Rajasthan High Court - Jodhpur
Ravindra Sharma vs State Of Rajasthan on 2 September, 2019
Equivalent citations: AIR 2020 (NOC) 10 (RAJ), AIRONLINE 2019 RAJ 800 AIRONLINE 2019 RAJ 800, AIRONLINE 2019 RAJ 800
Author: Sangeet Lodha
Bench: Sangeet Lodha, P.K. Lohra
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No. 19102/2018
1. Ravindra Sharma S/o Shri Daya Ram Ji, Aged About 32
Years, By Caste Suthar, Resident Of Gulab Sagar, Baccho
Ka Chowk, Jodhpur (Raj.).
2. Sajid Khan S/o Shri Taj Mohamad,, Aged About 36 Years,
By Caste Muslim, Resident of Basni, Opp. 4 Dukan, Baba
Ramdev Mandir, Jodhpur (Raj.).
----Petitioners
Versus
1. State Of Rajasthan, Through Its Secretary, Urban
Development Housing Department, Secretariat, Jaipur
(Raj.)
2. The Rajasthan State Industrial Development and
Investment Corporation, Through Regional Manager, Minni
Udyog Bhawan, Industrial Estate, New Power House,
Jodhpur (Raj.)
3. The Rajasthan State Industrial Development and
Investment Corporation, Through Chairman, Udyog
Bhawan, Tilak Marg, Jaipur (Raj.).
4. Vinay Fabrics Pvt. Ltd, Through Director, 7 and 7-A, Light
Industrial Area, Jodhpur (Raj.).
----Respondents
For Petitioner(s) : Mr. Arpit Bhoot with Mr. Prateek
Charan
For Respondent(s) : Mr. Kuldeep Mathur with Mr.Ramit
Mehta, Mr.Tarun Dudia,
Mr. Harsh Chittora for Mr.Sanjeet
Purohit
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HON'BLE MR. JUSTICE SANGEET LODHA
HON'BLE MR. JUSTICE P.K. LOHRA Order Per Hon'ble Mr.Sangeet Lodha,J.
2nd September, 2019
1. The petitioners have preferred two applications; one seeking leave to amend the petition and another for impleading Municipal Corporation, Jodhpur, Department of Town Planning, Government of Rajasthan and Jodhpur Development Authority, Jodhpur as party respondents in the matter.
2. The instant writ petition (PIL) is filed by the petitioners seeking directions to the respondents to remove the illegal construction raised by the fourth respondent against the sanctioned plan.
3. On 7.1.19, a coordinate Bench of this court while issuing notices to the respondents passed an interim order in favour of the petitioners in the following terms:
"Till the present order is vacated or modified respondent No.4 shall not create any third party interest in any portion of the subject property."
4. After service of the notice, on 2.2.19, the fourth respondent preferred an application (No.1/19) under Article 226(3) of the Constitution of India for vacating the ad interim order dated 7.1.19 passed by this court as aforesaid.
5. On 6.2.19, a coordinate Bench, on the application filed by the fourth respondent, after due consideration, passed the order in the following terms:
"1. In view of averments made in the Application No.1/2019 we direct RIICO to take necessary decision keeping in view (Downloaded on 02/09/2019 at 08:57:20 PM) (3 of 17) [19102CW2018] the fact that on 29.8.2017 State Government has increased the F.A.R.
2. RIICO would pass necessary orders on the application filed by the applicant prior to the State Government increasing F.A.R. The decision would also be taken on applicant's application submitted on 27.11.2017 (Annex. 22 to the writ petition).
3. List after two weeks. Interim orders to continue."
6. Pursuant to the order dated 6.2.19 passed by this court as aforesaid, Senior Regional Manager, RIICO, vide order dated 21.2.19, while allowing the application preferred by the fourth respondent, approved the revised Building height upto 39.72 meter with F.A.R.-3.242, on payment of betterment levy, penalty for construction raised without approval of building plan and payment of other applicable charges quantified, subject to removal of construction made beyond 39.72 meter by the fourth respondent at his own and cost within 30 days of passing of the said order.
