Rajasthan High Court - Jaipur
Nemi Nagar Vistaar Vikas Samiti vs Jaipur Development Authority on 6 November, 2024
Author: Sudesh Bansal
Bench: Sudesh Bansal
[2024:RJ-JP:45306]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 984/2023
Nemi Nagar Vistaar Vikas Samiti, Registered Office Plot No. 4,
Nemi Nagar Vistaar, Jaipur The Then Secretary, Ajay Kumar
Sharma Son Of Shri Vishnu Dutt Sharma Aged About 64 Years,
Resident Of Plot No. 124, Through Present Secretary Akeel Khan
S/o Jameel Khan Aged About 46 years, Resident Of 72, Nemi
Nagar Extension, Shree Path, Vaishali Nagar, Jaipur.
----Petitioner
Versus
1. Jaipur Development Authority, Through Secretary, Indira
Circle, Jawahar Lal Nehru Marg, Jaipur.
2. Deputy Commissioner, Zone - 7, Jaipur Development
Authority, Indira Circle, Jawahar Lal Nehru Marg, Jaipur.
3. Topkhana Desh Grah Nirman Sehkari Samiti Limited, D-
239, Bihari Marg, Bani Park, Jaipur Through Secretary.
4. Smt. Praveena Kumar Wife Of Shri Sanjay Kumar,
Resident Of B-1/552, 553, 554 Pratap Nagar, Chitrakoot
Yojana, Vaishali Nagar Jaipur.
5. Rahsmi Roopani Daughter Of Shri Balraj Roopani,
Resident Of A-65, Shanti Path, Tilak Nagar, Jaipur.
6. Deepak Sharma Son Of Shri R.C. Sharma, Resident Of 2,
Hathroi Ajmer, Jaipur.
----Respondents
Connected With
S.B. Civil Writ Petition No. 9695/2023
Nemi Nagar Vistar Vikas Samiti, Registered Office - House No. 4,
Nemi Nagar Vistar, Vaishali Nagar, Jaipur, Through Present
President Anju Gupta D/o Ishwer Chandra, W/o Saurabh Gupta,
Aged About 57 Years, R/o 175/A, Shiv Path, Nemi Nagar
Extension, Vaishali Nagar, Jaipur, Rajasthan.
----Petitioner
Versus
1. Station House Officer, Police Station Vaishali Nagar, Jaipur
West, Jaipur.
2. Smt. Praveena Kumar W/o Sanjay Kumar, Aged About 54
(Downloaded on 06/11/2024 at 10:09:09 PM)
[2024:RJ-JP:45306] (2 of 61) [CW-984/2023]
Years, R/o Plot No. 26, Nemi Nagar Vistar, Vaishali Nagar,
Jaipur.
----Respondents
For Petitioner(s) : Mr. R. K. Mathur Sr. Adv. assisted by
Mr. Aniroodh Mathur
Mr. Krishnaveer Singh
Mr. Sunil Kumar Jain
For Respondent(s) : Mr. Jitendra Mitruka
Mr. Saket Pareek
Mr. Aditya Pareek
Mr. Surendar Meel
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
Judgment reserved on : October 23rd, 2024
Judgment Pronounced on : November 6th, 2024
BY THE COURT:
1. In both the writ petitions, petitioner is common i.e. Nemi Nagar Vistar Vikas Samiti, which is a registered Society under Registration No. 1042/2008-09 and the issue involved in both the writ petitions is interconnected, hence, with the consent of counsel for both parties, both writ petitions have been heard together and would stand decide by this common judgment.
2. S.B. Civil Writ Petition No. 984/2023 has been filed by petitioner-Vikas Samiti under Article 227 of the Constitution of India, challenging the judgment dated 29.11.2022 passed by Appellate Tribunal, Jaipur Development Authority (for short, "JDA Tribunal"), Jaipur in Appeal No. 139/2020, whereby and whereunder appeal filed by petitioner-Vikas Samiti under Section 83 of the Jaipur Development Authority (Downloaded on 06/11/2024 at 10:09:09 PM) [2024:RJ-JP:45306] (3 of 61) [CW-984/2023] Act, 1982 (for short, "Act of 1982") has been dismissed, consequentially the prayer of petitioner to quash the order dated 10.04.2015 of the Building and Planning Committee (for short, "BPC") meeting of JDA, has been denied so also the prayer to cancel the lease deeds of respondents No. 4, 5, and 6 for Plot Nos. 18-A, 18-B, 19, 30, 30-A and 30-B in Nemi Nagar Vistar Scheme, has been declined. The prayer of petitioner, in the instant writ petition is that the judgment dated 29.11.2022 passed by JDA Tribunal and the order dated 10.04.2015 of BPC be quashed so also the registered lease deeds of respondents for plots in question be cancelled and the decision dated 13.02.2015 taken in 225 th BPC meeting of JDA in respect of developing the lands in question of abovereferred six plots as facility of Park in the Nemi Nagar Vistar Scheme, be restored and maintained.
3. S.B. Civil Writ Petition No.9695/2023 has been preferred by the petitioner-Vikas Samiti under Article 227 of the Constitution of India, impugning the order dated 29.05.2023 passed in Civil Miscellaneous Appeal No.17/2022 (CIS No.94/2022) by the Court of Additional District Judge No. 2, Jaipur Metropolitan II, in respect of Plot No.18-A situated in Nemi Nagar Vistar Scheme, whereby and whereunder while setting aside the order dated 09.05.2022 passed by the Additional Civil Judge and Metropolitan Magistrate No. 3, Jaipur Metropolitan II, dismissing the application for (Downloaded on 06/11/2024 at 10:09:09 PM) [2024:RJ-JP:45306] (4 of 61) [CW-984/2023] temporary injunction filed by respondent No. 2, the appeal has been allowed and the order of temporary injunction has been passed in favour of respondent No.2 and against the petitioner-Vikas Samiti, not to create hindrance and interruption in peaceful use and occupation of plot in question by the respondent No.2-plaintiff. The operative portion of the order reads as under:-
"vr% vihykÆFk;k @ çkÆFk;k Jherh çoh.kk dqekj dh vksj ls çLrqr nhokuh fofoèk vihy Lohdkj dh tkdj fo}ku fopkj.k U;k;ky; }kjk nhokuh fofoèk çkFkZuk i= la-28@2022 ¼347@2022½ Jherh çoh.kk dqekj cuke Fkkukfèkdkjh iqfyl Fkkuk oS'kkyhuxj] t;iqj egkuxj if'pe o vU; esa ikfjr vk{ksfir vkns'k fnukad 09- 05-2022 vikLr fd;k tkrk gS rFkk çR;FkÊx.k @ vçkFkÊx.k dks tfj;s vLFkkà fu"ksèkkKk ikcUn fd;k tkrk gS fsd os oknxzLr Hkw[k.M ds lEcUèk esa fcuk fofèkd çfØ;k viuk;s bl Hkw[k.M la- 18&, ds lEcUèk esa fdlh çdkj dh dksà dk;Zokgh] vojksèk] ckèkk ,oa gLr{ksi ugÈ djsA vihy [kpkZ i{kdkjku viuk&viuk Lo;a ogu djsaxsA vkns'k dh çfr ds lkFk fopkj.k U;k;ky; dk vfHkys[k fHktok;k tkosA"
S.B. Civil Writ Petition No.984/2023 4.1 Petitioner-Vikas Samiti has come up with a case that Nemi Nagar Vistar Colony was carved out and developed by the Topkhana Desh Grah Nirman Sehkari Samiti Limited (respondent No.3 herein) in the year 1981 and the layout (Downloaded on 06/11/2024 at 10:09:09 PM) [2024:RJ-JP:45306] (5 of 61) [CW-984/2023] plan of colony was technically approved by the JDA in its 2 nd BPC meeting dated 19.06.1985. In such layout plan, three facility areas at different places were shown but on one facility area, later on, six residential plots bearing No. 18-A, 18-B, 19, 30, 30-A and 30-B were carved out by the cooperative society and in 115th meeting of BPC dated 17.01.2008, decision was taken by JDA to approve such layout plan and finally, same has been approved on 23.04.2008.
4.2 The Vikas Samiti has further pleaded that one Reference Petition bearing No. 271/2009 before the Appellate Tribunal, Jaipur Development Authority, Jaipur, invoking scope under Section 83 of the Act of 1982 was filed by the Samiti, but same was dismissed vide order dated 24.08.2009 as not maintainable and thereafter, petitioner-Vikas Samiti invoked Writ Jurisdiction of High Court under Article 226 of the Constitution of India by filing a D.B. Civil Writ (PIL) Petition No. 12990/2011.
4.3 It is the case of Vikas Samiti that during course of PIL Petition, in 225th meeting of JDA dated 13.02.2015, a decision was taken by JDA to develop the area of such six plots as Park, in view of the factual matrix that physical possession of plots has not been delivered to the allottees nor the names of allottees are included in the list of Members of the Nemi Nagar Vistar Scheme, developed by the cooperative society (Downloaded on 06/11/2024 at 10:09:09 PM) [2024:RJ-JP:45306] (6 of 61) [CW-984/2023] and further such decision dated 13.02.2015 was again affirmed in 226th BPC meeting dated 10.03.2015. However, in the next 227th BPC meeting convened on 10.04.2015, it was observed that the decision dated 13.02.2005, to develop a park on the area of six plots was taken erroneously, since in respect of such six plots, final layout plan had already been approved in the year 2008, hence, the decision of BPC meeting dated 13.02.2015 was revoked and the approval and existence of abovereferred six plots in the Scheme was decided to be kept intact in accordance with the amended layout of Scheme, already approved by the JDA in the year 2008.
4.4 It is undisputed that such subsequent facts came in existence during course of the PIL petition, therefore, the petitioner-Vikas Samiti was allowed to carry out necessary amendments in the PIL Petition, in respect of such subsequent events i.e. about decision of BPC meeting dated 13.02.2015 and its revocation in the another BPC meeting dated 10.04.2015. The amended PIL Petition was filed, but later on, that PIL Petition was withdrawn by the Vikas Samiti with liberty to file an appeal against the order dated 10.04.2015 of the BPC 227 th meeting, before the Appellate Tribunal, JDA. The liberty, prayed for, was granted by the Division Bench of Rajasthan High Court in D.B. Civil Writ (PIL) (Downloaded on 06/11/2024 at 10:09:09 PM) [2024:RJ-JP:45306] (7 of 61) [CW-984/2023] Petition No. 12990/2011 vide order dated 07.02.2020 and thereby the PIL petition came to be dismissed as withdrawn. 4.5 In furtherance to such liberty, petitioner-Vikas Samiti filed an appeal against the order of 227 th meeting of BPC dated 10.04.2015, before the Appellate Tribunal, JDA, which came to be registered as Appeal No.139/2020. 4.6 It has also been pleaded that soon after dismissal of the PIL petition, JDA issued six separate lease deeds of all six plots in favour of respondents No.4, 5 & 6 on 14.02.2020 and lease deeds were also registered on 25.02.2020. 4.7 The Appeal No.139/2020, filed by petitioner-Vikas Samiti was heard and considered on merits by the JDA Tribunal, but finally has been dismissed on merits vide judgment dated 29.11.2022, whereagainst the instant writ petition has been filed.
