Rajasthan High Court - Jaipur
Jagdish Prasad Sharma S/O Sh. Ramlal vs Jaipur Development Authority on 4 November, 2025
Author: Sameer Jain
Bench: Sameer Jain
[2025:RJ-JP:42898]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 12831/2025
Jagdish Prasad Sharma S/o Sh. Ramlal, R/o Khasra No. 112/1,
Village- Harnathpura, Niwaru Road, Jaipur.
----Petitioner
Versus
Jaipur Development Authority, Through Its Secretary,
Ramkishore Vyas, Indra Circle, Jawahar Lal Nehru Marg, Jaipur.
----Respondent
For Petitioner(s) : Mr. Sunil Samdaria with
Mr. Arihant Samdaria
Dr. Abhinav Sharma
Mr. Yuvraj Samant,
Mr. R. B. Bansal,
Mr. Jai Lodha,
Mr. Surya Pratap Singh Rajawat,
Mr. Sandeep Kumar,
Mr. Rahul Kamwar,
Ms. Sara Parveen, and
Mr. Rameet Pareek
For Respondent(s) : Mr. Bharat Vyas, AAG assisted by
Mr. Harshvardhan Katara
Mr. Lalit Bhardwaj
Mr. Jay Vardhan Joshi
HON'BLE MR. JUSTICE SAMEER JAIN
Judgment
REPORTABLE
Reserved on: 20/09/2025
Pronounced on: 04/11/2025
PREFATORY NOTE:
1. The present writ petition has been filed by the
petitioner invoking the extraordinary jurisdiction of this Court
under Article 226 of the Constitution of India, and not under
Article 227 thereof. Before adverting to the merits of the case, it
becomes necessary to address the preliminary issue pertaining to
the maintainability and the appropriate constitutional provision
under which the present petition has been instituted.
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2. The distinction between the scope and ambit of
jurisdiction exercisable under Articles 226 and 227 of the
Constitution of India has been the subject of extensive judicial
interpretation. While Article 226 confers upon the High Court the
power to issue directions, orders, or writs in the nature of habeas
corpus, mandamus, prohibition, quo warranto, and certiorari for
enforcement of fundamental rights or for any other purpose,
Article 227 vests in the High Court the power of superintendence
over all courts and tribunals within its territorial jurisdiction.
Thence, the choice of provision has material bearing on the nature
of relief, the extent of judicial review, and the availability of
appellate or revisional remedies.
3. In the instant case, the petitioner has approached this
Court under Article 226 challenging the following actions of the
respondents:
3.1 Issuance of notice dated 11.03.2025 under Section
32/34A of the Jaipur Development Authority Act, 1982, which is
alleged to be without jurisdiction;
3.2 Sealing of the premises by the respondents on
12.03.2025, purportedly in violation of the principles of natural
justice, and in a manner alleged to be arbitrary, discriminatory,
and without lawful authority; and
3.3 The review order dated 15.07.2025, whereby in Appeal
No. 250/2025, the learned Jaipur Development Appellate Tribunal
has upheld the sealing of the premises wherein a marriage garden
has been in operation, and has further directed the petitioner to
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seek conversion of the land in accordance with the JDA Rules and
the applicable bye-laws.
4. In view of the nature of the impugned actions and the
reliefs claimed, the preliminary question that arises for
consideration is whether the present petition is appropriately
maintainable under Article 226, or whether the supervisory
jurisdiction under Article 227 ought to have been invoked, given
that one of the impugned orders emanates from a quasi-judicial
authority, namely, the Jaipur Development Appellate Tribunal. The
resolution of this jurisdictional issue is imperative before entering
into the merits of the controversy, as the constitutional foundation
of the petition directly influences the standard and scope of
judicial scrutiny applicable to the actions impugned herein.
5. Accordingly, the body of the present judgment is
structured into two distinct parts: Part A deals with the
jurisdictional issue concerning the maintainability of the petitions
(illustratively the present petition), wherein Bar at large had been
invited to put-forth their stance and assist the Court; and
examines the appropriateness of invoking Article 226 as against
Article 227 of the Constitution of India, in light of the nature of the
impugned actions and the reliefs sought; and Part B thereafter
proceeds to consider the substantive aspects of the matter,
delving into the legality, propriety, and validity of the impugned
actions of the respondents, and the entitlement of the petitioner
to the reliefs claimed by way of the present writ petition.
Accordingly, the discussion in Part A is devoted to a
comprehensive examination of this foundational issue before the
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Court proceeds to evaluate the merits of the petitioner's claims in
Part B.
PART-A
6. On the issue pertaining to the defects pointed out by
the Registry, it is observed that the question raised is of a
recurring nature and carries substantial significance for the legal
fraternity. Accordingly, in order to ensure clarity and uniformity in
practice, and to settle the legal position on the point, a question of
law was proposed for consideration on 27.08.2025 and
01.09.2025, which reads as under:-
"Note: The Court proposes to consider the issue
as under what grounds and with what rationale
the Registry raises objections regarding
maintainability of writ petitions under Article 226
or Article 227 of the Constitution of India. The
Bar at large is invited to address the Court on
the said issue on 04.09.2025 at 2:00 P.M."
7. This question had been formulated with the intent to
address the recurring objections raised by the Registry in matters
involving the maintainability of writ petitions under Article 226
and/or 227 of the Constitution of India, and to delineate the
extent of the Registry's authority vis-à-vis judicial determination
of maintainability, thereby serving as a guiding precedent for
future cases before the Court as well as for members of the Bar, in
consonance with the settled position of law and the ratio decendi
passed by various Courts over the years.
