Rajasthan High Court - Jaipur
Jaipur Development Authority vs Prerna Agricultural Farms Private Ltd ... on 28 July, 2023
Author: Ganesh Ram Meena
Bench: Ganesh Ram Meena
[2023:RJ-JP:15733]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 15286/2018
Jaipur Development Authority through Secretary,
Indira Circle, JLN Marg, Jaipur.
----Petitioner/Respondent
Versus
1. Prerna Agricultural Farms Private Ltd.
2. Panchratna Motels & Resorts Pvivate Limited.
3. Pink City Gardens Pvivate Limited
4. Tanmay Gardens Private Limited D-44, Subhash Marg, C-Scheme, Jaipur through Shri Vimal Chand Surana s/o Shri Rajmal Surana, r/o Sawai Ram Singh Road, Jaipur (Director)
----Respondents/appellants For Petitioner(s) : Mr Ani Mehta, AAG with Mr Yashodhar Pandey & Ms. Amru Vishnoi For Respondent(s) : Mr. Bharat Vyas Sr. Advocate with Mr. Arvind Kumar Jain and Mr. Harsh Kulshrestha HON'BLE MR. JUSTICE GANESH RAM MEENA Order Date of Reserve ::: April 25, 2023 Date of Pronouncement ::: July 28, 2023
1. By filing the present writ petition the petitioner- Jaipur Development Authority (for short 'the petitioner- JDA') has made a challenge to the judgment dated 15.12.2016 passed by the Appellate Tribunal, Jaipur Development Authority, Jaipur (for short 'the Appellate Tribunal') in Appeal No.182/2013, whereby the Appellate Tribunal quashed (Downloaded on 11/11/2023 at 06:41:06 PM) [2023:RJ-JP:15733] (2 of 14) [CW-15286/2018] and set aside the letter/order dated 01.10.2013 issued by the Jaipur Development Authority (for short 'the JDA') and issued certain directions. The operative part of the order dated 15.12.2016 passed by the Appellate Tribunal is as under:-
"1- tfoizk ds vkns'k fnukad 01-10-13 dk tks vk{ksfir vkns'k gS og fof/k fo:} gksus ds dkj.k vikLr fd;k tkrk gSA 2- izR;FkhZ tfoizk dks ;g vknsf'kr fd;k tkrk gS fd og vihykFkhZ dEifu;ksa ds LokfeRo ,oa vkf/kiR; ds mDr rhuksa Hkw[k.M la[;k ,]ch]lh dze'k% 17853 oxZehVj] 57400 oxZehVj ,oa 2086-50 oxZehVj dk iquZxBu dj Hkou fofu;e] 2010 es O;kolkf;d iz;kstukFkZ fu/kkZfjr ekun.Mks ds vuqlkj vkt ls ,d ekg esa LFky ekufp= tkjh djsaA 3- iquZxfBr LFky ekufp= tkjh djus ds i'pkr tfoizk }kjk vihykFkhZ dEifu;ksa }kjk ,d ekg esa Hkou ekufp= vuqeksnukFkZ izLrqr fd;s tkus ij tfoizk mDr Hkou ekufp= dks fu;ekuqlkj 2 ekg dh vof/k esa vuqeksfnr dj tkjh djsaA 4- Hkou ekufp= vuqeksnu dh frfFk ls fuekZ.k vof/k dh x.kuk dh tkos rFkk uxjh; fodkl foHkkx] jktLFkku ljdkj ds i= dzekad i-10 ¼ 61½ ufofo @ 3@ 2009 fnukad 19 tqykbZ] 2013 dh ikyuk dj Hkou ekufp= tkjh fd;s tkosA 5- bl fu.kZ; dh izekf.kr izfr lfpo] tfoizk dks vo';d okLrs dk;Zokgh gsrq izsf"kr dh tkosA"
2. The background of this case is that the respondents/ appellants owned and possessed 5.74 hectare land, situated in Village Chainpura, Tehsil Sanganer, towards Southern Western side of Jawahar Circle and also 17853 sq. meter land adjacent to it. In the year 1999, the Tourism Department, Rajasthan issued No Objection Certificate for Entertainment Complex Project envisaged by the respondents/ appellants and after following the due process of law on 15.11.2000 the Urban Development & Housing Department (for short 'the UDH') issued a letter to (Downloaded on 11/11/2023 at 06:41:06 PM) [2023:RJ-JP:15733] (3 of 14) [CW-15286/2018] the JDA in regard to conversion of 5.74 hectare land owned by the respondents/ appellants from agricultural purpose to commercial purpose on the rates as mentioned in Point No.3 of the Circular dated 13.09.2000. On 25.01.2001 the JDA issued an allotment letter for the land measuring 57400 sq. meter and on 17.02.2001 a lease deed was also executed by the JDA for commercial use and 200 ft. wide road was provided as an approach road. After approval of the plans by the JDA for the construction of Multiplex, the respondents/ appellants submitted an application for allotment of 18833 sq. meter land for entertainment purposes stating that the said land belongs to them but it is being considered as a government land as the land acquisition proceedings are pending. After due sanction, a lease deed was issued on 25.11.2003 for the Project.
