Jagdish Prasad Sharma vs Jaipur Development Authority Appellate Tribunal and Others

Mohammad Rafiq, J.—This writ petition has been filed by the petitioner Jagdish Prasad Sharma challenging order dated 16.10.2014 passed by Jaipur Development Authority Appellate Tribunal, Jaipur(hereinafter referred to as ''the Tribunal'') granting injunction against the petitioner.

As per averments of the writ petition, the petitioner has submitted that the petitioner is owner of Plot No. 5 in the Scheme Piramid Kunj of Mitra Grah Nirman Sahkari Samiti(for short ''the Society'') situated near by Kamla Nehru Nagar, Ajmer Road, Jaipur. As per the scheme of the Society, width of the road in between the Plot No. 1 to 3 and 4 to 9 is 20 ft. only. Plot No. 1 and 2 are owned by Respondent No. 3, Smt. Krishna Sharma and the size of the aforesaid plots is 200 and 180 sq. yards respectively. The petitioner has alleged that Respondent No. 3, in connivance with the officers of Jaipur Development Authority(for short ''JDA''), having joined both the plots No. 1 an 2 started to raise construction of flats on zero setback on all four sides. The petitioner made complaint to JDA, but no action was taken. Thereafter, the petitioner filed reference petition before the Tribunal. The Tribunal vide order dated 18.09.2014 proceed ex-parte against Respondent No. 3 and granted injunction to maintain status-quo and even appointed a Commissioner to submit the report as to width of the road. Shri Abhishek Sharma, Commissioner appointed by JDA visited on spot and prepared a report in which width of the front road was found as 19''3" ft. and construction of Respondent No. 3 was found at zero setback in all respect.

Mr. L.L. Gupta, learned counsel for the petitioner has submitted that the Respondent No. 3 raised construction by joining aforesaid Plot No. 1 and 2 without getting appropriate order of reconstitution of such plots as per the relevant rules. In fact, Respondent No. 3 was watching the Court proceedings outside the Court and when the Tribunal vide order dated 18.09.2014 proceeded ex-parte against her, she filed an application for setting aside ex-parte order on the same day. The matter was adjourned for 13.10.2014. However, surprisingly the matter was taken up by the Tribunal on 23.09.2014, on which date notice of the application for early hearing the matter was issued and the matter was posted on 26.09.2014. Counsel for the petitioner appeared before the Tribunal on 26.09.2014 and sought time to file reply to the application filed by Respondent No. 3 for setting ex-parte order and the matter was posted to 13.10.2014, on which day, Presiding Officer was on leave and the matter was adjourned to 16.10.2014. However, on 16.10.2014, Respondent No. 3 fled a reply and counter claim. The Tribunal, without any opportunity to the petitioner to file reply to the counter claim, decided the reference petition vide impugned order dated 16.10.2014.

Mr. L.L. Gupta, learned counsel for the petitioner has further argued that the Tribunal has erred in passing impugned order by not considering the fact that Respondent No. 3 was raising illegal construction of flats on zero set back on all four sides. Width of road in front of Plot No. 1 and 2 is only 20 ft. and as per the building bye laws of JDA, no flat or unit more than one at one floor is permissible whereas the Respondent No. 3 is raising construction of four flats on one plot. The Tribunal, ought to, therefore, have restrained Respondent No. 3 from raising construction of the flats so that she would not have proceeded in making further illegal construction. It is argued that the order passed by the Tribunal to the extent of issuing direction to the petitioner is also liable to be quashed and set aside and the same deserves to be modified. It is also argued that the Tribunal should not have left the matter to the discretion of JDA so far as removal of illegal construction raised by Respondent No. 3 is concerned, the Tribunal should have passed positive order directing removal of her illegal construction. Therefore, the order passed by the Tribunal deserves to be set aside.

