Dismissed

Vikas Samiti Naya Khera Amba B v. the Jaipur Development Authori

Rajasthan HC7 Sept 2022CW/3237/2004

Case brief

AI extract

What is this about?

High Court dismissed two writ petitions challenging a Development Authority Appellate Tribunal order confirming auction plots to highest bidders. Court upheld Tribunal’s refusal to interfere with plan modification and rejected request for interim injunction against ongoing construction despite allegations of road encroachment.

What did the court decide?

Writ petitions dismissed; no interim injunction directed; status quo ante not restored.

Vikas Samiti Naya Khera Amba B Vs the Jaipur… — Landlord and Tenant | Rajasthan HC (2022)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

¶2

S.B. Civil Writ Petition No.3237/2004

¶3

Vikas Samiti Naya Khera (Amba Bari), Jaipur, through its Secretary, Om Prakash Bhargava, S/o Shri Shiv Dayal Bhargava, aged about 60 years, R/o M-16, Vijay Vihar Colony, Naya Khera, amba Bari, Jaipur.

¶4

----Petitioner

¶5

Versus

¶6

The Jaipur Development Authority Appellate Tribunal, Ram Kishore Vyas Bhawan, Jawahar Lal Nehru Marg, Indira Circle, Jaipur.

¶7

Jaipur Development Authority, through its Secretary, Ram Kishore Vyas Bhawan, Jawahar lal Nehru Marg, Indira Circle, Jaipur.

¶8

The Deputy Commissioner, Vidyadhar Nagar Zone, Jaipur Development Authority, Ram Kishore Vyas Bhawan, Jawahar Lal Nehru Marg, Indira Circle, Jaipur.

¶9

Kamlesh Jain S/o Shri Tara Chand Jain, R/o 104/5, Parasaram Nagar, Dher ka Balaji, Jaipur.

¶10

Hazari lal Sharma S/o Late Shri Jaganath Sharma, aged about 52 years, R/o House No. 718, Vidyadhar ka Rasta, Johri Bazar, Jaipur.

¶11

----Respondent

¶12

Connected With

¶13

S.B. Civil Writ Petition No.10970/2021

¶14

Govind Sharan Sharma S/o Late Shri Jagannath Prasad Sharma, R/o M-6, Jagdamba Colony, Naya Kheda, Ambabadi, Jaipur (Raj.)

¶15

Kaushal Kishore Mathur S/o Late Mr. K.b. Mathur, R/o M- 7 Jagdamba Colony, Naya Kheda, Ambabadi, Jaipur (Raj.)

¶16

Durga Das Paul S/o Shri Bhagwan Das, R/o M-2, Jagdamba Colony, Naya Kheda, Ambabadi, Jaipur (Raj.)

¶17

Ajay Bhargava S/o Sh. Shri Om Prakash Bhargava, R/o

¶18

(2 of 15)

¶19

[CW-3237/2004]

¶20

M-16, Jagdamba Colony, Naya Kheda, Ambabadi, Jaipur (Raj.)

¶21

----Petitioners

¶22

Versus

¶23

Jaipur Development Authority, Jaipur, Ramkishore Vyas Bhawan, Jawaharlal Nehru Marg, Jaipur Through Secretary.

¶24

Commissioner Jaipur Development Authority, Ramkishore Vyas Bhawan, Jawahar Lal Nehru Marg, Jaipur.

¶25

Deputy Commissioner Zone 2, Jaipur Development Authority, Ramkishore Vyas Bhawan, Jawahar Lal Nehru Marg, Jaipur.

¶26

Chief Enforcement Officer, Jaipur Development Authority, Ramkishore Vyas Bhawan, Jawahar Lal Nehru Marg, Jaipur.

¶27

K.c. Singhal S/o Late Shri Sitaram Singhal, R/o 119, Indra Colony, Banipark, Jaipur.

¶28

M/s Pooja Propcorn, Through Its Director K.c. Singhal R/o F-16, Arya Square, Subash Nagar, Jhotwara Road, Jaipur.