3. On 18.12.2007 an application was moved by the respondents/ appellants under section 90B of the Rajasthan Tenancy Act in respect of 3500 sq. meter land bearing Khasra No.148/1. The JDA observed that 1413.50 sq. meter land is affected by the plan of Sector Road and 2086 sq. meter land could be regularized. The lease deed for the land for part of Khasra No. 148/1 was executed on 04.10.2013 with the condition that no construction shall be made on it. In this manner the respondents /appellants in all hold the land measuring 77,339.50 sq. meter by way of three lease-deeds in their favour. (Downloaded on 11/11/2023 at 06:41:06 PM) [2023:RJ-JP:15733] (4 of 14) [CW-15286/2018]
4. The respondents /appellants applied for reconstitution of their three plots to the JDA and when no heed was paid to them by the JDA, they preferred S.B. Civil Writ Petition No.3850/2010 (Prerna Agriculture Farms Pvt. Ltd. & Ors. Vs. Jaipur Development Authority), which was disposed of vide order dated 12.08.2011 with the direction to the government to take a decision on the application of the respondents/ appellants for reconstituting the plots expeditiously and preferably within 90 days. On 22.03.2022 in the BFC Meeting of the JDA it was decided to seek guidance from the State Government for reconstitution of the plots of the respondents/appellants because the land usages of the lease deeds were different. The petitioner- JDA on consideration of the application of the respondents/ appellants for reconstitution of the plots owned by them observed that the reconstitution of all the three plots is not possible for the reason that the lease deeds for the land of two plots adjacent to the land measuring 2086.50 sq. meter bearing Khasra No.148/1 situated in Village Chainpura, are for different usages. One lease deed has been issued for commercial purpose and other for tourism unit. It was also observed in the said letter that the land bearing Khasra No.148/1 measuring 2086.50 sq. meter for which the proceedings under section 90B of the Rajasthan Tenancy Act have been done for commercial purposes but no lease deed has been issued so far. It was (Downloaded on 11/11/2023 at 06:41:06 PM) [2023:RJ-JP:15733] (5 of 14) [CW-15286/2018] further observed that the first the respondents/ appellants should get the lease deed issued in their favour for the land bearing Khasra No.148/1 situated in Village Chainpura and thereafter they should move an application for reconstitution.
5. Being aggrieved by the letter/order dated 01.10.2013 issued by the petitioner- JDA to the respondents/ appellants in regard to their application for reconstitution of three plots they filed an Appeal No.182/2013 before the Appellate Tribunal. During the pendency of the appeal before the Appellate Tribunal, the lease deed of the land situated in Khasra No.148/1 measuring 2086.50 sq. meter was executed in favour of the respondents/ appellants and also the usages of all the three lease deeds were made as tourism unit.
6. On consideration of the fact that the lease deed has been issued in favour of the respondents/appellants of all the three plots with the usages of the tourism unit, the Appellate Tribunal set aside the letter/ order dated 01.10.2013 and further issued certain directions as quoted in the foregoing para.
7. Counsel appearing for the petitioner- JDA submitted that the letter/ order dated 01.10.2013 issued by the JDA though in no manner can be said to be illegal or arbitrary because as per the provisions of law there cannot be reconstitution of the plots which are for different usages. It was further submitted that by the time the respondents/ (Downloaded on 11/11/2023 at 06:41:06 PM) [2023:RJ-JP:15733] (6 of 14) [CW-15286/2018] appellants moved an application for reconstitution of three plots but the lease deed of the land situated in Khasra No.148/1 measuring 2086.50 sq. meter was not executed in their favour. Counsel further submitted that the Appellate Tribunal was vested with the jurisdiction to examine the order under challenge to pass an order upholding, reversing or modifying the order. Counsel further submitted that the Appellate Tribunal was having no jurisdiction to issue directions beyond the scope of the appeal. Counsel further submitted that at the relevant time of issuing the letter /order dated 01.10.2013, since two plots were having different usages and the lease deed was not issued for the third plot, reconstitution was denied on that count alone without examining the other relevant factors required to be fulfilled for reconstitution including the proposed project in the light of the JDA Bye-laws of 2010. Counsel submitted that even in case of change of usages of all the three plots as a tourism unit during the pendency of the appeal, the Appellate Tribunal could have set aside the letter/ order dated 01.10.2013 and the application of the respondents/ appellants for reconstitution of three plots could have been considered in the light of the relevant provisions and requirement under the Regulations. Counsel further submitted that the Appellate Tribunal has issued directions of such a nature that the JDA has to make reconstitution of the plots of the respondents/appellants without (Downloaded on 11/11/2023 at 06:41:06 PM) [2023:RJ-JP:15733] (7 of 14) [CW-15286/2018] examining their entitlement and requirements according to law and the JDA Building Bye-laws of 2010 but based on the usages of three plots. Counsel further submitted that the judgment of the Appellate Tribunal issuing directions is wholly perverse and without jurisdiction, and therefore, same deserves to be quashed and set aside.
