Rajasthan High Court - Jaipur
Sandeep Bakhshi vs J D A And Ors on 28 August, 2012
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR.
O R D E R
S.B. CIVIL WRIT PETITION No. 13402/2010.
Sandeep Bakshi Vs. Jaipur Development Authority & Ors.
Date of Order : 28th August, 2012.
HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE
Mr Rajendra Prasad, for the petitioner.
Mr Anuroop Singhi)
Mr Mahesh Gupta) for the respondents.
BY THE COURT:
REPORTABLE The petitioner has, by this writ petition under Article 227 of the Constitution of India, sought to challenge the order dated 24.12.2009 passed by the learned Jaipur Development Authority Appellate Tribunal. Therefore, it has been prayed that the said order be quashed and set aside.
2. The relevant facts of the case are that Smt. Sunita Patni, respondent No.3 had filed an appeal (104/2009) before the respondent Tribunal with the averments that she and others are the recorded Khatedars and are in possession of the land bearing Khasra Nos. 7, 8, 9, 10 and 11 ad measuring 1 hectare located at village Todi, Ramznilpura. It is situated on 160 feet road between Jagatpura to Agra Road whereupon the respondent is having her residential house, a well with electricity having been installed on it, etc. etc. The aforesaid land of respondent No.3 falls within Sector No. 35 in Jaipur City.
3. In order to finally approve the plan of Sector No. 34 and 35, the respondent Jaipur Development Authority had called for objections and suggestions from public, in respect of which a notification was issued on 16.11.2005 and published in daily newspaper `Daink Bhaskar' on 18.11.2005. The objections/ suggestions were received from some persons namely Nawab Khan, Mohd. Salim, Fakir Mohd. and Latif, by the Director (Town Planning). After giving his comments on every and each objections in respect of Sector 35, an agenda for final approval was proposed by the Director (Town Planning) for consideration in the meeting of the Building Planning Committee (Lay Out Plan), to be held on 6-7 December, 2005. The objections filed by Nawab Khan and others were that on the proposed 60 feet road from Kho-Nagaurian and South of the house of Seedling (petitioner) to Dhani Jhirada, village Udaipur Gliariya, there are 7-8 houses of about 40 years old which are coming in the way. Therefore, the road be shifted 25-30 feet towards North. Another person Geeg Raj Singh had stated that the 60 feet road from Kho-Nagaurian which has been kept towards South of the present road, there are 7 houses on the way. Therefore, 60 feet road be shifted towards north or it should be kept equally on both sides of the present road. Thereafter a decision was taken by BPC to approve the sector plan on 6-7 December, 2005, by giving a final shape to the aforesaid suggestions.
Subsequently, Geegraj Singh appears to have filed another objection and the BPC (Lay Out Plan) in its 94th Meeting held on 27.3.2006, at Agenda No.26, decided that the alignment of 60 feet road be partly changed so that no damage is caused to the houses and the decision taken in the meeting of 6-7.12.2005 be implemented. Annex.2 placed on record is in respect of 92 meeting of BPC (Lay Out Plan) dated 27.1.2006 which is not the correct document to be placed by the petitioner and only when the matter had been finally heard that some documents were sought to be placed on record including the copy of BPC (Lay Out Plan) 94th Meeting held on 27.3.2006.
4. It was on 26.3.2009 when respondent No.3 had gone to look after her agricultural field that she suddenly found a vehicle, with persons from JDA, had come and after entering the premises, they started making demarcation on the land. Thereafter she came to know from the said persons that another road of 60 feet in width, towards Goner, is going to be chalked out through her land. When objection was raised against the aforesaid action of the JDA employees, she was also told that a change in the alignment in respect of 60 feet road was approved in the sector plan, as a result of which it would be taken through her agricultural land and she should not create any obstruction. Thereafter, respondent No.3 got an oral information on 30.3.2009 with regard to modification in the plan of sector 35. She obtained a copy of the map on 6.4.2009. Subsequently, respondent No.3 preferred an appeal before the Tribunal and prayed for setting aside the decision taken by the respondent authorities in respect of modification in the sector plan as being contrary to law and arbitrary. Further, she had prayed that the respondent authority should not make demolition of any kind or dispossess her or create any obstacle in use and occupation of her land and should not construct any road or make demarcation for it in the land owned and possessed by her.
5. A reply to the appeal was filed by the Jaipur Development Authority and the same was contested by it. It was stated in the reply that the modification/ alignment of 60 feet of Kho Nagorian road was done on the proposal given by the Zonal Engineer No.10. It was also stated that according to the report of Zonal Engineer, the possibilities of accident would reduce after giving a turn to the road and lesser number of trees, standing on the site, will have to be cut down. It was also stated in the reply that steps are being taken in respect of alignment of the road because the land on both sides belongs to the same Khatedar. The decision has been taken at Building Planning Committee (Lay Out Plan) and as such the same is valid. Some built up structures were coming in between the earlier road and in order to avoid them, the modification in the lay out plan has been done by BPC (Lay Out Plan).
It is noteworthy to mention here that no objection with regard to the petitioner being a necessary party and in his absence the appeal is not maintainable, was ever taken by JDA in its reply before the Tribunal.
6. The respondent No.3, the appellant before the Tribunal, had then filed a rejoinder to the reply filed by respondent Jaipur Development Authority and stated that the Building Planning Committee can make a modification only after adopting the procedure prescribed. Further, it was stated that the appellant, respondent No.3 herein, has no concern with 160 feet road nor she has filed any appeal in respect of it nor she is having any land on both the sides of that road. It was also stated in the rejoinder that the point at which the change has been brought about in the alignment, no house whatsoever is in existence nor nearby it. It was stated that as a matter of fact, in order to save the land of influential persons that modification in the alignment had been made for which there is no justification.
7. Thereafter, the learned Tribunal passed the order dated 24.12.2009 whereby the appeal filed by respondent No.3 was allowed and the decision taken in 94th Meeting of BPL (Lay Out Plan) on 27.3.2006, in respect of change in alignment of 60 feet road in Sector 35, was set aside. Further, it was ordered that as per the earlier decision taken by BPL (Lay Out Plan) on 6-7 December, 2005, 60 feet road be kept as it is. It was also ordered that no construction of any road or demarcation be made through the land owned and possessed by respondent No.3 and the respondent Jaipur Development Authority shall not create any obstacle or hindrance in the use and occupation of the land by taking any steps to dispossess her. Hence the present writ petition has been filed by the petitioner Sandeep Bakshi by invoking the extraordinary jurisdiction of this Court under Article 227 of the Constitution of India.