5. Learned Senior Counsel appearing for and on behalf of petitioner-Vikas Samiti, in his long drawn arguments, has raised following contentions:-
(i) The layout plan of Nemi Nagar Vistar Colony had already been technically approved in the 2nd BPC meeting of JDA dated 19.06.1985 and in such layout plan, the area of six plots in question was marked and shown as facility area for the colony, therefore, accepting another layout plan of this colony, submitted by the cooperative society with carving out additionally six plots bearing No. 18-A, 18-B, 19, 30, 30-A (Downloaded on 06/11/2024 at 10:09:09 PM) [2024:RJ-JP:45306] (8 of 61) [CW-984/2023] and 30-B in such facility area, in the 115 th BPC meeting of JDA dated 17.01.2008 as much as sanctioning the amended layout plan on 23.04.2008, is absolutely illegal act on the part of JDA and such subsequent amended layout plan approved in the year 2008 stands contrary to the first technically approved layout plan dated 19.06.1985, hence, the approved amended layout plan dated 23.04.2008 should be quashed and the first layout plan of colony, technically approved on 19.06.1985 deserves to be restored.
(ii) Cancellation of first layout plan dated 19.06.1985 by the Secretary of JDA vide order dated 17.06.1992 is misconceived and without authority of law, since such cancellation was made on an erroneous premise that the land of Khasra No.134 of Village Beed Khatipura on which the Nemi Nagar Vistar Colony was developed, has come under acquisition whereas, later on it was clarified that the land of colony never came under acquisition, hence in such eventuality, the first layout plan should be held and treated to be restored automatically, which deserves to be acted upon.
(iii) It has been strenuously contended that it was not within the domain and jurisdiction of the cooperative society to carve out new plots in the colony, once the proceedings under Section 90-B of Land Revenue Act had commenced on 18.12.2002 because thereafter, the land had been vested in JDA, therefore, mere approval of amended layout plan on (Downloaded on 06/11/2024 at 10:09:09 PM) [2024:RJ-JP:45306] (9 of 61) [CW-984/2023] 23.04.2008, does not worth merit acceptance and such amended layout plan of 2008, does not confer any right, in favour of the plot holders of plot Nos. 18-A, 18-B, 19, 30, 30-
A and 30-B, which were indeed carved out in the facility area of the colony.
(iv) It has been contended that the petitioner-Vikas Samiti made complaints and raised the issue against allowing to carve out and granting approval to additionally created plots in the facility area of colony, but when nothing happened, then one Reference Petition No.271/2009 was filed by petitioner-Vikas Samiti, before the JDA Tribunal, invoking jurisdiction of Tribunal under Section 83 of the Act of 1982, but that reference petition came to be dismissed by the JDA Tribunal as not maintainable vide order dated 24.08.2009. Thereafter, one D.B. Civil Writ (PIL) Petition No. 12990/2011 was filed by the petitioner-Vikas Samiti, before the Division Bench of Rajasthan High Court, and in this PIL petition, vide order dated 28.04.2015, JDA was restrained not to allow any construction on the six plots in question in Nemi Nagar Vistar Colony.
(v) Learned Senior Counsel for petitioner-Vikas Samiti canvassed that the JDA in its 225 th BPC meeting dated 13.02.2015, took a decision to develop a Park on the area where six plots were carved out, taking into consideration the factual matrix that in the original layout plan of 1985, such (Downloaded on 06/11/2024 at 10:09:09 PM) [2024:RJ-JP:45306] (10 of 61) [CW-984/2023] area was marked as facility and the possession of six plots have never been delivered to the plot holders nor the name of plot holders is included in the list of Members of the cooperative society of this Scheme. Learned Senior Counsel has laid much emphasis on this decision dated 13.02.2015 and would contend that such decision was again approved and ratified in 226th BPC meeting convened on 10.03.2015, wherein an inadvertent error occurred in minutes of meeting dated 13.02.2015, indicating incorrect plot No.18, instead of correct plot No.19, which was rectified and the plot No.18 was replaced by plot No.19.
(vi) Learned Senior Counsel also drew attention of this Court upon the various other notings, written on the file of JDA and certified copies of few order-sheets of JDA have been placed on record, along with rejoinder and additional affidavits filed by petitioner-Vikas Samiti, just to show that indeed on the record of JDA, the land of these six plots in question was recorded as a land of facility area for the Nemi Nagar Vistar Colony, yet six plots, carved out by cooperative society on this facility area, were approved by the JDA in its 115 th & 116th BPC-LP meetings.
(vii) It has been argued that the JDA committed grave illegality and arbitrariness in revoking the decision of BPC-LP meeting dated 13.02.2015 in 227 th BPC-LP meeting dated 10.04.2015. The decision taken in the 227 th BPC meeting of (Downloaded on 06/11/2024 at 10:09:09 PM) [2024:RJ-JP:45306] (11 of 61) [CW-984/2023] JDA convened on 10.04.2015, is absolutely arbitrary, illegal, perverse and has been taken by the JDA by circumventing and ignoring the previous record of JDA as much as has been passed without providing any opportunity of hearing the petitioner-Vikas Samiti, hence, the revocation of the previous decision dated 13.02.2015 and to sustain the existence of six plots in the colony, in accordance with the amended layout plan of colony, approved on 17.01.2008/23.04.2008, is ex- facie illegal and is an arbitrary decision of JDA, which clearly stands violative to Articles 14 and 21 of the Constitution of India as also against the principle of natural justice and fair play. The facility area of the colony cannot be allowed to be abolished by allowing to carve out new and additional residential plots by the cooperative society in the facility area, and same is against the established legal proposition of law as also would frustrate the valuable legal rights of the Members of petitioner-Vikas Samiti, who will be deprived from enjoying the benefits of Park and of fresh air, light, etc. through this facility area to their respective plots in the scheme.
(viii) It has been strongly contended by the learned senior counsel for petitioner-Vikas Samiti that the JDA Tribunal has committed grave illegality, perversity and jurisdictional error in dismissing the appeal vide judgment dated 29.11.2022 and affirming the decision of BPC meeting dated 10.04.2015, and (Downloaded on 06/11/2024 at 10:09:09 PM) [2024:RJ-JP:45306] (12 of 61) [CW-984/2023] thereby resultantly the approval and existence of six residential plots in the facility area has been upheld. Hence, not only the impugned judgment dated 29.11.2022 deserves to be quashed and set aside, but the decision of BPC meeting dated 10.04.2015 be also set-aside and simultaneously the decision taken in the 225th BPC meeting of JDA convened on 13.02.2015 is liable to be restored so that the facility area of colony may be maintained and saved in the larger interest of the members of the petitioner-Vikas Samiti.
(ix) Learned Senior Counsel has strongly relied upon the decision of Division Bench of the Rajasthan High Court, passed in D.B. Civil Writ (PIL) Petition No.13084/2009 titled as 'Rakesh & Ors. Vs. The State of Rajasthan & Ors.' reported in [(2011) 4 WLC 91], wherein, the Division Bench while placing reliance on the theory of the doctrine of public trust as developed by the Roman Empire and was discussed in celebrated judgment of M.C. Mehta and Kamal Nath & Ors. [(1997) 1 SCC 388], it was expounded that the land area once earmarked and set apart for a facility area/ children's park, the same becomes a public trust property and the State had no jurisdiction to convert the property of public trust into a private residential plot and finally the allotment of residential plot from the utility area and its regularization in favour of private respondent was (Downloaded on 06/11/2024 at 10:09:09 PM) [2024:RJ-JP:45306] (13 of 61) [CW-984/2023] declared illegal, arbitrary and violative to the fundamental rights of the residents of the Kanota Bagh locality.
(x) Apart from above, learned senior counsel for petitioner- Vikas Samiti has also referred and relied upon the following judgments as well:-
(a) Machavarapu Srinivasa Rao & Ors. Vs. The Vijayawada, Guntur, Tenali, Mangalagiri Urban Development Authority & Ors. [(2011) 12 SCC 154].
(b) Dr. G.N. Khajuria & Ors. Vs. Delhi Development Authority & Ors. [AIR (1996) SC 253]. (c) Banglore Medical Trust Vs. B.S. Muddappa & Ors. [AIR (1991) SC 1902]. (d) Perala Jyotsna & Ors. Vs. The State of Andhra Pradesh & Ors. [MANU/AP/0317/2020]. (e) Sri Balaji Park Residents Welfare Association Vs. Vice-Chairman, Visakhapatnam Urban Development Authority & Ors. [MANU/AP/0660/2001].
6. Per contra, respondents including JDA, cooperative society and the private respondents have resisted the writ petition and have prayed for its dismissal.
7.1 JDA has filed reply stating, inter alia, that the layout plan of Nemi Nagar Vistar colony, proposed to be technically approved in the year 1985 was cancelled vide order dated 17.06.1992 by the JDA, and it has been denied (Downloaded on 06/11/2024 at 10:09:09 PM) [2024:RJ-JP:45306] (14 of 61) [CW-984/2023] that the land in question was agreed to be left by JDA for facility of the scheme.
7.2 It has been replied by the JDA that thereafter, fresh proceedings under Section 90-B of Land Revenue Act were commenced in the year 2002 and in the BPC-LP meeting No.115 and 116 dated 17.01.2008 and 23.04.2008, the layout plan of Nemi Nagar Vistar Scheme was approved. As per the approved layout plan of Scheme, the land in question is not the land for facility in the Scheme, but residential plot Nos. 18-A, 18-B, 19, 30, 30-A and 30-B exist thereupon and two other facility areas at other places in the scheme were recognized and approved.
7.3 It has been replied by the JDA that decision in BPC- LP meeting dated 13.02.2015, to develop the land area of these six plots as facility, was erroneously taken, hence, later on, such decision was recalled in the 227 th BPC-LP meeting dated 10.04.2015, taking into consideration the fact that the six plots carved out and existed over the land in question have already been approved in the layout plan of the colony in the year 2008 itself.
7.4 It has been denied that such six plots have been carved out over the facility area of colony.
7.5 JDA has replied that lease deeds in respect of all six plots have been issued and registered.
(Downloaded on 06/11/2024 at 10:09:09 PM) [2024:RJ-JP:45306] (15 of 61) [CW-984/2023] 7.6 It has been contended that the case pleaded and argued on behalf of petitioner-Vikas Samiti, claiming the land of six plots to be facility area of the colony is without substance.
7.7 The JDA Tribunal, has not committed any perversity in affirming the order of BPC-LP dated 10.04.2015 and has rightly rejected the appeal thereagainst vide judgment dated 29.11.2022, after appreciating the entire relevant record, the impugned judgment does not call for any interference by the High Court in the instant writ petition, as such writ petition deserves to be dismissed.
8.1. The cooperative society-respondent No.3 and private respondents No.4, 5 and 6, who are plot holders of plots in question have also filed separate replies to the writ petition. In their replies, various preliminary objections and other contentions have been raised to reject the writ petition. 8.2 It has been pointed out that the case of petitioner- Vikas Samiti to claim the land in question as facility for Nemi Nagar Vistar Colony on the basis of layout plan, allegedly approved in 2nd BPC meeting of JDA dated 19.06.1985 has already been rejected by the JDA Tribunal while dismissing the Reference Petition No.271/2009 vide judgment dated 24.08.2009, which has attained finality.
8.3 Further, the challenge made by the Vikas Samiti to the layout plan of colony, approved and sanctioned by JDA in (Downloaded on 06/11/2024 at 10:09:09 PM) [2024:RJ-JP:45306] (16 of 61) [CW-984/2023] BPC-LP meeting No.115th and 116th dated 17.01.2008 and 23.04.2008, through filing D.B. Civil Writ (PIL) Petition No. 12990/2011, has also failed and Vikas Samiti itself has not pressed and withdrawn its PIL petition.
