Rajasthan High Court - Jaipur
Deepika Gupta vs Secretary J D A And Ors on 9 July, 2019
Author: Veerendra Singh Siradhana
Bench: Veerendra Singh Siradhana
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 9512/2014
Deepika Gupta W/o Shri Jai Bhagwan Gupta, 404, Prestige
Residency, Takhte Shahi Road, Kastia Lane, Jaipur
----Petitioner
Versus
1. Secretary, Jaipur Development Authority, Indira Circle,
J.l.n. Marg, Jaipur
2. Tejaram Choudhary, Commissioner, Sanganer Zone,
Nagar Nigam, Jaipur
3. Jda Appellate Tribunal, J.l.n. Marg, Jaipur
----Respondents
For Petitioner(s) : Mr. R. K. Agarwal, Sr. Counsel with
Mr. Mamoon Khalid
Mr. R. S. Mehta
For Respondent(s) : Mr. Amit Kuri
HON'BLE MR. JUSTICE VEERENDRA SINGH SIRADHANA
Order
09/07/2019
The petitioner has instituted the present writ application
praying for the following reliefs:
"It is therefore prayed that the writ petition may kindly
be allowed and the impugned order dated 2.6.2014 be
quashed and set aside and respondent be punished for
non-compliance of order of JDA Appellate Tribunal in
Reference dated 4.3.2011.
Further, respondents may be directed to issue lease
deed in respect of Plot No. 20, Shiv Shakti Nagar Scheme
of Arvind Nagar Grah Nirman Sahakari Samiti, Jaipur as
per decision of BPC II (CPC) dated 30.05.1994, agenda No
8.94.5.
Any other appropriate order or direction which this
Hon'ble Court may consider just and proper in the facts
and circumstances of the case may also kindly be passed
in favour of the humble petitioner.
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Cost of this writ petition may also kindly be
awarded in favour of the petitioner."
Briefly, the essential skeletal material facts which needs to
be taken note for the appreciation of the controversy raised are:
the petitioner was allotted a plot number 20 involved herein
measuring 775 Sq. yards by Arvind Grah Nirman Shakari Samiti,
Jaipur (for short, Housing Society) on 5 th March, 1993. Possession
of the subject plot involved herein was handed over to the
petitioner whereupon she raised construction of boundary wall. It
is pleaded case of the petitioner that the housing society
submitted list of different Scheme and of its members to the
respondent-Jaipur Development Authority (JDA) wherein
petitioner's name was indicated at serial number 25 against
subject plot number 20 involved herein of Shiv Shakti Nagar
Scheme. The respondent-JDA considered the plan of the Schemes
of the different housing societies through its Building Plan
Committee (BPC) on 30th May, 1994. The scheme in question i.e.
Shiv Shakti Nagar Scheme was approved; however, plot number
114 was not accorded approval as it was indicated in the 'facility
area'.
Mr. R. K. Agarwal, learned Senior Counsel, insistingly argued
that despite approval accorded by the BPC so also by the
Settlement Committee that was constituted in exercise of powers
under Section 83-A of the Jaipur Development Authority Act, 1982
(for short, Act of 1982), did not issue the lease deed. It is further
pointed out that the decision of the Settlement Committee is
binding on all the authorities as would be evident from a glance of
text of Sub-section 4 of Section 83-A of the Act of 1982. Referring
to order dated 12th February, 2002, it is contended that from the
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findings arrived at, on a detailed discussion on the issue, in the
backdrop of materials available on record; it was concluded that in
the Shiv Shakti Nagar Scheme only plot number 114 was marked
for 'facility area', whereas plot number 20 involved herein along
with eight shops, were approved for regularization.