8. It has been submitted by the counsel for the petitioner that the learned appellate Tribunal has committed gross error while directing respondent No.1 to construct the proposed 60 feet wide road through the house of the petitioner without providing any opportunity of hearing to him. He has placed reliance on the case of Darshan Lal Nagpal Vs. Government of NCT of Delhi and others., (2012) 2 SCC 327. Further, he has submitted that non- filing of objections by the petitioner before the JDA against the plan proposed on 16.11.2005 is of no consequence, as after receiving the objections from the public the JDA itself decided not to implement the proposed plan as such but to modify the same in a manner which does not adversely affect the pucca constructed house of the petitioner. The petitioner was no more aggrieved with the plan which is to be given effect to as per the final decision. He is aggrieved only with the order passed by the Tribunal as non submission of objections by him against the proposed plan would have no bearing on the issues involved.
Further it has been submitted that on the basis of the objections received, JDA in its resolution dated 6/7.12.2005 vide Agenda Item No. 25 had decided that the proposed Sector Plan No. 35 with regard to 60 feet wide road should be so demarcated that no damage would be caused to the constructed house. It is also submitted that it was decided that after appropriate correction in the proposed sector plan, a final shape be given and on its approval, the same would be published. The decision dated 6/7.12.2005 and objections qua the road in issue were never turned down by the JDA and the decision was taken to modify the road. The counsel for the petitioner has submitted that the Tribunal had seriously erred in assuming that the plan provided for straight road was the final effective plan. On 27.3.2006, the matter was further considered and directions were issued to change the alignment of the road in an appropriate manner so that the decision taken on 6/7.12.2005 can be implemented. This shows that an action was required to be taken under Section 23(3) of the JDA Act. These decisions were to be finally sanctioned and thereafter published as required by Section 23(4) and Section 24 of the JDA Act which is yet to be done after 26.3.2006. The learned Tribunal did not appreciate that the decision dated 6.12.2005 itself has contemplated realignment of the road in case the same affects the land of the petitioner.
It is also submitted that the Tribunal had exceeded its jurisdiction as it decided the issue pertaining to alignment of road under Section 83(8) of the Act of 1982. The alignment of road is a decision taken by the experts and no powers under the JDA Act are vested with the appellate Tribunal so as to amend or alter the decision taken by them qua the alignment of road. In support of his submissions, he has placed reliance on the case of Union of India Vs. Kushala Shetty & ors., (2011) 12 SCC 69. The learned Tribunal ought to have appreciated, according to the counsel for the petitioner, that subsequent to the modification of the sector plan by the JDA in its BPC meeting, if any change was required to be made as inferred by the Tribunal in the impugned order, the same should have been done with conformity by the JDA bye-laws and its rules. In the last, it has been submitted that the curves which have been given by JDA on the basis of objections were to avoid sharp turn at the end of the 60 feet wide road. It was also so done to safeguard the constructed house and also the green trees.
9. The learned counsel for Smt. Sunita Patni, respondent No.3 has in support of the order passed by the Tribunal on 24.12.2009, submitted that no error whatsoever including jurisdictional error has been committed by it and the directions issued, while allowing the appeal, are in accordance with law as well as just and proper. He has also submitted that the learned tribunal has passed the order after giving in detail the facts of the case; the stand taken before it by the respective parties and on thoughtfully considering the matter by inspecting the site.
It has been submitted that the respondent authority had taken a clear stand before the appellate Tribunal that proposal for modification and alignment was made by the Zonal Engineer that a turn in the road would reduce the possibility of accidents and lesser number of trees will have to be cut down. Further the decision was taken at BPC (Lay Out Plan) and as such the same is valid. The said modification was also done because in accordance with the earlier decision some built up structures were coming in the way. The learned counsel for respondent No.3 has submitted that all Zonal Development plans are prepared under Section 22 and the procedure in respect of it has been given under Section 23 of the JDA Act. In case any amendment in the plan is required then the same is to be done under Section 25 of the Act for which a permission has to be taken from the State Government and notices are to be issued for calling objections which is clearly mentioned under Section 25(3) of the Act. But, according to counsel for respondent No.3, no such procedure was adopted in the instant case whereas earlier, objections were invited in accordance with law and the same were received which are on record. But later on, no such objections were called nor any information was given to the public. The entire proceedings was done secretly because according to the reply of the JDA, no reason has been given for change in the sector road and a mention has been made only in respect of 160 feet road.
He has also submitted that the case of JDA respondent No.1 is that the modification was done on the report of Zonal Engineer, whereas no such report was ever filed before the appellate Tribunal. On the contrary, the Tribunal had visited the site which revealed that the earlier road was straight and later on, a turn was being given to it because of one person. There was no need for the modification because the same is rather accidental oriented. Neither any legal procedure was adopted before the modification of the plan nor the zonal engineer's report with regard to proposed modification in the 60 feet road was filed before the Tribunal despite of the same having been demanded from the counsel for the JDA. Therefore, the learned counsel for respondent No.3 has submitted that the learned appellate tribunal has not committed any error in passing the order dated 24.12.2009 as the modification in the alignment of the sector road was neither done after complying with the procedure under the Act; nor after inviting objections in respect of it from the public; nor looking to the reply filed by JDA, as well as the stand taken by it before the Tribunal and withholding of the relevant record, despite of being asked by the Tribunal.
10. Heard the learned counsels for the rival parties and perused the material on record including the copies of proceedings with regard to plan of Sector 35 undertaken by the Jaipur Development Authority, which had been submitted by the counsel for respondent JDA on the directions issued by this Court. Before adverting to the submissions made by the counsels for the parties, it would be appropriate to first consider the factual position of the case as revealed from the record.