8.4 It has been pointed out that the appeal filed by petitioner-Vikas Samiti before the JDA Tribunal was solely based on the decision dated 13.02.2015 taken in 225 th BPC- LP meeting and such decision has later on been revoked in the next 227th BPC-LP meeting dated 10.04.2015. 8.5 It has been pointed out that the challenge to the order of 227th BPC-LP meeting dated 10.04.2015 made by petitioner-Vikas Samiti has been rejected on merits vide judgment dated 29.11.2022 passed by the JDA Tribunal and now in the guise of challenging such judgment, petitioner- Vikas Samiti wants to take another attempt to claim the land in question as facility, fundamentally on the basis of allegedly technically approved layout plan of the colony wayback on 19.06.1985, which indeed was not final and never came in existence and operation.
8.6 Similarly, challenge to the layout plan of the colony approved in 115th & 116th BPC-LP meetings dated 17.01.2008 & 23.04.2008, made in the instant writ petition is also misconceived, since such challenge made by petitioner-Vikas Samiti in the D.B. Civil Writ (PIL) Petition No. 12990/2011 has already been withdrawn by the Vikas Samiti, with liberty (Downloaded on 06/11/2024 at 10:09:09 PM) [2024:RJ-JP:45306] (17 of 61) [CW-984/2023] to challenge the BPC-LP meeting order dated 10.04.2015 only, by way of filling appeal before the JDA Tribunal. 8.7 The attention of this Court has been drawn to the prayer made by petitioner-Vikas Samiti in the amended PIL petition, which has also been dismissed as not pressed vide order dated 07.02.2020 and liberty was granted to petitioner- Vikas Samiti only, to avail the remedy of filing appeal against the order of BPC-LP meeting dated 10.04.2015. 8.8 It has been submitted that in the guise of filing instant writ petition, filed under Article 227 of the Constitution of India against the judgment dated 29.11.2022 passed by the JDA Tribunal, the petitioner-Vikas Samiti cannot be allowed to re-open the scope of PIL petition, which has already been not pressed by the petitioner-Vikas Samiti on 07.02.2020. For ready reference, the prayer of amended PIL petition is being extracted hereunder:-
"It is therefore, most respectfully prayed that your Lordships may be pleased to accept & allow this writ petition and be further pleased:-
(i) To quash the sanction of layout plan dated 23.04.2008 (Annexure-11) to the extent it changes the character of facilities/park into residential plots & widening the roads from 30' to 40' as compared to plan sanctioned in 1985 (Annexure 1).
(ii) To direct the respondent No.1 to preserve, keep develop and maintain the area shown for facilities and parks in the layout plan 1985 for these purposes only and to remove all encroachments from them it made in view of revised layout plan.
(Downloaded on 06/11/2024 at 10:09:09 PM) [2024:RJ-JP:45306] (18 of 61) [CW-984/2023]
(iii) To declare all action allotments if any including of residential/commercial plots as per revised lay out plan in relation to the facility area/parks shown in the lay out plan of 1985 as illegal and void abinitio and to direct the respondent no.1 to remove encroachments in facility areas forthwith if any.
(iv) To direct competent authorities lodged FIR against those who to are responsible for aforesaid action as per circular dated 06.09.2007.
(v)To quash and set aside the decision taken by the B.P.C. (L.P.) in its meeting No. 227 dated 10.4.2015 and in furtherance thereof to quash and set aside the approved plan, up to the extent of creating, plots over facility area, issued in succession of the meeting No. 227 of B.P.C. (L.P.) dated 10.4.2015.
(vi) To restore the decision taken by the B.P.C. (L.P.) in its meeting No. 225 dated 10.2.2015 and to restore the revised map released after the decision of the B.P.C. (L.P.) in its meeting No. 226 dated 10.3.2015.
(vii) To direct the respondents to develop the Park over Plots No 19, 18-A, 18-B, 30, 30-A and 30-B, by manner of providing the required amenities.
(viii) To issue any other relief which this Hon'ble Court deems just and proper in the facts and circumstances of the case.
(ix) Costs of the writ petition may also be awarded in favour of the petitioners."
8.9 It has been pointed out that the petitioner-Vikas Samiti is virtually trying to seek the similar relief, by way of instant writ petition which was prayed in the PIL petition, which is beyond the scope of this writ petition, filed under Article 227 of the Constitution of India and jurisdiction of High Court in this writ petition is confined to look into the (Downloaded on 06/11/2024 at 10:09:09 PM) [2024:RJ-JP:45306] (19 of 61) [CW-984/2023] perversity and jurisdictional error in the impugned judgment dated 29.11.2022 passed by the JDA Tribunal. For ready reference, the prayer made by petitioner-Vikas Samiti in the instant writ petition is being reproduced hereunder:-
"It is, therefore, most respectfully prayed that your lordships may graciously be pleased to allow this writ petition and;
(i) By an appropriate writ, order or direction, judgment / order dated 29.11.2022 passed by the JDA Tribunal may be quashed and set-aside.
(ii) By further appropriate writ, order or direction, the decision of the 227th BPC held on 10.04.2015 with respect to the colony of the petitioner may kindly be quashed and set- aside and the respondents be directed to act upon their earlier decision taken in the 225th & 226th BPC.
(iii) By further appropriate writ, order or direction, the amended layout plan as approved on 23.04.2008 may kindly be quashed and set- aside and the layout map of 1985 be restored.
(iv) By further appropriate writ, order or direction, Plots No. 18A, 188, 19, 30, 30A & 30B be decalred to be part of facility area of Nemi Nagar Vistaar Colony.
(v) Cost of the litigation may kindly be awarded in favour of petitioner."
8.10 It has been fervently and vehemently argued by counsel for respondents that the impugned judgment dated 29.11.2022, does not suffer from any vice of arbitrariness, perversity or jurisdictional error which warrants interference by the High Court in exercise of its limited jurisdiction under Article 227 of the Constitution of India.
(Downloaded on 06/11/2024 at 10:09:09 PM) [2024:RJ-JP:45306] (20 of 61) [CW-984/2023] 8.11 While referring the scope of Article 227 of the Constitution of India, following judgments have been relied upon to contend that the High Court does not act as Court of Appeal and the scope of interference is very limited and extremely narrow:-
1. Nagendra Nath Bora & Ors. Vs. The Commissioner Of Hills Division and Appeals, Assam & Ors., reported in [AIR (1958) SC 398].
2. Syed Yakoob Vs. K.S. Radhakrishnan & Ors.,reported in [(1963) SCC OnLine SC 24].
3. Sugarbai M. Siddiq & Ors. Vs. Ramesh S. Hankare (D) by Lrs., reported in [(2001) 8 SCC 477].
9. Heard and considered.
10. Having considered the rival contentions made by and on behalf of both sides, following points for consideration arise in the instant writ petition, which are required to be adjudicated and answered by this court:
(i) Whether the six plots in question bearing Plot Nos. 18-A, 18-B, 19, 30, 30-A and 30-B, in Nemi Nagar Extension Scheme, Vaishali Nagar, Jaipur, were carved out in the facility area of scheme?
(ii) Whether the judgment of JDA Tribunal dated 24.08.2009, dismissing the Reference Petition No.271/2009 filed by petitioner-Vikas Samiti and the withdrawal of D.B. Civil Writ (PIL) Petition No. 12990/2011, filed by petitioner-(Downloaded on 06/11/2024 at 10:09:09 PM)
[2024:RJ-JP:45306] (21 of 61) [CW-984/2023] Vikas Samiti vide order dated 07.02.2020, have any adverse effect against the petitioner-Vikas Samiti, for claiming the relief prayed in the instant writ petition?
(iii) Whether the decision dated 13.02.2015 taken in 225th BPC-LP meeting of JDA to develop the area of six plots in question as facility-park for common use by the Members of petitioner-Vikas Samiti, was illegally revoked in the 227th BPC meeting dated 10.04.2015, and the decision dated 13.02.2015 is liable to be restored?
(iv) Whether the judgment impugned herein dated 29.11.2022 passed by the JDA Tribunal requires any interference by the High Court in exercise of its jurisdiction under Article 227 of the Constitution of India?
(v) Whether the registered lease deeds of six plots in question, issued by the JDA in favour of the respondent Nos.4, 5 & 6 are liable to be cancelled?
11. At the outset, it has been noticed by this Court that the foundation of the petitioner-Vikas Samiti to claim the lands of six plots in question as facility area of the Nemi Nagar Vistar Scheme, is fundamentally based on the first layout plan of the scheme which has been said to be technically approved by the JDA in 2nd BPC-LP meeting dated 19.06.1985. The copy of minutes of meeting dated 19.06.1985 and the layout plan have been placed on record by the petitioner-Vikas Samiti. A bare perusal of the minutes of BPC meeting dated (Downloaded on 06/11/2024 at 10:09:09 PM) [2024:RJ-JP:45306] (22 of 61) [CW-984/2023] 19.06.1985 goes to show that the Nemi Nagar Extension Scheme was developed as a residential colony by the Topkhana Desh Grah Nirman Sehkari Samiti Limited and layout plan was proposed by the society for approval by JDA, which was taken into consideration in BPC-LP meeting dated 19.06.1985 in second series of schemes at Serial No.6. From perusal of minutes of meeting dated 19.06.1985, it is difficult to conclude and discern that in such meeting dated 19.06.1985, the layout plan of scheme, showing the area of lands in question as facility of the scheme, was approved either technically or finally rather, such layout plan of scheme was kept under consideration with following observations, which were made in the meeting and same reads as under:
"Øe la[;k&6 dh ;kstuk ds ckjs esa fu.kZ; fy;k x;k fd 750 oxZ xt ls cMs Hkw[k.Mksa dks NksVk dj lfefr ls iqu% la'kksf/kr uD'kk ekaxk tk;A"
12. This Court finds that the layout plan of scheme which has been alleged to be technically approved in the BPC-LP meeting dated 19.06.1985 and has been enclosed as Annx.3 along with the writ petition, does not show and prove that same is an approved layout plan by the JDA nor such layout plan bears signatures of respective authorities of JDA and the Members, who convened the BPC meeting dated 19.06.1985. At the most, such layout plan may be considered as a proposed plan by the cooperative society for seeking its (Downloaded on 06/11/2024 at 10:09:09 PM) [2024:RJ-JP:45306] (23 of 61) [CW-984/2023] approval in the BPC meeting but cannot be held as an approved layout plan of the scheme by JDA.