7. After passing of the order regularising the construction raised without approval of the building plan, the respondent RIICO filed a reply to the writ petition on 2.3.19 and placed the order dated 21.2.19 (Annexure R/10) on record. The fourth respondent filed objections to the order dated 21.2.19 passed by the RIICO on 2.3.19. The petitioners also filed their objections to the order dated 21.2.19, on 2.4.19 and the RIICO submitted a reply thereto. Thereafter, the petitioners preferred an application (No.4/19) for impleading Shri Vinit Gupta, Senior Manager, RIICO as party respondent, which was dismissed by this Court vide order dated 24.4.19
8. The petitioners also filed an application (No.5/19) seeking leave to amend the petition and yet another application (No.7/19) (Downloaded on 02/09/2019 at 08:57:20 PM) (4 of 17) [19102CW2018] for impleading Municipal Corporation, Jodhpur, the Department of Town Planning, Government of Rajasthan and Jodhpur Development Authority, Jodhpur as party respondents.
9. By way of application seeking leave to amend the writ petition, the petitioners have prayed for incorporation of additional reliefs as under:-
"iv. that the entire action in the present lis from granting permission to raising construction and regularizing illegal construction is perse illegal and as such the order of conversion (Annex.6) or to even grant permission (Annex.15) and order dated 21.02.2019 deserves to be declared illegal and as such be quashed.
v. That of the illegality pointed out by the humble petitioner a writ of quo-warranto be issued against the respondent no.5 for misusing his power and as such being incompetent to act on behalf or for a government company as the act being against the public interest.
vi. That the entire construction of building so raised by the respondent no.4 be ordered to be demolished and the respondent no.6 to 8 be directed to ensure the same.
vii. That by order or writ the Respondent No.2 be directed to act as per the Memorandum of Association and not to act as a statutory authority and take law in there own hand and a further direction be given to not to convert any land, provide construction permission or any such activities which they are not entitle to as per law.
vii. That by order or writ the Respondent No.1, 6 to 8 be directed to ensure that no illegal act is done by the Respondent No.2 with respect to user of land and any such allied activities done by them."
10. Indisputably, in the first instance, the petitioners had only prayed for directions to the respondent to remove the illegal construction raised beyond the sanctioned plan whereas, by way of amendment, the petitioners seek to challenge the authority of the RIICO in permitting change of the land use, granting permission to raise construction and regularizing the construction raised beyond sanctioned plan. The petitioners also seek to (Downloaded on 02/09/2019 at 08:57:20 PM) (5 of 17) [19102CW2018] challenge the order dated 21.2.19 passed by the RIICO regularizing the construction raised, pursuant to interim order dated 6.2.19 passed by this court.
11. It is noticed that while challenging the legality of the order dated 21.2.19 passed by the Senior Manager, RIICO, regularizing the construction raised by the fourth respondent beyond the sanctioned plan on various grounds, the petitioners have questioned the very authority of RIICO in permitting the change of land use, grant of permission for construction and regularization of illegal construction inter alia on the ground that the RIICO, a company registered under the Companies Act, 1956, a State undertaking, which is incorporated to act as catalyst between the industrialist and the Government, has no authority to convert the land contrary to the land use specified in the Master Plan. According to the petitioners, the matter with regard to the construction of the building within the Jodhpur metropolitan area is required to be dealt with exclusively by the local authorities i.e. the Municipal Corporation, Jodhpur and the Jodhpur Development Authority, Jodhpur, as the case may be, and thus, the action of the RIICO in sanctioning the building plans and regularizing illegal construction, is without jurisdiction.
12. The application seeking leave to amend the petition, is contested by the RIICO as also by the fourth respondent by filing a reply thereto.
13. The RIICO has taken the stand that the order dated 21.2.19 has been passed pursuant to order dated 6.2.19 passed by this court, adhering to the Rules and Regulations and the norms laid down under the Unified Building Regulations, 2017, which are (Downloaded on 02/09/2019 at 08:57:20 PM) (6 of 17) [19102CW2018] adopted by RIICO and are made applicable to the buildings situated within RIICO Industrial Area. It is submitted that no deviation from the applicable Rules and Regulations has been permitted in the instant case by the respondents. It is contended that while filing the writ petition, which is declared to be filed after having thorough research, neither the authority of the RIICO to permit the land use conversion nor the order of conversion issued by the RIICO is questioned and thus, the petitioners cannot be permitted to amend the writ petition so as to change the nature of the present PIL and expand the scope thereof beyond the prayer made in the original petition.
