Holding

TUDA acted arbitrarily; the restriction under Section 15 was not operative without the requisite notification, and the writ petition was maintainable, leading to the allowance of the appeals and permission to construct.

Summary

The Kerala Municipal Council framed a West Road scheme in 1976 which lapsed because it was not published within two years. After the Trichur Urban Development Authority (TUDA) was created in 1981, it failed to act, leaving land owners, including the petitioners, unable to obtain construction permission. The State Government directed TUDA to approve the petitioners' plans, but TUDA arbitrarily delayed and eventually denied permission. The petitioners filed writ petition 5287/83 seeking a mandamus to compel TUDA to grant permission; a public‑interest litigation (11011/83) was also filed alleging collusion. The High Court dismissed the petitioners' writ as non‑maintainable and found forgery, but the Supreme Court held that non‑maintainability is distinct from lack of bona‑fide and that TUDA’s refusal was arbitrary, especially since Section 15 restrictions only arise after a proper notification under Section 8 and Rule 33(b) – which had not been issued. Consequently, the Supreme Court allowed the appeals, quashed the High Court orders, granted the petitioners permission to construct as per municipal approval, and dismissed the public‑interest petition except for limited directions.

Issues considered

The validity of TUDA’s refusal to grant construction permission in the absence of a published scheme under the Town Planning Act
Whether the writ petition 5287/83 was maintainable despite alleged procedural defects
The distinction between non‑maintainability and lack of bona‑fide (bad‑faith) in jurisdictional analysis
Whether the restriction under Section 15 of the Town Planning Act was operative before publication of the second notification under Rule 33(b)
Allegations of forgery, fraud and misrepresentation in the applications filed before TUDA and the Municipal Council

Legislation cited

Kerala Town Planning Acts. 10, s. 12, s. 15, s. 7, s. 8

Subjects

Town Planning ActTUDAMunicipal CouncilConstruction permissionNon‑maintainabilityPublic interest litigationArbitrarinessSection 15 restrictionNotification requirementForgery allegations

Judgment

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

DECEMBER 20, 1990

B [K.N. SAIKIA AND R.M. SAHAI, JJ.]

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.

Municipal Council of Trichur framed certain schemes, including
c the West Road Scheme in 1976 and thus intended to acquire the lands in
question hut 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
D 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
E the map. This led these owners to approach the State Government
against unreasonable attitude of these local authorities and the Govern-
ment after as certaining from the Town Planner that no scheme was
pending directed the authorities 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 Corporation for permission to
build on the disputed land, a shop building. It was sanctioued by the
Municipal Council subject to its approval by the TUDA which in turn
informed that the application would be considered after notification of
G the scheme. The State Government when informed however took the
view that it" would be unfair to deny the petitioners th~rmission
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 conse-
quently, the State Government directed the authority to accord its
approval to the plans submitted by the petitioners. Some negotiations
H between the TUDA and the petitioners thereafter proceeded regarding

638
T.N. RUGMANI v. C.A. MENON 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 provisions of law by the Urban Development

- Authority and the Municipal Council. Trichur and praying for a man-
damus directing these authorities to accord permission to the petitioner
to raise construction in compliance with the permission granted by the
State Government. By an interim .irder dated 5.7.1983, the High Court
B

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 P"titioner 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 C
the appellants attempted to raise further construction by adding
another storey for which they had no permission.

- In order to cuanenge their said action, a writ petition was f"Iled by
Shri Achuta Menon, Ex-Chief Minister of the State-respondent under D
the public interest litigation alleging that the Government was not dis-
charging its obligation of fuliilling 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 construc-
tion attributing the same to the influence that UK was wielding with the
Government. The High Court dismissed the writ petition filed by UK E
holding the same to be not maintainable for lack of bona-fide and
allowed the writ petition f"Iled by the respondent and gave certain direc-
tions to the Municipal Corporation to take appropriate action in rela-
tion to the construction, raised in pursuance of interim order granted
by the High Court. The Division Bench having affirmed the order pas-
sed by the Single Judge, these appeals have been filed in this Court, F
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 reason, cannot be equated with G
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 lo file it. That is something akin to lack of jurisdiction. H
640 SUPREME COURT REPORTS [1990) Supp. 3 S.C.R.

