Rajasthan High Court
Nemi Nagar Vistaar Vikas Samiti vs Jaipur Development Authority on 6 November, 2024
Author: Sudesh Bansal
Bench: Sudesh Bansal
[2024:RJ-JP:45306]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 984/2023
Nemi Nagar Vistaar Vikas Samiti, Registered Office Plot No. 4,
Nemi Nagar Vistaar, Jaipur The Then Secretary, Ajay Kumar
Sharma Son Of Shri Vishnu Dutt Sharma Aged About 64 Years,
Resident Of Plot No. 124, Through Present Secretary Akeel Khan
S/o Jameel Khan Aged About 46 years, Resident Of 72, Nemi
Nagar Extension, Shree Path, Vaishali Nagar, Jaipur.
----Petitioner
Versus
1. Jaipur Development Authority, Through Secretary, Indira
Circle, Jawahar Lal Nehru Marg, Jaipur.
2. Deputy Commissioner, Zone - 7, Jaipur Development
Authority, Indira Circle, Jawahar Lal Nehru Marg, Jaipur.
3. Topkhana Desh Grah Nirman Sehkari Samiti Limited, D-
239, Bihari Marg, Bani Park, Jaipur Through Secretary.
4. Smt. Praveena Kumar Wife Of Shri Sanjay Kumar,
Resident Of B-1/552, 553, 554 Pratap Nagar, Chitrakoot
Yojana, Vaishali Nagar Jaipur.
5. Rahsmi Roopani Daughter Of Shri Balraj Roopani,
Resident Of A-65, Shanti Path, Tilak Nagar, Jaipur.
6. Deepak Sharma Son Of Shri R.C. Sharma, Resident Of 2,
Hathroi Ajmer, Jaipur.
----Respondents
Connected With
S.B. Civil Writ Petition No. 9695/2023
Nemi Nagar Vistar Vikas Samiti, Registered Office - House No. 4,
Nemi Nagar Vistar, Vaishali Nagar, Jaipur, Through Present
President Anju Gupta D/o Ishwer Chandra, W/o Saurabh Gupta,
Aged About 57 Years, R/o 175/A, Shiv Path, Nemi Nagar
Extension, Vaishali Nagar, Jaipur, Rajasthan.
----Petitioner
Versus
1. Station House Officer, Police Station Vaishali Nagar, Jaipur
West, Jaipur.
2. Smt. Praveena Kumar W/o Sanjay Kumar, Aged About 54
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Years, R/o Plot No. 26, Nemi Nagar Vistar, Vaishali Nagar,
Jaipur.
----Respondents
For Petitioner(s) : Mr. R. K. Mathur Sr. Adv. assisted by
Mr. Aniroodh Mathur
Mr. Krishnaveer Singh
Mr. Sunil Kumar Jain
For Respondent(s) : Mr. Jitendra Mitruka
Mr. Saket Pareek
Mr. Aditya Pareek
Mr. Surendar Meel
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
Judgment reserved on : October 23rd, 2024
Judgment Pronounced on : November 6th, 2024
BY THE COURT:
1. In both the writ petitions, petitioner is common i.e. Nemi
Nagar Vistar Vikas Samiti, which is a registered Society
under Registration No. 1042/2008-09 and the issue involved
in both the writ petitions is interconnected, hence, with the
consent of counsel for both parties, both writ petitions have
been heard together and would stand decide by this common
judgment.
2. S.B. Civil Writ Petition No. 984/2023 has been filed by
petitioner-Vikas Samiti under Article 227 of the Constitution
of India, challenging the judgment dated 29.11.2022 passed
by Appellate Tribunal, Jaipur Development Authority (for
short, “JDA Tribunal”), Jaipur in Appeal No. 139/2020,
whereby and whereunder appeal filed by petitioner-Vikas
Samiti under Section 83 of the Jaipur Development Authority
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Act, 1982 (for short, “Act of 1982”) has been dismissed,
consequentially the prayer of petitioner to quash the order
dated 10.04.2015 of the Building and Planning Committee
(for short, “BPC”) meeting of JDA, has been denied so also
the prayer to cancel the lease deeds of respondents No. 4, 5,
and 6 for Plot Nos. 18-A, 18-B, 19, 30, 30-A and 30-B in
Nemi Nagar Vistar Scheme, has been declined. The prayer of
petitioner, in the instant writ petition is that the judgment
dated 29.11.2022 passed by JDA Tribunal and the order
dated 10.04.2015 of BPC be quashed so also the registered
lease deeds of respondents for plots in question be cancelled
and the decision dated 13.02.2015 taken in 225 th BPC
meeting of JDA in respect of developing the lands in question
of abovereferred six plots as facility of Park in the Nemi Nagar
Vistar Scheme, be restored and maintained.