Mr. Vimal Choudhary, learned counsel for Respondent No. 3 has opposed the writ petition and argued that the Tribunal has passed an innocuous order which does not call for any interference by this Court. Referring to the impugned order, learned counsel has submitted that the Tribunal has required the JDA administration to inspect the construction on Plot No. 1 and 2 of Respondent No. 3 and if any construction is not found according to bye laws on zero set back, then take appropriate action and restrain Respondent No. 3 from raising new construction on zero set back. Learned counsel for Respondent No. 3 has submitted that the petitioner himself has not come before this Court with clean hands because he has raised construction on zero set back. In fact, the petitioner made encroachment on the land of public way. It is argued that Pyre Mohan Sharma, real brother of the petitioner and owner of adjoining Plot No. 6, filed a civil suit in the Court of Civil Judge(JD) and Metropolitan City Magistrate, Jaipur(West) seeking injunction for restraining the Respondent No. 3 from constructing residential flats. When the civil court declined to grant injunction, he filed appeal before the District and Sessions Judge, Jaipur Metropolitan, Jaipur which is still pending. It was thereafter that the petitioner, who is brother of Shri Pyre Mohan Sharma and owner of Plot No. 5, filed reference petition before the Tribunal on 16.09.2014. Respondent No. 3, who resides 15 kms away from the premise of the Tribunal, managed to reach the Tribunal at 1.00 P.M., but by that time, the Tribunal had granted ex-parte stay order. When already civil suit was pending with regard to same dispute, reference application at the instance of brother of the plaintiff therein could not have been entertained by the Tribunal. It is argued that the petitioner has not come before this Court with clean hands because the petitioner has himself encroached on the public road on the southern side upto six to nine inches as per report of the Commissioner appointed by the JDA. If the encroachment is removed from public street, the entire houses of plot No. 5 to 9 will come on the zero set back. Referring to Para 9 of the reply to writ petition, it is argued that Respondents No. 3 has denied allegation that her construction is on zero set back. She has left 7.5 ft. land and 5 ft. land for set back. Width of the road is found 19''3" as well as 19''6" due to illegal construction raised by the petitioner and his brothers. Respondent No. 3 has made construction as per the JDA Bye Laws. Learned counsel for Respondent No. 3 has also submitted that Respondent No. 3 has filed an application (No. 62466/2014) with the prayer that enquiry be conducted into remaining Plot Nos. 6, 7 and 8 and to restore correct width of the public road, as according to her, owners of those plots, Pyare Mohan, Satya Prakash and Kapil Sharma, have also made encroachment ranging from six to nine inches on the public road, as per the report of the Commissioner appointed by the Tribunal.

When the matter was listed on 27.11.2014, this Court required the petitioner to supply copy of writ petition to M r. Amit Kuri, learned counsel for Respondent No. 2-JDA, JDA was required to file specific reply on the following points:

"i) Whether the plots were allowed to be joined?

ii) Whether the construction in question has the approval from the JDA?

iii) Whether any construction has been made on set back by Respondent No. 3 and the petitioner?

iv) Whether any construction has been made on the road by either petitioner or Respondent No. 3?"

Mr. Amit Kuri, learned counsel for JDA has filed additional affidavit of Mr. Sukhaveer Saini, Deputy Commissioner, Zone-7, Jaipur Development Authority. He, referring to the averments of the additional affidavit, regarding query (i) made by this Court, has submitted that the plots owned by the petitioner and Respondent No. 3 are part of scheme Pyramid Kunj formulated by Mitra Grah Nirman Sahkari Samiti. The said Scheme was not placed by the housing society before JDA for conversion of land use and for its approval and, therefore, it is an illegal colony as the residential plots have been formulated on agricultural land. It is submitted that no permission in respect of joining of Plot No. 1 and 2 has been accorded by JDA to Respondent No. 3.

With regard to query (ii) made by this Court, it is submitted that neither construction of the petitioner, nor construction of the Respondent No. 3 has been approved by JDA and the construction in question is illegal and has been raised over agricultural land.

On query (iii), it is submitted that in pursuance of order dated 27.11.2014, a site inspection was carried out by JDA on 09.12.2014 and 15.12.2014 respectively to know about the status of construction raised by the petitioner as well as Respondent No. 3. What emerged from the inspection of the spot is that the area of Plot No. 5 of the petitioner was 67.25+7.25/2 x 30 = 191 sq. yards and, therefore, as per the building bye laws, the petitioner was required to maintain front setback of 15 ft. and back/rear set back of 8.25 ft. Construction of the petitioner is illegal, as the petitioner has left no back setback area and has covered the same by raising permanent construction over it. The petitioner, in front of his plot, has raised a temporary construction, i.e. tin shed, which is also violating the front setback area, but the same being temporary in nature cannot be said to be a violation as the same can be removed. As regards the position of Plot No. 1 and 2 owned by Respondent No. 3, it is submitted that area of plot No. 1 is 62 x 30, i.e. 206.66 sq. yards and area of plot No. 2 is 52 x 30 i.e., 1.73.33 sq. yards which in total comes to 383.33 sq. yards. If the plot size of the Respondent No. 3 is taken as 383.33 sq. yards, she is required to maintain front setback of 15 ft., side setback of 10 ft. and back setback of 10 ft. From the inspection in respect of construction raised by Respondent No. 3, it emerged that Respondent No. 3 has left front setback of 7.10 ft. as against 15 ft., side setback of 4.6 ft. as against 10 ft. and back setback of 4.9 ft. as against 10 ft. In fact, the projection (Chhajja) made by the Respondent No. 3 is over the complete plot.

