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2015 DIGILAW 1113 (RAJ)

MAHENDRA SINGH v. JAIPUR DEVELOPMENT AUTHORITY

2015-05-22

SUNIL AMBWANI, VEERENDR SINGH SIRADHANA

body2015
Judgment : 1. By this writ petition, filed in public interest, the petitioners, Shri Mahendra Singh & Others, residents of Mahavir Nagar-I, Jaipur, have prayed for the following reliefs:- “a) the respondents may be restrained for not allotting the facility area measuring 1880 Sq. Yards (130x130) having roads on Northern, Southern and Western side to Hadoti Samaj and Mahavir Sadhna Sansthan. b) in case the allotment letter has already been issued then the same may kindly be cancelled with a direction that facility area may not be allotted to any body, society or samiti and same shall be left for utilisation of the local residents. c) the respondent No.1 may be directed to develop the facility area in planed and proper manner. d) any other appropriate order or direction which this Hon'ble Court may deem fit and proper may also kindly be passed in favour of the petitioners.” 2. The New Pink City Grih Nirman Sahakari Samiti Limited, developed housing schemes including the Mahavir Nagar Colony, near Tonk Road, Jaipur. In the Booklet published by the Jaipur Development Authority, Jaipur (JDA), of the list of the members in the schemes of the New Pink City Grih Nirman Sahakari Samiti Limited, upto 31.05.1994, the land of plot Nos.803 to 808 in Mahavir Nagar Colony was described as a park. It is alleged that in the original plan of the Society, this land was reserved for childrens park, measuring 1913.88 sq. yds., out of which in 187.77 sq. yds., swings (Jhoolas) were installed, and that the land measuring 1000 sq. yds. was proposed to be given to Hadoti Samaj(respondent No.3), and in the same plot, 726 sq. yds. of land was proposed to be given to Mahavir Sadhna Sansthan/Mahavir Sadhna Kendra(respondent No.4), vide letters of allotment dated 13.08.2001 and 06.08.2001. 3. It is alleged that the allotment of land by the JDA to Hadoti Samaj and Mahavir Sadhna Sansthan, was illegal, untenable and without jurisdiction, inasmuch as the entire land of plot Nos.803 to 808, measuring 1913.88 sq. yds., was left for children park, and that the installation of the swings was a proof of such reservation. The word “amenities” has been defined in sub-section (2) of Section 2 of the Jaipur Development Authority Act, 1982 (for short, 'the JDA Act'), which includes open spaces, parks etc. yds., was left for children park, and that the installation of the swings was a proof of such reservation. The word “amenities” has been defined in sub-section (2) of Section 2 of the Jaipur Development Authority Act, 1982 (for short, 'the JDA Act'), which includes open spaces, parks etc. Chapter-V of the JDA Act deals with the Master Development Plan and Zonal Development Plan, in which Section 22 deals with Zonal Development Plan. Sub-clauses (x) to (xv) of sub-section (2) of Section 21 of the JDA Act, provide that the lands of gardens and parks reserved for open area/space, shall be specifically shown in the Master Development Plan, prepared by the JDA. The development has to be made in accordance with the existing Master Plan, or in accordance with the Zonal Development Plan, and no activity, either contrary to the Master Plan, or the Zonal Development Plan, is permitted to be carried out. 4. It is submitted that a Division Bench of this Court in Rakesh and others Vs. The State of Rajasthan and others, decided on 07.07.2011, reported in 2011(4) WLC 91, held that the regularization of the land, left as utility area in Kanota Bagh locality, was illegal and arbitrary, and quashed the the order of regularization. In Kamlakar Sharma Vs. State of Rajasthan, 1996(3) WLC 611, it was held that the JDA Act absolutely bars the power of the JDA to carry out any modification or change in the existing development activity, as envisaged in the Master Development Plan, or the Zonal Development Plan, which does not affect or amount to material alteration, either in the character of the plan, or which does not relate to the extent of alteration of the land, which would be contrary to the user of the land, as indicated in the Master Development Plan. Any subsequent modification can only be done with the concurrence of the State Government. 