3. S.B. Civil Writ Petition No.9695/2023 has been preferred
by the petitioner-Vikas Samiti under Article 227 of the
Constitution of India, impugning the order dated 29.05.2023
passed in Civil Miscellaneous Appeal No.17/2022 (CIS
No.94/2022) by the Court of Additional District Judge No. 2,
Jaipur Metropolitan II, in respect of Plot No.18-A situated in
Nemi Nagar Vistar Scheme, whereby and whereunder while
setting aside the order dated 09.05.2022 passed by the
Additional Civil Judge and Metropolitan Magistrate No. 3,
Jaipur Metropolitan II, dismissing the application for
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temporary injunction filed by respondent No. 2, the appeal
has been allowed and the order of temporary injunction has
been passed in favour of respondent No.2 and against the
petitioner-Vikas Samiti, not to create hindrance and
interruption in peaceful use and occupation of plot in question
by the respondent No.2-plaintiff. The operative portion of the
order reads as under:-
“vr% vihykÆFk;k @ çkÆFk;k Jherh çoh.kk dqekj dh vksj ls
çLrqr nhokuh fofoèk vihy Lohdkj dh tkdj fo}ku fopkj.k
U;k;ky; }kjk nhokuh fofoèk çkFkZuk i= la-28@2022 ¼347@2022½
Jherh çoh.kk dqekj cuke Fkkukfèkdkjh iqfyl Fkkuk oS’kkyhuxj]
t;iqj egkuxj if’pe o vU; esa ikfjr vk{ksfir vkns’k fnukad 09-
05-2022 vikLr fd;k tkrk gS rFkk çR;FkÊx.k @ vçkFkÊx.k dks
tfj;s vLFkkà fu”ksèkkKk ikcUn fd;k tkrk gS fsd os oknxzLr Hkw[k.M
ds lEcUèk esa fcuk fofèkd çfØ;k viuk;s bl Hkw[k.M la- 18&, ds
lEcUèk esa fdlh çdkj dh dksà dk;Zokgh] vojksèk] ckèkk ,oa gLr{ksi
ugÈ djsA
vihy [kpkZ i{kdkjku viuk&viuk Lo;a ogu djsaxsA
vkns’k dh çfr ds lkFk fopkj.k U;k;ky; dk vfHkys[k
fHktok;k tkosA”
S.B. Civil Writ Petition No.984/2023
4.1 Petitioner-Vikas Samiti has come up with a case that
Nemi Nagar Vistar Colony was carved out and developed by
the Topkhana Desh Grah Nirman Sehkari Samiti Limited
(respondent No.3 herein) in the year 1981 and the layout
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plan of colony was technically approved by the JDA in its 2 nd
BPC meeting dated 19.06.1985. In such layout plan, three
facility areas at different places were shown but on one
facility area, later on, six residential plots bearing No. 18-A,
18-B, 19, 30, 30-A and 30-B were carved out by the
cooperative society and in 115th meeting of BPC dated
17.01.2008, decision was taken by JDA to approve such
layout plan and finally, same has been approved on
23.04.2008.
4.2 The Vikas Samiti has further pleaded that one Reference
Petition bearing No. 271/2009 before the Appellate Tribunal,
Jaipur Development Authority, Jaipur, invoking scope under
Section 83 of the Act of 1982 was filed by the Samiti, but
same was dismissed vide order dated 24.08.2009 as not
maintainable and thereafter, petitioner-Vikas Samiti invoked
Writ Jurisdiction of High Court under Article 226 of the
Constitution of India by filing a D.B. Civil Writ (PIL) Petition
No. 12990/2011.