A The other, namely, dismissal for bad faith arises due to improper con-
duct of the person invoking jurisdiction either before or after presenta-
tion 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
B behaviour or conduct in equitable jurisdiction. The basic error commit-
ted 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 with-
holding the permission. [652C]
c 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]

D
Even assuming that in the interest of planned development, no
one could be permitted to build or construct a building unless the plan
bad 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. [6548]
-
Chhetriya Pardushan Mukti Sangharsh Samiti v. State of U.P.
E 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. ]198r 2 SCC 295,
referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 557-
F 558 of 1986.

From the Judgment and Order dated 12.4.1985 of the Kerala
High Court in W.A. Nos. 182 and 183 of 1985.

R.K. Garg, P.S. Poti, C.S. Vaidyanathan, K.V. Mohan, Ms.
G S.B. Singh, L.J. Vadakara, C.N. Radhakrishnan, K.R. Nambiar,
T. Kunhikanan, C.V. Rappai and EMS Anam for the appearing
parties.

The Judgment of the Court was delivered by

H R.M. Sabai, J. 'Much ado about nothing' or the appellants were

-
rI
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 A
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 con-
struction, raised in pursuance of interim order granted by the court. B

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., C
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 au-
thorities 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 Plan- E
ning 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 implead-
ment of the appellant and Shri Unnikrishnan (hereinafter referred as
UK) the petitioner of Petition No. 5287/83. However, we may hasten F
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
< the appellant'by their conduct forfeited their right to get redress is well
founded then no other issue arises irrespective of it that the material
which formed the basis for the aforesaid finding was collected in peti-
tion no. 11011/83 filed in public interest whereas the building was G
constructed in pursuance of interim order granted in Writ Petition No.
5287 of 1983.

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. The scope of the two are· different. H
642 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.

A In one a person may be honest and his grievence genuine yet the Court
may not be able to grant him any relief either because the cause of
action or any part of it 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. The other, namely, dismissal for bad faith
B arises due to improper conduct of the person invoking jurisdiction
either before or after presentation of the petition. Even an unassail-
able cause or illegal and arbitrary order may fail to move the cu1.s-
cience of the Court due to inequitable and unjustifiable behaviour or
conduct in equitable 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. Consequently it held the
C Petition No. 5287 of 1983 to be not maintainable because of its conclu-
sions that even though appellants were the real owner the petition was
filed by another person and the appellants had not come to Court with
correct and true disclosure. The error in this finding shall stand
demonstrated when the two are examined separately, as should have
D been done by the High Court. Writ Petition No. 5287 /83 was filed on
behalf of one M.B. Menon Unnikrishnan (hereinafter referred as
MBUK) with power of attorney in favour of Shri E.P.G. Menon
(hereinafter referred as EPG) for direction to the TUDA to sanction
the plan as directed by the State Government. It has been found by the
High Court that there was no one with this name. True, but that was
E inadvertent error as UK who, admittedly, was the owner of the plots in
dispute filed an affidavit admitting that Writ Petition No. 5287 of 1983
was filed on his behalf by his father as holder of power of attorney. He
explained that his name was wrongly described in cause title as
MBUK. And his father, who signed on his behalf, inadvertently failed
to notice the mistake. This was admitted even by EPG, when he
F appeared as witness. The petition was, thus, filed by a person who was
very much there except that his name was incorrectly mentioned. The
High Court in view of these facts, unnecessarily, made too much of
small inadvertent mistake. From evidence on record, specially deposi-
tion of EPG, it is clear that on the date when petition was filed UK was
the real owner and there was only a proposal between EPG and
G Shankernarayanan (referred as SN) for sale of land in dispute which
materialised long after filing of the petition. Therefore, SN could not
have filed the petition in March 1983. Accepting everything found by
the High Court SN, utmost, was an interested person who could not
have approached the Court for issuing a writ of mandamus to State
Government since on the date of filing of petition no right or title
H vested, in the land in dispute, in him. Nor he could be considered to be
T.N. RUGMANI v. C.A. MENON [SAHA!, J.] 643
1.--~
a person aggrieved by inaction of TUDA who could have sought any
A
direction from the Court. The High Court, therefore, decided the
maintainability of the petition, erroneously, not on the facts as they
were on the date when petition was filed but on subsequent events
which took place much thereafter. The finding in these circumstances
that appellant was real owner and he should have filed the petition
cannot be sustained. B