11. The respondent No.3 and some other persons are the Khatedars and in peaceful possession of the land measuring about 1 hectare in village Todi and the same is situated on 160 feet road between Jagatpura to Agra Road. The petitioner is also having a land on the same road, towards the North of the land of respondent No.3. Between the respective land of the parties, there is a road measuring 60 feet width starting from 160 feet road and going towards the East. The aforesaid land falls within Sector 35 of Jaipur City. In order to finally approve Sector No. 34 and 35, the respondent Jaipur Development Authority had called for objections through notice issued on 16.11.2005 and published in the newspaper Dainik Bhaskar on 18.11.2005. The said notification, had inter alia mentioned as under:
"??????? ?????? ?? ???? ??????? ?? ??????? ??? ?? ?????? ?? ??? ?????? /????? ?? ?? ????? ?? ????? ?? ???? ???? ?? 15 ???? ?? ???? ??? ????????????????? ?? ????? ??? ???????? ???? ?? ????? ?? ???? ?? ?????? ??????? ???? ???? ?????? /??????? ?? ????? ???? ???? ???????".
12. In response to the said notification, inviting objections and suggestions, applications were received from Abdul Rehman and others who had prayed that the road measuring 60 feet in width which would be crossing in middle of his scheme may kindly be removed. Another objection was received from Finetac Real Estate Developments Pvt. Ltd., through its Director Rajkumar Jain who had mentioned that:
???? ??? ?????? ?? ?? ???? ?????? 60 ??? ?????? ??? ????? ????? ??????? ????? ????? ?????? ?? ?????? ?? ?? ?? ??? ??????? ?? ??? ??? (Over Lap) ???? ??, ?? ?? ?????? ?????? ?? ?? ????? ??????? ????? ??? ???? ?????? ?? ????? ?? ???? ??...
13. Further objections were received from Nawab Khan & others wherein it was mentioned that:
???????? ?? ?????? ??????? ?? ?? 60 ??? ???? ?? ?? ????????? ???? ?? ??????? ???? ?? ?? ?? ?????? ?? ???? ???? ?????? ????? ?????? ???????? ?????? ??? ????? ????? 7-8 ??? ?? ???? ? ??? ??? ?? 40 ??? ?????? ????? ?? ???? ????? ?? ??? 40 ??? ?????? ???? ???? ????? ?? ???? ?? ????? ???? ??? ?? ??????? ?? ??? ????? ???? ???
??? ?? ???? 25-30 ??? ????? ?? ?? ???? ?? ???? ?? ?? ????? ??????? ????? ?? ?? ???? ????
An objection also appeared to have been filed by Geeg Raj Singh S/o Balu Ram on 30.11.2005 which reads as under:
"?????? 35 ?? ??????? ????? ??? 60 ' ????? ?????? ???? ???? ?????? ????? ????? ??? ??????? ??? ??, ?? ????????? ???? ???? ?????? ?????? ??? ????? ?? ???? ??????? ????????? ??????? ?? ??? ??? ?? ? ????? ??? ???? ?? ? ??? ???? ????? ?????? ????? ?????? ??:-
1. ?? ????????? ???? ?? ?????? ???? 60' ???? ??? (A) ?? (B) ??? ??????? ?????? ?? ?????? ?? ?? ?? ??? ??? ??? ?? ????? ?????? ?? ?? ?? ????????? ?? ?? ???? ???? ??? ??????? ?? ????????? ??? 7 ????? ???? ?? ? ??? ????
?? ???? 60 ' ????? ?? ?? ???? ?? ???? ?? ??????? ?? ???? ?? ???? ??????? ?????? ?? ???? ?????? ????? ?? ????? ??? ?????
2. ?? ?? ????????????? ?????? ????? ??? ?? ??? ?? ?????? ??? ????????? ??? ???? ???? ??? ???? ?? ?? ???? ???????? ??? ???? ???? ? ?? ???? ??????? ???? ?? ???? ??? ???? ???? ??????
??: ???? ?????? ?? ?? ???????? 60 ' ???? ?? ????????? ??????? ?????? ?? ????? ?? ?????- ????? ??? ???? ? ????? ???? ????? ????? 1
14. It is noteworthy to mention here that no objection/ suggestions was filed by the petitioner and when it was specifically asked from his counsel, an additional affidavit came to be filed by him deposing:-
... it is submitted that in relation to the 60 feet wide road which is subject matter of the present dispute, other persons like Nawab Khan, Geeg Raj Singh etc. submitted their objections and having accepted their objections, a decision was already taken on 6/7.12.2005 that the proposed 60 feet wide road would be so aligned that it does not result in demolition in any pucca constructed house and therefore there remained no need for submission of objections by me.
The explanation sought to be given for not filing objection to the notification issued by JDA on 16.11.2005 is neither just nor satisfactory for the simple reason that the petitioner was bound to file objection, within 15 days from calling of objections from public by JDA through the said notification, which was in respect of draft road plan of sector 35. It was the said sector plan which had been finally approved by BPC on 6/7.12.2005. It cannot be said that there was no need for submitting objection because of the decision of BPC taken on 6/7.12.2005 which had definitely come later and the petitioner could not have known about it, at the time when he was duty bound to file objection within 15 days of the notification dated 16.11.2005. Meaning thereby that the petitioner did not have any objection to the draft plan of sector 35 which was placed before BPC on 6/7.12.2005 and approved by it. But now the Appellate Tribunal has restored the said approval of BPC after setting aside the later decision of 27.03.2006.
15. After having received the objection/suggestions in respect of sector 35 and after giving his comments on the same, the Director (Town Planning) had prepared an agenda note for the meeting, wherein it was also mentioned that in the 89th meeting of Building Plan Committee (Lay Out Plan) held on 31.10.2005, a decision was taken for draft plan of Sector 34 and 35 in respect of the area falling on south of Agra Road, between Kho Nagorian Road and Goner Road. According to the said decisions, objections from the public were invited by the Secretary, JDA on 16.11.2005 with regard to road network of the two sectors. It was in response to the objection invited by JDA that 10 persons had filed the same.
For the purpose of present controversy, the objection/ suggestions filed by Nawab Khan and others as well as Geegraj Singh S/o Balu Ram and the comments given on them by the Director (Town Planning) in the Agenda note are relevant, which are as follows:
Name Objections Comments
7.???? ??? ????? ???? ???,???? ????? ???? ???, ???? ??????? ????? ????? ???, ???? ?
