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Judgment
Prem Shanker Asopa, J.—By this writ petition, the petitioner has challenged the judgment dated 9.6.2006 (Anx.16) passed by the Jaipur Development Authority Appellate Tribunal (in short the ''Tribunal'') whereby Reference No. 107/2006 filed by the petitioner has been dismissed. The petitioner has further challenged the impugned notifications dated 31.1.2006 (Anx.14) and 26.6.2006 (Anx.17) whereby objections have been invited for proposed conversion of land use in Kho-Nagorian, Tehsil Sanganer, Distt. Jaipur in respect of Khasra Nos. 596, 597, 598, 599, 600 measuring 3.40 Hectares and further in later notification dated 26.6.2006, the total land use of 3.40 Hectares of the aforesaid Khasra Nos. has been changed from ''ecological'' to ''residential''.
In order to deal with the facts in effective manner, the facts referred in the writ petition arid the documents annexed thereto; reply and documents annexed thereto as well as rejoinder have been consolidated and the same are as under:
In the Master Development Plan of Jaipur, 2011 (in short "the Master Plan'') three Zones have been delineated namely ''urbanisable area'', "ecological zone'' and ''rural area''. The case of the petitioner is that land of the aforesaid Khasra Nos. falls within the ecological zone and. the same has been converted to residential area contrary to the interim directions of this Court dated 20.5.2004, final directions dated 17.3.2005 and without considering the statutory flavour of the ecological zone attached to it as per Section 25 of the Jaipur Development Authority Act, 1982 (in short the JDA Act). As regards challenge to the order of the Tribunal as well as the aforesaid Impugned order of inviting objections and finalisation of the same, other facts which are relevant have been mentioned that on 1.2.2006, the notification dated 31.1.2006 u/s 25(3) of the JDA Act was published calling for the objections within fifteen days with regard to the change of land use of aforesaid Khasra Nos. 596 to 600 of the master plan. The petitioner who is said to have been running a Motel has not filed any objection. However, the objections have been received from other persons and the same were finalised by issuing the notification u/s 25(1) of the JDA Act on 26.6.2006 permitting the land use of Khasra Nos. 596 to 600 from ecological to residential. In between, the Reference Application filed by the petitioner without filing any objection was dismissed on 9.6.2006. The challenge to the order of the Tribunal is also based on the aforesaid facts and grounds.
The respondent State and the J.D.A. both in their reply supported the aforesaid final notification dated 26.6.2006 as well as the judgment of the Tribunal dated 9.6.2006 by stating in the reply that the master plan categorised certain regions meant for use as such. The Committee constituted by this Court in pursuance to the interim direction dated 19.9.2003 in the two PIL under the chairmanship of the Chief Secretary considered the aforesaid Issue after providing opportunity to the person concerned and/or their counsel to represent their cases, Subsequently, the report has been given by the Committee that change in land use In question was necessitated on account of the desire of the State Government and the J.D.A. by timely interjection to stop haphazard development in the area. The Committee considered all the issues and found that if this kind of timely interjection is not undertaken, the development is bound to suffer and quality of life thereby would be adversely affected. The Committee has also taken into consideration that the framers of the master plan, some how or the other, could not keep in view the fact that the ecological zone shown in the plan covers thousands of Acres of private khatedari land. The khatedar tenants are utilising the land for development purposes and in order to maintain the zone as such, it was physically not possible to acquire such vast chunk of land. The Committee further took into consideration the development of housing scheme of the Rajasthan Housing Board and other residential schemes approved by the JDA in the rural belt adjoining ecological area. The Committee has observed that all this land is private Khatedari land and it is in close vicinity of Jaipur City, therefore, it would be difficult to ensure that the housing colonies do not develop on this land. In fact, substantial portion of this land has already been utilised for housing. Considering the over all position the Committee is of the view that it would be proper to allow planned development of houses on this land. If the Jaipur Development Authority does not allow the planned housing development on this land chances are that un-planned housing will take place on this land which would not be in the interest of city of Jaipur. It is stated in the reply that the said report of the Committee has been accepted by the Division Bench of this Court and the PIL writ petition was dismissed on 17.3.2005. It is further stated that the recommendation of the Committee was considered by the Jaipur Development Authority and the fact of allowing planned housing development on this land in order to curb the un-planned housing has been considered by the Tribunal with the further consideration of the fact that at some places, unplanned development has already taken place. It is stated in reply to the writ petition that the impugned orders are in accordance with Section 25 of the JDA Act.