14. In the reply to the application, the fourth respondent has taken the stand that power of change in land use within the RIICO Industrial Area is being exercised by the RIICO since its inception under the permission granted by the State Government. It is submitted that at the time of filing of the writ petition, the petitioners were having a view that the RIICO has power to convert the land use from industrial to commercial in the RIICO industrial area and now by way of present application, they are alleging that RIICO has no power to permit the change of land use and thus, the action of the petitioners in approbating and reprobating is not permissible in the eyes of law. The petitioners cannot be permitted to enlarge the scope of the petition originally filed. It is submitted that order dated 21.2.19 is passed by the RIICO in compliance of the directions issued by this court vide order dated 6.2.19, which is not prejudicial to the public at large. It is submitted that the order regularizing the construction is in conformity with the Building Bylaws of JDA, Jodhpur. (Downloaded on 02/09/2019 at 08:57:20 PM)
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15. Mr. Arpit Bhoot, learned counsel appearing for the petitioners contended that in the petition initially filed, the petitioners had challenged the construction raised by the fourth respondent beyond the plan sanctioned by the RIICO but since, pursuant to the order passed by this court directing the RIICO to dispose of the application preferred by the fourth respondent, the construction beyond the sanctioned plan has been regularized by RIICO illegally against the public interest, the petitioners have every right to question the legality thereof by way of amendment of the writ petition. Learned counsel submitted that the amendment sought for being based on subsequent event deserves to be allowed. Learned counsel submitted that of course, the petitioners have not challenged the authority of RIICO in permitting the change of the land use and granting permission to raise construction of the building within the industrial area of RIICO in the petition originally filed, but then, the fact remains that under the law, the RIICO has no authority whatsoever to deal with conversion of the land use contrary to the Master Plan and thus, the question sought to be raised by the petitioners by way of amendment is essentially a question of law, which goes to the root of the matter. Relying upon the decision of this court dated 12.1.17 in the matter of "Gulab Kothari vs. State of Rajasthan & Ors." (D.B.C.Writ Petition No.1554/04), learned counsel submitted that no change of land use contrary to the Master Plan is permissible under the law and that apart, the change of the land use and construction of the building within the metropolitan area of Jodhpur City is exclusively dealt with by the local authorities i.e. JDA, Jodhpur and Municipal Corporation, Jodhpur, under the (Downloaded on 02/09/2019 at 08:57:20 PM) (8 of 17) [19102CW2018] provisions of Jodhpur Development Authority Act, 2009 (JDA Act) and Rajasthan Municipalities Act, 2009 (for short "the Act of 2009") respectively and thus, the action of the respondent RIICO in permitting the change of land use, granting permission to raise construction of building and regularizing the construction raised beyond the sanctioned plan, is ex facie without authority of law. Learned counsel submitted that the RIICO is permitting the change of land use contrary to the Master Plan acting without jurisdiction, which cannot even be permitted by the local authority vested with the power to prepare and enforce the Master Plan of the city. Learned counsel submitted that as a matter of fact, the issue sought to be raised by the petitioners needs to be examined by this court suo moto in the larger public interest. In support of the contention, learned counsel has relied upon a decision of the Supreme Court in Ram Tawakya Singh Vs. State of Bihar and Others : (2013) 16 SCC 206. Learned counsel submitted that the land is allotted to the RIICO for setting up and developing industrial area on lease hold basis, which can be sub-lease by the RIICO, but it cannot be put to any other use. Learned counsel submitted that the permission granted to change the land use of the land allotted for industrial purpose is ex facie contrary to the provisions of Rule 8 and Rule 11A of Rajasthan Land Revenue (Industrial Areas Allotment) Rules, 1959 ('the Rules of 1959'). Learned counsel while relying upon a decision of the Supreme Court in Revajeetu Builders and Developers Vs. Narayanaswamy and Sons and Others : (2009) 10 SCC 84, submitted that all amendments which are necessary for determination of real (Downloaded on 02/09/2019 at 08:57:20 PM) (9 of 17) [19102CW2018] question in controversy or for proper and effective adjudication of the case must be allowed.
