J D A vs Sh Bal Chand Agarwal And Anr on 24 February, 2011

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Rajasthan High Court - Jaipur

J D A vs Sh Bal Chand Agarwal And Anr on 24 February, 2011

1) This writ petition has been filed by the Jaipur Development Authority (for short, the JDA) against the order of the Jaipur Development Authority Appellate Tribunal (for short, Tribunal) dated 9/10/2009. By the aforesaid judgment, the Tribunal allowed appeal filed by Shri Bal Chand Agarwal, respondent No.1 herein whereby, the Tribunal granted permission to the respondent to raise construction upto the height of 30 meter on the basis of the width of his road, which is 80 feet because respondent surrendered additional land and therefore, he was held entitled to additional Flor Area Ratio (FAR). It was further directed that in case construction of parking place is made, an additional height may be permitted only as per clause 8.11 of the Jaipur Development Authority (Jaipur Region Building) Bye Laws, 2000 (for short, Bye-laws of 2000). The Tribunal further directed removal of two temples, which were constructed by making encroachment on the land acquired for widening of road.

2) Shri R.B. Mathur, learned counsel for the petitioner has argued that so far as claim of the petitioner for giving benefit on parity with Labh Singh i.e. allotment of alternative land and cash compensation is concerned, same stands rejected by judgment of the co-ordinate bench of this Court in his earlier writ petition, namely S.B. Civil Writ Petition No.3937/1997 vide judgment dated 8/1/2007. In the aforesaid writ petition, respondent challenged validity of the decision of the Building Plan Committee (for short, BPC), which in its meeting held on 6/1/2007 sanctioned building plan of the respondent and an information in this regard was sent to him vide communication dated 16/1/2007. In that meeting, respondent was also present, who agreed for zero setback on front and backside and setback of 6 feet each on both sides. Building plan was approved subject to respondent's furnishing an undertaking that while digging basement, no damage should be caused to adjoining building and subject to that undertaking, he shall be entitled to raise construction upto maximum height of 12.5 meters and built basement + ground floor + two upper floors. This Court by the aforesaid judgment, while partly allowing the writ petition directed reconsideration of the matter by the BPC on the question of setback and height with reference to clauses 8.8(ii) and 8.11 (i), respectively of the Bye-laws of 2000. Respondent filed appeal against the aforesaid order, which was dismissed by the Division Bench of this Court vide order dated 5/11/2008. Respondent then filed review petition wherein, division bench directed the respondent to approach the Jaipur Development Authority Appellate Tribunal against the fresh order passed by it on 1/5/2008 reiterating the same building plan. It was thereupon that respondent filed appeal before the Tribunal. The Tribunal has by misconstruing clauses 8.8(ii) and 8.11(i) of the Regulations of 2000 allowed appeal in the aforesaid terms. The Tribunal also directed that in view of acquisition of the land by the JDA for widening of the road, construction of temples made by encroachment on the land acquired for land may be removed by adopting due process of law because it was frustrating the purpose of acquiring the land for widening of the road.

