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1993 DIGILAW 795 (RAJ)

Mahendra Singh v. State of Rajasthan

1993-12-01

MOHINI KAPUR

body1993
Honble KAPUR, J. — In this writ petition, the main question to be decided is as to whether under section 29 of the Urban Land (Ceiling and Regulations) Act , 1976 (here in after referred to as the Act) the limits of the open area for construction of building/dwelling unit refers to the whole or building or each dwelling unit. Before coming to this provision of law, it is necessary to look into the facts of the case. (2). The petitioner purchased plot No.D-214 Bhasker Marg, Beni Park, Jaipur by registered sale deed dated 24th August,1985. This plot measures 1734.90 sq.metres and at the time of purchase about 795.42 sq. metres area was constructed. With a veiw to develop the land, the petitioner submitted building plans to the Jaipur Development Authority, Jaipur (here in after referred to as the JDA) for approval and the building plans were approved by order dated 9.12.1992. According to this approved plan, the petitioner proposed to cover a total area of 838.50 sq.metres and on each floor there were six dwelling units. The area of each the dwelling unit was not more than 225 sq.metres. In the first instance the petitioner started raising constructions in area measuring 419.25 sq.metres. (3). It is so happens that Shri Ram Kumar Singh is the owner of plot No.D.213, Bhasker Marg, Beni Park,Jaipur, which is adjacent to the petitioners plot. Shri Ram Kumar Singh is the Director, Land and Building Tax Department, and is a Superior Officer of respondent No. 3 Shri Todarmal Jain, who is the competent authortty-I (Additional Director), Urban Land and Ceiling Department. It is alleged in the petition that at the instance of Shri Ram Kumar Singh, Shri Todarmal Jain instituted proceedings against the petitioner by recording that he had received information through Mukhbir. The proceedings were initiated on 26.03.1993 and on this date he directed the Surveyor to inspect the sitr and submit the report and on 31s1 March,1993 the Surveyor inspected the site and submitted the report. On 2.04.1993 Shri Todarmal Jain issued notice to the petitioner for violating the provisions of sections 22 and 29 of the Act. The date fixed was 6th April,1993 on which the counsel for the petitioner took time as he was out of station hence, the case was adjourned on 13th April,1993 but till then the construction was stayed. On 2.04.1993 Shri Todarmal Jain issued notice to the petitioner for violating the provisions of sections 22 and 29 of the Act. The date fixed was 6th April,1993 on which the counsel for the petitioner took time as he was out of station hence, the case was adjourned on 13th April,1993 but till then the construction was stayed. The reply to the notice was filed on 1311 April,1993 and on this date, an application on behalf of the son of Shri Ram Kumar Singh and some others for giving them hearing in the matter was also moved. The case was fixed for 14nApril,1993 but it was declared a Holiday. Then on 15th April,1993 arguments were heard. A fresh survey report was asked for and the Surveyor submitted the report on 17nApril,1993 and after hearing further arguments, the Competent Authority held that there is no violation of Section 22 of the Act but further held that the J.D.A had approved the building plan for 945.5 sq.meters which was more than 500 sq.meters as such there was violation of Sec.29 of the Act. The contention of the petitioner as well as of the J.D.A that each dwelling unit was not more than 500 sq.metres was turned down. (4). The petitioner filed an appeal before the Divisional Commissioner against this order dated 22.04.1993. It is alleged that Shri Ram Kumar Singh was still not satisfied and he acted through Shri Todarmal Jain and a letter was written to the JDA cancel the plan approved in favour of the petitioner and thereafter without any notice to the petitioner, the JDA to by order dt.28.4.1993 ordered that the plan approved on 9th Dec.,1992 be held in abeyance. Hence, the order of the Competent Authority-I,dated 22n April,1993 and the order of the JDA dated 28 April,1993 have been challenged in this writ petition. It is urged that all the illegal orders have been passed at the instance of Shri Ram Kumar Singh, who is a senior officer of the State Government and the Competent Authority, as well as the JDA have abused their authority. (5). The reply submitted by the JDA may be looked into as it would be relevant while considering the arguments which have been advanced. (5). The reply submitted by the JDA may be looked into as it would be relevant while considering the arguments which have been advanced. On behalf of the JDA it has been submitted that the petitioner is aggrieved by the order dated 22.04.1993 of the Competent Authority-I, Urban Land Ceiling Department and the order by which permission for construction which was granted earlier has been put in abeyance by the JDA in the consequence of the order passed by the Competent Authority I, and an appeal has already been preferred against the order of the Competent Authority- I, therefore, this writ petition is not maintainable. The same relief cannot be prosecuted before two different forums. In para 20 of the reply it was specifically mentioned that the JDA approved ground coverage area of 838 sq, metres and no single unit exceeded 500 sq.metres and there was no violation of Section 29 of the Act. (6). Respondent No.3 Shri Todarmal Jain and respondent No.4 Shri Ram Kumar Singh were served but they have not appeared to contest the matter. However, an application was moved on behalf of certain interveners who are the son of the respondent No.4,Ram Kumar Singh and some other persons of the area. They have filed a reply taking the plea that alternative remedy under the Act is available and on this ground, the writ petition deserves to be dismissed. It is submitted that the interveners were necessary parties as they were caveators before the appellate authority namely the Divisional Commissioner, Jaipur Division, Jaipur. An objection has been raised that the Divisional Commissioner,Jaipur Division,Jaipur is a necessary party but he has not been impleaded as such. In parawise reply it is