8. In the said matter, pertaining to the defect raised by
the Registry, and the question of law formulated for authoritative
consideration, whereto the Bar at large was invited to advance
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their submissions on the said issue. In pursuance thereof, several
learned members of the Bar, namely Shri Sunil Samdaria, Dr.
Abhinav Sharma, Shri Yuvraj Samant, Shri R. B. Bansal, Shri Jai
Lodha, Shri Surya Pratap Singh Rajawat, Shri Sandeep Kumar,
Shri Rahul Kamwar, Ms. Sara Parveen, and Shri Rameet Pareek,
marked their presence before the Court and also submitted their
written arguments on the issue relating to the maintainability of
writ petitions under Articles 226 and 227 of the Constitution of
India, as well as on the scope and powers of the Registry in
relation to raising objections on maintainability.
9. The aforesaid submissions were heard at length and
duly considered by the Court. The Court also records and
expresses its appreciation and satisfaction for the active and
constructive participation of the members of the Bar in assisting
the Court on this significant question of law, which bears recurring
implications for the administration of justice and the procedural
functioning of the Registry.
10. At the outset, it was urged by the learned counsel for
the petitioner - Shri Sunil Samdaria that, independent of the
merits of the case, Defect No. 6 as pointed out by the Registry
regarding the maintainability of the present writ petition under
Article 226 of the Constitution of India does not warrant
consideration and deserves to be overruled for the following
reasons:
(a) That the Registry has no jurisdiction, authority, or
competence to adjudicate upon the issue of maintainability of a
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writ petition, as the same falls exclusively within the domain of
judicial determination by the Court.
(b) That the present petition invokes issues pertaining to
jurisdiction, violation of the principles of natural justice, and
infringement of fundamental rights, which are squarely covered by
the dictum of the Hon'ble Supreme Court in Whirlpool
Corporation v. Registrar of Trade Marks, Mumbai and
Others: (1998) 8 SCC 1, wherein it had been categorically held
that the existence of an alternative remedy is no bar to the
exercise of writ jurisdiction under Article 226 when-
(i) the order is wholly without jurisdiction;
(ii) there has been violation of the principles of natural justice,
(iii) the fundamental rights of the petitioner have been infringed.
The relevant extract from the aforementioned ratio is
reproduced hereinbelow:
"15. Under Article 226 of the Constitution, the
High Court, having regard to the facts of the
case, has discretion to entertain or not to
entertain a writ petition. But the High Court has
imposed upon itself certain restrictions one of
which is that if an effective and efficacious
remedy is available, the High Court would not
normally exercise its jurisdiction. But the
alternative remedy has been consistently held by
this court not to operate as a bar in at least three
contingencies, namely, where the Writ Petition
has been filed for the enforcement of any of the
Fundamental rights or where there has been a
violation of the principle of natural justice or
where the order or proceedings are wholly
without jurisdiction or the vires of an Act is
challenged."
11. It was further submitted that Tribunals are subject to
the certiorari jurisdiction of the High Court, as recognized by the
Hon'ble Supreme Court in the dictum passed in Rupa Ashok
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Hurra v. Ashok Hurra, AIR 2002 SC 1771. Learned counsel
further contended that a writ petition can only be maintained
under Article 226 of the Constitution of India and not under Article
227, and placed reliance on the ratio encapsulated in Shalini
Shyam Shetty v. Rajendra Shankar Patil, (2010) 8 SCC 329,
and Radhey Shyam v. Chhabi Nath, (2015) 5 SCC 423,
wherein it was held that orders of Civil Courts or Judicial Courts
stand on a different footing from quasi-judicial orders passed by
authorities or Tribunals. The Court therein clarified that orders of
Tribunals are amenable to the writ jurisdiction under Article 226 of
the Constitution of India, where the action is without jurisdiction
or suffers from patent illegality, whereas judicial orders of Civil
Courts are not amenable to such jurisdiction.
12. Subsequently, it was submitted that Tribunals are
distinct and separate from Courts, as they are statutory creations
constituted to deal with specific fields through an alternative
institutional mechanism. Tribunals may consist of members who
are not necessarily judges/judicial officers but include subject-
matter experts. Nevertheless, they are empowered to frame their
own procedural rules, and the provisions of the Code of Civil
Procedure and the Indian Evidence Act (now Bhartiya Sakshay
Adhiniyam) apply only in a modified or limited manner. In support
of this proposition, reliance was placed on the authoritative
pronouncements of the Hon'ble Supreme Court as in Chandra
Kumar v. Union of India: (1997) 3 SCC 261, Rojer Mathew
v. South Indian Bank Ltd.: (2020) 6 SCC 1, P. Surendran v.
State by Inspector of Police: SLP (Crl.) No. 1832/2019,
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Ram Sharan Lal Tripathi v. State of Chhattisgarh: WPC No.
2113/2015, Shiv Shakti Coop. Housing Society v. M/s
Swaraj Developers: (2003) 6 SCC 659, Surya Dev Rai v.
Ram Chandar Rai: (2003) 6 SCC 675, Jogendrasinhji
Vijaysingh ji v. State of Gurjarat: (2015) 5 SCC 1, Rt. Rev.
Timothy Ravinder Dev Pradeep v. Rev. Charles Samraj: CRP
Sr. No. 109971 of 2021.
13. Consequentially, it was submitted that in light of the
aforesaid legal position and judicial pronouncements, it is
submitted that the defect pointed out by the Registry is
unsustainable in law and liable to be overruled, and that the
present writ petition is maintainable under Article 226 of the
Constitution of India.
