SURESH CHANDRA Vs. COMMISSIONER CHAIRMAN MUSSOORIE

JUDGEMENT

(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.

(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.