3) Shri R.B. Mathur, learned counsel for the petitioner has argued that so far as setback is concerned, respondent by filing affidavit in lieu of surrendering 110 square yards of land without any compensation had agreed for approval of the building plan while leaving 5 feet setback on Southern side, 6 feet setback on Eastern side, 7 feet setback on Western side and Zero setback on Northern side. This was subject to the condition that he will be entitled to construct the basement, ground floor, first floor and second floor as per Bye-laws of 2000. Even then, the JDA considering that Labh Singh, whose land was also acquired for the same purpose, was granted zero setback on either side, respondent was also additionally granted zero setback at the backside. If the respondent is constructing the basement, he cannot be granted zero setback on both the sides and he himself agreed to leave setback of 6 feet. In the case of Labh Singh, circumstances were entirely different because JDA acquired 89.25 square meters of plot out of total 173.2 square meters of plot of Labh Singh by way of surrender for the purpose of widening of the road, thus leaving only 86.9 square meters, therefore he was granted certain additional benefits on the aspect of zero setback. However, plot size of the respondent is in the dimension of 66.26x66 feet, which comes to approximately 390 square meters. Two cases cannot be therefore said to be comparable. On the question of height, learned counsel for the petitioner referring from the lists appended to the Bye-laws of 2000 argued that case of the respondent would fall within the purview of 'Talika Ga' in clause (vi) wherefor, maximum permissible height is 12.5 square meters. It is this provision, which is applicable to the petitioner and not clause 8.11(iv) of the Bye-laws of 2000. Wherever, the rule making authority intended to apply clause 8.11 of the Bye-laws of 2000, it has specifically so indicated. Learned counsel in this connection referred to Part-II of 'Talika Ga' in Entry 8 whereof, clause 8.11 supra has been applied for the construction of building of cinema hall. He also referred to 'Talika Da', which is applicable for the institutional buildings in clauses (iii) to (vii) thereof, wherefor, similarly, clauses 8.11 have been held to be applicable. It is argued that this Court was not apprised of these provisions when the earlier writ petition was argued therefore despite remand of the matter to the BPC, such committee was bound by the provisions contained in the Bye-laws of 2000. Permissible height limit in conformity therewith was allowed to the respondent but not beyond the maximum permissible height of 12.5 meters, accepting width of 80 feet on the front side of the land whereas, on the other side, width of the road is only 30 feet.

4) Shri Bal Chand Agarwal, respondent herein, who appears in person, however argued that BPC has misconstrued clause 8.11 of the Bye-laws of 2000 because his plot size is actually 1350 square yards although, same has been divided into two parts between respondent and his brother Shri Prem Prakash Agrawal but it has not been formally sub-divided as per provisions of clause 8.14 and therefore it should be treated to be unified plot of more than 1350 square yards and in that case, its size would exceed 750 square meters thus, making the permissible height of construction upto 30 meters. It is contended that even in height of 12.5 meters, the JDA has been permitting construction of basement + ground floor + three floors, which has not been granted to respondent illegally. The Tribunal's order is therefore perfect and valid and does not call for any interference. Respondent further argued that in the review petition filed by him before the Tribunal, a reply was filed on behalf of the JDA wherein, the officer-in-charge has on affidavit stated that order passed by the Tribunal does not suffer from any infirmity or illegality and it is a legally correct order. He therefore argued that it is not open to the JDA to file writ petition.

5) Shri Bal Chand Agarwal has also argued that land of the respondent and other persons were acquired by the JDA by way of surrender and the purpose of acquiring such land was to widen the road. JDA has paid compensation in cash for a sum of Rs.50 lacs to the shop holders i.e. Sumitra Devi, Savitri Devi and Modiji for acquiring their shops and alloted one shop each of the value of Rs.6 lacs to their three tenants. Even then, the JDA allowed illegal construction to come up on the land of the road, which has admittedly been raised after such land was vacated by the erstwhile owners. This was done by ulterior design and illegal and extraneous motives on the part of the unscrupulous elements and JDA officials, who allowed the illegal construction to be raised. Tribunal has rightly directed JDA to remove such encroachment by adopting due process of law and widen the road for which purpose, the land was acquired. It is further argued that though the government has vide notification dated 16/7/1992 has transferred the area in which disputed plot is situated to Jaipur Municipal Corporation but clause (4) thereof clearly provides unfinished development works would have to be completed by JDA. It is therefore prayed that writ petition be dismissed.

6) I have given my anxious consideration to the rival submissions and relevant law and material on record. In so far as the argument of parity on the question of allotment of alternative land and cash compensation to Labh Singh is concerned, the same has already been considered and rejected by the co-ordinate bench of this Court in S.B. Civil Writ Petition No.3937/1997 filed by the respondent himself therefore, it is now not open to this Court to again examine the same issue because that judgment has attained finality. Regarding setback, respondent has already been granted zero setback on front and back sides whereas, in the original building plan, such benefit was allowed only in the front side. Respondent in his affidavit before the BPC/the JDA also agreed to provide setback on three sides except the backside but that has been diluted by the JDA itself. Reason given by the JDA that since respondent is constructing basement, therefore it is necessary to provide setback on either side of the size of 6 feet, cannot be said to be illegal or otherwise extraneous because if the respondent is constructing basement and raising ground floor and two upper stories, obviously users of those premises would need to access the basement as also ground floor and the upper floors for which proper side set backs would be basic necessity.

