- (1.) A short question, as to whether an appeal lies against an order sanctioning the building plan under section 15 (5) of The U. P. Urban Planing and Development Act, 1973, arises in this appeal.
(2.) A few facts in the background qf which the present petition has been filed may first be stated in brief The petitioner and respondent no 2 are the owners of adjoining land in semi-hill town of Dehradun. There was seme dispute between the parties which resulted in two cross-suits being filed in the civil court but the same was compromised by the parties. Thereafter the petitioner applies for sanction of a building plan in respect of the land owned by him and this again gave rise to several civil suits between the parties with which we are not concerned at present. It is undisputed that the plan submitted by the petitioner was sanctioned by the concerned authority. An appeal purporting to be one under section 15 (5) of the U. P. Urban Planning and Development Act, 1973 was filed by respondent no. 2. After filing of the appeal respondent no. 2 also applied for ad-interim relief which has been granted by respondent no. 1 vide its order dated 21-12-1989 (Annexure 7 to the writ petition). In the objection filed by the petitioner before respondent no. 1 it was contended that the appeal was not maintainable and the appellant (respondent no 2 here) had no locus standi to file the same. Despite all these objections respondent no. 1 proceeded to hear the application for interim relief and has stayed the operation of the sanction to build granted to the petitioner. It is against this order primarily that the present petition has been filed. Parties have exchanged their counter and rejoinder affidavits and have prayed that the writ petition may be finally disposed of at the stage of admission itself. We, therefore, proceed to hear the same on merits also. It is undisputed that the appeal before respondent no. 1 had been filed by respondent no. 2 against an order sanctioning the building plan of the petitioner. The submission made by the petitioner is that respondent no. 2 was not a person aggrieved within the meaning of sub-clause 5 of section 15 of the 1973 Act. Section 15 deals with an application for permission to develop. Sub-clause 3 thereof lays down that after receipt of the application for permission the Vice Chairman, after making necessary enquiry by order in writing either grant permission subject to such conditions as may be specified in the order or refuse to grant permission. Sub-clauses 4 and 5 of section 15 are relevant and are being quoted below : Sub-clause (4) "Where permission is refused, the grounds of such refusal shall be recorded in writing and communicated to the applicant. Sub-clause (5) Any person aggrieved by an order under sub-section 4 may appeal to the Chairman against that order within 30 days from the communication thereof and may after giving an opportunity of hearing to the appellant and, if necessary, also to the representative of the Vice Chairman either dismiss the appeal or direct the Vice-Chairman to grant the permission applied for with such modification, or subject to such conditions, if any, as may be specified.".
(3.) STRESS of the learned counsel for the petitioner was that it is only when permission is refused that a right to file an appeal under sub-clause 5 accrues and that too to the person to whom permission has been refused. The submission from the side of respondent, however, was that according to subclause 5 "any person aggrieved" has a right to file an appeal. This argument, however, does not make into consideration the remaining part of the opening sentence which says that "any person aggrieved by an order passed under sub-section 4" on making a reference to sub-section 4 it will be obvious that it is only in a case when permission is refused that the right of appeal has been granted. As a corollary, therefore, an appeal shall not lie in a case where permission had been granted. The view that we are taking can be supported in another way also. The remaining provision of sub-clause 5 lays down that opportunity of hearing Is to be given only to the appellant and to the representative of the Vice Chairman. If we were to agree with the respondent then, in an appeal against grant of permission, the person having the permission shall have no right to be beard Such a situation cannot be countenanced in law as it will amount to denial of the right to defend the grant of permission before its reversal in appeal. Obviously a reading of the entire sub-section (5) would make it clear that it is only when a permission is refused that a right to appeal accrues and not otherwise. That being so an appeal under section 15 (5) will not lie and the authority can have no jurisdiction to pass any interim order either.;