JUDGMENT 1. Some important questions of general importance about the functioning of the 'Jaipur Development Authority'(in short, J.D.A. or Authority) have been raised and argued at length in the present writ petition under Article 226 of the Constitution. 2. The J.D.A. is a public statutory body constituted and established Under section 3 of the Jaipur Development Authority Act (hereinafter to be referred as 'the Act')., The object and purpose for the constitution of the Authority has been well demonstrated in the lengthy preamble of the Act which runs as under:- "An Act, for forming Jaipur city and certain contiguous areas into Jaipur Region to provide for the establishment of an Authority for the purposes of planning, coordinating and supervising the proper, orderly and rapid development of the Jaipur Region and of executing plans, projects and schemes for such development and to provide for matters connected therewith. Whereas, Jaipur City and areas contiguous to it, are being progressively developed and populated, and the necessity is being increasingly felt for forming these areas into Jaipur Region and for setting up an Authority for the purpose of planning, co-ordinating and supervising the proper, orderly and rapid development of these areas, ;n which several Government departments, local authorities and other organisation are at present engaged within their own jurisdiction; to provide also that such Authority be enabled either itself or through other authority to formulate and execute plans, projects and schemes for the development of Jaipur Region, so that housing community facilities, civic amenities and other infrastructures are properly created for the population of Jaipur Region in perspective of 2001 A.D. or thereafter including the intermediate stages; and to provide for matters connected with the purposes aforesaid." 3. It is not necessary to go through the several provisions of the Act. There can be no doubt that the J.D.A. as a local authority, is wholly responsible for the preparation and implementation of every development plan. The preamble shows that the Act was enacted with a view to ensure that Town Planning/Development Schemes are made in a proper manner and their execution is made effective. There can be no doubt that the J.D.A. as a local authority, is wholly responsible for the preparation and implementation of every development plan. The preamble shows that the Act was enacted with a view to ensure that Town Planning/Development Schemes are made in a proper manner and their execution is made effective. It was, therefore, necessary to provide that the Authority shall prepare a development plan for the entire area within its jurisdiction.Section 16 states that the main object of the Authority shall be to secure an integrated development of the Jaipur Region and for this purpose, the various powers and functions of the. Authority have been described in the section. Amongst others, the Authority is also required to do the following functions:- "(a) Urban planning including the preparation of Master Development Plan and Zonal Development Plans and carrying out surveys for the purpose and also making as may be deemed necessary; (b) formulation and sanction of the projects and schemes for the development of the Jaipur Region or any part thereof; (c) execution of projects and schemes directly by itself or through a local authority or any other agency." Section 17 provides that except the previous permission of the Authority, no other authority or person shall undertake any development within the Jaipur Region of the type as the Authority may from time to time specify as provided in the Act. Then, Section 18 empowers the Authority to give directions to any local authority or other authority or person with regard to the implementation of any project or scheme financed under section 16. Sub-section (3) of Section 18 describe the supervisory powers of the Authority to ensure that each project or scheme is executed in the interest of the overall development of Jaipur Region and in accordance with a duly approved plan, project or scheme. By Section 21, the Authority is required, with a view to securing planned and integrated development and use of land, to carry out a civic survey of and prepare a Master Development Plan for Jaipur Region. The Master Development Plan is to be aimed to provide that quality of life that a citizen of Jaipur Region could desirably be expected to lead a medium range and long term perspective. The Master Development Plan is to be aimed to provide that quality of life that a citizen of Jaipur Region could desirably be expected to lead a medium range and long term perspective. This plan is to cover the needs of the growing city of Jaipur and other areas of Jaipur Region, the net work of public utilities, civic amenities, community facilities, housing, communication and transport, the projects or schemes for conservation and development of natural resources and such other matters as are likely to have a bearing on the integrated development of the area. The Master Development Plan may also define the various zones into which the Jaipur Region shall be divided for the purposes of development and undertake the manner in which the development is to be carried out and the land