?? ????????? ???? ?? ??????? ???? ?? ?? ?????? ?? ???? ???? ?????? ????? ?????? ??????? ?? ?? ???? ???? ?????????? 60 ??? ???? ??? 40 ??? ?????? ????? 7-8 ????? ???? ? ??? ???, ??: ?? ???? ?? 25-30 ??? ????? ?? ?? ?????? ????
???? ?? ????? ????? ????? ?? ?? ?? ?? ????? ?? ???? ????? ???? ??? ???? ?? ?????????? ???? ?? ?????????? ??? ?????? ???? ???????
8. ?????? ???? ????? ???????
?? ????????? ???? ?? ?????? ???? 60 ??? ?? ???? ?? ??????? ?????? ?? ????????? ?? ??? ?? ????? ?? ?? ????? 7 ????? ???? ??? ???, ??: ?? ???? ?? 60 ??? ????? ?? ?? ??? ?? ??????? ?????? ?? ????? ?? ????? ????? ??? ????
???? ?? ????? ????? ?????? ?? ?? ?? ?? ????? ?? ???? ????? ???? ??? ???? ?? ?????????? ???? ?? ?????????? ??? ?????? ???? ???????
Subsequently, the agenda note was kept in the meeting of BPC (Lay Out Plan) on 6/7.12.2005, for its consideration and giving its final approval. The matter in relation to 60 feet road in Sector 35 was included in item No.25. With regard to Serial No. 7 and 8 of the said item, which related to objection/ suggestions given by Nawab Khan and others and Geegraj Singh, a decision was taken as under:
???? ?????? 7 ? 8 ?? ?????? ???? ???? ??? ??? ? ???? ?????? ???? ?????? ???????? ??????/ ????? ?? ?? ?????? ???? ??? ?? ?? ???? ?? ????? ????? ?????? ?? ??? ????? ???? ?? ???? ????? ???? ??? ?????? ????? ??? ?????????? ??? 60 ??? ?? ?????????? ??? ?????? ???? ???? ?"
...?????? ?????? 35 ??? ??????? ???????????? ?????? ??????? ?????? ??????? ?? ????? ??? ???? ?? ?? ???????? ?????? ????? ???? ???? ???? ?? ?????? ???? ???...| "
16. Therefore, the BPC in its meeting dated 6/7.12.2005 had finally approved the plan in respect of road network Sector 34 and 35 falling on the southern side of Agra Road and the area between Kho-Nagorian and Goner Road. Later on, it appears that after the decision of approval having been taken by BPC (Lay Out Plan) on 6/7.12.2005 in respect of Sector-35, Mahima Shiksha Samiti filed an objection in respect of 160 feet wide road which was placed in the meeting of BPC held on 27.01.2006 and a decision was taken for modification in the said road. Accordingly an advertisement was issued on 16.02.2006, in response of which an objection was received from Nathulal Khandelwal. Accordingly, agenda note was prepared on 23.3.2006 to the following effect:-
...?????? 35 ??? ???????? ????? (??.??.) ?? ???? ?????? 6/7.12.2005 ??? ??????? ???? ???? ?? ?????? ???? ??? ?? ? ?? ?????? ????? ???? ???? ?? ?????? ????? ?????? ????? ?? ????? ?? ?????? ??????? ??? ?? | ?????? ?????? ?? ?????? (????) ?? ???? ?????? 27.01.2006 ??? ?????????? ??? ??? ?? ? ???????????? 160-0 ??? ???? ??? ??? ?????? ???? ??? ?????? 16.2.06 ?? ????????? ???? ?? ?? ?? ? ?? ????????? ?? ???? ??? ?? ?????? ???? ??????? ???????? ?? ???????? ??? ??, ????? ???? ?? ?? 160-0 ??? ???? ??? ??? ?????? ???? ?? ???? ???? ???? ??? ?? ?? ??? ??? ???? ?????? ?? ????? ?????? ????? ??? ???? ???? ??? ?? ?? ?????? ??? ?????????? ?? ???? | ?? ????? ?? ????? ???? ???? ?????????? ?? |"
???? ?????? ?? ?? ?????? ???????? ?? ??, ????? ????? ???? ?? ????? 60-0 ??? ???? ??? ??? ????? ?? ?????? ???? ??? ?? ???? ?? ?????? ??? ??? ????? ???????? ???? ?? ??????? ??? ?????? ???? ??? ?? ???? ???????? ???? ???? ?????????? ?? ?"
17. The said agenda note was then considered in the 94th meeting of BPC (Lay Out Plan) held on 27.03.2006 and the following decision was taken in respect of 60 feet road in Sector 35, as mentioned in the Agenda item No. 26:-
???? ?????? ???? ?????? ???????? ?????? ??????? ???? ??? 60 ??? ???? ??? ?? ????????? ??? ????? ???????? ???? ???? ?? ?????? ???? ??? ? ????? ?? ?? ??? ?? ???????? ????? ?????? ?? ??? ????? ???? ?? ? ?????? 6/7.12.2005 ?? ???? ?? ?????? ?? ???????????? ???? ?? ??? ?"
18. It may be noted here that the proposal was for partial change in the sector road but the decision taken in the meeting on 27.3.2006 is in respect of partial change in the alignment of 60 feet road. Moreover, it has been mentioned that the decision of the alignment of 60 feet road has been taken so that no damage is caused to the pucca house, effected by the road, and the decision taken on 6-7.12.2005 may be implemented.
A look to the map after modification in the alignment of road goes to show that the same has been changed from the starting point at 160 feet road and only upto a short distance. Thereafter the said road remains the same, as it was earlier. This clearly shows that change in the alignment of road, which is by way of a curve, does not serve the purpose for which the subsequent objections were taken up for consideration, namely, to save old houses in the abadi area. The change in alignment appears to have been made to give benefit only to the owner of the land on the northern side of 60 feet road and overlooking the 160 feet wide road whereby more vacant land is added to it. This is also revealed from the observations made by the Tribunal after visiting the site; the two maps and other material on record. The change in alignment of road does not effect the house on that land because the same exists on the eastern side and away from the boundary which touches 60 feet road. Neither 60 feet road which was in existence prior to the change in alignment nor thereafter has any effect on the house which exists in the interior part of the said land. It is obviously so because had the 60 feet road in its original form, meeting the 160 feet road at 90 degree angle, had touched any part of the house in existence on the land touching the northern side of the road, then the petitioner to whom the said land belongs, would have been the first person to raise objection in furtherance of notification issued by JDA on 16.11.2005. There is no valid reason for the petitioner not to have raised any objection soon after the draft plan of Sector No. 35 was made open to the public, after his approval in the meeting on 31.10.2005, and calling upon the public to raise objection and give suggestions on it.
