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2005 DIGILAW 882 (RAJ)

Chanderpal Bagga v. State of Rajasthan

2005-03-22

K.S.RATHORE

body2005
Judgment K.S. Rathore, J.-This writ petition has been filed challenging the permission granted by the Municipal Corporation, Jaipur to respondent No. 4 M/s. Shruti Associates for construction of a multi-storey building on plot No. 565, Rajapark, Jaipur. 2. The petitioner has also challenged the validity of Jaipur Development Act, 1982 (hereinafter to be referred as the JDA Act, 1982) on the basis of amended provision Part IX A of the Constitution (74th Constitutional (Amendment) Act on the basis that after insertion of Article 243 (P) to Article 243 ZD, the JDA Act, 1982 may be declared ultra vires of the provisions of the Constitution. 3. Learned Counsel for the petitioner also mentioned the Judgment passed by the Division Bench in case of Ram Chandra Kasliwal vs. State of Rajasthan, reported in 2004 (4) WLC 17 by which the validity of the JDA Act, 1982, was upheld. 4. Learned Counsel for the petitioner submits that the grievance of the petitioner is that permission dated 26.08.2002 issued by the Jaipur Municipal Corporation to the respondent No. 4 for construction of house in accordance with Regulation 4 (i) of the Jaipur Development Authority (Jaipur Region Building) Regulations, 2000 (hereinafter to be referred as the Regulations of 2000) is unlawful. Mr. R.N. Mathur also referred the provisions of Section 16 read with Section 96, 32 (iii) and 68 by which the area was demarcated and submits that the aforesaid provisions are inapplicable in the jurisdiction of Jaipur Municipal Corporation area. 5. Mr. Mathur further referred the provision of Section 170 of the Rajasthan Municipalities Act framed Jaipur (Building) Bye Laws, 1970 in respect of the construction of the building in the area falling within the Jaipur Municipal Corporation, Jaipur and submits that Jaipur Municipal Corporation could not have adopted the Regulations of 2000. The adoption of Regulation of 2000 by Jaipur Municipal Corporation is not only illegal, but also in contravention of Section 90 Sub-section 2 of the Rajasthan Municipalities Act, which provides that the Board shall before any bye laws under this Section put draft of the proposed bye laws with a notice specifying date when the proposed draft will be taken into consideration and the objections or suggestions in this respect shall be considered before the specified date. 6. 6. It is further submitted that even if the Regulations of 2000 are applicable then also the construction of building which the respondent No.4 is undertaking is apparently in the category of group housing/flats as given in table ka of the Regulations of 2000. The permission granted treating construction raised by respondent No. 4 as a separate residence within new plans as given in Table kha" is illegal and erroneous. 7. The publication of by laws to the public or person concerned, inviting objections and consideration of the objections as well as sanction by the State Government are mandatory requirement for amending the bye laws or by adopting any other bye laws. In support of his submissions, learned Counsel for the petitioner placed reliance on the following Judgment s:- 1) AIR 1963 SC 771 (6,7,12) 2) 1955 RLW 442 (5,6,7, & 8) 3) 1959 RLW 6 4) 1965 RLW 360 (30,31,35,38 5) 1982 WLN (UC) 188 6) 1992 (1) WLC 382 8. While placing reliance on the aforesaid Judgment s, learned Counsel for the petitioner submits that the Regulations of 2000 were not adopted in the manner provided because no publication was made, no objections were invited and the State Government never gave consent for it. 9. Per contra, learned Counsel appearing on behalf of the respondents raised the preliminary objection regarding maintainability of the writ petition. Learned Counsel for the respondent No. 4 Mr. Mehta submits that the petitioner has filed the writ petition during the pendency of the civil suit on the same subject matter. On additional relief sought by the petitioner is with regard to declare the Regulations of 2000 as ultra vires and unconstitutional alongwith the provisions of the JDA Act, 1982. Since the suit is pending and without withdrawing the suit, the petitioner has filed the present writ petition, which is not maintainable. 10. Learned Counsel for the respondents submits that the petitioner has not approached this Court with clean hands and also placed the copy of the suit alongwith the reply. In the suit, the petitioner himself has stated that applying the same very Rule of 2000 under Challenge in this writ petition, he had constructed his house by specifically referring Sub-clause 2 of Clause 8 of Table Kha. The arguments raised by the petitioner itself are fortified from the pleadings made in para 1 of the suit. In the suit, the petitioner himself has stated that applying the same very Rule of 2000 under Challenge in this writ petition, he had constructed his house by specifically referring Sub-clause 2 of Clause 8 of Table Kha. The arguments raised by the petitioner itself are fortified from the pleadings made in para 1 of the suit. In the present writ petition, the petitioner is challenging the bye-laws of 2000 under which he himself has constructed his own house which is also 3 storeyed, which too is in violation of norms/parameters of bye-laws of 2000. 11. Mr. S.M. Mehta submits that the petitioner is not entitled to invoke the extra ordinary jurisdiction of this Court under Article 227 of the Constitution of India for the reason that the petitioner himself has violated the laws applicable to the area and the petitioner has alternative efficacious remedy as held by the Division Bench of this Court in case of Marudhar Nagar Vikas Samti vs. State of Rajasthan & Ors., (DBCWP No. 7353/2003). In the aforesaid case, it was held by the Division Bench that the petitioner has alternative efficacious remedy before the Tribunal and without availing the alternative efficacious remedy which is provided under the status had filed the writ petition, which is not maintainable in view of the Judgment rendered by Honble Supreme Court in case of Sadhana Lodha vs. National Insurance Co., reported in 2003 (3) SCC 524. 12. Further reliance has been placed on the Judgment rendered in case of Ram Chandra Kasliwal vs. State of Rajasthan & Ors., reported in 2004 (2) RLR 469 wherein the validity of JDA Act has been upheld by the Division Bench. Learned Counsel submits that in such circumstances, the petitioner afresh cannot raise any submission with regard to the validity of the Regulations and Rules. 13. Having heard rival submissions of the respective parties and upon perusal of the Judgment s referred by the parties as well as relevant provisions of law, I am fully satisfied with the submissions advanced on behalf of the respondents that the petitioner has no locus to file this writ petition as the petitioner is not entitled to challenge the permission granted by the Municipal Corporation in accordance with the provisions of law. More so when the civil suit to this effect is pending . More so when the civil suit to this effect is pending . Upon perusal of the plant, it appears that the same relief has been sought in the civil suit except challenge to the validity of the JDA Act. Having considered the Judgment s rendered in the case of Marudhar Nagar Vikas Samiti and Sadhna Lodh, the petitioner has alternative efficacious remedy, thus the writ petition is not maintainable and deserves to be dismissed. 14. The mater is examined on the aspect of validity of the rules and regulations. Since the Division Bench in case of Ram Chandra Kashwal has upheld the validity of JDA Act, this Court need not to pass any order. In view of the said Judgment , I find no illegality in the regulations. I am of the considered opinion that the Regulations and JDA Act and Municipal Bye-laws are not in contravention of the Constitution. These regulations are not said to be ultra vires and are intra vires. 15. In view of the observations made hereinabove, the writ petition stands dismissed with cost of Rs. 2000/-.