14. Learned counsel Shri Rahul Kumar, R.B. Bansal, and
Ms. Sarah Praveen, in consonance with and adopting the line of
submissions advanced by learned counsel Shri Sunil Samdaria,
submitted that the issue of maintainability of a writ petition is a
matter requiring judicial adjudication and cannot, under any
circumstance, be determined by the Registry. It was urged that
the Registry lacks the jurisdictional competence or authority to
raise objections pertaining to the maintainability of a writ petition,
as such an objection involves a substantive question of law which
falls exclusively within the domain of the Court.
15. It was further contended that the Registry's role is
purely administrative in nature and is limited only to pointing out
procedural or formal defects, such as deficiencies in court fees,
formatting, or documentation and not to engage in any
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assessment of the legal tenability or maintainability of a petition
filed before the Court. Learned counsel emphasized that the
authority to determine the maintainability of writ petitions under
Articles 226 or 227 of the Constitution of India vests solely with
the judiciary, being an exercise of judicial discretion and
constitutional interpretation. Any attempt by the Registry to pre-
emptively decide or raise objections on maintainability, it was
argued, would be beyond its administrative jurisdiction and would
encroach upon the judicial domain, thereby undermining the
constitutional guarantee of access to justice enshrined under
Article 14 and Article 21 of the Constitution of India.
16. Learned counsel Shri Sandeep Kumar submitted that
the judgments rendered by the Hon'ble Supreme Court in Radhey
Shyam (supra) and Jogendrasinghji (supra) did not advert to
or consider the enforcement of fundamental rights guaranteed
under Part III of the Constitution of India, when such rights stand
infringed by orders passed by inferior courts. It was contended
that the said judgments are silent on this crucial aspect and,
therefore, cannot be construed as creating any embargo upon the
jurisdiction of the High Courts to entertain writ petitions under
Article 226 read with Article 227 of the Constitution of India
against orders of inferior courts where there is a violation of
fundamental rights.
17. Learned counsel further submitted that, in view of this
omission, the aforesaid judgments do not operate as binding
precedents so as to curtail or restrict the constitutional jurisdiction
of the High Court in exercising its powers under Article 226 for
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enforcement of fundamental rights in appropriate cases. Hence, it
was urged that there exists no legal impediment or bar to the
maintainability of writ petitions invoking the High Court's
jurisdiction under Article 226 read with Article 227 against orders
of subordinate or inferior courts where such orders infringe the
petitioner's rights guaranteed under Part III of the Constitution.
18. Learned counsel Shri S. P. Singh Rajawat and Shri Jai
Lodha submitted that Article 226 of the Constitution of India
confers writ jurisdiction upon the High Courts, whereas Article 227
vests the High Courts with supervisory jurisdiction over all
subordinate courts and tribunals within their territorial limits. It
was contended that judicial orders passed by courts are not
amenable to challenge by way of a writ of certiorari under Article
226, but are subject only to the supervisory jurisdiction under
Article 227, as categorically laid down by the Nine-Judge Bench of
the Hon'ble Supreme Court in Naresh Shridhar Mirajkar and
Others v. State of Maharashtra: AIR 1967 SC 1.
19. Learned counsel further submitted that the writ
jurisdiction under Article 226 is not intended to be exercised in a
sweeping or indiscriminate manner, 'like a bull in a china shop,' to
correct every conceivable error committed by courts or tribunals
acting within the scope of their jurisdiction. It was emphasized
that the power of superintendence under Article 227 is to be
exercised sparingly and with circumspection, only to ensure that
the subordinate courts and tribunals act within the bounds of their
lawful authority and do not transgress their jurisdictional limits.
The jurisdiction under Article 227, it was urged, is therefore
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corrective and supervisory, not appellate, and must not be invoked
in a cursory or routine manner to re-appreciate evidence or
substitute the Court's view for that of the subordinate forum.
20. However, a distinguishable stance had been put forth
by learned counsel Dr. Abhinav Sharma; as it was submitted that
there exists a clear and well-recognized distinction between the
exercise of jurisdiction by the High Court under Articles 226 and
227 of the Constitution of India. The jurisprudential demarcation
between the two provisions, it was contended, stands well-settled
through a catena of judicial pronouncements, as referred to by the
learned counsel appearing for the Bar, and further reaffirmed by
the Larger Bench of the Rajasthan High Court in Mahendra
Kumar Jain v. Appellate Rent Tribunal, Ajmer, D.B. Civil
Reference No. 1/2020, decided on 26.05.2022. In the said
decision, the Larger Bench held that the orders passed by the Rent
Tribunals and Appellate Rent Tribunals, being judicial tribunals
manned by judicial officers, are amenable only to the supervisory
jurisdiction under Article 227 of the Constitution and not to the
writ jurisdiction under Article 226.
21. Learned counsel further pointed out that the Jaipur
Development Authority Tribunal (JDA Tribunal), constituted under
Section 83(6) and (7) of the Jaipur Development Authority Act ,
exercises powers analogous to those of a Civil Court , and its
orders are declared to be final and binding upon the parties.
Having regard to the fact that the Tribunal is composed of judicial
officers nominated by the High Court , its character and functioning
are judicial in nature. Accordingly, in parity with the principles and
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ratio laid down in Mahendra Kumar Jain (supra) and Radhey
Shyam (supra), it was contended that a writ petition under
Article 226 of the Constitution of India against the orders of the
JDA Tribunal would not be maintainable. Entertaining such
petitions under Article 226, it was urged, would, in effect, amount
to creating an intra-court appeal, which would be contrary to the
legislative intent underlying the JDA Act, and would further
amount to judicial re-legislation by expanding the scope of
remedies beyond what the statute contemplates.
