Hon'ble Ravindra Nath Kakkar, J.
Darbhanga Colony Welfare Association, Allahabad and Darbhanga Colony Pooja Committee have filed this petition purportedly in the public interest for quashing the amendment made on 4 March 2014 in the schedule to the Allahabad Master Plan 2021 granting permission for building Nursing Home in residential areas (R-2, R-3) on roads having a width of at least 12 metres as against the earlier requirement of 18 metres. The petitioners have also sought the quashing of the order dated 19 November 2014 by which the Vice Chairman of the Allahabad Development Authority1 has rejected the objections filed by the petitioners against the notice published on 12 April 2014 inviting objections to the building plan submitted by respondent no.5 for construction of a Nursing Home.
The petitioners are objecting to the construction of a Nursing Home on plots purchased in 2010-11 by respondent no.5 situated at C.Y. Chintamani Road, Darbhanga Colony, Allahabad which were purchased in 2010-11. The petitioners allege that earlier for construction of a Nursing Home, the required width of a road in residential areas (R-2, R-3) under the Master Plan 2021 was 18 metres but after its amendment on 4 March 2014, it has been reduced to 12 metres in residential areas (R-2, R-3). It is this amendment that has been challenged in this petition. The petitioners further allege that even after the amendment, the Development Authority could not have granted approval to the building plan for the Nursing Home since the plots are situated on a road which is less than 12 metres wide.
Chapter III of the Uttar Pradesh Urban Planning and Development Act, 19732 deals with Master Plan and Zonal Development Plan. Section 8(2), which is contained in Chapter III, provides that the Master Plan shall define the various zones into which the development area may be divided for the purposes of development and indicate the manner in which the land in each zone is proposed to be used and serve as a basic pattern of framework within which the zonal development plans of the various zones may be prepared. Section 9(1) provides that simultaneously with the preparation of the master plan or as soon as may be thereafter, the Development Authority shall proceed with the preparation of a zonal development plan for each of the zones into which the development area may be divided. Section 10(2) provides that every plan shall after its preparation be submitted by the Development Authority to the State Government for approval and that the Government may either approve the plan without modification or with such modifications, as it may consider necessary, or reject the plan with directions to the Development Authority to prepare a fresh plan according to such directions. Section 11, which deals with procedure to be followed in the preparation and approval of the plan, stipulates that before preparing any plan finally and submitting it to the State Government for approval, the Development Authority shall prepare a plan in draft and publish it by making a copy thereof available for inspection and publishing a notice in such form and manner as may be prescribed by regulations made in that behalf inviting objections and suggestions from any person with respect to the draft plan before such date as may be specified in the notice. After considering all objections, suggestions and representations that may have been received, the Development Authority shall finally prepare the plan and submit it to the State Government for its approval.
Chapter IV deals with amendment of the Master Plan and the Zonal Development Plan and is follows:
"13. Amendment of Plan.-
(1) The Authority may make any amendments in the master plan or the zonal development plan as it thinks fit, being amendments which, in its opinion do not effect important alterations in the character of the plan and which do not relate to the extent of land uses or the standards of population density.
(2) The State Government may make amendments in the master plan or the zonal development plan whether such amendments are of the nature specified in sub-section (1) or otherwise.
(3) Before making any amendments in the plan, the Authority, or as the case may be, the State Government shall publish a notice in at least one newspaper having circulation in the development area inviting objections and suggestions from any person with respect to the proposed amendments before such date as may be specified in the notice and shall consider all objections and suggestions that may be received by the Authority or the State Government.
(4) Every amendment made under this section shall be published in such manner as the Authority or the State Government, as the case may be, may specify, and the amendments shall come into operation either on the date of the first publication or on such other date as the Authority or the State Government, as the case may be, may fix.
(5) When the Authority makes any amendment in the plan under sub-section (1) it shall report to the State Government the full particulars of such amendments within thirty days of the date on which such amendments come into operations.
(6) If any question arises whether the amendments proposed to be made by the authority are amendments which effect important alterations in the character of the plan or whether they relate to the extent of land uses or, the standards of population density, it shall be referred to the State Government whose decision, thereon shall be final.
(7) Any reference in any other Chapter, except Chapter III, to the master plan or the zonal development plan shall be construed as a reference to the master plan or the zonal development plan as amended under this section."
