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2005 DIGILAW 781 (RAJ)

Marudhar Nagar Vikas Samiti v. State of Rajasthan

2005-03-14

K.S.RATHORE, SHIV KUMAR SHARMA

body2005
Judgment S.K. Sharma, J.-All these pro bono writ petitions have been filed challenging the construction of multiple unit residential complexes in the city of Jaipur. Since analogous relief has been sought by the petitioners, we propose to decide these writ petitions by a common order. 2. For convenience the facts of D.B. Civil Writ Petition No. 7353 of 2003 are taken up. The petitioner Marudhar Nagar Vikas Samiti (in short `Samiti) has approached this Court with the following prayer:- "(i) The respondents State of Rajasthan, Jaipur Development Authority (in short `JDA) and Jaipur Municipal Corporation (in short `JMC) be directed to take requisite measures to ensure that unless the approval and sanctioned Scheme of a residential colony provides for division of big sized plots, wide roads, ample open space and adequate facilities and unless such scheme specifically permits construction of multiple unit residential complex, small sized plots situated in small colonies and or facing narrow roads such as plot No. 17 in Marudhar Nagar Jaipur cannot be used for constructing multiple unit residential complexes. (ii) It may be declared and directed that the respondents State of Rajasthan, JDA and JMC can not and shall not whether by issuing patta or allotment permit any person to acquire right or interest in an immovable property from another unless the written instrument, whether labeled as sale, agreement, power of attorney or in any other manner, is properly executed, stamped and registered in accordance with law and the order of allotment (Annexure-7) may be quashed and set aside. 3. As per the facts incorporated in the writ petition the members of the petitioner Samiti got plots of land from Mitra Grih Nirman Sahakari Samiti Ltd. And the Grih Nirman Sahakari Samiti was granted technical approval of the scheme from JDA on April 4, 1982 and thereafter, the JDA in the meetings of building plan committee approved the scheme of the Samiti. On August, 2000 and September 7,2000. The grievance of the petitioner Samiti is that plot No. 17 is situated on a 30 ft. wide road having total area of 266.66 sq. yds. In the name of Smt. Pushpa Singh wife of Shri Y. Singh. The petitioner Samiti submitted that several members constructed their residential houses and the holder of plot No. 17 started constructing multiple unit complex through Manuka Struds. wide road having total area of 266.66 sq. yds. In the name of Smt. Pushpa Singh wife of Shri Y. Singh. The petitioner Samiti submitted that several members constructed their residential houses and the holder of plot No. 17 started constructing multiple unit complex through Manuka Struds. The petitioner Samiti sent letters to the JDA in the month of October and November, 2003 bringing this fact to the notice of the JDA. The authorities of the JDA visited the site and informed the members of the Petitioner Samiti that Smt. Aruna Kaushik (respondent No. 4) by virtue of agreement sale letter dated September 30, 2003 entitled to raise any kind of construction on the said plot upto the height of 12 meters. The petitioner Samiti submitted that the ownership of said plot No. 17 has not been transferred from its original allottee Smt. Pushpa Singh to the respondent No. 4 by way of duly executed stamped and registered deed of transfer. The respondents No. 4 and 5 have no right to raise multiple unit apartment type residential complex on plot No. 17. It was further submitted that the respondents No. 4 and 5 acting in similar fashion has raised multiple unit apartment type construction at plot No. 26 Heera Nagar Ajmer Road Jaipur and the said plot is barely 250 sq. yds. The husband of respondent No. 4 owns a residential house at D-75 Hanuman Nagar Jaipur and the JDA has not only ignored such blatant illegality and irregularity and on protest being made by the members of petitioner Samiti conveniently turned its Nelson eyes towards their grievance. The construction of multiple unit complex on a plot of 260 yds. violates the basic scheme of the colony but also create a pressure and prejudicially affect the available facilities, amenities, resources and ambiance. 