Research › Search › Judgment

Rajasthan High Court · body

2004 DIGILAW 1589 (RAJ)

H. v. Hotels Pvt. Ltd. VS State of Rajasthan

2004-10-29

K.S.RATHORE

body2004
Honble RATHORE, J.–Brief facts of the case are that the State of Rajasthan issued a public notice for auction of the plot of land measuring 10,490 Sq. Meter popularly known as PWD Chowki, Durgapura, situated at crossing of Tonk Road and JLN Marg, near Durgapura for construction of Hotel. (2). The auction of the aforesaid plot took place on 14.2.1996. The petitioner give the highest bid at the rate of Rs. 8010/- per Sq. Meter. The bid of the petitioner being highest was accepted by the Government. Pursuant to acceptance of the bid, the petitioner deposited the entire amount of Rs. 8,40,24,900/- by 4th May, 1996. (3). Thereafter, sale deed was executed between the petitioner and the Government on 26.3.1997 in the office of Sub-Registrar Jaipur. (4). It was mentioned in the sale deed that out of the land measuring 10,490 Sq. Meter, a strip of land measuring 1510 Sq. Meter will be surrendered by the purchaser for road widening free of charge. It was also provided that the petitioner will be given the benefit in term of FAR which is calculated on the basis of original plot site i.e. 10,490 Sq. Meter. The clause (ii) of the sale deed provides parameters to be followed by the purchaser. it further provides for giving additional FAR to the petitioner in accordance with the changes in the building bylaws framed by the local authorities including JDA. The relevant clauses of the agreement is reproduced hereunder:- ii) Following Parameters have to be followed by the Purchaster:-, + a) Ground coverage : 35% b) F.A.R. : 1.0 c) No. of floors : Not specified d) Maximum permissible height of Building : 15.0 mtrs. e) Set backs : Front I : Towards Tonk Road 12.0 M Front II : Towards JLN Marg to JPR Circle 12.0 M f) Remaining two sides : 6.0 M (5). Consequent upon any changes in Building by laws framed by local authorities including J.D.A. If the buyer gets additional FAR or any relaxation, the Vendor shall have no objection whatsoever, so long as they are permitted by bye-laws as prevailing from time to time. iii) The construction on the plot should be commenced within one year from the date of handing over of possession of the land and the building. building construction should be done within 3 years. iii) The construction on the plot should be commenced within one year from the date of handing over of possession of the land and the building. building construction should be done within 3 years. If the purchaser wants further extension beyond three years, that shall be given against the penalty of Rs. 20,000/- (Twenty thousand) p.m. But in no case the the period shall be extended by more than 2 years. iv) The cost and expenses for registration of Pattas stamp duty and all other incidental expenses shall be borne by the Purchaser. The Purchaser shall also pay any other tax or duty t be levied from time to time by State/Central Government or any other authority of State or Central or local bodies etc. The Purchaser shall also pay other levies that would be raised by the operation of provision of any acts/regulations etc. (6). Pursuant to the sale deed, physical possession was handed over to the petitioner by the PWD Department on 26.7.2004. After measuring the aforesaid plot, it was found that measurement of the plot is 10,227.024 Sq. Mtr. i.e. 263 sq. mtr of land was found short. (7). The petitioner also represented before the respondents with regard to refund of the cost price of excess charges for 263 mtr. of land. On the repeated request made by the petitioner, the respondents vide its letter dated 22.3.2001 agreed to adjust the excess land of 263 sq. mtr. Towards the land to be left by the petitioner for road. (8). The petitioner made a representation to allow him to construct multipurpose, commercial complex with multiplex and the respondents granted the approval vide letter dated 27.11.2001. (9). The controversy arise when a public notice was published in Rajasthan Patrika on 15.1.2003 wherein the JDA shown the FAR as 1.75 for construction of Air Port Plaza. The aforesaid locations are nearby the plot of the petitioner. Similarly other examples are referred by the petitioner wherein the FAR is 1.75. (10). Thus, in view of the changed FAR, the petitioner represented before the respondents for additional FAR and for permission to construct multipurpose commercial complex, multiplex and hotel. The aforesaid locations are nearby the plot of the petitioner. Similarly other examples are referred by the petitioner wherein the FAR is 1.75. (10). Thus, in view of the changed FAR, the petitioner represented before the respondents for additional FAR and for permission to construct multipurpose commercial complex, multiplex and hotel. Ultimately vide letter dated 14.6.2004 petitioner was informed that the para meter of the FAR cannot be changed in view of Clause 19.8 of the JDA (Jaipur Region Building) Rules, 2000 (hereinafter to be referred as JDA Rules, 2000) as the plot was sold in auction. Hence this writ petition is preferred by the petitioner praying