Rajasthan High Court - Jaipur
Shiv Nagar A Vikas Samiti And vs State Of Raj And Ors on 11 September, 2018
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No.8991/2006
1. Shiv Nagar- A Vikas Samiti Harnathpura, Jhotwara, Jaipur
through its Secretary, Gopal Swaroop Sharma S/o Shri Radhey
Shyam Sharma by Caste Brahmin R/o Plot No. 68, Shiv Nagar A,
Harnathpura, Jaipur.
2. Prabhu Singh Rathoure S/o Shri Bhanwar Singh Rathore R/o
Plot No. 45, Shiv Nagar A, Harnathpura, Jaipur.
3. Laxman Singh S/o Shri Sahab Singh R/o Plot No. 194, Shiv
Nagar A, Harnathpura, Jaipur.
4. Shri Ram Kishan Sharma S/o Shri Radhey Shyam Sharma
R/o Plot No. 68, Shiv Nagar A, Harnathpura, Jaipur.
5. Shri Narayan Singh Rajawat S/o Shri Dewat Singh Rajawat
R/o Plot No. 226, Shiv Nagar A, Harnathpura, Jaipur.
----Petitioners
Versus
1. The State of Rajasthan through its Secretary, Local Self
Department, Secretariat, Jaipur.
2. The Commissioner, Jaipur Development Authority, Jaipur.
3. The Secretary, Jaipur Development Authority, Jaipur.
4. Dy. Commissioner, Zone-VII, Jaipur Development Authority,
Jaipur.
5. The Appellate Authority, Jaipur Development Authority,
Jaipur.
6. Shri Gopal Takhar S/o Shri Mangilal Takhar aged 38 years
R/o Plot NO. 22, Tara Nagar, Jhotwara, Jaipur.
7. Smt. Geeta Takhar W/o Shri Gopal Takhar by caste Jat R/o
Plot NO. 22, Tara Nagar, Jhotwara, Jaipur.
8. Smt. Shamim Bano W/o Shri Nawab Ali Khan by Cast
Kayamkhani Musalman R/o 70, Alpana Colony, Khatipura, Jaipur.
9. Smt. Anwar Bano W/o Shri Bhawaroo Khan by Cast
Kayamkhani Musalman R/o 70, Alpana Colony, Khatipura, Jaipur.
----Respondents
For Petitioner(s) : Mr. Devendera Raghava, Adv. For Respondent(s) : Mr. Mahesh Gupta, Adv.
Mr. D.S. Poonia, Adv.
Mr. Amit Tanwani, Adv.
Mr. Anil Mehta, Adv.
(2 of 16) [CW-8991/2006] HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA Order reserved on 21st August, 2018 Order pronounced on 11th September, 2018
1. The petitioners have filed this present writ petition wherein they have challenged the decision taken by the Bhawan Nirman Manchitra Samiti in its 92nd meeting dated 27.01.2006 of agenda No.9 and also the decision of the JDA Appellate Tribunal dated 10.11.2006.
2. Vide decision dated 27.01.2006 in its 92nd meeting, the JDA has revised its earlier decision taken in 14 th meeting dated 17.04.2002 and has released plots No.146 to 152 and 159 to 165 from the facility area.
3. The submission of the learned counsel for the petitioner is that housing society i.e. Mutual housing cooperative society limited, had set up on Kalwar road scheme known as Shiv Nagar- A. While approving the plan submitted by the Mutual Society (supra), the JDA in its 14 th meeting held on 17.04.2002 had approved facility area of 3500 square yards for construction of park. The JDA also constructed a 4 feet high boundary wall around the park and the facilities of the park were being enjoyed by the residents of the area peacefully and uninterrupted. When the plot holders purchased their plots, the Mutual Grah Nirman Sahkari Samiti had shown the park of the area of 3500 square yards.
4. It is their submission that in 92nd meeting of JDA, the earlier decision dated 17.04.2002 was reversed and the decision to keep facility area was deleted wrongfully. Thereafter the JDA released the plots for allotment namely plot Nos.142 to 152 and 159 to 165 in favour of respondents.
(3 of 16) [CW-8991/2006]
5. The aforesaid decision dated 27.01.2006 was challenged by the petitioners by preferring an appeal before the JDA Appellate Tribunal, the Tribunal appointed a Commissioner for site inspection who give a report that the park was bound by a boundary wall by all four corners. The Tribunal has rejected the appeal subsequently vide its judgment dated 10.11.2006.
