S. K. Dhaon, J. - (1.) PROCEEDINGS were initiated by the petitioners for permission to raise certain constructions over a certain piece of land. An application accompanied by the site plan etc. was given. No orders either rejecting the application or granting permission were passed despite notice given by the petitioners. According to the petitioners, a valid permission came into existence on account of the operation of a legal fiction. Hence the prayer is that the respondents should be commanded to tread the petitioners as the grantees of a valid permission.
(2.) THE two respondents to the writ petition, namely, the Prescribed Authority and the State of Uttar Pradesh are represented by the Standing Counsel. Affidavits have been exchanged between the parties. THE petition, though not formally admitted, is ripe for hearing. Hence it is being disposed of finally with the consent of the counsel for the parties. The Statute involved in this petition is the U. P. (Regulation of Building Operations) Act, 1958 (hereinafter referred to as the Act) and the Rules frame thereunder. According to its preamble the Act is to provide for the regulation of buildings with a view to prevent haphazard development of urban and rural areas. The State Government is empowered to declare a "regulated area" (Section 3). "Prescribed Authority" means a person or body of persons appointed as such by the State Government in respect of a regulated area by notification in the Official Gazette (Section 2 (g) There is a prohibition to erect, erect or make any material change in any building without previous permission of the Prescribed Authority in writing (Section 6). An application for permission sh?ll be made in writing to the Prescribed Authority in such form and containing such information as may be prescribed. The relevant Rule lays down that the application for permission should be accompanied by a site plan. The Prescribed Authority is enjoined to pass an order in writing either granting or refusing permission. The grounds on which the permission may be refused are enumerated. The Prescribed Authority is empowered to return the application for making it in conformity with the relevant Rules and Regulations. Permission, if refused, the grounds for such refusal shall be communicated to the applicant within 99 days of the receipt of an application. If no orders are communicated within ?-0 days granting or refusing the permission, the applicant may invite the attention of the Prescribed Authority to the said fact by a written communication and if no action is taken by the Prescribed Authority for a further period of 30 days a permission shall be deemed to have come into existence (Section 7). The petitioners sought permission to raise a certain construction over a piece of land measuring 120' x 43.' On 29th November, '983, the application was rejected. The appeal preferred before the Controlling Authority by the petitioners was withdrawn. Another application was given on 18th December, 1984. A communication dated 15th March, 1985, was served upon the petitioners on 31st March, 1985. In this communication the Prescribed Authority points out that according to the site plan the proposed constructions will take place over a drain, the ownership of which vests in the City Board and if permission is granted municipal land will be encroached upon. The Municipal Board has refused to issue a no objection certificate. On 6th April, 1985, the petitioners served a notice on the Prescribed Authority calling upon it to grant permission within one month from the date of receipt of the notice. The Prescribed Authority took no action upon the said notice. Therefore, this petition was presented on 29th October, 1986.
(3.) WE may now extract sub-sections (3) and (4) of Section 7 :- 7. Application for permission. (1)....... (2)......... (2A)......... (2-B)......... (2-D)......... (3) Where permission is refused, the grounds of such refusal shall be communicated to the applicant in such manner as may be prescribed within ninety days of the receipt of such application. (4) Where no orders are communicated within the period mentioned in sub-section (3), granting or refusing the permission, the applicant may by a written communication call the attention of the prescribed authority to the omission or neglect, and if such omission or neglect continues for a further period of thirty days the prescribed authority shall be deemed to have permitted the proposed work Provided that nothing in this sub-section shall be construed to authorise any person to act in contravention of the regulations issued under this Act." The Statement of Objects and Reasons, as stated in the Bill giving rise to the Act, as relevant to the present controversy is "It has been observed that there is a tendency of haphazard building construction round about growing towns and ultimately such constructions with no proper means of drainage, water supply, communication and no proper sanitation affect adversely the town besides being themselves a source of anxiety to the authorities concerned......". In sub-section (2-A) of Section 7 the grounds on which permission may be refused are enumerated. They are seven in number. One of them is that the proposed building would be an encroachment upon any public premises as defined in the U. P. Public Premises (Eviction of Unauthorised Occupants) Act, 1972 Section 7 (2-A) (d). Section 2 (e) of the said Act defines "public premises" to mean "any premises belonging to or taken on lease by or on behalf of any local authority." In Section 4 (25) of the U. P. General Clauses Act, 1904 "local authority" is, inter alia, defined to mean a Municipal Board or Nagar Palika. Therefore, there can be no escape from the conclusion that the land and the drain over it, of which the Municipal Board concerned claims to be the owner is "public premises". It follows that the proposed building of the petitioners would be an encroachment upon public premises. The preamble of the Act, the Statement of Objects and Reasons aforequoted and the various provisions of the Act and Section 7 (2-A) in particular, amply demonstrate that public interested is the pivot around which the machinery of the Act and the Rules and the Regulations framed thereunder rotate. The grounds as mentioned in Section 7 (2-A) on which permission may be refused have nexus with public interest. The crucial words in sub-section (4) are : "if such omission or neglect continues for a further period of thirty days the Prescribed Authority shall be deemed to have permitted the proposed work."The emphasis of the Legislature is that there should be an expeditious disposal of the application for the grant of permission. The Prescribed Authority should not sit with folded hands without taking any initiative to take a decision. Last but not the least, there should not be an omission or neglect on the part of the Prescribed Authority. While judging the conduct of the Prescribed Authority to bring home the charge of neglect or omission the primary question to be answered is whether the anxiety of the Prescribed Authority is to protect public interest or to prevent injury to a large section of the people or to prevent injustice being caused to others. It the action of the Prescribed Authority passes through these touchstones, there will neither be acts of omission nor neglect and the legal fiction will not come into play.;