in each zone is proposed to be used and the stages by which any such development shall be carried out and shall serve as a basic pattern of frame work within which the Zonal Development Plans of the various zones may be prepared. By section 22, the Authority is required to prepare a Zonal Development Plan for each of the Zones into which the Jaipur Region may be divided. Section 23 provides the procedure to be followed in the preparation and sanction of Plans. Then, section 25 provides the procedure for subsequent modification of Plans. Section 29 provides that after a plan comes into operation, the Authority may, by notification in the Official Gazette, declare any area in Jaipur Region to be a development area for the purposes of the Act. Sub-section (3) of section 29 further provides that thereafter no person shall institute or change the use of any land or carry out any development of land without the permission in writing of the Authority. Section 30 provides the powers of the Authority of revocation and modification of permission to development granted under the Act or any other law. Section 31 provides penalty for unauthorised development or for use otherwise than in confirmity with the Plan. Section 32 empowers the Authority to remove any unauthorised development while Section 33 empowers to stop unauthorised development.Chapter VII of the Act deals with making of projects and Schemes. Section 31 provides penalty for unauthorised development or for use otherwise than in confirmity with the Plan. Section 32 empowers the Authority to remove any unauthorised development while Section 33 empowers to stop unauthorised development.Chapter VII of the Act deals with making of projects and Schemes. Section 38 provides that the Authority for the purpose of implementing the proposals in any plan, may make such projects and schemes for the integrated development of Jaipur Region or any part thereof, as may be considered necessary. The purpose of making projects and schemes is the implementation of the proposals contained in the Master or Zonal Development Plans. Section 39 provides the procedure of preparation of Projects and Schemes. Then Section 40 provides restriction on the use and development of land after declaration of a Scheme. Section 42, then, empowers the Authority to withdraw or make suitable modifications in any approved project or scheme. 4. It is clear, therefore, on the consideration of the provisions of the Act, especially the sections of the Act referred to above, that the Authority is exclusively entrusted with the duty of framing and implementation of the schemes and hears to that end and has been invested with almost plenary powers. Since development and planning is primarily for the benefit of the public, the Authority is under an obligation to perform its duty in accordance with the provisions of the Act. It is well settled now that where a statute imposed a duty and a performance or non-performance of which is not a matter of discretion, a mandamus may be granted ordering that to be done which the statute requires to be done. 5. Against this background, I have to consider the questions in issue in the writ petition. For this, necessary and relevant facts are given:- The J.D.A. made a residential scheme knwon as 'Malviya Nagar Scheme', in which, plots of various categories were de-marketed, including the plots of category 'C'. In the Scheme, the petitioner was allotted a corner plot bearing No. C-382. In the approved Scheme and in lease deed issued to the petitioner, there is a 40' wide road towards the north side of petitioner's plot and a 10' wide lane/street towards its western side. Respondent No. 2 Smt. Asha Singh, who is an I.A.S. Officer, was allotted Plot No. C-381 which is on the western side of the aforesaid 10' lane/street. Respondent No. 2 Smt. Asha Singh, who is an I.A.S. Officer, was allotted Plot No. C-381 which is on the western side of the aforesaid 10' lane/street. In between petitioner's plot and the plot of Respondent No. 2, 10' wide lane/street exists as per the scheme. This fact is admitted by the respondent JDA in its reply to the writ petition. Otherwise also, the existence of 10' wide street/lane is well established from the material produced in the writ petition. The case of the petitioner is that respondent Nos. 2 & 3 (respondent No. 3 is the husband of respondent No. 2) have constructed a house on their above plot after leaving only 3' open space as set back towards eastern side of their plot which is contrary to the building bye-laws, which require a set back of 10'. This factual position is also not in dispute before me. Further case of the petitioner is that the above referred 10' lane/street is a link road which connects two main roads as provided in the Scheme and the same was/is for the use of public in general and more particularly of the residents of the area for going to the shopping complex, community hall, Vidyut Abhiyanta Society plots, park and temple of Lord Shivaji. The petitioner has also pleaded that he made a representation to the Authority on Aug. 10, 88 (Ann.3) making a protest against the proposed action of the Authority, having come to know that it was going to allot the aforesaid 10' wide public land/street to the respondent Smt. Asha Singh in