Shiv Nagar- A Vikas Samiti Harnathpura @APPELLANT@Hash State of Rajasthan

The petitioners have filed this present writ petition wherein they have challenged the decision taken by the Bhawan Nirman Manchitra Samiti in its

92nd meeting dated 27.01.2006 of agenda No.9 and also the decision of the JDA Appellate Tribunal dated 10.11.2006.

Vide decision dated 27.01.2006 in its 92nd meeting, the JDA has revised its earlier decision taken in 14th meeting dated 17.04.2002 and has

released plots No.146 to 152 and 159 to 165 from the facility area.

The submission of the learned counsel for the petitioner is that housing society i.e. Mutual housing cooperative society limited, had set up on Kalwar

road scheme known as Shiv NagarA. While approving the plan submitted by the Mutual Society (supra), the JDA in its 14th meeting held on

17.04.2002 had approved facility area of 3500 square yards for construction of park. The JDA also constructed a 4 feet high boundary wall around the

park and the facilities of the park were being enjoyed by the residents of the area peacefully and uninterrupted. When the plot holders purchased

their plots, the Mutual Grah Nirman Sahkari Samiti had shown the park of the area of 3500 square yards.

It is their submission that in 92nd meeting of JDA, the earlier decision dated 17.04.2002 was reversed and the decision to keep facility area was

deleted wrongfully. Thereafter the JDA released the plots for allotment namely plot Nos.142 to 152 and 159 to 165 in favour of respondents.

The aforesaid decision dated 27.01.2006 was challenged by the petitioners by preferring an appeal before the JDA Appellate Tribunal, the Tribunal

appointed a Commissioner for site inspection who give a report that the park was bound by a boundary wall by all four corners. The Tribunal has

rejected the appeal subsequently vide its judgment dated 10.11.2006.

The submissions of learned counsel are firstly that the JDA does not have the authority to revise the plan after four years and exclude from the land

already earmarked for park and allot it for residential purpose. Secondly, an open space reserved as public park which was duly approved could not

have been reduced merely because the total area of the colony as per the plan only contained 36% residential area and remaining was facility area,

thirdly that the conversion has been done by the JDA for extraneous purposes and to give benefit to the respondents, fourthly that the change in the

approved plan has been done in contravention of the Rajasthan Urban (Sub-Division Reconstitution and Improvement of Plots) Rules 1975

(hereinafter referred to as “the Rules of 1975â€​).

Counsel for the petitioners has pointed out that an interim order was passed by this Court on 29.11.2006 which was vacated on 06.08.2007 on the

application filed under Section 226(3). Against the interim order of dismissal, the petitioner had filed D.B. Special Appeal (Writ) No.1054/2007

wherein the Court passed interim order in following terms:-

“….It fully protects the interests of the petitioners and we are satisfied that the following order shall meet the ends of justice to remain operative

until disposal of the writ petition :

(1) The respondents no. 6, 7, 8 and 9 shall file a undertaking/s, individually or collectively as the case may be, with the Registrar

(Administration) of this Court that in the event of writ petition no. 8991/2006 filed by Shiv Nagar- A Vikas Samiti, Harnathpura, Jhotwara, Jaipur being

allowed and the decision taken by the Bhawan Nirman Manchitra Samiti in its 92nd meeting dated 27th January, 2006 as regards Agenda no. 9 and

the decision of the Jaipur

Development Authority Appellate Tribunal dated 10th November, 2006 being set aside, the respondents no. 6, 7, 8 & 9 shall remove the development,

if any on plots no. 146 to 152 and 159 to 165, Shiv Nagar A Scheme at their cost and the said plots (being plots no. 146 to 152 and 159 to 165) shall be

restored to its original position.

(2) The respondents no. 6, 7, 8 and 9 are restrained from transferring, alienating or creating any third party right or interest of any nature whatsoever

in respect of plots no. 146 to 152 and 159 to 165, Shiv Nagar A Scheme until the disposal of the writ petition.

(3) The order dated 6th August, 2007 passed by the Single Judge in so far as the interim order dated 29th November, 2006 has been vacated, is

modified to the aforesaid extent.

(4) Looking to the controversy involved in the writ petition. We request the Single Judge to hear and decide the writ petition expeditiously. The parties

are given liberty to move the Single Judge for fixing the early date of hearing of the writ petition.â€​

The JDA has filed its reply and submitted that the promise made by Mutual Grah Nirman Sahakari Samiti to the plot holders would not be a concern

of the JDA. It is admitted that 3500 square yards park was reserved and 1 feet boundary wall was constructed by the JDA. After regularizing of 14

plots from the facility area namely numbers 146 to 152 and 159 to 165 in its meeting dated 27.01.2006, 678.79 square yards area has been left which is

60% area of the total colony and as per the standards of the JDA Authorities. It is stated that residential area is 40960.88 yards and 72226.40 square

yards is for roads and for park. The area left out is 678.88 square yards after the aforesaid decision. It is stated that originally the plots No.146 to 152

and 159 to 165 had been covered under the facility area upon representation. Their grievances were considered and the impugned decision was taken.