for additional FAR. (11). Learned Senior Counsel Mr. S.M. Mehta has challenged the order dated 14.6.2004 on various grounds. Mr. Mehta referred the clause of the sale deed wherein it has been mentioned the ``consequent upon any changes in Building Bye laws framed by local authorities including J.D.A., If the buyer gets additional FAR or any relaxation, the Vendor shall have no objection whatsoever, so long as they are permitted by bye-laws as prevailing from time to time. (12). Mr. Mehta, learned senior counsel referred Clause 19.8 of the JDA Rules, 2000, which is reproduced hereunder:- (13). After referring this clause, Mr. S.M. Mehta submits that Clause 19.8 is not having any application to the instant case as the land which has been purchased by the petitioner through auction is Nazul land and was sold by the Government as a free hold whereas under JDA Rules, no land can be sold as freehold land and whatever condition has been stipulated in the sale deed should be abide by the State. As stated above, it was made clear that upon any change in building Bye Laws framed by the local authorities including JDA, the petitioner is entitled to get the additional FIR is according to any relaxation is provided from time to time. (14). Mr. As stated above, it was made clear that upon any change in building Bye Laws framed by the local authorities including JDA, the petitioner is entitled to get the additional FIR is according to any relaxation is provided from time to time. (14). Mr. S.M. Mehta further referred Section 11 of the Transfer of Property Act, 1882 which is reproduced as under:- ``Restriction repugnant to interest created - Where, on a transfer of property, an interest therein is created absolutely in favour of any person, but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner, he shall be entitled to receive and dispose of such interest as if there were no such direction. (15). Learned counsel submits that the petitioner has purchased the freehold land from the State and through auction under the Rajasthan Nazul Building (Disposal by Public Auction) Rules, 1971, the interest is created in favour of the petitioner. (16). Learned counsel for the petitioner is support of his submissions referred a judgment rendered in case of Raja Dhruv Dev Chand vs. Raja Harmohinder Singh & Anr. (1), more particular he referred para 10. In para 10, Honble Supreme Court has observed as under:- ``We are unable to agree with counsel for the appellant in the present case that the relation between the appellant and the respondents vested in a contract. It is true that the Court of Wards had accepted the tender of the appellant and hand granted him a lease on agreed terms of lands of Dada Siba Estate. But the rights of the parties did not after the lease was granted rest in contract. By S.4 of the Transfer of Property Act which relate to contracts are to be taken as part of the Indian Contract Act, 1872. That section however does not enact and cannot be read as enacting that the provisions of the Contract Act are to be read into the Transfer of Property Act. There is a clear distinction between a completed conveyance and an executory contract, and events which discharge a contract do not invalidate a concluded transfer. (17). Learned counsel also placed reliance on the judgment rendered in case of Usman Gani J. Khatri of Bombay vs. Cantonment Board & Ors. There is a clear distinction between a completed conveyance and an executory contract, and events which discharge a contract do not invalidate a concluded transfer. (17). Learned counsel also placed reliance on the judgment rendered in case of Usman Gani J. Khatri of Bombay vs. Cantonment Board & Ors. (2), wherein Honble Supreme Court has held that building plans can only be sanctioned in accordance with the building regulations prevailing at the time of sanctioning the plans. (18). While referring the aforesaid judgment, Mr. Mehta submits that whatever rules and regulations framed will only apply in case the petitioner submits the building plan to the JDA and sanction should be accorded in accordance with the building regulation prevailing at the time of sanction of such building plan. Not only this as stipulated in the sale deed, it was made clear that changed regulations and the rules will be application in case of the petitioner also. (19). Learned counsel for the petitioner submits that time period of construction of the building has been extended, therefore, the petitioner wants to construct the building and has been extended, therefore, the petitioner wants to construct the building and has applied for increase of FAR. In support of his submission, he placed reliance on the judgment rendered in the case of R. Satyanarayana vs. Shantha (Smt.) and Others (3). (20). Mr. S.M. Mehta also referred Clause 8.3 of Rules of 2000 wherein the FAR has been shown as 1.75, therefore, the petitioner is entitled to get the benefit of 1.75 FAR. (21). Per contra, learned Additional Advocate General has raised the preliminary objections regarding maintainability of the present writ petition. First preliminary objection raised by the learned Additional Advocate General