4. The respondent No. 2 in the reply submitted that they have no unwholly alliance with the private builders and it is unfortunate that without any iota of evidence grave allegations have been levelled against the JDA. According to the notification dated February, 2001 maximum height of residential houses are permitted to be 12 meters, under the JDA Building Bye-Laws 2000. It was submitted that construction on plot No. 17 has been made of ground floor and first floor and most of the conditions of building bye-laws have been followed. According to the notification dated February, 2001 maximum height of residential houses are permitted to be 12 meters, under the JDA Building Bye-Laws 2000. It was submitted that construction on plot No. 17 has been made of ground floor and first floor and most of the conditions of building bye-laws have been followed. Since there was a violation in the set back a notice was issued to the respondent No. 4 on November 28, 2003. The respondent No. 4 purchased the plot in question through a sale-deed dated September 15, 2003 and on the basis of sale-deed the lease-deed was issued in her name on September 30, 2003. Since the plot in question was less than 500 sq. meters prior approval for making construction from the JDA was not required. The JDA averred that only ground floor and first floor have been constructed thus there is no evidence to conclude that multiple residential units and apartments are being constructed by respondents No. 4 and 5 on plot No. 17. 5. The respondent No. 4 in her reply averred that Anoop Shah and Kamla Singh who are Executive Members of the petitioner Samiti are neighbours of the respondent No. 4. Shri Anoop Shah is brother of Smt. Arti Shah and is living in the house of Smt. Arti Shah. Anoop Shah and Kamal Singh with a collusion to purchase the plot of the respondent No. 4 pressurised her to sale the plot to them and threatened her that in case she will not sale the plot to them they will not allow to her to live in her residential plot and further she will not be able to raise construction over the residential plot. With ulterior motive both Anoop Shah and Kamal Singh are harassing the respondent No. 4 in the garb of the petitioner Samiti and for this purpose this petition has been filed against the respondent No. 4. The petition has nothing to do with the public interest and is merely a concocted story prepared by Anoop Shah and Kamal Singh Maloo. The Samiti has nothing to do with the benefits of residents and Anoop Shah and Kamal Singh are misusing their position only in order to harass the respondent No. 4. The petition has nothing to do with the public interest and is merely a concocted story prepared by Anoop Shah and Kamal Singh Maloo. The Samiti has nothing to do with the benefits of residents and Anoop Shah and Kamal Singh are misusing their position only in order to harass the respondent No. 4. The respondent No. 4 averred that she purchased the plot No. 17 from Smt. Pushpa Singh through power of attorney holder vide sale-deed dated September 15, 2003 and the plot was transferred by the JDA in the name of respondent No. 4 on September 25, 2003. Conversion charges to the tune of Rs. 49,433/-were deposited vide receipt dated September 30, 2003 in the JDA. The respondent No. 4 also deposited the registration charges before the Sub-Registrar through receipts dated October 14, 2003 and September 15, 2003. As per the bye-laws the respondent No. 4 can raise construction upto the height of ten meters. The petitioner Samiti has not come with clean hands and has not placed the correct position of plots and construction raised on the same. Smt. Arti Shah who is sister of Anoop Shah and neighbour of respondent No. 4 has raised construction on plot No. 48 against the JDA bye-laws as she has not left the back set-back and has raised construction on zero set-back. The respondent No. 4 averred that prior to raising the construction Smt. Arti Shah has neither sought any permission from the JDA nor any map was got sanctioned from the JDA. No amount has been deposited by Smt. Arti Shah with the JDA. Shri Kamal Singh Maloo has also raised the construction violating the bye-laws of JDA as he has not left the back set-back on his plot No. 47. The petitioner submitted that almost all the plot holders and members have raised the construction on their respective plots by violating bye-laws of JDA as they have not left 10 ft. area back set-back on their respective plots. The respondent No. 4 averred that it is not known to her as to on what basis the petitioner Samiti and its office bearers have alleged that the construction on plot No. 17 will be raised by her in a manner that will convert it into multiple unit complex. M/s. Manuka Stroods Pvt. Ltd. (respondent No. 5) has nothing to do with the plot of answering respondent No. 4. M/s. Manuka Stroods Pvt. Ltd. (respondent No. 5) has nothing to do with the plot of answering respondent No. 4. The answering respondent No. 4 submitted that she is not aware about the letters and representations sent by the petitioner Samiti to the builder or the JDA. Even if any letter has been sent by the petitioner Samiti to the JDA the same suffers from mala fide intention and malice with an ulterior motive in order to deprive the respondent No. 4 of her valuable rights to raise construction on her residential plot as Anoop Shah and Kamal Singh want to purchase the plot of the respondent No. 4 for which they time and again insisted and put pressure upon her. Respondent No. 4 averred that the petitioner Samiti filed the above writ petition in