As per Rule 11 of the Rules of 1975, the saleable areas shall not exceed 66% of the total area however in small size development it may more

whereas the saleble area in the present scheme is much less even after including the concerned plots. The appeal of the petitioner was dismissed by

the Tribunal taking into consideration the provisions of the Rules of 1975.

Reply has also been filed by the respondents in whose favour the plots have been released. Apart from challenging the locus of the petitioners in

assailing the action of the JDA on the ground that the petitioners could not be said to have any personal grievance. It is stated that most of the owners

of the plots whose plots were wrongfully included in the facility area were Army solders or their dependents and after having come to know about the

wrongful action of excluding their plots and including it in the park, they had approached the JDA by making representation. It is stated that the then

Senior Town Planner had wrongfully included their plots in the park while preparing the plan of the scheme and was member of the BPC. He was

under the influence of the petitioners and illegally increased the facility area to exclude the plots of the respondents. In this regard, charge sheet was

issued to the concerned Senior Town Planner by the JDA Commissioner and departmental enquiry was initiated vide order dated 16.11.2005.

Thereafter, the decision of BPC 14th meeting was reviewed in the 92nd meeting of the BPC of JDA on 27.01.2006. The decision therefore does not

call for any interference.

It is further stated that although an interim order was passed in their favour by the Division Bench, they have not made construction wall on the

plots. It is also stated that the park has not been developed and the land is lying in the same stage. It is also stated that Society itself had taken up the

grievance of the respondents before the JDA to exclude their plots from the park area and now the Society has taken a u turn. Similar replies have

been filed by other respondents.

Having noted the submissions and pleadings, this Court finds that it is an admitted position amongst the parties that originally the plots were

mentioned and allotted to respondents in the plan prepared by the Mutual Grah Nirman Samiti. However the final plan prepared by the then Senior

Town Planner of JDA, the plots area was included in the facility area and a park admeasuring 3500 square yards was earmarked for the Shiv Nagar-

A Colony at Harnathpura Jhotwara and the plan including the said park of 3500 square yards was duly approved by the BPC in its 14th meeting. After

the said plan was duly approved, it appears that representations have been made for revising the plan and include the plots of plot holders said to have

been allotted by the Society. The Society also represented to include the plots Nos. 146 to 152 and 159 to 165 which were excluded in the plan

approved on 27.04.2002 earlier. Taking into consideration the objections, the plan has been revised by the JDA in its 92nd meeting which is under

challenge. It is submitted that such a course could not be adopted and before doing so opportunity should have been given to petitioner of hearing.

Before adverting to the issue whether such course could have been adopted by the JDA, it would be appropriate to take into consideration the

provisions of the Rules of 1975 which are said to have been adopted by the JDA. Certain provisions may be quoted for the purpose, which reads as

under:-

“11.  Saleable Area.-The saleable area in any scheme of sub-division, reconstitution or improvement of plots shall not exceed 66% of the total

area, however in the schemes of development upto 2 Hectares it may be more subject to provisions of the prevailing Township Policy.â€​    Â

Treatment of the applications.-(1)

Within three months from the date of receipt of application under rule 6 with all relevant and complete information the Trust shall communicate to the

developer the manner in which his application has been treated by the Trust.

(2) The Trust may ask the developer to furnishsome more informations which may be considered essential before taking a decision but such

information shall be asked within sixty days from the date of receipt of the application.

(3) In case further details or informations areasked for from the developer with respect to his application a further period of ninety days from the

receipt of further information under this subrule shall be allowed to the Trust to communicate to the developer the final decision of the Trust on his

application.

(4) Should the Trust neglect or omit for ninetydays after the receipt of the application under rule 6 or after me receipt of further information or' further

details under sub-rule (2) or sub-rule (3), the developer may by written notice sent by a registered post call the attention of the Trust to such neglect

and omission and if such neglect or omission continues for a further period of thirty days from the date of receipt of such communication, the Trust

shall be deemed to have sanctioned the proposed application and the plan for sub-division, reconstitution or improvement of plots:

Provided that nothing in this sub-rule shall be construed to authorise the developer or any person to act in contravention of any provisions of the Act or

any rule or bye-law or in disregard of the master plan or draft master plan or scheme or draft scheme or in contravention of any order, of the State

Government, Chief Town Planner or the Trust.

(5) The Trust may not approve a plan of sitewhich has not been included in the master plan but which falls within the jurisdiction of the Trust.