a clandestine manner. The officers of the Authority got alarmed on this protest and in order to give an eye-wash, a notice was issued by them in daily newspaper 'Rajasthan Patrika' dated Aug. 18, 1988, (Ann. 6), whereby objections were invited from the public about the proposal of the Authority to close the above 10' wide public lane. In response to the notice, the petitioner and other inhabitants of the locality made objections/representations on various dates against the proposed action of the Authority. Copies of some of these representations have been placed on the record as Annexures-8,9,10, & 11. In response to the notice, the petitioner and other inhabitants of the locality made objections/representations on various dates against the proposed action of the Authority. Copies of some of these representations have been placed on the record as Annexures-8,9,10, & 11. When no action was taken by the Authority, the writ petition with a prayer to issue an appropriate writ, order or direction in the nature thereof to quash and set aside the order by which the 10 feet side public street/lane was to be closed, and direct J.D.A. to keep the road undisturbed. A further mandamus was sought against J.D.A. to take appropriate action against the respondents Nos. 2 & 3 for the constructions made in violation to the building bye-laws or approved plan of J.D.A. 6. The writ petition was listed before the Court on January 23, 1988. While issuing notices to the respondents to show cause as to why the petition be not admitted and allowed, an ad-interim stay order was also passed to the effect that the aforesaid 10' wide lane shall be retained in its original position and no construction shall be allowed on it. This stay order was confirmed on 3.8.89 after hearing the counsel of the respondents. 7. The respondent J.D.A. in its reply, has admitted the existence of 10' lane/street in the Scheme and the allotment of the corner plot to the petitioner towards east of the above lane. Its plea, however, is that the respondent Smt. Asha Singh made an application stating therein that the aforesaid 10' wide land was of no utility and it should be allotted to her. Thereupon an offer was given to the petitioner and other adjoining plot holders to deposit the requisite amount for the allotment of the land of 10' lane. It was also pleaded that for this a decision was taken by the Land & Property Committee to close the land and divide the same equally amongst the four adjoining plot holders. The JDA did not deny the violation of the Building Bye-Laws by the Respondents Nos. 2 & 3 while constructing their house, but it was pleaded by it that suitable action shall be taken against them. However, no material was placed on the record to show that the Authority has taken or even contemplated any action against them for the violation. 2 & 3 while constructing their house, but it was pleaded by it that suitable action shall be taken against them. However, no material was placed on the record to show that the Authority has taken or even contemplated any action against them for the violation. In short, for 10' wide street/lane, the plea of the Authority is that the Land & Property Committee has taken a decision to close it and that the Authority has power to make modifications in the Scheme as it did not cause any material alteration.On the other hand, respondents Nos. 2 & 3, in their joint reply, while taking some preliminary objections about the maintainability of the writ petition, took the plea about 10' wide lane/street that it was a 'strip of land' and not a road, and it served no purpose, and that no person was being affected by the allotment of the said land. In the reply, they admitted that towards eastern side of their house, only 3'open space as set back was left by them, but according to them, the petitioner cannot make any grievance for the violation specially when he himself has committed violation by covering an area of 10'x 17' in a room which was to be left as a set back. A copy of the proceedings of the meeting of Land & Property Committee dated 6-1-1989 was placed on the record as Annexure -R/2. 8. From the pleadings of the parties and the documents filed in the writ petition, the following facts are not in dispute:- (i) 'Malviya Nagar Housing Scheme' is a sanctioned scheme of JDA under Chapter VII of the Act. As per the scheme, a 10' wide lane/street was left towards the west of the petitioner's plot bearing No. C-382; (ii) In the said scheme, Plot No. C-381 was allotted to the respondent Smt. Asha Singh which lies towards west of the above 10' lane/street. The petitioner and the respondent Smt. Asha Singh have constructed their houses on their plots, but Smt. Asha Singh, instead of leaving 10' wide open space as required by Building Bye-Laws of JDA left only 3' wide pacec as set back towards east of her plot; (iii) Smt. Asha Singh moved an application before JDA to close the above 10' wide lane/street and allot its land to her as a 'strip of land'. On this application, Land & Property Committee of JDA took a decision in its meeting dated 6-1-89 to close the lane/street and allot its land amongst four plot holders of Plots C-370, C-371, C-382 and C-381; (iv) The Land & Property Committee, in the above decision, treated the 10' wide