Bharat Shantilal Shah vs Percival Noronha And Ors.
2001 Latest Caselaw 410 Bom

JUDGMENT

1. This Writ Petition under Article 227 of the Constitution of India takes exception to the order dated 8th November, 2000 passed by the Additional District Judge, Panaji in Civil Appeal No. 1/2000.

2. Briefly stated, the said Appeal has been filed by respondent No. 1 challenging the change of zone of the petitioner's property to commercial zone in the Outline Development Plan. The petitioner took objection to the maintainability of the Appeal on the ground that the respondent No. 1 had no locus standi to institute an appeal within the meaning of Section 38 of the Goa, Daman and Diu Town and Country Planning Act, 1974 (hereinafter referred to as the said Act). The said preliminary objection has been rejected by the impugned order; and instead it has been held that appeal filed by respondent No. 1 is maintainable.

3. The petitioner, has, therefore, taken exception to the view taken by the District Court, by this petition under Article 227 of the Constitution. Respondent No. 1 appeared in person and supported the opinion expressed by the District Judge in the impugned order; whereas Shri V. P. Thali, the learned Additional Advocate General appearing for respondent Nos. 2 to 5 supported the plea taken by the petitioner. He has placed reliance on the decision of the Apex Court in Babua Ram and Ors. v. State of U. P. and Anr. reported in 1995(1) Mh.L.J. (SC) 930 = 1995 (1) GLT 192 which has dealt with the expression "a person aggrieved" in Section 28A(1) of the Land Acquisition Act, 1894.

4. The sole question that arises in the present case is whether the appeal filed by respondent No. 1 is maintainable within the ambit of Section 38 of the Act. Before examining the rival submissions, it would be apposite to reproduce Section 38 of the Act which reads thus -

"Section 38. Appeal. -- (1) Within one month of the coming into operation of any Development Plan, any person aggrieved by any provisions contained therein may make an application to the District

Court questioning the validity of the Development Plan, or any of its provisions on the following grounds, namely --

 (i)     that it is not within the powers conferred by this Act, or  
 

 (ii)    that any requirement of this Act or of any rules made thereunder had not been complied with in relation to the making of such Development Plan.  
 

 (2) The District Court, after giving an opportunity of being heard to the applicant, Planning and Development Authority concerned, Board and Government may - 
 

 (i)     stay, until the final determination of the proceedings, the operation of the Development Plan or the provisions contained therein, insofar as it affects any property of the applicant; and (ii)    quash, if it is satisfied that the Development Plan or any provisions contained therein are not within the powers conferred by this Act, or the rules made thereunder, or that the interests of the applicant have been substantially prejudiced by failure to comply with any requirement of this Act or of the rules, the Development Plan or any provisions contained therein generally or insofar as they affect the property of the applicant. (3)   Subject  to  the  provisions   of  Sub-sections  (1)   and  (2),   a Development Plan shall not, either before or after it has been approved, be questioned in any manner, in any legal proceedings whatsoever".  
 

5. On plain language of the said section, it would appear that only such person who is aggrieved, by the coming into operation of any Development Plan and more particularly the provisions contained therein, by virtue of his interest being substantially prejudiced due to failure to comply with any requirement of the Act, rules, the Development Plan or any provision contained therein insofar as it affects any of his property, is competent and has locus standi to file an application to the District Court questioning the validity of Development Plan or any of its provisions on the grounds mentioned in Sub-section (1). In other words, Sub-section (1) provides that only a specified class of persons are competent to maintain an appeal before the District Court and that too on the grounds available under Sub-section (1); namely, that the impugned action is not within the powers conferred by the Act or that any requirement of the Act or of any rules made thereunder had not been complied with in relation to the making of such Development Plan. Thus, the grounds of challenge are also very limited. Besides, Sub-section (2) postulates the scope of interference in such an appeal. The District Court is empowered to stay the operation of Development Plan or the provisions contained therein, insofar as it affects any property of the applicant. This is clearly a pointer to the meaning to be ascribed to the expression "any person aggrieved". Inasmuch as, the Development Plan or the provisions contained therein should essentially directly affect any of the property of the applicant or his interest therein is substantially prejudiced, only such a person can qualify the test of an aggrieved person within the ambit of Section 38 of the Act. Clause (ii) of Sub-section (2) authorises the District Court to quash the Development Plan or any provisions contained therein, if it is satisfied that the same are not within the powers conferred by the Act or the rules made thereunder, or that the interests of the applicant (aggrieved person) have been substantially prejudiced by failure to comply with any requirement of this Act, the rules, the Development Plan or any provisions made therein insofar as they affect the property of the applicant. Sub-section (3) of Section 38 clearly bars questioning the validity of Development Plan in any manner in any legal proceedings whatsoever, except subject to the provisions in Sub-sections (1) and (2) referred to above. It was suggested that clause (ii) of Sub-section (2) postulates that the Court is competent to quash the Development Plan or any provisions contained therein generally and not only when they affect the property of the applicant, in which case any citizen or resident in the area concerned can maintain appeal under this provision to challenge that his and interest of similarly placed persons or for that matter some other resident has been substantially prejudiced. This submission, in my view, is devoid of merits. Applying the Rule of Ejusdem Generis the only meaning that can be ascribed to the purport of Section 38 is that a person whose property is affected or whose interest therein has been substantially prejudiced by failure to comply with any requirement of this Act, rules, the Development Plan or any provisions contained therein, alone is a person aggrieved. In other words, Section 38 is a self contained Code. It provides for a right to maintain an appeal, albeit within the parameters provided in the said section. It is well settled that right of appeal inhers in no one but is a creature of statute. A fortiori, unless a person qualifies the test of being person aggrieved, as provided in Section 38, he has no locus standi to maintain an appeal.