In reply, Mr. U.N. Bhandari, Sr. Advocate assisted by Mr. Ajeet Bhandari, appearing for the private respondents No. 4 and 6 raised the preliminary objection that the petitioner has not filed any objection in pursuance to the notification dated 1.2.2006 issued u/s 25(3) of the JDA Act whereby objections have been invited within fifteen days but directly filed the Reference Application which was not maintainable. In the reply, it was further stated that in compliance to the interim direction dated 19.9.2003 this Court has constituted a Committee under the chairmanship of the Chief Secretary and the said Committee submitted its report on 22.2.2004 (Anx.R-2/1) whereby subsequent development in between the publication of the master plan till date have been taken into consideration and recommendations of the Committee as accepted by this Court which has been already referred in Government and the JDA reply, has been repeated, therefore, the petitioner has no right to challenge the said orders of conversion of the land which are in consonance with the direction of this Court.
The other facts which have been mentioned in the reply are that on 19.7.2002, the Khatedar respondent No. 4 Babulal submitted an application to the J.D.A. for grant of no objection certificate to set up the residential scheme in Khasra No. 596 to (300 measuring 3.40 Hectares in Village Kho-Nagorian, Tehsil Sanganer, Distt. Jaipur; on 16.9.2002 the no objection certificate was granted by the JDA; on 23.6.2003, the Authorised Officer resumed the land u/s 90-B of the Rajasthan Land Revenue Act, 1956 (in short ''Land Revenue Act'') and directed that the land may be recorded in the name of the JDA; on 23.12.2005 Rs. 55000/- were deposited by the respondent No. 4 with the JDA and subsequently, the aforesaid proceedings for inviting objections and final order took place.
On 4.8.2008, time was sought for filing reply to the third stay petition and the case was ordered to be listed on 28.8.2008. Meanwhile, the respondents were restrained from making construction over the land in dispute till 30.8.2008. Thereafter, this interim order was extended from time to time upto 3.9.2009. On 3.9.2008, Mr. Kasliwal submitted that in paras 5 to 9 of the reply filed by the respondent No. 4 to the third stay petition, it was given out that the respondent No. 4 had transferred the land in question in favour of M/s. Pooja Construction Ltd. vide registered sale deed dated 20.1.2007 and therefore, Mr. Kasliwal sought time for making an application for impleadment of M/s. Pooja Construction Ltd. as party respondent. The case was ordered to be listed on 5.9.2008 and till then the interim order was ordered to continue.
On 5.9.2008, the application filed by Mr. Kasliwal for impleadment was allowed and M/s. Pooja Construction was impleaded as respondent No. 6. The respondent No. 6 in its reply has also supported the case of the respondent No. 4 i.e. the original Khatedar.
As regards the Tribunal''s order dated 9.6.2006, counsel for the respondents stated in the reply that the said orders have been issued after following the procedure as laid down u/s 25(1) and 25(2) of the JDA Act.
Submission of Mr. Kasliwal is that the J.D.A. Appellate Tribunal has ignored the interim direction dated 20.5.2004 of the Division Bench of this Court as well as final direction dated 17.3.2005 of the Division Bench of this Court while dismissing the reference filed by the petitioner. His main submission is that the Division Bench had directed for the preservation of the ecological area but the J.D.A, Appellate Tribunal has ignored the same and the Jaipur Development Authority has also acted contrary to the provisions of Section 25(1) and 25(2) of the J.D.A Act, 1982. He also submits that the decision of the regularisation of land as well as building in the ecological zone is wholly contrary to the aforesaid interim directions and judgment of the Division Bench. Further submission of Mr. Kasliwal is that the Reference was filed prior to the notification u/s 25(3) of the JDA Act. Mr. Kasliwal submitted that orders of the State authorities of converting the land use in ecological zone is contrary to the Jaipur Master Plan-2011 as well as Section 25 of the J.D.A. Act, 1982 and the JDA Appellate Tribunal has not appreciated the said aspect of the matter and has passed the order of reference considering the fact of subsequent development of the construction of residential colonies in the area which are being regularised.