13. This Court further finds that during course of the consideration of such proposed layout plan of Nemi Nagar Vistar Scheme, but before its approval, such proposed layout was dropped and turned down by the JDA and the decision of cancellation of such proposed layout plan was informed by the Secretary of JDA to the Secretary of cooperative society vide letter dated 17.06.1992. The issuance of letter dated 17.06.1992 by the JDA is an undisputed fact. For ready reference, the letter dated 17.06.1992 is being reproduced hereunder:
"Øekad%,Q&3¼33½¼19½tfoizk@,y-lh-#@85@Mh& lfpo] rksi[kkuk ns'k x`g fuekZ.k lgdkjh lfefr fy0] t;iqjA fo"k;%& lfefr }kjk xzke chM+ [kkrhiqjk ds [k-ua- 134 ij izLrqr ;kstuk useh uxj foLrkj ds ekufp= vuqeksnu ckcrA mijksDr fo"k;kUrxZr ys[k gS fd [k-ua- 134 xzke chM+ [kkrhiqjk izkf/kdj.k dh vkokfIr/khu gS rFkk izkf/kdj.k dh fp=dwV vkoklh; ;kstuk esa lfEefyr gSA vki }kjk izkf/kdj.k esa izLrqr ;kstuk [k-ua- 134 xzke chM+ [kkrhiqjk ij izLrkfor gS vr% vkidh mDr ;kstuk usehuxj foLrkj ds ekufp= vuqeksnu ds izLrkoksa dks vkokfIr/khu Hkwfe ij gksus ds dkj.k fujLr fd;k tkrk gSA lfpo (Downloaded on 06/11/2024 at 10:09:09 PM) [2024:RJ-JP:45306] (24 of 61) [CW-984/2023] fnukad Øekad%,Q&3¼33½¼19½tfoizk@,y-lh-#@85@Mh izfrfyfi& vfrfjDr dyDVj ¼d`f"k Hkwfe :ikUrj.k t;iqj½ dks Hkstdj ys[k gS fd [k-ua- 134 xzke chM+ [kkrhiqjk izkf/kdj.k dh vkokfIr/khu gS vr% bl Hkwfe ij fdlh Hkh lgdkjh lfefr ;k vU; }kjk vkids ;gka izLrqr :ikUrj.k ds izLrkoksa dks fujLr dj voxr djkosaA lfpo"
14. Thus, it stands clear that the proposed layout plan dated 19.06.1985 of society was not approved, but cancelled by the JDA. The contention of learned senior counsel for petitioner- Vikas Samiti is that the first layout plan of the scheme dated 19.06.1985 was erroneously cancelled by JDA, on the premise that the land of scheme has fallen under the acquisition whereas this fact was found incorrect. Therefore, the contention of counsel for petitioner is that the cancellation of layout plan vide letter dated 17.06.1992 is meaningless and Letter dated 17.06.1992 virtually has rendered non-est and was issued without authority of law, hence, the submission is that the first layout plan dated 19.06.1985 be treated as revived. But, in the opinion of this Court, such contention of counsel for petitioner, cannot be accepted for the simple reason that firstly it is a clear case of JDA that layout plan of scheme, considered in the BPC meeting dated 19.06.1985 has already been cancelled and secondly it has never been the case of petitioner before the Tribunal.
(Downloaded on 06/11/2024 at 10:09:09 PM) [2024:RJ-JP:45306] (25 of 61) [CW-984/2023] In addition, as has already been observed hereinabove that the layout plan dated 19.06.1985 is not an approved layout plan by JDA, but same was merely a proposal of the society and such proposed layout plan had been cancelled and turned down by the JDA. The decision of JDA to turn down such proposed layout plan as indicated in the letter dated 17.06.1992, extracted hereinabove, was never put to challenge either by petitioner-Vikas Samiti or by the cooperative society at any point of time. Therefore, the plea of treating the letter dated 17.06.1992 of JDA as non-est and revival of the layout plan dated 17.06.1995, is absolutely deemed baseless and preposterous, which has been raised just as a fluke in the air. Thus, such plea is wholly devoid of substance, hence, is hereby outrightly rejected.
15. It appears from the record that Nemi Nagar Vistar Scheme was developed by the cooperative society on the land of Khasra No.124/3, 127/3, 134/1, 141, 143/1 and 143/2 at village Khatipura, Tehsil Jaipur over the land of total 46 bigha 6 biswa situated towards eastern side of 200 ft. Bye-Pass Road. It has already been held and observed hereinabove that the first layout plan of the scheme proposed by cooperative society, although was considered in the BPC- Layout plan meeting dated 19.06.1985 but was not approved and before its approval, same has been cancelled and turned down by the JDA vide letter dated 17.06.1992. Otherwise (Downloaded on 06/11/2024 at 10:09:09 PM) [2024:RJ-JP:45306] (26 of 61) [CW-984/2023] also as per the old scheme, even after approval of the layout plan of scheme by the JDA, same was subject to conversion of the land use by the competent authority of State Government and for this purpose the technically approved plan was required to be sent to the Additional Collector (Agricultural Land Conversion Officer), to the Collectorate Office. Thus, firstly the layout plan was not approved in the BPC meeting dated 19.06.1985 and even if presumed to be technically approved, as alleged by the petitioner-Vikas Samiti, same was not sent for conversion of land use by the competent authority. Therefore, it can safely be held and observed that the JDA did not approve and recognized the layout plan of Nemi Nagar Vistar Scheme on 19.06.1985 at any point of time and more over such proposed layout plan had been cancelled and turned down by the JDA vide letter dated 17.06.1992, which had attained finality. In this view, the prayer of petitioner to revive and restore the layout plan of 1985 and to act upon the same, for the purpose of declaring the land in question as facility area for the Nemi Nagar Vistar Scheme is devoid of substance and is hereby rejected.
16. It is noteworthy and factually undisputed fact that the cooperative society again submitted layout plan of Nemi Nagar Vistar Scheme by adding certain additional lands for approval by the JDA. In the meanwhile, new scheme for grant (Downloaded on 06/11/2024 at 10:09:09 PM) [2024:RJ-JP:45306] (27 of 61) [CW-984/2023] of approval, in form of insertion of Section 90-B in the Rajasthan Land Revenue Act, 1956 r/w Section 102-A of Rajasthan Land Revenue Act, 1956 (for short, "the Act of 1956") and 54-B of the JDA Act, have come in force, therefore, the JDA undertook the proceedings under Section 90-B and the new layout plan of scheme of Nemi Nagar Vistar was placed for approval before the BPC-LP meeting of JDA.
17. In the BPC-LP meetings dated 17.01.2008 and 23.04.2008, the new and amended layout plan of scheme was considered for approval and in view of the circular of the State Government dated 06.09.2007, the scheme was approved in ratio of 70:30. The minutes of meetings dated 17.01.2008 and 23.04.2008 are available on record and from perusal of minutes of meeting dated 23.04.2008, in agenda item No.19, it appears that the petitioner Vikas Samiti actively participated in the process of approval of scheme and on its prayer the width of roads were widened from 30 ft. to 40 ft. in order to maintain the ratio of 70:30 so as to ensure the approval of scheme.
18. It is worthy to note that the land in question was not shown as facility in the scheme but six plots in question have been shown to be carved out on such land, which were approved by JDA while approving the layout plan in meeting dated 23.04.2008. Thus, it is an established fact on record that the Nemi Nagar Vistar Scheme was approved by the JDA (Downloaded on 06/11/2024 at 10:09:09 PM) [2024:RJ-JP:45306] (28 of 61) [CW-984/2023] in BPC-LP meetings dated 17.01.2008 and 23.04.2008 and the approved layout plan of scheme clearly shows the existence and approval of six plots No. 18-A, 18-B, 19, 30, 30-A & 30-B, over the land in question as much as the land in question was neither shown as facility nor was reserved for facility of the scheme.
19. Petitioner-society has questioned the approved layout plan of Nemi Nagar Vistar Scheme dated 23.04.2008 and it has been pointed out that in the first layout plan of the cooperative society, land in question was kept reserved for facility of scheme and plot No.19,20,29 and 30 carved out on such area were crossed. The attention of Court has been invited to the letter dated 01.06.1985 issued by the Assistant Town Planner (Ann.52) to urge that these plots No.19,20,29, 30 were reserved for facilities and not recommended for conversion. The attention of Court has also been invited to the note-sheet dated 08.01.2008 (Ann.11) available on record of JDA. The note-sheets Nos.400, 401, 402, 403, 425 and 426 have also been placed on record as Annexure-AA2 with the additional affidavit dated 23.10.2024.
Note-sheet dated 08.01.2008, already enclosed with the writ petition as Annx.11 has again been filed with additional affidavit as Annx.A-5. Perusal of such note-sheets/ order- sheets of the JDA record goes to show that as far as first layout plan considered in BPC meeting dated 19.06.1985 had (Downloaded on 06/11/2024 at 10:09:09 PM) [2024:RJ-JP:45306] (29 of 61) [CW-984/2023] been treated as cancelled throughout and although thereafter from the side of petitioner-Vikas Samiti demand was put forth to keep the area of land in question reserved for facility but same was rejected by JDA and new layout plan of the scheme submitted by the society with additionally carved out new plots to adjust the other members of society in the scheme was approved after consultation from the Joint Registrar (Cooperative) including the approval of six plots in question bearing Plot Nos.18-A, 18-B, 19, 30, 30-A and 30-B. It has also transpired from the perusal of the note-sheets that not only the six plots in question but in total 54 plots were additionally carved out by the society to adjust its members in the scheme of new layout plan since for few of the members to whom shops were allotted, same were not approved and for others, due to widening the width of road, size of their plots was squeezed. It is also apparent from the record that the petitioner society was well aware about the approval of the new layout plan of Nemi Nagar Vistar Scheme in the year 2008 by the JDA wherein existence of six plots in question in the scheme also approved by the JDA and thereafter camp was also organized in the colony to regularize the other plots in the Nemi Nagar Vistar Scheme in accordance with the approved layout plan dated 23.04.2008.
20. It appears from the record that the petitioner-society, despite having knowledge about the approved layout plan (Downloaded on 06/11/2024 at 10:09:09 PM) [2024:RJ-JP:45306] (30 of 61) [CW-984/2023] dated 23.04.2008 with 54 additional plots including six plots in question in the scheme and organization of camp to regularize the plot in accordance with such layout plan of Nemi Nagar Vistar Scheme, did not opt to challenge the approved layout plan dated 23.04.2008, more particularly in respect of approval of the six plots in question over the area of land in question which was claimed by the petitioner-Vikas Samiti as an area for facility of the scheme.
21. It appears that in the aforesaid layout plan, the other facility area at two different places were left out in the scheme and this fact was admitted by the petitioner-Vikas Samiti as well in the complaint made by the Samiti. From record, it is an admitted case of Samiti that the petitioner- Vikas Samiti made a written complaint dated 06.10.2008 to the Commissioner, JDA and then another complaint dated 21.02.2009 to the State Government (Annx. 9 and 10) stating inter alia that on 10th and 11th July, 2008, a regularization camp of the Nemi Nagar Vistar Scheme was organized wherein on the land in question, plots have been approved whereas the land in question is being used as 'Park' by the members of petitioner-Vikas Samiti since long and it was prayed in the complaint that the plots carved out and approved by the JDA in such land in question of facility be cancelled and the land be developed as a 'Park'. Perusal of the complaint dated 06.10.2008 also reveals that there is an (Downloaded on 06/11/2024 at 10:09:09 PM) [2024:RJ-JP:45306] (31 of 61) [CW-984/2023] admission of petitioner-society that the roads in the scheme have been widened from 30 ft. to 40 ft.
22. It is also an admitted fact that thereafter, the petitioner- society filed one Reference Petition No.271/2009 on 13.08.2009 before the JDA Tribunal making out a case that the cause of action to file the reference petition accrued on 09.08.2009 when few persons intended to encroach upon the facility area of the scheme. In such reference petition, petitioner-Vikas Samiti relied upon the note-sheets of JDA dated 01.08.2008 and other note-sheets which have been relied upon and referred before this Court and also placed reliance on the letter dated 01.06.1985 issued by the Assistant Town Planner, JDA, Jaipur. Petitioner-Vikas Samiti in the reference petition sought to establish the fact that the area of land in question is a facility area of the scheme and since same is being used as 'Park' by the members of petitioner-Vikas Samiti, JDA and Cooperative Society be restrained not to interfere in the use and occupation of the facility area.