6. In the present case, the District Court negatived the objection taken by the petitioner to the maintainability of appeal chiefly on the ground that the respondent No. 1 is the resident of area of Fontainhas and the development will affect the houses in the Fontainhas area below the hillock. Further, the challenge in the appeal is on the ground that alteration in planning Outline Development Plan in the Fontainhas area is done in steep gradients and open spaces on the slopes of the hillocks; that Authorities have not taken into consideration provisions of Section 11 of the Act, therefore, the Court below has held that the respondent No. 1 was competent to maintain appeal under Section 38 of the Act. The District Court has clearly overlooked that there was nothing on record to show that the property of the respondent No. 1 was affected due to such change of zone to commercial use. Assuming that the respondent No. 1 is a resident of area of Fontainhas that ipso facto did not clothe him with the right to maintain appeal under Section 38 of the Act, for it is only such person whose property is affected or any of his right in the property is affected due to the change in the zone of the property in question could file an appeal. Moreover, though the respondent No. 1 challenged the change of zone in respect of the petitioner's property, the petitioner was not made party to the appeal but the petitioner got himself impleaded at a later stage. Insofar as the second aspect which has weighed with the District Court that the provisions of Section 11 of the Act, as contended by the respondent No. 1, were not complied with; it is trite to point out that the respondent No. 1 has conceded that objection in this behalf was taken by the Indian Heritage Society (Goa Chapter) of which he is a member. There is no dispute that the Authorities have considered all the objections before it while accepting the request for change of zone. It is, therefore, not open to contend that the change effected in the Outline Development Plan is either not within the powers conferred by this Act or that any requirement of this Act or of any rules made thereunder had not been complied with or for that matter relevant provisions of the Act not taken into consideration in relation to the making of such Development Plan, which grounds are the quintessence for maintaining an appeal under Section 38 of the Act. A fortiori, the appeal filed by the respondent No. 1 was not maintainable within the purport of Section 38 of the Act, for the grounds on which it could be filed were also not available. I would hasten to observe that the provisions of Section 38 of the Act cannot be allowed to be converted into a pro bono publico litigation, as is, in substance, contended by the respondent No. 1, for it would do violence to the legislative intent behind Section 38 which provides right of appeal only to a person aggrieved whose property has been affected by the Development Plan or any provisions contained therein. This is not to say that the respondent No. 1 or any other person claiming to be a public spirited person or wanting to discharge public duty is denied from challenging the action, on such permissible grounds, before this Court in writ jurisdiction. As observed earlier, recourse to Section 38 of the Act, of appeal, is open only to specified persons and on very limited grounds. Therefore, the Court below was wrong in opining that the appeal filed by the respondent No. 1 under Section 38 of the Act was maintainable.

7. In the circumstances, I have no hesitation in accepting the preliminary objection raised on behalf of the petitioner with regard to the locus standi of respondent No. 1 to maintain an appeal under Section 38 of the Act, for the respondent No. 1 has not established on record that any of his property was to be affected by such change in Outline Development Plan directly or otherwise and more particularly of the reasons (grounds) prescribed by Clauses (i) and (ii) of Sub-section (1) of Section 38 of the Act; and, therefore, cannot be said to be person aggrieved in that sense within the ambit of that section.

8. Accordingly, this Writ Petition succeeds. The impugned order is quashed and set aside. Rule is made absolute in above terms. No order as to costs.

9. Writ petition allowed.