22. Learned counsel Shri Ramit Pareek submitted that the
Hon'ble Supreme Court has categorically and explicitly held that
the determination as to whether a petition is to be filed under
Article 226, Article 227, or under both provisions conjointly, is to
be guided by and shall depend upon the Rules framed by the
respective High Court. He contended that the orders passed by
Civil Courts are amenable to scrutiny by the High Court in the
exercise of its supervisory jurisdiction under Article 227 of the
Constitution of India, which is distinct in nature and scope from
the writ jurisdiction exercisable under Article 226. The learned
counsel emphasized that the supervisory jurisdiction under Article
227 is meant to ensure that subordinate courts and tribunals
function within the bounds of their authority and do not commit
errors apparent on the face of the record, whereas the writ
jurisdiction under Article 226 is invoked primarily for enforcement
of fundamental and legal rights and to correct jurisdictional errors
of statutory or quasi-judicial authorities.
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23. It was further submitted that an order passed by a Civil
Court, which is not appealable or whose correctness cannot be
assailed by way of revision, would appropriately fall within the
supervisory ambit of Article 227 of the Constitution of India.
Conversely, the orders passed by Tribunals and quasi-judicial
authorities, being statutory creations distinct from civil courts, are
required to be challenged through a writ of certiorari under Article
226, as such bodies are amenable to the writ jurisdiction of the
High Court on grounds of lack of jurisdiction, violation of natural
justice, or error of law apparent on the face of the record.
PART-B
24. Upon attaining a comprehensive understanding of the
issue concerning the maintainability of petitions of the present
nature, and after due consideration of the judgments cited and
relied upon by the learned members of the Bar, this Court now
proceeds to examine the merits of the case. Accordingly, the latter
part of this judgment is devoted to the adjudication of the
substantive issues arising between the contesting parties, based
on the pleadings, submissions, and material placed on record, and
is structured as follows:
SUBMISSIONS BY LEARNED COUNSEL APPEARING ON
BEHALF OF THE PETITIONER:
25. Learned counsel appearing for the petitioner - Shri
Sunil Samdaria had contended the petitioner is engaged in
operating a marriage garden situated on his 1/10th share of
khatedari- agricultural land bearing Khasra No. 135, and has been
doing so since the year 2008 under the name and style of 'Shree
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Ram Marriage Garden.' It was further contended that the
petitioner had duly obtained the requisite permission/license from
the Jaipur Municipal Corporation (JMC) for running the aforesaid
marriage garden, and all operational requirements prescribed
under law for the running of such establishments were duly
complied with by the petitioner; which included obtaining a valid
license from JMC, payment of registration fee, and continuous
payment of Urban Development Tax in the commercial category
from the year 2010 up to 2025-26. Moreover, the petitioner has
also complied with the requirements prescribed under the Bye-
laws for Registration of Marriage Places, 2011 (hereinafter
referred to as "the Bye-laws of 2011"), having been duly
registered thereunder and having adhered to the terms and
conditions specified therein.
26. It was further submitted that under the said Bye-laws
of 2011, agricultural lands were included within their purview, and
the license fee for operating a marriage garden thereon was
determined on a per square yard basis, which the petitioner has
duly deposited. Additionally, the petitioner has regularly deposited
renewal charges, permit charges, fire control charges, cleaning
charges, and other levies, together with Urban Development Tax,
on an annual basis, thereby satisfying all the requirements
contemplated under the Bye-laws of 2011.
27. In this background, learned counsel submitted that the
Jaipur Development Authority (JDA) has wrongly assumed
jurisdiction under Sections 32 and 34A of the Jaipur Development
Authority Act, 1982 (for short, "the Act of 1982"), in a matter
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where it had no lawful authority to intervene. It was contended
that there existed no requirement for obtaining any additional
license or permission from JDA in light of the license already
issued by JMC under the Bye-laws of 2011. Accordingly, the action
initiated by JDA, including the issuance of notice, sealing of the
premises, and the order passed by the JDA Tribunal, is illegal,
sans jurisdiction, and ab initio void.
28. Learned counsel further contended that the impugned
orders dated 01.02.2025, 11.03.2025, 12.03.2025 and
15.07.2025 passed by the JDA Tribunal are cryptic and non-
speaking in nature. It was also urged that even as per Section 32
of the Act of 1982, no notice could have been issued after the
lapse of ten years from the completion of construction, and
therefore, the proceedings initiated by JDA are time-barred.
29. It was further submitted that the petitioner has been
subjected to hostile discrimination, inasmuch as several other
marriage gardens situated in the same vicinity and adjoining plots,
such as Chandra Paradise Marriage Garden, Hans Paradise, R.C.
Paradise, Peacock Marriage Garden, Sundar Paradise, Punsumi
Farms, Yagh Paradise, Sultan House Garden, Maan Bagh Garden,
R.B. Paradise Marriage Garden, Prabhat Paradise Marriage Garden,
Shri Ganesh Marriage Garden, Shri Govindam Paradise, and Moon
Paradise Marriage Garden, which stand on identical factual and
legal footing, have been permitted to operate without any
interference from JDA. Therefore, it can be deduced that the
impugned proceedings, have been initiated selectively and with
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mala fide intent, motivated by vindictive conduct and corruption
on the part of certain officers of JDA.