All the persons who had raised objections soon after the notification dated 16.11.2005, numbering to a total of 10, as mentioned above, were in respect of old houses which were in existence for about last 40 years and situated in abadi area. But even by the change in the alignment of 60 feet road, for a short distance from the starting point of 160 feet road, does not in any manner save those old houses belonging to the persons who had filed the applications for shifting the complete road by 25 to 30 feet towards the northern side.
19. In the light of the aforesaid factual position which has emerged after careful scrutiny of the record, including the documents made available by JDA during the course of hearing, this Court may now revert to the submissions/ arguments made by the counsels for the parties.
At the outset it may be mentioned here that Jaipur Development Authority, respondent No.1, has contested the writ petition by filing a reply to it and has prayed that the petition, filed by the petitioner may kindly be dismissed with costs. It has been stated in reply to the introductory para of the writ petition that the fact that the house of the petitioner is at peril and will be demolished, is disputed. Further it is stated, in reply to contents of Para-3 of the writ petition, that the action was taken as per law. It is also stated that the BPC took the decision on 6-7.12.2005. The BPC took the decision in its 94th Meeting (27.3.2006) that the decision taken in 91st Meeting (6-7.12.2005) would be executed. The petitioner has no case to approach this Court. The petitioner should have approached the Tribunal when the appeal was pending for becoming a party to the appeal. He should have taken the grounds by becoming party to the appeal before the Tribunal. The petitioner should have approached the Tribunal at proper time.
So far as the contention raised by the counsel for the petitioner with regard to the error committed by the JDA Tribunal in directing respondent No.1 to construct the proposed 60 feet wide road through the house of the petitioner without affording him an opportunity of hearing is concerned, this Court would first refer to the order dated 24.12.2009 passed by the learned Tribunal, in respect of direction issued, which is as under:-
??? ?? ???? ??????? ?? ???? ?? ??.??.??. ?? ???? ?????? 94 ?????? 27.3.06 ??? ??? ?????? 35, 60 ??? ?? ???????? ?? ????????? ???? ?? ?? ?????? ???? ??? ?? ?? ?????? ???? ???? ?? ?? ??.??.??. ?? ????? ?????? ?????? 6-7 ???????, 2005 ?? ?????? ?? ?????? 60 ??? ?? ??? ????? ??? ???? ?? ?? ?? ???? ?? ???? ???? ?? ?? ????????? ?? ????? ??? ????????? ?? ???? ??? ?? ??? ??? ???? ????? ?? ??? ??????? ???? ????? ????? ??? ???? ?????? ?? ?????? ?? ????????? ?? ???? ??? ???? ??? ??????? ?? ????????? ?? ????? ????? ??? ???? ??????? ?"
As per the said order, the decision taken by the Building Plan Committee in its 94th Meeting on 27.03.2006 with regard to change in alignment in 60 feet wide road in sector 35 has been set aside and according to the earlier decision of 6/7.12.2005, to which the petitioner had no objection, the 60 feet wide road was ordered to be kept as it is. Further, it was ordered that through the land of which the appellant therein i.e. Smt. Sunita Patni was the owner and in possession, no road shall be made and no hindrance shall be caused to her by way of dispossession or otherwise, in use and occupation of the land.
Therefore, no direction whatsoever had been issued by the learned Tribunal to JDA, respondent No.1 so as to construct the proposed 60 feet wide road through the house of the petitioner. Moreover, the Tribunal by its order dated 24.12.2009, while setting aside the decision of the BPC taken on 27.03.2006, which was not taken at the behest of the petitioner, had restored the decision of 6/7.12.2005 and accordingly to keep the 60 feet road as it is. When the petitioner had no objection whatsoever to the decision of 6/7.12.2005, so much so, that it had not filed any objection to the draft plan approved earlier, even when a notification was issued to the public on 16.11.2005 for raising objection or to give suggestions in respect of it. In such a situation, when by the order of the learned Tribunal, the earlier decision of 6/7.12.2005 of the BPC in respect of 60 feet road was restored then there was no need to call upon the petitioner. Consequently, there was no need for providing any opportunity of hearing to the petitioner before deciding the appeal filed by respondent No.3, seeking restoration of earlier position by challenging the decision taken by BPC in its meeting held on 27.03.2006. As a matter of fact, in face of the situation that the petitioner had not filed any objection to the draft plan approved by the committee nor in response to the notification issued by the JDA in respect of it on 16.11.2005 nor the decision taken by BPC on 27.03.2006 was on his application, then no grievance arises to the petitioner on passing of the impugned order by the learned Tribunal which had set aside the order dated 27.03.2006 and maintained the earlier decision of the BPC, as taken on 6/7.12.2005. The petitioner himself never approached the Tribunal to be a party in the appeal.