¶29

----Respondents

¶30

For Petitioner(s)	: Mr.Mohit Khandelwal, Adv.
For Respondent(s)	: Mr.Amit Kuri, Adv. with Ms.Aditi Jodha, Adv. Ms.Alveera Ayub, Adv. & Mr.Dharma Ram, Adv. for JDA.
	Mr.Naved Rafiq, Adv.
	Mr.Shashank Agarwal, Adv. with Mr.Mahima Kisori, Adv. Mr.Hemang
	Kumawat, Adv. for Nos.5 & 6.
	Mr.Hemant Sharma, Adv. for No.5.

¶31

HON'BLE MR. JUSTICE ASHOK KUMAR GAUR Order

¶32

07/09/2022

¶33

S.B. Civil Writ Petition No.3237/2004 has been filed by the Secretary of Vikas Samiti Naya Khera (Ambabari), Jaipur challenging the order dated 30.05.2003 passed by the Jaipur

¶34

(3 of 15)

¶35

[CW-3237/2004]

¶36

Development Authority Appellate Tribunal (hereinafter ‘the Appellate Tribunal’). The petitioners-Society has prayed that the orders passed by the JDA dated 29.03.2003 and 23.04.2003 may be restored. The petitioner further seeks direction to demolish the construction if any, made by the private respondents over the public way at old Plot Nos.A-9 and A-10 along with right of way, to be provided to the petitioner.

¶37

S.B. Civil Writ Petition No.10970/2021 has been

¶38

filed by four petitioners i.e. Govind Sharan Sharma, Kaushal Kishore Mathur, Durga Das Paul & Ajay Bhargava challenging the order dated 23.06.2022 to the extent of denial of interim relief to the petitioners and further they seek to restrain the JDA Authorities to take any further action on the basis of site inspection report dated 08.03.2022 and 30.03.2022. The petitioners additionally seek a direction that private respondents, be restrained to raise any construction at the public road and the encroachment made on the public road, may be ordered to be removed forthwith.

¶39

The grievance raised in S.B. Civil Writ Petition

¶40

No.3237/2004 is in respect of non impleadment of petitioner as party in the Reference Application No.145/2003 filed by one of the private respondents i.e. Hajari Lal Sharma against the JDA. The dispute before the JDA Appellate Tribunal in Reference No.145/2003 was in respect of not issuing the lease deed in favour of allottee of Plot No.A-9 (Corner) and person who filed the Reference before the JDA Appellate Tribunal highlighted the fact of not issuing the lease deed in spite of he being declared as a successful bidder and paid the sale consideration, after depositing the necessary charges as demanded by the JDA.

¶41

(4 of 15)

¶42

[CW-3237/2004]

¶43

The JDA Appellate Tribunal on an application being filed under Order 1 Rule 10 CPC came to conclusion by its order dated 03.05.2003 that applicants Shankar Lal and O.P. Bhargava were not necessary parties, even if, they were enjoying the right of way more than 30 years.

¶44

The reference filed by the private respondent No.5HajariLal finally came to be decided by giving direction to the JDA Authorities to issue lease deed in favour of allottee of the said Plot within two months and further any construction made by such person over Plot No.A-9 was not to be demolished and the decision of JDA to change the place of Plot No.A-9 in the revised site plan dated 23.04.2003, was cancelled.

¶45

The petitioners filed S.B. Civil Writ Petition No.3237/2004 and notices were issued in the writ petition but no interim order was passed by the Court in favour of the petitioner.

¶46

Learned counsel for the petitioner submitted that the order passed by the JDA Appellate Tribunal not permitting the applicants therein to become party, was erroneously passed and even final order dated 30.05.2003 is also contrary to law and facts on record.

¶47

Learned counsel for the petitioner submitted that Original (I) site plan which was prepared by the Authorities had clearly shown that there was no right of way to the residents of the colony and after examining the matter by JDA at various levels, it was found that right of way was blocked and accordingly, the JDA Authorities had passed the order dated 23.04.2003 which has wrongly been set aside by the JDA Tribunal.

