Judgment:
N.C. Kochar, J.
1. This special appeal under Section 18 of the Rajasthan High Court Ordinance, 1949 is directed against the order dated 13.7.1992 passed in S.B. Civil Writ Petition No. 3026/91 by a learned Single Judge of this Court dismissing the above said writ petition filed by the appellant. The brief facts are as under:
2. The appellant is a member of Shri Moji Hosing Co- operative Society Ltd., Jaipur (the Society) and the society allotted to him a plot bearing No. 15 measuring 400 Sq. yards in the Society's Housing Scheme situated at Jawahar Lal Nehru Highway, Jaipur on 1.11.1979. The writ petition was filed by the appellant-petitioner alleging that since he wanted to construct a house on the abovesaid plot he applied for permission for doing so vide application dated 18.1.1990 (Annex. 16.) but no action was taken by the respondent-Jaipur Development Authority and as such, he sent notice dated 15.2.1991 (Annex. 9) under Sub-section (3) of Section 17 of the Jaipur Development Act, 1982 (the Act) to. the Secretary of the respondent-Authority which notice was personally delivered by him in the office of the Secretary on 15.2.1991 itself against the receipt obtained by him. The appellant-petitioner further pleaded that in spite of the notice (Annex. 16) and, as such, in view of Sub-section (3) of Section 17 of the Act, the respondent-Authority should be deemed to have granted the permission to him to construct the house on the abovesaid plot. The appellant-petitioner thus prayed that the respondent-Authority be restrained from interfering in the construction of his house to be made by the appellant on the plot above said, by holding that he was making the construction under the above said deemed permission. Notice of the writ petition was issued to the respondent-Authority, who contested it on the ground that no permission could be granted to the appellant- petitioner as a decision had been taken by the State Government that 200 feet land toward both sides of Jawahalal Nehru Marg would be left open and ho residential house or scheme would be approved as the land was required for planned development of the city as well as educational and Government Institutes. The specific allegations made by the appellant in the writ petition that he had submitted his application dated 18.1.1990 (Annex. 16) and had handed over notice dated 15.2.1991 (Annex. 9) in the office of the Secretary of the respondent-Authority had not been controverted in the reply by specifically denying those allegations. The learned Single Judge, after hearing the learned Counsel for the parties, has dismissed the writ petition. Feeling aggrieved, the appellant-petitioner has approached this Court by filing this special appeal.
3. When the appeal came up before us on 11.8.1992 we directed that notice be issued to the respondent for 26.8.1992 to show cause why this special appeal should not be admitted and disposed of. The matter came-up before us on 26.8.1992 when the learned Counsel for the appellant appeared, but no appearance was made on behalf of the respondent and it was pointed out to us by the learned Counsel for the appellant that the notice had been served on the respondent-Authority on 20.8.1992 and, thereafter, we obtained the report of the Registry in this respect for today and the Registry has confirmed that the notice was served on the respondent on 20.8.1992 for the date concerned i.e. 26.8.1992. Since none was present on behalf of the respondent, we thought it proper to send for Shri R.S. Mehta, Advocate who had appeared for the respondent before the learned Single Judge and who generally appears for the respondent-Authority but Shri Babu Lal Sharma, Advocate, who had gone to call to Shri Mehta came back and told us that Shri Mehta was not willing to appear in this case.
4. We have heard Shri G.L. Pareek, Advocate for the appellant and have also perused the record of the writ petition. Since none has cared to appear on behalf of the respondent- Authority despite service we did not have the advantage of hearing any one on its behalf.
5. The learned Counsel for the appellant has contended that the learned Single Judge has erred in coming to the conclusion that the appellant-petitioner has failed to prove that notice (Annex. 9) had been served on the Secretary of the respondent-Authority and that the person who received has not been shown to be authorised to receive the same on behalf of the Secretary of the respondent-Authority.