8. Counsel appearing for the respondents/ appellants submitted that the writ petition has been filed by the petitioner- JDA after an inordinate delay of two years in the year 2018 against the judgment of the Appellate Tribunal passed on 15.12.2016. Counsel further submitted that the letter/order dated 01.10.2013 issued by the JDA no more survives because the during the pendency of the appeal before the Appellate Tribunal, the lease deed of the land situated in Khasra No.148/1 has been executed on 04.10.2013 and the usages of all the three plots have been made as a tourism unit. Counsel further submitted that the petitioner- JDA issued notices dated 14.03.2014 under section 32 of the JDA Act regarding running of three marriage gardens without any permission in the project land proposed for entertainment complex and further on 27.05.2014 the JDA in an arbitrary manner ordered to stop the operation of three marriage gardens with immediate effect. Counsel also submitted that the respondents/ appellants being aggrieved by the actions of the JDA, preferred an Appeal No.206/2014, before the Appellate Tribunal, which was also (Downloaded on 11/11/2023 at 06:41:06 PM) [2023:RJ-JP:15733] (8 of 14) [CW-15286/2018] disposed of vide judgment dated 15.12.2016 and the Appellate Tribunal set aside the notices and the orders. Counsel further submitted that under Article 227 of the Constitution of India the High Court has a limited jurisdiction to interfere in the order of the Appellate Tribunal and the writ petition filed by the petitioner- JDA is devoid of merits. Counsel further submitted that no allotment conditions have been violated by the respondents/ appellants and the conduct of the petitioner- JDA is unreasonable and arbitrary.
9. Heard the submissions advanced by both the counsels appearing for the respective parties.
10. By the order/letter under challenge before the Appellate Tribunal i.e. letter/ order dated 01.10.2013 issued by the JDA, the petitioner- JDA has not accepted the application of the respondents/ appellants for reconstitution of their three plots observing that the lease deed of one of the plot has not been issued by that time and the usages of other two plots are different. During the pendency of the appeal before the Appellate Tribunal, the JDA issued the lease deed of the third plot in favour of the respondents/ appellants and the usages of all the three plots were made as tourism unit. Hence, the grounds for rejection of the application of the respondents/ appellants for reconstitution of the three plots as ordered in the order/letter appealed dated 01.10.2013, no more survives and thus, the judgment of the Appellate Tribunal to the extent of (Downloaded on 11/11/2023 at 06:41:06 PM) [2023:RJ-JP:15733] (9 of 14) [CW-15286/2018] setting aside the order/letter dated 01.10.2013 does not call for any interference.
11. The legal issue before this Court for consideration is whether the Appellate Tribunal under the appellate jurisdiction apart from upholding, reversing or modifying the order appealed, can issue other directions? Section 83 of the JDA Act provides for constitution of the Tribunal, which is as under:-
"83. Constitution of Tribunal.- (1) The State Government shall, by notification in the Official Gazette, constitute a Tribunal for the purposes of this Act.
(2) The Tribunal shall consist of one person who shall be an officer of the State Government and shall be paid such salary and allowances 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 (Downloaded on 11/11/2023 at 06:41:06 PM) [2023:RJ-JP:15733] (10 of 14) [CW-15286/2018]
(b) any person aggrieved by any threatened act or injury from the Authority affecting his rights may refer the dispute to the Tribunal with in thirty days of the communication or knowledge of such threatened act or injury;
and the decision of the Tribunal shall be final]."
12. Sub-clause (6) of Section 83 of the JDA Act says that 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.
13. Section 107 of the Code of Civil Procedure speaks of powers of Appellate Court, which reads as under:-
"107. Powers of Appellate Court.- (1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power-
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to
require such evidence to be taken.
(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein."
14. Order 41 Rule 32 CPC speaks that the Appellate Court may pass a judgment for confirming, varying or reversing the decree from which the (Downloaded on 11/11/2023 at 06:41:06 PM) [2023:RJ-JP:15733] (11 of 14) [CW-15286/2018] appeal is preferred. Order 41 Rule 32 CPC reads thus:-
"32. What judgment may direct.- The judgment may be for confirming, varying or reversing the decree from which the appeal is preferred, or, if the parties to the appeal agree as to the form which the decree in appeal shall take, or as to the order to be made in appeal, the Appellate Court may pass a decree or make an order accordingly."
