revision by 3rd party vinod kumar bhalotia vs state of u. p. and others on 15 december, 1999

8/4/2019 Revision by 3rd Party Vinod Kumar Bhalotia vs State of U. P. and Others on 15 December, 1999

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Allahabad High Court

Vinod Kumar Bhalotia vs State Of U. P. And Others on 15 December, 1999

Equivalent citations: 2000 (1) AWC 564

Author: G P Mathur

Bench: G Mathur, B Din

JUDGMENT

G. P. Mathur, J.

1. The question which requires consideration in this petition under Article 226 of the Constitution is whether a

revision under sub-section (3) of Section 41 of U. P. Urban Planning and Development Act, 1973 (hereinafter

referred to as the Act) against an order of Vice-Chairman granting permission under sub-section (3) of Section

15 of the Act is maintainable at the Instance of a third party.

2. The petitioner is owner of a commercial building known as Bhalotia Market in Mohalla Chak Jalal in the

city of Gorakhpur. Smt. Ganga Devi respondent No. 4 is owner of a plot of land which is Immediately

adjoining to Bhalotia Market on the northern side. She intended to make a commercial building over the

aforesaid plot and submitted a plan of the same to the Gorakhpur Development Authority (hereinafter referred

to as the Authority) for grant of permission In accordance with Section 14 of the Act. The Vice-Chalrman ofthe Authority by his order dated 5.6.1999 sanctioned the plan and granted permission under sub-section (3) of

Section 15 of the Act to make construction. The petitioner preferred a revision against the said order before

the State Government under sub-section (3) of Section 41 of the Act which was dismissed by the State

Government by the impugned order dated 22.9.1999 on the ground that no revision lay under the aforesaid

provision against an order passed by Vice-Chairman of a Development Authority or against an order granting

permission to make construction or carry out development of land. This order is impugned in the present

petition.

3. According to the case of the petitioner, respondent No. 4 submitted a map in the year 1995 for making

construction over an area 78' x 40' and the remaining area 84' x 40' was shown as parking place. Though no

basement was sanctioned but a basement was constructed. Thereafter, a fresh map was submitted for sanctionin 1996 for making construction over the vacant piece of land 70' x 40' which had been earlier left for the

purposes of parking and loading/unloading of vehicles. The petitioner filed an objection against the said map

on which the Chief Town Planner directed respondent No. 4 to submit a fresh map in accordance with the

bye-laws and in the meantime stopped the construction work. The respondent No. 4 preferred Writ Petition

No. 16656 of 1998 against the aforesaid order of the Chief Town Planner but subsequently the writ petition

was dismissed as withdrawn. Thereafter, respondent No. 4 submitted another map being map No. 468 of 1998

which according to the petitioner was against the bye-laws as vacant land had not been left on the front and

back side which is mandatory for a commercial building. This map bearing No. 468 of 1998 was sanctioned

and permission was granted to respondent No. 4 for carrying out the development work under sub-section (3)

of Section 15 of the Act. The petitioner preferred a revision against the said order before the State

Government under Section 41 (3) of the Act, which was dismissed on 22.9.1999.

4. The contention of learned counsel for the parties turn on interpretation of sub-section (3) of Section 41 of

U. P. Urban Planning and Development Act. 1973 which reads as follows :

"(3) The State Government may, at any time, either on its own motion or on application made to it in this

behalf, call for the records of any case disposed of or order passed by the Authority or the Chairman for the

purpose of satisfying itself as to the legality or propriety of any order passed or direction Issued and may pass

such order or issue such direction in relation thereto as it may think fit."

5. The language used in this sub-section is similar to the language used in sub-section (1) of Section 397. Cr.

P.C. which confers revisional power upon the Court of Sessions and High Court. A plain reading of the


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provision shows that the State Government has the power to call for the records of any case disposed of either

on its own motion or on application made to it in this behalf for the purpose of satisfying itself as to the

legality or propriety of any order passed or direction issued and may pass such order or issue such direction in

relation thereto as it may think fit. Similar power can be exercised by the State Government With regard to an

order passed by the Authority or the Chairman. The use of the word 'or' after the expression 'any case disposed

of has been made in a disjunctive manner and, therefore, the expression 'any case disposed of cannot have any

co-relation with the expression "Authority or Chairman". The expression "Authority or Chairman" has

co-relation with the expression used immediately before, viz., "order passed by". Therefore, the StateGovernment can exercise power under sub-section (3) of Section 41 against (i) any case disposed of (ii) order

passed by the Authority and, (iii) order passed by the Chairman.