6. The submissions of learned counsel are firstly that the JDA does not have the authority to revise the plan after four years and exclude from the land already earmarked for park and allot it for residential purpose. Secondly, an open space reserved as public park which was duly approved could not have been reduced merely because the total area of the colony as per the plan only contained 36% residential area and remaining was facility area, thirdly that the conversion has been done by the JDA for extraneous purposes and to give benefit to the respondents, fourthly that the change in the approved plan has been done in contravention of the Rajasthan Urban (Sub-Division Reconstitution and Improvement of Plots) Rules 1975 (hereinafter referred to as "the Rules of 1975").
7. Counsel for the petitioners has pointed out that an interim order was passed by this Court on 29.11.2006 which was vacated on 06.08.2007 on the application filed under Section 226(3). Against the interim order of dismissal, the petitioner had filed D.B. Special Appeal (Writ) No.1054/2007 wherein the Court passed interim order in following terms:-
"....It fully protects the interests of the petitioners and we are satisfied that the following order shall meet the ends of justice to (4 of 16) [CW-8991/2006] remain operative until disposal of the writ petition :
(1) The respondents no. 6, 7, 8 and 9 shall file a undertaking/s, individually or collectively as the case may be, with the Registrar (Administration) of this Court that in the event of writ petition no. 8991/2006 filed by Shiv Nagar- A Vikas Samiti, Harnathpura, Jhotwara, Jaipur being allowed and the decision taken by the Bhawan Nirman Manchitra Samiti in its 92 nd meeting dated 27th January, 2006 as regards Agenda no. 9 and the decision of the Jaipur Development Authority Appellate Tribunal dated 10th November, 2006 being set aside, the respondents no. 6, 7, 8 & 9 shall remove the development, if any on plots no. 146 to 152 and 159 to 165, Shiv Nagar A Scheme at their cost and the said plots (being plots no. 146 to 152 and 159 to 165) shall be restored to its original position.
(2) The respondents no. 6, 7, 8 and 9 are restrained from transferring, alienating or creating any third party right or interest of any nature whatsoever in respect of plots no. 146 to 152 and 159 to 165, Shiv Nagar A Scheme until the disposal of the writ petition.
(3) The order dated 6th August, 2007 passed by the Single Judge in so far as the interim order dated 29th November, 2006 has been vacated, is modified to the aforesaid extent. (4) Looking to the controversy involved in the writ petition. We request the Single Judge to hear and decide the writ petition expeditiously. The parties are given liberty to move the Single (5 of 16) [CW-8991/2006] Judge for fixing the early date of hearing of the writ petition."
8. The JDA has filed its reply and submitted that the promise made by Mutual Grah Nirman Sahakari Samiti to the plot holders would not be a concern of the JDA. It is admitted that 3500 square yards park was reserved and 1 feet boundary wall was constructed by the JDA. After regularizing of 14 plots from the facility area namely numbers 146 to 152 and 159 to 165 in its meeting dated 27.01.2006, 678.79 square yards area has been left which is 60% area of the total colony and as per the standards of the JDA Authorities. It is stated that residential area is 40960.88 yards and 72226.40 square yards is for roads and for park. The area left out is 678.88 square yards after the aforesaid decision. It is stated that originally the plots No.146 to 152 and 159 to 165 had been covered under the facility area upon representation. Their grievances were considered and the impugned decision was taken. As per Rule 11 of the Rules of 1975, the saleable areas shall not exceed 66% of the total area however in small size development it may more whereas the saleble area in the present scheme is much less even after including the concerned plots. The appeal of the petitioner was dismissed by the Tribunal taking into consideration the provisions of the Rules of 1975.
9. Reply has also been filed by the respondents in whose favour the plots have been released. Apart from challenging the locus of the petitioners in assailing the action of the JDA on the ground that the petitioners could not be said to have any personal grievance. It is stated that most of the owners of the plots whose plots were wrongfully included in the facility area were Army (6 of 16) [CW-8991/2006] solders or their dependents and after having come to know about the wrongful action of excluding their plots and including it in the park, they had approached the JDA by making representation. It is stated that the then Senior Town Planner had wrongfully included their plots in the park while preparing the plan of the scheme and was member of the BPC. He was under the influence of the petitioners and illegally increased the facility area to exclude the plots of the respondents. In this regard, charge sheet was issued to the concerned Senior Town Planner by the JDA Commissioner and departmental enquiry was initiated vide order dated 16.11.2005. Thereafter, the decision of BPC 14 th meeting was reviewed in the 92 nd meeting of the BPC of JDA on 27.01.2006. The decision therefore does not call for any interference.