5. It is submitted that the allotment of the land, left for utility/amenities, could not have been made to any private society, to be used by them for their exclusive purpose, in the name of religion. In case the allotment was required to be made to any society, or any individual, an amendment in the Zonal Development Plan was necessary. The petitioners have placed reliance on Kamla Prasad Khetan Vs. In case the allotment was required to be made to any society, or any individual, an amendment in the Zonal Development Plan was necessary. The petitioners have placed reliance on Kamla Prasad Khetan Vs. Union of India, AIR 1957 SC 676 ; Scheduled Caste and Weaker Section Welfare Association (Regd.) & Ors. Vs. State of Karnataka & Ors., AIR 1991 SC 1117 ; M/s Hanant Lal Agrawal Vs. State of Bihar & Ors., AIR 1973 SC 491 ; Dharam Singh Vs. State of Haryana & Ors., AIR 1974 Punjab & Haryana 99; and M/s Sohan Lal Loonkaran Vs. State of Rajasthan & Ors., AIR 1975 Raj. 215 , in support of their submissions. 6. It is further submitted that in Bangalore Medical Trust Vs. B.S. Muddappa, (1991) 4 SCC 64 and Virendra Gaur & Ors. Vs. State of Haryana & Ors., (1995) 2 SCC 577 , it was held by the Supreme Court that the land earmarked for public purpose, cannot be leased to any individual. In Bangalore Medical Trust Vs. B.S. Muddappa(supra), the open space reserved for public park in development scheme, was not approved to be allotted to any individual. 7. It is further submitted that an open space and public park are necessary in a colony, to maintain the ecological and hygienic environment. The usurpation of such areas by private allotments violates the rights of the residents of the colony of a decent environment, violating Article 21 of the Constitution of India. Reliance has also been placed for the proposition of securing fundamental rights of healthy environment, in M.C. Mehta Vs. Union of India, AIR 2001 SC 1544 ; Andhra Pradesh Pollution Control Board Vs. Prof. M.V. Nayudu, (2001) 2 SCC 62 ; and Goa Foundation Vs. Diksha Holdings (P) Ltd. AIR 2001 SC 184 . 8. It is submitted that notices were issued to the JDA on 17.05.2001, whereas allotments were made to the Hadoti Samaj and the Mahavir Sadhna Sansthan on 13.08.2001 and 06.08.2001 respectively. The transfers are thus, hit by lis pendens and are not bonafide. The proceedings under Section 52 of the Transfer of Property Act, will also include a writ petition under Article 226 of the Constitution of India, vide Goudappa Appaya Patil Vs. Shivasi Bhimappa Pattar, AIR 1992 Karnataka 71. 9. The petitioners have alleged malafides against the respondents in allotment of land to the Hadoti Samaj. The proceedings under Section 52 of the Transfer of Property Act, will also include a writ petition under Article 226 of the Constitution of India, vide Goudappa Appaya Patil Vs. Shivasi Bhimappa Pattar, AIR 1992 Karnataka 71. 9. The petitioners have alleged malafides against the respondents in allotment of land to the Hadoti Samaj. It is submitted that Shri Shanti Dhariwal, the then Minister for Local Self Government and Urban Development, Government of Rajasthan, belongs to Kota. It was expected that Mr. Shanti Dhariwal will help the Hadoti Samaj in allotment of the plot. He was instrumental in getting the allotment made to the Hadoti Samaj of Kota and Mahavir Sadhna Kendra, for the purposes of Jain Community. 10. It is submitted that the land reserved for public utility could not have been allotted to the Mahavir Sadhna Kendra, as the members of the Society do not permit any other person to use their place for worship. The allotment of the land to them will not, in any way, serve the public purpose as the land will not be allowed to be used by the residents of the colony. 11. Learned counsel appearing for the Mahavir Sadhna Sansthanrespondent No.4, submits that the petitioners have raised a private dispute in the disguise of public interest. Shri Rajendra Kumar Sharma, petitioner No.3, is having plot No.508, Mahavir Nagar-I, Jaipur, adjacent to the facility area, whereas he has raised illegal constructions by covering both the set backs. The plot in dispute is in back of his plot towards North. The raising of illegal constructions by the petitioner No.3 disentitles him to file the public interest litigation. The wrongdoer cannot be permitted to raise a cause in public interest for his private purposes. It is submitted that the lease deeds have been issued by the JDA to the Hadoti Samaj and the Mahavir Sadhna Sansthan, which can only be quashed by the competent Civil Court. The JDA allotted 591 sq. mtrs. of land to Mahavir Sadhna Sansthan on deposit of Rs.1,95,055/-, which was deposited vide Challan No.69248, dated 25.05.2001. The allotment was considered by the Land and Property Committee of the JDA, which approved the allotment of land in favour of respondent No.4 and issued an allotment letter dated 28.07.2001. The lease deed was executed and registered with Sub-Registrar on 03.08.2001. 