In support of his contentions, Mr. Kasliwal placed reliance on the following judgments:
(a) Shri K. Ramadas Shenoy Vs. The Chief Officers, Town Municipal Council, Udipi and Others,
(b) Bangalore Medical Trust Vs. B.S. Muddappa and others,
(c) M.L. Sud and Ors. v. Union of India and Ors., 1992 Supp 2 SCC 123
(d) Virender Gaur and Others Vs. State of Haryana and Others,
(e)Dr. G.N. Khajuria and Ors. v. Delhi Development Authority and Ors. (1995) 5 SCC 762.
(f) Delhi Development Authority Vs. Mr. Ravindra Mohan Aggarwal and Another,
(g) Govt. of A.P. and Others Vs. J. Sridevi and Others,
(h) M.C. Mehta and Poorvi Vishwas Ngr. S. Kalyan Samiti (Regd.) Vs. Union of India (UOI) and Others,
(i) Mount Abu Education Society (Regd.) v. Delhi Development Authority and Anr. (CWP No. 5264/2002 and Ors. Connected cases decided on 6.5.2003 by the High Court of Delhi).
Mr. Rajendra Prasad, who was also allowed to participate in the proceedings to assist the Court, supported the submissions made by Mr. Kasliwal which will be dealt with at appropriate place. He further submitted that the ecological zone in the master plan is of permanent nature and it can neither be reduced nor shifted for the main reason that the same has been prepared by the expert body in the interest of the citizens of Jaipur. He further submits that as per Section 25(1) of the J.D.A. Act, the JDA is authorised to make any modification which does not affect material alteration in the character of the master plan and further the State may make any other modification into the plan in order to promote planned development of any part of the Jaipur Region. The present modification in the ecological zone will not be covered by the aforesaid section therefore, the order of the J.D.A. Appellate Tribunal as well as further regularisation orders are contrary to Section 25(1) and 25(2) of the JDA Act.
The State and the JDA had submitted that the order of the Tribunal dated 9.6.2006 and the notification dated 26.6.2006 are in accordance with the report of the Committee headed by the Chief Secretary as per the aforesaid interim orders dated 19.9.93, 17.3.2004 and final order dated 17.3.2005, as accepted by the Division Bench in aforesaid two PIL Writ Petitions No. 1844/2001 and 4694/2003 and further observations and findings of the Division Bench given after consideration of Section 25 of the JDA Act have also been taken into consideration, therefore, the order of the Tribunal dated 9.6.2006 and the notification dated 26.6.2006 are legal and valid.
Submission of Mr. U.N. Bhandari, Sr. Advocate assisted by Mr. Ajeet Bhandari, appearing for the private respondent No. 4 and 6, was that the petitioner has not filed any objection, therefore, he has no right to file the Reference and seek any relief on merit. He further submitted that as per the direction of this Court, the Committee constituted under the chairmanship of the Chief Secretary submitted its report on 19.9.2003 taking note of the situation and recommended for modification. He had also submitted that once the decision of the Division Bench is there, there was no need of filing any Reference or the writ petition. He had also submitted that the notification dated 26.6.2006 (Anx.17) is as per the provisions of the J.D.A. Act as well as the directions issued by this Court in pursuance to which the petitioner has deposited fee of conversion and his land has been regularised whereon he has made part construction and other part could not be constructed on account of the interim order, therefore, the writ petition be dismissed.
Mr. U.N. Bhandari, Sr. Advocate further submitted that many residential colonies are situated in the area and Raj Vilas Hotel, reference of which has been given in para No. 7 of the writ petition, is not a Motel but world class Seven Star Hotel, therefore, the petitioner who has not come with clean hands, is not entitled to any relief.
Lastly, Mr. Bhandari submitted that in policy matter of conversion, the Court should not interfere.
In support of his contentions, Mr. Bhandari placed reliance on the following judgments:
(a) Syed Hasan Rasul Numa and others Vs. Union of India and others,
(b) Bombay Dyeing and Mfg. Co. Ltd. Vs. Bombay Environmental Action Group and Others,
(c) Shri Sachidanand Pandey and Anr. v. The State of West Bengal and Ors. AIR 1987 SC 109
(d) B.K. Muniraju Vs. State of Karnataka and Others,
I have heard learned Counsel for the parties and Mr. Rajendra Prasad, Amicus Curiae and further 1 have considered record of the writ petition.
Before proceeding further to discuss the contentions of the parties and Mr. Rajendra Prasad, it would be worthwhile to reproduce relevant portion of the Master Plan, interim orders dated 19.9.2003 in DBCWP No. 1844/2001, relevant portion of the report of the Chief Secretary dated 22.2.2004 (Anx.R-2/1), relevant portion of the order dated 17.3.2004 passed in DBCWP No. 4694/2003, order dated 20.5.2004 passed in DBCWP No. 1844/2001, Interim order dated 20.5.2004 passed in DBCWP No. 4694/2003, final order dated 17.3.2005 passed in the DBCWP No. 4694/2003 and 1844/2001 (PIL), notice inviting objections dated 31.1.2006 (Anx.12) and finalisation order dated 26.6.2006 (Anx.17) along with Section 25 of the JDA Act which are as under:
Relevant Portion of the Master Development Plan of Jaipur � 2011
... In this context, it has therefore, been considered necessary to delineate a green zone which may continue to remain so even after the plan period and ordinarily may not be altered in subsequent revisions modification or new development plans. Jaipur is fortunate to have available Aravali Hill ranges with forest covers abutting the urban areas towards north and east. These have provided a natural barrier against indiscriminate urbanization, thus saving the agricultural character of the area towards North, East, as compared to areas towards North West, West, South East. The study of regional drainages lopes reveals that areas of Achrol Valley are drained towards South a large part of which, form catchments area of Ramgarh Dam, the main source of drinking water to walled city area. This area contiguous with the areas on both sides of NH 11 leading to Agra up to the Agra Railway line form one contiguous green zone in the Region which has a sensitive eco-system. Any degradation or deterioration in this eco-system is likely to affect quality of life of the citizens of the Region.
Keeping in view all these aspects, besides the Urbanisable Area, Ecological Zone has been delineated in the Region, this zone including the hill ranges, forest covers water bodies, settlements etc. is ideally suited to be maintained as a predominant green zone to be utilised for agriculture, forestry and allied activities besides compatible activities. The existing settlements and legally established urban and rural functions in this zone will be allowed to expand to the extent of natural growth. Functions and activities which are eco-friendly and occupy minimal built area for incidental use like recreational and health resorts, sports complexes, stud forms, golf courses etc. may come up on this zone subject to stringent control with respect to environmental and other planning aspects. The Ecological Zone shall by all means be protected against indiscriminate urbanisation and shall continue to be a predominant green area even beyond the horizon year as stipulated in this document. The boundaries of the ecological zone as delineated in the over all regional context may vary slightly for planning considerations while working out details in the Zonal Development Plans and those plans may accommodate selective extractive industries in specific areas, designated for them, few eco-friendly urban functions as may be promoted by JDA/Govt. The area of the Ecological Zone delineated at this stage is approx.449 Sq.Kms.
Relevant portion of the order dated 19.9.2003 passed in DBCWP No. 1844/2001 Kayam Singh v. State
Be that as it may, before such matters of larger public interest come up before the Court, the same are to be scrutinized at the State Level by a High Power Committee. On scrutiny of the matters at the State Level, only those are to come to the Court, where the litigant Is not satisfied with the decision and in that situation the Court may be in a better position to decide and resolve those disputes.
In our opinion the interest of justice will be served in case this writ petition Is disposed of in the terms that, for the grievance made in this writ petition, the petitioner may file a detailed representation to the Chief Secretary to the Government of Rajasthan. On receipt of such a representation, the Chief Secretary to the Government of Rajasthan is directed to constitute the following committee for the decision on the representation,
The Chief Secretary to the Government Chairman 2. The Secretary to Government, Urban Development & Member Housing Department, Government of Rajasthan, Jaipur. 3. The Secretary to the Government, Law & Legal Affairs Member Department, Government of Rajasthan, Jaipur. 3. The Jaipur Development Authority through its Commissioner, Member Jaipur. The representation shall be decided within a period of two months from the date of receipt thereof. If the petitioner or any other person desire personal hearing in the matter, it shall be afforded by the Committee. The decision made on this representation shall be communicated to the petitioner. Compliance of this order be reported to the Court by the Committee. Liberty is granted to the petitioner to apply for revival of this writ petition in case decision on his representation of that Committee goes adverse to him. The copy of this order be sent to the Chief Secretary to the Government of Rajasthan, Jaipur.
Accordingly the writ petition stands disposed of.
In view of this order, the stay application filed along with the writ petition also stands disposed of.
Relevant portion of the report of the Chief Secretary dated 22.2.2004
The Committee observed that when the Master Development Plan of Jaipur - 2011 was being prepared the framers of the Master Plan presumed that the future growth of Jaipur City would be only towards the West side and South Side. The area on the East side adjoining the existing Jaipur City was set apart for as ecological zone. However, this presumption does not appear to have been correct. The Committee observed that the area east of the Jhalana Hills and South of the Jaipur-Agra Highway (between the railway line and the Kho Nagoriyan Road and Goner Road) is all private khatedarl land. This land has not been acquired by the Jaipur Development Authority or any other Government Department. It is also not possible for the State Government to acquire such a large area for maintaining it as a green belt. Keeping in view the growing pressure on land for housing and the fact that all this land is private khatedari land and it is in close vicinity of Jaipur City, it would be difficult to ensure that housing colonies do not develop on this land. In fact substantial portions of this land have already been utilised for housing. Considering the overall position the Committee is of the view that it would be proper to allow planned development of housing on this land. If Jaipur Development Authority does not allow planned housing development on this land the chances are that unplanned housing will take place on this land which would not be in the interest of the city of Jaipur.
Relevant portion of the order dated 17.3.2004 passed in DBCWP No. 4694/2003 Yashwant Sharma v. State and Ors.
... The aforesaid extract as already pointed out 1 from Part-I of the Master Development Plan-201 f and is in the form of a proposal. Part-II concretizes the aforesaid proposals. The relevant para of the Master Development Plan-2011 Part-II to the extent relevant reads as under:
Ecological zone
Besides the Urbanisable area, Ecological zone has been delineated in the region. This zone includes the hill ranges, forest covers, water bodies, settlements etc. This area is contiguous on both sides on N.H.11 from eastern boundary of urbanisable Area up to Agra railway line. This contiguous green zone in the region has a sensitive ecosystem. The existing settlements and legally established urban and rural centres in this zone will be allowed to expand to the extent of natural growth only. Functions and activities which are eco-friendly and occupy minimum built up area for incidental use may come up in this zone, The Ecological area imbibe hierarchical distribution of Eco Growth Centres, Eco Villages and Eco Hamlets. The ecological area is proposed to be provided with adequate road network linking the growth centres, villages and hamlets. The Eco Growth Centres have been allocated 300 mt. Radius of land parcel and Eco villages with 200 mt.radius land parcel to accommodate the growing needs of the rural population. The Ecological Zone and its suitability of development is determined by natural characteristics of land such as geology, soil, hydrology and vegetation. In an endeavour to retain the natural characteristics the impact of developmental activities that come in the area shall be properly regulated. The Land Use Zoning Code shall take into consideration the environmental parameters to arrive at the suitability of development. The Code identifies the activities that can figure in these areas to promote growth without disturbing the ecological fabric of the area. The area of the ecological zone is around 481 sq.Km.
