MUSSOORIE DEHRADUN DEVELOPMENT AUTHORITY Vs. RAVI PRAKASH GOYAL
HIGH COURT OF UTTARAKHAND
MUSSOORIE DEHRADUN DEVELOPMENT AUTHORITY
Shri Ravi Prakash Goyal
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(1.)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
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 ?
(3.)ACCORDINGLY to the plant 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 submitted to the Defendant.
(c) Full cost of the suit be awarded.
(d) Any other relief to which Plaintiff is found entitled may kindly be granted.
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