Corning to the next and most crucial, as well as serious issue
learned single judge of the High Court found that since there was no
person MBUK it was apparent that real person did not come forward
'obliquely' and the petition was filed deliberately with allegations
which were untrue to mislead the court. The Court held that averment
in the petition that MBUK had, 'no other land', did not fit with SN
c
who was owner of extensive property. The court from this and other
allegations inferred that it was deliberately done by SN to obtain order
as such allegations coµld not have been made by him if he would have
himself filed the petition. The learned judge ventured a guess that the
judge who granted the interim order and thereby, 'virtually allowed D
the petition' was misled, 'deliberately and totally by projecting a
poignant personal grievance of a person having 18 cents of land in the
town obtained in the partition in his own family eager to put up a
building therein, but unjust harassed by the authorities'. After reach-
ing this conclusion the learned judge went into evidence cc,llected in
W.P. 11011/83 and records summoned from Govt. And local authori- E
ties and found that various applications for permission to sanction the
plan and representations having not been signed by the person by
whom they were purported to have been signed it was forgery and
fraud committed by appellants and they were not entitled to any relief.
In appeal the Division Bench affirmed the order.
F
Needless to say that if any of these findings either collectively or·
individually are found to be correct then they were sufficient to
warrant dismissal of the writ petition. But by nature of harsh conse-
qtiences they entail they were required to be examined closely and
carefully. The finding that interim order was obtained either on incor-
rec! allegations or with oblique motive to mislead the court is based on G
assumptions which are unfounded and proceeded more on imagination
than truth. The learned judge drew adverse inference against appel-
lant and fastened falsehood on him because he could not have
succeeded in persuading the court that he was not possessed of any
...... land. But what was Jost sight of was that ownership of 18 cents of land,
only, or number of buildings was totally irrelevant for the relief sought H
644 SUPREME COURT REPORTS ]1990] Supp. 3 S.C.R.

A in the petition. The claim was grounded on failure of TUDA to obey
direction issued by Govt. to grant permission to construct on the land
in respect of which no development scheme was pending and not on
possession on any building, land or house. The High Court, thus pro-
ceeded on irrelevant considerations in recording the finding that the
interim order was obtained by, 'projecting poignant personal grievance'.
B
As regards finding of forgery, fraud and misrepresentation the
High Court found that since the application for permission for sanc-
tion, before the local authorities, representation before the Govt.,
orders in pursuance of it and various other letters exchanged between
authorities and the person applying for permission were not signed by
· the person on whose behalf they were purported to have been made,
C they were forged. Reliance was placed on depositions of Sri M,B.
Menon (referred as MB) and EPG. Occasion to record their statement
arose as according to learned single judge, 'The scrutiny of those files,
prima facie, indicated a disturbing situation about the manner in which
Governmental and quasi-governmental institution were being misled
D to pass orders on spurious representations and forged applications'.
From the evidence on record it is, undoubtedly, established that many
applications and letters were not signed by MB or EPG, on whose
behalf they were purported to have been made. But the error in which
the High Court fell, resulting in erroneous finding, was its failure to
appreciate the oral testimony as a whole and decide if the applications
Ii were given or orders obtained for any undue benefit to the appellant.
What is astonishing, is that, the court proceeded to record such grave
findings, that there had been committed such serious acts as forgery,
fabrication of documents and deliberate misleading of local authorities
and govt. on the basis of such forged fabricated documents without
finding necessary facts to raise an inference in law. Mere denial of
F signature or the proof that it was not signed by MB or EPG was
insufficient of warrant the conclusion that appellant had forged it.
What was fundamental to decide if these applications were made with-
out authority of the real owner express or implied. The finding that SN
was interested was insufficient by itself to arrive at the finding that he
was guilty of forgery and fraud. No effort was made to bring on record
G any material, oral or documentary from relevant source to establish
link between SN and the signatures. Even assuming that SN was
responsible for these signatures the court, surprisingly, did not pay any
heed to vital admission both by MB and EPG in their deposition that
SN obtained necessary permission from local authorities for them. In
the entire deposition of these persons there is not the remotest denial
H by them that they were not aware of these proceedings. From fact as
T.N. RUGMANJ v. C.A. MENON ISAHAI, J.] 645