According to learned counsel for the petitioner on a reference
petition instituted by the petitioner, the Appellate Tribunal, Jaipur
Development Authority, Jaipur (for short, the "Tribunal"), by its
order dated 4th March, 2011, on a detailed discussion directed the
that respondent-JDA to do the needful to resolve the dispute with
reference to the subject plot number 20 involved herein, affording
an opportunity of hearing to the petitioner and make a speaking
order within a period of three months from the date a certified
copy of the order was made available while maintaining status quo
with reference to the subject plot. However, the respondent-JDA
did not undertake the required exercise. Moreover, the alleged
determination made by the Zonal Level Committee (ZLC) dated
29th May, 2013, has not seen even in the light of the day. Further,
from the response filed to the writ application, it is reflected that
the so called speaking order dated 18 th July, 2013, made by the
Zonal Level Committee in its meeting held on 29 th May, 2013; is
not available on record. Thus, according to the learned counsel
for the petitioner, the respondent-JDA in fact did not undertake
any exercise that was directed to be undertaken by the Tribunal.
Referring to the additional affidavit filed by the petitioner on
28th August, 2014, it is pointed out that in response to an
application under Right to Information Act, 2005, dated 16 th June,
2016, the Public Information Officer of the respondent-JDA (Zone-
5) informed the petitioner that as per record available no
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proceedings were drawn by the ZLC with reference to plot number
20 involved herein as would be evident from the information
furnished which has been placed on record as Annexure-A/5.
In support of the stand that decision made by the Settlement
Committee constituted in exercise of powers under Section 83-A
of the Act of 1982, is binding; learned counsel for the petitioner
has relied upon opinion of a Coordinate Bench of this Court in the case of Jaipur Development Authority Vs. Shri S. N. Agrawal: S. B. Civil Second Appeal No. 138/1992, decided on 15 th December, 2014. Reference has also been made to the opinion of the Division Bench of this Court in D. B. Civil Special Appeal (Writ) No. 767/2002, decided on 11th August, 2006, observing in no uncertain terms that in view of the decision of the Settlement Committee, the JDA was required to implement the order and necessary directions were issued for compliance within 15 days.
Per contra; Mr. Amit Kuri, resisting the claim of the petitioner referring to order dated 4th March, 2011, made by the Tribunal contended that the directions issued by the Tribunal to make a speaking order within three months, affording an opportunity of hearing to the petitioner with reference to the plot number 20 involved herein; the respondents made necessary orders declining the claim of the petitioner. However, the fact that neither the decision of ZLC nor the relevant record was available with the respondent-JDA; is not disputed.
According to learned counsel in the backdrop of contemplation under Section 54-A and 54-B of the Act of 1982, claim of the petitioner cannot be sustained in the face of contemplation to the effect that no allotment or regularization of any land is permissible that has been earmarked for public (Downloaded on 30/08/2019 at 10:04:05 PM) (5 of 8) [CW-9512/2014] utility/facility. Hence, writ application merits rejection on that count alone.
Learned counsel further submit that the petitioner has not approached this Court with clean hands for the allotment letter placed on record is an incomplete document since the conditions subject to which the allotment was made, have not been placed on record. Therefore, petitioner is not entitled to any relief.
Heard the learned counsel for the parties and with their assistance perused the relevant materials available on record as well as gave my thoughtful consideration to the rival submissions at Bar.
Indisputably, the petitioner was allotted plot number 20 involved herein measuring 775 Sq. yards by the Housing Society in Shiv Shakti Nagar Scheme. It is also not in dispute that the Scheme of the Housing Society was submitted to the JDA and the Building Plan Committee in its meeting dated 30 th May, 1994, considered the matter and concluded thus:
"8.94.5 Shiv Shakti Nagar of Arvind Grah SS The agenda was discussed. The representative of the Society, Shri Gopal Gupta, attended the meeting and he explained his view regarding this scheme. After discussion it was decided that the scheme which was earlier approved, the same should be adhered to and the revised scheme now given by the society be treated as approved accordingly.
The matter regarding the proposal of the society of carving out plot number 57A, 81 (A) in the facility area was discussed. The society representative offered that since these are very small and are subject to encroachment by the adjoining scheme plot holders, these plots should be allowed and in lieu of this he offered to give plot number 114 having an area of 725 sq. yards outside the scheme. This plot even shown in the scheme was not part of the scheme and was therefore not approved. However, it was decided that the site of plot No. 114 would be inspected and if it is found suitable, then (Downloaded on 30/08/2019 at 10:04:05 PM) (6 of 8) [CW-9512/2014] it would be surrendered to JDA in lieu of plot nos 57(A) and 81 (A) free from any encumbrances. ZIC - II informed that the revenue boundary tallies with the scheme which is on 17 bighas. He also informed that the scheme land is exempted from ULCAR and the scheme is not on Government/ Acquired/ Maharaj's and/ SC/ ST land. In view of the land status informed by ZIC- II, it was decided that this land be converted/ allotted/ regularized according to the Government order dated 18.02.1994."