12. The allotment was considered by the Land and Property Committee of the JDA, which approved the allotment of land in favour of respondent No.4 and issued an allotment letter dated 28.07.2001. The lease deed was executed and registered with Sub-Registrar on 03.08.2001. 12. It is submitted that the objects of the Mahavir Sandhna Sansthan is to establish a Dharamshala, Mediation Centre, Library, Community Hall, Udaseen Ashram etc. for propagating the objects of the Jain religion. The Society also provides for financial help to the students, widows, disabled and old age persons and works for removing the evils in Society, promote education and knowledge of computer. The Society is a registered Society, under the Rajasthan Societies Act, which is also exempted under Section 80G of the Income Tax Act for donations. It is submitted that the disputed land was reserved as a facility area and not a public park. The land in dispute was neither reserved nor allotted by the JDA for development of a children park. The layout plan submitted by the Society on 23.11.1983, earmarked the land as facility area. The layout plan was approved by the Building Plan Committee-II,in its 23rd meeting held on 12.04.1984, reserving the plot as facility area. Apart from this plot, 11 more plots, of different sizes, were also left/reserved as facility area. 13. It is submitted that the land in dispute is different from the land shown in the Booklet of the JDA of plot Nos.803 to 808 as public park. There is no public park, nor the Booklet has any evidentiary value, as it is clearly written on the first page of the Booklet, that is not admissible in evidence for any legal dispute. 14. It is submitted that the JDA has a right to prepare the projects and schemes, and modification or withdrawal of the projects or schemes under Sections 39 and 42 of the JDA Act respectively. The land vests in the Authority under Section 54 for its disposal and is in ultimate control of the State Government under Section 90 of the JDA Act. The Rajasthan Urban Areas (Sub Division, Reconstitution and Improvement of Plots) Rules, 1975, defines “Seleable Area” under Rules 4(10) and 11; consequence of approval or non-approval of the plans for sub-division etc. under Rule 30; and the power of the Trust to revise its decision under Rule 32. 15. The Rajasthan Urban Areas (Sub Division, Reconstitution and Improvement of Plots) Rules, 1975, defines “Seleable Area” under Rules 4(10) and 11; consequence of approval or non-approval of the plans for sub-division etc. under Rule 30; and the power of the Trust to revise its decision under Rule 32. 15. It is submitted that the Rajasthan Improvement Trust (Disposal of Urban Land) Rules, 1974 (for short, 'the Rules of 1974'), defines “Institution” and “Public Utility Purpose” under Rules 6-G and 6-K. Rule 15 provides for allotment and sale of non-residential land, whereas Rule 18 provides for allotment of land to Public and Charitable Institutions. 16. The Rajasthan Public Park Act, 1956, defines “Park” under subsection (2) of Section 2, which means any park or garden declared to be a public park under the Act as well as any zoo within any public park. The declaration of a public park has to be made by the State Government by notification in the Official Gazette. The entire writ petition, filed in public interest, has no foundation, inasmuch as the concept of facility area includes a park, but that it also includes for the benefit of the community in the colony, such as community hall, library, place of worship, place of meeting, place of dispensary, school and other basic amenities. There is yet another facility area adjacent to plot No.506, just after about 100 ft. away towards Eastern side of the disputed facility area, which has been encroached by Shri Ram Mandir Trust, to which no objection was raised by the petitioners. The JDA had not declared the land as public park. It was conscious while allotting part of the facility area to the registered society of the local residents respondent No.4 as about 200 sq. yds. of land was already left out in the facility area for the children. 