The case put forth by the petitioner-Vikas Samiti in the reference petition was contested and repelled by the JDA as also by the Cooperative Society. JDA Tribunal, finally vide judgment dated 24.08.2009 dismissed the reference petition taking note of the fact that at two other places in the scheme facility area have been left out and as far as case of (Downloaded on 06/11/2024 at 10:09:09 PM) [2024:RJ-JP:45306] (32 of 61) [CW-984/2023] petitioner-Vikas Samiti to claim the area of six plots in question as facility area is not maintainable in view of the fact that there is clear admission of petitioner-Vikas Samiti that over such area, six plots have been approved by the JDA in its layout plan dated 23.04.2008 and the approved layout plan was not put to challenge by the petitioner- Vikas Samiti. The occurrence of cause of action against the JDA as pleaded by the petitioner-Vikas Samiti in the reference petition, was also found fake. A perusal of the judgment dated 24.08.2009 clearly shows that the Tribunal had also considered and discussed the letter dated 01.06.1985 written by the Assistant Town Planner, JDA as also of the other relevant note-sheets of JDA, which were referred and relied upon by the petitioner-Vikas Samiti. In the reference petition, the petitioner-Vikas Samiti miserably failed to establish its case to show the land in question is reserved as facility for the scheme and the resort of such letter dated 01.06.1985 and note-sheets on the file of JDA could not succeed and finally his case was rejected by the JDA Tribunal on merits as well, while holding the reference petition as not maintainable, mainly due to approval of the layout plan of the scheme in BPC-LP meetings dated 17.01.2008 and 23.04.2008 which was not under challenge. This Court finds that there is clear fact finding of the JDA Tribunal in the judgment dated 24.08.2009 that petitioner-Vikas Samiti is well acquainted (Downloaded on 06/11/2024 at 10:09:09 PM) [2024:RJ-JP:45306] (33 of 61) [CW-984/2023] with approval of the layout plan of scheme by JDA in BPC meeting dated 23.04.2008, however, the approved layout plan was not challenged by filing an appeal and in that view, the reference petition was dismissed as not maintainable. In the opinion of this Court, further challenge to the approved layout plan dated 23.04.2008 by the petitioner-Vikas Samiti is ex-facie barred by virtue of provision of Order 2 Rule 2 CPC.
It is an admitted case of petitioner-Vikas Samiti that the judgment dated 24.08.2009 passed by the JDA Tribunal, dismissing reference petition of the petitioner-Vikas Samiti was not further challenged by the petitioner-Vikas Samiti and the fact findings recorded in the judgment dated 24.08.2009 has attained finality. In this view, this Court is of the considered opinion that the reliance placed by the petitioner- Vikas Samiti on the letter dated 01.06.1985 of the Assistant Town Planner and the note-sheets of the JDA record, referred hereinabove do not render any support to the case of petitioner-Vikas Samiti to prove that the land in question was kept reserve for facility- Park in the Nemi Nagar Vistar Scheme and in view of the fact findings on such documents, recorded by the JDA Tribunal in the judgment dated 24.08.2009, which have attained finality, again placing reliance on same documents before this Court in the instant (Downloaded on 06/11/2024 at 10:09:09 PM) [2024:RJ-JP:45306] (34 of 61) [CW-984/2023] writ petition is wholly misplaced and fruitless exercise on the part of the petitioner-Vikas Samiti.
23. Thereafter, the petitioner-Vikas Samiti invoked the writ jurisdiction of High Court under Article 226 of the Constitution of India by filing D.B. Civil Writ (PIL) Petition No.12990/2011 seeking to quash the sanction of layout plan dated 23.04.2008 particularly to the extent of carving out plots in question in the area, for which the petitioner-Vikas Samiti put forth its claim to left that area as facility for the scheme. Undeniably, such PIL petition was not pressed by the petitioner-Vikas Samiti, hence, the challenge to the approved layout plan dated 23.04.2008 in the PIL petition was voluntarily withdrawn by the petitioner-Vikas Samiti. The prayer made in the PIL petition has already been extracted hereinabove and the order of permitting withdrawal of PIL petition dated 07.02.2020 is also available on record as Annexure-19. In this way, the petitioner-Vikas Samiti is bound by the principle of estoppel as well to again question the approved layout plan of the scheme dated 23.04.2008 in the instant writ petition.
24. It is undoubtedly true that while withdrawing the PIL petition, the petitioner-Vikas Samiti prayed for and was granted liberty to assail the subsequent order of JDA passed in 227th BPC-LP meeting dated 10.04.2015, by way of filing appeal thereagainst before the JDA Tribunal, but as far as the (Downloaded on 06/11/2024 at 10:09:09 PM) [2024:RJ-JP:45306] (35 of 61) [CW-984/2023] issue in respect of questioning the layout plan dated 23.04.2008 is concerned, same was put at rest as neither any liberty to challenge such layout plan dated 23.04.2008 was made nor was given nor in the appeal filed by the petitioner- Vikas Samiti before the JDA Tribunal against the order of BPC-LP dated 10.04.2015, the approved layout plan of the scheme dated 23.04.2008 was under challenge. In that view also, questing of the layout plan dated 23.04.2008 in the instant writ petition in contrary to facts and law. The instant writ petition has arisen out of the appeal filed by the petitioner-Vikas Samiti before the JDA Tribunal, which has been dismissed by the judgment dated 29.11.2022.
25. Petitioner-Vikas Samiti by way of filing additional affidavit dated 23.10.2024 has sought to make out a case before this Court that the land in question, on the spot, is still being used as 'Park' by the members of petitioner-Vikas Samiti and few photographs have also been placed on record to buttress such plea. This Court, in this context, does not want to enter in such factual area about actual use and occupation of the land in question because firstly, same would certainly lead to a disputed question of facts, which cannot be adjudicated in the writ jurisdiction relying upon the photographs and secondly, indisputably, lease deeds have already been issued and registered by the JDA in favour of the private respondents with regard to the lands in question, (Downloaded on 06/11/2024 at 10:09:09 PM) [2024:RJ-JP:45306] (36 of 61) [CW-984/2023] therefore, the ownership and possession of the lands in question rest and vest with the private respondents. The clinching issue as to whether the land in question was earmarked and reserved by the JDA as facility-Park for the Nemi Nagar Vistar Scheme and the JDA has approved the six plots over the land in question of facility area, is to be adjudicated on the basis of propriety rights of the parties, over the lands in question, instead of the present use of the land in question which is indisputably in form of an open piece of land. Therefore, this Court finds that merely by placing few photographs and by raising a plea of current use of the land in question as 'Park' does not render any support to the case of petitioner-Vikas Samiti on merits.
26. As far as case of petitioner-Vikas Samiti to rely upon the decision dated 13.02.2015, taken in 225 th BPC-LP meeting of JDA is concerned, to claim that the JDA itself had decided to develop the land in question as 'Park', it is noteworthy that such decision has already been revoked by the JDA itself in its 227th BPC-LP meeting dated 10.04.2015. Thus, as on date, the decision of BPC-LP meeting dated 13.02.2015 is neither in existence nor it is case of petitioner-Vikas Samiti that same had been acted upon or implemented, before its revocation vide order dated 10.04.2015. This Court deems it just and proper to reproduce hereunder the minutes of BPC-LP meetings 225th, 226th and 227th hereunder:- (Downloaded on 06/11/2024 at 10:09:09 PM)
[2024:RJ-JP:45306] (37 of 61) [CW-984/2023] ",ts.Mk la[;k&2 ¼tksu&07½ 225@13-02-2015 fo"k;%& rksi[kkuk ns'k x`g fuekZ.kZ lgdkjh lfefr dh ;kstuk useh uxj foLrkj ds vuqeksfnr ekufp= esa Hkw[k.M la[;k 18] 18&,] 18&ch o 30] 30&, o 30&ch dh fLFkfr ij ekSds vuqlkj lqfo/kk {ks= l`ftr fd;s tkus ds lEcU/k esaA lfefr }kjk fopkj foe'kZ dj fu.kZ; fy;k x;k fd izdj.k esa ekuuh; mPp U;k;ky; esa fopkjk/khu okn ds ifjis{k esa funs'k ¼fo/kh½ ls ekxZn'kZu izkIr dj leqfpr fof/kd izfØ;k viukbZ tkosA tksu ds izLrkokuqlkj Hkw[k.M/kkjh;ksa dk ekSds ij dCtk ugha gS o ;kstuk dh lnL;rk lwph esa uke Hkh ugha gS rFkk bl ;kstuk vU;= ikdZ gsrq Hkwfe ugha gS] vr,o bl LFkku ij mijksDrkuqlkj fof/kd izfØ;k viukrs gq, ikdZ l`ftr dj fn;k tkosA ,ts.Mk la[;k&1 226@10-03-2015 fo"k;%&chihlh ¼,yih½ dh 225 oha cSBd fnukjad 13-02- 2015 dks lEiUu gqbZ cSBd ds dk;Zokgh fooj.k dh iqf"V gsrqA vfrfjDr ,tsUMk la[;k 15 ¼tksu&8½ ds dze la[;k&2 okLrq uxj Qst&v ds lqfo/kk {ks= dk mi;ksx End Use izkbZejh Ldwy ,oa dze la[;k 4 f=iqjk uxj ds lqfo/kk {ks= dk mi;ksx End Use fMLisaljh mik;qDr tksu 8 ds izLrkokuqlkj dk;Zokgh fooj.k esa vafdr u gksdj vU; rjhds ls gks x;k Fkk] ftls Bhd djus rFkk ,tsUMk la[;k 2 esa mik;qDr tksu&7 ds izLrkokuqlkj useh uxj foLrkj ds Hkw[k.M la[;k 18 ds LFkku ij 19 i<+k tkus ds lkFk dk;Zokgh fooj.k dh iqf"V dh xbZA ,ts.Mk la[;k&5 ¼tksu&07½ 227@10-04-2015 fo"k;%& rksi[kkuk x`-fu-l-l- dh ;kstuk useh uxj foLrkj ds Hkw-la- 18&,] 18&ch] 19 o 30] 30&, o 30&ch ds chihlh ,yih dh 225oha cSBd esa fy;s x;s fu.kZ; ds djus lEcU/k esaA (Downloaded on 06/11/2024 at 10:09:10 PM) [2024:RJ-JP:45306] (38 of 61) [CW-984/2023] lfefr }kjk fopkj foe'kZ dj fu.kZ; fy;k x;k fd iwoZ esa chihlh ¼,y-ih-½ dh cSBd fnukad 13-02-2015 esa Hkw[k.M la[;k 18,] 18ch] 19 o 30] 30, o 30ch dks =qfVo'k ikdZ j[ks tkus dk fu.kZ; fy;k x;k Fkk] tcfd QkbZuy vuqeksfnr ekufp= esa ;s Hkw[k.M vuqeksfnr gSA vr,o bu Hkw[k.Mksa dks iwoZ esa QkbZuy vuqeksfnr Iyku ds vuqlkj ;Fkkor j[ks tkus dk fu.kZ; fy;k x;kA"
27. The cumulative and simultaneous perusal of the minutes of BPC meetings dated 13.02.2015, 10.03.2015 and 10.04.2015, referred hereinabove re-affirms the fact that the existence of six plots in question bearing plot Nos.18A, 18B, 19, 30, 30A and 30B over the land in question had been approved by the JDA while granting approval to the layout plan of Nemi Nagar Vistar Scheme in its BPC meeting dated 23.04.2008. In the decision dated 13.02.2015, no authentic document was relied upon by the committee for taking a decision to develop the land in question as facility-Park by the JDA. Indisputably, in the approved layout plan of scheme dated 23.04.2008, land in question was not reserved for facility of 'Park'. The layout plan dated 23.04.2008 was not cancelled/ modified in the BPC meeting dated 13.02.2015. In the decision dated 13.02.2015, to develop the land in question as 'Park', there is no whisper of cancellation/ modification of the approved layout plan of the scheme dated 23.04.2008, wherein over the land in question, existence of six plots was approved. In the next BPC-LP meeting dated (Downloaded on 06/11/2024 at 10:09:10 PM) [2024:RJ-JP:45306] (39 of 61) [CW-984/2023] 10.04.2015, the decision dated 13.02.2015 was observed to be taken on erroneous premise and pretext and therefore, the same was recalled/ revoked forthwith in the 227 th BPC meeting dated 10.04.2015. In the 226 th BPC meeting dated 10.03.2015, the error indicating in plot No.18 instead of plot No.19 was rectified. The decision dated 13.02.2015 is not based on the appreciation of any documents and in the light of approved layout plan dated 23.04.2008, by the JDA, this decision certainly was erroneous and non-implementable. The JDA Tribunal has correctly observed in the judgment impugned that when the petitioner-Vikas Samiti miserably failed to show that the land in question was kept reserved for facility of Park in the Nemi Nagar Vistar Scheme, merely on the basis of decision dated 13.02.2015, such land cannot be declared to be a facility for 'Park' more so, when such decision itself has been revoked by the JDA within a period of two months. It is not the case of petitioner-Vikas Samiti that the decision dated 13.02.2015 had been acted upon or implemented. The decision of BPC meeting dated 10.04.2015 is based on the approved layout plan of the scheme dated 23.04.2008, therefore, the JDA Tribunal has not committed any perversity in affirming such decision/ order dated 10.04.2015.
