Rajasthan High Court - Jodhpur
Geetesh Khanna vs The State Of Rajasthan on 8 April, 2022
Bench: Sandeep Mehta, Farjand Ali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No. 15879/2021
Geetesh Khanna S/o Shri K.k. Khanna, Aged About 29 Years,
President Of Human Settlement Technology Centre, R/o C-21,
Arjun Lal Sethi Nagar, Jaipur.
----Petitioner
Versus
1. The State Of Rajasthan, Through Chief Secretary,
Government Of Rajasthan, Secretariat, Jaipur.
2. The Principal Secretary, Urban Development Department,
Government Of Rajasthan, Secretariat, Jaipur.
----Respondents
For Petitioner(s) : None present
For Respondent(s) : Mr. Sandeep Shah, Senior Advocate-
cum-AAG, assisted by Mr. Rajat Arora
Mr. Lakshya Pagaria
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE FARJAND ALI Order 08/04/2022 By way of this writ petition in the nature of Public Interest Litigation, the petitioner has made the following prayers :-
"It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased:-
(i) Issue a Writ in the nature of mandamus or any other Writ/Order/Direction thereby quashing the impugned public notice for camp organization from
2.10.2021.
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(ii) To issue a writ, order or direction in the nature of mandamus, directing Respondents not to make subsequent modifications in plans after Master Development Plans have come into operation otherwise such modifications will affect material alterations in the character of the plans as per Section 25 of the Jaipur Development Act, 1982.
(iii) To issue a writ, order or direction in the nature of mandamus, directing Respondents to produce before the Hon'ble Court all compliances/modifications suggested/ made as per statutory provisions, laws, Acts in all Municipalities, Municipal Corporations of all the 33 Districts of Rajasthan by the Development authorities, Collectors, Urban Local Bodies as ordered by the Hon'ble Court in D.B. Civil Writ Petition No.1554/2004 and other connected matters.
(iv) To issue a writ, order or direction in the nature of mandamus, restraining the Respondents from conducting any activity without seeking courts 'permission as matter is subjudice not only before High court but also before Hon'ble Supreme Court.
(v) To issue a writ, order or direction in the nature of mandamus, directing the State Respondents that every modification under the provisions section 161, section 162 of Rajasthan Municipalities Act 2009 shall be published, objections shall be invited, notice shall be issued, all objections and suggestions shall be considered and modification shall come into operation after Hon'ble Court grants permission for the same after seeing original records, the motion passed by Municipalities to undertake revision of their earlier (Downloaded on 26/12/2022 at 01:42:51 AM) (3 of 7) [CW-15879/2021] plans, fresh civic survey conducted, changes incorporated in existing plans and all deviations.
(vi) To issue the Writ of Certiorari or any other writ, order or direction to quash and set aside the impugned Government decision dated 02.10.2021 from giving effect to the impugned Government decision of the State Government to the extent it seeks to regularize the illegal constructions planned according to old Master Plans/Zoning regulations/ regulations/ Building Byelaws.
(vii) Any policy/notification/order/circular issued to convert the illegal commercial constructions may be quashed and set aside.
(viii) To issue a Writ of Prohibition or any other writ, order or direction to restrain and prohibit the respondents No unauthorized change of land use/constructions should be permitted to be regularized on 'as it is where it is' basis frustrating the very object of planned development of the town/cities contemplated under the various statutes and reflected in the Master Development Plan and Zonal Development Plan. In this view of the matter, unless the Zonal Development Plans and Sector Plans are prepared and notified, the question of the prescribed authorities proceeding with the consideration of the applications for regularization of unauthorized use or constructions in the areas governed by Master Development Plan notified in accordance with the procedure laid down under the relevant statute, does not arise. The State Government and its authorities instead of showing its concern for regularization of unauthorized development/constructions raised by the (Downloaded on 26/12/2022 at 01:42:51 AM) (4 of 7) [CW-15879/2021] unscrupulous persons taking law in their hands, must first ensure that the Zonal Development Plans/Sector Plans for the entire local area regulated by Master Development Plan are finalized and notified in accordance with law and thereafter, the matter with regard to regularization of unauthorized development/ constructions which fulfills the requirement of the infrastructure facilities and amenities and are found to be strictly in consonance with the Master Development Plan, Zonal Development Plan and Sector Plans or any other plans in forces may be appropriately dealt with by the prescribed authorities in accordance with the procedure laid down under the relevant statutes, regulations and byelaws. Therefore, it is prayed that the respondents may kindly be restrained from taking any action leading to regularization of illegally constructed shops or according permission for shops in the residential plots in any residential area in any part of the state. They may also be kindly restrained from taking any action to implement the impugned Government decision, for camps dated 02.10.2021 or any other policy announced in this regard in so far as it attempts to validate and regularize the illegal action and contravention of commercial activities and residential areas.