4.3 It is the case of Vikas Samiti that during course of PIL
Petition, in 225th meeting of JDA dated 13.02.2015, a decision
was taken by JDA to develop the area of such six plots as
Park, in view of the factual matrix that physical possession of
plots has not been delivered to the allottees nor the names of
allottees are included in the list of Members of the Nemi
Nagar Vistar Scheme, developed by the cooperative society
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and further such decision dated 13.02.2015 was again
affirmed in 226th BPC meeting dated 10.03.2015. However, in
the next 227th BPC meeting convened on 10.04.2015, it was
observed that the decision dated 13.02.2005, to develop a
park on the area of six plots was taken erroneously, since in
respect of such six plots, final layout plan had already been
approved in the year 2008, hence, the decision of BPC
meeting dated 13.02.2015 was revoked and the approval and
existence of abovereferred six plots in the Scheme was
decided to be kept intact in accordance with the amended
layout of Scheme, already approved by the JDA in the year
2008.
4.4 It is undisputed that such subsequent facts came in
existence during course of the PIL petition, therefore, the
petitioner-Vikas Samiti was allowed to carry out necessary
amendments in the PIL Petition, in respect of such
subsequent events i.e. about decision of BPC meeting dated
13.02.2015 and its revocation in the another BPC meeting
dated 10.04.2015. The amended PIL Petition was filed, but
later on, that PIL Petition was withdrawn by the Vikas Samiti
with liberty to file an appeal against the order dated
10.04.2015 of the BPC 227 th meeting, before the Appellate
Tribunal, JDA. The liberty, prayed for, was granted by the
Division Bench of Rajasthan High Court in D.B. Civil Writ (PIL)
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Petition No. 12990/2011 vide order dated 07.02.2020 and
thereby the PIL petition came to be dismissed as withdrawn.
4.5 In furtherance to such liberty, petitioner-Vikas Samiti
filed an appeal against the order of 227 th meeting of BPC
dated 10.04.2015, before the Appellate Tribunal, JDA, which
came to be registered as Appeal No.139/2020.
4.6 It has also been pleaded that soon after dismissal of the
PIL petition, JDA issued six separate lease deeds of all six
plots in favour of respondents No.4, 5 & 6 on 14.02.2020 and
lease deeds were also registered on 25.02.2020.
4.7 The Appeal No.139/2020, filed by petitioner-Vikas Samiti
was heard and considered on merits by the JDA Tribunal, but
finally has been dismissed on merits vide judgment dated
29.11.2022, whereagainst the instant writ petition has been
filed.
5. Learned Senior Counsel appearing for and on behalf of
petitioner-Vikas Samiti, in his long drawn arguments, has
raised following contentions:-
(i) The layout plan of Nemi Nagar Vistar Colony had already
been technically approved in the 2nd BPC meeting of JDA
dated 19.06.1985 and in such layout plan, the area of six
plots in question was marked and shown as facility area for
the colony, therefore, accepting another layout plan of this
colony, submitted by the cooperative society with carving out
additionally six plots bearing No. 18-A, 18-B, 19, 30, 30-A
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[2024:RJ-JP:45306] (8 of 61) [CW-984/2023]and 30-B in such facility area, in the 115 th BPC meeting of
JDA dated 17.01.2008 as much as sanctioning the amended
layout plan on 23.04.2008, is absolutely illegal act on the
part of JDA and such subsequent amended layout plan
approved in the year 2008 stands contrary to the first
technically approved layout plan dated 19.06.1985, hence,
the approved amended layout plan dated 23.04.2008 should
be quashed and the first layout plan of colony, technically
approved on 19.06.1985 deserves to be restored.
(ii) Cancellation of first layout plan dated 19.06.1985 by the
Secretary of JDA vide order dated 17.06.1992 is
misconceived and without authority of law, since such
cancellation was made on an erroneous premise that the land
of Khasra No.134 of Village Beed Khatipura on which the
Nemi Nagar Vistar Colony was developed, has come under
acquisition whereas, later on it was clarified that the land of
colony never came under acquisition, hence in such
eventuality, the first layout plan should be held and treated to
be restored automatically, which deserves to be acted upon.