20. So far as the case of Darshan Lal Nagpal (supra), relied upon by the counsel for the petitioner, is concerned the same is of no help to him because in that case the Hon'ble Supreme Court was considering a challenge to an order passed by a Division Bench of Delhi High Court where it had negatived a challenge to acquisition of land. The Hon'ble Supreme Court had considered a case of a totally different fact situation. The question which arose for consideration before the Hon'ble Court was as to whether the Government could have invoked Section 17(1) and (4) of the Act of 1984 and dispensed with the rule of hearing embodied in Section 5-A(2) thereof for the purpose of acquiring land belonging to the appellants therein for a public purpose, namely establishment of electric substation by Delhi Transco Ltd. The main thrust of the challenge made by the petitioner in the said case was that there was no urgency for acquisition of land which had justified invoking Section 17(1) and (4) of the Act. It was while considering the approval accorded by the Lieutenant Governor and whether it contained anything from which it could be inferred that a conscious decision was taken to dispense with the application of Section 5-A which represents two facets of the rule of hearing, that is, the right of the land owner to file objection against the proposed acquisition of land and of being heard in the inquiry required to be conducted by the Collector that the rule of hearing i.e. audi alter partem was taken note of by the Hon'ble Supreme Court, after referring to some of the celebrated judgments as passed in the year 1973 in the case of Sayeedur Rehman vs. State of Bihar, (1973) 3 SCC 333, in the year 1978 Maneka Gandhi vs. Union of India, (1978)1 SCC 248 and Mohinder Singh Gill vs. Chief Election Commissioner, (1978) 1 SCC 405, in the year 1981, Swadeshi Cotton Mills vs. Union of India, (1981) 1 SCC 664, etc. Therefore, the principle of law laid down in the case of Darshan Lal Nagpal (supra) is of no assistance to the petitioner in the present case.
21. Another submissions made by the counsel for the petitioner is that non filing of objections by the petitioner before the JDA, in furtherance of Notification dated 16.11.2005, is of no consequence. It is an admitted position, as given in the affidavit filed by the petitioner, that he did not file any objection in furtherance of the Notification dated 16.11.2005 by which the same were invited from the public to the draft plan of the road networking in Sector 5 of Jaipur City. Furthermore, the petitioner did not find himself aggrieved of the decision taken by the BPC layout plan on 6/7.12.2005 by which it is clear that it was a final decision and he did not challenge the same in any court of law. It would not be out of place to mention here that the said decision taken by BPC was after considering the objections received from ten persons as well as the comments made by the Director (Town Planning) and accepted by the committee. Among the said objections, the one filed by Nawab Khan and others and by Geegraj were pertaining to 60 feet wide road passing from the southern side of the petitioner's land. Moreover, when another objection was filed by Geegraj which was considered by BPC on 27.03.2006, at that time the objection of the petitioner in the name of Mahima Shiksha Samiti relating to 160 feet wide road was also before it. As given in the additional affidavit of the petitioner, at that time, he had preferred not to raise any objection. Now when the order of the learned Tribunal, impugned before this Court by the petitioner, has come to be passed by which the decision taken in the meeting dated 27.03.2006 by the BPC has been set aside and the earlier decision of keeping the 60 feet road as it is i.e. in a straight line which is to join 160 feet wide road at 90 degree angle, it does not lie with the petitioner to take a stand which virtually seeks to challenge the decision taken by the BPC as early as on 6/7.12.2005. Much water has flown since then.
The challenge sought to be made by the petitioner in this writ petition by raising grievance against the impugned order of the learned Tribunal which has kept the earlier decision in respect of 60 feet road as it is, would certainly amount to a challenge to a decision taken by the BPC on 6/7.12.2005, against which no voice was raised by him, either at the time of objections having been invited by issuance of advertisement dated 16.11.2005 or by subsequently challenging the said decision before a court of law. Therefore, non-filing of objection by the petitioner in respect of a decision taken by BPC whereby the 60 feet wide road was kept in a straight alignment does have a material bearing to the challenge which is now being sought to be made against the judgment passed by the Tribunal whereby only the earlier decision of BPC taken on 6/7.12.2005 has been restored, by setting aside the later decision of 27.03.2006.
22. It has been submitted on behalf of the petitioner that the decision taken by BPC on 6/7.12.2005 was that the proposed sector plan of Sector 35 with regard to 60 feet wide road should be demarcated in a manner that no damage be caused to old houses and after proposed corrections in the sector plan, a final shape would be given for approval as well as publication. Further, it is submitted that in furtherance of the decision dated 6/7.12.2005 the BPC, in its meeting dated 27.03.2006, had decided that alignment of 60 feet vide road should be partly modified so as to implement the earlier decision. It has also been submitted that a perusal of the decision taken on 27.03.2006 would reveal that the earlier decision of 6/7.12.2005 was only considered by the JDA and thereafter it decided to implement the same. The said contention raised by the counsel for the petitioner does not find support from the factual position of the present case, as revealed from the material on record particularly the one placed before the Court by JDA at the time of hearing. The aforementioned extracts of the proceedings undertaken by JDA in respect of the 60 feet wide road in Sector 35 goes to show that after approval of the draft plan with a straight alignment of 60 feet wide road, as also reflected from the map initially prepared by JDA, objections were invited from the public, vide advertisement dated 18.11.2005. The objections so received were thoroughly considered by the Directorate (Town Planning) and after giving his comments on every and each of them, an agenda note was proposed for the meeting of BPC which was to finally decide the plan. The decision taken by the BPC on 6/7.12.2005 leaves no room of doubt that the same was final.
A mere reference to demarcation of road at the relevant time so as to save the pucka constructed houses of the persons who had raised objections, does not mean that the decision taken by BPC on 6/7.12.2005 was not a final one. The BPC had not either deferred the said item in the agenda at the time of meeting held on 6/7.12.2005 nor it had called for any further report in respect of location of the old house in existence before consideration of the agenda. As a matter of fact, consideration of another objection of Geegraj by the BPC in subsequent meeting of 27.03.2006 was neither in furtherance of any notification, as that of 16.11.2005, to the public at large inviting objections/ suggestions in respect of the 60 feet wide road nor it was appropriate for BPC to again consider the issue when it was already decided on 6/7.12.2005. Moreover, the BPC has on 27.03.2006 itself referred to the earlier decision and specifically mentioned that it was for the purpose of implementation of the decision taken on 6/7.12.2005. Therefore, it cannot be said that the decision of BPC taken on 6/7.12.2005 was not a final one or that the subsequent meeting of 27.03.2006 was in continuation of the earlier proceedings in respect of 60 feet wide road. Even if the publication of the decision taken by BPC on 6/7.12.2005 was not made till subsequent meeting of BPC, it would not empower the JDA to further take any decision on the issue which had been finalized on 6/7.12.2005. Non publication of the earlier decision by BPC may amount to an irregularity but that does not render the same as interlocutory so as to enable the JDA to take a decision in respect of 60 feet wide road, at a subsequent point of time. In fact, the decision taken by the JDA on 27.03.2006 is yet to be published as per the provisions of the JDA Act. If the argument with regard to attaining finality only on publication, as raised on behalf of the petitioner, is to be taken for the sake of it then despite of the decision of BPC on 27.03.2006 JDA can still further reconsider the issue with regard to the 60 feet wide road because the same has not yet been published. In such a situation, the petitioner still has a chance to approach JDA to have a decision of BPC and seek redressal of his grievance.