they have come on record it is indeed impossible to believe that what
A
was done was without the knowledge of EPG. UK was out of India.
EPG was in service in Bombay. Land was in Kerala. Permission was to
be obtained from local authorities. But that was not easy. Effort by
EPG had already failed. He was informed in December 1982 by
TUDA that his application shall be considered after records had been
received from Municipality. In the meantime permission had been B
obtained by MB, brother-in-law or EPG whose wife and son, like his,
had inherited the property from the mother-in-law. And it was
obtained through none else but SN as appears from deposition of MB.
Consequently EPG also entered into proposal with SN in January or
February 1983 to sell his land as he was willing to take chance of
obtaining permission. But no agreement of sale was executed till June
1983, much after the permission had been obtained. The High Court c
did not give any weight to the circumstance that in absence of any
agreement of sale EPG could have refused to sell it to SN. EPG
admitted to have signed an application for sanction of the map. But the
application on which sanction was granted was not the one signed by
him. From this denial of signature the High Court drew inference D
against the ap~~llant. But it did not make any effort to advert to other
part of the statement which would have demonstrated that the sanction
was obtained with his knowledge. It stood clinched by the averments in
W.P. 5287/83 which was admitted by EPG to have been based on true
facts and was signed by him after reading. The High Court failed to
realise the full impact of it. The petition was founded on direction E
issued by govt. To TUDA on 28th March 1983 in pursuance of rep-
resentation made to it. It was purported to have been made by MB, his
wife, son, daughter-in-law etc. MB. denied his signature on it. He
further deposed that his wife was dead and two of the persons
mentioned were in Kuwait. Therefore the High Court found that the,
'representation which is the fundamental basis of the governmental F
direction contained in Exhibit 5 and which, in turn, was the foundation
for this Court's interim order, w_as clearly a forged one. But the High
Court, missed the real issue. In the letter sent by Govt. To TUDA
directing it to sanction the plan, which was the basis of petition it was
mentioned that the order was passed in reference to petition of MB
and five others. When EPG filed this letter and stated in Writ Petition, G
'that Govt. passed the order and communicated to the petitioner
informing him about the directions contained in Ex. 5, then he
unequivocally admitted that the representation was made by peti-
tioner, namely (UK) and he was informed of it. UK was not in India.
Therefore somebody had to act on his behalf. Power of attorney was in
favour of EPG. He therefore should be assumed to have instructed H
646 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R.

A someone, to do the needful. That is how the mistake arose. But once
EPG owned the responsibility of the statements made in the writ peti-
tion the High Court could not draw inferences of misleading the Govt.
and local authorities without confronting EPG when he appeared as a
witness whether it was done on his direction or not. Mere denial of
signature was not sufficient. What is deducible from these is that what
B was done was with knowledge of EPG for his benefit or benefit of UK
with their consent express or implied. In any case the material was
insufficient to arrive at the conclusion that forgery, fraud or misrepre-
sentation of Govt. records had taken place or that the Govt. was
misled to issue order on forged document. The High Court, with
respect, misdirected itself, in being oblivious of the difference between
C filing of application by a person under direction or instruction of
another in mistaken name and making a false document with intent to
cause damage or in jury to any person or to support any claim or title or
to commit any act with intention to deceive another.