17. In the reply filed by the State of Rajasthan and the JDA, the writ petition is alleged to be misconceived as no element of public interest is involved in it. It is stated that Shri Rajendra Kumar Sharma, petitioner No.3, has opened his windows/ventilators and projection of the windows towards the facility area. In the approved plan, the area was left as facility area. It was never reserved or allotted for development of a children park. The Mahavir Nagar has developed in two parts. It is stated that Shri Rajendra Kumar Sharma, petitioner No.3, has opened his windows/ventilators and projection of the windows towards the facility area. In the approved plan, the area was left as facility area. It was never reserved or allotted for development of a children park. The Mahavir Nagar has developed in two parts. Part-A covers the total area of 26.83 acre, in which 60% is reserved for residential area, 33.20% for roads, and 3.80% for facility, and that the decision with regard to 1.10% area was kept under consideration, and 1.90% was found to be low lying area. In Part-B, in the total area of 45.18 acres, 60% is earmarked for residential purposes, 33.84% for roads, 0.07% for commercial purposes, and 6.07% for facility. The layout plan submitted by the Society on 23.11.1983, was technically approved by the Building Plan Committee-II, in its 23rd meeting held on 12.04.1984. Apart from the land in dispute, 11 more plots, of different sizes, were left for facility area. The plans were finally approved by the Building Plan Committee-II in its meeting held on 22.02.2000, in which 1.6 acre of land, which was earlier left for commercial purposes, was converted into residential. Total 12 plots were approved as facility area. The facility does not necessarily include only a park, but also a community hall, playgrounds, schools, dispensary etc. One plot has been earmarked for school and in two plots, there are temples of Ayappa and Hanumanji, and that still there are eight plots available in the facility area. In any case, 187.77 sq. yds. area has been left in this facility area of 1913.88 sq. yds., in which 1000 sq. yds. of land was allotted to the Hadoti Samaj and 726 sq. yds. to Mahavir Sadhna Sansthan for their community centre. 18. It is stated that the Building Plan Committee, in its meeting dated 05.12.2000, had approved the allotment of plot measuring 70x130 for institutional purposes and 63x130 for the children park. The Land & Property Committee, in its 271th meeting held on 15.03.2001, considered the case for allotment of the land, measuring 1000 sq. yds., to the Hadoti Samaj, and 726 sq. yds. to Mahavir Sadhna Sansthan, and directed that the proposals should be submitted for converting the use of the remaining land measuring 726.99 sq. yds. The Land & Property Committee, in its 271th meeting held on 15.03.2001, considered the case for allotment of the land, measuring 1000 sq. yds., to the Hadoti Samaj, and 726 sq. yds. to Mahavir Sadhna Sansthan, and directed that the proposals should be submitted for converting the use of the remaining land measuring 726.99 sq. yds. from facility to institutional purposes, on the basis of the actual measurement of the land together with sketch. The JDA never declared the facility area as children park, and that the allotments have been made as per Rule 18 of the Rules of 1974. 19. On 10.04.2007, this Court passed an order directing the parties to evolve a compromise formula for resolving the controversy between the parties. The order dated 10.04.2007, is quoted as below:- “List this writ petition on 26.04.2007 to enable the contesting parties to evolve a compromise formula for resolving the controversy between the parties. Mr. Bharat Vyas, learned counsel appearing for JDA is expected to use his good offices along with the officers of the JDA to assist in arriving at an amicable settlement.” 