(iii) It has been strenuously contended that it was not within
the domain and jurisdiction of the cooperative society to
carve out new plots in the colony, once the proceedings under
Section 90-B of Land Revenue Act had commenced on
18.12.2002 because thereafter, the land had been vested in
JDA, therefore, mere approval of amended layout plan on
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[2024:RJ-JP:45306] (9 of 61) [CW-984/2023]23.04.2008, does not worth merit acceptance and such
amended layout plan of 2008, does not confer any right, in
favour of the plot holders of plot Nos. 18-A, 18-B, 19, 30, 30-
A and 30-B, which were indeed carved out in the facility area
of the colony.
(iv) It has been contended that the petitioner-Vikas Samiti
made complaints and raised the issue against allowing to
carve out and granting approval to additionally created plots
in the facility area of colony, but when nothing happened,
then one Reference Petition No.271/2009 was filed by
petitioner-Vikas Samiti, before the JDA Tribunal, invoking
jurisdiction of Tribunal under Section 83 of the Act of 1982,
but that reference petition came to be dismissed by the JDA
Tribunal as not maintainable vide order dated 24.08.2009.
Thereafter, one D.B. Civil Writ (PIL) Petition No. 12990/2011
was filed by the petitioner-Vikas Samiti, before the Division
Bench of Rajasthan High Court, and in this PIL petition, vide
order dated 28.04.2015, JDA was restrained not to allow any
construction on the six plots in question in Nemi Nagar Vistar
Colony.
(v) Learned Senior Counsel for petitioner-Vikas Samiti
canvassed that the JDA in its 225 th BPC meeting dated
13.02.2015, took a decision to develop a Park on the area
where six plots were carved out, taking into consideration the
factual matrix that in the original layout plan of 1985, such
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area was marked as facility and the possession of six plots
have never been delivered to the plot holders nor the name
of plot holders is included in the list of Members of the
cooperative society of this Scheme. Learned Senior Counsel
has laid much emphasis on this decision dated 13.02.2015
and would contend that such decision was again approved
and ratified in 226th BPC meeting convened on 10.03.2015,
wherein an inadvertent error occurred in minutes of meeting
dated 13.02.2015, indicating incorrect plot No.18, instead of
correct plot No.19, which was rectified and the plot No.18
was replaced by plot No.19.
(vi) Learned Senior Counsel also drew attention of this Court
upon the various other notings, written on the file of JDA and
certified copies of few order-sheets of JDA have been placed
on record, along with rejoinder and additional affidavits filed
by petitioner-Vikas Samiti, just to show that indeed on the
record of JDA, the land of these six plots in question was
recorded as a land of facility area for the Nemi Nagar Vistar
Colony, yet six plots, carved out by cooperative society on
this facility area, were approved by the JDA in its 115 th &
116th BPC-LP meetings.
(vii) It has been argued that the JDA committed grave
illegality and arbitrariness in revoking the decision of BPC-LP
meeting dated 13.02.2015 in 227 th BPC-LP meeting dated
10.04.2015. The decision taken in the 227 th BPC meeting of
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JDA convened on 10.04.2015, is absolutely arbitrary, illegal,
perverse and has been taken by the JDA by circumventing
and ignoring the previous record of JDA as much as has been
passed without providing any opportunity of hearing the
petitioner-Vikas Samiti, hence, the revocation of the previous
decision dated 13.02.2015 and to sustain the existence of six
plots in the colony, in accordance with the amended layout
plan of colony, approved on 17.01.2008/23.04.2008, is ex-
facie illegal and is an arbitrary decision of JDA, which clearly
stands violative to Articles 14 and 21 of the Constitution of
India as also against the principle of natural justice and fair
play. The facility area of the colony cannot be allowed to be
abolished by allowing to carve out new and additional
residential plots by the cooperative society in the facility area,
and same is against the established legal proposition of law
as also would frustrate the valuable legal rights of the
Members of petitioner-Vikas Samiti, who will be deprived
from enjoying the benefits of Park and of fresh air, light, etc.
through this facility area to their respective plots in the
scheme.