(ix) It is also prayed that Hon'ble Court may be pleased to restrain the respondents both from undertaking regularization of commercial activities at residential location of colonies which were planned as per old Master Plans. Now whole planned development of the cities of Rajasthan will be destroyed if not stopped."
No one has appeared to argue the matter. The
respondents have filed a short reply on the aspect of
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maintainability of the writ petition with a pertinent contention that the controversy involved in this writ petition was under
consideration of the High Court in D.B. Civil Writ Petition No.15150/2021 filed by Mr. Bhanwar Singh and another identical Writ Petition No.13782/2021 filed by Mr. Roshan Vyas. These two writ petitions have been decided by a common order dated 09.02.2022 concluding as below :-
"77. There still one area of grave concern. We would be concerned if while implementing the Government scheme, occupations and encroachments in eco- sensitive zones, catchment areas, water bodies, riverbanks and such alike are to be regularised. The same would not only be wholly impermissible on the anvil of principles and directives of Gulab Kothari judgments but independently thereof also. Irreversible environmental damage and ecological degradation cannot be permitted in the name of Government policy choices.
78. We would summarise our conclusions as under:-
(i) Insofar as the impugned Government circulars/orders pertaining to recognising the rights over properties and granting lease deeds subject to terms and conditions indicated, the same are not opposed to the Gulab Kothari judgments nor are impermissible in any other manner.
(ii) Insofar as the Government's desire to regularise the existing land uses, the same falls into broad categories,
(a) where agricultural land is put to non-agricultural use without permission and (b) where such lands as aforesaid or other lands of nonagricultural character (Downloaded on 26/12/2022 at 01:42:51 AM) (6 of 7) [CW-15879/2021] which have been put to uses other than land use specified in the development plans. So far as clause (a) category of uses are concerned, per se we find no illegality in the approach of the Government. The Government has the authority in terms of Section 90B of the Act of 1956 as it stood at the relevant time and Section 90-A as it stands today to regularise such unauthorised land conversions. However so far as clause (b) is concerned, any such regularisation of the land use, must strictly conform to the Gulab Kothari judgments. In other words, if the current land use is different from the land use permissible under the sanctioned development plan, the same would not be regularised unless and until to the extent permissible and after following the procedure as envisaged, the development plan is modified. While doing so, all rigours, restrictions and directions contained in Gulab Kothari judgments would apply. Nothing stated in this judgment would be taken as having diluted any of these directions.
(iii) Vires challenge to the statutory provisions fails.
(iv) No construction in the guise of operating any of the provisions of the scheme which cannot be regularised as per the existing bye-laws, would be regularised. This flows clearly from the Gulab Kothari judgments. Unless and until the Government brings a valid legislation, these directions must apply.
(v) The decision to regularise the kachchi bastis, per se, is not opposed to any of the Gulab Kothari's principle as long as the Government sticks to its stand of not granting leases to the residents of such kachchi bastis which have developed on reserved facility areas such as park, playground, roads, open land, public land (Downloaded on 26/12/2022 at 01:42:51 AM) (7 of 7) [CW-15879/2021] etc.; reserved land, forest land, river, drain, ponds and other restricted areas."
As the controversy involved in the case at hand is 'ad idem', the instant writ petition is also disposed of in light of the observations made and directions given by this court in the case of Bhanwar Singh and Roshal Vyas (supra).
(FARJAND ALI),J (SANDEEP MEHTA),J
94-Pramod/-
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