16. Mr. Sanjeet Purohit, learned counsel appearing for the RIICO submitted that order dated 21.2.19 has been passed by the RIICO pursuant to the order passed by this Court. It is submitted that by the said order only the violation in regard to the height of the building has been compounded in accordance with Unified Building Regulations, 2017. RIICO is vested with the power to permit the change of the land use within the RIICO Industrial Area and accordingly, on the application preferred by the fourth respondent, the change of the land use from industrial to commercial was permitted vide order dated 20.2.14. On an application being preferred by the fourth respondent for permitting additional height and F.A.R. vide communication dated 3.5.16, it was made plain that for additional height, the permission of State Government is required and therefore, the request made cannot be considered by RIICO. However, the State Government vide communication dated 1.7.16, clarified that since the land is situated in RIICO Industrial Area, the decision regarding additional F.A.R. and height is required to be taken by the RIICO at its own level. It was further clarified by the State Government vide communication dated 29.8.17 that height upto 39.72 mtr. and F.A.R. 3.242 can be permitted after charging betterment levy and thus, the RIICO has taken the decision in conformity with the Unified Building Regulations, 2017, and clarification issued by the State Government in this regard. The order passed regularizing the construction on payment of betterment levy, penalty etc. quantified at Rs.8,17,14,776.43, is subject to further condition (Downloaded on 02/09/2019 at 08:57:20 PM) (10 of 17) [19102CW2018] that unauthorized construction beyond the height 39.72 mtr. shall be removed by the fourth respondent within 30 days at his own and cost.
17. Learned counsel submitted that the present writ petition has been filed in the public interest, however, in the petition, it is not explained as to how the construction of the building in question is affecting the interest of the public at large. Learned counsel submitted that the building in question is not the only building constructed within the RIICO Industrial Area after permitting the change of land use, however, the petitioners while filing the writ petition have not questioned the legality of other buildings constructed within the RIICO Industrial Area and thus, the petition filed does not appear to be bonafide. Learned counsel appearing for the petitioners has raised the contention beyond the pleadings inasmuch as alleged violation of the Rules of 1959, is not even alleged in the application seeking amendment of the writ petition. Learned counsel submitted that the construction raised is not inconsistent with the rules, building bylaws and public convenience and thus, without there being any public interest involved, the petition filed cannot be entertained by this Court. If the amendment sought for, is permitted, it will change the nature of the petition altogether, which is not permissible under the law and thus, the application deserves to be dismissed.
18. Mr. Kuldeep Mathur, learned counsel appearing for the fourth respondent reiterating the stand taken in reply to the writ petition submitted that the power to change in the land use within the RIICO Industrial Area is being exercised by the RIICO from its very inception under the permission granted by the State (Downloaded on 02/09/2019 at 08:57:20 PM) (11 of 17) [19102CW2018] Government. It is not even the case of the petitioners that the fourth respondent alone has been permitted the change of the land use. Number of the conversion of the land use are permitted by RIICO in different industrial area but the petitioners have challenged only the construction raised by the fourth respondent alone, which apparently indicate that the petition filed is not bonafide. Learned counsel submitted that the petitioners have alleged violation of the Rules of 1959, in respect whereof there is no foundation even in the application seeking amendment. While alleging the violations of the Rules of 1959, the petitioners have not even cared to refer to Rule 12 of the Rules of 1959, which deals allotment of land by RIICO to the entrepreneurs in the industrial area notified by the State Government and transferred to RIICO. The petitioners cannot be permitted to enlarge the scope of the petition originally filed in this manner. From bare perusal of the petition filed, it is manifestly clear that it proceeds on the premise that the RIICO has power to permit the change of the land use from industrial to commercial in RIICO Industrial Area and only for this reason, the petitioners have only prayed for the removal of the construction raised beyond the sanctioned plan.