6. Sri M. A. Qadeer, learned counsel for the respondent No. 4 has contended that the map is sanctioned or

permission for development is granted under sub-section (3) of Section 15 of the Act by a Vice-Chairman of

the Authority and no revision is maintainable against such art order as he is not one of the persons against

whose order a revision may be entertained. He laid emphasis on the fact that the Legislature has used the

expression 'order passed by the Authority or Chairman'. It was urged that U. P. Urban Planning and

Development Act, 1973 was amended by U. P. Act No. 19 of 1976 and by Section 7 thereof, Section 41 was

amended in the following manner :

"Amendment of Section 41.--In Section 41 of the principal Act-

(i) for the word 'Authority' wherever occurring, the words 'Authority, the Chairman or the Vice-Chairman'

shall be substituted and be deemed to have been substituted with effect from August 15, 1975."

7. Section 41 of the Act was again amended by Section 43 of U. P. Act No. 41 of 1976 and it reads as follows

:

"43. Amendment of Section 41.--In Section 41 of the Uttar Pradesh Urban Planning and Development Act,

1973, in sub-section (3), for the words "Authority, the Chairman or the Vice-Chairman" the words "Authority

or the Chairman" shall be substituted."

According to learned counsel initially when the Act was enacted in 1973 only the word "Authority" was there

but by Act No. 19 of 1976. the aforesaid word was substituted by the word "Authority, the Chairman or the

Vice-Chairman". However by U. P. Act No. 41 of 1976. the aforesaid words were substituted by the words

"Authority or the Chairman" and this showed that the Legislature had deliberately omitted the word

Vice-Chairman. In our opinion, the interpretation suggested by the learned counsel cannot be accepted as the

expression 'call for the records of any case disposed of is a wholly Independent expression and it has no

co-relation with the expression "Authority or the Chairman". If by an order a case has been disposed of. a

revision would lie against such an order irrespective of the fact by whom the said case has been disposed of.

If, however, a revision is filed against an order which does not dispose of a case, then the same would be

maintainable only if the order is passed by the Authority or the Chairman. No revision would He against an

order simpliciter of the Vice-Chairman if it does not dispose of a case.

8. It may now be examined whether sanctioning a building plan or a map of a proposed construction amounts

to a case disposed of. Subsection (1) of Section 14 provides that no development of land shall be carried out

or continued by any person or body unless permission for such development has been obtained in writing

from the Vice-Chairman in accordance with the provisions of the Act. Development has been defined in

Section 2 (e) and it means the carrying out of building, engineering, mining or other operations in, on, over or

under land, or the making of any material change in any building or land, and includes re-development.

Sub-section (1) of Section 15 provides that every person or body desiring to obtain the permission referred to

in Section 14 shall make an application in writing to the Vice-Chairman in such form and containing such

particulars in respect of development to which the application relates as may be prescribed by bye-laws.




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Subsection (2) of this section provides that every application for permission shall be accompanied by such fee

as may be prescribed by rules. Subsection (3) provides that the Vice-Chairman, after making such inquiry as it

considers necessary in relation to any matter specified in clause (d) of sub-section (2) of Section 9 or in

relation to any other matter, shall, by order in writing either grant the permission, subject to such conditions, if

any, as may be specified in the order or refuse to grant such permission. The proviso to this section lays down

that before making an order refusing such permission, the applicant shall be given a reasonable opportunity to

show cause why the permission should not be refused. Sub-section (4) mandates that the grounds of such

refusal shall be recorded in writing and communicated to the applicant. The word "case" has not been definedin the Act. It would not be appropriate to give it the same meaning as it is understood in a Court of law as the

proceedings under the Act are of a different nature. The Dictionary meaning of the word "case" is as follows :

Chamber's Dictionary--subject of question or inquiry, legal statement of facts, a law suit, something to be said

for a position or action.

The New Lexicon Webstor Dictionary--a matter for trial.

Webster's third New International Dictionary--a set of circumstances to constitute a problem, a matter for

consideration or decision, a suit or action in law or equity :

Block's Law Dictionary--a general term for an action, cause, suit or controversy, at law or in equity ; a

question contested before a Court of Justice, any proceeding judicial in its nature.

Law Lexicon by P. Ratnanatha Aiyer--the definition of a "case" is wider than that of a "suit" or "criminal

prosecution" or a "proceeding in rem", although in law it usually applies to one of them. It may embrace,

however, any state of facts involving matters for decision.