is with regard to non-joinder of necessary party. Learned Addl. Advocate General submits that relief of increase of FAR is to be granted by the JDA, but the petitioner has not impleaded the JDA as party in this writ petition. (22). Learned Additional Advocate General submits that according to Section 17 of the Act, 1982, no development in the Jaipur Region can take place except in accordance with the permission in writing given by the JDA. (22). Learned Additional Advocate General submits that according to Section 17 of the Act, 1982, no development in the Jaipur Region can take place except in accordance with the permission in writing given by the JDA. Since, construction of building is also development in terms of the definition of the expression under Section 2(E) of the Act of 1982, therefore, the JDA is a necessary party and the writ petition is liable to be dismissed on this count alone. In support of his submissions, he placed reliance on the judgment rendered in case of Udit Narain vs. State of Bihar (4). (23). Mr. Vyas further placed reliance on the judgment rendered in case of Ganga Retreat & Towers Ltd. & anr. vs. State of Rajasthan & Ors. (5), wherein Honble Supreme Court has held that ``the sale of land by way of auction was neither statutory nor by way of grant. Consequently, it was held that the rights and obligations incorporated in the sale deed were not statutory in character. That it was a completed contact in which highly disputed questions of fact were involved which could not be adjudicated upon by the High Court in exercise of its writ jurisdiction. It was left open to the appellants to seek their remedy in the civil Court. (24). After referring this judgment, learned Addl. Advocate General submits that the writ petition is not maintainable as for contractual matters, writ jurisdiction is not proper remedy. (25). On the factual matrix of the case, learned Additional Advocate General submits that building regulations framed under the JDA act will only apply to the instant case. It was further submitted that the when the auction was held the bye-laws of 1989 were applicable. Subsequently, the bye-laws of 1996 became applicable w.e.f. 25.6.1996. The bye-laws of 1996 came to be replaced by the present set of bye-laws of Jaipur Development Authority (Jaipur Region Building) regulations, 2000. As a matter of fact Regulation 19 pertains to repeal and saving. According o Regulation No. 19.8, the different para meters which were provided to auction purchaser at the time of the auction shall always apply. The petitioner have to abide by the by the bye- laws. (26). The Apex Committee in its 60th meeting dated 20.5.2004 revisited the petitioner request for grant of additional FAR and allowing construction of hotel also in addition to multi purpose commercial complex. The petitioner have to abide by the by the bye- laws. (26). The Apex Committee in its 60th meeting dated 20.5.2004 revisited the petitioner request for grant of additional FAR and allowing construction of hotel also in addition to multi purpose commercial complex. The Apex Committee comprises of Principal Secretary (Finance), Secretary (GAD), Addl. Chief Engineer Jaipur Zone, PWD, Deputy Secretary, Finance Department (Expenditure-II) and Deputy Secretary-cum Director of State of Rajasthan declined to allow additional FAR in view of Regulation 19.8 and also refused permission for construction of hotel in addition to the permitted use. The decision was communicated to the petitioner vide letter dated 14.6.2004. (27). Heard rival submissions of the respective parties and carefully perused the relevant provisions as well as judgments referred before me. (28). To resolve the present controversy, I would like to deal with the condition of the sale deed first. Upon perusal of the conditions mentioned in the sale deed, it reveals that upon any changes in building bye-laws framed by the local authorities including JDA, if the buyer gets additional FAR or any relaxation, the Vendor shall have no objection whatsoever, so long as they are permitted by bye-laws as prevailing from time to time, meaning thereby, for the purpose of additional FAR or any relaxation, the building bye-laws framed by the JDA will only be applicable. (29). It is not disputed that the sale deed was executed between the petitioner and the State and plot was allotted under the Rajasthan Nazul Building (Disposal by Public Auction) Rules, 1971 through open auction. (30). The petitioner has applied for additional FAR on account of change in bye-laws and the JDA is providing 1.75 FAR whereas at the time of execution of sale, the FAR which was provided to the petitioner is 1.0. As per the condition of the sale deed, the State should not have any objection whatsoever, so long as they are permitted by bye-law as prevailing for present time. (31). The Honble Supreme Court in case of Usman Gani (supra) has held that building plan can only the sanctioned in accordance with the building regulations prevailing at the time of sanctioning the plans. (31). The Honble Supreme Court in case of Usman Gani (supra) has held that building plan can only the sanctioned in accordance