The decision given by the Tribunal would not come in his way to file objection and get the matter decided afresh from JDA, as he was not a party before the Tribunal. But a careful scrutiny of the record and the proceedings in the matter reveals that neither such is the factual position nor reconsideration of the issue is permissible under law. The argument raised on behalf of the petitioner which revolves around the assumption that there is continuity in the proceeding of meetings of BPC held on 6/7.12.2005 and 27.03.2006 and that the earlier decision of the BPC was not final, is not correct nor supported by any provisions of the relevant law.
23. It has also been argued that the Tribunal has erred in assuming that the sector plan providing for straight road is a finally approved plan. The said road was provided by a decision of BPC taken on 6/7.12.2005, wherein it was also decided that the demarcation should made in a manner that no damage is caused to constructed houses. The subsequent meeting of BPC on 27.03.2006 makes a change in the alignment of road only at the starting point where the 60 feet road joins the road of 160 feet and remaining part of the road continuous to be straight. Such a partial modification in the alignment do not serve the purpose of preventing damage to the constructed houses. The old houses in the aabadi area, as given by the residents in their objections/ suggestions in response to the Notification dated 16.11.2005, are no where near the partial modification of the alignment made by the subsequent meeting of BPC. Those houses would still have the danger of being demolished if the rest of the 60 feet wide road remains as it existed prior to the resolution dated 27.03.2006. The decision of the BPC taken on 6/7.12.2005 clearly shows that it was after considering the objection of various persons that it had decided to have a road which was to join the wider road of 160 feet with a straight alignment and keeping in view the danger to old houses, it was also decided that the said aspect would be kept in mind at the time of demarcation. If the argument taken on behalf of the petitioner is accepted as it is, then the question remains as to whether the old houses are saved by the partial change in the alignment of the road, as resolved in the meeting dated 27.03.2006. The obvious answer is in the negative because the partial modification in the alignment only covers the distance which is adjacent to the boundary of the petitioner's land and not upto the old houses, reference of which was made by Nawab Khan, Geegraj and others.
On one hand, it has been argued on behalf of the petitioner that the subsequent decision was only to further consider the directions issued on 6/7.12.2005 and on the other hand, it has been said that the earlier decision was not a final one and BPC had on 27.03.2006 done as per the requirement of Section 23 of the Act. As a matter of fact, the decision taken on 6/7.12.2005 was after following the procedure starting from the one laid down under Section 23(1) of the JDA Act, by inviting objection from the public; on receipt of the objections, the same were duly considered by the Director (Town Planning) an agenda note was accordingly prepared and it was placed before the BPC Meeting. The BPC (Layout Plan) had thereafter resolved on the proposed agenda and that is how on completion of the entire procedure, a decision was taken by the BPC. It is only because of a reference made in the said decision for demarcating the road in such a manner that no damage was to be caused to the constructed houses that even in the subsequent meeting of BPC on 27.03.2006, the basic consideration was on the earlier decision taken on 6/7.12.2005 and to implement the same.
Therefore, the subsequent decision to have a curve in the alignment of the road from the juncture of 160 feet wide road to a short distance was rather totally different from the one taken, in accordance to law, on 6/7.12.2005. It is for that reason that the Tribunal had set aside the subsequent resolution of 27.03.2006 and has ordered for restoration of the earlier decision of 6/7.12.2005. The Tribunal itself had not decided any issue pertaining to the alignment of a road and has only held that in face of the decision taken by the experts earlier, the subsequent resolution passed by the BPC on 27.03.2006 was not sustainable. The Tribunal has not ordered to amend or alter a decision which was taken with regard to a road. It has rather adjudicated on the question as to whether the subsequent resolution of BPC was correct or not when on the earlier occasion BPC had taken a final decision, after adopting due process of law. A change in the alignment of the road subsequently on 27.03.2006 was in fact serving purpose of only few persons and it cannot be said that the same would subserve larger public interest. A realignment of the road for a short distance is totally different from a road of straight alignment which was to be demarcated, keeping in view the minimum damage to the old constructed houses. Therefore, it is incorrect to say that decision of 6/7.12.2005 itself contemplated realignment of the road. The subsequent order for realignment of 60 feet road was to benefit the petitioner by giving a curve at the starting point joining the road of 160 feet width and was not in the interest of all those who had brought to the notice that on the entire length of 60 feet wide road, old houses were being affected and that is why a caution was given in the earlier decision of 6/7.12.2005 that at the time of demarcation of the road minimum damage be caused to the houses which are in existence for last 40 years or more.
24. Similarly, a submission was made on behalf of the petitioner that the Tribunal had exceeded its jurisdiction in deciding the alignment of road because the same could not have been done under Section 83 (8) (a) of the Act of 1982. As mentioned earlier, the Tribunal has not decided with regard to an alignment of a road or ordered for change in alignment of the road but it has only held that the road as decided by the BPC on 6/7.12.2005 was to be maintained. Therefore, no objection with regard to the decision taken by the Tribunal for alignment of a road is sustainable in the present case.
25. The case of Khusala Sethi (supra) was considered by the Hon'ble Supreme Court in a situation where land was being acquired for the purpose of construction of a highway by the National Highway Authority of India. In such a circumstance, the Hon'ble Supreme Court held that it was for the National Highway Authority of India, which is a professionally managed statutory body having expertise in the field of development and maintenance of national highways to decide whether a particular alignment would subserve larger public interest. The scope of judicial review by a Court is limited in such a situation because it is not equipped to decide the viability or feasibility of a particular project. But that is not the position in the present case where the Tribunal has only affirmed the decision taken by BPC (Layout Plan) on 6/7.12.2005. Therefore, the said case is of no assistance to the petitioner.