lane/street as a 'strip of land' and from the decision, it also does not appear that the objections filed by the petitioner and other inhabitants of the locality were considered; (v) The Authority also did not initiate any action against the respondent Smt. Asha Singh for the constructions made by her in violation to the Building Bye-Laws. 9. It is not disputed before me that JDA is a local authority under Article 12 of the Constitution. Therefore, its every action must satisfy the test of Article 14 of the Constitution.Its decision affecting others should be informed by reasons and satisfy the test of reasonableness.In M/s. Dwarkadas Marfatia and Sons v. Board of Turstees of the Port of Bombay, 1989 (3) SCC 293 , the Apex Court of the Country reiterated this principle in para 25 of the judgment, which reads as under: Therefore, Mr. Chinai was right in contending that every action/activity of the Bombay Port Trust which constituted 'State' within Article 12 of the Constitution in respect of any right conferred or privilege granted by any statute is subject to Article 14 and must be reasonable and taken only upon lawful and relevant grounds of public interest. Reliance may be placed on the observations of this Court in E.P. Royappa. v. State of Tamil Nadu (1974) 4 SCC 3 : 1974 SCC (L&S) 165: (1974) 2 SCR 348 : Maneka Gandhi v. Union of India (1978) 1 SCC 248 : (1978) 2 SCR 621 : R. D. Shetty v. International Airport Authority of India 1979-SCC 489 : (1979) 3 SCR 1014 Kasturi Lal Lakshmi Reddy v. State of J&K : (1980) 4 SCC 1 : (1980) 3 SCR 1338 and Ajay Hasia v. Khalid Mujib Sehraverdi : (1981) 1 SCC 722 : (1981) 2 SCR 79 . Where there is arbitrariness in State Action, Article 14 springs in and judicial review strikes such an action down. Every action of the executive authority must be subject to rule of law and must be informed by reason. Where there is arbitrariness in State Action, Article 14 springs in and judicial review strikes such an action down. Every action of the executive authority must be subject to rule of law and must be informed by reason. So, whatever, be the activity of the public authority, it should meet the test of Article 14. The observations in paras 101 and 102 of the Escorts Case (1966)1 SCC 264 : 1985 Supp. 3 SCR 909 : read properly do not detract from the aforesaid principles." In S.N. Mukherjee v. Union of India, AIR 1990 SC 1984 , after discussing the various judgments, the law has been again summarised in para 38 of the judgment : "The object underlying the rules of natural justices is " to prevent miscarriage of justice" and secure "fair play in action". As pointed out earlier, the requirement about recording of reasons for its decision by an administrative authority exercising quasi-judicial functions achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision-making. Keeping in view the expanding horizon of the principles of natural justice, we are of the opinion, that the requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of powers by administrative authorities. The rules of natural justice are not embodied rules. The extent of their application depends upon the particular statutory framework where- under jurisdiction has been conferred on the administrative authority. With regard to the exercise of a particular power by an administrative authority including exercise of judicial or quasi judicial functions, the-legislature while conferring the said power, may feel that it would not be in the larger public interest that the reasons for the order passed by the administrative authority be recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement. It may do so by making an express provision to that effect as those contained in the Administrative Procedure Act, 1946 of U.S.A. and the Administrative Decisions (Judicial Review) Act, 1977 of Australia whereby the orders passed by certain specified authorities are excluded from the ambit of the enactment. Such an exclusion can also arise by necessary implication from the nature of the subject matter, the scheme and the provisions of the enactment. Such an exclusion can also arise by necessary implication from the nature of the subject matter, the scheme and the provisions of the enactment. The public interest underlying such a provision would outweigh the salutary purpose served by the requirement to record the reasons. The said requirement cannot, therefore, be insisted upon in such a case." 10. In the light of the above discussions, the first and the foremost question for consideration is whether the decision of the Land & Property Committee dated 6.1.89 (Annexure R. 2) was validly made. The decision of the Committee has been challenged on a number of grounds. Mr. Maloo, learned counsel for the petitioner, strongly urged that the said decision is totally illegal and without jurisdiction. According to the learned counsel, the Committee had no authority to take a decision to close the public lane/street shown in the approved scheme of J.D.A. It was further contended that otherwise also, the decision is arbitrary and does not contain any reason. Mr. Maloo contended that the objections/ representations made by the petitioner and other inhabitants of the locality were not even considered and the entire action was malafide aimed to