30. Learned counsel further submitted that the marriage-
related activities at the petitioner's premises are seasonal and
limited, functioning only for approximately 30 to 40 days in a
year, and hence cannot be treated as a regular commercial use
attracting the rigours of the Act of 1982. It was lastly argued that
the Jaipur Municipal Corporation alone has the jurisdiction and
regulatory control over the functioning of marriage gardens within
its territorial limits, and that JMC has raised no objection to the
petitioner's operations. The intervention by JDA, therefore, is
wholly unwarranted and without legal sanction, and all
proceedings initiated under the guise of Sections 32 and 34A of
the Act of 1982 are liable to be quashed as void and ultra vires. In
support of the contentions made insofar learned counsel had
placed reliance upon the interim order dated 28.01.2025 passed in
SBCWP No. 1546/2025 titled as Shri Yashwant Singh v.
Muncipal Corporation, Kota, Rajasthan through its
Commissioner and ors.
SUBMISSIONS BY LEARNED COUNSEL APPEARING ON
BEHALF OF THE RESPONDENTS:
31. Per contra, learned Senior Counsel Mr. Bharat Vyas,
appearing on behalf of the respondents, had not only raised a
preliminary objection as to the maintainability of the present writ
petition under Article 226 of the Constitution of India, but had also
prayed for dismissal of the petition on merits after adjudication of
the said preliminary objection. It was submitted that, as the
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controversy involved in the present case is narrow and confined,
his oral arguments may be treated as advanced, covering both the
issues of maintainability and merits. Learned Senior Counsel had
submitted that the order passed by the JDA Tribunal suffers from
no infirmity and calls for no interference by this Court. To
substantiate the said contention, attention of the Court was drawn
to the provision as enumerated under Section 17 of the Act of
1982, which provides that no person or authority shall undertake
or carry out any development, construction, or advertisement
activity within the jurisdiction of the Jaipur Development Authority
(JDA) without obtaining prior permission or sanction from the said
Authority.
32. It was contended that the petitioner's activities, having
been carried out without requisite sanction or approval, are clearly
in contravention of Section 17 of the Act of 1982. Further, reliance
was placed upon the definition clauses contained in Section 2 of
the Act of 1982, more particularly sub-sections (1), (3), (5), and
(15), which respectively define "agriculture," "authority,"
"development," and "plan." Further, Section 2(8) defines the
"Jaipur Region," which expressly includes the area wherein the
petitioner's premises are situated. On the strength of Section 3, it
was contended that the Jaipur Development Authority is a body
corporate and is deemed to be a local authority for the purposes
of administration, regulation, and development within its territorial
jurisdiction.
33. Adverting to Section 17 of the Act of 1982, learned
Senior Counsel submitted that the said provision vests exclusive
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authority in JDA to grant permission for all developmental or
constructional activities to be undertaken within the notified
region and any such activity must conform to the bye-laws, rules,
and master plan framed under the Act. It was further urged that
Section 17 is couched in 'non-obstante terms', thereby conferring
overriding effect upon the powers of JDA vis-à-vis other local
bodies.
34. Learned Senior Counsel had also drawn attention to
Section 92 of the Act of 1982, which provides that the provisions
of the said Act shall have overriding effect notwithstanding
anything inconsistent contained in any other law for the time
being in force, including laws governing municipal corporations
such as the Jaipur Municipal Corporation Act. Thus, the jurisdiction
of JMC stands excluded or subordinated in matters falling within
the domain of urban development under the Act of 1982.
Subsequently, with respect to the contention raised by the counsel
for the petitioner under Section 32 of the Act of 1982, it was
submitted that the protection of limitation of ten years envisaged
therein applies only in cases where construction or development
has been undertaken pursuant to a valid permission. The said
provision cannot be invoked to shield an unauthorized, concealed,
or illegal construction carried out without any sanction or in
violation of master plan and bye-laws. In the matter at hand,
since the petitioner has admittedly not obtained any valid
permission from JDA, the said plea is wholly misconceived and
untenable. It was further submitted that the petitioner has an
adequate statutory remedy to seek conversion of his agricultural
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land into non-agricultural use in accordance with the rules,
regulations, and master plan framed under the Act of 1982 and
only thereafter, if permissible under law, can a marriage garden be
established or continued to be operational. The JDA Tribunal, while
passing the impugned order, has already clarified this aspect, and
therefore its findings merit no interference.
35. Learned Senior Counsel further contended that the Bye-
laws of 2011 governing registration of marriage gardens are
confined only to operational and regulatory aspects, for instance,
safety, sanitation, and licensing and do not extend to the question
of land use, development, or construction, which fall exclusively
within the purview of JDA under Section 17 and the Master Plan of
Jaipur Region. Hence, reliance placed by the counsel for the
petitioner on the said bye-laws is misplaced and legally
unsustainable. Adverting further, with regard to the petitioner's
plea of hostile discrimination, learned Senior Counsel submitted
that the principle of negative equality has no application in law.
Merely because certain similarly situated persons may have been
permitted to continue illegal use or construction, the petitioner
cannot claim parity in illegality. It was submitted that if any other
violators exist, the Authority shall take appropriate action against
them in accordance with law, but no person can claim equality in
illegality. In support of the said submission, learned Senior
Counsel placed reliance upon the ratio encapsulated in Secretary,
Jaipur Development Authority v. Daulat Mal Jain: (1997) 1
SCC 35 wherein the Hon'ble Supreme Court categorically held
that no negative equity can be claimed to perpetuate an illegal or
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unauthorized act, and each case must stand on its own legal
merits.