In common parlance it has more extended meaning than the word "suit" or "action", and may include

application for divorce, applications for the establishment of high ways, application for orders of support of

relatives and other special proceedings unknown to the common law.

9. Section 115, C.P.C. confers power of revision upon the High Court against a case, which has been decided

by any Court sub-ordinate to it. In S. S. Khanna v. F. .J. DiJon, AIR 1964 SC 497, the Supreme Court, while

examining the expression "any case which has been decided" used in the aforesaid provision observed as

follows :

"It is undoubtedly not restricted to a litigation in the nature of a suit in a civil court. It includes a proceeding in

a civil court in which the jurisdiction of the Court is invoked for the determination of some claim or right

legally enforceable

.....the expression "case" is a word of comprehensive import..... It includes civil proceeding other than suit,

and is not restricted by anything contained in section to the entirety of the proceeding in a civil court....."

10. When a person gives a plan for construc tion of a building or for carrying out development, the

Vice-Chairman is required to make inquiry in relation to maters specified in clause (d) of Section 9 which

relates to Zonal Development Plans. Clause (d) of sub-section (2) of Section 9 provides for various matters

which have to be taken into consideration. It is only after the Vice-chairman is satisfied that the map or

building plan conforms to the matters enumerated in this provision that he grants permission to carry out

development work. He has also power to impose conditions while granting such permission. The manner and

mode of exercise of power while granting permission under subsection (3) of Section 15 clearly shows that an

order granting permission to carry out development or making construction would amount to a 'case disposed

of within the meaning of sub-section (3) of Section 41 of the Act and consequently, a revision would be

maintainable against such an order.




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11. It may be noticed that construction or development work as defined in Section 2 (e) of the Act made

contrary fo the bye-laws of the Authority or the provision of the Act may sometimes cause serious injury to

others. Construction of basement in certain situations may damage the foundation of an adjoining building. If

a building is made without leaving the set-back area, i t may obstruct light and air to adjoining buildings.

Similarly, construction beyond the height permissible under the bye-laws may again affect the availability of

sun-shine or light to the buildings in the neighbourhood. Construction of commercial building contrary to

bye-laws in a residential area may cause injury to the inhabitants of the area. The Development Authorities

have framed bye-laws providing for green belts and parks, etc. in order to maintain ecological balance and aconstruction made contrary to such bye-laws may affect the entire residents of that area. It is, therefore,

obvious that a third party may suffer injury on account of a wrong permission being granted under subsection

(3) of Section 15 of the Act. The possibility of a wrong permission being granted either on account of a

mistake or on extraneous considerations cannot be ruled out.

12. It may now be examined whether U. P. Urban Planning and Development Act. 1973, which is a

self-contained Code, provides any remedy to a third party who is aggrieved by a wrong permission granted to

another person under Section 15 (3) of the Act. Before refusing permission opportunity of hearing is to be

afforded to the applicant under Proviso to subsection (3) of Section 15. If permission is refused, the person

applying for permission has been given a right of appeal to the Chairman under sub-section (5) of the same

section. Sub-section (1) of Section 27 provides that where any development has been carried on or completedin contravention of the master plan or Zonal Development Plan or without permission or approval or sanction

referred to in Section 14 or in contravention of any conditions subject to which such permission was granted,

the Vice-chairman or any officer of the Authority empowered by him in that behalf may make an order

directing that such development shall be removed by demolition. Proviso to this sub-section lays down that no

such order shall be made unless the owner or the person concerned has been given a reasonable opportunity to

show cause why the order should not be made. Sub-section (2) of Section 27 of the Act gives a right of appeal

to the Chairman against the order passed under sub-section (1). Sub-section (1) of Section 36 gives power to

the Vice-Chairman to levy betterment charges and this can be done after giving an opportunity of hearing to

the person concerned as provided in sub-section (2). A remedy against such an order is provided under

sub-section (4) which empowers the Chairman to determine the amount of betterment charges. These

provisions show that the scheme of the Act is that no adverse order should be passed without giving anopportunity of hearing to the person affected by the order and a right of appeal against such an order has also

been provided. Section 37 of the Act lays down that except as provided In Section 41, every decision of the

Chairman on appeal, and subject only to any decision on appeal, (if it lies and is preferred), the order of the

Vice-Chairman or other officer under Section 15, or Section 27 shall be final and shall not be questioned in

any Court. The Act does not make any provision for appeal against an order passed by the Vice-Chairman

granting permission under sub-section (3) of Section 15 and the order is final except as provided in Section

41. If it is held that no revision lies against an order of Vice-Chairman granting permission under Section 15

(3) then a person who is suffering injury on account of grant of such permission will be remediless. The

intention of the Legislature is. therefore, clear that though there is no right of appeal against the order of

granting permission but an aggrieved person can approach the State Government for exercise of its revisional

power.