28. As far as opportunity of hearing is concerned, the decision dated 13.02.2015 does not show to provide any (Downloaded on 06/11/2024 at 10:09:10 PM) [2024:RJ-JP:45306] (40 of 61) [CW-984/2023] opportunity of hearing either to the petitioner-Vikas Samiti or to the plot holders of six plots in question, hence, while revoking such decision on 10.04.2015 on the ground that the decision was taken on erroneous pretext and premise, no opportunity was required to be given to the petitioner-Vikas Samiti. Nevertheless, the opportunity of hearing to the petitioner-Vikas Samiti has been given by the JDA Tribunal and after appreciating all its contentions and submissions, to challenge the order dated 10.04.2015, appeal of Vikas Samiti has been dismissed on merits. For ready reference, it would apposite to reproduce hereunder the relevant portion of the judgment passed by the JDA Tribunal:-
"11- vihykFkhZ i{k dh ,d eq[; vkifÙk ;g gh gS fd fnukad 13-02-15 dh chihlh dh cSBd esa bu Hkw[k.Mksa dks fjä gksus ds vk/kkj iqj bUgsa ikdZ l`ftr djus dk fu.kZ; fy;k x;k Fkk vkSj tksu ds izLrkokuqlkj Hkw[k.M/kkfj;ksa dk ekSds ij dCtk ugha gksuk ekurs gq, lnL;rk lwph esa uke ugha gksuk ekurs gq, bls ikdZ ds :i esa lqjf{kr djus dk fu.kZ; fy;k x;k] fdUrq fnukad 13-02-15 dh chihlh dh bl 225oha cSBd ds fu.kZ; dks fnukad 10-04-15 dh chihlh dh 227oha cSBd esa fujLr djrs gq, iwoZ esa Hkw[k.M la[;k 18,] 18ch] 19] 30] 30, ,oa 30ch dks ikdZ j[ks tkus dk fu.kZ; =qfViw.kZ j[ks tkus ,oa vfUre vuqeksfnr ;kstuk ekufp= esa bu Hkw[k.Mksa ds vuqeksfnr gksus ds vk/kkj ij bUgsa Hkw[k.Mksa ds :i esa gh ;Fkkor~ j[ks tkus dk fu.kZ; fy;k x;k gSA bl çdkj Li"V gS fd bu Hkw[k.Mksa dks iwoZ esa vuqeksfnr ;kstuk ekufp= esa Hkw[k.Mksa ds :i esa gh vuqeksfnr fd;s tkus ds vk/kkj ij chihlh dk fnukad 13-02-15 dk fu.kZ; fujLr COP] fd;k x;k gS- ,slh fLFkfr esa dsoy nks ekg rd bls lqfo/kk {ks= esa j[ks tkus dk fu.kZ; vfLrRo esa jgk Fkk] tcfd vfUre vuqeksfnr ;kstuk ekufp= ,oa orZeku esa Hkh bUgsa Hkw[k.Mksa ds :i esa gh vuqeksfnr fd;k x;k gS] ftldk foLr`r fooj.k tfoçk }kjk i=koyh esa ,oa dk;kZy; fVIif.k;ksa esa vafdr djrs gq, fy;k x;k gSA (Downloaded on 06/11/2024 at 10:09:10 PM) [2024:RJ-JP:45306] (41 of 61) [CW-984/2023] 12- tks U;k; -"VkUr vihykFkhZ i{k dh vksj ls çLrqr fd;s x;s gSa] muesa lqfo/kk {ks= dks vkoklh; ifjofrZr djus ds lEcU/k esa çkf/kdj.k dh dk;Z'kSyh dks mfpr ugha ekuk x;k gS] fdUrq tgk¡ rd bl gLrxr çdj.k dk lEcU/k gS] o"kZ 1985 dk rduhdh :i ls vuqeksfnr ;kstuk ekufp= o"kZ 1992 esa fujLr dj fn;k x;k Fkk vkSj ml le; useh uxj folrkj ;kstuk esa i`Fohjkt uxj dh vokfIr/khu Hkwfe lfEefyr ugha FkhA ckn esa o"kZ 1996 esa jktLFkku ljdkj ds vokfIr eqfä ds fu.kZ; ds i'pkr~ bls iqu% useh uxj folrkj esa lfEefyr djrs gq, ,oa [kljk uEcj 134 Hkkx dks Hkh lfEefyr djrs gq, u;s fljs ls o"kZ 2002 esa /kkjk 90ch dh dk;Zokgh ds ckn o"kZ 2008 esa bldk vfUre :i ls ;kstuk ekufp= vuqeksfnr fd;k x;k gS vkSj ml o"kZ 2008 ds vuqeksfnr ;kstuk ekufp= esa bu lHkh Ng Hkw[k.Mksa dk l`tu n'kkZ;k x;k gSA bl çdkj ;s Hkw[k.M dHkh vuqeksfnr ekurs gq, lqfo/kk {ks= ds Hkkx ugha jgs Fks vkSj ,slh dksbZ ifjfLFkfr;ka ;k fjdkMZ ugha gS] ftlds vk/kkj ij o"kZ 2008 esa vuqeksnu ds le; bu Hkw[k.Mksa dks lqfo/kk {ks= esa n'kkZus ds ckn budk fue;u fd;k x;k gksA fnukad 13-02-15 ds fu.kZ; dks nks ekg i'pkr~ gh =qfViw.kZ vk/kkj ij fy;s tkus ls fnukad 10-04-15 dks fujLr dj fn;k x;k FkkA ,slh fLFkfr esa o"kZ 2008 esa ;kstuk ekufp= ds vuqeksnu ds le; bu Ng Hkw[k.Mksa ds LFkku ij dksbZ lqfo/kk {ks= vfLrRo esa jgk gks] ,slh ifjfLFkfr;ka ;k fjdkMZ ugha gSA bl vk/kkj ij çkf/kdj.k }kjk vuf/k--r :i ls lqfo/kk {ks= dh Hkwfe dks Hkw[k.Mksa ds :i esa vkoafVr dj fn;k x;k gks] ,slh Hkh ifjfLFkfr;ka Hkh ugha gSA çR;FkhZ rksi[kkuk ns'k x`g fuekZ.k lgdkjh lfefr }kjk o"kZ 1996 esa çLrqr lnL;rk lwph esa 'ks"k çR;FkhZx.k ds bu Ng Hkw[k.M/kkfj;ksa ds uke lfEefyr fd;s x;s gSa vkSj jkT; ljdkj ds ifji= ds vk/kkj ij ;kstuk dk vfUre :i ls vuqeksnu fd;k tkdj] gh ;g fu;eu fd;k x;k gSA ;fn bu Hkw[k.Mksa ds o"kZ 2020 esa fu;eu fd;s tkus ls iwoZ bldk mi;ksx ikdZ ds :i esa fd;k tkrk jgk gks rks Hkh ftl mís'; ls ;kstuk ekufp= esa budk fu;eu o l`tu fd;k x;k gS] ogh fu;eu dk okLrfod vk/kkj gksus ls rkRdkfyd mi;ksx ds vk/kkj ij bu Hkw[k.Mksa ds yhtMhM dks fujLr ugha fd;k tk ldrk gSA 13- mijksä foospu ds vk/kkj ij vihykFkhZ i{k }kjk fnukad 10-04-15 ds Hkou ekufp= lfefr ds 227oha cSBd ds fu.kZ; dks voS/k o 'kwU; ?kksf"kr fd;s tkus ,oa bu Ng Hkw[k.Mksa dk fu;eu 227oha cSBd esa fujLr djrs gq, lqfo/kk {ks= esa j[ks tkus dk tks vuqrks"k pkgk x;k gS] og vLohdkj fd;s tkus ;ksX; gSA vkns'k %% (Downloaded on 06/11/2024 at 10:09:10 PM) [2024:RJ-JP:45306] (42 of 61) [CW-984/2023] ifj.kkeLo:i vihykFkhZ useh uxj foLrkj fodkl lfefr }kjk çLrqr vihy çR;FkhZ tfoçk] rksi[kkuk ns'k x`g fuekZ.k lgdkjh lfefr ,oa Jherh çoh.k dqekj] jf'e :ikuh ,oa- nhid 'kekZ ds fo:) ckcr~ vikLr fd;s tkus chihlh ds vkns'k fnukad 10-04-15 ,oa Hkw[k.M la[;k 18,] 18ch] 19] 30] 30, ,oa 30ch dks lqfo/kk {ks= ?kksf"kr fd;s tkus o çR;FkhZx.k ds yhtMhM fujLr fd;s tkus ds lEcU/k esa fujLr dh tkrh gSA ;g fu.kZ; vkt fnukad 29-11-2022 dks [kqys U;k;kf/kdj.k esa fy[kk;k tkdj lquk;k ,oa gLrk{kfjr fd;k x;kA bl fu.kZ; dh izekf.kr izfr lfpo tfoizk dks vko';d dk;Zokgh gsrq izsf"kr dh tkosA"
Thus, this Court does not find any reason to set aside the decision of BPC meeting dated 10.04.2015 and to restore the decision of BPC meeting dated 13.02.2015. The reasonings assigned by the JDA Tribunal in dismissing the appeal against the decision/ order of BPC meeting dated 10.04.2015 are well within jurisdiction of the Tribunal and have been rendered after appreciation of the material available on record.
29. It is undisputed fact that the lease deeds of all six plots in question have already been issued by the JDA in favour of respondents No.4, 5 and 6 respectively and further the lease deeds have also been registered. The case of petitioner-Vikas Samiti to cancel and declare such lease deeds as null and void is solely based on strength that the land in question, on which these six plots have been carved out and approved, is a land, reserved for facility-Park for the Nemi Nagar Vistar Scheme but in view of the above discussions, it has not been (Downloaded on 06/11/2024 at 10:09:10 PM) [2024:RJ-JP:45306] (43 of 61) [CW-984/2023] established by any document or other material that the land in question was ever reserved by the JDA to be used as facility of Park in the Nemi Nagar Vistar Scheme. The claim of petitioner-Vikas Samiti to allege the land in question as facility area of the Nemi Nagar Vistar Scheme is baseless and unfounded rather, can be said to be hypothetical whereas on the contrary, in the light of approval of the six plots over such land in question by the JDA while approving the layout plan of scheme on 23.04.2008 and further after issuance of the lease deeds of these plots by the JDA in favour of respondents No.4, 5 and 6 respectively, the title and possession of such plots stand vested in the respondents No.4, 5 and 6, hence, for no good reason, registered lease deeds of the six plots in question are liable to be cancelled.