36. Accordingly, it was urged that the impugned order
passed by the JDA Tribunal is well reasoned, within jurisdiction,
and consistent with the statutory framework, and thus does not
warrant interference by this Court in exercise of its extraordinary
jurisdiction under Article 226 of the Constitution of India.
DISCUSSION AND FINDINGS VIS-À-VIS PART-A AND PART-
B
37. Having heard the submissions made by learned counsel
representing the contesting parties vis-à-vis the merits of the
matter at hand, upon an assiduous scanning of the judgments
cited at the Bar and as written submissions by the members of the
Bar vis-à-vis the maintainability, scope of interference and modus
of pointing out defects by the Registry, and upon a careful and
serious scrutiny of the record together, the following view is
recorded:
37.1 The rival contentions have been examined in the light
of the pleadings, the nature and character of the forum which
passed the impugned order, the statutory scheme under which
that forum has been constituted, and the relevant judicial
precedents forming a settled catena of decisions.
37.2 The questions canvassed before this Court viz., the
distinction between writ jurisdiction under Article 226 and
supervisory jurisdiction under Article 227, the characterization of
the JDA Tribunal, and the competence of the Registry to raise
maintainability objections, are matters of substantive
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constitutional law which require adjudication on established
principles of precedent and statutory construction.
37.3 The material available on record indicates that the
impugned order emanates from a statutory tribunal exercising
functions and powers akin to those of a civil court; consequently,
the availability and propriety of invoking Article 227, rather than
Article 226, require determination in accordance with the ratio of
binding and/or persuasive authorities.
37.4 While procedural or formal irregularities may
appropriately be noticed by the Registry in the discharge of its
administrative functions, questions going to the maintainability of
a petition under Articles 226 and 227 engage judicial consideration
and are to be decided by the Court in exercise of its constitutional
jurisdiction.
38. For the foregoing reasons, and for the reasons detailed
in the subsequent paragraphs of this judgment, this Court
proceeds to pronounce its conclusion on the maintainability issue
as follows:
38.1 It is an admitted position that the impugned order and
the proceedings emanate from actions undertaken by the Jaipur
Development Authority (JDA) and its authorities, culminating in
the impugned order passed by the JDA Tribunal.
38.2 Under Article 227 of the Constitution of India, the High
Court is vested with the power of superintendence over all courts
and tribunals functioning within its territorial jurisdiction, except
those constituted under laws relating to the Armed Forces.
Therefore, applying the principle of literal construction to the said
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provision, and having regard to the factual matrix of the present
case, this Court finds that the impugned order having been passed
by the JDA Tribunal, which is constituted under Section 83 of the
Jaipur Development Authority Act, 1982, the present petition
would be maintainable under Article 227 and not under Article 226
of the Constitution of India. For the sake of brevity the relevant
sections and provisions are reproduced herein below:
"226. Power of High Courts to issue certain writs.
--
(1) Notwithstanding anything in article 32, every
High Court shall have power, throughout the
territories in relation to which it exercises
jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government,
within those territories directions, orders or writs,
including [writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and
certiorari, or any of them, for the enforcement of
any of the rights conferred by Part III and for any
other purpose.]
(2) The power conferred by clause (1) to issue
directions, orders or writs to any Government, authority
or person may also be exercised by any High Court
exercising jurisdiction in relation to the territories within
which the cause of action, wholly or in part, arises for
the exercise of such power, notwithstanding that the
seat of such Government or authority or the residence
of such person is not within those territories.
[(3) Where any party against whom an interim order,
whether by way of injunction or stay or in any other
manner, is made on, or in any proceedings relating to,
a petition under clause
(1), without--
(a) furnishing to such party copies of such petition and
all documents in support of the plea for such interim
order; and
(b) giving such party an opportunity of being heard,
makes an application to the High Court for the vacation
of such order and furnishes a copy of such application
to the party in whose favour such order has been made
or the counsel of such party, the High Court shall
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dispose of the application within a period of two weeks
from the date on which it is received or from the date
on which the copy of such application is so furnished,
whichever is later, or where the High Court is closed on
the last day of that period, before the expiry of the next
day afterwards on which the High Court is open; and if
the application is not so disposed of, the interim order
shall, on the expiry of that period, or, as the case may
be, the expiry of the said next day, stand vacated.]
[(4) The power conferred on a High Court by this
article shall not be in derogation of the power
conferred on the Supreme Court by clause (2) of
article 32.]
227. Power of superintendence over all courts by
the High Court--
(1) Every High Court shall have superintendence
over all courts and tribunals throughout the
territories in relation to which it exercises
jurisdiction.
(2) Without prejudice to the generality of the
foregoing provision, the High Court may--
(a) call for returns from such courts;
(b) make and issue general rules and prescribe
forms for regulating the practice and proceedings
of such courts; and
(c) prescribe forms in which books, entries and
accounts shall be kept by the officers of any such
courts.
(3) The High Court may also settle tables of fees to be
allowed to the sheriff and all clerks and officers of such
courts and to attorneys, advocates and pleaders
practising therein: Provided that any rules made, forms
prescribed or tables settled under clause (2) or clause
(3) shall not be inconsistent with the provision of any
law for the time being in force, and shall require the
previous approval of the Governor.
(4) Nothing in this article shall be deemed to
confer on a High Court powers of superintendence
over any court or tribunal constituted by or under
any law relating to the Armed Forces.