the garb of Public Interest Litigation only to fulfill their ulterior motive through this malicious petition in the garb of Public Interest Litigation. The allegation of the petitioner Samiti that the respondent No. 4 is having house in Hanuman Nagar is false. The respondent No. 4 is not having house in Hanuman Nagar in her own name. It is further averred that respondent No. 4 has not violated any term or conditions of the JDA bye-laws and has not even completed the construction and JDA cannot stop from raising construction. Replying to the grounds respondent No. 4 averred that the JDA being a statutory body is supposed to act in accordance with law and it has acted in accordance with law while issuing patta to the respondent No. 4 and there cannot be any doubt for levelling any allegation in casual manner without any substance. The conditions if any imposed or stipulated by the petitioner Samiti cannot sit over the conditions of the allotment letter issued by the JDA. The JDA has to act as per its bye-laws and not as per the guidelines of the petitioner Samiti. The respondent No. 4 has neither made commercial exploitation of the plot in question nor is going to do so and she is only going to construct residential house for her use and there is nothing illegality or ambiguity in the same. Lastly it as prayed that the petitioner Samiti is not entitled to any relief against the respondent No. 4. In these circumstances, the respondents No. 2 and 4 prayed for dismissal of the writ petition. Lastly it as prayed that the petitioner Samiti is not entitled to any relief against the respondent No. 4. In these circumstances, the respondents No. 2 and 4 prayed for dismissal of the writ petition. The petitioner Samiti submitted rejoinder to the reply filed by the respondents No. 2 and 4 and reiterated the facts stated in the writ petition. .6. Learned Counsel for the petitioners took us to JDA Laws and placed for our perusal comparative chart of Greater Mumbai, Delhi, Chandigarh, Bangalore and Jaipur showing the areas of set backs. Ground coverage, Floor area ratio, height and parking as required for the newly constructed buildings. Following submissions were canvassed in support of the writ petitions :- .(i) That unless a residential colony is conceived, sanctioned and developed under a scheme which itself provides for division of the area into large size plots and development of such plots into multistoried (sic) construction comprising of flats/apartments, the authorities statutorily responsible for ensuring .a proper and co-ordinated development of the city cannot permit any person to construct multiple unit complexes on small plots in small residential colonies. The impervious inaction on the part of the officials of respondent JDA in preventing the impugned constructions being made by the respondents No. 4 and 5 over the plot of land in question amounts to dereliction of duties and abdication of their statutory responsibilities. .(ii) The respondent JDA has no competence or authority whatsoever in issuing a Patta in favour of any subsequent purchaser including respondent No. 4 when the plot of land in question has not been transferred in accordance with law. The impugned action of the respondent JDA is patently illegal, invalid and ultra vires. (iii) The manner and circumstances under which the impugned Patta has been granted by the respondent JDA in favour of respondent No. 1 clearly shows that the officials of the respondent JDA have acted in collusion with the respondent No. 4 who has defrauded the State Exchequer by entering into the shoes of the original allottee without there being any properly executed, stamped and registered deed of transfer. .(iv) That as stated hereinabove in the allotment letters which were issued by the Co-operative Society in favour of its member allottees it was inter alia stipulated that the height of the construction to be raised thereon shall not exceed nine meters. .(iv) That as stated hereinabove in the allotment letters which were issued by the Co-operative Society in favour of its member allottees it was inter alia stipulated that the height of the construction to be raised thereon shall not exceed nine meters. The members of the petitioner Society accordingly took up residence after raising construction conforming to the general lay out of the colony. In the process the members of the petitioner Samiti have invested their life times savings. It is, therefore, parently illegal on the part of the respondent JDA to permit commercial exploitation of individual plots in the said colony and that too by permitting construction beyond nine meters in height. .(v) That the respondent No. 3 are under a constitutional and statutory obligation to protect, preserve and promote all such facilities, amenities, infrastructure etc. which would add to the quality of liver of the residents of Jaipur. The impugned action of the JDA in permitting commercial exploitation of the plot in question at the hands of the respondents No. 4 and 5 is under the given circumstances patently illegal and unconstitutional. .