¶48

Learned counsel for the petitioner submitted that the JDA Authorities while demarcating the commercial plots for public

¶49

(5 of 15)

¶50

[CW-3237/2004]

¶51

auction, did not take into account that right of way was already available to the residents of the colony and yet Plot Nos.A-9 and A-10 were earmarked for auction but when the JDA Authorities realized their mistake, then the said plots were rightly shifted.

¶52

Learned counsel submitted that though a Civil Suit was filed by Om Prakash Bhargava and Shankar Lal Dusad in the Court of Additional Civil Judge (Junior Division) West, Jaipur on 29.04.2003 but in view of decision of the JDA Appellate Tribunal dated 03.05.2003, the civil suit lost its efficacy and steps were taken to withdraw the same.

¶53

Learned counsel for the petitioner submitted that the JDA Tribunal while allowing the reference filed by Hajari Lal Sharma has lost sight that the residents of Jagdamba colony in Naya Kheda Ambabari have right of access to their colony through public road and if the public road is being given to the private person for commercial purposes, the grievance of the residents of the colony will still remain and as such, the JDA had to keep in mind the interest of residents/thousands of people and not the commercial interest of individuals.

¶54

The respondent-JDA has filed reply to the writ petition.

¶55

The respondent-JDA has taken a stand that Shop Nos.A-9 and A-10 were auctioned by the JDA in favour of two persons namely Hajarilal Sharma and Kamlesh Jain respectively. Initially, the respondent-JDA had approved the plan in PRC Public Works Commission on 15.02.1999 but the same was modified on 20.03.2003. The JDA has taken a stand that in pursuance of decision of the Tribunal, original site plan was restored.

¶56

The JDA Authorities have submitted that colony of the petitioners-Society was unapproved till filing of the said reply and

¶57

(6 of 15)

¶58

[CW-3237/2004]

¶59

members of the petitioner-Samiti have approach road to the sector road, through the road behind the Shopping Centre.

¶60

The respondents-JDA Authorities have submitted that the order passed by the JDA Appellate Tribunal dated 03.05.2003 is a well reasoned order and the writ petition, filed by them challenging the said order, was withdrawn. The respondents-JDA Authorities have complied with the order passed by the Tribunal and since there was no interim order passed in favour of the petitioner, no relief can be granted to it now.

¶61

Learned counsel for the private respondent No.5 Mr.Shashank Agarwal has also filed reply to the writ petition. The private respondent No.5 has also submitted before this Court that the shop in question was approved in PRC meeting No.1/1999 dated 16.02.1999 and the same was auctioned on 07.01.2000 and the respondent No.5 being highest bidder with bid of Rs.17,000/per sq.mtr., bid was accepted by the JDA and he deposited the complete price of plot and possession letter was issued in his favour but later on due to influential people living in the adjacent colony of Sector 1 of Vidhyadhar Nagar, got the plan modified without any justification and no opportunity of hearing was afforded to respondent No.5 before changing the place of shop No.A-9 purchased by him.

¶62

The respondent No.5 has further pleaded that the shop in question has been constructed as per original layout plan by him and as such, due compliance of the order passed by the JDA Appellate Tribunal, has been made.

¶63

Learned counsel for the respondent No.5 submitted that colony of the petitioner-Society since was not regularized and

¶64

(7 of 15)

¶65

[CW-3237/2004]

¶66

its residents, as a matter of right, cannot claim that they will have access of the road through Plot No.A-9.

¶67

Learned counsel Mr.Shashank Agarwal appearing for

¶68

the private respondent No.4 submitted that separate reply has been filed on behalf of the respondent No.4. The respondent No.4 has also taken a plea that the Shop No.A-10 was allotted to him since he was a highest bidder, possession letter was also issued in his favour but later on, the JDA Authorities modified the plan without any justification and the place of Shop No.A-10 was changed arbitrarily by the JDA Authorities.

¶69

Learned counsel for the respondent No.4 submitted that in the original map of the Vidhyadhar Nagar Scheme, no road was shown at the place where the plot of Shop No.A-10 was existing and only in order to meet the demand of some influential people living in the adjacent colony to the shop, the JDA Authorities acted arbitrarily.

