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2003 DIGILAW 1024 (RAJ)

Arihant Cine World v. J. D. A.

2003-07-23

ASHOK PARIHAR

body2003
Honble PARIHAR, J.–An auction notice was issued on 19.9.2001 by the respondent No. 1 - Jaipur Development Authority, Jaipur (for short `JDA) for auctioning a land measuring 19365 square meters situated in Village - Sukhpuria on main Tonk Road, Jaipur for construction of Drive in Cinema. As per the terms of auction notice, the petitioners also participated in the bid on 29.9.2001. The bid of the petitioners been highest, the same was finalised in favour of the petitioners on 31.10.2001. A sum of Rs. 10851563/- (one Crore Eight Lakh Fifty One Thousand Five Hundred Sixty Three only) was deposited by the petitioners been 90% of the bid. On further revised demand note sent by the JDA, the petitioners also deposited a sum of Rs. 632655/- (Six Lakh Thirty Two Thousand Six Hundred Fifty Five only). On depositing the above amount, a possession letter was issued on 19.11.2001 by the Authority though physical possession could not be given in view of some discrepancy in the measurement of the land in in question. The petitioners applied for issuance of No. Objection Certificate (for short `NOC) to the District Collector, Jaipur on 24.11.2001 for construction of Drive in Cinema. The District Collector, Jaipur, vide his letter dated 3.5.2002, informed the petitioners that NOC for Drive in Cinema cannot be issued since in the southern side of the land in question petrol pump and petroleum storage tank are situated and in the south-western side there is one Engineering College. (2). In the meanwhile, the Commissioner of JDA also wrote a letter to the Principal Secretary, Finance Department, Government of Rajasthan, Jaipur, requesting the State Government to extend the last date pertaining to entertainment tax concession scheme on the ground that there has been a delay in handing over the possession of the land in question to the petitioners. That apart, a lease deed was also duly executed on 15.2.2002 in favour of the petitioners indicating the use of the land for commercial purpose - Drive in Cinema. The petitioners had also applied for loan from Rajasthan Financial Corporation which was sanctioned on 22.2.2002 to the tune of Rs. 200 lakhs. Part of loan have also been released. After possession been given, the petitioners had also spent over more than 50 lacs rupees on various heads for development of the land and other exigency charges. (3). The petitioners had also applied for loan from Rajasthan Financial Corporation which was sanctioned on 22.2.2002 to the tune of Rs. 200 lakhs. Part of loan have also been released. After possession been given, the petitioners had also spent over more than 50 lacs rupees on various heads for development of the land and other exigency charges. (3). After refusal to grant NOC for Drive in Cinema by the District Collector, Jaipur on 3.5.2002, the petitioner made a representation to the concerning authorities of JDA that since NOC cannot be granted by the District Collector for Drive in Cinema, the petitioners may be allowed to change the use of the land in question for any other commercial project. In spite of repeated reminders been given by the petitioners, since no response was made, a notice for demand of justice was sent by the counsel for the petitioners on 2.12.2002 to the authorities. Still, no heed having been paid by the authorities, the writ petition was filed by the petitioners on 13.1.2003 with the following prayers:- ``(a) to direct the respondents to permit the petitioners to use the plot for construction and establishment of a hotel or any other commercial complex falling within the category of commercial land within such times as may be laid down by the Honble Court and to pay compensation of Rs. 4.71 crore as per the assessment made in para No. 17 of the writ petition. (b) Any other appropriate order or direction which may be considered just and proper in the facts and circumstances of the case may kindly also be granted in favour of the petitioners. (4). Show cause notices were issued by this court on 29.1.2003. Notices were duly served on the respondents on 6.2.2003. Counsel for the respondent - JDA had put up appearance before this court on 20.2.2003. He was granted time to file reply and the case was ordered to be listed on 5.3.2003. On 5.3.2003, a letter was issued by the JDA to the petitioners that as per the decision taken by the Committee on 6.2.2003, the allotment made in favour of the petitioners for Drive in Cinema has been cancelled. The copy of the decision of the Committee taken on 6.2.2003 was also annexed with the letter dated 5.3.2003. On 5.3.2003, a letter was issued by the JDA to the petitioners that as per the decision taken by the Committee on 6.2.2003, the allotment made in favour of the petitioners for Drive in Cinema has been cancelled. The copy of the decision of the Committee taken on 6.2.2003 was also annexed with the letter dated 5.3.2003. As per decision taken by the Committee considering the representation dated 10.6.2002 of the petitioners, it appears that the main reason for cancellation of allotment has been to fetch more profit to JDA in case the land in question is again put to auction for