submitted that the petitioner concealed from the JDA that the old building upon the land would be demoloshed and had this been intimated te JDA WOULD not have granted permission for raising a multi storied building. The permission given by the JDA is said to be in violation of the provisions of the Act as the total plinth area was beyond the ceiling area of 500 sq.metres. The order of the Competent Authority-I has been supported and it is submitted that the approval of plan Was rightly suspended as it was in violation of Sec.29 of the Act. The order of the Competent Authority-I has been supported and it is submitted that the approval of plan Was rightly suspended as it was in violation of Sec.29 of the Act. Another plea raised is that of the provisions of the JDA Act are in conflict with the Act then in view of Sec.42 of the Act, the latter would prevail. The right of the JDA to grant permission for raising multi-storied buildings in the area of old residential schemes has also been challenged as it will increase the pressure on the area. It may also be mentioned here that even though the interveners are directly connected with the respondent No.4 nothing has been said about the allegations which have been raised against the respondent No.4. (7). In the rejoinder, the petitioner has submitted that similar multi-storied buildings have been approved in the same area itself, and that the building which the petitioner wanted to construct is in accordance with the regulations of the JDA. (8). With the consent of the parties, the matter has been heard for purposes of final disposal of this writ petition. (9). The dates have been mentioned in the petition and also reproduced in this judgment in order to show the swift speed at which the Competent Authority- I proceeded in the matter of stay of construction which was being carried on by the petitioner. The matter was taken practically day to day so that no time was lost. (10). This is not disputed that the total land held by the petitioner does not exceed the limits as provided in the Act.Hence it was held that Section 22 of the Act was not applicable and in this connection there is no controversy. The only point to be seen is whether Section 29 of the Act is attracted and the construction which is to be made in about 900 sq.metres can be said to be contrary to the provisions of Section 29 of the Act. "29. The only point to be seen is whether Section 29 of the Act is attracted and the construction which is to be made in about 900 sq.metres can be said to be contrary to the provisions of Section 29 of the Act. "29. Regulation of construction of buildings with dwelling units :- No persons shall construct any building with a dwelling unit having a plinth area :- (a) Whether the building proposed to be constructed is situated in an urban agglomenation falling within category A or category B specified in Schedule I, in excess of three hundred square metres; (b) Where the building proposed to be constructed is situated in an Urban agglomenation falling within category C or category D specified in Schedule I, in excess of five hundred square metres; Section 2(e) defines the dwelling unit as under : — "dwelling unit", in relation to a building or a portion of a build-ing,means a unit of accommodation in such building or portion,used solely for the purpose of residence;" Reference has also; been made to the guide lines provided by the Circular letter No.1/50/76 UCU dated 12thJuly,1976 in which the guide line No.5 reads as under :– "5. In the circumstances,it is clarified that: — (i) that the total plinth area of each dwelling unit whether in one single floor or more than one floors (like a bungalow type) should not exceed the prescribed ceiling limit of 300 sq. mts. or 500 sq. mts. , as the case may be; (ii) that there is no objection to any noumber of dwelling units being situated in one floor, or in more than one floor the plinth area of each such unit not exceeding the ceiling limit; and (iii) that there is no restriction on the vertical higher or ground coverage of building which will be subject to the municipal building regulations." (11). Several questions arise time in and time out about the manner in which Section 29 of the Act is to be applied and for this reason, guide lines in regulation of construfction of houses with dwelling units have been issued from time to time. It is only in this context that these guide lines have been issued. (12). A question arose in M/s Shrinivasa Builders Pvt. Ltd. vs. The Govt. of A.P. and Ors. (1). It is only in this context that these guide lines have been issued. (12). A question arose in M/s Shrinivasa Builders Pvt. Ltd. vs. The Govt. of A.P. and Ors. (1). It was held that here the plinth area of each flat (dwelling unit) is less than the prescribed limit then there is no violation of Section 29 of the Act. The argument that the total plinth area of the whole building should be taken, was not accepted. Referring to Section 29 of the Act, it was stated that the limits prescribed by Section 29 was applicable to the construction of the building with dwelling units and a building may consist of more than one dwelling unit. In such a case, the plinth area of each dwelling unit must be taken into consideration and not the plinth area of all the dwelling units put together. The definition of dwelling unit also shows that it refers to a unit of accommodation, used for purposes of residence. Reliance has been placed on K.P.Varghese Vs. Income tax Officer Ernakulam and anr. (2), where in it has been mentioned that the circulars are in the nature of contemporenea expositio furnishing legitimate act in the provision of law. It was observed that courts in construing a statute will give much weight to the interpretation put upon it, at the time of its enactment and since , by those whose duty it had been to construe, execute and apply it. The circulars were held to be binding on the revenue and though not binding on the court , the court can take assistance from the marine in which the authorities have been decided to interpret a particular provision. (13). Learned counsel for the respondents including the learned counsel for the J.D.A. have invited my attention to Section 42 of the Act, which provides that the provision of