Chapter V deals with development of lands. Section 14, which is contained in Chapter V, deals with development of land in the developed area. It provides that after the coming into operation of any of the plans in any development area, no development shall be undertaken or carried out or continued in that area unless such- development is also in accordance with such plans. Section 15 deals application for permission. It provides that every person or body (other than any department of Government or any local authority) desiring to obtain the permission referred to in Section 14 shall make an application in writing to the Vice-Chairman in such form and containing such particulars in respect of the development to which the application relates as may be prescribed by the bye-laws Sub-section (3) of Section 15 provides that on the receipt of an application for permission, the Vice-Chairman after making such inquiry as it considers necessary, shall by order in writing either grant the permission, subject to such conditions, if any, as may be specified in the order or refuse to grant such permission. Sub-section (5) of Section 15 provides that any person aggrieved by an order refusing to grant permission may appeal to Chairman against that order.
Section 41 of the Act, which is contained in Chapter VIII, deals with control by the State Government. Sub-section (3) of Section 41 provides that the State Government may, at any time, either on its own motion or on an application made to it in this behalf, call for the records of any case disposed of or order passed by the Development Authority or the Chairman for the purpose of satisfying itself as to the legality or propriety of any order passed or direction issued and may pass such order or issue such direction in relation thereto as it may think fit, provided that the State Government shall not pass an order prejudicial to any person without affording such person a reasonable opportunity of being heard.
A Master Plan 2021 was approved by the State Government. We are concerned with the residential areas (R-2, R-3). Initially, when the Master Plan came into operation, the condition contained for construcing a Nursing Home in residential areas (R-2, R-3) was that the width of the road should not be less than 18 metres. This condition was amended on 4 March 2014 and the minimum width of the road for constructions of a Nursing Home in residential areas (R-2, R-3) was reduced to a minimum of 12 metres. Respondent no.5 had submitted an application before the Vice-Chairman of the Development Authority under Section 15 of the Act for granting permission for construction of a Nursing Home and for that purpose also submitted a building plan and map. On submission of the application, a public notice was published in two newspapers on 12 April 2014 inviting objections/suggestions from the public. It is stated that three objections were filed including two by the petitioners. The basic objection that was raised was that the proposed construction of a Nursing Home was to be carried out on a plot that was situated on a road having a width of less than 12 metres. The Committee constituted by the Vice-Chairman for this purpose recommended that the proposed construction was on a road which was more than 12 metres wide and that the width of the road was proposed to be 24 metres in the Master Plan 2021. The Vice-Chairman of the Development Authority examined the documents on record and the recommendations. The objections were rejected and the building was approved. This petition has been filed to challenge the rejection of the objections by the Vice Chairman of the Development Authority to the construction of a Nursing Home in residential areas (R-2, R-3).
Sri Shyamal Narain, learned counsel for the petitioners has raised two submissions. The first is that the amendment that was carried out in the schedule to the Master Plan 2021 reducing the width of the road for construction of a nursing home in residential areas (R-2, R-3) from 18 metres to 12 metres is a mala fide exercise of power to confer undue benefit to respondent No. 5 and that in any case the Development Authority committed an illegality in approving the building plan submitted by respondent No. 5 for construction of a nursing home since the width of the C.Y. Chintamani road is less than 12 metres. Learned counsel submitted that from a perusal of the short counter affidavit that has been filed on behalf of the Development Authority for determining the width of the road, the width of the Nala and Nali existing on the two sides of the road have been added to determine the width of the road. The submission is that this cannot be added as portion of the Nala and Nali cannot be utilized by the public for movement. For this purpose, learned counsel pointed out that even from the site map enclosed with the inspection report it is clear that the width of the road is only 6.10 metres and the two Nala and Nali on the side of the road are each 3.70 metres wide.
Sri Anoop Trivedi, learned counsel appearing for the Development Authority has, however, submitted that the schedule to the Master Plan was amended in accordance with the procedure prescribed under the Act and no mala fides can be attributed. It is his submission that the authorities have found as a fact that the width of the road is more than 12 metres and, therefore, the Development Authority committed no illegality in rejecting the objections filed by the petitioners and approving the building plan submitted by respondent no.5 for construction of a Nursing Home. Learned counsel also submitted that the petitioners have a statutory alternative remedy of filing a Revision before the State Government under Section 41(3) of the Act.