19. Learned counsel submitted that the petitioners cannot be permitted to take stand, which is apparently contrary to the stand taken in the petition originally filed. Learned counsel would contend that the amendment sought for, is absolutely against the basic principles governing the amendment of the pleadings and therefore, cannot be permitted by this Court. Learned counsel submitted that order dated 21.2.19 passed by the RIICO approving the revised plan and regularising the construction (Downloaded on 02/09/2019 at 08:57:20 PM) (12 of 17) [19102CW2018] already raised, pursuant to the order dated 6.2.19 passed by this Court in conformity with the Unified Building Bylaws and thus, the challenge sought to be made by the petitioners to the said order on the fresh grounds, which are apparently contrary to the grounds set out in the original petition, cannot be permitted. PIL can be entertained only where larger public interest is involved and the matter is so grave and urgent and the motivated litigation has to be discouraged. The petition filed by the petitioners in casual manner without verifying the relevant facts and position of law is ex facie frivolous and thus, on the facts and in the circumstances of the case, the amendment sought for, which will change the nature of the petition and enlarge the scope thereof, should not be permitted by this Court. In support of the contention, learned counsel relied upon a decision of the Supreme Court in State of Uttaranchal Vs. Balwant Singh Chaufal and Others : (2010) 3 SCC 402.
20. We have considered the rival submissions and perused the material on record.
21. Indisputably, the power of the court to allow amendment of pleadings which are necessary for just and proper adjudication of real controversies involved in the matter is wide enough and such amendments can be permitted at any stage of the proceedings and on such terms as deemed fit. The amendment sought on the basis of the subsequent event deserves to be allowed liberally in order to avoid multiplicity of the proceedings moreso when based on subsequent event occurred, independent proceeding is permissible under the law. The rule that no amendment altering the character of the suit can be allowed is also not inflexible and in (Downloaded on 02/09/2019 at 08:57:20 PM) (13 of 17) [19102CW2018] exceptional cases, the amendment of such character may also be allowed to avoid multiplicity of the proceedings and for the purpose of determining the real question involved in the lis.
22. In Revajeetu Builders and Developer's case (supra) relied upon by the counsel for the petitioners, the Supreme court while considering the issue regarding exercise of the discretionary power of the court in allowing the amendment of the pleadings, summarised the basic principles as under:
"63. On critically analysing both the English and Indian cases, some basic principles emerge which ought to be taken into consideration while allowing or rejecting the application for amendment:
(1) whether the amendment sought is imperative for proper and effective adjudication of the case; (2) whether the application for amendment is bona fide or mala fide;
(3) the amendment should not cause such prejudice to the other side which cannot be compensated adequately in terms of money;
(4) refusing amendment would in fact lead to injustice or lead to multiple litigation;
(5) whether the proposed amendment constitutionally or fundamentally changes the nature and character of the case; and (6) as a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application.
These are some of the important factors which may be kept in mind while dealing with application filed under Order 6 Rule 17. These are only illustrative and not exhaustive."
23. Moreover, the principles governing amendment of pleadings in a suit or civil proceedings do not apply to the pleadings in writ petition and thus, the discretion of the court in allowing the amendment in the writ proceedings being still wider, the amendment sought for which is necessary for just and proper adjudication of the lis, would not be generally rejected by the court on the ground of some mistakes or inadvertence inasmuch as, technicalities of the law cannot be permitted to hamper (Downloaded on 02/09/2019 at 08:57:20 PM) (14 of 17) [19102CW2018] administration of justice. Of course, the discretion vested has to be exercised judicially, taking into consideration the facts and circumstances of each case.
24. In the backdrop of the aforesaid principles governing the amendment of pleadings, adverting to the facts of the present case, necessitating the amendment of the petition as sought for, it is noticed that initially, in the instant PIL, the petitioners had only challenged the construction of the building raised by the fourth respondent beyond the sanctioned plan. But the fact remains that it is only pursuant to the directions issued by this court, the respondent RIICO proceeded to consider the application preferred by the fourth respondent for sanctioning the revised height and F.A.R. of the building so as to regularise the construction raised illegally, the removal whereof is sought by the petitioners in the writ petition filed. Obviously, the interim order passed by this court directing the RIICO to decide the application preferred by the fourth respondent, is subject to final outcome of the writ petition. In any case, the action of the RIICO in passing order dated 21.2.19, regularising the construction which is subject matter of the present writ petition, is certainly a subsequent event occurred as a result of interim order passed by this court and therefore, for complete, just and proper adjudication of the controversy involved in the present petition, the amendment sought for by the petitioners to challenge the legality of the said order dated 21.2.19 deserves to be allowed. Needless to say that the petitioners are not precluded from questioning the legality of the said order by way of independent proceedings and thus, on the facts and in the circumstances of the case, to avoid the (Downloaded on 02/09/2019 at 08:57:20 PM) (15 of 17) [19102CW2018] multiplicity of the proceedings, it would be just and proper to allow the amendment as prayed for.
