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2007 Supreme(UK) 588
2008 UAD 535
UTTARAKHAND HIGH COURT
Hon’ble Mr. Justice Rajesh Tandon
Second Appeal No. 89/2007
MUSSOORIE DEHRADUN DEVELOPMENT AUTHORITY – Defendant-Appellant
Versus
SHRI RAVI PRAKASH GOYAL – Plaintiff-Respondent
Decided on : 06.12.2007
For the Appellant : Mr. Sudhanshu Dhulia, Sr. Adv. & Mr. Vipul Sharma Adv.
For the Respondent: Mr. Alok Singh, Sr. Adv. & Mr. Dharmendra Barthwal, Adv.
Headnote:(A) U.P. Urban Planning and Development Act, 1973, Secs. 15, 37 and Specific Relief Act, 1963, Sec. 41(h) and C.P.C., 1908, Order 7, Rule 11 — Bar of — Applicability of — 'Deemed Sanction' — Benefit of — Availability of — Where applications for sanction of building plan presented in accordance with the Bye laws — Authorities concerned not passing any order with regard to refusal of the application — Application submitted for such sanction — Not barred by any provisions of the above Acts or the Code — Applicant held entitled to benefit of provisions regarding deemed sanction. (Paras 26, 27, 38, 39, 40, 41)
(B) Mussoorie Dehradun Development Authority bye-laws — Bye-law nos. 2.14 to 2.17 and 3.20 — Interpretation and applicability of — Applicability of provisions relating to 'deemed sanction' — Failure of Development Authority to intimate its decision in writing within 40 days of the receipt of application for sanction of building map — Applicant will be entitled to give a notice in writing — Further failure of Development Authority to communicate its decision to applicant within 20 days of receipt of such notice — Applicant shall thereon have a right to commence and carry out the proposed development work under 'deemed sanction'. (Paras 29 to 37)
(C) C.P.C., 1908, Sec. 100 — Second Appeal under — Interference with findings of facts Permissibility of — Jurisdiction of High Court in Second appeal is confined to appeals involving substantial questions of law — It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at by the last Court of fact, being the first appellate court — High Court has no jurisdiction in the second appeal to interfere with findings of facts recorded by the first appellate court after careful consideration of the evidence, oral and documentary on record. (Paras 45 to 48)
¼v½ ;wdihd vcZu Iykfuax ,aM MSoyiesaUV ,DV] 1973] /kkjk&15] 37 o fofufnZ"V vuqrks"k vf/kfu;e] 1963] /kkjk&41¼,p½ o nhokuh izfd;k lafgrk] 1908] vkns'k 7] fu;e 11 & dh okj & dk ykxw gksuk & ^MhEM lSaD'ku* & dk ykHk & dh izkI;rk & tgk¡ ^ckbZ ykWt* ds vuqlkj rS;kj dh xbZ Hkou ;kstuk dks eatwjh fnykus gsrq izkFkZuk i= fn;k x;k & lacaf/kr vf/kdkfj;ksa us izkFkZuk i= dks vLohdkj djus ds laca/k esa dksbZ vkns'k Hkh ikfjr ugha fd;k & ,slh eatwjh gsrq izkFkZuk i= dk nkf[ky fd;k tkuk & mijksDr vf/kfu;eksa vFkok lafgrk ds fdlh Hkh izko/kku ds vUrxZr fu"ksf/kr ugha & ^MhEM lSaD'ku* ls lacaf/kr izko/kkuksa dk izkFkhZ dks gdnkj ekuk x;kA
¼izLrj 26] 27] 38] 39] 40] 41½
¼c½ elwjh nsgjknwu MSoyiesUV vFkkWfjVh ckbZ&ykWt & mi fu;e ua- 2-14 ls 2-17 rd o 3-20 dh O;k[;k o ykxw gksuk & ^MhEM lSaD'ku* ls lacaf/kr mica/kksa dk ykxw gksuk & fodkl izkf/kdj.k dk] Hkou ds uD'ks dh eatwjh ysus gsrq fn;s x;s izkFkZuk i= dh izkfIr ds 40 fnuksa ds Hkhrj] vius fu.kZ; ls fyf[kr :i ls voxr djkus esa vlQy gksuk & izkFkhZ fyf[kr esa uksfVl nsus dk vf/kdkjh gksxk & fodkl izkf/kdj.k dk] bl uksfVl dh izkfIr ds 20 fnuksa ds Hkhrj izkFkhZ dks vius fu.kZ; ls voxr djkus esa vkxs Hkh vlQy gksuk & izkFkhZ dks ,sls esa ^MhEM lSaD'ku* ds vUrxZr izLFkkfir fodkl dk;Z dks vkjaHk djus dk o iw.kZ djus dk vf/kdkj gksxkA ¼izLrj 29 ls 37½
¼l½ nhokuh izfd;k lafgrk] 1908] /kkjk&100 & ds vUrxZr f}rh; vihy & fu.khZr rF;ksa esa n[ky vankth & dh vuqKk fn;k tkuk & mPp U;k;ky; dk f}rh; vihy esa {ks=kf/kdkj mu vihyksa rd lhfer gS ftuesa fof/k dk dksbZ izeq[k iz'u fookfnr gS & ;g mPp U;k;ky; ds {ks=kf/kdkj esa ugha gS fd og mu vk/kkjksa dh tkap djs ftu ij rF;ksa ds vafre U;k;ky;] tks fd izFke vihyh; U;k;ky; gS] us viuk fu.kZ; fn;k gS & mPp U;k;ky; dks] f}rh; vihy esa mu fu.khZr rF;ksa esa n[ky nsus dk vf/kdkj ugha gS tks izFke vihyh; U;k;ky; }kjk] ekSf[kd o fyf[kr] vfHkysf[kr lk{; ij è;kuiwoZd lksp fopkj fd;s tkus ds ckn vfHkysf[kr fd;s x;s gSaA
¼izLrj 45 ls 48½
Hon'ble Rajesh Tandon, J.