7) On the question of height, I find substance in what has been argued by Shri R.B. Mathur, learned counsel for petitioner that clause 8.11 of the Bye-laws of 2000 cannot be read in isolation of four lists including 'Talika Ga' and 'Talika Da' in which clause 8.11 has been specifically applied wherever the rule making authority considered it appropriate. In the plot size of 300 square meters upto 750 square meters, the permissible limit as per Entry-(vi) of 'Talika Ga' is 12.5 square meters. In Entry-(vi) of Part-II of 'Talika Ga', which provides construction of cinema building, clause 8.11 of the Bye-laws has been held applicable. Similarly, in Entries (iii) to (vii) of 'Talika Da', which pertains to construction of institutional buildings of plot size more than 750 square meters, the very same clause 8.11 of the Bye-laws of 2000 has been made applicable. This means that BPC or for that matter JDA, whenever they receive requests for approval of the building plan, has to consider the cases falling in those categories according to clause 8.11. In other words, cases which are not covered by those categories viz; Entry-(vi) of Part-II of 'Talika Ga' and Entries (iii) to (vii) of 'Talika Da', clause 8.11 of the Bye-laws of 2000 would not be applicable.

8) This brings me now to the argument of the respondent that in similar case of Labh Singh, the JDA has allotted alternative land and cash compensation more than the size and even in some cases, the JDA has illegally permitted construction beyond the permissible limit prescribed in the Bye-laws of 2000. Argument of equality and on that basis claim of parity, based on such perceived discrimination cannot be accepted on the ground of such an illegal action of the JDA because equality is a positive concept, which cannot be enforced in negativity. Moreover, it is the JDA, which has come up before this Court against the order of the Tribunal and not the respondent and therefore also such argument cannot be allowed to be raised in the writ petition filed by the JDA.

9) When respondent has applied for permission to make construction on the land in the size of 590 square yards, the JDA possibly cannot assume its actual size to be 1350 square yards, which was size of undivided plot. Merely because respondent submits that formal sub-division was not permitted by the JDA, does not mean that he can require JDA to presume size of his plot double than what actually it is on which basis aforesaid building plan of the respondent has been approved accepting his contention about his plot size of being 590 square yards, which approximately comes to 390 square meters, therefore argument that sub-division has not been permitted by the JDA is wholly devoid of merit and rejected.

10) Coming lastly now to the direction issued by the JDA Appellate Tribunal to the JDA for removal of the encroachment made by construction of two temples so as to widen the road, this is indeed quite surprising that when the land was taken possession of by the JDA by way of surrender from the original owners by demolishing their houses and/or shops in or about 1995; by making payment of huge amount of compensation and giving them alternative land for the houses/shops, how possibly they could subsequently allow encroachment to come up on such land in the midst of the road. Once such land was set apart to be used for the way, it was held by JDA or for that matter, Municipal Corporation in trust on behalf of general public. No such encroachment could be allowed to be raised or permitted to stand. Tribunal on this aspect has rightly directed the JDA to remove those encroachments by adopting due process of law and ensure widening of the road for which purpose, the land was taken in possession by the JDA. It has been rightly argued by the respondent that in notification dated 16/7/1992 of the government whereby the area in question was transferred to Jaipur Municipal Council, clause (4) specifically provided that JDA shall be responsible for completing unfinished development works.

11) While partly allowing the writ petition on the question of height and set backs, and setting aside the decision of the Tribunal thereabout, I reiterate that part of the direction of the Tribunal whereby, it directed JDA to remove encroachment made in the name of two temples by adopting due process of law for widening the road within a period of six months for which purpose, the JDA may in its discretion, relocate the temples elsewhere. The Commissioner JDA shall be personally responsible for execution of this direction. The JDA shall file compliance report and for this purpose, the matter shall be listed before this court after six months.

(MOHAMMAD RAFIQ), J.

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Rajasthan High Court - Jaipur