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2015 DIGILAW 1091 (RAJ)

Prakash Shukla v. Parvinder Singh (I. A. S. )

2015-05-18

SUNIL AMBWANI, VEERENDR SINGH SIRADHANA

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Judgment : 1. This D.B. Civil Contempt Petition has been filed for alleged violation of an undertaking given by learned counsel appearing for the Jaipur Development Authority, under which 200 bighas of land was to be reserved for maintaining ecological zone in Jaipur in D.B. Civil Writ Petition No.4694/2003 (Yashwant Sharma Vs. State of Rajasthan & Anr.). 2. It is alleged that Master Plan is being amended frequently, and that, the undertaking given to the Court has been breached in violation of the provisions of the Jaipur Development Authority Act. In the additional affidavit of Bishnu Charan Mallick, the then Secretary, Jaipur Development Authority filed on 01.11.2012, reference was made of notification dated 09.11.2006 for land measuring 205.18 bighas/biswas changed from rural use to ecological in Revenue Villages Malpura Chod and Malpura Doongar, Tehsil Jaipur, District, Jaipur, and the notification dated 24.02.2007, in which land measuring 10391.10 bighas/biswas was changed from rural use to ecological use in Revenue Villages Ram Singhpura, Hinghonia Bhatesari, Bhurthal, Kanadwas and Sindoli, Tehsil Bassi, District Jaipur. Both the notifications are annexed to the affidavit. 3. This Court vide its order dated 10.09.2012, directed the respondents to point out the changes made in violation of the Master Plan and the permissions granted by the State Government. In the additional affidavit filed on behalf of the Jaipur Development Authority on 21.08.2013, five instances are given, where the land use was changed from ecological to commercial, and ecological to industrial and institutional. The contents of paragraphs 2 & 3 of the affidavit of Bishnu Charan Mallick are quoted as below:- “2. That vide order dated 10.9.2012 the Hon'ble High Court directed the Respondent No.2 & 3 to file a specific Affidavit stating as to how many cases, there is a violation of the Master Plan and when permission of the same was granted. That in lieu of the same the Humble Respondent states that following changes from Ecological use to Commercial, Industrial & Institutional uses have been made:- (i) Abhay Khandelwal C/o M/s. Goverdhan Dham Estate (P) Ltd. In Revenue Village Kukas bearing Khasra No.938/2278, 935, 937, 937/2279, 937/2281, 938, 938/2282, 939, 939/2276, 939/2277, 939/2277/2290, 939.2277/2291, 939/2283 Tehsil Amer finalized on 2.7.2010. (ii) Smt. Bhagwati Devi in Revenue Village Nangal Susawatan bearing Khasra No.28 to 32, 130 to 135 Tehsil Amer finalized on 4.6.2010. (ii) Smt. Bhagwati Devi in Revenue Village Nangal Susawatan bearing Khasra No.28 to 32, 130 to 135 Tehsil Amer finalized on 4.6.2010. (iii) Dinesh Kumar Sharma Revenue Village Daulatpura bearing Khasra No.1047 Tehsil Amer finalized on 10.8.2010. (iv) Jenpect Revenue Village Jamdoli bearing Khasra No.165 fe- o 448 fe- Tehsil Jaipur finalized on 06.10.2008. (v) ICFAI Revenue Village Jamdoli bearing Khasra No.505/1 Tehsil Jaipur finalized on 06.10.2008. 3. That in the aforesaid land, uses have been changed from – Ecological to Commercial in point no. i) to iii), case no. iv) – Ecological to Industrial and in point no. v) – Ecological to Institutional by following appropriate process as laid down in JDA Act and allied laws.” 4. It is submitted that the land use is being changed contrary to the provisions of Sections 25(1), 25(2) & 25(4) of the Jaipur Development Authority Act, and in which 200 bighas of land, earlier reserved, in pursuance to the undertaking given to the Court, has been diverted for private use by permitting the change of land use. 5. Learned counsel appearing for the Jaipur Development Authority as well as the officers, who have been arrayed as respondents, submit that this issue was discussed in detail, and that, it was found that the undertaking given by the Jaipur Development Authority was not static, and that, in view of the provisions of the Jaipur Development Authority Act, the land use could be changed to allow the planned growth of the City. In EIH Associated Hotels Limited Vs. The State of Rajasthan & Ors., 2009 (2) WLC (Raj.) 228, the same issue with regard to the directions given, which are subject matter of this Contempt Petition were discussed by this Court, with reference to D.B.Civil Writ Petition No.1844/2001 (Kayam Singh Vs. State). The concluding paragraphs No.23 to 26, by which the writ petition was dismissed, are quoted as below:- “23. As regards submission of Mr.Rajendra Prasad that the master plan is of permanent character and the area of ecological zone reserved in it can neither be reduced nor shifted, is contrary to Sec.25(1), 25(2) and 25(2a) of the JDA Act which permit modification in the master plan with regard to which discussions have already been made in the preceding paragraphs. As regards submission of Mr.Rajendra Prasad that the master plan is of permanent character and the area of ecological zone reserved in it can neither be reduced nor shifted, is contrary to Sec.25(1), 25(2) and 25(2a) of the JDA Act which permit modification in the master plan with regard to which discussions have already been made in the preceding paragraphs. His submission is also contrary to the Division Bench judgment dated 17.3.2005 in the aforesaid PIL in which report of the Committee was accepted and undertaking of the State Government to reserve 200 Bighas more land for ecological purpose was accepted in view of the development already taken place/proposed change in the land use in the ecological zone. Otherwise also, even the Legislation made by the Union/State Legislature are also of not permanent character and remain in force till the same are amended keeping in view the growing need of the people, changed circumstances and changed need of the society etc. Therefore, when there is no permanency of law how can there be permanency in the instrument issued while exercising power under the law but the same is to be exercised in accordance with law. In this case, there is no violation of Section 25(1), 25(2) and 25(2a) of the JDA Act. 24. Since I have dealt with the merits of the case and the same has been discussed and concluded by the Division Bench which has been followed by the Tribunal, therefore, I do not think it proper to deal with the preliminary objections raised by the respondents No.4 and 6 and further the law cited on the same need not be discussed and the same are kept open. 25. The Tribunal has not committed any kind of error in rejecting the Reference application vide its judgment dated 9.6.2006 after consideration of the aforesaid facts and the law on the subject. Therefore, the notification dated 26.6.2006 is valid. 