Mistake in mention of names occurring, probably, due to instruc-
D tions is clear as the application for permission was made in the name of
MBUK whereas the representation was made to Govt. in name of MB
and writ petition was filed by MBUK. All this was certainly improper.
But once EPG filed writ petition and stated about each and every of
these applications and that they contained true facts, about which
there was never any dispute, then atleast his tacit consent express or
E implied was there. Substantive offence of forgery and ingredients of
fraud and misrepresentation or the manner of their proof and proce-
dure to establish them are not necessary to be examined but the High
Court was certainly not justified in assuming these against appellant
without any finding that the signatures were made to cause harm to
person on whose behalf they were made or without their knowledge or
F that they were untrue. In fact the statements in the applications or
representations did not contain any factual inaccuracy. Truly speaking
not much survived after EPG took the responsibility in his deposition
not only of filing the petition but even admitting that it was based on
correct facts. The High Court failed to notice that when in April 1983
the State Govt. sent a letter to MB to meet the Collector and other
G officer of local authorities to work out suggestion to modify the plan
the letter was not only seen by MB but he even authorised one person
to appear on his behalf. The High Court thus appears to have been
swayed in wave of public interest litigation. We may not be understood
as condoning or approving the impropriety of moving applications or
signing of these by persons other than on whose behalf they purported
H to be. But the error committed by the High Court was that once it grew
T.N. RUGMANI v. C.A. MENON [SAHA!, J.] 647.

).-~
suspicious it went on feeding it without any regard to facts and legal
consequences, because appellants were stated, in public interest litiga- A
tion, to be financially affluent with political approach and administra-
live pull. In our opinion an examination of the statement of MB and
EPG coupled with affidavits of UK and MB did not justify the finding
of forgery, fraud and misrepresentation. MB denied his signature on
letters sent in June, Oct. and Dec. 82 which led the Court to record B
finding against appellants. But they did not relate to land in d;spute.
They were not put to EPG. All that they established was that these
letters were written on his behalf. The High Court did not find that ihe
orders obtained on it were either to cause -loss to him or gain to
appellant. The High Court failed to notice or even refer to statement
of MB wherein he admitted that he obtained permission to construct
from MC which papers were fetched to him by SN and he sold his share c
to SN. Any correspondence thereafter was irrelevant unless it related
to land in dispute. There is no such finding. It appears to have been
referred only to show that how things happened in local bodies. That
may reflect adversely in working in those offices. But the High Court
was not justified in thrusting it on appellants. The finding of the High D
Court, thus, even on this score cannot be maintained.

Turning to merits, it is necessary to give a little background.
Admittedly MC ofTrichur framed certain schemes, including the West
Road Scheme, in 1976. Since the scheme was not published within two
years, as required by law, it lapsed. In 1981 the State Govt. constituted E
TUDA under Town Planning Act but even this body did not take any
step at"least till June 83. Effect of lapse of scheme in 1978 and its
non-revival till 1983 was that all lands which were subject matter of
acquisition stood automatically released and it was available to be used
by owners subject to any restriction, for instance sanction of map etc.
by MC. Yet unfortunately, whenever any owner approached the MC F
and TUDA he was subjected to undue harassment with the result that
they approached the Govt. against unreasonable attitude of local
authorities and the Govt. after ascertaining from Town Planner that
no scheme was pending directed the authorites concerned to sanction
plan and permit construction. The earliest such order, which is on
record, was passed in 1979 in favour of one Shri Unni in respect of land G
adjacent to land in dispute. Similar order was passed on application of
MB in 1982 ·in respect of survey no. 887 and 888, a property part of
which is in dispute, and, which had come to share of the wives and sons
of the two son-in-laws MB and EPG on death of their mother-in-law in