6. As noted above, the specific allegation made in the writ petition that the notice dated 15.2.1991 (Annex. 9) had been served on the respondent by delivering the same in the office of the Secretary of the respondent-Authority on 15.2.1991 itself had not been denied in the reply and the only ground taken was that the permission for construction of the house could not be granted to the appellant-petitioner. In fact no plea of want of notice was taken in the reply to the writ petition. It is the basic law of pleadings that if an allegation is specifically made and is not specifically denied in the reply the allegation has to be deemed to be admitted. We are, therefore, of the view that the learned Single Judge has erred in coming to the conclusion that the appellant-petitioner had failed to prove that the notice dated 15.2.1991 (Annex. 9) had been delivered in the office of the Secretary of the respondent-Authority. The appellant- petitioner thus cannot be nonsuited on that ground.
7. Section 17 of the Act, which is material for the purpose of deciding this special appeal, reads as under:
17. No other authority or person to undertake certain development without permission of the Authority:
(1) Notwithstanding anything contained in any law for the time being in force except with the previous permission of the Authority, no authority or person shall undertake any development within the Jaipur Region of the type as the Authority may from time to time specify, by notification published in the Official Gazette and which is likely to adversely affect the overall development of the Jaipur Region.
(2) Any authority or person desiring to undertake development referred to in Sub-section 91)shall apply in writing to the Authority for permission to undertake sub development;
Provided that such person may apply for such permission through the concerned local authority had such local authority shall forward his application to the Authority with its recommendations, if any
(3) The Authority shall, after making such enquiry as it deems necessary and within sixty days from the receipt of an application under Sub-section (2), grant such permission without any conditions or with such conditions as it may deem fit to impose or refuse to grant such permission. If such permission is not granted or refused within sixty days as aforesaid, applicant may, by a written communication presented in person or through his authorised representative to the Secretary of the Authority or any other officer nominated by him in his behalf, call the attention of the Authority to the omission or neglect in granting or refusing permission, and if such omission or neglect continues for a further period of thirty days from the receipt of such communication, the Authority shall be deemed to have permitted the proposed development and such development may be proceded within the manner specified in the application.
(4) Any authority or person aggrieved by the decision of the Authority under Sub-section (3) may, within thirty days, appeal against such decision to the State Govt. whose decision shall be final:
Provided that nothing herein contained shall be construed to authorise any person to act in contravention of any provision of this Act or the rules, regulations or order made thereunder, relating to any matters other than the requirement of obtaining permission of the Authority before undertaking or carrying out any improvement under this Act:
Provided that, where the aggrieved authority submitting such appeal is under the administrative control of the Central Government, the appeal shall be decided by the State Govt. after consultation with the Central Govt.
(5) In case any person or authority does any thing contrary to the decision given under this section, the Authority does any thing contrary to the decision given under this section, the Authority shall have power to pull down, demolish or remove any development undertaken contrary to such decision and recover the cost of such pulling down, demolition or removal from the person or authority concerned.
8. Bare reading of this above said provision shows that when on application is made for permission to undertake the development (including construction of the house) the Authority has to consider the application and to grant the permission with or without any condition or refuse it within sixty days from the date of receipt of the said application and if letter refusing the permission is not received by such an applicant he has to bring this fact to the notice of the Secretary of the Authority, who, within thirty days thereof, has to take action thereon, but if no refusal is communicated to such an applicant even within the above said period it would be deemed as if the permission for construction of the house has been granted by the Authority and such an applicant can go on with the construction, which, of course, has to be in accordance with the bye-laws. As noted above, even after the receipt of notice (Annex. 9) no order refusing the permission was sent to the appellant either within the specified time or at any time thereafter and, as such, m it has to be held that the appellant has the deemed permission to construct his house, which, of course, has to be constructed in accordance with the bye-laws and if he does so the respondent- Authority cannot demolish the same or interfere in the construction thereof.
9. Consequently, we accept this special appeal, set-aside the impugned order dated 13.7.1992 passed by the learned Single Judge and hold that the appellant has the deemed permission to construct his house on the plot in question in response to his application dated 18.1.1990 (Annex. 16) and direct the respondent-Authority not to demolish the construction already made or to interfere in the construction to be made on the plot in dispute on the ground that the appellant was making such construction without the permission of the respondent-Authority.
10. Since none has appeared on behalf of the respondent-Authority to oppose this appeal, there will be no orders as to costs.