(viii) It has been strongly contended by the learned senior
counsel for petitioner-Vikas Samiti that the JDA Tribunal has
committed grave illegality, perversity and jurisdictional error
in dismissing the appeal vide judgment dated 29.11.2022 and
affirming the decision of BPC meeting dated 10.04.2015, and
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thereby resultantly the approval and existence of six
residential plots in the facility area has been upheld. Hence,
not only the impugned judgment dated 29.11.2022 deserves
to be quashed and set aside, but the decision of BPC meeting
dated 10.04.2015 be also set-aside and simultaneously the
decision taken in the 225th BPC meeting of JDA convened on
13.02.2015 is liable to be restored so that the facility area of
colony may be maintained and saved in the larger interest of
the members of the petitioner-Vikas Samiti.
(ix) Learned Senior Counsel has strongly relied upon the
decision of Division Bench of the Rajasthan High Court,
passed in D.B. Civil Writ (PIL) Petition No.13084/2009
titled as ‘Rakesh & Ors. Vs. The State of Rajasthan &
Ors.’ reported in [(2011) 4 WLC 91], wherein, the
Division Bench while placing reliance on the theory of the
doctrine of public trust as developed by the Roman Empire
and was discussed in celebrated judgment of M.C. Mehta
and Kamal Nath & Ors. [(1997) 1 SCC 388], it was
expounded that the land area once earmarked and set apart
for a facility area/ children’s park, the same becomes a public
trust property and the State had no jurisdiction to convert the
property of public trust into a private residential plot and
finally the allotment of residential plot from the utility area
and its regularization in favour of private respondent was
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declared illegal, arbitrary and violative to the fundamental
rights of the residents of the Kanota Bagh locality.
(x) Apart from above, learned senior counsel for petitioner-
Vikas Samiti has also referred and relied upon the following
judgments as well:-
(a) Machavarapu Srinivasa Rao & Ors. Vs.
The Vijayawada, Guntur, Tenali, Mangalagiri
Urban Development Authority & Ors. [(2011)
12 SCC 154].
(b) Dr. G.N. Khajuria & Ors. Vs. Delhi Development Authority & Ors. [AIR (1996) SC 253]. (c) Banglore Medical Trust Vs. B.S. Muddappa & Ors. [AIR (1991) SC 1902]. (d) Perala Jyotsna & Ors. Vs. The State of Andhra Pradesh & Ors. [MANU/AP/0317/2020]. (e) Sri Balaji Park Residents Welfare Association Vs. Vice-Chairman, Visakhapatnam Urban Development Authority & Ors. [MANU/AP/0660/2001].
6. Per contra, respondents including JDA, cooperative
society and the private respondents have resisted the writ
petition and have prayed for its dismissal.
7.1 JDA has filed reply stating, inter alia, that the
layout plan of Nemi Nagar Vistar colony, proposed to be
technically approved in the year 1985 was cancelled vide
order dated 17.06.1992 by the JDA, and it has been denied
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[2024:RJ-JP:45306] (14 of 61) [CW-984/2023]that the land in question was agreed to be left by JDA for
facility of the scheme.
7.2 It has been replied by the JDA that thereafter, fresh
proceedings under Section 90-B of Land Revenue Act were
commenced in the year 2002 and in the BPC-LP meeting
No.115 and 116 dated 17.01.2008 and 23.04.2008, the
layout plan of Nemi Nagar Vistar Scheme was approved. As
per the approved layout plan of Scheme, the land in question
is not the land for facility in the Scheme, but residential plot
Nos. 18-A, 18-B, 19, 30, 30-A and 30-B exist thereupon and
two other facility areas at other places in the scheme were
recognized and approved.
7.3 It has been replied by the JDA that decision in BPC-
LP meeting dated 13.02.2015, to develop the land area of
these six plots as facility, was erroneously taken, hence, later
on, such decision was recalled in the 227 th BPC-LP meeting
dated 10.04.2015, taking into consideration the fact that the
six plots carved out and existed over the land in question
have already been approved in the layout plan of the colony
in the year 2008 itself.
7.4 It has been denied that such six plots have been
carved out over the facility area of colony.
7.5 JDA has replied that lease deeds in respect of all six
plots have been issued and registered.
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7.6 It has been contended that the case pleaded and
argued on behalf of petitioner-Vikas Samiti, claiming the land
of six plots to be facility area of the colony is without
substance.