..
'
,._
1980 . .In March 1983, TUDA appears to have taken a decision to notify
the West Road Development Scheme of 1976 but the Government, on H
648 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R.

the very next day, informed it that the scheme may be notified only
A after intimation and order of the Government. Once notification of
the scheme was stayed by the Government, an application was filed,
purported to be, by Unnikrishnan M.B. Menon before the MC for
permission to build on the disputed land. It was sanctioned by the
Council subject to its approval by TUDA which in its turn informed
B that the application would be considered after renotification of the
scheme. When this was brought to the notice of the Government it
sent a reply on 28th March, 1982 which reads as under:

"I am directed to invite a reference to the letter cited and
inform you as follows: The Trichur Urban Development
Authority came into existence on 8.9.1981. All the pending
c schemes published by the Trichur Municipality and ap-
proval of Government not obtained lapsed with the con-
stitution of Trichur Urban Development Authority. The
Authority has so far neither republished and taken further
action on those proposals nor has it formulated any
D scheme and notified them till the end of February 1983.

The petitioners have earlier obtained permission
form Trichur Municipality for the construction of shop
building in Survey No. 887 and 888 of Ayyanthole Village.
Subsequently they requested Trichur Urban Development
E Authority to grant permission for the above construction.

The Trichur Urban Development Authority vide a
reply dated 7 .12.1982 informed the petitioners that their
request would be considered after receipt of the scheme
records from the Trichur Municipality. Now the authority
F informs that the request will be considered only after
renotification of the above scheme. It will 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 immediately after
the constitution of the authority. Any scheme proposed to
G be renotified should therefore taken into consideration the
pending application of the parties for development of the
area.

In the circumstances I am directed to request you to
give approval of the authority to the plans submitted by the
H petitioners for the construction of the shop building in Sy.
No. 887 and 888 of Ayyanthole."
T.N. RUGMANI v. C.A. MENON [SAHA!, J.J 649

By this time, the TUDA had resolved, under Section 7 of the Act, to
A
frame a scheme on West Fort, therefore, it appears to have taken up
matter with the Government on which a letter was sent on 25th April
to MB to meet the District Collector, Chairman, TUDA and the
Municipal Chairman, Trichur at 11.00. a.m. on 29th April for negotia-
tion in connection with the approval of the proposed shopping-cum-
office building. Meeting as directed did take place. And on the same B
day, a letter was sent that in consequence of discussion, the applicant
had no objection to provide a setback of 6 mts. In front provided he
was permitted to construct without leaving any open space in the rear.
Requirement under bye-law was to provide front setback of 3.5 mts.
only. Correspondents thereafter went on between TUDA and the
Government and on 16th June, the Government issued a Jetter to the
TUDA which is extracted below:
c
"With reference to the Letter cite~, I am to inform you that
Government's intention is not to stall the proper develop-
ment of the area. As the. authority has not so far published
the notification upder section 8 of the Town Planning Act D
and the party has been waiting for approval for the pro-
posed construction for a Jong time, the party subject to the
following conditions:

The party will leave the minimum necessary land for
road improvement and also observe building rules. E

2. The Trichur Urban Development Authority may go
ahead with the publication of the Notification under sec-
tion 8 of the Town Planning Act. While publishing the
scheme under Section 9, the Authority should take into
consideration ti)~ d.irections of Govt. contained in letter F
No. 12259/G3/83/LA & SWD dated 28.3.83 and exclude
the party's land from acquisition, except to the extent
required for road development."

On 23rd June, letter was sent that the appellant was submitting revised
plan providing a setback of 6 mts. as agreed in front and also 3 mts. in G
the back. But the TUDA did not pass any order. Consequently, writ
petition no. 5287/83 was filed on 27th June 1983. The petition was
founded on allegation that the petitioner had desire to make use of the
only small property he had for making shop building on road from
West Fort area in Trichur to Kunnamkulam as entire road frontage
was occupied by shop buildings abatting the road. Allegations were H
650 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R.