commercial purpose. While cancelling the auction made in favour of the petitioners, the Committee also directed the concerning authorities to put the land in question again for auction. (5). On an application for amendment been allowed, the petitioners filed the amended writ petition on 20.3.2003 with the following prayers:- ``(a) to direct the respondents to permit the petitioners to use the plot for construction and establishment of a hotel or any other commercial complex falling within the category of commercial land within such times as may be laid down by the Honble Court and to pay compensation of Rs. 4.71 crore as per the assessment made in para No. 17 of the writ petition. (b) to declare that the impugned order dated 6.2.2003 (Annexure 11-B) is void or the same may be quashed and set aside. (bb) Any other appropriate order or direction which may be considered just and proper in the facts and circumstances of the case may kindly be granted in favour of the petitioners. (6). Mr. P.N. Bhandari, learned counsel for the petitioners, with all vehemence at his command, submitted that the petitioners were made to believe in viability of the project of Drive in Cinema to invest a huge amount for nothing but to earn profit. Entertainment tax concession scheme in force at the relevant time also been main consideration for every auction bidder. It is expected of the public authorities to ensure feasibility of such projects before alluring businessmen or any other person to make investment in such projects projected for development of the city in the larger interest of the public. Entertainment tax concession scheme in force at the relevant time also been main consideration for every auction bidder. It is expected of the public authorities to ensure feasibility of such projects before alluring businessmen or any other person to make investment in such projects projected for development of the city in the larger interest of the public. It was only due to total negligence and indifferent callous approach of the authorities of JDA that without ascertaining the exact position, the land in question was put to auction and further delay was caused in executing the lease deed and handing over possession of the land in question on one pretext or the other. It was only because of the irresponsible callous approach of the authorities of JDA that the petitioners could not get the the benefit of entertainment tax concession scheme which was one of the main consideration of the petitioners to participate in the bid. It was only after the NOC not been issued by the District Collector, Jaipur and having invested such a huge amount, the petitioners applied for change of use of the land in question for any other commercial purpose. The submission of Mr. Bhandari has been that the JDA has acted in a most autocratic and high-handed manner in refusing to grant permission for change of use of the land. The action of JDA in cancelling the allotment made in favour of the petitioners ignoring a valid lease deed duly executed is wholly illegal and in sheer violation of even the basic principles of common law. (7). Mr. R.N. Mathur, learned Additional Advocate General appearing on behalf of the respondents, with his usual flair for candid defence, trailing the lines of short reply filed on behalf of the respondent - JDA submitted that permission for Drive in Cinema was never refused by JDA. It was only the permission for change of use of the land has been refused and the allotment has been cancelled accordingly. Mr. Mathur submitted that the prayers made in the writ petition are wholly misconceived. If the petitioners were aggrieved by the refusal to grant NOC by the District Collector, Jaipur a proper prayer should have been made in this regard. Mr. Mr. Mathur submitted that the prayers made in the writ petition are wholly misconceived. If the petitioners were aggrieved by the refusal to grant NOC by the District Collector, Jaipur a proper prayer should have been made in this regard. Mr. Mathur further submitted that having failed to complete the project in time and not getting the tax concession, the petitioners, for the reasons otherwise has prayed for change of use of the land in question and the same was rightly refused by the Committee constituted in this regard by JDA. He has further submitted that so far as claim of compensation is concerned, the petitioners have to approach the appropriate forum in accordance with law since this court under its writ jurisdiction cannot quantify the amount of compensation. (8). After having considered the submissions made by counsel for the parties, I have carefully gone through the material on record as also the relevant provisions of the Act and the Rules thereunder. The facts, more or less, have not been disputed so far. (9). The Jaipur Development Authority has been constituted under the Jaipur Development Authority Act, 1982 (hereinafter to be referred to as the Act). Since Jaipur city and areas contiguous to it were being progressively developed and populated, JDA was constituted for the purpose of planning, coordinating and supervising proper, orderly and rapid development of these areas in which several Government Departments, Local Authorities and other Organisations were engaged in their own