It is also an admitted fact that the Settlement Committee vide its order dated 12th February, 2002, concluded that plot number 20 involved herein of the Shiv Shakti Nagar Scheme, was not in the 'facility area' and it was only plot number 114.
At this juncture it will be relevant to take note of the contents of the conclusions arrived at by the Settlement Committee, which reads thus:
^^geus nksuksa i{kksa dh cgl lquh rFkk i=koyh dk voyksdu fd;kA izkFkhZ dk eq[; rdZ gS fd mldh ;kstuk esa ekufp= vuqeksfnr djrs le; ekufp= esa ls Hkw[k.M la[;k 20 ,oa nqdkuksa dks dkVuk ch-ih-lh- fnukad 30-05-94 ds vfHkfyf[kr fu.kZ; ds foijhr gS D;ksafd ch-ih-lh- dk fu.kZ; dsoy Hkw[k.M la[;k 114 dks vuqeksfnr ugha djus dk Fkk] fu.kZ; esa Hkw[k.M la[;k 20 o nqdkuksa dks dkVs tkus dk dksbZ mYys[k ugha gS izkFkhZ dh bl nyhy dh iqf"V ch-ih-lh- fnukad 30-5-94 ds dk;Zokgh fooj.k ls gksrh gS ¼fu.kZ; la[;k 8-94-5½A izkFkhZ dk nwljk rdZ nqdkuksa ds lEcU/k esa gS mldk dFku gS fd ch-ih-lh- dh cSBd fnukad 12-4-84 esa ¼fu.kZ; la[;k 23-1¼1½½ 100 vkoklh; Hkw[k.M ij 5 nqdkusa vuqeksfnr dk dk Hkh mYys[k vkSj nqdkuksa dks 40 izfr'kr ¼vFkkZr lqfo/kk {ks=½ dk Hkkx ekuus dk Hkh mYys[k gS] fd blfy;s nqdkuksa dks dkVuk vuqfpr FkkA izkFkhZ dk ;g Hkh rdZ gS fd ;kstuk esa dsoy 60 63 izfr'kr {ks= gh Hkw[k.Mksa ds :i esa lnL;kas dks vkoafVr fd;k x;k gS vkSj fu;eksa esa 66 izfr'kr rd {ks= vkoklh; Hkw[k.Mksa esa dke fy;s tkus dk izko/kku gSA t-fo-izk- dh vksj ls bl rdZ dk dksbZ larks"kizn mRrj ugha fn;k x;k gS fd ch-ih-lh- ds fu.kZ; esa dsoy Hkw[k.M la[;k 114 dks vuqeksfnr ugha djus dk mYys[k gksus ds ckn ekufp= esa [k-ua- 20 ,oa nqdkuksa dks dSls dkV fn;k x;kA Li"V :i ls bldk dksbZ vk/kkj ugha gS vkSj ;g dk;Zokgh vfu;fer gSA ch-ih-lh- ds fu.kZ;kuqlkj dsoy Hkw[k.M la[;k 114 dks gh dkVk tkuk pkfg;s FkkA izkFkhZ ds bl rdZ esa Hkh lkj gS fd fu;eksa esa 66 izfr'kr rd {ks= vkoklh; Hkw[k.Mksa esa fy;k tk ldrk gS vkSj mldh bl ;kstuk esa vkoklh; {ks= blls de gh gSA ekufp= esa vifBr nqdkusa n'kkZ;h xbZ gSa tks 8 O;fDr;ksa dks vkoafVr gSaA ge lc nqdkuksa dk vuqeksnu mi;qDr ugha ekurs] dsoy 8 vkoafV;ksa ds fy;s 8 nqdkusa ¼izR;sd dks ,d½ NksM+uk mi;qDr ekurs gSaA izkFkhZ Hkh blls lger gSA (Downloaded on 30/08/2019 at 10:04:05 PM) (7 of 8) [CW-9512/2014] mijksDr foospu ds vk/kkj ij gekjk fu.kZ; gS fd izkFkhZ dh ;kstuk f'ko'kfDr uxj esa dsoy Hkw[k.M la[;k 114 dks lqfo/kk {ks= esa fy;k tkos ftlds fy;s ch-ih-lh- dk fu.kZ; gS Hkw[k.M la[;k 20 rFkk 8 nqdkuksa dk vuqeksnu dj fu;eu dh dk;Zokgh dh tkosA^^ From a glance of the conclusions arrived at by the Settlement Committee as extracted hereinabove, it can be safely be inferred that the factual matrix was examined carefully and attained finality. However, respondent-JDA did not comply with the directions of the Settlement Committee or of the Tribunal for the reasons best known to it.