A made against prevailing practice of municipal board to notify ambiti-
ous scheme without any financial resource or genuine inclination,
only to freeze the land and release it in favour of ttiose who could
approach authorities resulting in gross abuse of power and corruption.
Referring to various orders beginning from March 1982 to June 1983
and to delay and obstruction by the MC and TUDA even though the
B .petitioner had agreed to leave 6 mts. as even if the road was widened
only 3 mts. could be needed, it was stated that the opposite pan;cs
were not complying with direction of Government. Therefore, orders,
were sought to TUDA to implement the directive of the State Govern-
ment. On 5th July, the Bench after hearing the learned cou.nsel for
petitioner and TUDA, passed an order directing the TUDA to permit
petitioner to construct a building in accordance with the permission
c granted by the Trichur Municipality. Despite this order, the sanction
does not appear to have been granted and TUDA approached for
clarification of the order dated 5th July 1983. But the court did qot find
any necessity either to clarify or modify the order and it was observed
that the TUDA was delaying passing of the order consequently, the
D court directed it to pass the order immediately. In pursuance of it, the
TUDA passed the order on 29th July permitting the petitioner to
construct subject to decision of writ petition. After grant of interim
order, UK, the owner handed over possession, in the last week of July,
to SN and executed the sale deed in favour of his wife, in Oct, 1983.

E The appellants appear to have raised construction and, probably,
attempted to add another storey for which they had no permission,
therefore, in December 1983, another petition no. 11011/83 was filed
in public interest by Shri Achuta Menon the Ex-Chief Minister of the
State. It was alleged that Government was not discharging its obliga-
tion by fulfilling non-official vacancies on the Board of TUDA. No
F exception could be taken to it but after mentioning it, petition pro-
ceeded with its real purpose by alleging collusion between appellant
and Government, thus, seeking interim order restraining appellant
from raising any construction. It was alleged that for implementation
of DTP scheme for West Fort Road with width of 25 mts., 10 mts.
could be required from the land in dispute besides a setback of 4.5 mts.
G Plea of ultra vires and ma/a fide of the Government was raised as,
even, when TUDA decided on 2.3.83 to notify the scheme, the
Government by its order dated 3.3.83 stayed the issuance of notifica-
tion and directed TUDA to grant permission. It was alleged that direc-
tion of Govt. that property situated at the West Fort junction may be
excluded was motivated. Allegation of negligence was made against
H Secretary TUDA and it was alleged even though TUDA decided to
T.N. RUGMAN! v. C.A. MENON (SAHA!, J.l 651

notify the scheme on 24th June, it was not done with the result that
A
stay order was obtained from the court. Allegations were made of
violating the undertaking given in the revised plan as only 5.3 metres
was left in the front and 1 mt. in the back. The petitioner went on to
state that despite MC and the TUDA having been apprised of it they
were not moving in the matter as MBUK was an influential person to
whom the authorities wanted to shield. Result was that on January B
2, 1984, respondent no. 4, namely, M.B. menon Unnikrishnan, that is
UK, respondent in Writ Petition No. 11011/83 was restrained from
making any further construction. UK was permitted later on to with-
draw from Writ Petition. No. 5287 /83 and appellant was impleaded in
, his place.

Since specific allegations of violation of sanction plan were c
made, the Court appointed a Commissioner. The Commissioner found
that Kumlakun road was 7 mts. besides the untarred road margin,
having a width of 3.95 mts. both on east and west. And on western
side, margin was a drain of 45 cm. width the existence of which was
claimed by the- appellant to be in his property. The Commissioner D
found the distance between the road and the building, excluding the
drain to be 5.3, 5.82 and 5.95 metres on East, South and North side
respectively. Affidavits were filed on behalf of the Govt. TUDA, MC
and the Chairman of the MC. The Govt. reiterated that in absence of
any notification under Section 8 of the Act, the permission could not
be refused. Further TUDA was directed to go ahead with the scheme E
after excluding land of the owner except to the extent required for
road. The TUDA and MC also reiterated their stand and denied any
negligence. But two facts need be stated, one that it was in affidavit of
TUD A that from surveyors report, it was clear that the drain in front
of the site formed part of the property belonging to appellant and the
municipal commissioner admitted that as per plan approved by the F
MC, the owner was required to leave 3.3 mts. only in front. Allegation
of any violation was denied.