Sri S.P. Gupta, learned Senior Counsel appearing for respondent no.5 assisted by Sri Shailendra has submitted that the Vice-Chairman of the Development Authority has recorded good and cogent reasons for rejecting the objections filed by the petitioners and once a finding of fact has been recorded that the width of the road is more than 12 metres, this petition should not be entertained. It is also his submission that in any view of the matter, the petitioners can file a Revision before the State Government under Section 41(3) of the Act in case they are not satisfied with the findings recorded by the Vice-Chairman against the sanction of the building plan submitted by the Development Authority. Learned Senior Counsel also contended that a Public Interest Litigation for this grievance would not be maintainable as the petitioners had filed objections which were rejected.
We have considered the submissions advanced by learned counsel for the parties.
The first contention advanced by learned counsel for the petitioners is that the amendment that was carried out in the schedule to the Master Plan for reducing the width of the road from 18 metres to 12 metres in regard to the construction of a nursing home in residential areas (R-2) (R-3) was a mala fide exercise of power cannot be accepted.
As noticed above, Section 13 of the Act deals with amendments in the Zonal plan. Nothing has been brought on record to indicate that the procedure contemplated in Section 13 of the Act was not followed while making the amendment in the Zonal Plan. The only submission advanced by learned counsel for the petitioners is that it was done in respect of Allahabad City only to confer undue benefit to respondent No.5 and enable him to construct a Nursing Home. It is incumbent upon the petitioners to substantiate by cogent evidence the exercise of mala fide exercise of power but the petitioners have miserably failed to do so. The Zonal Plan can be amended for a particular city only. This apart, there is no reference to any specific officer who may have exercised powers in a mala fide manner nor such an officer has been impleaded as a respondent.
The objection raised by learned Senior Counsel for respondent No.5 that this Public Interest Litigation should not be entertained as the petitioners had filed objections which had been rejected cannot be accepted. Objections may have been filed by the Darbhanga Colony Welfare Association and Darbhanga Pooja Committee to the building plan submitted by the petitioners but as an issue of public interest has been raised, it will not be appropriate to dismiss the Public Interest Litigation on this ground, particularly when the petition was entertained and the respondents were asked to file a counter affidavit.
The main issue that has been raised by learned counsel for the petitioners is that the building plan for construction of a nursing home in a residential area (R-2,R-3) could not have been sanctioned by the Vice-Chairman of the Development Authority since the width of the road was less than 12 metres. While rejecting the objections filed by the petitioners, the Vice-Chairman of the Development Authority has relied upon the report submitted by the team which had taken measurement and even after the petition was entertained, a fresh report has been enclosed with the affidavit filed by the Development Authority. A finding of fact has been recorded that the width of the road is more than 12 metres though this width has been determined after adding the width of the two Nalas on either side of the road. According to the Development Authority this is permissible because of the definition of 'street' and 'width of the road' contained in the Allahabad Vikas Pradhikaran Bhawan Nirman Evam Vikas Bye-Laws 2008 (as amended). The width of the road has been defined to include the entire width of the road as also 'right of way', while defining a street, Nala has also been included in the 'right of way'.
The building plan had been approved by the Vice-Chairman of the Development Authority. It has, therefore, to be seen whether this Court should entertain this Public Interest Litigation when a statutory alternative remedy is available under Section 41(3) of the Act.
A Division Bench of this Court in Vinod Kumar Bhalotia v. State of U. P. and others3 examined whether a revision under Section 41(3) of the Act is maintainable by a third party against an order of the Vice-Chairman granting permission under Section 15(3) of the Act and after analysing the provisions of Section 41(3) of the Act and Section 15(3) of the Act, held that a revision at the instance of a third party would be maintainable as it would be a 'case disposed of'. The petitioner-therein was the owner of a commercial building and the respondent was the owner of a plot of land immediate adjoining the said building. The respondent wanted to make a commercial building over the said plot and submitted a plan to the Gorakhpur Development Authority for granting the permission. The Vice-Chairman of the Gorakhpur Development Authority sanctioned the plan and granted permission under Section 15(3) of the Act to make the constructions. The petitioner preferred a revision against the said order before the State Government under Section 41(3) of the Act. This Revision was dismissed by the State Government on the ground that no revision lay against an order passed by the Vice-Chairman of a Development Authority or against an order granting permission to make constructions. The Division Bench, after examining the provisions of Section 41(3) of the Act, observed that if by an order a case has been disposed of, a revision would lie against such an order irrespective of the fact by whom the said case was disposed of. However, if a revision is filed against an order which does not dispose of a case, then the same would be maintainable only if the order is passed by the Authority or the Chairman. It clarified that no revision would lie against an order simpliciter of the Vice-Chairman if it does not dispose of a case. The relevant portion of the judgment is quoted below:-
"In our opinion, the interpretation suggested by the learned counsel cannot be accepted as the expression 'call for the records of any case disposed of is a wholly independent expression and it has no co-relation with the expression "Authority or the Chairman". If by an order a case has been disposed of, a revision would lie against such an order irrespective of the fact by whom the said case has been disposed of. If, however, a revision is filed against an order which does not dispose of a case, then the same would be maintainable only if the order is passed by the Authority or the Chairman. No revision would lie against an order simpliciter of the Vice-Chairman if it does not dispose of a case."