¶70

The respondents have submitted that the JDA Tribunal has rightly come to the conclusion that the auction purchaser of the plot/shop in question, could not have been deprived from using their property and any order passed by the JDA of modifying the plan, was not in consonance with law.

¶71

This Court finds that S.B. Civil Writ Petition No.10970/2021 has been filed by the petitioners feeling aggrieved against the order dated 23.06.2022, whereby the JDA Tribunal has not passed any ad-interim order after considering the dispute in respect of Shop Nos.9 & 10.

¶72

This Court finds that the petitioners have filed Appeal No.484/2022 before the JDA Tribunal, raising their grievance in

¶73

(8 of 15)

¶74

[CW-3237/2004]

¶75

respect of permission granted by the JDA Authorities to the shop owner of Shop No.A-10.

¶76

Learned counsel for the petitioner submitted that initially S.B. Civil Writ Petition No.9605/2021 was filed by as many as 50 petitioners-residents of Vijay Vihar Colony in Naya Kheda, Jaipur challenging the illegal construction made over the public road at Shop No.A-10. Learned counsel submitted that the Single Bench of this Court on 04.09.2021 dismissed the said writ petition with cost, holding the same to be frivolous.

¶77

Learned counsel submitted that thereafter D.B. Special Appeal (Writ) No.881/2021 was filed before the Division Bench against the order dated 04.09.2021 and the Division Bench after hearing respective parties, set aside the order of the Single Bench and the JDA was directed to examine the complaints regarding encroachment and illegal construction on the public road.

¶78

Learned counsel submitted that the Division Bench further held that those against whom allegations of illegal construction by encroachment over public road were made, such persons were to be given proper notice and then final decision was to be taken by the JDA Authorities, within a reasonable time.

¶79

Learned counsel submitted that in pursuance of the observations made by the Division Bench, the petitioners submitted a representation before the JDA Authorities and the JDA Authorities, after decision of the Division Bench, prepared a site plan in which road has been shown between the shop No.8/9 of 19.6 meter, however, the right of way of the residents of the colony has not been taken care of and the parking area which was meant for the use of commercial complex, is converted which is shown as a public road.

¶80

(9 of 15)

¶81

[CW-3237/2004]

¶82

Learned counsel submitted that the JDA Authorities also took decision on 30.03.2022, whereby they have recommended to maintain the original plan with regard to plot Nos.A-9 & A-10 and found that construction over Plot No.A-9 has already been completed and commercial activities are going on there and the basement has also been constructed over the Plot/Shop No.A-10 and as per site inspection report, the residents of colony have their right of way.

¶83

Learned counsel submitted that the recommendations of the JDA Authorities and the site plan prepared in a wrongful manner, is sub-judice before the JDA Appellate Tribunal and reference application has been filed and in spite of prima facie case in favour of the petitioners, the Court below has wrongly refused to pass any interim order and owner of the shop No.A-10 is going ahead with the construction on public road and as such, this Court needs to interfere and pass interim order and further to give direction to the JDA Tribunal by not permitting any construction to be made during pendency of the reference.

¶84

Learned counsel Mr.Amit Kuri appearing for the JDA has produced note-sheets of the JDA Authorities, whereby decision was taken on 30.03.2022.

¶85

Learned counsel for the respondent submits that the petitioner is guilty of suppression of fact in subsequent writ petition as he has not disclosed that after order passed by the Division Bench on 05.01.2022, D.B. Civil Misc. Review Petition No.10/2022 was filed before the Division Bench and the Division Bench had made it clear that it was an obligation on the concerned Authority to apply their mind to all the objections and complaints of alleged encroachment including the materials which

¶86

(10 of 15)

¶87

[CW-3237/2004]

¶88

have been placed before the Court by the review petitioners. The Court further opined that if the concerned Authority comes to the conclusion that the material which has been placed before the Court has already clinched the issue, then there was no necessity to proceed further on the complaint and it will be well within jurisdiction of the Authority to close the complaint.

¶89

Learned counsel submitted that in view of the order passed by the Division Bench in Review Petition on 08.02.2022, the JDA Authorities conducted the meeting on 30.03.2022.

¶90

Learned counsel submitted that initially on a representation received from the residents of the colony, the plan was amended and right of way of 30 feet was given.

¶91

Learned counsel submitted that the order dated 29.03.2003, modifying the plan, was set aside by the JDA Tribunal and as such, in compliance of JDA Tribunal, the Authorities acted in compliance of the directions.

¶92

Learned counsel further submitted that the grievance raised by the residents of Jagdamba Colony and Vijay Vihar Colony was through a representation dated 04.05.2022 and the Deputy Commissioner JDA, Zone-2 in the presence of residents of the colony, Tehsildar, ATP and Junior Engineer, inspected the site and found that Shop No.A-9 was already operational and in Shop No.A10 basement was already constructed.

¶93

The site inspection report further makes a mention of right of way available to the residents of the colony and accordingly, the JDA Authorities by keeping in mind the interest of all the parties, maintained the original plan of allotting the shop.

¶94

Learned counsel Mr.Mohit Khandelwal appearing for the petitioner submitted that the JDA Authorities in no way can allot

¶95

(11 of 15)

¶96

[CW-3237/2004]

¶97

public area/public road to the private residents and if larger interest of community is to be seen, then any commercial interest of any individual person, cannot be given weightage over the interest of thousands of people.

¶98

Learned counsel further submitted that the residents of colony have their fundamental right to have an access to the public road and it is duty of the JDA Authorities to provide them proper road and commercial interest alone cannot be a factor by which the JDA Authorities should be guided.

¶99

Learned counsel for the private respondents submitted that they are bona-fide purchaser of the property in question and lease deeds have been executed in their favour. Learned counsel submitted that till date the auction proceedings or lease deed issued in their favour have not been put to challenge in appropriate Forum and as such, in the garb of right claimed by certain residents of the colony, the rights of the private respondents cannot be defeated.

¶100

Learned counsel for the petitioner further submitted that the petitioner has also placed on record Annex-25 i.e. report of the Additional Commissioner (Administration) of JDA, whereby he has clearly recommended that right of way to the residents of Naya Kheda; Jagdamba Colony and Vijay Vihar Colony, can be provided from removing the parking area situated between the Plot No.A-8 and A-9.

¶101

Learned counsel submitted that further

¶102

recommendation has been made to allot some other area to the plot holder of A-10 in any of the commercial area/scheme and as such, right of way can be resolved for the colony residents.

¶103

(12 of 15)

¶104

[CW-3237/2004]

¶105

Learned counsel for the JDA submitted that the said report given by the Additional Commissioner (Administration) is after decision which has already been taken by the Authorities on 30.03.2022 and further the said report is only the opinion and it cannot be have any binding effect on the JDA Authorities.

¶106

I have heard the submissions made by learned counsel for the parties and perused the material available on record.

¶107

This Court finds that as far as grievance of the petitioner in S.B. Civil Writ Petition No.3237/2004 is concerned, the JDA Appellate Tribunal while passing the order dated 30.05.2003 has rightly come to the conclusion that the person, who has purchased the property in auction and who was the highest bidder, was wrongly deprived by the JDA Authorities, by not executing lease deed in his favour.

¶108

This Court further finds that if in the original site plan, Shop Nos.A-9 & A-10 were shown as a Commercial Plots and they have been put to auction and in the same plan if public road was not shown over Plot Nos.A-9 and A-10, then any subsequent modification by the JDA Authorities may be due to the demand put forth by certain local residents of nearby colony, could not have resulted into modifying the plan.

¶109

The JDA Tribunal has rightly come to the conclusion that the Authorities have not acted in a proper manner by changing the plan and the persons whose rights were crystallized, after successful bidder, the auction could not have been put to loss by taking unilateral decision even without issuing notices to the parties concerned.

¶110

This Court finds that the JDA Appellate Tribunal has rightly allowed the reference filed by the private respondents

¶111

(13 of 15)

¶112

[CW-3237/2004]

¶113

challenging the action of the JDA Authorities in revising the plan and further not issuing lease deed in their favour.