jurisdictions. It was further felt that JDA be enabled either itself or through other authority to formulate and execute plans, projects, community facilities, civic amenities and other infrastructure properly for the population of Jaipur region. (10). It was further felt that JDA be enabled either itself or through other authority to formulate and execute plans, projects, community facilities, civic amenities and other infrastructure properly for the population of Jaipur region. (10). The composition of the Authority has been provided under section 4 of the Act, which includes mainly the following members:- i) a Chairman, who shall be the Minister-in-Charge of urban Development of the State of Rajasthan or a nominee of the Governor during Presidents Rule; ii) a Vice-Chairman, who shall be State Minister of Urban Development of the State of Rajasthan, or a nominee of the Governor during Presidents Rule; iii) Secretary to the Government, Urban Development and Housing Department; iv) Jaipur Development Commissioner (appointed under this Act); v) Chairman, Rajasthan Housing Board; vi) Chief Engineer, Public Health & Engineering Department; vii) Chief Engineer, Public Works Department; viii) District Collector, Jaipur; ix) Chief Engineer, Rajasthan State Electricity Board; x) Chairman/Administrator, Municipal Council, Jaipur; xi) Zila Pramukh of Zila Parishad, Jaipur District; xii) Chief Town Planner Rajasthan; and xiii) Non-official members, not exceeding seven to be nominated by the State Government. (11). Section 7 of the Act further provides for constitution and powers of the Executive Committee, which includes the following members:- i) a Chairman, who shall be the Jaipur Development Commissioner; ii) Secretary, Urban Development and Housing or his representative not below the rank of Deputy Secretary; iii) Secretary, Jaipur Development Authority (who shall be the member-Secretary of the Committee); iv) Chief Engineer, Public Works Department, Rajasthan; v) Chief Engineer, Public Health Engineering Department, Rajasthan; vi) Representative of the Rajasthan State Electricity Board not blow the rank of a Chief Engineer; vii) Managing Director, Rajasthan State Industrial and Investment Corporation Limited; viii) General Manager, Rajasthan State Road Transport Corporation; ix) Managing Director, Rajasthan Tourism Development Corporation; x) Director, Engineering of the Authority; xi) Director, Town Planning of the Authority; xii) Director, Finance of the Authority; xii-a) Director, Law of the Authority;] xiii) Collector, Jaipur; xiv) Superintendent of Police, Jaipur; xv) The Commissioner, Municipal Council, Jaipur. (12). (12). The Executive Committee, as referred to above, shall exercise the following powers and perform the following duties, namely: i) organisation of the divisions and operational units of the Authority; ii) Preparation of drafts of regulations and recommending to the Authority for making them; iii) operation of the Jaipur Region Development Fund; iv) preparation of projects and schemes; v) approval or rejection of tenders for projects and schemes; vi) creation of posts under the Authority upto such level as may be determined by regulations; vii) borrowing and reborrowing of money required by the Authority; viii) investment of surplus money of the Jaipur Region Development Fund ix) making of grants, subventions, loans or advances to, or sharing expenses with any local or other authority or person for projects and schemes; x) institution or withdrawal of legal proceedings on behalf of the Authority; xi) delegation of any of its powers and duties to its Chairman or any officer of the Authority. (13). Chapter IV of the Act provides for powers and functions of the Authority, which include, among others: a) urban planning including the preparation of Master Development Plan and Zonal Development Plans and carrying out surveys for the purpose and also making alterations therein 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; d) to make recommendations to the State Government on any matter or proposal requiring action by the State Government, Central Government, any local authority or any other authority for overall development of the Jaipur Region; f) co-ordinating execution of projects or schemes for the development of the Jaipur Region; k) to acquire, hold, manage and dispose of property, movable or immovable, as it may deem necessary; (14). There is no dispute that once allotment been made by JDA for a particular purpose, the change of use of the land can be permitted within the prescribed norms as provided under the Rules. (15). In the present case, the advertisement was issued on 19.9.2001 for auction of the land in question for Drive in Cinema, which also undisputedly comes within the commercial activity. The petitioners bid been highest, the same was duly accepted by the respondent JDA. (15). In the present case, the advertisement was issued on 19.9.2001 for auction of the land in question for Drive in Cinema, which also undisputedly comes within the commercial activity. The petitioners bid been highest, the same was duly accepted by the respondent JDA. Money been also deposited as per the demand note sent by the authorities. The petitioners have been continuously reminding the authorities