Mr. Amit Kuri, learned counsel for JDA with regard to query (iv) made by this Court has submitted that as per the plan of the Society, width of the road is 20 ft. whereas on the spot, this width varies from 19.3 ft to 19.6 ft. It is submitted that the measurements made in respect of depth of plot of Respondent No. 3, the total depth comes to 30 ft. which as per the plan of the Society is correct whereas it appears that the petitioner has partially occupied the area of road, but the said fact cannot be said to be absolute, as the JDA has not approved the map of the scheme after taking proper measurements and dimensions of the entire scheme. Copy of the inspection report has been filed along with the aforesaid additional affidavit.

As per the submissions made by learned counsel appearing for the JDA, the constructions raised by both the parties and even by other plot holders, being on agricultural land without approval of JDA, broadly speaking, is entirely illegal, but the JDA, on the basis of site plan of the Society, as per the size of plots and the road given therein, has proceeded to assume amalgamation of two plots, i.e. Plot No. 1 and 2 and has contended that even on that basis assuming plot size to be 383.33 sq. yards, Respondent No. 3 has left front setback of 7.10 ft. as against 15 ft., side setback of 4.6 ft. as against 10 ft. and back setback of 4.9 ft. as against 10 ft. At the same time, the petitioner is shown to have raised construction in the setback area as also made encroachment into the land of public way. Plot size of the petitioner is 191 sq. yards, according to which he was required to leave front setback of 15 ft. and rear/back setback of 8.25 ft. and beyond the aforesaid setback, whatever construction the petitioner has raised is illegal. This is also assuming that the size of the plot and road shown by the Society in its plan is taken as per the rules. Construction made by petitioner as well as Respondent No. 3 have to conform to parameters laid down and norms prescribed in Jaipur Development Authority(Jaipur Region Building) Regulations, 2010 as per size of the plots and width of the road. The Tribunal cannot be said to have committed any illegality in directing the respondent-JDA to make such inspection and take appropriate action, if any construction is found to have been made on zero setback.

The fact that the brother of the petitioner Shri Pyre Mohan Sharma has filed a civil suit before the civil court and could not succeed in persuading that court to pass any injunction order in his favour and against Respondent No. 3, does not in any manner dilute, curtail or diminish the jurisdiction of the Tribunal from passing the impugned order, which has been passed in the reference petition filed by the petitioner. But at the same time, bona fides of the petitioner have also been questioned by Respondent No. 3 and rightly because if he expects his neighbours to follow the building bye laws and not to raise the construction in the land of setback, he must also behave in the same fashion.

As regards construction on zero setback and encroachment made by brother and neighbours of the petitioner, who own Plot No. 6, 7 and 8, it goes without saying that JDA would be well within authority in taking against them appropriate action for removing the encroachment on public land and construction made on zero setback after notice and providing owner thereof opportunity of hearing. This Court cannot straight away issue specific direction against them because so far JDA has not provided them any opportunity of hearing after issuing appropriate notice in that behalf.

In view of above, this writ petition is disposed of with the following directions:

"(i) Petitioner as well as Respondent No. 3, on their own, shall remove encroachment on the public road and/or demolish unauthorised construction in the area of set back, as referred to above within fortnight.

(ii) If they fail to do so, Jaipur Development Authority shall take appropriate action for removing construction raised by petitioner as well as Respondent No. 3 to the extent such construction is found in area in excess of the approved setback, assuming plot size of the petitioner to be 191 sq. yards and plot size of Respondent No. 3 to be 383.33 sq. yards within one month after expiry of the aforesaid period of fortnight.

(iii) If the petitioner fails to remove his encroachment from the public road, Jaipur Development Authority shall remove all such encroachment of the petitioner on the public road as per the width of 20 ft. shown by the Society in its plan within one month after expiry of the aforementioned period of fortnight.

(iv) Jaipur Development Authority shall serve notice on the owners of plot Nos. 6, 7 and 8 and after considering their reply, if the same are not found to be satisfactory, then ensure restoration of construction on such plots, to be in conformity with Building Regulations of 2010 and remove encroachment on the public road, if any.

(v) Pending compliance of the aforesaid, no further construction shall be made or allowed to be made by the petitioner and/or Respondent No. 3.

(vi) Jaipur Development Authority shall also determine whether on the aforesaid size of plot and width of the road, multistory building having residential flats can be allowed to be constructed and shall accordingly convey to the parties.

(vii) Cost of demolition of the unauthorised construction, referred to above, shall be realised from the petitioner and Respondent No. 3 for their respective plots."

A copy of this order be forwarded to Commissioner, Jaipur Development Authority, Jaipur for compliance. Compliance report be filed within two months.

Stay application and Application Nos. 3487/2015, 54532/2014 and 62466/2014 are also disposed of.