26. Accordingly, the writ petition is dismissed. No order as to costs.” 6. We are informed that a Writ Petition No.1554/2004 Gulab Kothari Vs. State and 7 other connected petitions have been heard regarding the competence of the changes carried out in the Master Plans in the State of Rajasthan, and the permissibility of such change of land user, in which the judgment has been reserved. No order as to costs.” 6. We are informed that a Writ Petition No.1554/2004 Gulab Kothari Vs. State and 7 other connected petitions have been heard regarding the competence of the changes carried out in the Master Plans in the State of Rajasthan, and the permissibility of such change of land user, in which the judgment has been reserved. The writ petition filed by Shri Gulab Kothari also covers and concerns the changes of land use in the City of Jaipur. 7. We do not find any substance in the contention of learned counsel appearing for the petitioner that the Jaipur Development Authority is not concerned with the ecology of the City of Jaipur, inasmuch as in the reply given by the Jaipur Development Authority, it is stated in paragraph 5 as follows:- “5. That the contents of para no.5 of the contempt petition requires no comments. However, it is submitted that the petitioner has placed incomplete information and half baked truth before this Hon'ble Court. The petitioner is laying strong emphasis of the Judgment dt.17.03.2005, however, he has very craftily ignored other relevant judgments passed by this Hon'ble Court in similar cases. In DB Writ Petition No.5907/2008 the Hon'ble High Court passed following order:- The interim order passed by this court, in the view of the matter, needs to be clarified in the following terms:- “The State authority and the development authorities may proceed with the changes, if any, in accordance with law as referred to above and such decisions taken by them, however will abide by the ultimate result of this writ application. In view of the order aforesaid, the interim order passed in PIL Application No.5907/2008 dated 18.1.2008 and subsequent orders passed therefore also stand modified/clarified in the same terms of the order passed in PIL application no.1554/04” It is submitted that JDA has not taken any action against the spirit of the above mentioned order and hence the present contempt petition is wholly misconceived and nothing more than an attempt to harass the respondents. As per the Master Development Plan document the ecological zone includes hill ranges, forest covers, water bodies, settlements etc. The uses permitted in the zoning code are permitted for developmental activities. The total area under the ecological zone is 481 sq.kms. i.e. 48100 hects. As per the Master Development Plan document the ecological zone includes hill ranges, forest covers, water bodies, settlements etc. The uses permitted in the zoning code are permitted for developmental activities. The total area under the ecological zone is 481 sq.kms. i.e. 48100 hects. No land use change has been made by JDA of the lands falling under forest, hills, water bodies etc. In view of the economic growth, there are institutional, residential requirements etc., and as such there has to be a harmonious consideration and maintenance of equilibrium between economic growth and maintenance of ecology. Keeping these factors in mind and also the orders passed by this Hon'ble Court, the authorities as well as the humble replying respondents have been taking decisions accordingly. A perusal of the facts narrated above clearly denote that the present petition is hopelessly misconceived and does not warrant any interference by this Hon'ble Court.” 8. We entirely agree with the counsel appearing for the Jaipur Development Authority that in the effort of planned city development, sometimes, in the interest of development, balancing it with the environmental concerns, it is sometimes necessary to change the land use. The change however, must be carried out strictly in accordance with the provisions of the Act for bonafide purposes of planned city development. 9. The ecological zone includes hill ranges, forest covers, water bodies, settlements etc. As stated in paragraph 5 of the affidavit filed on behalf of the Jaipur Development Authority, the total area under the ecological zone reserved by the Jaipur Development Authority is 481 square kilometres, including all the lands falling under forest, hills, water bodies etc. The complaint of the petitioner concerns reserving 200 bighas of land for ecological development in north west part of the Jaipur. 10. We do not find that the Jaipur Development Authority has deliberately and wilfully violated the undertaking given, and incorporated in the order of the Court dated 17.03.2005 in Yashwant Sharma Vs. State of Rajasthan & Anr. (supra). 11. As discussed, in order to meet the urgent necessity of development, some deviation has to be made. In this case, the overall ratio reserved for ecology has not been altered to such an extent with any malafide purposes that the respondents may be punished for contempt of court. 12. State of Rajasthan & Anr. (supra). 11. As discussed, in order to meet the urgent necessity of development, some deviation has to be made. In this case, the overall ratio reserved for ecology has not been altered to such an extent with any malafide purposes that the respondents may be punished for contempt of court. 12. In the end, it is submitted that the Jaipur Development Authority must identify and reserve 200 bighas of land, which has been reserved for ecological purposes. In our opinion, the violations made in the areas reserved by notifications referred to as above, do not require any further investigation, inasmuch as the counsel appearing for the Jaipur Development Authority agrees that the Jaipur Development Authority will make good the area, which has been permitted to be developed for commercial or industrial purposes, in the notified villages, or in neighbouring villages, to cover up the deficiency. 13. We except that the Jaipur Development Authority will issue appropriate notifications, for the deficient area, as expeditiously as possible, preferably within a period of three months, from the date of receipt of certified copy of this judgment. 14. This Contempt Petition is accordingly disposed of. The notices stand discharged.