The contention raised on behalf of the petitioner that if any changes were required to be made in the sector plan then the same should have done with the conformity of the JDA bye-laws and the rules, is also devoid of any force. Such an argument is in contradiction to what has been argued by the counsel for the petitioner, in the earlier part, that the Tribunal does not have any jurisdiction under the Act of 1982 to decide any issue with regard to a road in a sector plan or in respect of its alignment, etc. Another argument raised on behalf of the petitioner, which is equally without substance, is that the curves which have now been given in the 60 feet wide road in the end and at the meeting point of 160 feet wide road was to avoid accidents. It is a matter of common knowledge and experience that if the end of the road or the starting point is in a straight line i.e. at 90 degree angle then the possibility of accidents are much less than a road which has a curve at that point. When a curve is given at a junction point of another road then there is likelihood of miscalculation in cutting of the vehicle at the right time and within the proper area and increases the possibility of the vehicle being out of control, resulting in accidents. A vehicle coming from a smaller road would be more careful and alert if the meeting point with the wide road is in a straight line which would make it more watchful with regard to the vehicle passing on the wider road.
The argument raised on behalf of the petitioner that by the order of Tribunal a new road is to be constructed through the house of the petitioner, is something contrary to the factual position on record. As a matter of fact, the entire argument raised on behalf of the petitioner is projected in such manner that if the order of Tribunal is allowed to be sustained then the house of the petitioner is in peril. If that is the situation in passing of the impugned order by the Tribunal which has only restored the earlier decision dated 6/7.12.2005 then the spontaneous and immediate step on behalf of the petitioner should have been to challenge the said order at the time of passing of it by BPC. The fact that petitioner did not challenge the decision of 6/7.12.2005 clearly establishes that it does not give rise to a situation by which the house of the petitioner was, in any manner, put to danger. When the counsel for respondent No.3 was specifically asked by the Court with regard to the location of the house of the petitioner on the land which is on the northern side of the 60 feet wide road, the reply given was that his land towards the front (western side) was touching 160 feet wide road and then upto the curve given in the alignment of 60 feet wide road, on the southern side, is totally vacant. He had informed that the house of the petitioner is rather on the back part of the land, from the front which is on the western side touching the 160 feet wide road and also far from the southern side, alongwith 60 feet wide road. In other words, whatever part of the land of the petitioner exists on southern-western side where the curve to 60 feet road has been given by the resolution dated 27.03.2006 is a vacant land except the boundary wall. This was more clearly explained by the counsel for respondent No.3 while showing the earlier map of the sector plan and subsequent one, which was placed on record by the counsel for the JDA-respondent No.1 on the directions of the Court.
This further goes to show that the short distance where the curve to the alignment of the 60 feet wide road has been given by the subsequent resolution was not required because the earlier decision by which the 60 feet wide road was planned to be of a straight alignment, would be touching a little part of the vacant land of the petitioner on southern-western side. If one is made to assume that the constructed house of the petitioner lies in that part of southern-western side and adjacent to 60 feet wide road, the point where the present controversy revolves, then it is difficult to understand as to why the petitioner did not file any objection to the notification issued on 16.11.2005 after issuance of draft sector plan which was proposed to be considered in the ensuing BPC meeting. Not only that, the petitioner did not file any objection later on even at the time when he had filed objection with regard to Mahima Shiksha Samiti which was considered simultaneously with objection filed by Geegraj in respect of 60 feet wide road in the meeting held on 27.03.2006. Now a lot of things have been raised and argued before this Court as if the impugned order passed by the Tribunal would result in demolishing of pucca house of the petitioner.
It is noteworthy that it was after visiting the site along with the Tehsildar, that the Tribunal had passed the order which is under challenge before this Court. No portion of the house of the petitioner is going to be effected so as to say that impugned order passed by the Tribunal, if sustained, would cause any irreparable loss to the petitioner. Furthermore, second resolution taken by BPC on 27.03.2006, modifying the alignment of the 60 feet wide road on its western part, joining the 160 feet wide road and resulting in a curve, does not in any manner take care of the old houses as referred to by the persons who had raised objections in response to the Notification dated 16.11.2005. Therefore, the said resolution of BPC was not for the purpose of saving the old houses in existence at the time of demarcation of the 60 feet wide road alongwith its straight alignment as decided in the meeting of 6/7.12.2005. As informed by the counsel for respondent No.3, the old houses are situated at a distance towards eastern side of 60 feet wide road and much beyond to the point where the curve in the alignment of the road had been given by the later resolution of the BPC on 27.03.2006.
26. Therefore, the aforesaid submissions made on behalf of the petitioner do not have any force. A careful look to the record including the one placed before this Court by the JDA; the maps of the Sector plan and the information given by the counsels for the respective parties during the course of argument, goes to show that the Tribunal has not committed any illegality or error so as to call for any interference by this Court. Apart from above, no other argument was raised on behalf of the petitioner before this Court.
27. After having given my anxious and thoughtful consideration to the facts of the case as revealed from the material available before the Court at the time of hearing, particularly the maps etc. so as to understand the location with regard to the land belonging to the respective parties; that of 160 feet wide road as well as the 60 feet wide road and the change made in the alignment, goes to show that there is no merit in this writ petition. As mentioned earlier, no objection or challenge whatsoever has been made on behalf of the petitioner prior to filing of the present writ petition, that is to say, neither at the initiation of the process in November, 2005 with regard to finalisation of a sector plan nor even at the time when the present issue was again considered in the meeting of BPC held on 27.03.2006 and this itself goes to show that no substantial injury was being caused to the petitioner by the order of the Tribunal much less to say any irreparable loss. This fact is further fortified from the reply filed by JDA, referred to above. It is not the case of the petitioner that the second resolution of BPC passed on 27.03.2006 was at his behest and that is why he is now aggrieved of the order of Tribunal by which the appeal filed by respondent No.3 having been allowed. The writ petition filed by JDA (14816/2010) also challenging the order of Tribunal dated 24.12.2009 has been dismissed by this Court on 6.7.2012.
28. Consequently, the writ petition is dismissed as being devoid of merits.
There shall be no order as to costs.
(RAGHUVENDRA S. RATHORE),J.
Gandhi tikam daiya All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Tikam Daiya Junior Personal Assistant.