autyanuprasi  and Ors.  v. Union of India & Ors., [1989] Suppl. 1 SCR 251  and Schidanand Panday and Anr. v. State of West Bengal and  Ors. [1987] 2 SCC 295, referred to.

JUDGMENT: