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2017 DIGILAW 950 (RAJ)

Omprakash Ojha v. State

2017-04-11

K.S.JHAVERI, VIJAY KUMAR VYAS

body2017
JUDGMENT : By way of this writ petition, the petitioners have challenged the decision taken by Jaipur Development Authority (JDA) at Annexure-8 whereby Resolution Agenda No.3, decision was taken to reduce the width of road from 80 feet to 40 feet of Sector Road 13/14 which reads as under:- ^^Mh0Vh0,l0 Øekad 28127 ,oa 31369 ds Øe esa lSDVj jksM+ 13&14 dh izLrkfor 80 QhV lSDVj jksM+ tks [kkrhiqjk jksM+ ls izLrkfor 100 QhV jksM+ dks ok;k tloar uxj ,0ds0 xksikyu uxj] flag Hkwfe] guqeku uxj foLrkj feykrh gS dks 80 QhV ds LFkku ij 40 QhV djus dk fu.kZ; fy;k x;k gSaA mDr lM+d ij vfrØek.kksa ds fpUghdj.k gsrq lfpo egksn; }kjk vf/k'kk"kh vfHk;Urk tksu&7] lgk;d uxj fu;kstu tksu&7 o izorZu vf/kdkjh tksu&7 dh lfefr dk xBu fd;k x;k gSaA vr% mijksDr xfBr desBh ds rhuksa lnL;ksa dks funsZf'kr fd;k tkrk gS fd fnukad 18-03-2015 dks ekSdk fujh{k.k dj vfrØe.kksa dk fpUghdj.k dj v|ksgLrk{kjdrkZ dks fjiksVZ izLrqr djsaA** 2. Counsel for the petitioners Shri N.K.Maloo, Sr. Advocate contended that first order was passed on 18.12.2006 by learned Single Judge is as under : "Heard. Admit. Issue notice. In the meanwhile, operation of the resolution passed on 21/9/06, by the respondents No. 2 and 3 in regard to the land in dispute shall remain stayed." 3. Subsequently, on 29.7.2009 again an order came to be passed which reads as under : "While admitting writ petition, interim order was passed by this court on 18th December, 2006 where operation of resolution of respondent - JDA dated 21st September, 2006 was stayed. Since the JDA has not made efforts and encroachments were made over the land in dispute petitioner has filed second stay application with the grievance that if JDA Officials will permit to get encroachment made over the land in dispute that will create further complication. Respondent - JDA has filed reply and in Para 2 it has been admitted that in one Plot No.109 encroachment has been made after order of this Court. But, they have served him a notice. It appears that officer of JDA are not taking proper care and allegation of petitioner is that with the connivance of officers of JDA encroachers are being permitted to encroach upon and it is one of the instance which has been admitted in their reply. But, they have served him a notice. It appears that officer of JDA are not taking proper care and allegation of petitioner is that with the connivance of officers of JDA encroachers are being permitted to encroach upon and it is one of the instance which has been admitted in their reply. Since no efforts have been made and certainly notice to encroachers will not be sufficient and the officers are under an obligation to see that there should be no encroachment takes place and whatever encroachment has been made after stay order certainly requires to be removed forthwith without any further delay. The concerned Enforcement Officer shall remain present in person in this court on the next date of hearing along with written explanation as to what efforts have been made in removing those encroachment which has been admitted in Para 2 of their reply to second stay application. List on 12th August, 2009." 4. In spite of that, meeting was called by JDA on 16.3.2016 to reconsider the decision of width of road from 80 feet to 40 feet. It was further pointed out from the subsequent document which has come on record, it has been established that there is serious encroachment on the road and report which has been received was placed before the Committee, clearly established that there are 73 constructions which are required to be removed from the road of 80 feet and which was placed before the Committee. In spite of all the decisions in favour of removal of encroachment, the committee took decision to reduce the width of the road which is taken on record, reads as under : ^^1- lSDVj 13&14 dh izLrkfor 80 fQV lSDVj jksM+ tks [kkrhiqjk jksM+ ls izLrkfor 100 fQV lSDVj jksM+ dks ok;k tloUr uxj] ,0ds0 xksiyu uxj] flag Hkwfe] guqeku uxj foLrkj feykrh gS] dks 80 fQV ds LFkku ij 40 fQV fd;k tkosA 2- mijksDr dk;Zokgh djus ds i'pkr~ leLr rF;ksa ls ekuuh; mPp U;k;ky; ds le{k izLrqr djsaA** 5. Learned counsel has relied on proviso to Section 54-B of the Jaipur Development Authority Act and contended that the width of the road cannot be reduced in view of earlier decision in D.B. Civil Writ Petition (PIL) No.789/2006, Baltej Singh & Ors. Learned counsel has relied on proviso to Section 54-B of the Jaipur Development Authority Act and contended that the width of the road cannot be reduced in view of earlier decision in D.B. Civil Writ Petition (PIL) No.789/2006, Baltej Singh & Ors. v. State of Rajasthan & Ors., decided on 12.1.2007 and D.B. Civil Writ (PIL) Petition No.6447/2006, Bhagwansingh and others v. State of Rajasthan & Others, decided on 29.3.2016. 6. Counsel for the respondents Shri Amit Kuri has submitted that the plans which are made in the public interest with a view to see that the society which has allotted plots to the members may not be required to remove the construction. Counsel has contended that when the master plan came into force in 1999 and subsequent to the master plan's approval, the constructions on Road were illegal. 7. The first contention of respondent is misconceived inasmuch if there is no need to reduce the width of road from 80 feet to 40 feet. The resolution of JDA submitted by the respondent clearly established that road was 80 feet and 40 feet is required to be regularized as illegal construction. It is contended that construction was allowed by the JDA as prevailing in Jaipur to construct on the land without sanction of the JDA and therefore, the construction is not legal and the same is made at the sweet will of the allottee. In view of the provisions of Section 54-B and more particularly when the time has come to widen the road. The act of authority which has approved reducing of width of road is deprecated and the decision taken seems to be not in interest of the public at large. 8. In that view of the matter, decision requires to be set aside and the same is set aside. Merely because of delay, illegal construction cannot be said to be legal and cannot be regularized by JDA. We direct the authority to implement the orders of this Court passed on 29.7.2009 and the earlier orders, within a period of 30 days from the date of receipt of copy by the Chairman and Chief Executive Officer of JDA. 9. Counsel for JDA contended that 45 days' time may be given to remove the encroachers and he will not request for extension. Therefore 45 days' time is granted to the JDA at the request of Shri Kuri. 10. 9. Counsel for JDA contended that 45 days' time may be given to remove the encroachers and he will not request for extension. Therefore 45 days' time is granted to the JDA at the request of Shri Kuri. 10. The writ petition stands allowed.