Learned Counsel for the petitioner submitted that subsequent modification of the Master Plan can be allowed only to the extent it does not affect material alterations in the character of a plan and it does not relate to the extent of land or the standards of population density. In support of his submission, he relied upon Section 25 of the JDA Act. Section 25 relevant to the extent is reproduced as under:
Subsequent modification of Plans - (1) At any time after a Plan has come into operation according to provisions of Section 24, the Authority may make any modification to the Plan as it thinks fit, the modifications, which in its opinion, do not affect material alterations in the character of the Plan and which do not relate to the extent of land uses or the standards of population density.
On the other hand, Mr. Bharat Vyas, learned Counsel appearing for the JDA submitted that there are certain areas which in reality are not ecological zones in view of the fact that they have been totally urbanised. Our attention has been drawn to Annexure-12/9 to the rejoinder.
Even a cursory look at Annexure-12/9 would show that the area depicted in the photograph has been urbanised. Besides this area, there are certain other areas as well on which construction has come up. But these areas are quite small as compared to the total declared ecological zone which is by and large bereft of human habitation or buildings.
Mr. Bharat Vyas teamed Counsel appearing for the State submits that the State will like to take a view In the matter and come out with a definite stand about the area over which construction has come up. Having regard to the submission of Mr. Vyas we allow the matter to stand over for a period of four weeks.
List the matter on 21.4.2004 along with DBCWP No. 6257/2003 & DB Civil Misc. Application No. 92/2004. Interim order to continue.
Order dated 20.5.2004 passed in DBCWP No. 1844/2001.
Heard learned Counsel for the petitioner and carefully gone through the entire record of the miscellaneous application.
Having heard learned Counsel for the petitioner we are satisfied that the application deserves acceptance and accordingly the same is allowed and D.B. Civil Writ Petition No. 1844/2001 (PIL) and the stay application, filed therewith, are revived to their original numbers.
Interim order dated 20.5.2004 passed in DBCWP No. 4694/2003 Yashwant Sharma and Anr. v. State and Anr.
Pursuant to the order dt. 17.3.2004, the State has taken a view in the matter and has submitted the compliance report.
Mr. Kamlakar Sharma, learned Counsel appearing for the petitioner wishes to file response to the compliance report dated 21.3.2004. In case, any of the parties wish to respond to the compliance report filed by the State, they can do so.
It Is not disputed that the rural zone does not fall within the ecological zone. This being so, it is clarified, that, that rural zone does not fall within the parameters of the order dated 8.8.2003.
In so far as the question of shifting slum dwellers of the city to village Paldi Meena is concerned, the learned Additional Advocate General says that the land measuring 202 big has shall be added to the ecological zone in such a manner that the ecological zone remains one continuous land mass.
Having regard to the fact that slum dwellers In the city are living In a subhuman condition and less dwelling units have already been constructed in Paldi Meena for them, we allow the State to shift the slum dwellers of the city to newly constructed dwelling units subject to the condition that the land measuring 202 big has in lieu of the land being utilised for slum dwellers shall be added to the ecological zone in such a manner that the ecological zone remains a continuous land mass.
We are told that isolated properties have been constructed In the ecological zone. In case, this is true, these properties will become islands of plentitude. In the ecological zone, these properties should not have been constructed and the State should have seen to it that the ecological zone is not disturbed.
In the circumstances, we deem it appropriate to direct the State to consider the feasibility of acquiring these properties so that the ecological zone is maintained and protected.
No further construction should be allowed to be made in the ecological zone nor any encroachment should be allowed to take place. The State and the JDA shall carry out the order.
List the matter on 28.7.2004.
Relevant portion of final order dated 17.3.2005. in DBCWP No. 4694/2003 Yashwant Sharma v. State and DBCWP No. 1844/2001 Kayam Sipgh v. State and Ors.