(emphasis supplied) The Division Bench then proceeded to examine whether sanctioning a building plan or a map of a proposed construction amounts to a case disposed of and concluded that the said order does dispose of the case. The relevant observations are :-
"10. When a person gives a plan for construction of a building or for carrying out development, the Vice-Chairman is required to make inquiry in relation to maters specified in clause (d) of Section 9 which relates to Zonal Development Plans. Clause (d) of sub-section (2) of Section 9 provides for various matters which have to be taken into consideration. It is only after the Vice-chairman is satisfied that the map or building plan conforms to the matters enumerated in this provision that he grants permission to carry out development work. He has also power to impose conditions while granting such permission. The manner and mode of exercise of power while granting permission under subsection (3) of Section 15 clearly shows that an order granting permission to carry out development or making construction would amount to a 'case disposed of within the meaning of sub-section (3) of Section 41 of the Act and consequently, a revision would be maintainable against such an order.
(emphasis supplied) The Division Bench further observed that development work made contrary to the bye-laws of the Development Authority may sometimes cause injury to others and a third party may suffer injury on account of a wrong permission being granted under Section 15(3) of the Act. The observations are as follows:-
11. It may be noticed that construction or development work as defined in Section 2 (e) of the Act made contrary to the bye-laws of the Authority or the provision of the Act may sometimes cause serious injury to others. Construction of basement in certain situations may damage the foundation of an adjoining building. If a building is made without leaving the set-back area, it may obstruct light and air to adjoining buildings. Similarly, construction beyond the height permissible under the bye-laws may again affect the availability of sun-shine or light to the buildings in the neighbourhood. Construction of commercial building contrary to bye-laws in a residential area may cause injury to the inhabitants of the area. The Development Authorities have framed bye-laws providing for green belts and parks, etc. in order to maintain ecological balance and a construction made contrary to such bye-laws may affect the entire residents of that area. It is, therefore, obvious that a third party may suffer injury on account of a wrong permission being granted under subsection (3) of Section 15 of the Act. The possibility of a wrong permission being granted either on account of a mistake or on extraneous considerations cannot be ruled out.
(emphasis supplied) The Division Bench also examined whether the Act provides a remedy to a third party who is aggrieved by a wrong order passed by the Vice-Chairman under Section 15(3) of the Act and held that such a person can file a revision before the State Government under Section 41(3) of the Act. The relevant portion is quoted below :-
12. It may now be examined whether U. P. Urban Planning and Development Act. 1973, which is a self-contained Code, provides any remedy to a third party who is aggrieved by a wrong permission granted to another person under Section 15 (3) of the Act. Before refusing permission opportunity of hearing is to be afforded to the applicant under Proviso to subsection (3) of Section 15. If permission is refused, the person applying for permission has been given a right of appeal to the Chairman under sub-section (5) of the same section. Sub-section (1) of Section 27 provides that where any development has been carried on or completed in contravention of the master plan or Zonal Development Plan or without permission or approval or sanction referred to in Section 14 or in contravention of any conditions subject to which such permission was granted, the Vice-chairman or any officer of the Authority empowered by him in that behalf may make an order directing that such development shall be removed by demolition. Proviso to this sub-section lays down that no such order shall be made unless the owner or the person concerned has been given a reasonable opportunity to show cause why the order should not be made. Sub-section (2) of Section 27 of the Act gives a right of appeal to the Chairman against the order passed under sub-section (1). Sub-section (1) of Section 36 gives power to the Vice-Chairman to levy betterment charges and this can be done after giving an opportunity of hearing to the person concerned as provided in sub-section (2). A remedy against such an order is provided under sub-section (4) which empowers the Chairman to determine the amount of betterment charges. These provisions show that the scheme of the Act is that no adverse order should be passed without giving an opportunity of hearing to the person affected by the order and a right of appeal against such an order has also been provided. Section 37 of the Act lays down that except as provided in Section 41, every decision of the Chairman on appeal, and subject only to any decision on appeal, (if it lies and is preferred), the order of the Vice-Chairman or other officer under Section 15, or Section 27 shall be final and shall not be questioned in any Court. The Act does not make any provision for appeal against an order passed by the Vice-Chairman granting permission under sub-section (3) of Section 15 and the order is final except as provided in Section 41. If it is held that no revision lies against an order of Vice-Chairman granting permission under Section 15 (3) then a person who is suffering injury on account of grant of such permission will be remediless. The intention of the Legislature is, therefore, clear that though there is no right of appeal against the order of granting permission but an aggrieved person can approach the State Government for exercise of its revisional power.
