Jagdish Prasad Dubey And Others v. Allahabad Vikas Pradhikaran, Allahabad Through Its Vice-Chairman

B.L Yadav and K.K Birla, JJ.:— Whether a quasi-judicial authority has got power to review its earlier order sanctioning the plan and approving the map under Section 14 read with Section 15 of the U.P Urban Planning and Developments Act, 1973 (for short the Act), even though the said power is not provided under the provisions of the Act, is the short but significant question for our determination in the present petition under Article 226 of the Constitution of India, filed by the petitioners, seeking the relief for a writ of Mandamus directing the respondent, the Allahabad Development Authority not to initiate any proceeding against the petitioners for cancellation of the approved map and plan on the basis of two notices (Annexures 3 and 4 to the petition), served on the petitioners, and also for a writ of certiorari quashing the order dated 22-10-86 cancelling the map and order dated 21-10-86.

2. The facts of the case lie in a narrow compass and are almost admitted. The petitioners were tenure holders and owners of plot No. 63/1 area 2 biswa situate in village Beli Mustkharja Tehsil Chail, District Allahabad, within the limits of Municipal Corporation Allahabad. In respect of the area where the plot in dispute is situate a declaration ‘as a development area’, has already been made under Section 3 of the Act. A permission in writing from the Vice-Chairman of the Allahabad Development Authority was required as contemplated under Section 14 of the Act. The petitioners made an application for permission referred to in Section 14 of the Act, as provided under Section 15 of the Act and for approval of the map. After making requisite enquiries contemplated under the Act, permission to raise construction was granted and the map was approved, by order dated 25-6-86 (Annexure-1). Thereafter even though under the Act there was no provision for review of the order granting permission to raise construction, after approving the map, nor there was any provision for appeal against the granting such permission, but neverteless the Allahabad Development Authority sent notices to petitioners through letters dated 1-9-86 and 24-9-86 (Annexures 3 and 4), directing them not to raise construction on the basis of permission granted or the map approved and in case any such construction was raised that would be unauthorised and petitioners shall be liable for prosecution as contemplated under Section 27 of the Act. The petitioners filed objection to those notices on 16-10-86 (Annexure-5), that they did not conceal any material fact in respect of their title nor there was any provision for review nor any power to reconsider the order granting permission or approving the map. But in view of the order dated 21-10-86 and 22-10-86 the map was cancelled. It was further stated that the petitioner's father Ram Sunder Dubey was recorded over the land in dispute since prior to 1358 Fasli and was continuously so recorded. Just in one year without any notice to petitioners there was an entry showing it to be ‘nazul-land’. Neither prior to that, nor subsequent to that, there was any such entry. In fact, the plot in dispute was not nazul-land and all enquiries were made before granting permission for raising the construction (vide Annexure-1). Petitioners filed the aforesaid writ petition in this Court, against the aforesaid letters and notices. A counter-affidavit has been filed on behalf of the respondent stating that notices were legally served on the petitioners for not raising the construction and alleging that the permission obtained by the petitioners was not correct, hence notices were served on them directing not to raise any construction (vide Annexures 3 and 4). As the counter and rejoinder affidavits have been filed, learned counsel for the parties suggested that the petition may be disposed of on merits. Consequently the present petition is being disposed of on merits.

3. Sri C.L Pandey, learned counsel for the petitioners urged that there was no provision for appeal, or review in the Act against the order dated 25-6-86 granting permission to raise construction and approving the map. Further as the application was made by the petitioners under Section 15 of the Act for raising construction and the permission was required for that purpose from the Vice-Chairman and that permission after making requisite enquiries was granted, consequently unless there was any provision for appeal, or review under the Act, the said order granting permission could not be reviewed. Reliance was placed on Suresh Chandra v. Commissioner/Chairman Mussoorie Dehradun Development Authority . 1990 AWC 137., State of U.P v. Maharaja Dharmendra Prasad Singh . 1989 2 SCC 505, Dinesh Prasad v. State of U.P . 1967 ALJ 745. and Harbhajan Singh v. Karam Singh . AIR 1966 SC 641..

4. Mr. Ashok Mohiley, the learned counsel for the respondent on the other hand, urged that notices are legal and under the inherent power the authority can review the order granting permission and approving the map. It was further urged that the petitioner has an effective remedy of preferring an appeal and Revision as provided under Section 15 of the Act.

5. Having heard the learned counsel for the parties there are two principal questions for our determination. First question is as to whether petitioner has an alternative remedy and the next question is whether the respondent as quasi-judicial authority has jurisdiction to review its earlier order granting permission and approving map, particularly when there was no concealment of material facts by the petitioner.