(6) No order for any modifications rejection ofany application for permission of sub-division, reconstitution or improvement of plots or of any plan

thereunder shall be made by the Trust without giving the applicant any opportunity of being heard and without giving the reasons of so doing.

Consequences of approval or nonapproval of the plans for sub-division etc-(l) As soon as a plan is approved by the Trust with or without

modification the developer shall deposit with the Trust cost of development within 30 days from the date of communication of the approval by the

Trust to the developer. The [rate] of development charges shall be based on the prevailing P.W.D. Schedule inclusive of necessary escalation

charges. [If any, and reducing therefrom the share of conversion charges, if any, that may have been transferred in respect of the land by the Board

of Revenue for Rajasthan in pursuance of the orders of the Revenue Department of the Government of Rajasthan for the time being in force.]

(2) As from the date of the approval of the subdivision by the Trust, ownership of roads, parks and open spaces shall vest in the Trust,

(3) In case the developer is unable to depositthe development charges under sub-rule (1), he may transfer the ownership of such numbers of plots to

the Trust in lieu of development cost within the time specified in sub-rule (1) as shall be equivalent to the development charges determined by the

Trust under sub-rule (1) The plots so obtained by the Trust shall be sold as soon as may be possible by open public auction.

(4) In the event of failure to deposit thedevelopment charges by the developer under sub-rule (1) or by transfer of plots to the Trust undoer sub-rule

(3) within the time specified therein the approval accorded by the Trust shall be deemed to have been cancelled, and the fee deposited by the

developer shall lapes to the Trust.

(5) No plans, for sub-division etc., shall bereleased by the Trust to the developer unless requirements or sub-rule {1) or sub-rule (3) have first been

complied with.

(6) If any person whether developer or, thepurchaser of plot does any work in contravention of the approval accorded by the Trust under rule 27 and,

despite refusal for the approval under rule 27, and rule 28, the Trust may direct such person by notice in writing to stop the work in progress and

remove and pull down any work or restore the land to its original condition after such person has been given an opportunity of explanation:

Provided that despite the removal of the work or restoring the land to its original condition under this rule, any person again does any work in

contravention of the provisions of the Act and these rules or sells or purchases the land shall be liable to resumption by the Trust on payment of such

amount as the Collector of district may determine.

Power of the Trust to revise its decision.-(1) The Trust may revise its earlier decision given with respect to a plan in the form of rejecting

approved plan approving a rejected plan with or without modifications, or attaching such conditions and restrictions to an approved plan with or without

modification which it deems, essential in the interest of securing expedient execution of any scheme of improvement. .

(2) If at any stage the Trust is satisfied that thedeveloper has made certain deviation from the approved plan in contravention of the sanction, it may

make such modifications so as to render the improvement in accordance with the approved plan.

(3) If the Trust is satisfied that the developerhas failed to make necessary modifications to render the improvement in accordance with the approved

plan or that the improvement undertaken by the developer has reached such a stage that it is uneconomical to restore the improvement in accordance

with the approved plan, the Trust may temporarily stop such improvement and take up the amendment of the approved plan to itself and modify or

make adjustment of the approved plan to itself as it may deem it essential to render the improvement in accordance with the approved plan or

amended plan as the case may be and may undertake the improvement itself. The expenses incurred by the Trust in carrying out the improvement

shall be chargeable to the developer on whose failure the Trust had to modify or to amend the plan as aforesaid. The Trust may proceed in the

manner laid down in sub-rules (2) and (3) or rule 31 above to recover the expenses incurred by it under this rule from the developer or the person to

whom the site has been sold.

(4) The Trust while making amendment ofadjustment of any plan submitted by a developer or while drafting a new scheme of improvement, may alter

the boundaries of a site and thus include or exclude other adjoining areas to or from the scheme already contemplated and it may propose the

compulsory acquisition of such areas or enter into an agreement with their owner or occupier of the land concerned.

(5) The Trust shall, as soon as it decides toundertake improvement by itself with respect to any site to the required standards or according to the

approved plan or in any manner as may be desired by it\ take over from the developer all such responsibilities and obligations under these rules and

hence-forth all the interests in the schemes shall be vested in the Trust which may thereafter deal with the scheme:

Provided that the Trust shall in no case be responsible for the recovery of any dues of any kind which the developer has to collect from any person

who has purchased the land in the area covered by the scheme.