(vi) That the respondents No. 1 to 3 are duty bound to ensure that residential colonies of the city do not (sic) converted into ghettoes at the instance of private builders. Thus small plots of land situated on roads having width less than 90 ft. cannot be permitted to be converted into tall structures comprising of multiple units. The impugned action of the respondents is thus patently illegal, invalid and unconstitutional. 7. We have pondered over the contention advanced before us and carefully weighed the relevant statutory provisions and other material on record. 8. The Jaipur Development Authority Act, 1982 (for short `JDA Act) was enacted to provide for the establishment of an authority for the purpose of planning Co-ordinating and supervising the proper, orderly and rapid development of the Jaipur Region and of executing plans, projects and schemes for such developments and the matter connected therewith. All the illegal orders and threatened acts of the JDA are subjected to appeal before a Tribunal. Section 83 of JDA Act which provides for the construction of Tribunal, reads as under:- "83. Constitution of Tribunal.-(1) The State Government shall, by notification in the Official Gazette, constitute a Tribunal for the purpose of this Act. All the illegal orders and threatened acts of the JDA are subjected to appeal before a Tribunal. Section 83 of JDA Act which provides for the construction of Tribunal, reads as under:- "83. Constitution of Tribunal.-(1) The State Government shall, by notification in the Official Gazette, constitute a Tribunal for the purpose of this Act. .(2) The Tribunal shall consist of one person who shall be an officer of the State Government and shall be paid such salary and allowances as may be determined by the State Government. .(3) The State Government may to assist the Tribunal, direct the Authority to appoint such number of servants and of such cadre as may be deemed necessary. .(4) The expenses of the Tribunal shall be borne by the Authority. .(5) The procedure to be followed by the Tribunal in deciding the appeals or disputes referred to it under this Act shall be such as may be prescribed. .(6) The Tribunal shall have the same powers as are vested in a civil Court under the Code of Civil Procedure, 1908 (Central Act V of 1908) in respect of hearing and deciding of an appeal or any dispute referred to it. .(7) Except as otherwise provided, any dispute arising out of any provision of this Act may be referred to the Tribunal by the Authority. The decision of the Tribunal shall be final and binding on all the parties thereto. .(8) Except as otherwise provided- .(a) anyperson aggrieved by an order or notice of the Authority may file an appeal in the Tribunal within thirty days of the communication of such order or notice to him; and .(b) any person aggrieved by any threatened act or injury from the Authority affecting his rights may refer the dispute to the Tribunal within thirty days of the communication or knowledge of such threatened act or injury; and the decision of the Tribunal shall be final. 9. It is thus evident that any person aggrieved by an order or notice of the JDA may file an appeal in the Tribunal against threatened act or injury affecting his rights either file appeal or may refer the dispute to the Tribunal and the decision of the Tribunal shall be final. 10. Indisputably the petitioners did not chose to approach the Tribunal for their grievances but straightway rushed to this Court invoking Article 226 of the Constitution. 11. 10. Indisputably the petitioners did not chose to approach the Tribunal for their grievances but straightway rushed to this Court invoking Article 226 of the Constitution. 11. Before adverting to the issue involved in the instant matters it will be useful to consider the scope of Public Interest Litigation. 12. In Janta Dal vs. H.S. Chaudhary, 1992 (4) SCC 305 , the practice for filing Public Interest Litigations for personal gain was deprecated in the strongest possible terms by their Lordships of the Supreme Court. It was observed as under:- "It is clear that only a person acting bona fide and having sufficient interest in the procedure of PIL will have locus standi and can approach the Court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any other oblique consideration. Similarly, a vexatious petition under the colour of PIL brought before the Court for vindicating any personal grievance, deserves rejection at the threshold." .13. In the light of the various Judgment s pronouncements by the Honble Supreme Court some of the precautions in regard to PIL may be broadly enumerated as follows:- .(i) The petition should be bona fide. It must agitate the genuine grievances of a determinate class of people who by reason of poverty or ignorance are unable to seek justice for themselves. .