help the respondent Smt. Asha Singh, an influential I.A.S. Officer, to cover up the violations of Building Bye-Laws committed by her in constructing her house.On the other hand Mr. C.K. Garg, learned Additional Advocate General, with his usual vehemence contended that the writ of mandamus cannot be claimed as of right by the petitioner and it is a matter of discretion of the Court depending on so many factors, including the conduct of the petitioner. He strongly refuted the grounds of challenge urged by the learned counsel for the petitioner and submitted that the so called lane/street served no purpose to the neighbourers and had become a place for urination and dumping garbish. It was also contended that J.D.A. is an authonomus body and this Court should not sit over its discretion in exercise of powers under Article 226 of the Constitution. 11. I have given my careful and anxious consideration to the above submissions. As stated earlier, in the Act J.D.A. is exclusively entrusted with the duty of framing a development plan/project/scheme and to execute the same. Chapter VII of the Act provides of making projects and scheme for an integrated development. 11. I have given my careful and anxious consideration to the above submissions. As stated earlier, in the Act J.D.A. is exclusively entrusted with the duty of framing a development plan/project/scheme and to execute the same. Chapter VII of the Act provides of making projects and scheme for an integrated development. As already stated, Section 39 lay down the procedure for the preparation of any project or scheme to implement the proposals contained in the Master or Zonal Development Plan. As per this provision, after declaration of the intention to prepare a project or scheme and its publication in official Gazette, the Authority prepares the concerning project or scheme in a draft form in the manner determined by its resolution. Such draft and a notice inviting objections/suggestions from the public are again published, and all objections/ suggestions received by the Authority within the period specified in the notice are considered before approving the project or scheme. Sub-Section (4) of Section 39 makes it imperative to consider all objections and suggestions and to give reasonable opportunity of being heard to such persons, affected thereby, who desired to be heard. This function of the authority is of a quasi-judicial nature. Then Section 42 empowers the Authority to make withdrawal or modification in the approved scheme or project. Sub-Section (2) of Section 42 runs as under, which empowers the Authority to make certain modification : "42(2). If the Authority, after approval of any project or scheme under sub-section (4) of Section 39 at any time, consider it necessary to make certain modification therein, which in its opinion do not effect material alteration in the character of the project and scheme, may make suitable modifications." A bare reading of the above provision shows that the power of modification of any approved project on scheme can be exercised by the J.D.A. on the fulfilment of the following two conditions viz. (i) that such modification is suitable and is considered necessary by the Authority; (ii) it does not effect material alteration in the character of the project or scheme. This power appears to have been given to the Authority to meet contingencies and circumstances which may come in the light after the approval of a project of scheme. (i) that such modification is suitable and is considered necessary by the Authority; (ii) it does not effect material alteration in the character of the project or scheme. This power appears to have been given to the Authority to meet contingencies and circumstances which may come in the light after the approval of a project of scheme. It is for the Authority to consider whether the proposed modifications in the project or scheme, is suitable and necessary, but this discretion is to be exercised objectively and in public interest and not to oblige any individual. The powers to modify an approved scheme or project should also be exercised in a quasi-judicial manner after giving notice to the public and inviting objections and suggestions in relation to the proposed alteration. Though the language of Sub-Section (2) of Section 42 does not say about this requirement but taking into consideration that a project or scheme is finalised after following this procedure, then the same procedure should be followed if any modification is made after its approval. Such procedure shall be in consonance with the principles of natural justice and provide check on arbitrary exercise of powers. When a project or scheme is approved after notice to the public and hearing all objections and suggestions from them, the principles of natural justice require that any modification in such scheme or project should be brought to the notice of the public and the persons affected thereby and they should be given an opportunity to make objections and suggestions in relation to the proposed modification. 