7.7 The JDA Tribunal, has not committed any perversity
in affirming the order of BPC-LP dated 10.04.2015 and has
rightly rejected the appeal thereagainst vide judgment dated
29.11.2022, after appreciating the entire relevant record, the
impugned judgment does not call for any interference by the
High Court in the instant writ petition, as such writ petition
deserves to be dismissed.
8.1. The cooperative society-respondent No.3 and
private respondents No.4, 5 and 6, who are plot holders of
plots in question have also filed separate replies to the writ
petition. In their replies, various preliminary objections and
other contentions have been raised to reject the writ petition.
8.2 It has been pointed out that the case of petitioner-
Vikas Samiti to claim the land in question as facility for Nemi
Nagar Vistar Colony on the basis of layout plan, allegedly
approved in 2nd BPC meeting of JDA dated 19.06.1985 has
already been rejected by the JDA Tribunal while dismissing
the Reference Petition No.271/2009 vide judgment dated
24.08.2009, which has attained finality.
8.3 Further, the challenge made by the Vikas Samiti to
the layout plan of colony, approved and sanctioned by JDA in
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BPC-LP meeting No.115th and 116th dated 17.01.2008 and
23.04.2008, through filing D.B. Civil Writ (PIL) Petition No.
12990/2011, has also failed and Vikas Samiti itself has not
pressed and withdrawn its PIL petition.
8.4 It has been pointed out that the appeal filed by
petitioner-Vikas Samiti before the JDA Tribunal was solely
based on the decision dated 13.02.2015 taken in 225 th BPC-
LP meeting and such decision has later on been revoked in
the next 227th BPC-LP meeting dated 10.04.2015.
8.5 It has been pointed out that the challenge to the
order of 227th BPC-LP meeting dated 10.04.2015 made by
petitioner-Vikas Samiti has been rejected on merits vide
judgment dated 29.11.2022 passed by the JDA Tribunal and
now in the guise of challenging such judgment, petitioner-
Vikas Samiti wants to take another attempt to claim the land
in question as facility, fundamentally on the basis of allegedly
technically approved layout plan of the colony wayback on
19.06.1985, which indeed was not final and never came in
existence and operation.
8.6 Similarly, challenge to the layout plan of the colony
approved in 115th & 116th BPC-LP meetings dated 17.01.2008
& 23.04.2008, made in the instant writ petition is also
misconceived, since such challenge made by petitioner-Vikas
Samiti in the D.B. Civil Writ (PIL) Petition No. 12990/2011
has already been withdrawn by the Vikas Samiti, with liberty
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to challenge the BPC-LP meeting order dated 10.04.2015
only, by way of filling appeal before the JDA Tribunal.
8.7 The attention of this Court has been drawn to the
prayer made by petitioner-Vikas Samiti in the amended PIL
petition, which has also been dismissed as not pressed vide
order dated 07.02.2020 and liberty was granted to petitioner-
Vikas Samiti only, to avail the remedy of filing appeal against
the order of BPC-LP meeting dated 10.04.2015.
8.8 It has been submitted that in the guise of filing
instant writ petition, filed under Article 227 of the
Constitution of India against the judgment dated 29.11.2022
passed by the JDA Tribunal, the petitioner-Vikas Samiti
cannot be allowed to re-open the scope of PIL petition, which
has already been not pressed by the petitioner-Vikas Samiti
on 07.02.2020. For ready reference, the prayer of amended
PIL petition is being extracted hereunder:-
“It is therefore, most respectfully prayed that
your Lordships may be pleased to accept & allow
this writ petition and be further pleased:-
(i) To quash the sanction of layout plan dated
23.04.2008 (Annexure-11) to the extent it
changes the character of facilities/park into
residential plots & widening the roads from 30′ to
40′ as compared to plan sanctioned in 1985
(Annexure 1).
(ii) To direct the respondent No.1 to
preserve, keep develop and maintain the area
shown for facilities and parks in the layout plan
1985 for these purposes only and to remove all
encroachments from them it made in view of
revised layout plan.