Heard Shri Sudhanshu Dhulia, Sr. Advocate assisted by Shri Vipul Sharma, counsel for the appellant and Shri Alok Singh, Sr. Advocate assisted by Shri Dharmendra Barthwal counsel for the respondent.
2. By the present second appeal filed under Section 100 of Code of Civil Procedure, the appellant has prayed for setting aside the judgment and decree dated 7.10.2004 passed in Civil Appeal No. 8 of 2003 passed by the Additional District Judge/FTC-V, Dehradun.
FACTUAL MATRIX OF THE CASE
3. Briefly stated, a suit was filed by the plaintiff before the Court of Civil Judge (Sr. Division), Dehradun for a decree for declaration and permanent injunction. The suit was decreed. Against the said decree the defendant preferred the appeal. The appeal was dismissed by the appellate court. Hence, the present second appeal has been filed. The second appeal has been admitted on the following substantial questions of law :-
"1. Whether the relief claimed by the plaintiff was barred by Section 37 of U.P. Urban Planning and Development Act, 1973? If so, have the courts below erred in law in decreeing the suit?
2. Whether the provision relating to deemed sanction of the Mussoorie Dehradun Development Authority has wrongly been interpreted by the courts below ?
3. Whether the plaint of the plaintiff was liable to be rejected under Order 7 Rule 11(d) of the Code of Civil Procedure?"
PLAINT AVERMENTS
4. According to the plaint averments, the plaintiff had submitted a plan alongwith the documents required to the Mussoorie Dehradun Development Authority for raising constructions at plot no. 973/4/113 (Old No. 568/1) at Rajpur Road, Dehradun. A sum of Rs. 45/- towards fee for submission of plan on 11.1.2002 was also deposited. Thereafter, the plaintiff visited the office of Mussoorie Dehradun Development Authority (hereinafter referred to as 'the Authority') several times and on enquiring about the plan submitted by him, he was always replied that his matter was being looked into by the Authority. The plaintiff did not get any response from the Authority and he sent a registered notice to the Authority on 23.7.2000 under the bye-law no. 2.17 which is at par with the bye-law no. 3.20 of the Authority stating therein that in case no decision is communicated to the plaintiff within a period of 20 days from the receipt of the said notice, the plaintiff will commence and carry out the proposed development/construction work in accordance with the plan submitted by him. The said notice was duly served upon the Authority on 3.8.2000 but the Authority has not communicated any decision to the plaintiff and, as such, the plaintiff had the right to commence and carry out the proposed construction work. Further, it has been stated that the plaintiff started digging the foundation but the employees of the Authority came to the spot and stopped further working inspite of any right or jurisdiction to interfere in the construction of building as per the plan submitted by the plaintiff to the defendant Authority. The plaintiff has sustained heavy losses because the plan was submitted on 11.1.2000 and more than one year has elapsed and during this period the prices of building material have gone up and the plaintiff has also deprived of from completing construction work and utilizing the property as well. The plaintiff has prayed for the following reliefs :-
"(a) A decree for declaration declaring that the plan submitted to defendant on 11.1.2000 for construction of building at property bearing Old No. 568/1, New No. 973/4/113 Rajpur Road, Dehradun which is Annexure of the plaint is deemed to have been sanctioned in view of Bye-law no. 2.17 of the Bye Laws framed by the defendant under U.P. Urban Planning and Development Act, 1973.
(b) A decree for Permanent Injunction restraining the defendant not to interfere in the Construction of the Building by other plaintiff at Old No. 568/1, New No. 973/4/113, Rajpur Road, Dehradun as per plan submitte