13. As shown earlier, there can be a person who is aggrieved by an order sanctioning map or granting

permission to carry on development under sub-section (3) of Section 15 of the Act. In normal course of

events, such a person will not be a party before the Vice-Chairman at the stage when an application has been

given to him under sub-section (1) of Section 15 by a person desirous of making construction or carrying on

development work. The general law is that if an order is subject to appeal and it causes injury to a person who

was not party to the proceedings, he may prefer an appeal with the leave of the Appellate Authority. In Smt.

Jatan Kanwar v. Golcha Properties, AIR 1971 SC 374, it was held as follows :

".....It is well-settled that a person who is not party to the suit may prefer an appeal with the leave of the

Appellate Court and .such leave should be granted if he would be prejudicially affected by the judgment."




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14. There being no provision of appeal against an order granting permission, there is no reason why a person

aggrieved by such an order should be deprived of his right to invoke the revisional Jurisdiction of the State

Government, which has been conferred upon it by Section 41 of the Act.

15. We would like to clarify here that the right of revision against an order granting permission under

subsection (3) of Section 15 of the Act would not be available to all and sundry. The revision would be

maintained only at the instance of a "person aggrieved". The expression "person aggrieved" is a well-known

concept in legal Jurisprudence and it is not possible to lay down exhaustibly who will be a person aggrieved.He must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced

which has wrongly deprived him of something or wrongly refused him something or wrongfully affected his

title to something. It would also mean a person who has been prejudicially affected by any act or omission of

an authority although he may have no proprietary or even fiduciary interest in the subject-matter thereof. A

person who feels disappointed with the result of a case Is not a person aggrieved. The order must cause him a

legal grievance by wrongfully depriving him of something. (See Adi Pheroz Shah Gandhi v. H. M. Seervai,

AIR 1971 SC 385).

16. In the end, we would also like to point out that if the State Government entertains a revision against an

order granting permission under sub-section (3) of Section 15 of the Act at the instance of a third party who is

a person aggrieved, it will also have power to pass interim order like stay of the operation of the " order of theVice-Chalrman or slaying further construction or development. In Income-tax Officer v. Mah Knnhi, AIR

1969 SC 430, the Supreme Court while considering the powers conferred on Income-tax Appellate Tribunal

by Sections 254 and 255 of Income-tax Act observed as under :

"It is a firmly established rule that an express grant of statutory power carries with it by necessary implication

the authority to use all reasonable means to make such grant effective.....

When Section 254 confers appellate jurisdiction, it impliedly grants the power of doing all such acts, or

employing such means, as are essentially necessary to its execution and that the statutory power carries with it

the duty in proper cases to make such orders for staying proceedings as will prevent the appeal, if successful,

from being rendering nugatory."

17. The law is well-settled that every Tribunal has ancillary power to grant interim orders in order to carry out

effectively the statutory duty cast upon it. If a proper case is made out, it will be open to the State Government

to stay the order granting permission or to stop construction or development work otherwise it may lead to

complication in the event the order granting permission is set aside or revoked.

18. The land over which respondent No. 4 wants to make construction is adjoining to the property of the

petitioner and according to the case set-up by him. he is aggrieved by the order dated 5.6.1999 by which the

building plan submitted by respondent No. 4 was sanctioned. Therefore, he was a person aggrieved and the

revision of his instance before the State Government was maintainable. The impugned order of the State

Government dated 22.9.1999 holding that the revision is not maintainable against the order of the

Vice-Chairman is clearly erroneous in law and cannot be sustained.

19. In the result, the petition succeeds and is hereby allowed. The impugned order dated 22.9.1999 passed by

the State Government (Annexure-7 to the writ petition) is quashed. The State Government is directed to hear

and decide the revision preferred by the petitioner on merits. The respondent No. 4 shall not make any further

construction and shall maintain status quo on the spot for a period of one month. During this period, it will be

open to the petitioner to move an application for grant of interim relief. The State Government shall make all

endeavours to decide the revision expeditiously.

20. It is made clear that this Court is expressing no opinion on the merits of the claim of the parties and the

State Government shall examine all aspects of the matter and pass orders in accordance with law.



revision by 3rd party vinod kumar bhalotia vs state of u. p. and others on 15 december, 1999

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