¶114

This Court further finds that the order passed by the JDA was put to challenge by the petitioner by filing the writ petition in 2003 and there was no interim order in favour of the petitioner and as such, subsequent developments have taken place and the JDA Authorities have complied with the order and the private respondent has already made use of his shop and as such, no fault can be found with the order passed by the JDA Tribunal, while deciding the Reference Application.

¶115

The submission of learned counsel for the petitioner that the JDA Authorities cannot allot public road/public area to the private persons, this Court finds that if the original plan had contained certain areas earmarked as Commercial Area and the same has been allotted by the JDA Authorities by putting the property for auction, it cannot be said that public road/public area, has been allotted to the private persons.

¶116

Had it been a case that public road, which was there in the master plan or approved plan and then the JDA Authorities would have changed the use of same, then probably the things could have been considered in different perspectives.

¶117

It is an admitted case of all the parties that initially when PRC had prepared the plan, the same area was shown as a Commercial area and it was only later on came to be modified on request/representation made by the different residents of the colony of the nearby area.

¶118

The JDA Authorities accordingly had to change the plan and later on when the direction was given by the JDA Tribunal, the decision of the JDA Authorities was treated as bad in the eye of

¶119

(14 of 15)

¶120

[CW-3237/2004]

¶121

law and as such, the JDA Authorities were required to comply with the order passed by the JDA Tribunal and further there was no interim order passed by this Court.

¶122

The submission of learned counsel for the petitioner that interest of thousands of people is required to be considered and even if the plots/shops allotted to the private respondent were shifted to different direction for some time and the same should not have resulted into depriving the residents to make use of the public way, this Court finds that if the JDA Authorities have come to the conclusion that residents have their right of way through other road, which is available and if they cannot have direct access to their colony through commercial area, the same would not give any right to the residents of the colony that they should be given one particular right of way.

¶123

This Court finds that the order passed by the JDA Tribunal dated 30.05.2003, does not require any interference.

¶124

The grievance raised by the petitioner in S.B.Civil Writ Petition No.10970/2021 is in respect of not passing interim order by restraining the private respondents to make construction over the Plot/Shop No.A-10, this Court finds that the JDA Tribunal after coming to know of previous litigation between the parties and the order passed by the Division Bench and further the order passed in Review Petition, if has granted time to the parties to file their response and if has not passed any interim order, it cannot be inferred from any stretch of imagination, that grievance of the petitioners, would not be considered.

¶125

The Court has to consider relevant parameters for grant of ad-interim order or passing any order of Temporary Injunction or Mandatory Injunction. The expectation of the petitioner that the

¶126

(15 of 15)

¶127

[CW-3237/2004]

¶128

Court below ought to have stopped the construction of shop of private respondents, otherwise rights of the residents to use the road will be frustrated, this Court finds that it is for the appropriate Court to take into account the relevant factors and it is not necessary that only by filing of Temporary Injunction Application, the Court is bound to pass interim order and it all depends on the facts of the each case and the kind of litigation which is involved and as such, this Court does not deem it proper to give any direction to the JDA Tribunal to act in a particular manner to grant interim relief to the petitioner.

¶129

This goes without saying that if the petitioners have case in their favour to seek interim relief and when parties have been asked to appear and to file their response, the petitioners have their right to pursue or seek appropriate directions at the relevant time, however, at the time of only issuing notices or seeking reply, it is not justified to hold that the Tribunal has committed any illegality in giving time to the parties for filing their reply and then to consider prayer of interim relief.

¶130

Accordingly, this Court is not inclined to interfere in the order passed by the JDA Tribunal and as such, the present writ petitions are dismissed.

¶131

A copy of this order be placed in connected petition.

¶132

(ASHOK KUMAR GAUR), J

¶133

Himanshu Soni/5 & 60

Vikas Samiti Naya Khera Amba B v. the Jaipur Development Authori

Case brief

What is this about?

What did the court decide?

Vikas Samiti Naya Khera Amba B v. the Jaipur Development Authori

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

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