15. The provisions of law i.e. the provisions contained in the JDA Act as well as the Code of Civil Procedure clearly speak that in an appellate jurisdiction the Appellate Court of the Tribunal can uphold, reverse or modify the order against which the appeal has been preferred. The Hon'ble Supreme Court in the case of Chitturi Subbanna Vs. Kudapa subbanna & Ors., reported in AIR 1965 SSC 1325 has observed in para 77 as under:-
"77. This is not an isolated decision, nor indeed does it lay down a novel rule of practice. It is right and proper that parties to a litigation should not be permitted to set up the grounds of their claims or defence in driblets or at different stages and embarrass the opponents. Considerations of public policy require that a successful party should not, at the appellate stage, be faced with new grounds of attack after having repulsed the original ones. The proper function of an appellate court is to correct an error in the judgment or proceedings of the court below and not to adjudicate upon a (Downloaded on 11/11/2023 at 06:41:06 PM) [2023:RJ-JP:15733] (12 of 14) [CW-15286/2018] different kind of dispute a dispute that was never taken before the court below. It is only in exceptional cases that the appellate court may in its discretion allow a new point to be raised before it provided there are good grounds for allowing it to be raised and no prejudice is caused thereby to the opponent of the party permitted to raise such point. But where the appellate court in exercise of its discretion refuses leave to a party to raise such point there is little scope for any indulgence being shown by this Court. This would suffice to dispose of the question whether mesne profits could be awarded till the date of delivery but as my learned brother has considered that question on merits, I must deal with it as well."
16. Thus, in view of the provisions of law, as quoted above, and the Judgment of the Hon'ble Apex Court cited above, it is very much clear that the Appellate Court or the Tribunal has jurisdiction to uphold, reverse or modify the order against which an appeal has been preferred. The Appellate Court or Tribunal has no jurisdiction to adjudicate upon a different kind of dispute that was never taken up by the JDA while passing the order under challenge in appeal. The Appellate Tribunal while deciding the appeal vide its judgment dated 15.12.2016 apart from setting aside the order/letter appealed dated 01.10.2013 and reasons which led to issuance of same has issued certain directions to the petitioner- JDA which was neither a subject matter of the appeal nor (Downloaded on 11/11/2023 at 06:41:06 PM) [2023:RJ-JP:15733] (13 of 14) [CW-15286/2018] they were taken into consideration while issuing the order under challenge. Hence, the directions issued by the Appellate Tribunal are without jurisdiction and deserves to be set aside and to left upon the JDA to take fresh decision in accordance with law and requirements.
17. Counsel for the respondents/ appellants also submitted that the writ petition has been filed by the petitioner- JDA by the delay of two years. On consideration of the jurisdiction of the Appellate Tribunal and the directions issued by the JDA in the present case, this Court has already observed above that such directions are without jurisdiction by the Appellate Tribunal while exercising the appellate jurisdiction. When this Court finds that the Appellate Tribunal has exceeded its jurisdiction, the delay of two years in filing the writ petition cannot be a ground to dismiss the writ petition. One cannot be allowed to go ahead without fulfilling the requirements under law only because the JDA filed the petition after two years. Counsel for the respondents/ appellants also submitted that this Court under Article 227 of the Constitution of India in a supervisory jurisdiction has a limited scope to interfere in the orders of the Court below/Tribunal. Under Article 227 of the Constitution of India under supervisory jurisdiction, this Court is supposed to correct the error made by the Court below/ Tribunal. Since in the present case, as observed above, the Appellate Tribunal has exceeded its jurisdiction (Downloaded on 11/11/2023 at 06:41:06 PM) [2023:RJ-JP:15733] (14 of 14) [CW-15286/2018] while exercising the appellate jurisdiction in issuing the directions which were neither agitated before it nor were examined by the JDA while passing the order/letter dated 01.10.2013. Therefore, this Court finds no merits in this argument of the counsel for the respondents/ appellants.
18. In view of the discussions made above, the writ petition is partly allowed. The judgment dated 15.12.2016 passed by the Appellate Tribunal to the extent of setting aside the order /letter dated 01.10.2013 is upheld and the other directions issued in para Nos.2,3 and 4 of the operative part of the judgment are quashed and set aside. However, in the interest of justice, it is observed that the petitioner- JDA shall examine afresh the application of the respondents/ appellants for reconstitution of their three plots in the light of the provisions of law and requirements provided therein without being prejudiced by any observations made in this order within two months from today.
19. In view of the order passed in the main petition, the stay application and all pending applications, if any also stand disposed of.
(GANESH RAM MEENA),J Sharma NK-Dy Registrar (Downloaded on 11/11/2023 at 06:41:06 PM) Powered by TCPDF (www.tcpdf.org)