30. It is hereby further observed that the ownership of six plots in question vests into the respondents No.4, 5 and 6 and since the land of plots in question is lying as open piece of land, it is the fundamental principle of law that possession follows title. Therefore, the ownership and possession of the plots in question, obviously rest and vest with the respondents No.4, 5 and 6 only and petitioner-Vikas Samiti has no concern with the land of such six plots in question.
31. In the judgment delivered by the Division Bench of Rajasthan High Court in case of Rakesh & Ors. Vs. The State of Rajasthan & Ors. (supra), relied upon by the (Downloaded on 06/11/2024 at 10:09:10 PM) [2024:RJ-JP:45306] (44 of 61) [CW-984/2023] learned senior counsel for petitioner-Vikas Samiti, the facts were entirely different. In that case in the approved plan of Kanota Bagh, the area in question over which plots were regularised by the JDA, was earmarked as children's park and the existence of such approved plan was an undisputed fact, hence, in such factual backdrop of the case, the Division Bench relied upon the theory of doctrine of public trust and held that the facility area/ children's park became the public trust property and the State had no jurisdiction to convert the property of public trust into private residential plot, whereas, the factual matrix of the present case in hand is entirely different as the petitioner-Vikas Samiti has not been able to establish that the land in question, over which the existence of six plots in question has been approved by the JDA, was kept reserved as facility area for park of the Nemi Nagar Vistar Scheme. Therefore, the ratio decidendi of the judgment delivered in D.B. Civil Writ (PIL) Petition No.13084/2009 does not render any support to the case of petitioner-Vikas Samiti for cancellation of the lease deeds, issued by the JDA in favour of private respondents in respect of the six plots in question.
32. In case of Machavarapu Srinivasa Rao (supra), relied upon by the learned senior counsel for petitioner-Vikas Samiti, the Hon'ble Supreme Court held that "once the State Government approves the master plan or the zonal (Downloaded on 06/11/2024 at 10:09:10 PM) [2024:RJ-JP:45306] (45 of 61) [CW-984/2023] development plan, no one can change or alter the plan and allot land for any other purpose than the one specified in the approved plan". In that case, the land area earmarked for park in the development plan, a permission was granted to construct the temple, whereas, the land was not allotted for construction of temple. Hence, the permission to construct the temple was quashed. Such judgment has no application to the facts of the present case.
33. In case of Dr. G.N. Khajuria (supra), the part of a land which was reserved for park in the layout plan for residential colony, was allotted by the Officer of Delhi Development Authority (DDA) to construct for school. Such allotment was held to be unauthorised and was cancelled. In the case at hand, land in question has not been proved to be reserved for park/facility for the Nemi Nagar Vistar Colony.
34. In case of Banglore Medical Trust (supra), it was a public interest litigation and the conversion of a public park into private nursing home by the State Government was held illegal. On facts, the judgment does not render any support to the case of petitioner-Vikas Samiti.
35. Similar was the factual matrix in the case of Perala Jyotsna (supra), before the High Court of Andhra Pradesh, where the issue under challenge was conversion of the land for public use, which was earmarked for school, temple, community hall and park into house sites, which was declared (Downloaded on 06/11/2024 at 10:09:10 PM) [2024:RJ-JP:45306] (46 of 61) [CW-984/2023] illegal. In case of Sri Balaji Park Residents Welfare Association (supra), the action of Visakhapatnam Urban Development Authority, dividing the vacant land into plots and selling the same by public auction, without leaving space for public purpose, was held illegal and against the public policy. Both judgments were rendered in different factual context, whereas the factual matrix of the case at hand travels in different context, hence, both judgments of Andhra Pradesh High Court are not applicable to the present case.
36. It is matter of record that the instant writ petition has been directed against the judgment dated 29.11.2022 passed by the JDA Tribunal dismissing the appeal filed by the petitioner-Vikas Samiti against the decision/ order dated 10.04.2015 of the BPC-LP meeting of JDA. The appeal was filed within scope and jurisdiction of Section 83 of the JDA Act, 1982 (for short "the Act of 1982"). As per the provision of Section 83 of the Act of 1982, the decision of the Tribunal is final and not amenable to be challenged by way of appeal or revision. Nevertheless, petitioner-Vikas Samiti has challenged the judgment before this Court under Article 227 of the Constitution of India. With regard to the scope of Article 227 of the Constitution of India, the counsel for the respondents has referred catena of judgments of the Hon'ble Supreme Court which more or less subscribe the same proposition of law. Therefore, it is suffice to refer and (Downloaded on 06/11/2024 at 10:09:10 PM) [2024:RJ-JP:45306] (47 of 61) [CW-984/2023] reproduce the portion of judgment delivered by the Constitutional Bench of the Hon'ble Supreme Court in case of Nagendra Nath Bora and Anr. Vs. Commissioner of Hills Division and Appeals, Assam and Ors: [AIR 1958 SC 398] and more particularly, para No.30 of the judgment, which reads as under:-
"30. A Constitution Bench of this Court examined the scope of Art. 227 of the Constitution in the case of Waryam Singh v. Amarnath, 1954 SCR 565: (AIR 1954 SC 215) (P). This court, in the course of its judgment, made the following observations at p. 571 (of SCR): (at p. 217 of AIR):
"This power of superintendence conferred by article 227 is, as pointed out by Harries, C. J., in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee, AIR 1951 Cal 193 (Q), to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors."
It is, thus, clear that the powers of judicial interference under Art. 227 of the Constitution with orders of judicial or quasi-iudicial nature, are not greater than the powers under Art. 226 of the Constitution, Under Art. 226, the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Art. 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority. Hence, interference by the High Court, in these cases either under Art. 226 or 227 of the Constitution, was not justified.
(Downloaded on 06/11/2024 at 10:09:10 PM) [2024:RJ-JP:45306] (48 of 61) [CW-984/2023]
37. In view of above discussions, all the points framed by this Court for consideration in the instant writ petition from point Nos.(i), (ii), (iii), (iv) and (v), mentioned in para 10 are answered in negative and against the petitioner-Vikas Samiti. The judgment impugned dated 29.11.2022 has not been found to be suffered from any perversity in the fact findings and the JDA Tribunal has passed the judgment well within its jurisdiction, hence, the judgment does not warrant any interference by this Court.
38. As a final result, Writ Petition No.984/2023 fails and same is hereby dismissed. Stay application and other pending application(s), if any, also stand disposed of. S.B. Civil Writ Petition No.9695/2023
39. This writ petition arises out of a civil suit for mandatory and prohibitory injunction filed by respondent No.2-Smt. Praveena Kumar against the petitioner-Vikas Samiti and the S.H.O of concerned Police Station-Vaishali Nagar, Jaipur, along with an application for temporary injunction. In the civil suit, respondent No.2 claimed her ownership and possession over the plot No.18-A situated in Nemi Nagar Vistar Colony, Vaishali Nagar, Jaipur, relying upon the lease deed dated 14.02.2020, registered on 25.02.2020 issued by JDA in her favour and claimed injunction against the petitioner-Vikas Samiti and the S.H.O of concerned Police Station, not to interrupt in peaceful use and occupation of her plot, on (Downloaded on 06/11/2024 at 10:09:10 PM) [2024:RJ-JP:45306] (49 of 61) [CW-984/2023] pretext of claiming her plot to be a part of facility of the colony.
40. In the present civil suit, while deciding the application for temporary injunction filed by the respondent No.2 under Order 39 Rule 1 and 2 CPC, the Court of Civil Judge and Metropolitan Magistrate No. 3, Jaipur Metropolitan II, vide order dated 09.05.2022, rejected the prayer of temporary injunction, but on filing civil miscellaneous appeal thereagainst by respondent No.2-plaintiff, the Court of Additional District Judge No. 2, Jaipur Metropolitan II, vide judgment dated 29.05.2023, has held and observed that the trial Court committed jurisdictional error in exercising its discretionary and equitable jurisdiction and has also committed perversity in rejecting the prayer for temporary injunction. Finally, the Appellate Court has set aside the order dated 09.05.2022 and granted temporary injunction in favour of respondent No.2, restraining the petitioner-Vikas Samiti and the S.H.O of concerned Police Station-Vaishali Nagar, Jaipur, from not interrupting or creating hindrance in use, occupation and development of plot No.18-A by the respondent No.2. The injunction order dated 29.05.2023 has already been reproduced in para No.3 of the writ petition. That injunction order has been put to challenge by petitioner- Vikas Samiti in the instant writ petition.
(Downloaded on 06/11/2024 at 10:09:10 PM) [2024:RJ-JP:45306] (50 of 61) [CW-984/2023]
41. Learned Senior Counsel for petitioner-Vikas Samiti has argued that the Appellate Court has exceeded its jurisdiction in interfering with the order dated 09.05.2022, since the trial Court in its discretionary jurisdiction has rightly rejected the application for temporary injunction and the order was not required to be interfered with by the Appellate Court. It has been argued that the Appellate Court while deciding the application for temporary injunction has virtually decided the rights of parties on merits, which are to be adjudicated in the main suit, hence, it has been prayed that the injunction order dated 29.05.2023 passed by the Appellate Court be quashed and set aside and the order dated 09.05.2022 passed by the trial Court, dismissing the application for temporary injunction, be affirmed.
42. Counsel appearing on behalf of respondent No.2 has vehemently opposed the writ petition and argued that the Appellate Court in the judgment dated 29.05.2023, has assigned reasons to interfere with the order of trial Court dated 09.05.2022 and concerning the reasons assigned by the Appellate Court, the order impugned may not be held to be suffered from jurisdictional error. It has been argued that the Appellate Court may set aside the order of trial Court, if finds that the trial Court has not appreciated the facts correctly and has also not applied the proposition of law in right perspective, rather has committed manifest illegality (Downloaded on 06/11/2024 at 10:09:10 PM) [2024:RJ-JP:45306] (51 of 61) [CW-984/2023] and jurisdictional error while deciding the application for temporary injunction. Since the Appellate Court found the order dated 09.05.2022 palpably wrong, therefore, the Appellate Court has not exceeded from its jurisdiction to set aside the same and has issued order of temporary injunction, which is just and proper. It has been argued that in order to examine prima-facie case, preliminary analysis of documents and evidence on record to determine rights of parties and to look into the equity to maintain balance of interest of parties as also to consider irreparable loss is permissible in law, hence, it may not be said that the findings recorded by the Appellate Court are without jurisdiction or would pre-judice main case of either party on merits before the trial Court, therefore, the order impugned does not require any interference by the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India and writ petition is liable to be dismissed.
43. Having pondered over the rival contentions of counsel for both parties and from perusal of the record, this Court finds that the civil suit seeking mandatory and prohibitory injunction in respect of plot No.18-A in the Nemi Nagar Vistar Colony, Vaishali Nagar, Jaipur, was filed by respondent No.2 along with an application for temporary injunction on 22.03.2022. The plaintiff claimed her ownership and possession over the plot in question and apart from relying (Downloaded on 06/11/2024 at 10:09:10 PM) [2024:RJ-JP:45306] (52 of 61) [CW-984/2023] the other documents, mainly relied upon the lease deed dated 14.02.2020 issued by the JDA for this plot in her favour. This lease deed has later on been registered by the JDA on 25.02.2020.