From facts, more or less undisputed it stands out clearly, that
when direction was issued by State Govt. on 25th March, 83 no scheme
had been framed by the TUDA under the Town Planning Act. There G
was, therefore, no statutory requirement for petitioner to have
approached it nor was there any power in TUDA to refuse it. The
practice of MC to sanction a plan subject to its approval by TUDA, as
a matter of routine cannot be appreciated. There can be no rationale
for the two authorities to be oblivious of their .responsibility by not
being aware of latest position and escape by passing· on, what is H
652 SUPREME COURT REPORTS [ 1990] Supp. 3 S.C.R.

A required to be done by one, to other by issuing such orders, unmindful
...
y
.
of untold misery and hardship it causes to an ordinary man. But for
such attitude permission could not have been refused to EPG in Dec.
82. However, we may not be understood as saying that TUDA should
be ignored. What is being stressed is that if in absence of any scheme
the development authority receives the plan it should endorse it with-
B out any delay. But in this case things moved much ahead. The Govt.
which is the ultimate authority whose functions are discharged by local
bodies issued directions to TUDA that in absence of any scheme there
was no justification to withhold the scheme. In subsequent letter it
pointed out that sanction may be granted after excluding the land
requirement for widening the road. Even the Chairman of MC admit-
ted in affidavit filed before MC that only 3.5 metres could be needed
for.the road. Yet the TUDA did not pass the order till directions were
issued by the Court. In our opinion, the TUDA acted arbitrarily and
without any justification in withholding the permission.

Action ofTUDA was, even, contrary to law, Section 15(1) (a) of
D the Act which provides restriction on construction is extracted below:

"Restrictions after declaration- (1) After the publication of
a notification under section 8 or section 10:-

(a) no person shall within the area included in the scheme
E erect or proceed with any building or work or remove, pull
down or alter any building or part of a building or remove
any earth; stone or material unless such person has applied
for and obtained the necessary permission, which shall be
contained in a commencement certificate granted, in cases
where the scheme has not been sanctioned, by the munici-
F pal council, and in other cases by the responsible authority,
in the form prescribed;"

From the section itself it is clear that the restriction could operate only
if notification under section 8 or 10 had been published. Section 10
deals with power of Govt. to require the council to frame a scheme. It
I
G is not relevant. Section 8 reads as under:

"Notification of resolution to make or adopt scheme:

The resolution under section 7 shall be published by notifi-
cation in the prescribed manner by the chairman; and such
H notification shall state that a copy of the plan is kept for the - '" ,_.
T.N. RUGMANI v. C.A. MENON [SAHA!, J.j 653

inspection of the public at all reasonable hours at the
municipal office." A

The manner to publish notification is provided by rule 32(a) and 33(a)
and (b) which are extracted below:

"32(a) The Notification under Section 8 which sha_ll !>e B
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 of the date of publication of Notification No.
1 under Rule 32(a). c
(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;
D
(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 E
Chairman shall send a notice to every owner who is con-
cerned, 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 G
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 H
654 SUPREME COURT REPORTS [1990] Supp. 3 S.C.R.

A 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
B
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, obvi-
ously, 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
c 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 build-
ing 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
D
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
E 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 meet-
F ing 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
G 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.
H -~ "'"'
T.N. RUGMANI v. C.A. MENON (SAHA( J.] 6')5

For the reasons stated above the appeals succeed and are A
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 B
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 c
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 TUD A 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 D
then the area being nominal it may be compounded in accord-
ance 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 E
part of appellant's building then the appellant shall be com-
pensated 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 F
witnesses shall remain intact.

Y. Lal Appeals allowed .

•