12. In the present case, the decision to close down the lane/street and to allot its land was taken by the Land & Property Committee of J.D.A. on the application of the respondent Smt. Asha Singh. This decision, if implemented dearly amounts to modification/alteration in the approved scheme of Malviya Nagar. There is no material on record to show that the above decision was taken by the J.D.A. or that the Committee was delgated such powers to make suitable modifications exercisable under Sub- Section (2) of Section 42 of the Act. Then the notice by the Authority inviting objections was only an eye-wash, when strong protests were made by the petitioner and other inhabitants of the locality against the proposed action which was being done in a clandestine manner to help the respondent Smt. Asha Singh. Then the notice by the Authority inviting objections was only an eye-wash, when strong protests were made by the petitioner and other inhabitants of the locality against the proposed action which was being done in a clandestine manner to help the respondent Smt. Asha Singh. The impugned decision of the Land & Property Committee is, therefore, illegal and without jurisdiction.The argument of Mr. Maloo has also force that the decision of the Committee was taken to oblige and help Smt. Asha Singh on her application. No modification or alteration in an approved scheme can be said to be suitable which is not aimed with public interest or benefit to the public. The respondent Smt. Asha Singh has constructed her house violating Building Bye-Laws of J.D.A. and also the sanctioned plan; and in order to cover up this violation, she applied for the allotment of the land of 10 feet public lane/street. I have also seen the original file which was made available by the learned counsel for the J.D.A. It appears that the concerning officers were dealing with the application of Smt. Asha Singh in a clandestine manner and when the petitioner and other inhabitants raised hue and cry, a public notice was given by the Authority inviting objections. The petitioner and other inhabitants had filed a number of objections, but there is nothing on record that those objections were even considered either by the Authority or the Committee before taking the decision. The impugned decision also does not show that the objections were at all considered less to say objectively. Curiously, the decision to close the public lane/street and to allot its land has been taken treating it as a 'strip of land.' No reason was given as to why the closure of the lane is necessary so as to modify the approved scheme. After going through the entire material on the file and the original record of J.D.A., I am convinced that the decision of the Land & Property Committee suffers from malice and it was taken with an oblique motive to help the respondent Smt. Asha Singh. The phrase 'suitable modification' contained in sub-section (2) of Section 42 of the Act should be read to imply suitable for general public and not for an individual person. On this ground also, the impugned decision stands vitiated. 13. The second limb of the argument of Mr. The phrase 'suitable modification' contained in sub-section (2) of Section 42 of the Act should be read to imply suitable for general public and not for an individual person. On this ground also, the impugned decision stands vitiated. 13. The second limb of the argument of Mr. Maloo also carries weight that once the approved scheme of Malviya Nagar was completed and executed and a public lane/street stood declared and dedicated to the public, the J.D.A. does not have any power/authority to close the same and allot its land to any person. Mr. Maloo submitted that a public lane/street vests in the Municpal Council, Jaipur and there is no authority either in the Municipal Council or J.D.A. to allot any part of a public lane or street to any individual person by describing it as a 'strip of land.''Public street' has been defined in Section 3(26) of the Rajasthan Municipalities Act, 1959 (hereinafter to be referred as the 'Municipalities Act') as under : "3 (26)-'public street' means any street : (a) over which the public have a right of way, or (b) Which has heretofore been levelled, paved, metalled, channelled, sewered or repaired out of municipal or other public funds, or (c) which, under any provision of this Act, becomes a public street." Similarly, 'street' has been defined in Section 3(32) as under:- "3(32) "Street" means any road, bridge, foot-way, lane, square, court, ally or passage accessible, whether permanently or temporarily, to the public or any portion of the public, whether a thoroughfare or not, and includes on either side : (i) The drains or gutters and the land upto the defined boundary, notwithstanding the projection over such land of any verandah or other super-structure; (ii) Every space, notwithstanding that it may be private property, or partly or wholly obstructed by any gate, post, chain or other barrier, if it is used by any person, whether or not occupying any abutting property, as a means of access to or from any public place or thoroughfare." A 'strip of land' has been defined under the Rajasthan Municipalities (Disposal of Urban Land) Rules, 1974 as a piece of land adjoining on existing plot which cannot be put to independent use and which shall in no case exceed 100 Square Yards in area.Thus, a public lane/ street can never be a 'strip of land'. On a public lane/street, the public has a right to pass and repass over the whole