Rajasthan High Court - Jaipur
Shri Kumawat Kshatriya Sam.Vik vs Ramesh Rohitwal And Ors on 24 February, 2012
Author: Alok Sharma
Bench: Alok Sharma
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH ORDER Shri Kumawat Kshatriya Samuhik Vivah Samiti Vs. Ramesh Rohitwal & Others (S.B. Civil Writ Petition No.8182/2007) S. B. Civil Writ Petition under Articles 226 and 227 of the Constitution of India. Date of Order: February 24, 2012. PRESENT HON'BLE MR. JUSTICE ALOK SHARMA Ms. Shikha Parnami, for the petitioner. Mr. Mahendra Goyal, for respondent JDA. BY THE COURT:
This writ petition has been filed challenging the order dated 13-7-2007, passed by the JDA Appellate Tribunal, Jaipur (herein after `the Tribunal') dismissing the reference under Section 83 of the Jaipur Development Authority Act,1988, filed by petitioner Society, requiring the Jaipur Development Authority, Jaipur (herein after `the JDA') to take proceeding to remove unauthorised occupation/ encroachment over public park.
I have heard learned counsel for the parties, and perused the material available on record of writ petition including the impugned order dated 13-7-2007 passed by the Tribunal.
The facts of the case are that in terms of agreement to sell dated 15-1-1981 on bona fide payment of requisite consideration the land falling in khasra No.303 admeasuring 39 Bighas 7 biswas in village Jhotwara Tehsil Jaipur were given in possession of Shri Chhatrapati Grah Nirman Sahakari Samiti Ltd. It appears that following the agreement to sell along with possession in terms of agreement, under Section 90-B of the Rajasthan Land Revenue Act,1955 the Society surrendered the land with the JDA and an order came to be passed in this regard on 30-1-2002, after due compliance with the procedures statutorily provided for.
Subsequently following the proceedings under Section 90B Land Revenue Act on 22-3-2002, the JDA approved the lay out plan for the residential scheme of Bal Vihar Colony proposed by the Society, leaving out plots No.31, 32, 39 and 40. Thereafter vide order dated 4-2-2002 the said plots were shown as utility area non particularly to be used as public park by the residents of Bal Vihar Colony.
The petitioner's case before the Tribunal, as also before this court is that in terms of a purported Gift-deed dated 25-10-1988, a certain parcel of land admeasuring 39 Bighas 7 Biswas in village Jhotwara Tehsil Jaipur sold by original khatedar was gifted to petitioner Society. It is however admitted position that the said gift-deed is not registered in terms of Section 123 of the Transfer of Property Act and of no avail to the donee. The petitioner society society has however sought to rely on a purported letter dated 5-3-1988 by Shri Chhatrapati Grah Nirman Sahakari Samiti admitting the ownership of petitioner society. It cannot however be overlooked that the land in respect of which the petitioner claimed benefit by way of gift deed dated 25-10-1988 and letter dated 5-3-1988, falls within the area of plots No.31, 32, 39 and 40 handed over to the Society under the agreement to sale dated 15-1-1981, in respect of which proceedings under Section 90-B of the Rajasthan Land Revenue Act had already been taken and concluded lay out plan approved by the JDA, and residential colony in the name of Bal Vihar Colony had already been approved, whereupon plots were sold and houses have been constructed. Merely based on an unregistered gift-deed dated 25-10-1988 and the consent letter of the Society 5-3-1988, the claim of the petitioner society that it is entitled for ownership and use of the land, which the JDA vide its decision dated 4-2-2002 set apart for the public park in Bal Vihar Scheme, cannot be countenanced. It would be relevant to stand that rule 30 of the Rajasthan Urban Areas (Sub-Divisions Reconstitution and improvement of Plots) Rules, 1975, provides where the JDA approves a residential scheme, except for the residential plots approved, common areas such road, parks and open spaces are to vest in the JDA. In terms of approval of lay out plan of the Bal Vihar Colony by the JDA vide decision dated 22-3-2002, as modified on 4-4-2002, the plots left out for the park thus vested in the JDA. The petitioner society without an iota of title/ ownership could not seek a direction against the JDA over such plots area marked and liable to be used as a public park. The petitioner's case was founded upon inadmissible evidence such as unregistered sale-deed, and a purported and apparently collusive admission letter of the Society regarding petitioner's ownership and denying the consequence of Section 90 of Land Revenue Proceedings vesting the whole of the land in the JDA and right of plot owners to enjoy the facility/ park area.
The Tribunal considered the matter at great length and rightly came to the conclusion that the petitioner Society did not have any rights and common/ facility areas/ parks in the approved lay out plan of the residential scheme having vested in the JDA, the petitioner Samiti is not entitled to any indulgence.
In the facts of the case, I am of the view that the petitioner Samiti was not able to make out any case of being aggrieved by the action of the JDA of approving Bal Vihar colony of Shri Chhatrapati Grah Nirman Sahakari Samiti Ltd. While approving the colony of Shri Chhatrapati Grah Nirman Sahakari Samiti Ltd. certain areas were left out for the purpose of a public park, regarding which decision was taken by the JDA on 4-2-2002 and the said land vested in the JDA in view of rule of 30 of 1957 Rules. A public park duly approved by the JDA, remains in the ownership of the JDA, and it cannot be allowed to be encroached upon by any person or society mere so without any substantive evidence of ownership in regard thereto as required in law.
The writ petition is without any merit and quite baseless. Petition dismissed. Stay application dismissed. The Jaipur Development Authority is directed to immediately take steps to remove the encroachment from the public park in the scheme of Bal Vihar Colony of Shri Chhatrapati Grah Nirman Sahakari Samiti Ltd. Kalwar Road, as approved by the JDA, within a period of four weeks from today in accordance with Section 72 of the Jaipur Development Authority Act, 1982.
(Alok Sharma),J.
arn/ All corrections made in the order have been incorporated in the order being emailed.
Arun Kumar Sharma, Private Secretary.