10. It is further stated that although an interim order was passed in their favour by the Division Bench, they have not made construction wall on the plots. It is also stated that the park has not been developed and the land is lying in the same stage. It is also stated that Society itself had taken up the grievance of the respondents before the JDA to exclude their plots from the park area and now the Society has taken a u turn. Similar replies have been filed by other respondents.
11. Having noted the submissions and pleadings, this Court finds that it is an admitted position amongst the parties that originally the plots were mentioned and allotted to respondents in the plan prepared by the Mutual Grah Nirman Samiti. However the final plan prepared by the then Senior Town Planner of JDA, the plots area was included in the facility area and a park admeasuring 3500 square yards was earmarked for the Shiv Nagar-A Colony at Harnathpura Jhotwara and the plan including the said park of (7 of 16) [CW-8991/2006] 3500 square yards was duly approved by the BPC in its 14 th meeting. After the said plan was duly approved, it appears that representations have been made for revising the plan and include the plots of plot holders said to have been allotted by the Society. The Society also represented to include the plots Nos. 146 to 152 and 159 to 165 which were excluded in the plan approved on 27.04.2002 earlier. Taking into consideration the objections, the plan has been revised by the JDA in its 92 nd meeting which is under challenge. It is submitted that such a course could not be adopted and before doing so opportunity should have been given to petitioner of hearing.
12. Before adverting to the issue whether such course could have been adopted by the JDA, it would be appropriate to take into consideration the provisions of the Rules of 1975 which are said to have been adopted by the JDA. Certain provisions may be quoted for the purpose, which reads as under:-
"11. Saleable Area.-The saleable area in any scheme of sub-division, reconstitution or improvement of plots shall not exceed 66% of the total area, however in the schemes of development upto 2 Hectares it may be more subject to provisions of the prevailing Township Policy."
27. Treatment of the applications.-(1) Within three months from the date of receipt of application under rule 6 with all relevant and complete information the Trust shall communicate to the developer the manner in which his application has been treated by the Trust.
(8 of 16) [CW-8991/2006] (2) The Trust may ask the developer to furnish some more informations which may be considered essential before taking a decision but such information shall be asked within sixty days from the date of receipt of the application. (3) In case further details or informations are asked for from the developer with respect to his application a further period of ninety days from the receipt of further information under this sub-
rule shall be allowed to the Trust to communicate to the developer the final decision of the Trust on his application.
(4) Should the Trust neglect or omit for ninety days after the receipt of the application under rule 6 or after me receipt of further information or' further details under sub-rule (2) or sub-rule (3), the developer may by written notice sent by a registered post call the attention of the Trust to such neglect and omission and if such neglect or omission continues for a further period of thirty days from the date of receipt of such communication, the Trust shall be deemed to have sanctioned the proposed application and the plan for sub-division, reconstitution or improvement of plots:
Provided that nothing in this sub-rule shall be construed to authorise the developer or any person to act in contravention of any provisions of the Act or any rule or bye-law or in disregard of the master plan or draft master plan or scheme or draft scheme or in contravention of any order, of the State Government, Chief Town Planner or the Trust.
(5) The Trust may not approve a plan of site which has not been included in the master plan (9 of 16) [CW-8991/2006] but which falls within the jurisdiction of the Trust.
(6) No order for any modifications rejection of any application for permission of sub-division, reconstitution or improvement of plots or of any plan thereunder shall be made by the Trust without giving the applicant any opportunity of being heard and without giving the reasons of so doing.
30. Consequences of approval or non-
approval of the plans for sub-division etc-(l) As soon as a plan is approved by the Trust with or without modification the developer shall deposit with the Trust cost of development within 30 days from the date of communication of the approval by the Trust to the developer. The [rate] of development charges shall be based on the prevailing P.W.D. Schedule inclusive of necessary escalation charges. [If any, and reducing therefrom the share of conversion charges, if any, that may have been transferred in respect of the land by the Board of Revenue for Rajasthan in pursuance of the orders of the Revenue Department of the Government of Rajasthan for the time being in force.] (2) As from the date of the approval of the sub- division by the Trust, ownership of roads, parks and open spaces shall vest in the Trust, (3) In case the developer is unable to deposit the development charges under sub-rule (1), he may transfer the ownership of such numbers of plots to the Trust in lieu of development cost within the time specified in sub-rule (1) as shall be equivalent to the development charges (10 of 16) [CW-8991/2006] determined by the Trust under sub-rule (1) The plots so obtained by the Trust shall be sold as soon as may be possible by open public auction. (4) In the event of failure to deposit the development charges by the developer under sub-rule (1) or by transfer of plots to the Trust undoer sub-rule (3) within the time specified therein the approval accorded by the Trust shall be deemed to have been cancelled, and the fee deposited by the developer shall lapes to the Trust.