of JDA to make sure that due care has been taken of before putting the land in question for public auction that it was within the permissible parameters for construction of Drive in Cinema under the Rajasthan Cinema (Regulations) Act, 1952 and the Rules of 1959 made thereunder. It was clearly mentioned in various letters written by the petitioners to the respondent JDA, as has also been placed on record and not disputed by JDA, that the petitioners intended to take the benefit of exemption of entertainment tax as per the policy of the State Government for which cinema should have been started by 31.3.2002. It has also been mentioned that the matter should be taken on top priority because delay may be fatal and may attract huge losses. It has also been mentioned in the reminders issued by the petitioners that final payment has been tendered subject to the condition that JDA shall utilise the same only after issuing confirmation letter in regard to the issues raised by the petitioners. The matter was unnecessary been delayed for one reason or the other before execution of the lease deed on 15.2.2002. It was only after, receiving the letter dated 13.5.2002 from the District Collector, Jaipur mentioning therein that NOC for Drive in Cinema cannot be issued since in south of the land in question petrol pump/ petrol storage tanks are situated and in the south-west side one Engineering College was there and also some objection of passing of overhead high tension electricity line. The petitioners, who had already invested huge amount by then, were left with no other alternative but to pray for change of use of the land in question for any other commercial purpose within the permissible limits. (16). It may be pertinent to mention here that in the advertisement it was clearly mentioned that the land was being auctioned for Drive in Cinema. (16). It may be pertinent to mention here that in the advertisement it was clearly mentioned that the land was being auctioned for Drive in Cinema. Even in the lay out plan, which existed at the time of auction, no such Engineering College was there and the fact of existence of petrol pump/ petrol storage tanks of Bharat Petroleum Corporation was already in the knowledge of JDA but still the land was put to auction for Drive in Cinema without verifying the facts. The project of Drive in Cinema has also been widely publicised in the Progress Report for the year 2001-02 in a glossy brochure circulated by the respondent JDA. (17). From the duties and powers of the Executive Committee, as referred to above, it is expected of the authorities to have checked up all pros and cons of the project before approval and sanction of the same. The Executive Committee, as per section 7 of the Act, also includes the District Collector, Jaipur as also the Superintendent of Police, Jaipur. The project of Drive in Cinema was approved by JDA not at the behest of the petitioners. The petitioners were only made to believe that since there is a widely publicised project, the same might have been approved strictly under the norms, rules and regulations. Since, as per the relevant rules and regulations, the Drive in Cinema could not have been permitted on the land in question, the petitioners should have been granted permission for using the land in question for any other commercial purpose for which the petitioners have been making repealed representations and reminders since May, 2002 after receiving the letter from the District Collector, Jaipur refusing to issue NOC. (18). It is a strange coincidence that the show cause notices issued by this court on 29.1.2003 were received by the respondent Authority on 6.2.2003. On the same day, the Committee considered the representation dated 10.6.2002 of the petitioners for change of use of the land and rejected the same on the same day. The decision of the Committee has been communicated to the petitioners vide letter dated 5.3.2002, the date fixed in the court in the present writ petition. On the same day, the Committee considered the representation dated 10.6.2002 of the petitioners for change of use of the land and rejected the same on the same day. The decision of the Committee has been communicated to the petitioners vide letter dated 5.3.2002, the date fixed in the court in the present writ petition. The counsel for JDA had already put up appearance before this court on 21.2.2003, however, no such mention was made by him that the representation of the petitioners had already been rejected by the Committee for change of use of the land in question and the allotment has been cancelled. Some times, such strange coincidences speak for themselves and reading between the lines is not required. With one stroke of pen not only the allotment is cancelled but the lease deed duly executed is also treated to be cancelled without following any due process of law. Such action of the Authority cannot, in any way, be appreciated what to say of approved. (19). The submissions of Mr. Mathur, learned Additional Advocate General appearing on behalf of the respondents, appears to be a double edged weapon. Tempting a person to invest huge amount in a project widely publicised; entering into a contract; executing a lease deed; accepting the entire amount and further delaying the