... As per the undertaking given by the State Government and JDA to develop the ecological zone and set apart 200 Bighas of land for the said purpose, we are not inclined to interfere in the present matter on the technical ground that the amendments sought In the Master Development Plan are contrary to the provisions of law. Though, the JDA and the State Government has published the notice in terms of Section 25 of the JDA Act and approval has been sought on the Government, but still the JDA and State has not followed due process of law in letter and true spirit. Our only endeavour is to maintain the ecological zone for which the JDA and State has given undertaking, but we also warn the JDA not to amend the Master Plan casually in future unless and until, it is necessarily warranted to modify the Master Development Plan, that too should be in the limited scope. The State as well as JDA in future will not unnecessarily invoke the provisions of Section 25 of the JDA Act and have to maintain the ecological zone, which is one of the essential category as categorised in the Master Development Plan.
We further direct the State and JDA that as per the undertaking they will Identify the land measuring 200 Bighas for the purpose of maintaining ecological zone within a period of six months and shall submit the compliance report before this Court.
Since the State and JDA has given undertaking to set apart 200 Bighas of land for maintaining ecological zone, the relief claimed by the petitioner has been meted out, therefore, both the petitions stand disposed of in the terms indicated hereinabove.
Notice inviting objections dated 31.1.2006
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Finalisation order dated 26.6.2006 (Anx. 17)
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Section 25 of the J.D.A. Act, 1982
Subsequent modification of Plans - (1) At any time after a Plan has come into operation according to provisions of Section 24, the Authority may make any modification to the Plan as it thinks fit, the modifications, which in its opinion, do not affect material alterations in the character of the Plan and which do not relate to the extent of land uses or the standards of population density.
(2) The Authority with the approval of the State Government may make any other modifications into the plan in order to promote Planned development of any part of the Jaipur Region in more efficient manner.
(2-a) The Authority or the Nagar Nigam, Jaipur, or any other body or Committee, as may be authorised by the State Government in this behalf, may, in order to promote planned development of any part of the Jaipur Region in more efficient manner, make such modifications in land use of the Plan for such area, as may be specified by the State Government by notification in the Official Gazette.
(3) Before making any modification to the Plan, Authority, Nagar Nigam, Jaipur or any other body or Committee shall publish a notice, in such form and manner as may be determined by regulation inviting objection before such date as may be specified in the notice and shall consider all objections and suggestions that may be received by the authority, Nagar Nlgam, Jaipur or any other body or Committee.
(4) Every modification made under the provisions of this section shall be published and the modification shall come into operation either on the date of publication or on such date as the Authority, Nagar Nigam, Jaipur or any other body or Committee may fix by notice published in the official Gazette whereupon the modified Plan shall come into operation to all intents and for all purposes of this Act.
(5) Upon coming into operation of any modified Plan, any reference in any other section except In the foregoing sections of this Chapter, to the Master Development Plan or to the Zonal Development Plan shall be construed as a reference to the Master Development Plan or as the case may be to a Zonal Development Plan as modified under the provisions of this section.
At the outset, I am of the view that the Division Bench of this Court, while disposing of the P1L Writ Petitions No. 1844/2001 and 4694/2003 vide its order dated 17.3.2005, has interpreted Section 25 of the JDA Act and while interpreting the same, warned the JDA not to amend the master plan casually in future unless and until it is necessarily warranted to modify the master plan and that too, should be in limited scope. It has also been observed by the Division Bench that the State Government as well as the JDA in future will not unnecessarily invoke the provisions of Section 25 of the JDA Act and have to maintain the ecological zone which is one of the essential categories as categorised in the master plan. The Court has not interfered with the reduction of ecological zone on the technical ground that the amendments sought in the master plan are contrary to the provisions of law. Ultimately, the Division Bench concluded that since the State Government and the JDA had given undertaking to set apart 200 Bighas of land for maintaining ecological zone the relief claimed by the petitioner has been meted out, therefore, both the petitions were disposed of in terms indicated therein.
A perusal of the aforesaid orders reveal that the Division Bench of this Court has not disagreed with the finding of the Committee headed by the Chief Secretary therefore, the recommendations of the said Committee assume importance.