44. The petitioner-Vikas Samiti, although has not denied the issuance of lease deed of the plot in question by the JDA in favour of respondent No.2-plaintiff, nevertheless claimed that the plot No.18-A is part of facility area of the colony. It was pointed out by the Vikas Samiti that the JDA in its BPC-LP meeting dated 13.02.2015 has taken a decision to develop the area in question as park and in that decision, it was clearly observed that the possession of plot No.18-A has not been delivered to the plot holder. It was also pointed out by the Vikas Samiti that later on the decision dated 13.02.2015 has been withdrawn by the JDA in its BPC-LP meeting dated 10.04.2015, for no good reasons and thereagainst, Vikas Samiti has filed an Appeal No.139/2020, before the JDA Tribunal, which is pending under consideration. Hence, the petitioner-Vikas Samiti disputed the possession of plaintiff over the plot in question and raised a plea that the plot No.18-A is part of facility area of park of the colony.
45. No reply by and on behalf of the S.H.O of Police Station- Vaishali Nagar, was filed.
46. The trial Court, vide order dated 09.05.2022, dismissed the application for temporary injunction and recorded a (Downloaded on 06/11/2024 at 10:09:10 PM) [2024:RJ-JP:45306] (53 of 61) [CW-984/2023] finding that the plaintiff is not in possession over the plot in question and her title based on the lease deed of JDA dated 14.02.2020 is under dispute in the appeal, pending before the JDA Tribunal on behest of the Vikas Samiti.
47. On filing the civil miscellaneous appeal against the dismissal of the application for temporary injunction, the Appellate Court allowed the appeal vide order dated 29.05.2023 and has set aside the order of trial Court dated 09.05.2022 as also has issued temporary injunction in favour of respondent No.2-plaintiff and against the non-applicants- defendants.
48. The Appellate Court has observed in the order impugned dated 29.05.2023 that after dismissal of the application for temporary injunction by the trial Court vide order dated 09.05.2022, the appeal filed by Vikas Samiti, before the JDA Tribunal against the order dated 10.04.2015 whereby the decision dated 13.02.2015 was recalled, has been dismissed by the Tribunal vide judgment dated 29.11.2022. In this view, the Appellate Court observed that the finding of trial Court that the title of plaintiff over the plot in question on the basis of lease deed of JDA dated 14.02.2020 is under clouds due to pending appeal before the JDA Tribunal, stand nullified and prima-facie case for grant of temporary injunction in favour of plaintiff is made out.
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49. In respect of possession of plaintiff, it was observed by the Appellate Court that the plot in question is in form of open piece of land, whereupon no construction has been raised, hence, the fundamental principle of law that "possession follows title" comes into play and it was held that the ownership and possession of the plot in question vest in the plaintiff-appellant and therefore, prima-facie, it is established that plaintiff is entitled to use, develop and occupy the plot in question without intervention/ interruption by the Vikas Samiti with the connivance of the concerned S.H.O of Police Station-Vaishali Nagar, Jaipur.
50. It was observed by the Appellate Court that the case of Vikas Samiti to claim that the area of plot No.18-A is part of facility area has already been dismissed on merits by the JDA Tribunal, however, Vikas Samiti is at liberty to take recourse of law, to quash the lease deed of plaintiff on the basis of alleging the same to be issued on the facility area.
51. It was observed that since the plaintiff-appellant is absolute owner and possession holder of the plot in question and the Vikas Samiti has no authority or legal right to interfere in the use and occupation of the plot in question by the plaintiff, except in accordance with due course of law, therefore, an order of temporary injunction was issued in favour of plaintiff, and against the Vikas Samiti in this regard. (Downloaded on 06/11/2024 at 10:09:10 PM) [2024:RJ-JP:45306] (55 of 61) [CW-984/2023]
52. Having gone through the order dated 09.05.2022 passed by the trial Court, this Court finds that the trial Court has virtually recorded adverse findings against the plaintiff in respect of her ownership and possession over the plot in question, while dismissing the application for temporary injunction which ought not to be passed at this stage. The Appellate Court too has observed in its order dated 29.05.2023 that the trial Court has exceeded from its jurisdiction in rendering a conclusion/finding about the ownership and possession of plaintiff over the plot in question, which are not expected at this stage of civil proceedings.
53. Further, this Court finds that the factual scenario has also changed after passing the order dated 09.05.2022, since thereafter, the appeal of petitioner-Vikas Samiti, pending before the JDA Tribunal has been dismissed on merits vide judgment dated 29.11.2022, therefore, in view of such drastic change of factual matrix, the Appellate Court granted indulgence to set aside the order dated 09.05.2022.
54. Further, the trial Court travelled on the erroneous premise that the plot in question is not in possession of the plaintiff, but is in possession of the Vikas Samiti. Such conclusion of trial Court was fundamentally based on the decision dated 13.02.2015 taken by the JDA in its BPC-LP 225th meeting, to develop the area as park. In fact, such (Downloaded on 06/11/2024 at 10:09:10 PM) [2024:RJ-JP:45306] (56 of 61) [CW-984/2023] decision has been revoked by the JDA itself in its next BPC-LP 227th meeting dated 10.04.2015 with clear observation that decision dated 13.02.2015 was taken on erroneous premise and without appreciating the fact of approval of the plots situated over the land in question in the layout plan dated 23.04.2008. The order of BPC meeting dated 10.04.2024 has been affirmed by the JDA Tribunal while dismissing appeal thereagainst vide judgment dated 29.11.2022 and C.W.P. No.984/2023, filed thereagainst has also been dismissed on merits. Thus, the very basis, on which the trial Court recorded its finding of possession against the plaintiff in respect of plot in question, has gone and no more exist.
55. The trial Court also committed illegality on its face value in not considering that the land of plot No.18-A is open piece of land and it is settled proposition of law that in respect of open piece of land, the principle "possession follows title", applies. In case of Nazir Mohamed Vs. J. Kamala & Ors. [(2020) 19 SCC 57], Hon'ble Supreme Court observed that "the maxim "possession follows title" is limited in its application to property, which having regard to its nature, does not admit to actual and exclusive occupation, as in the case of open spaced accessible to all." Thus, applying such principle of law, prima-facie, plaintiff is presumed to be in possession of plot in question, being its owner. (Downloaded on 06/11/2024 at 10:09:10 PM) [2024:RJ-JP:45306] (57 of 61) [CW-984/2023]
56. Undisputedly, the lease deed of plot in question has been issued by the JDA in favour of plaintiff, therefore, title of the plot, obviously rests and vests with the plaintiff. Since the plot in question is an open piece of land, therefore, the possession of the plot in question also lies with the plaintiff, following the title, which certainly vests with the plaintiff only. The doubt created by the trial Court on legality and validity of such lease deed, on account of the pendency of appeal before the JDA Tribunal, has come to an end with dismissal of appeal and writ petition thereagainst.
57. This Court finds that the order of trial Court, for various reasons, suffers from perversity and jurisdictional error as also stands contrary to the settled proposition of law governing the grant/refusal of temporary applications and the Appellate Court has assigned the reasons to exercise its jurisdiction to set aside the order dated 09.05.2022 and issuing the order of temporary injunction.
58. It is well established principle of law that the Appellate Court may exercise its jurisdiction to interfere with the exercise of discretionary jurisdiction by the Trial Court, whenever it is found that the exercise of discretionary jurisdiction by the Trial Court is palpably incorrect or untenable in law. It is equally true that ordinarily the Appellate Court should not interfere with the exercise of discretion by the Trial Court in granting or refusing the (Downloaded on 06/11/2024 at 10:09:10 PM) [2024:RJ-JP:45306] (58 of 61) [CW-984/2023] interlocutory injunctions and should not substitute its own view over the view of the Trial Court, if the view taken by the Trial Court is a possible view. Reference-Mohd. Mehtab Khan & Ors Vs. Khushnuma Ibrahim Khan and Ors. (2013) 9 SCC 2021. But where it appears to the Appellate Court that the discretion has been exercised by the Trial Court arbitrarily, or capriciously or perversely or where the Court had ignored the settled principles of law, regulating grant or refusal or interlocutory injunction, certainly the Appellate Court would be justified to grant indulgence. Reference-Seema Arshad Zaheer and Ors. Vs. Municipal Corporation of Greater Mumbai & Ors.(2006) 5 SCC
282.
59. In the case at hand, this Court does not find that the Appellate Court has unwarrantedly interfered with the exercise of discretion by the Trial Court rather, it appears that the Trial Court travelled beyond its jurisdiction and recorded findings in respect of title and possession of plaintiff which are not expected to render at the stage of deciding the application for Temporary Injunction. Since the factual circumstances have changed and the Trial Court had ignored the principle of law of possession in respect of open piece of land that the "possession follows title", therefore, the Appellate Court has not committed any error nor has exceeded its jurisdiction in granting indulgence against the (Downloaded on 06/11/2024 at 10:09:10 PM) [2024:RJ-JP:45306] (59 of 61) [CW-984/2023] order of Trial Court and same has rightly been set aside. The injunction order, passed by the Appellate Court is equitable and is a possible view, hence, deserves to be affirmed.
60. In addition, the Appellate Court has also observed that on the strength of lease deed dated 14.02.2020 issued by the JDA in favour of plaintiff in respect of plot No.18-A, obviously the title and possession of plot in question, rest and vest with the plaintiff only and the Vikas Samiti, having connivance with the concerned Police Station, cannot interfere with the use and occupation of the plot in question by the plaintiff, although Vikas Samiti is free to take recourse to the legal process. It is hereby observed that the recourse of law, taken by the Vikas Samiti has failed.
61. Thus, the order passed by the Appellate Court is well within jurisdiction and the injunction order passed is just and proper, which does not warrant any interference by the High Court in exercise of its writ jurisdiction under Article 227 of the Constitution of India.
62. The Hon'ble Supreme Court in a recent judgment delivered in case of Garment Craft Vs. Prakash Chadn Goel [(2022) 4 SCC 181] has expressed the view that the High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. It was observed that supervisory jurisdiction is not to (Downloaded on 06/11/2024 at 10:09:10 PM) [2024:RJ-JP:45306] (60 of 61) [CW-984/2023] correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. The jurisdiction exercised is in the nature of correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, violation of fundamental principles of law or justice. The power under Article 227 of the Constitution of India is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure that there is no miscarriage of justice. For reference-Prakash Chand Goel Vs. Garment Craft (2019) SCC OnLine Del 11943, Celina Coelho Pereira vs. Ulhas Mahabaleswhar Kholkar (2010) 1 SCC 217 and Estralla Rubber vs. Dass Estate (P) Ltd. (2001) 8 SCC 97.
63. Having tested the impugned order on the touchstone of the principle of law as expounded by the Hon'ble Supreme Court hereinabove and having considered the facts and circumstances of the present case, this Court is of the considered opinion that the order of Temporary Injunction is just and proper as also maintains balance of interest and equity between the parties and same does not warrant any (Downloaded on 06/11/2024 at 10:09:10 PM) [2024:RJ-JP:45306] (61 of 61) [CW-984/2023] interference by the High Court in exercise of its jurisdiction under Article 227 of the Constitution of India.
64. For the above reasons, Writ Petition No.9695/2023 is hereby dismissed.
65. Stay application and other pending application(s), if any, also stand disposed of.
(SUDESH BANSAL),J RONAK JAIMAN/TN/603-604/S (Downloaded on 06/11/2024 at 10:09:10 PM) Powered by TCPDF (www.tcpdf.org)