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2015 DIGILAW 1497 (RAJ)

Mahaveer Prasad v. State of Rajasthan

2015-08-11

AJIT SINGH, SUNIL AMBWANI

body2015
JUDGMENT 1. We have heard learned counsel appearing for the parties. 2. By this writ petition, filed in public interest, the petitioner has prayed for the following reliefs:- "(i) By an appropriate writ, order or direction the respondents be directed to remove the encroachments upon 100 road from Bias Godam via Mahesh Nagar Gopalpura Byepass-Durgapura-B-2 Byepass to Malpura road parallel to West side of Sawaimadhopur railway line as shown in Master plan of Jaipur 2011 and master plan of 2025 and the order of regularising of encroachments upon the road vide BPC resolution dated 10/04/2002 and 13/10/2008 be quashed and set aside the appropriate action be taken against the defaulting officers. (ii) By an another appropriate writ, order or direction the dividers may be ordered to be made on 100 road from Bias Godam via Mahesh Nagar-Gopalpura Byepass-Durgapura-B-2 Byepass to Malpura road parallel to West side of Sawaimadhopur railway line as shown in Master plan of Jaipur 2011 and 80 road of Mahesh Nagar for the purpose of smooth transportation upon the aforesaid roads in order to check accidents etc. and further the respondents be directed to remove hurdles of poles, pillars, transformers etc. installed by the respondents in middle of the aforesaid roads for smooth functioning of the transportationon the aforesaid roads and nobody be permitted to encroach upon the aforesaid roads. (iii) Any other order which this Hon'ble Court may deems think fit and proper be pass in favour of the petitioner." 3. In the Master Development Plan-2025, Jaipur, Region (Volume-2), the road from 22 Godown to Diggi Malpura Road along west of railway line, is shown to be of 100 feet. The Master Development Plan-2025 has not been amended so far in accordance with the provisions of Section 25 of the JDA Act, causing any change on the width of this road. 4. The reports have been filed, from which we find that hundreds of constructions have been raised on the road, reducing the width of the road to 60 feet at some places and 40 feet at some other places. In some places, this important road in the City has been further reduced to cause congestion, resulting in traffic jams and accidents. 5. It is submitted by Mr. In some places, this important road in the City has been further reduced to cause congestion, resulting in traffic jams and accidents. 5. It is submitted by Mr. Mahendra Goyal, learned counsel appearing for the Jaipur Development Authority, that vide Resolutions dated 10.04.2002 and 13.10.2008, the Building Plan Committee (BPC) had proposed reduction of the road from 100 feet to 40 feet at some places and 60 feet at some other places. Some demolitions were also carried out when further encroachments were made on the road, but that so far the requisite amendment in the Master Development Plan-2025, has not been made. 6. The correspondences, annexed to the writ petition, would show that instead of demolishing the constructions, a request has been made to the Railways to surrender the land on the other side of the road, so that the width of the road may be maintained to 100 feet. In the developing City of Jaipur, the entire planning gets disturbed when the JDA does not take sufficient steps to stop the constructions on the roads, parks and public places. The road proposed in the Master Development Plan-2025, is essentially a part of the development, which could not be compromised for the persons, who have encroached on them with impunity. It is difficult to believe that the khatedars of the land had made applications under Section 90B of the Rajasthan Land Revenue Act, and get their land converted into residential on the roads. No such orders have been placed before us, by which regularisation under Section 90B was made on the 100 feet road, on the basis of which the plots were carved out and sold. 7. A Government Order, dated 09.02.2013, has been placed before us, in which a decision has been taken by the State Government that all those residential colonies, which were developed prior to 17.06.1999, and for which layout plan were already approved, in which on account of residential constructions it is not possible to develop sector roads in accordance with the Master Plan and Sector Plan, regularisation may be carried out according to the available width of the road. 8. 8. We do not find that the Government Order, dated 09.02.2013, is applicable to the present case, inasmuch as there are no housing colonies developed prior to 17.06.1999 on the road, known as 22 Godown to Diggi Maipura Road along west of railway line, nor any colony could be developed on the road, which was shown as 100 feet road under the Master Development Plan, prepared in the year 2011, and which succeeded the Master Development Plan of the year 1996. 9. We do not find that the decision of the Building Plan Committee, has resulted into any change in the Master Development Plan-2025, in which the road is shown to be 100 feet road. 10. In Esha Ekta Apartments Co-operative Housing Society Limited and others v. Municipal Corporation of Mumbai and others, [Civil Appeal No. 7934/2012], decided on 27.02.2013, reported in 2013(1) WLC (SC) Civil 482 : (2013) 5 SCC 357 , the Hon'ble Supreme Court held that the persons who have encroached upon the public land, are not authorised, nor are entitled to make constructions for the purposes of regularisation of the land of their possession. The encroachments made on the public land cannot be regularised. The Apex Court followed Friends Colony Development Committee v. State of Orissa, 2005(1) WLC (SC) Civil 30 : (2004) 8 SCC 733 , and Shanti Sports Club v. Union of India, (2009) 15 SCC 705 , in giving directions to remove encroachments. In Dipak Kumar Mukherjee v. Kolkata Municipal Corporation and others, 2012(2) WLC (SC) Civil 753 : (2012) 10 SCALE 29 , the Supreme Court observed:- "What needs to be emphasised is that illegal and unauthorised constructions of buildings and other structure not only violate the municipal laws and the concept of planned development of the particular area but also affect various fundamental and constitutional rights of other persons. The common man feels cheated when he finds that those making illegal and unauthorised constructions are supported by the people entrusted with the duty of preparing and executing master plan/development plan/zonal plan. The reports of demolition of hutments and jhuggi jhopris belonging to poor and disadvantaged section of the society frequently appear in the print media but one seldom gets to read about demolition of illegally/unauthorisedly constructed multi-storied structure raised by economically affluent people. The reports of demolition of hutments and jhuggi jhopris belonging to poor and disadvantaged section of the society frequently appear in the print media but one seldom gets to read about demolition of illegally/unauthorisedly constructed multi-storied structure raised by economically affluent people. The failure of the State apparatus to take prompt action to demolish such illegal constructions has convinced the citizens that planning laws are enforced only against poor and all compromises are made by the State machinery when it is required to deal with those who have money power or unholy nexus with the power corridors." 11. In the facts and circumstances of the case, we are left with no option but to issue direction that, either the JDA will amend the Master Development Plan-2025 for the road running from 22 Godown to Diggi Malpura Road along west of railway line, by reducing the width of the road, in accordance with the proposals, or it must demolish all the constructions, which fall within the 100 feet road. 12. We allow the JDA four months time to carry out necessary amendments, after conducting a careful survey, and take a decision about the width of the road, which may be sufficient for development of the City. In case, the JDA is unable to get the Master Development Plan-2025 amended, a demolition drive will be started on completion of the period of four months, to demolish all the constructions and to restore the 100 feet road from 22 Godown to Diggi Malpura Road along west of railway line. 13. In the meantime, no further constructions will be permitted on the road, which is shown as 100 feet road. 14. The writ petition is, accordingly, disposed of, with liberty to the petitioners to file a petition for compliance of the orders, in case the orders passed by this Court are not carried out by the respondents.Petition Disposed of As Above. *******