width. Similarly, an owner of the property adjacent to public street has got a right of access to such street at any point at which his land actually touches it. All such public streets/lanes and their appurtenances vest in the Municipalities. No one has got a right to build any wall or erect any fence or other obstruction or projection or make any encroachment in or over any street except as provided in the Municipalities Act. When a street is vested in the Municipality, such vesting does not transfer to the Municipal Authority the rights of an owner in the site or soil over which the street exists. It has the right to manage and control the surface of the soil.In The Municipal Board, Manglaur v. Mahadeoji Maharaj, AIR 1965 SC 1147 , it has been held in para 9 of the judgment as under : "Such a public pathway vests in the Municipality, but the Municipality does not own the soil. It has the exclusive right to manage and control the surface of the soil and so much of the soil below and of the space above the surface as is necessary to enable it as owner to bring a possessory action against trespassers. Subject to the rights of the Municipality and the public to pass and repass on the highway, the owner of the soil in general remains the occupier of it and, therefore, he can maintain an action for trespass against any member of the public who acts in excess of his rights." In Pyarelal Satpal v. Santa, 1972 RLW 51 a Division Bench of this Court has also held that the Municipality has no power to let out any part of a public highway to a private person for setting up a stall or carrying on business. Chapter II of the Municipalities Act deals with the powers of the Municipalities in respect of streets but it does not contain any power to sell or allot any part of the public street.From the above discussions, and taking into consideration the various provisions of the Municipalities Act regarding to the public lanes/streets and the powers of the J.D.A. to modify/alter a sanctioned scheme/project, and harmoneous approach would be that the powers of modifications in an approved scheme/project can be exercised by J.D.A. under Chapter VII of the Act before the said scheme is executed. After the execution of the scheme, if a public lane/street stands declared and dedicated to public, its land cannot be sold even by the J.D.A. describing it as a 'strip of land'. The rights of the public and of the neighbours come into play in relation to such lane/street. In the present case, the J.D.A. after the approval of the scheme, allotted plots to the public and a metalled road was also constructed in the lane/street in question. The plot holders have also constructed their houses as per the scheme. At this stage, the JDA cannot close the public lane/street even in exercise of powers Under section 42(2) of the Act, as a right is created in the public to use it for an appropriate kind of traffic. The public are entitled to pass or repass over such public lane/street. Similarly, the rights of the neighbours to have an access to such public lane/street cannot be taken away, likewise, a corner plot holder cannot be deprived of the benefits of a corner plot by closing such public street. Judged from this angle also, the action of the respondent-IDA closing to public lane/street is illegal and unsustainable in the eye of law. 14. The last contention of Mr. Maloo is that the JDA should be directed by issuing a mandamus to take appropriate action against the respondent Smt. Asha Singh, for constructing her house in violation to the Building Bye-Laws of J.D.A. It is not in dispute before me that she has constructed her house violating the Building Bye-Laws and sanctioned map, in as much as, only 3' open set back has been left towards the east, while it ought to have been 10'. For this, the argument of Mr. For this, the argument of Mr. Garg is that the petitioner cannot challenge this and it is for the JDA to take or not to take action. I am afraid to accept this contention. A project or scheme for the development of an area is made by JDA for the benefit of the public. JDA is a public body and it acts for the public benefit in executing the project or scheme sanctioned by it. The authority is, therefore, under an obligation to perform its duty in accordance with the provisions of the Act, and if a statute imposes a duty, a performance or non performance of which is not a matter of discretion and a mandamus can be given by this Court ordering that to be done which the statute requires to be done. The right of a plot holder to build on his own plot is regulated by Building Bye-Laws of JDA. The JDA is also under an obligation to perform its duty and see that building constructions are made in accordance with the bye-laws. Construction of buildings, violating the bye-laws and non-action of IDA, infringes and violates the rights of others also. An illegal construction affects the right of enjoyment of property by persons residing in the residential area. The JDA owes an obligation under the statute to see that the residential area is not spoiled by unauthorised constructions. When the scheme is for the benefit of the residents of the locality, the Court enforces the performance of statutory duties by public bodies.My above views are fortified by the