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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.

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.