6. Before we proceed to interpret Sections 14 and 15 of the Act, certain cardinal principles of interpretation may be noticed. The purpose of legislation has to be ascertained first. The maxim EST XSORLIM LEGISLATORUM JANQUAM VIVA VOX means the voice of the Legislators themselves is like the living voice, that is the language of a statute is to be understood and interpreted like ordinary spoken language. At the same time every part of a section has to be read together. No part of it need be left as otiose. By reading the provisions of different sub-sections of Section 15 and other provisions of the Act, including Section 14, the only irresistible conclusion is that the legislature was conscious that against the order refusing to grant permission or refusing to grant approval of the map there can be an appeal by the aggrieved person, whereas there was no appeal when the permission has been granted as in the case of the petitioner. There was, therefore, no question of petitioner availing an alternative remedy of preferring an appeal. Further reverting to the question whether respondent could review the order granting permission and approving the map. Here also simple rules of interpretation are to be applied in order to ascertain the intendment of law givers in not providing any provision for appeal against the order granting permission to raise the construction or approval of the map and not in providing any power of review. It is an important step in my opinion to know what the Act does not mean and if it becomes clear that there is something which it does not mean, then that itself suggests or suppose to be what it does mean. It appears that the legislature in enacting sub-section (5) of Section 15 of the Act was conscious that in case permission has been grated for raising construction or the map submitted by the petitioners has been approved, in that event the same cannot be reviewed or cancelled except where material facts have been suppressed. The object of the Act was to provide for the development of the certain areas of U.P according to plans and for matters ancillary thereto. Therefore, once the plan has been approved there was no necessity to scrutinise the same, except on the allegations of fraud and misrepresentation.

7. The power of review cannot be exercised by a quasi judicial authority unlike administrative officers under Section 21 of the General Clauses Act. But in the matters of quasi judicial authority or the judicial authority there must be specific provision. In Dinesh Prasad v. State of U.P,5, it was held as follows:—

“It is well settled that in the case of an authority exercising judicial or quasi judicial function there is no power in that authority to review the order made by it in the discharge of such function unless power in that behalf has been expressly conferred upon it.”

8. In Harbhajan Singh v. Karam Singh . AIR 1966 SC 641., it was observed as follows:

“In the absence of any such express power of review to the State Government with regard to an order made under Section 42 of the Act, the Director cannot review his previous order of dismissing the application of the petitioner under Section 42 of the Act. Hence the subsequent review order of the Director is ultra vires and without jurisdiction. The High Court is right in quashing that order by grant of a writ under Article 226 of the Constitution.”

9. In R. v. Minister of Transport . 1934 1 KB 277., it was held as follows:—

“The Minister has no power to revoke the licence. The jurisdiction on that ground is vested in the Commissioner under Section 74 and there is no right of appeal from their decision. The Minister's order is, therefore, ultra vires, and this appeal ought, therefore, be allowed and a rule absolute granted.”

10. Similar to sub-section (5) of Section 15 the power of appeal was given only to a person who has been refused permission for construction or his map has not been approved. There was no power of review under the Road Contract Act, 1930 and it was held that the Minister has no power to review or revoke the permission of licence granted.

11. The matter can be viewed from another angle. Every quasi-judicial authority or judicial authority has inherent power of review, no doubt, but under special cases where some order has been obtained by concealment of material facts or by fraud or by misrepresentation played upon the authority. But in the instant case all the documents of title along with the application were furnished before the authority. There was absolutely no concealment of fact, much less material fact. In case the authority before granting permission wanted to scrutinise something further, it could do so and only after satisfying itself the permission to raise construction and approval of the map was granted (vide Annexures 1 and 2). It appears that the mind of respondent No. 1 was swayed on the basis of some complaints or some considerations not relevant for granting permission.

12. In State of U.P v. Maharaja Dharmendra Pd. Singh . 1989 2 SCC 505, it was held that the power under Sections 14 and 15 of the Act cannot be equated with judicial power which in the absence of express provision could not enable review of a judicial order after its exercise. It was further held that if the permission for construction was obtained by misrepresentation and fraud, the order can be revoked by the Vice-Chairman.

13. In Suresh Chandra v. Commissioner/Chairman Mussoorie-Dehradun Development Authority (supra) a Division Bench of this Court distinguished the Supreme Court case State of U.P v. Maharaja Dharmendra Prasad Singh, (supra) on the ground that unless the permission was obtained by fraud or misrepresentation there could be review. In the present case also there was no plea of any frand or misrepresentation on the part of petitioner so as to entitle the Vice-Chairman to review its order.