20. In pursuance to the aforesaid order dated 10.04.2007, a meeting was held on 24.04.2007 under the Chairmanship of Commissioner, JDA in the presence of all the parties, and in which a settlement was recorded as follows:- “RELEVANT EXTRACT OF MINUTES OF MEETING HELD ON 24.04.2007 “After deliberations, Mahaveer Sadhna Kendra expressed its willingness to continue with the present allotment in the part and modification in the allotment while Hadoti Samaj agreed to have an allotment in any other facility area in Mahaveer Nagar or vicinal colonies. It was categorically mentioned that whichever facility area is finally opted by Hadoti Samaj, not more than 50 percent of the area of the facility plot will be allotted to Hadoti Samaj so that rest of the 50 percent can be kept open for the public to be used as park. Both the parties decided to deliberate with their other members and meet again in the evening. At 5 pm on the same day, meeting was conducted with both the parties to the petition. It was attended by one more partcipant, Shri Mathur, resident of Plot No.509, Mahaveer Nagar. Both the parties, agreed on following proposal:- (1) Allotment to Mahaveer Sadhna Kendra should be modified and it may be allotted land equivalent to the same area 708.33 sq. It was attended by one more partcipant, Shri Mathur, resident of Plot No.509, Mahaveer Nagar. Both the parties, agreed on following proposal:- (1) Allotment to Mahaveer Sadhna Kendra should be modified and it may be allotted land equivalent to the same area 708.33 sq. yards adjacent to plot No.508 and 509 in the same facility area, but Mahaveer Sadhna Kendra will have to keep the following set backs open forever - 20 ft front set back on 80 ft. road - 10 ft. rear set back on 30 ft. road - 15 ft. side set back on the side of plot No.508 and 509 - Charpeta (Zero set back) on the park side. No construction even of temporary nature will be made by Mahaveer Sadhna Kendra in the above set back areas. Mahaveer Sadhna Kendra will not have any entry into the park side. This way the inhabitants of the colony will have an open area of 1205.55 sq. yards which can be developed as park. The neighbouring residents of plot No.508 and 509 were also satisfied with this arrangement.” 21. On 10.07.2007, the Court took the compromise on record and passed an order as follows:- “Counsel for the parties states that although the parties have arrived at a settlement but the terms of settlement supported by an affidavit is yet to be filed for which time is sought. Let the matter be listed on 25.07.2007 on which date the compromise petition signed by all the parties shall be filed.” 22. With the aforesaid settlement, nothing further survives, to be decided in this writ petition. Learned counsels appearing for the respondent Nos.3 and 4, have not denied the settlement, which was agreed to, between the parties on 24.04.2007, and thus, even if the compromise petition signed by the parties, has not been filed, the Court can dispose of the writ petition, in terms of the settlement. 23. We find that the petitioners have not been able to establish that the land in dispute was reserved as park. Reliance on the members list, published by the JDA in its Booklet, in which plot Nos.803 to 808 have been shown as park, does not establish that the land was left for park. 23. We find that the petitioners have not been able to establish that the land in dispute was reserved as park. Reliance on the members list, published by the JDA in its Booklet, in which plot Nos.803 to 808 have been shown as park, does not establish that the land was left for park. In the layout plan, as submitted and approved by the JDA, the land was admittedly reserved as facility, which may include park, but that it cannot be said that the facility area can only be used as a park, and not for any other community purposes. The disputed land was never declared as park under the Rajasthan Public Park Act, 1956. The “Public Utility Purpose”, under Rule 6-K of the Rules of 1974, means use of any premises or open land or playground for a school, college, hostel, dharamshala, public guest house, religious place, gaushala, public park, or any other place of public utility excluding use of medical facilities. The layout plan submitted by the Society on 23.11.1983, delineated the land as facility area. The Building Plan Committee-II, in its 23rd meeting dated 12.04.1984, reserved the plot as facility area. The building plan of Mahaveer Nagar has 11 more plots, of different sizes, left/reserved for facility area, and thus, we do not find any merit in the submission that the land left in plot Nos.803 to 808, can be used only as a park, and for no other purposes. 