this Act shell have effect not with standing anything inconsistent with any other law for the time being in force or in custom , usage or agreement or decree or order of a court, Tribunal or other authority. On this basis it is contended that plans have been approved by the Jaipur Development Authority contrary to the provisions of Section 29 of the Act, and the same being inconsistent with the Act, can have no authority. On this basis it is contended that plans have been approved by the Jaipur Development Authority contrary to the provisions of Section 29 of the Act, and the same being inconsistent with the Act, can have no authority. Referring the Section 30 of the General Clauses Act, it is contended that singular includes plural and , therefore, use of word "dwelling unit" in Section 29 applies to the area of all the dwelling units put together. It is also argued that the guidelines issued by the Govt. are not binding on the court. It is contended that the limit imposed by Section 29 of the Act applies to total building irrespective of noumber of units in the same. (14). On behalf of the interveners, their personal difficulties, have been pointed out by saying that a multi-storied building would affect the light, air and sanitation of the old colony as it has not been originally planned for this purpose. (15). I have considered the contentions which have been raised on behalf of both the sides. At the very outset is may be stated that Section 29 of the Act can not be said to be ambiguous. It specifically places a restriction on the plinth area of a dwelling unit for being part of a building. There may be a noumber of dwelling units in a particular building or there may be a single unit but the plinth area of a dwelling unit can not exceed the limit placed under the clauses (A) and (B). Jaipur falls within the category C and the limit therefore, for each dwelling unit would be five hundred sq. nits. It is strange that inspite of the fact that several multi-storied buildings have been raised/constructed in the locality this objection is being raised in this particular case only. Considering this fact and the allegations made by the petitioner about the interestness of Sh. Ramkumar Singh, has exerting influence in the matter becomes probable. In view of the specific allegations made against him, he ought to have appeared to denay the same but having choosen to remain silent also shows that his role is what has been alleged by the petitioner. Ramkumar Singh, has exerting influence in the matter becomes probable. In view of the specific allegations made against him, he ought to have appeared to denay the same but having choosen to remain silent also shows that his role is what has been alleged by the petitioner. Coming back to the Section 29 of the Act, it can be said that the Section itself and the guidelines leave no manner of doubt about the way this provision of law has to be interpreted and the interpretation given by the A.P. High Court is correct and I have no hesitation in accepting and following the same. Here is a case where the petitioner does not have land in excess of the ceiling limit . He has been permitted to raise construction in accordance with law and after the plan has been approved his construction has been obstructed by persons and authorities Who have adopted methods which only go to show as to how the authorities can abuse their powers. This would be relevant in connection with the objection of the respondents that the petitioner has already preferred an appeal before the Divisional Commissioner and, therefore, can not approach this Court in a writ petition. The circumstances have made it clear that the remedy of appeal before the Divisional Commissioner can not be said to be efficacious because one authority has taken up the matter to decide that the construction of the building should be stayed by taking up the case day to day basis while the other authority is not taking the same interest. Moreover it can be said that the appeal is against the order of the Competent Authority-1 but after that the J.D.A. has put in abeyance the permission already granted by it to the petitioner and this is not the subject matter of challenge before the Divisional Commissioner. The J.D.A. has been changing stands to suit the whims of persons who can exert influence on them, so much so that at the time of arguments, pleas were raised contrary to the reply filed by them. The J.D.A. has been changing stands to suit the whims of persons who can exert influence on them, so much so that at the time of arguments, pleas were raised contrary to the reply filed by them. In The Sales Tax Officer, Navgon & Anr vs. Timber and Fuel Corporation(3), even when an appeal, provided under the statute, was pending, the assessee moved the High Court to quash the order of the Sales Tax Officer and considering the circumstances, the High Court found it proper to interfere with the impugned order even though an appeal was pending. The discretion of the High Court was not interferred with by the Apex Court. In the present case, when there are direct allegations against the respondent no. 4 for and indirect allegation against the respondent no. 3, which have not been denied and which go to show the approach on account of which the authorities have acted. In the manner, they have acted, then this Court would not refrain from interfering with the illegal order passed by the respondent no. 3, on the ground that an appeal before the Divisional Commissioner is pending. The construction of the petitioner has been stayed which has resulted in hardship and loss to him and this can be extended further if is made to wait for a decision in the appeal preferred by him and this Court would not be a party to the illegal acts of the respondents. (16). The writ petition is , therefore, allowed. The order dated 22.04.1993 of the respondent no. 3 and order dated 28th April," 1993 of the respondent no. 2 , J.D.A. are set aside. The petitioner is allowed to carry on his constructions in accordance with the permission granted by the J.D.A. The petitioner shall get the costs of this writ petition from respondent no. 2 which is assessed at Rs. 3000/-. The interveners shall pay a sum of Rs. 2000/- by way of costs to the petitioner.