Rajasthan High Court - Jaipur
Rohit Singh vs Vishambhar Dayal Shukla on 4 February, 2014
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR SB CIVIL REVISION PETITION NO.57/13. ROHIT SINGH PETITIONER. VS VISHAMBHAR DAYAL SHUKLA RESPONDENT. DATE OF JUDGMENT : 4TH FEBRUARY, 2014. PRESENT HON'BLE MS. JUSTICE BELA M. TRIVEDI Mr. A.K. Pareek for the petitioner. Mr. B.B. Ojha for the respondent. ORDER BY THE COURT :
1. With the consent of the learned counsels for the parties, the revision petition is decided finally at the admission stage.
2. The revision petition under Section 115 of CPC is directed against the order dated 19.3.13 passed by the Addl. Civil Judge (JD) No.2, Jaipur Metropolitan City, Jaipur (hereinafter referred to as 'the trial court') in Civil Suit No. 54/11, whereby the trial court has dismissed the application of the petitioner-defendant seeking rejection of the plaint under Order VII Rule 11(d) of CPC.
3. The short facts giving rise to the present petition are that the respondent-plaintiff has filed the suit against the petitioner-defendant seeking permanent injunction for restraining him from carrying out the construction of third floor and carrying out the construction in violation of the building bye-laws and regulations. It is alleged interalia by the respondent-plaintiff that the petitioner defendant is carrying out construction, on the plot allotted to him by the Housing Board, in violation of the building regulations framed by the Jaipur Development Authority (hereinafter referred to as 'the Authority'). In the said suit, the petitioner sought rejection of the plaint Under Rule VII Rule 11(d) of CPC contending interalia that in view of Section 99 of the JDA Act, 1982 (hereinafter referred to as 'the said Act'), jurisdiction of the civil court is barred to take cognizance of the matter required to be decided by the Authority. The said application has been dismissed by the trial court against which the present revision petition has been filed.
4. The learned counsel Mr. A.K. Pareek for the petitioner pressing into service the provisions contained in Chapter-IV and Chapter VI of the said Act submitted that it is the function of the Authority to see that the buildings are elected as per the regulations and that nobody undertakes any development without the permission of the Authority. According to him, the Authority is empowered to impose penalty for any unauthorised development carried out by any person and also is empowered to remove the unauthorised development carried out by such person. Hence, according to him the subject matter of the suit being matter required to be decided by the Authority, the trial court did not have the jurisdiction.
5. However, the learned counsel Mr. B.B. Ojha for the respondent submitted that the suit having been filed between the two private persons, it would not fall within the purview of the Authority or the Tribunal to decide the same. Mr. Ojha has relied upon the decision of this High Court in the case of Jaipur Development Authority Vs. Shyam Lal Verma 1994(2) WLN, 267, on the decision of Kerala High Court in the case of P. Saina & Ors. Vs. Konderi & Ors. AIR 1984 Kerala 170 and on the decision of the Bombay High Court in the case of Smt. Fatima Joao Vs. Village Panchayat of Merces & Anr. AIR 2000 Bombay 444 in support of his submissions.
6. Having regard to the submissions made by the learned counsels of the parties and to the impugned order as well as the copy of the plaint produced on the record, it transpires that the respondent-plaintiff has filed the suit against the petitioner-defendant seeking permanent injunction for restraining him from carrying out the construction in violation of the building bye-laws. In the entire body of the plaint, it has been alleged by the respondent-plaintiff that the petitioner-defendant has violated the parameters fixed by the Authority for carrying out the construction and hence the construction carried out by him is the unauthorised construction. As rightly submitted by the learned counsel for the petitioner, it is for the Authority to see that the erection or re-erection of buildings and projections, material alteration etc. are being carried out as per the bye-laws specified by the Authority. It is also provided in Section 17 of the said Act that no person shall undertake any development within the Jaipur region without the permission of the Authority. The Authority is also empowered to revoke or modify such permission or development and impose penalty for unauthorised development, which are not in conformity with the approved plan, and also may require removal of unauthorised developments and also to stop unauthorised developments, as per the provisions contained in Chapter-IV of the said Act. In the instant case, the respondent-plaintiff having alleged that the petitioner was carrying out construction in violation of the building bye-laws, it is for the Authority to decide such matter and as rightly submitted by the learned counsel for the petitioner, Civil Court cannot take cognizance of such matter which is required to be decided by the authority, in view of the bar contained in Section 99 of the said Act. In that view of the matter, the court is of the opinion that the trial court has committed an error in not rejecting the plaint of the respondent-plaintiff as from the statements made in the plaint, it appears that the suit is barred under Section 99 of the said Act. The impugned order passed by the trial court being erroneous, the same deserves to be set aside and the present revision petition deserves to be allowed.
8. Accordingly, the revision petition is allowed, the plaint of the respondent-plaintiff is rejected under Order VII Rule 11(d) of CPC. However, it is clarified that it will be open for the respondent-plaintiff to approach the appropriate authority under the Act for the alleged grievance.
(BELA M. TRIVEDI) J.
MRG.
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
M.R. Gidwani PS-cum-JW