with the building regulations prevailing at the time of sanctioning the plans. The same view has been taken by the Honble Supreme Court in case of R. Satyanarayana (supra) that the building by-laws applicable would be the by-laws existing at the time when the plans of the building were sanctioned by the Municipal Corporation. Here in the instant case, it is not disputed that the time period for construction of building has been extended by the respondents and the petitioner applied for to raise the construction of building as per prevailing existing by-laws. Thus, with this view, the petitioner applied for additional FAR according to prevailing by-laws. It is also not disputed that other plots which were auctioned after the petitioners plot, the JDA itself publicly notified for 1.75 FAR. (32). I have also considered the preliminary objection raised by the respondents that the petitioner has not impleaded the JDA as party in this writ petition. I am not convinced with the submissions of the respondents that the JDA is necessary party because impugned order has been passed by the State not by the JDA and since no relief has been claimed against the JDA, therefore, this objection does not sustain. (33). I have also considered the preliminary objection that this Court while dealing with the contractual matters should not exercise power under Article 226 of the Constitution. Learned Additional Advocate General referred the case of Ganga Retreat & Towers Ltd. & Anr.(supra) wherein Honble Supreme Court has held that in case highly disputed questions of fact are involved in the writ petition, such writ petition could not be adjudicated upon by the High Court in exercise of its writ jurisdiction. Mr. S.M. Mehta, learned senior counsel for the petitioner also referred para 12 of this judgment wherein the Honble Supreme Court has held that ``every contract including one by auction is subject to provisions of law. Whenever any action is taken in performance of a contract, it must conform to the law in force at the time when action is taken. S.M. Mehta, learned senior counsel for the petitioner also referred para 12 of this judgment wherein the Honble Supreme Court has held that ``every contract including one by auction is subject to provisions of law. Whenever any action is taken in performance of a contract, it must conform to the law in force at the time when action is taken. The terms and condition of the sale as announced when the property was put to sale were in accordance with law and no guarantee was given (nor could have been given) that the law would not change, or that the terms and conditions would be enforceable even in violations law which may be in force. FAR was a matter of law and the FAR was fixed either by the JDA of JMC in exercise of its statutory powers. The contract when entered into, the FIR approved by JDA was 2 and its subsequent reduction in 1996 to 1.75 would not invalidate the contract or by treating as a breach of the contract nor can it be treated by the government. (34). Here in the instant case, the FAR is increased by the JDA 1.0 to 1.75 and the condition of the sale as announced when the property was put to sale were in accordance with law. As per the condition, the respondents have to provide the FAR,in view of the existing by-laws i.e. 1.75. The petitioner has also not disputed any clause of the agreement. The petitioner has only challenged the impugned order dated 14.6.2004 by which the FAR in view of condition of sale deed was not provided and request of the petitioner was declined. (35). I am of the considered opinion that this is not a such case where any disputed questions of fact are involved and the writ petition cannot be thrown merely because the sale deed has been executed between the parties. Since the petitioner has not challenged the sale deed and also not raised any dispute with regard to sale deed, the preliminary objections of the respondents does not sustain. (36). Similarly in the instant case, principle of estoppel also not applicable and the petitioner has every right to ask for additional FAR as per the prevailing by-laws. The ratio decided by the Honble Supreme Court in cases referred by learned counsel for the petitioner hereinabove are fully applicable to the instant case. (36). Similarly in the instant case, principle of estoppel also not applicable and the petitioner has every right to ask for additional FAR as per the prevailing by-laws. The ratio decided by the Honble Supreme Court in cases referred by learned counsel for the petitioner hereinabove are fully applicable to the instant case. In view of the ratio decided by the Honble Supreme Court, the petitioner is entitled to get the additional FAR in accordance with the prevailing by-laws and public notifications issued by the JDA whereby the JDA is providing 1.75 FAR. The petitioner is also entitled to get the benefit of 1.75 FAR in accordance with by-laws and Notifications. (37). In view of the aforesaid observation, the writ petition stands allowed. The respondents are directed to grant benefit of additional FAR at the ratio of 1.75 forthwith in accordance with the provisions of law.