(6) No order shall be passed by the Trust underthis section without giving the developer an opportunity of being heard against ; and stating the reasons

for the proposed order.â€​

Keeping in view of the aforesaid provisions, it would be appropriate to quote agenda No.9 of the 92nd meeting and the decision taken therein

which reads as under:-

“,ts.Mk ua0 9 & E;qpq;y gk- dks- lks- dh ;kstuk f’kouxj *,* ds Hkw[k.M la[;k 143 ls 152 o 159 ls 165 dks lqfo/kk {ks= ls eqDr djus ckcr~A

izdj.k ds lca/k es fopkj&foe’kZ fd;k x;k vkSj lfefr ds lnL;ksa }kjk ekSdk fujh{k.k fd;k x;kA izdj.k esa iwoZ esa Hkou ekufPk= lfefr ¼ys vkmV

Iyku½ dk 14oha cSBd fnukad 17-04-2002 esa ,ts.Mk la[;k 3 ds fcUnq la[;k 4 esa fy;s x;s fu.kZ; **;kstuk dk dqN Hkkx lqfo/kk {ks= ds vUrxZr j[kk

tk;s** dks fujLr djrs gq, rnkuqlkj ;kstuk ekufp= esa la’kks/ku fd;s tkus dk fu.kZ; fy;k x;kAâ€​

A look at the aforesaid rules of 1975 shows that the saleble area available in a scheme upto 2 hectares shall not exceed 60%. Thus, 34% of the

area has to be kept as facility area. A procedure has been laid down how an application for regularization of ‘developers’ scheme is to be

examined by the concerned trust or JDA which has adopted the said rules. Notifications and rejections of applications for reconstitution or change of

plan can be made by the trust after giving an opportunity of being heard as provided under Rule 29 (6). This opportunity however has to be given to

the developer who is the applicant and not to the concern owners of the plot. Consequences of approval are also laid down under Rule 30, above.

Rule 32 empowers the trust to revise its decision if at any stage the trust is satisfied, deviations having been made or certain faults having been

crept in the approved plan. The power is exclusively within the domain of JDA/Trust.

In opinion of this Court, such a provision is required as there can be a certain instances where a particular plot which has already been included in

a scheme may escape notice inadvertently or it may be deliberately deleted for giving benefit to some other beneficiary. Once the error is brought to

the notice of the JDA Authorities, it is incumbent upon them to examine the same and correct its plan. Thus, in view of the aforesaid provisions, it is

apparent that the JDA has the power to revise its plan in terms of Rule 32 of the Rules of 1975 and change the approved map which has already been

approved earlier.

The next question arises as to who is to be given an opportunity of hearing as envisaged under Section 32 (6) ? As per the scheme of Rules as

quoted above, it is the developer alone who is required to be given opportunity of hearing and not the residents. The petition filed before this Court is

by the residents of Shiv Nagar and not by the Mutual Cooperative Housing Society which were the developer of the land and thus the submission of

learned counsel for the petitioner that they were required to be given an opportunity of hearing is wholly unfounded.

The next question which arises for consideration is whether in light of the judgments passed by the Apex Court, the space reserved for park or

play ground for general public could be reduced and the land of the park could be allotted to a private person. The said submission is based on law as

laid down by the Apex Court in the cases of Bangalore Medical Trust Versus

B.S. Muddappa & Ors., AIR 1991 Supreme Court 1902 and M.I. Builders Pvt. Ltd. Versus Radhey Shyam Sahu And Others, (1999) 6 SCC 464.

However, it is to be noted that facts of this case do not relate to a public park but to a land which is being earmarked for a park. It is not the case of

the petitioners that a public park was existing in the locality from which plots have been earmarked and allotted to the individuals. The situation is

otherwise, as it is apparent from the charge sheet issued to the Senior Town Planner, originally in the plan the plots were existing and the park was not

shown in the plan. Thus on account of the change of the plan made by the Senior Town Planner the plots of the respondents were included as part

of the park. Thus, the park was shown on the land of the plot holders.

In the Bangolre Media Trust (supra) the situation was otherwise, the land of the existing public park was converted into a private nursing home

and the concerned neighborhood of the locality had therefore challenged the said action of the B.D. Authority and in the said context the Supreme

Court held that no land can be earmarked from an existence public park.

This Court also finds that the JDA Tribunal has examined the aspect from the other angle too and has reached to the conclusion that the saleble

area even after including the said plots would be less than as prescribed under the rules and enough space will be available for a park.

In the circumstances, therefore, the contentions raised by the petitioner that the land of the public park has been converted to a private plots, is

factually not made out. It is to be noted that the private plots had already been purchased by the respondents prior to the colony being approved by

the JDA in its 14th meeting of 2002. It is also to be noted that these plots holders were Army Personnels who may not have known about their plots

being included in the park area at that relevant time. This Court finds that the JDA has only corrected its earlier mistake by taking the decision in its

92nd meeting and such a decision regularizing the plots which were already existing in the plan, is within their jurisdiction and domain and no

interference thereto is called for.

Accordingly, the judgment passed by the Tribunal dated 10.11.2006 does not call for any interference. The writ petition in view of the aforesaid

finding and conclusions fails and is accordingly dismissed. No costs.