14. In Surya Narain Tripathi v. State of U.P (9), a Division Bench of this Court (to which one of us i.e B.L Yadav, J., was a party), while considering the inherent power of review by an authority and the power of Revision under Section 38 of U.P Special Areas Development Authorities Act, 1986, held that inherent power of review can be exercised in case a fraud has been committed or concealment of material facts has been made out in procuring the order and in case there is no concealment of material facts or fraud there would be no justification in exercising inherent power of review.

15. About fraud and concealment of material facts and its effect on orders, the following cases may be noticed:—

In Lazarus Estates Ltd. v. Beasely . 1991 17 ALR 131., it was observed by Denning L.J as follows:

“No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment and no order of court or Minister can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved, but once it is proved it vitiates judgments contracts and all transactions whatsoever (See Administrative Law (Fifth Edn.) by H.W.R Wade, page 228; Halsbury's Laws of England Vol. I, Fourth Edn. Chapter dealing with administrative law, para 88; In de Smith's Judicial Review of Administrative Law, Fourth Edn. page 408: Regional v. Secretary of State for the Home Deptt. . 1982 1 WLR 405..”

In American Jurisprudence (2nd) Volume 37, para 144 and page 196 it is stated as follows:

“Unquestionably the concealment of material facts that one is ‘under the circumstances, bound to disclose, may constitute actionable fraud. Indeed one of the fundamental tenets of Anglo Americal Law of fraud is that fraud may be committed by suppressing truth (suppressio veri) as well as by suggestion of falsehood (suggestio falsi). See Strong v. Repide . 213 US 419., Tyler v. Savage . 143 US 19., Griswold v. Hazard . 141 SC 260..

It is, therefore, equally competent for a court to relieve against fraud whether it is committed by suppression of truth that is by concealment or by suggestion of falsehood. The courts developed the doctrine that disclosure was the duty of one standing in a trust or confidential relation to another, and that suppressio very may be equally fraudulent as suggestio falsi (see Grosby v. Buchanan . 23 WUS 420 LEd 138., Smith v. Richards . PUS 26, 10 LEd 42, p. 197..”

16. In the present case we have perused the counter-affidavit and the relevant entries including the title of the petitioner. The plot in dispute has all along been recorded in the name of father of the petitioner and thereafter in the name of the petitioners and just in one year the entry of Nazul land was made. Thereafter that entry disappeared and there was no other entry nor the plot in dispute was shown as nazul property or the property of Development Authority. Consequently there was no fraud or concealment of material facts on the part of petitioners in obtaining permission for raising construction or in obtaining approval of the map (vide Annexure-2).

17. Applying Aristoleliand and Baconian reasonings and in view of the discussions made hereinbefore, we are of the considered opinion that the notices dated 1-9-86 (Annexure-3) directing the petitioners not to raise any construction over the plot in dispute till the matter was finally decided, and the other notice dated 24-9-86 (Annexure-4) directing the petitioners to appear in the office of the Vice-Chairman, Allahabad Development Authority, were issued without any authority, justification or jurisdiction on the part of respondent No. 1.

18. An application for amendment in the relief clause of the petition, has been filed on behalf of petitioner seeking to add a relief clause to the effect that a writ of certiorari may be issued quashing the order dated 22-10-88 passed by the respondents cancelling the map of the petitioner in consequence of notice dated 1st September, 1986 and 24 September, 1986 and to quash order dated 21st October, 1986 issued by Estate Officer (contained in Annexure-1 to the amendment application).

19. We have also perused para 4 of the supplementary counter-affidavit where it was alleged that the map has been cancelled on 22-10-86 but the order of cancellation has not been tiled rather the report of the Estate Officer has been filed as Annexure 1 to the supplementary counter-affidavit. It is on the basis of this report of Estate Officer that the map is alleged to have been cancelled. As we have held that the notice dated 1st September, 1986 and 24 September, 1986 (Annexures 3 and 4 respectively) have been issued without any authority, power or justification consequently the report of Estate Officer was not justified nor the map could have been cancelled by the respondent No. 1. We are accordingly of the opinion that the order cancelling the map and the report of the Estate Officer deserves to be quashed. Before concluding, it may be pointed out that the grant of permission does not affect the title or ownership rights of anyone as is mentioned in the permission Annexure I, itself. The discussion in the order in this regard is only for the purposes of judging the legality or propriety of the impugned orders and is not meant to prejudice the title or ownership rights over the land.

20. In the result petition succeeds and is allowed. Impugned notices dated 1-9-1986, 24-9-1986, consequential order passed by respondent No. 1 cancelling the map by the order dated 22-10-1980 and the report dated 21st October, 1986 issued by the Estate Officer are quashed. The respondents are restrained from interfering with the petitioners' raising of construction on the basis of permission granted to them on 25th June, 1986 and approved map. There shall however, be no order as to costs.

21. Writ Petition Allowed.