It is also relevant to take note of the fact that despite several opportunities made available to the respondent-JDA during the course of the contempt proceedings, the decision arrived at by the Zonal Level Committee on 29th May, 2013, could not be placed on record for no such decision existed and these facts are further corroborated from the reply by the Public Information Officer of the respondent-JDA to the petitioner in response to her application under Right to Information Act, 2005, wherein the Public Information Officer of the respondent-JDA in no uncertain terms informed the petitioner that there was no record available with reference to plot number 20 as to decision arrived at by the Zonal Level Committee.
In the case of S. N. Agrawal (supra), a Coordinate Bench of this Court while considering the ambit and scope of Section 83-A of the Act of 1982, referring to opinion of Division Bench of this Court in D. B. Civil Writ Petition No. 2658/2003 (Ram Sharan Singh Vs. State of Rajasthan & Ors.), decided on 16 th August, 2012, held thus:
"10. The contention of the appellant that notification issued under Section 83-A of the JDA Act has been withdrawn and committees have also been dissolved on 15.9.2014 and order passed in DB Civil Writ Petition No. 2658/2003 (Ram Sharan (Downloaded on 30/08/2019 at 10:04:05 PM) (8 of 8) [CW-9512/2014] Singh Vs. State of Raj. & ors.) decided on 16.8.2012 has been placed on record and his further contention is that the matters which are pending and has not been implemented being non existent now but contention of the appellant is ill-founded. Once a committee has been established under Section 83-A of the JDA Act and it has decided the matter then Section 83-A sub-clause (4) of JDA Act will come into operation and decision given by such Committee shall be binding on the authority. Here the case is not pending. Per contra, the orders passed by the Settlement Committee dated 23.4.99 and 22.6.2002 are on record which clearly speaks that matters have been decided by the Settlement Committee and in spite of the fact that now notification under Section 83-A of the JDA Act has been withdrawn and Settlement Committees have been dissolved, still decisions which have been given by the committee are binding as per the provisions of Section 83 subclause (4) of the JDA Act, hence the appellants are estopped from saying anything against the order dated 22.6.2002 and in view of the above the application under O.41 R. 27 CPC is accepted and the appeal is liable to be dismissed."
On the same line is an order made by the Division Bench of this Court, wherein respondent-JDA was called upon to ensure compliance within 15 days of the decision arrived at by the Settlement Committee constituted under Section 83-A of the Act of 1982.
For the reasons and discussions aforesaid and in view of the singular factual matrix of the case at hand; I am inclined to grant the writ application of the petitioner.
Consequently, writ application is hereby allowed. Respondent-JDA is directed to issue lease deed in reference to plot number 20 involved herein in Shiv Shakti Nagar Scheme of Arvind Grah Nirman Shakari Samiti Ltd., Jaipur, as per decision of the Building Plan Committee dated 30th May, 1994.
However, in the facts and circumstances of the case, there shall be no order as to costs.
(VEERENDRA SINGH SIRADHANA),J Pooja/87 (Downloaded on 30/08/2019 at 10:04:05 PM) Powered by TCPDF (www.tcpdf.org)