Submission of Mr. Kasliwal and Mr. Rajendra Prasad is that the ecological zone in the master plan Is of permanent nature and it can neither be reduced nor shifted for the main reason that the same has been prepared by the expert body in the interest of the citizens of Jaipur and that any change in the same has to be effected as per the provisions of the JDA Act. Their further submission is that while invoking the powers u/s 25(1) of the JDA Act, any modification to the plan should not affect material alteration in the character of the plan and as per Section 25(2) of the JDA Act, the same should be in order to promote planned development of any part of Jaipur Region in more efficient manner and the JDA while invoking the power u/s 25(2a) of the JDA Act should see that the land use be changed in order to promote planned development of any part of Jaipur Region In more efficient manner. In the instant case, the Committee has considered all the aspects of the matter and ultimately, concluded that in the interest of the city of Jaipur, the growing pressure on the land for housing and the fact that all this land Is private Khatedari land and is in close vicinity of Jaipur City, it would be difficult to ensure that the housing colonies do not develop on this land. Therefore, in order to prevent the un-planned housing, the JDA may allow planned housing development on this land. The Division Bench constituted the Committee considering their expertise on the subject. Hence, it cannot be said that the change of the land use is contrary to Section 25(1) and 25(2a) of the JDA Act.
The judgments of the Supreme Court cited by counsel for the petitioner are relating to illegal construction, allotment of land reserved for park or shown as green belt for any other purpose shown in the master plan, with the further submission based on the judgment of the Delhi High Court that the master plan and zonal plans have statutory flavour and the provision is made in the said Act itself as to the manner in which it is to be amended and further sanctity has to be attached. Since there is no dispute that the green belt and the ecological area is casually not to be allowed to be used for residential, industrial or any other commercial purpose, without following the procedure as per the JDA Act, therefore, all the judgments of the Supreme Court cited in this case, need not be discussed. However, paras 19 to 23 of the judgment of the Delhi High Court in Mount Abu Education Society (Regd.)(supra) are relevant to the controversy involved in the present case. The aforesaid paras 19 to 23 are as under:
Learned Counsel for the petitioners referred to the judgment of the Supreme Court in Dr. G.N. Khajuria and others Vs. Delhi Development Authority and others, which was the case dealing with the allotment of land for a nursery school, when in terms of the Zonal Development Plan the land was reserved for a park.
In Bangalore Medical Trust Vs. B.S. Muddappa and others, the issue was one of a conversion of a public park into a private nursing home.
In E.P. Railway Refugees II.B. Co-op. Society v. Commissioner of Police, 1993 RLR 552, the plot earmarked for a primary school was sought to be used for construction it a police station without following the procedure u/s 11A of the said Act.
Thus, all the aforesaid cases are such where the land was being utilised for purposes other than what is envisaged under the Master Plan or the Zonal Development plan.
I have considered the submissions of the learned Counsel for the parties in this behalf. There is no doubt that the Master Plan provided for the standards to be adhered to by the respondent authorities in respect of the user, developedment and allotment, of land. The allotment has to take place under the Rules. The Master Plan and the Zonal Development Plan have statutory flavour and the provision is made in the said Act itself as to the manner in which they have to be amended. This is so provided u/s 11A of the said Act. The lay-out plan does not have a statutory flavour and can be amended by Vice-Chairman of the DDA in pursuance to the powers conferred on him. A sanctity has to be attached to the master plan. The significance of this is, in fact, accepted by the respondent by reason of their conduct. There is no doubt that the Master Plan was lo remain in force for a period of 10 years and even during the currency of the Plant the very basis and norms on which it was framed changed and the population far exceeded than what was envisaged. The respondent being conscious of the sanctity of the Master Plan have themselves stated that the process of modification of the same was initiated by them on 25.9.2001, but despite reminders, the same has not been finalised. The consequences of non-finalisation of the Master Plan is, thus, on the respondents.
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 Section 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(2-a) of the JDA Act.
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.
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.
Accordingly, the writ petition is dismissed. No order as to costs.