83. Constitution of Tribunal--
(1) The State Government shall, by notification in the
Official Gazette, constitute a Tribunal for the purposes
of this Act.
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(2) The Tribunal shall consist of one person who shall
be an officer of the State Government and shall be paid
such Salary and allowance as may be determined by
the State Government.
(3) The State Government may, to assist the Tribunal,
direct the Authority to appoint such number of servants
and of such cadre as may be deemed necessary.
(4) The expenses of the Tribunal shall be borne by the
Authority.
(5) The procedure to be followed by the Tribunal in
deciding the appeals or disputes referred to it under this
Act shall be such as may be prescribed.
(6) The Tribunal shall have the same powers as are
vested in a civil court under the Code of Civil Procedure,
1908 (Central Act V of 1908) in respect of hearing and
deciding of an appeal or any dispute referred to it.
(7) Except as otherwise provided, any dispute
arising out of any provision of this Act may be
referred to the Tribunal by the Authority. The
decision of the Tribunal shall be final and binding
on all the parties thereto.
(8) Except as otherwise provided,-- (a) any
person aggrieved by an order or notice of the
Authority may file an appeal in the Tribunal within
thirty days of the communication of such order Or
notice to him; and
(b) any person aggrieved by any threatened act or
injury from the Authority affecting his rights may
refer the dispute to the Tribunal within thirty days
of the communication or knowledge of such
threatened act or injury: and the decision of the
Tribunal shall be final."
38.2.1 Furthermore, reliance can also be placed upon the
ratio enunciated in the judgment of the Larger Bench of this Court
in Mahendra Kumar Jain (supra), wherein it has been
categorically held that the Rent Tribunals and Appellate Rent
Tribunals, though not designated as "civil courts" in nomenclature,
exercise judicial powers of the State, discharge judicial functions
akin to civil courts, and possess the trappings of a civil court.
Consequently, they were held to be equated with civil courts for
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the purpose of determining the appropriate constitutional remedy.
The relevant extract from the aforementioned ratio is reproduced
herein below:
"80. In the result, we answer the questions referred in
terms that the Rent Tribunal and the Appellate Rent
Tribunal constituted under the Act of 2001, while
adjudicating the disputes between landlord and tenant,
exercising the judicial power of the State, discharge
judicial functions, which are akin to judicial functions
discharged by civil Courts and thus, keeping in view
the law laid down by the Hon'ble Supreme Court
in various decisions including in Radhey Shyam
and Life Insurance Corporation of India, the
judicial orders passed by the Rent Tribunal and
the Appellate Rent Tribunal are not amenable to
writ jurisdiction under Article 226 of the
Constitution and the legality of said judicial
orders can only be questioned by invoking power
of superintendence of this Court under Article
227 of the Constitution and thus, no intra-Court
appeal would be maintainable against the orders
passed by the learned Single Judge of this Court
in such proceedings."
(emphasis supplied)
38.2.2 Further, applying the ratio decidendi of the
aforesaid Larger Bench judgment, as also that of the Hon'ble
Supreme Court in Radhey Shyam (supra), which was relied
upon therein, this Court is of the considered view that the JDA
Tribunal, being vested with the powers and functions analogous to
those of a civil court, falls within the ambit of Article 227
jurisdiction. Accordingly, the present petition is maintainable
under Article 227 of the Constitution of India, and not under
Article 226, in the specific facts and circumstances of the case.
38.3 This Court also deems it appropriate to note that the
constitutional history and legislative intent underlying Article 227
trace their origin to Section 107 of the Government of India Act,
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1915, and Section 224 of the Government of India Act, 1935,
which are pari materia with the existing provision of Article 227 of
the Constitution. The 44th Constitutional Amendment further
expanded the scope of Article 227, conferring upon the High
Courts a broad and supervisory character over subordinate courts
and tribunals. In this regard, Section 83(6) of the Act of 1982
expressly provides that the Tribunal shall have the same powers
for hearing and deciding appeals or disputes as are conferred
upon civil courts under the Code of Civil Procedure, and Rule 16 of
the Rules framed thereunder is in conformity with the same
principle.
INFERENCE
39. In light of the foregoing discussion, and upon due
consideration of the written submissions filed by the learned
members of the Bar, this Court finds itself not persuaded by the
arguments advanced on behalf of the petitioner seeking to invoke
jurisdiction under Article 226 of the Constitution of India. Since a
specific, efficacious, and constitutionally recognized remedy under
Article 227 is available in the facts of the present case, this Court
holds that the present writ petition under Article 226 is not
maintainable.