25. Coming to the issue raised by the respondents regarding the scope of the petition sought to be enlarged by way of amendment, it is true that in the writ petition originally filed, the petitioners have not questioned the authority of RIICO in permitting the change of the land use, sanctioning of the building plan and regularising the illegal construction raised. But it is not disputed that the RIICO is a Government company registered under the Act of 1956, which is constituted with an object to act as catalyst between the industrialist and the Government for industrial development in the State.
26. Undoubtedly, the Master Development Plans/Master Plans are prepared by the local authorities with an objective to ensure systematic and planned development of city and adjoining area with a view to protect the residents from ill effects of urbanisation as also to create sustainable, physical and social environment for improving their quality of life.
27. As laid down by this court in Gulab Kothari's case (supra), the Master Development Plan or the Zonal Development Plan, as the case may be, finally sanctioned after undertaking intensive consultation process involving experts from various disciplines and other stake holders, for systematic and planned development of the city and adjoining areas are democratically prepared planning documents expressing the community desire to develop physically, economically and socially, has binding effect and even the local authorities are not empowered to effect the modification of the (Downloaded on 02/09/2019 at 08:57:20 PM) (16 of 17) [19102CW2018] plan in deviation of the basic object of planned development of the city. The court held:
"88. We are firmly of the opinion that once the Master Development Plan is brought into being, vigilant implementation thereof should be the rule and any deviation therefrom an exception and therefore, the power vested with the Authority or the State Government for modification thereof should be exercised sparingly in furtherance of the planned development in the larger public interest and not otherwise."
28. It is noticed that the power to prepare and implement the Master Plan is vested in the local authorities i.e. Development Authorities, Urban Improvement Trust and Municipalities. The matter with regard to conversion/change of the land use in conformity with the Master Plan is also required to be dealt with by the said local authorities in accordance with law and thus, prima facie, the issue sought to be raised by the petitioners by way of amendment, questioning the authority of the RIICO in permitting the change of land use in violation of the Master Plan and regulating the construction of the commercial buildings, may be within the industrial area of the RIICO goes to the root of the matter. The matter with regard to the regulation of the construction within Metropolitan/Municipal/Development Area falling within the territorial jurisdiction of the said local authorities is also required to be dealt with by them in accordance with the provisions of the relevant statutes. In this view of the matter, we are of the opinion that in the larger public interest and for adjudication of the real controversy involved in the present petition, the issues sought to be raised by the petitioners by way of amendment in the writ petition needs to be examined by this court. As a matter of fact, the issues sought to be raised by the (Downloaded on 02/09/2019 at 08:57:20 PM) (17 of 17) [19102CW2018] petitioners by way of amendment of writ petition, do arise in the present PIL, cognizance whereof could be taken by this court even suo moto and thus, we do not find any reason to decline the amendment as prayed for.
29. In view of the amendment sought to be incorporated as aforesaid being permitted, the application preferred by the petitioners for impleading Municipal Corporation, Jodhpur, Jodhpur Development, Jodhpur and Department of Town Planning, Government of Rajasthan, as party respondents also deserves to be allowed.
30. Accordingly, the application No.5/19 and 7/19 preferred by the petitioners seeking leave to amend the petition and for impleading party respondents respectively, are hereby allowed. The amended writ petition alongwith amended cause title, if not already filed, may be filed within a period of one week. The respondents may file reply to the amended writ petition, if any, within a period of three weeks.
Let notice be issued to the newly added respondents, returnable on 24.10.19. Interim order dated 7.1.19 passed by this court shall continue till further orders.
(P.K. LOHRA),J (SANGEET LODHA),J
Aditya/
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