(5) No plans, for sub-division etc., shall be released by the Trust to the developer unless requirements or sub-rule {1) or sub-rule (3) have first been complied with.
(6) If any person whether developer or, the purchaser of plot does any work in contravention of the approval accorded by the Trust under rule 27 and, despite refusal for the approval under rule 27, and rule 28, the Trust may direct such person by notice in writing to stop the work in progress and remove and pull down any work or restore the land to its original condition after such person has been given an opportunity of explanation:
Provided that despite the removal of the work or restoring the land to its original condition under this rule, any person again does any work in contravention of the provisions of the Act and these rules or sells or purchases the land shall be liable to resumption by the Trust on payment of such amount as the Collector of district may determine.
32. Power of the Trust to revise its decision.-(1) The Trust may revise its earlier (11 of 16) [CW-8991/2006] decision given with respect to a plan in the form of rejecting approved plan approving a rejected plan with or without modifications, or attaching such conditions and restrictions to an approved plan with or without modification which it deems, essential in the interest of securing expedient execution of any scheme of improvement. .
(2) If at any stage the Trust is satisfied that the developer has made certain deviation from the approved plan in contravention of the sanction, it may make such modifications so as to render the improvement in accordance with the approved plan.
(3) If the Trust is satisfied that the developer has failed to make necessary modifications to render the improvement in accordance with the approved plan or that the improvement undertaken by the developer has reached such a stage that it is uneconomical to restore the improvement in accordance with the approved plan, the Trust may temporarily stop such improvement and take up the amendment of the approved plan to itself and modify or make adjustment of the approved plan to itself as it may deem it essential to render the improvement in accordance with the approved plan or amended plan as the case may be and may undertake the improvement itself. The expenses incurred by the Trust in carrying out the improvement shall be chargeable to the developer on whose failure the Trust had to modify or to amend the plan as aforesaid. The Trust may proceed in the manner laid down in sub-rules (2) and (3) or rule 31 above to recover the expenses incurred by it under this rule from (12 of 16) [CW-8991/2006] the developer or the person to whom the site has been sold.
(4) The Trust while making amendment of adjustment of any plan submitted by a developer or while drafting a new scheme of improvement, may alter the boundaries of a site and thus include or exclude other adjoining areas to or from the scheme already contemplated and it may propose the compulsory acquisition of such areas or enter into an agreement with their owner or occupier of the land concerned.
(5) The Trust shall, as soon as it decides to undertake improvement by itself with respect to any site to the required standards or according to the approved plan or in any manner as may be desired by it\ take over from the developer all such responsibilities and obligations under these rules and hence-forth all the interests in the schemes shall be vested in the Trust which may thereafter deal with the scheme:
Provided that the Trust shall in no case be responsible for the recovery of any dues of any kind which the developer has to collect from any person who has purchased the land in the area covered by the scheme.
(6) No order shall be passed by the Trust under this section without giving the developer an opportunity of being heard against ; and stating the reasons for the proposed order."
13. Keeping in view of the aforesaid provisions, it would be appropriate to quote agenda No.9 of the 92nd meeting and the decision taken therein which reads as under:-
(13 of 16) [CW-8991/2006]
",ts.Mk ua0 9 & E;qpq;y gk- dks- lks- dh ;kstuk
f'kouxj *,* ds Hkw[k.M la[;k 143 ls 152 o 159 ls 165 dks lqfo/kk {ks= ls eqDr djus ckcr~A izdj.k ds lca/k es fopkj&foe'kZ fd;k x;k vkSj lfefr ds lnL;ksa }kjk ekSdk fujh{k.k fd;k x;kA izdj.k esa iwoZ esa Hkou ekufPk= lfefr ¼ys vkmV Iyku½ dk 14oha cSBd fnukad 17-04-2002 esa ,ts.Mk la[;k 3 ds fcUnq la[;k 4 esa fy;s x;s fu.kZ; **;kstuk dk dqN Hkkx lqfo/kk {ks= ds vUrxZr j[kk tk;s** dks fujLr djrs gq, rnkuqlkj ;kstuk ekufp= esa la'kks/ku fd;s tkus dk fu.kZ; fy;k x;kA"
14. A look at the aforesaid rules of 1975 shows that the saleble area available in a scheme upto 2 hectares shall not exceed 60%. Thus, 34% of the area has to be kept as facility area. A procedure has been laid down how an application for regularization of 'developers' scheme is to be examined by the concerned trust or JDA which has adopted the said rules. Notifications and rejections of applications for reconstitution or change of plan can be made by the trust after giving an opportunity of being heard as provided under Rule 29 (6). This opportunity however has to be given to the developer who is the applicant and not to the concern owners of the plot. Consequences of approval are also laid down under Rule 30, above.