project for one reason or the other, depriving the petitioners from getting concession of entertainment tax and then asking the petitioners to take the money back by cancelling the allotment without any rhyme or reason. Further asking the petitioners to approach another forum for claiming compensation. Such approach and attitude is not expected of a public authority which has been constituted for the purpose of development of the city in the interest of the public and not for earning profits like an ordinary businessman. (20). The authorities unmindful of their duties and obligations some times just play their games. Justice is pleaded before the courts which are blamed for delay and the litigants suffer. Becoming involved in a lawsuit is like `being ground to bits in a slow mill; its being roasted at a slow fire; its being stung to death by single bees; its being drowned by drops; its going mad by grains. Hundreds of thousands of people are exposed to such torture each year, some of them actually choosing to initiate the process. Hundreds of thousands of people are exposed to such torture each year, some of them actually choosing to initiate the process. They invariably find the experience painful, protracted, and expensive. When it has run its course, they often realize that it was futile. Yet there remains a queue of victims impatient for their turn. (21). Institutions are governed by the Rules. Such Rules could be self codified and imposed. Sometime they are framed by the external agency to which the institutions owe obedience. Activism by any institution essentially involves extra ventures. Those ought to be complementary to further the motto of the institution. If not, they might prove to be sometime contra or extra institutional. They might tend to be in derogation to the basic function of the institution itself. Such ventures, even if laudable to the public sentiments, might tend to upset the coordination between the sister institutions. Such enthusiasm, if ancillary to the main purpose, would be proved to be hygienic to the institution. They, if go far from the central purpose, might turn to be mis-alligned. Such ventures might encroach on the functional areas of others. (22). A corporation cannot blush. It is a body, it is true; has certainly a head - a new one every year; arms it has and very long ones, for it can reach at any-thing; . . . a throat to swallow the rights of the community, and a stomach to digest them. But who ever yet discovered, in the anatomy of any corporation, either bowels or a heart? So is the case in the present matter. The rule of law can be wiped out in one misguided, however, well-intentioned generation. And if that should happen, it could take a century of striving and ordeal to restore it, and then only at the cost of the lives of many good men and women. There is no crueler tyranny than that which is perpetuated under the shield of law and in the name of justice. (23). The land in question is already commercial land. Since a Drive in Cinema is not feasible due to series of lapses, misrepresentations and misleading stand of the authorities of the JDA it is always permissible that the petitioners may be allowed to use the land for any other purpose falling under the category of commercial use. (23). The land in question is already commercial land. Since a Drive in Cinema is not feasible due to series of lapses, misrepresentations and misleading stand of the authorities of the JDA it is always permissible that the petitioners may be allowed to use the land for any other purpose falling under the category of commercial use. The purpose for which the respondent JDA has been constituted under the Act of 1982, it is not expected to act as an ordinary businessman only to earn profits. It has to take a purposeful and pragmatic approach in the development of the city and also protect the rights of not only the general public but also the persons with whom they enter into contracts for the development of the city. The petitioners have already suffered great mental agony as also the financial loss. (24). Accordingly, the writ petition is allowed and the decision dated 6.2.2003 (Annexure-11B) taken by the Committee, the reference of which has been made in the order dated 5.3.2003 (Annexure-11A), communicated to the petitioners, is quashed and set aside. The respondent JDA is directed to issue permission letter to the petitioners for change of use of the land in question for any other commercial purpose falling within the permissible limits of the Rules and Regulations, within 15 days of the date of receipt of certified copy of this order. The respondents shall also pay a sum of Rs. 50,000/- as costs to the petitioners within the above period. (25). It is high time that the officers of such public authorities be made accountable to the public for their lapses, moreso, in view of repeated boosting by the State Government of its policy of transparency. It is expected that the State Government may make an enquiry into the working of the Jaipur Development Authority so that in future the people may not get such shabby treatment and force them to go for protracted litigation. (26). A copy of this order may also be sent to the Chief Secretary, Government of Rajasthan, Secretariat, Jaipur.