(ii) The petition must contain all the necessary informations and documents. Half -backed petitions should be avoided. It must be supported by an affidavit of the complainant or a person having knowledge of the facts. .(iii) Material facts should not be suppressed. If such facts are suppressed, the same may be brought to the notice of the Court by the respondents after the notice is issued by the Court. In that eventuality, the Court may dismiss the petition with heavy cost against the petitioner. .(iv) The PIL should not be addressed to a particular Judge of the High Court or the Supreme Court. Although it is not fatal, but such a practice has been criticised on the ground that there would be danger of litigants choosing a Judge and in turn Judges choosing their litigants. .(v) The petition must be lent legal and constitutional support. It ought not to be filed merely because the person proceeded against is some important political functionary. Although it is not fatal, but such a practice has been criticised on the ground that there would be danger of litigants choosing a Judge and in turn Judges choosing their litigants. .(v) The petition must be lent legal and constitutional support. It ought not to be filed merely because the person proceeded against is some important political functionary. It must be aimed at wiping the tears of the poor illiterate and the downtrodden. .(vi) The petitioner must be ready to pursue the PIL till its logical conclusion. .(vii) NGOs or public spirited citizens desirous of pursuing PILs should venture their efforts in the following safer fields: .(a) neglected children, (b) bonded labours, (c) non-payment of minimum wages to workers and exploitation of casual workers and violation of labour laws, (d) petition from prisons, (e) speedy trial, .(f) petition against atrocities on women, (g) petition against police excess, (h) petition against atrocities on SC, STs and OBC, (i) petition from riot victims, (j) petition relating to family pension, (k) petition pertaining to the environmental pollution, disturbance of eco-balance, maintenance of forests and wild-life, maintenance of heritage and culture, (l) to challenge the constitutional validity of a draconian law (m) denial of human rights to prostitutes and their children (n) problems of leprosy and AIDS patients (o) denial of human rights to eunuchs (p) large scale corruption and kick-backs (q) prevention of cruelty of animals and (r) other matters of public importance. 14. Their Lordships of the Supreme Court in a recent Judgment rendered in Dattraj Nathuji Thaware vs. State of Maharashtra, JT 2004 (10) SC 561, indicated that the Court has to be extremely careful to see that under the guise of redressing a public grievance it does not encroach upon the sphere reserved by the Constitution to the Executive and the Legislature. The Court has to act ruthlessly while dealing with importers and busy bodies as public-spirited holymen. They masquerade as crusaders of justice. They pretend to act in the name of pro bono public, though they have no interest of public. It was observed in para 4 thus:- "When there is material to show that a petition styled as a Public Interest Litigation is nothing but a camouflage to foster personal disputes, said petition is to be thrown out." 15. They pretend to act in the name of pro bono public, though they have no interest of public. It was observed in para 4 thus:- "When there is material to show that a petition styled as a Public Interest Litigation is nothing but a camouflage to foster personal disputes, said petition is to be thrown out." 15. Coming to the grounds of challenge as we noticed that the petitioners have levelled allegations against the officers of JDA and JMC of dereliction of duties and abdication of their statutory responsibilities. It is also averred that the said officers have failed to protect preserve and promote the quality of life of the residents of Jaipur. No material is however, placed in support of these allegations. It is inexplicable as to why the remedial measures were not taken up against the impugned constructions and if the constructions were illegally made why the Tribunal was not approached. In the facts and circumstances this possibility cannot be ruled out that the instant petitions styled as PIL are nothing but a camouflage to foster personal disputes. 16. The Apex Court in Sadhna Lodh vs. National Insurance Co., 2003 (3) SCC 524 indicated that the right of appeal is a statutory right and when the law provides remedy by filing an appeal the grounds of challenge can not be enlarged by filing a petition under Article 226/227 of the Constitution. We are, therefore, of the view that the petitioners, if they are really aggrieved by the action of JDA and JMC, should prefer statutory appeals before the competent authorities. 17. For these reasons, the instant writ petitions being devoid of merits, stand dismissed with costs.