decision of the Apex Court of the country in K. Ramdas Shenoy v. The Chief Officers, Town Municipal, Council, Udipi & others, AIR 1974 SC 2177 . In para Nos. 28 and 29 of the judgment, it was observed as under : "An illegal construction of a cinema building materially affects the right to or enjoyment of the property by persons residing in the residential area. The Municipal Authorities owe a duty and obligation under the statute to see is not spoilt by unauthorised construction. The scheme is for the benefit of the residents of the locality. The Municipality acts in aid of the scheme. The rights of the residents in the area are invaded by an illegal construction of cinema building. The Municipal Authorities owe a duty and obligation under the statute to see is not spoilt by unauthorised construction. The scheme is for the benefit of the residents of the locality. The Municipality acts in aid of the scheme. The rights of the residents in the area are invaded by an illegal construction of cinema building. It has to be remembered that a scheme in a residential area means planned orderliness in accordance with the requirements of the residents. If the scheme is nullified by arbitrary acts in excess and derogation of the powers of the Municipality the courts will quash orders passed by Municipalities in such cases." "The court enforces the performance of statutory duty by public bodies as obligation to rate payers who have a legal right to demand compliance by a local authority with its duty to observe statutory rights alone. The scheme here is for the benefit of the public. There is special interest in the performance of the duty. The special and substantial interest of the residents in the area is injured by the illegal construction." In this view of the matter, the contention of Mr. Garg that no writ or mandamus can be issued by this court to JDA for the violation committed by Smt. Asha Singh is over-ruled. The conduct of JDA shows that no action has been taken against her for the violations and it is not even shown that any action is under contemplation. The apparent reason for this inaction appears to be that she happens to be an I.A.S. Officer occupying high position amongst the civil servants. Our democratic set-up under the Constitution is based on the concept of 'Rule of Law' Everyone is questionable under the supremacy of law, as observed by S. Ratnavol Pandian J. in State of Haryana & Others v. Bhajan Lal & Others, AIR 1992 SC 604 . "Everyone whether individually or collectively is questionable under the supremacy of law. Whoever he may be, however high he is, he is under the law. No matter how powerful he is and how rich he may be." The IDA cannot plead alibi or any other excuse for not taking action against the respondent Smt. Asha Singh who occupies high status as a public servant. A public servant is expected to be more obedient towards law and put an example before a common man. No matter how powerful he is and how rich he may be." The IDA cannot plead alibi or any other excuse for not taking action against the respondent Smt. Asha Singh who occupies high status as a public servant. A public servant is expected to be more obedient towards law and put an example before a common man. If he is permitted to violate the law, then the JDA cannot claim any more justification to taken action against a common man for similar violations.Therefore, I have been left with no option but to issue a mandamus against JDA to take action in accordance with law against the respondent Smt. Asha Singh for constructing her house in violation to the Building Bye-Laws of JDA or sanctioned map. 15. Before completion of the judgment, I may also address on the preliminary objection raised by Mr. Garg that the writ should be dismissed on the ground that the petitioner did not come with clean hands as he is also guilty of such violation. This may be answered in two ways. Firstly, the action challenged in the present writ petition relates to the functioning of JDA affecting not only the petitioner but also the residents of the entire locality who have a right to use 10' public street/ lane and to see that the residential colony develops in a systematic manner as per the scheme. Secondly, even if it is assumed that some violation has been committed by the petitioner, it does not give a licence to the respondent to construct her house ignoring the Building Bye-Laws and the sanction of the plan by the JDA. If any violation has been committed by the petitioner, the JDA is free to take action against him, but for this, the action of the respondents is not justifiable.The net result of the above discussions is that the petition is hereby allowed. The order/decision dated 6.1.89 (Ann. R/2) of the Land & Property Committee of JDA is quashed. The Jaipur Development Authority is directed to keep 10' public lane/street in existence and not to close it by making allotment of its land to any person.-The JDA is also directed to take appropriate action, as per law, against the respondent-Smt. Asha Singh for the constructions made by her in violation to the Building Bye-Laws or building plan sanctioned by it. The costs of the petition shall be shared equally by respondents Nos.1 & 2, which is quantified र 2,000.Petition allowed with costs. *******