- (1.) THOUGH the appeals were admitted by Hon. R. N. Ray, J. (since retired) vide order dated 10-12-97 no substantial questions of law were formulated. However, Sri A. K. Mishra, learned counsel for the appellant has pressed the two appeals on following substantial questions of law formulated by him in the of memos appeal:- "1. Whether the appellant was only authorized to sanction the site plan for the construction of 1. 5 F. A. R. The respondents admitted a site plan for construction of multistoried building of 3. 5 F. A. R. , site plan of which can only be passed after the Board of the appellant in its meeting approves it and sends its recommendation to the State Government and the State Government grants its permission, only then site plan of 3. 5 F. A. R. of multistoried can be passed. No request was made nor any application was given by the plaintiff respondent that his case be placed before the Board of the appellant but view to the contrary taken by the appellate Court is wholly illegal and erroneous?
(2.) WHETHER as per the rules and regulations of the appellant the respondents are liable to pay development charges, internal developments charges and betterment charges to the appellant as the land in dispute is situated within the regulated area and as such before permitting construction on a free hold land development charges etc. are charged as per the rules and regulations of the appellant but view to the contrary taken by the appellate Court is wholly illegal and erroneous?" 2. In Second Appeal No. 1139 of 1997 one more question raised is that the trial Court decreed the suit for allotment of certain lands to the plaintiffs-respondents on payment of consideration as directed by the Courts below. The decree is in the nature of specific performance of the contract. There was no agreement. Hence the said decree is without jurisdiction. Since in both the appeals the questions raised are identical it would be convenient to decide both the appeals by a common judgment. In suit No. 417 of 1997 the plaintiff alleged that he was owner in possession of land khasra No. 126 admeasuring 3-4-0 bigha pucca khasra No. 125 admeasuring area 1-10-6 pucca bigha situated in village Makanpur, Pargana Loni, Tehsil Dadri, District Ghaziabad. The name of the father of the plaintiff and the name of the plaintiff were recorded in the revenue records in various years. The defendant is interfering without right or title in the possession of the plaintiff and threatened to demolish the constructions made thereon. The plaintiff applied for sanction of plan of multistoried building but the defendant did not pass any order. The relief claimed was that by a decree of permanent injunction the defendant, its officials and officers be restrained from interfering in the peaceful possession of the plaintiff over the suit land and they also be restrained from illegally demolishing the constructions in the suit land. By a subsequent amendment a further prayer added was that by a decree of mandatory injunction they be directed to sanction the construction plan of 3. 5 F. A. R. multistoried building.
(3.) IN suit No. 509 of 1997 was filed by the plaintiffs-respondents in respect of khasra plot No. 233 area admeasuring 1-13-0 pucca bigha, khasra plot No. 232 area admeasuring 0-13-0 pucca bigha, khasra plot No. 232 area admeasuring 0-13-0 and khasra plot No. 377/2 area admeasuring 1-13-0 pucca bigha with similar allegations and for the same relief. However, by subsequent amendment in the plaint another relief added was that by passing a mandatory decree the defendant be directed to allot 1378. 71 square meter land after accepting consideration of Rs. 708/- per sq. meter and betterment charges at the rate of 1% of the sale consideration. The material allegations on which the said relief was added were that the defendant is developing the land in Kaushambi scheme. According to the development plan some of the roads, drainage, sewer etc. pass through the land of the plaintiffs. The defendant requires 447. 22 sq. meter land of khasra No. 377/2 and the defendant shall have to allot 1549. 95 sq. meter of land to straighten the land of the plaintiffs. Likewise for construction of road, boundary wall of sub-stations the defendant needs 277. 45-sq. meter of land and the plaintiffs need 1656. 16-sq. meter of land for constructions of the building. After adjustment the plaintiffs will be given 1378. 71-sq. meter land. The agreement in this respect was arrived at between the parties and the defendant shall have to pay Rs. 708/- plus one per cent betterment charges to the plaintiffs. The defendants contested both the suits on various grounds. They had also taken the plea that the disputed land does not belong to the plaintiffs. In both the suits the trial Court recorded findings of fact that the land was not acquired by the defendant-appellant and the plaintiffs were owners and were recorded tenure-holders of the suit land. On the evidence of the parties the trial Court recorded a finding of fact that the defendants agreed to allot certain lands to the plaintiffs on the terms and conditions as stated above in the plaint in suit No. 509 of 1997 in lieu of land acquired by the defendant- appellant for the purposes of development of its own land. The trial Court also held that the plaintiffs were entitled to sanction of 3. 5 F. A. R. land for construction of multistoried building. The trial Court therefore, decreed both the suits. The lower appellate Court affirmed the findings of fact recorded by the trial Court. Aggrieved by the judgments and decrees passed by the Courts below the appellant Ghaziabad Development Authority has filed these two appeals. Heard Sri A. K. Mishra, learned counsel for the appellant and Sri Rajiv Mishra, learned counsel for the respondents in both the appeals. Findings on Question No. 1: The case of the plaintiff-respondent was that the plaintiff intended to construct multistoried building on his land and he had applied for permission to construed 3. 5 F. A. R. multistoried building. Such an application in the prescribed form and complying with all formalities was moved on 14-6-95. The plaintiff's further case is that the development authority i. e. the appellant neither refused the permission nor granted the permission. On consideration of the evidence adduced by the authorities the trial Court recorded a finding of fact that the plaintiff-respondent submitted application for permission to construct multistoried building in 3. 5 F. A. R. on 14-6-1995. The defendant did not grant the permission even after expiry of six months period. It was also held that the permission was also not refused by the defendant-appellant. The defendant-appellant's case appeared to be that for grant of permission for construction of multistoried building in 3. 5 F. A. R. the sanction of the Government was necessary. It is admitted that around this land in question the authority has granted permission to various builders to construct multistoried building in 3. 5 F. A. R. No copy of sanction from the State Government in such cases has been filed. The sole question, therefore, is whether sanction of the State Government for construction of a building in 3. 5 F. A. R. was necessary or not and if so what was its procedure.;