13. As shown earlier, there can be a person who is aggrieved by an order sanctioning map or granting permission to carry on development under sub-section (3) of Section 15 of the Act. In normal course of events, such a person will not be a party before the Vice-Chairman at the stage when an application has been given to him under sub-section (1) of Section 15 by a person desirous of making construction or carrying on development work. The general law is that if an order is subject to appeal and it causes injury to a person who was not party to the proceedings, he may prefer an appeal with the leave of the Appellate Authority. In Smt. Jatan Kanwar v. Golcha Properties, AIR 1971 SC 374, it was held as follows :
".....It is well-settled that a person who is not party to the suit may prefer an appeal with the leave of the Appellate Court and such leave should be granted if he would be prejudicially affected by the judgment."
14. There being no provision of appeal against an order granting permission, there is no reason why a person aggrieved by such an order should be deprived of his right to invoke the revisional Jurisdiction of the State Government, which has been conferred upon it by Section 41 of the Act.
15. We would like to clarify here that the right of revision against an order granting permission under subsection (3) of Section 15 of the Act would not be available to all and sundry. The revision would be maintained only at the instance of a "person aggrieved". The expression "person aggrieved" is a well-known concept in legal jurisprudence and it is not possible to lay down exhaustibly who will be a person aggrieved. He must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongly deprived him of something or wrongly refused him something or wrongfully affected his title to something. It would also mean a person who has been prejudicially affected by any act or omission of an authority although he may have no proprietary or even fiduciary interest in the subject-matter thereof. A person who feels disappointed with the result of a case is not a person aggrieved. The order must cause him a legal grievance by wrongfully depriving him of something. (See Adi Pheroz Shah Gandhi v. H. M. Seervai, AIR 1971 SC 385)."
(emphasis supplied) The aforesaid judgment of the Division Bench holds that the possibility of a wrong permission being granted by the Vice-Chairman of the Development Authority either on account of a mistake or extraneous consideration cannot be ruled out and, therefore, a third party, who is aggrieved by the wrong permission granted under Section 15(3) of the Act, can approach the State Government for exercise of the revisional powers as the Act does not make any provision for an appeal against an order passed by the Vice-Chairman granting permission under Section 15(3) of the Act. The Court, however, clarified that the right of revision against an order granting permission under Section 15(3) of the Act will not be available to all and sundry and the revision would be maintainable at the instance of a third party by a 'person aggrieved'. The Division Bench also pointed out that a 'person aggrieved' is one who has been prejudicially affected by any act or omission of an Authority although he may have no proprietary or even fiduciary interest in the subject-matter thereof.
The judgment in Vinod Kumar Bhalotia was followed by another Division Bench in Civil Misc. Writ Petition No.35702 of 20124.
We, therefore, do not consider it appropriate to examine the factual aspect raised in this petition about the width of the road and leave it open to the petitioners, in case they are so advised, to file a Revision before the State Government under Section 41(3) of the Act.
This Public Interest Litigation, therefore, deserves to be dismissed and is, accordingly, dismissed with liberty to the petitioners to file a Revision before the State Government, if so advised.
Date:31.05.2016 SK/NSC (Dilip Gupta, J.) (Ravindra Nath Kakkar, J.)