24. The allotments to Hadoti Samaj and Mahavir Sadhna Kendra, were made in accordance with law, and the lease deeds have also been executed. In the circumstances, it cannot be said that the allotments were illegal, or were beyond the authority of the JDA. We, however, agree with learned counsel appearing for the petitioners that even if any allotment is made in the facility area to any society for public purposes, or religious purposes, utilization of the its land and the building constructed by such society, has to be primarily for general public, with participation of the residents of the colony. 25. So far as the Hadoti Samaj is concerned, it had agreed for allotment of another land in the nearby area, between 2 to 3 kms. of the land in dispute. The land has not been identified so far. 25. So far as the Hadoti Samaj is concerned, it had agreed for allotment of another land in the nearby area, between 2 to 3 kms. of the land in dispute. The land has not been identified so far. The identification and allotment of the land to the Hadoti Samaj, however, may not detain us in deciding the writ petition. Once the Hadoti Samaj has agreed for allotment of any other site, it cannot resist the claim of the petitioners, to leave 1000 sq. yds. area, allotted to the Hadoti Samaj, as the facility area for the members/residents of the colony. The settlement arrived at between the parties, to which no objection has been filed, nor any challenge has been made to the voluntariness in which the parties agreed for arrangement, has to be accepted for the purposes of deciding the dispute, even if the compromise petition, signed by the parties, has not been filed. Since no objection has been raised to the settlement in the minutes of the meeting, dated 24.04.2007, we accept the settlement, to be binding on all the parties. 26. The Mahavir Sadhna Kendra, the respondent No.3, had agreed to modify the allotment, and for allotment equivalent to the same area i.e. 708.33 sq. yds., adjacent to plot Nos.508 and 509 in the same facility area, with set backs of 20 ft. on 80 ft. road; 10 ft. on 30 ft. road; 15 ft. side set back towards plot Nos.508 and 509; and Charpeta (Zero set back) on the park side. It was agreed that no construction, even temporary construction, will be made in the concerned set back areas, and that Mahaveer Sadhna Kendra will not have any entry into the park side, leaving 1205.55 sq. yds. area clear for development of a park. 27. We may further observe that the Mahaveer Sadhna Kendra cannot usurp the facility area only for followers of Jain religion. Once the area has been earmarked as facility area, it means that all the residents of the colony have a right to use the facilities established on such land. The allotment of plot measuring 708.33 sq. yds. to Mahavir Sadhna Kendra, would not allow it exclusive use of the plot and its building by the Jain Community only. 28. Once the area has been earmarked as facility area, it means that all the residents of the colony have a right to use the facilities established on such land. The allotment of plot measuring 708.33 sq. yds. to Mahavir Sadhna Kendra, would not allow it exclusive use of the plot and its building by the Jain Community only. 28. The Mahavir Sadhna Kendra, the respondent No.4, is, therefore, directed to amend the bye-laws of the Society, to allow the use of their land and building by the general public, with predominant purpose of propagating the objects of the Society, as provided in the bye-laws. The property and its facility should be allowed to be used by the residents of the colony. The use of land for exclusive purpose of Jain religion, may give cause of action to any resident of the colony to file a civil suit against such use. 29. The JDA shall make efforts to find out an alternate land for the Hadoti Samaj, within 2 to 3 kms. of the land in dispute, in accordance with the settlement. The identification and settlement of the land will be made, as expeditiously as possible, and preferably within three months with allotment and execution of lease, from the date a certified copy of this order is produced in the Office of the Secretary, Jaipur Development Authority, Jaipur. 30. The writ petition is disposed of with the aforesaid directions.