40. This Court has given its profound consideration to the
rival submissions advanced by learned counsel for the petitioner
and learned Additional Advocate General appearing for the respondents (as spelled out in PART-B of the present judgment), as well as to the material placed on record for adjudication of the (Uploaded on 04/11/2025 at 12:01:34 PM) (Downloaded on 04/11/2025 at 10:27:23 PM) [2025:RJ-JP:42898] (27 of 30) [CW-12831/2025] instant matter qua its merits. The reasoning and findings of this Court are delineated as under:
40.1 It is pertinent to refer to the scheme of the Act of 1982, wherein as per the definition contained in Section 2(15), the term "Plan" has been defined, and as per Section 2(5), the expression "development" includes carrying out of building, engineering, mining or other operations in, on, over or under land, or making of any material change in any building or land, etc.; under Section 17 any person intending to undertake development within the jurisdiction of the Jaipur Development Authority (JDA) is mandatorily required to obtain prior permission from the Authority. The said provision begins with a non-obstante clause, thereby conferring overriding effect upon the JDA's control and ensuring that no development is undertaken without its approval. 40.2 The Bye-laws of 2011, as relied upon by the counsel for the petitioner, have a limited operational scope, as they primarily regulate licensing and operational modalities of establishments such as marriage gardens, but do not confer any independent right of development or construction on agricultural land . Even assuming their existence, these bye-laws, being subordinate and delegated legislation, cannot supplant the substantive provisions contained in the parent statute, i.e., the Act of 1982. In this regard, it is a settled proposition of law that delegated legislation must supplement and not supplant the parent Act, as opined in State of Tamil Nadu v. P. Krishnamurthy, (2006) 4 SCC 517:
(Uploaded on 04/11/2025 at 12:01:34 PM) (Downloaded on 04/11/2025 at 10:27:23 PM) [2025:RJ-JP:42898] (28 of 30) [CW-12831/2025] "St. Johns Teachers Training Institute v. Regional Director NCTE [2003 (3) SCC 321], this Court explained the scope and purpose of delegated legislation thus :
"A regulation is a rule or order prescribed by a superior for the management of some business and implies a rule for general course of action. Rules and regulations are all comprised in delegated legislations. The power to make subordinate legislation is derived from the enabling Act and it is fundamental that the delegate on whom such a power is conferred has to act within the limits of authority conferred by the Act. Rules cannot be made to supplant the provisions of the enabling Act but to supplement it. What is permitted is the delegation of ancillary or subordinate legislative functions, or, what is fictionally called, a power to fill up details. The legislature may, after laying down the legislative policy confer discretion on an administrative agency as to the execution of the policy and leave it to the agency to work out the details within the framework of policy. The need for delegated legislation is that they are framed with care and minuteness when the statutory authority making the rule, after coming into force of the Act, is in a better position to adapt the Act to special circumstances. Delegated legislation permits utilization of experience and consultation with interests affected by the practical operation of statutes."
(emphasis supplied) 40.3 Further, Section 92 of the Act of 1982 specifically provides that the provisions of this Act shall have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Hence, the statutory supremacy of the Act of 1982 cannot be diluted by the bye-laws framed under the JMC Act.
40.4 Therefore, the contention of the petitioner that the bye-
laws of 2011 validate his establishment or operation of the marriage garden since 2008 cannot be sustained. Nevertheless, acceptance of such contention would amount to rendering the (Uploaded on 04/11/2025 at 12:01:34 PM) (Downloaded on 04/11/2025 at 10:27:23 PM) [2025:RJ-JP:42898] (29 of 30) [CW-12831/2025] mandatory provisions of Section 17 and Section 92 otiose and nugatory.
40.5 This Court also finds substance in the submission advanced by learned AAG that under the Master Plan and Rules framed under the Act of 1982, no commercial activity can be carried out on agricultural land unless the same is converted into the appropriate category, following due process. Even the license and registration issued by the JMC, as referred to in Annexure-2, stipulate Condition No. 12 which categorically clarifies that issuance of a license for operational purposes cannot be construed as conversion of land or permission for construction.
"विवाह स्थल का रजिस्ट्र े शन होने के बाद एक एक प्रति संबंधित पु लिस थाना व जिला कलेक्टर को दे नी आवश्यक होगी। विवाह स्थल का रजिस्ट्र े शन किया जाकर लाईसेंस लिया जाना व्यावसायिक भू उपयोग में परिवर्तन नही ं माना जावेगा। नियमानुसार राज्य सरकार या संबंधित संस्था भू -परिवर्तन की राशि लेने के लिए सक्षम होगी।"
40.6 So far as the plea of discrimination under Article 14 of the Constitution of India is concerned, the same also lacks merit, as the principle of equality enshrined under Article 14 cannot be invoked to perpetuate an illegality or irregularity. If certain similarly placed persons are also operating marriage gardens without requisite permissions or conversion, the same would not confer a right upon the petitioner to claim negative equality. In this context, reliance can be placed upon the ratio encapsulated in Daulat Mal Jain (supra), wherein it was held that "Article 14 does not envisage negative equality and cannot be relied upon to perpetuate an illegality." Accordingly, if there exist other marriage (Uploaded on 04/11/2025 at 12:01:34 PM) (Downloaded on 04/11/2025 at 10:27:23 PM) [2025:RJ-JP:42898] (30 of 30) [CW-12831/2025] gardens operating contrary to the Master Plan or in violation of the Act of 1982, the JDA shall take uniform action against all such establishments to ensure parity and fairness in enforcement.
41. In view of the aforementioned, this Court, directs the Jaipur Development Authority to examine whether any marriage gardens are being operated in contravention of Section 17 of the Act of 1982 or the provisions of the master plan and to take appropriate action in accordance with law. The Zonal Officer, who has issued notices or taken inconsistent stands, shall be made answerable, and stern disciplinary action shall be taken against such officers as well as against the Commissioner, JDA, if found adopting a pick-and-choose approach, which is wholly impermissible and inconsistent with the principle of sovereign accountability.
42. For the reasons discussed hereinabove, this Court does not find any infirmity, illegality or impropriety in the impugned order. The said order has been passed in due compliance with the procedural as well as substantive requirements envisaged under the governing statute, and in a reasoned, speaking and lawful manner. Accordingly, no ground is made out for exercise of the extraordinary writ jurisdiction of this Court under Article 226 of the Constitution of India. Consequently, the writ petition, being devoid of merit, stands dismissed. No orders are passed as to costs. Pending applications, if any, shall stand disposed of.
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