15. Rule 32 empowers the trust to revise its decision if at any stage the trust is satisfied, deviations having been made or certain faults having been crept in the approved plan. The power is exclusively within the domain of JDA/Trust.
16. In opinion of this Court, such a provision is required as there can be a certain instances where a particular plot which has (14 of 16) [CW-8991/2006] already been included in a scheme may escape notice inadvertently or it may be deliberately deleted for giving benefit to some other beneficiary. Once the error is brought to the notice of the JDA Authorities, it is incumbent upon them to examine the same and correct its plan. Thus, in view of the aforesaid provisions, it is apparent that the JDA has the power to revise its plan in terms of Rule 32 of the Rules of 1975 and change the approved map which has already been approved earlier.
17. The next question arises as to who is to be given an opportunity of hearing as envisaged under Section 32 (6) ? As per the scheme of Rules as quoted above, it is the developer alone who is required to be given opportunity of hearing and not the residents. The petition filed before this Court is by the residents of Shiv Nagar and not by the Mutual Cooperative Housing Society which were the developer of the land and thus the submission of learned counsel for the petitioner that they were required to be given an opportunity of hearing is wholly unfounded.
18. The next question which arises for consideration is whether in light of the judgments passed by the Apex Court, the space reserved for park or play ground for general public could be reduced and the land of the park could be allotted to a private person. The said submission is based on law as laid down by the Apex Court in the cases of Bangalore Medical Trust Versus B.S. Muddappa & Ors., AIR 1991 Supreme Court 1902 and M.I. Builders Pvt. Ltd. Versus Radhey Shyam Sahu And Others, (1999) 6 SCC 464. However, it is to be noted that facts of this case do not relate to a public park but to a land which is being earmarked for a park. It is not the case of the petitioners that a public park was existing in the locality from which plots (15 of 16) [CW-8991/2006] have been earmarked and allotted to the individuals. The situation is otherwise, as it is apparent from the charge sheet issued to the Senior Town Planner, originally in the plan the plots were existing and the park was not shown in the plan. Thus on account of the change of the plan made by the Senior Town Planner the plots of the respondents were included as part of the park. Thus, the park was shown on the land of the plot holders.
19. In the Bangolre Media Trust (supra) the situation was otherwise, the land of the existing public park was converted into a private nursing home and the concerned neighborhood of the locality had therefore challenged the said action of the B.D. Authority and in the said context the Supreme Court held that no land can be earmarked from an existence public park.
20. This Court also finds that the JDA Tribunal has examined the aspect from the other angle too and has reached to the conclusion that the saleble area even after including the said plots would be less than as prescribed under the rules and enough space will be available for a park.
21. In the circumstances, therefore, the contentions raised by the petitioner that the land of the public park has been converted to a private plots, is factually not made out. It is to be noted that the private plots had already been purchased by the respondents prior to the colony being approved by the JDA in its 14 th meeting of 2002. It is also to be noted that these plots holders were Army Personnels who may not have known about their plots being included in the park area at that relevant time. This Court finds that the JDA has only corrected its earlier mistake by taking the decision in its 92nd meeting and such a decision regularizing the plots which were already existing in the plan, is within their (16 of 16) [CW-8991/2006] jurisdiction and domain and no interference thereto is called for.
22. Accordingly, the judgment passed by the Tribunal dated 10.11.2006 does not call for any interference. The writ petition in view of the aforesaid finding and conclusions fails and is accordingly dismissed. No costs.
(SANJEEV PRAKASH SHARMA),J R.Vaishnav Powered by TCPDF (www.tcpdf.org)