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(iii) To declare all action allotments if any
including of residential/commercial plots as per
revised lay out plan in relation to the facility
area/parks shown in the lay out plan of 1985 as
illegal and void abinitio and to direct the
respondent no.1 to remove encroachments in
facility areas forthwith if any.
(iv) To direct competent authorities lodged
FIR against those who to are responsible for
aforesaid action as per circular dated 06.09.2007.
(v)To quash and set aside the decision taken
by the B.P.C. (L.P.) in its meeting No. 227 dated
10.4.2015 and in furtherance thereof to quash
and set aside the approved plan, up to the extent
of creating, plots over facility area, issued in
succession of the meeting No. 227 of B.P.C. (L.P.)
dated 10.4.2015.
(vi) To restore the decision taken by the
B.P.C. (L.P.) in its meeting No. 225 dated
10.2.2015 and to restore the revised map
released after the decision of the B.P.C. (L.P.) in
its meeting No. 226 dated 10.3.2015.
(vii) To direct the respondents to develop the
Park over Plots No 19, 18-A, 18-B, 30, 30-A and
30-B, by manner of providing the required
amenities.
(viii) To issue any other relief which this
Hon’ble Court deems just and proper in the facts
and circumstances of the case.
(ix) Costs of the writ petition may also be
awarded in favour of the petitioners.”
8.9 It has been pointed out that the petitioner-Vikas
Samiti is virtually trying to seek the similar relief, by way of
instant writ petition which was prayed in the PIL petition,
which is beyond the scope of this writ petition, filed under
Article 227 of the Constitution of India and jurisdiction of
High Court in this writ petition is confined to look into the
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[2024:RJ-JP:45306] (19 of 61) [CW-984/2023]
perversity and jurisdictional error in the impugned judgment
dated 29.11.2022 passed by the JDA Tribunal. For ready
reference, the prayer made by petitioner-Vikas Samiti in the
instant writ petition is being reproduced hereunder:-
“It is, therefore, most respectfully prayed
that your lordships may graciously be pleased to
allow this writ petition and;
(i) By an appropriate writ, order or direction,
judgment / order dated 29.11.2022 passed by the
JDA Tribunal may be quashed and set-aside.
(ii) By further appropriate writ, order or
direction, the decision of the 227th BPC held on
10.04.2015 with respect to the colony of the
petitioner may kindly be quashed and set- aside
and the respondents be directed to act upon their
earlier decision taken in the 225th & 226th BPC.
(iii) By further appropriate writ, order or
direction, the amended layout plan as approved
on 23.04.2008 may kindly be quashed and set-
aside and the layout map of 1985 be restored.
(iv) By further appropriate writ, order or direction,
Plots No. 18A, 188, 19, 30, 30A & 30B be
decalred to be part of facility area of Nemi Nagar
Vistaar Colony.
(v) Cost of the litigation may kindly be awarded in
favour of petitioner.”
8.10 It has been fervently and vehemently argued by
counsel for respondents that the impugned judgment dated
29.11.2022, does not suffer from any vice of arbitrariness,
perversity or jurisdictional error which warrants interference
by the High Court in exercise of its limited jurisdiction under
Article 227 of the Constitution of India.
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[2024:RJ-JP:45306] (20 of 61) [CW-984/2023]
8.11 While referring the scope of Article 227 of the
Constitution of India, following judgments have been relied
upon to contend that the High Court does not act as Court of
Appeal and the scope of interference is very limited and
extremely narrow:-
1. Nagendra Nath Bora & Ors. Vs. The
Commissioner Of Hills Division and Appeals,
Assam & Ors., reported in [AIR (1958) SC 398].
2. Syed Yakoob Vs. K.S. Radhakrishnan &
Ors.,reported in [(1963) SCC OnLine SC 24].
3. Sugarbai M. Siddiq & Ors. Vs. Ramesh S.
Hankare (D) by Lrs., reported in [(2001) 8 SCC
477].
9. Heard and considered.
10. Having considered the rival contentions made by and on
behalf of both sides, following points for consideration arise in
the instant writ petition, which are required to be adjudicated
and answered by this court:
(i) Whether the six plots in question bearing Plot Nos. 18-A,
18-B, 19, 30, 30-A and 30-B, in Nemi Nagar Extension
Scheme, Vaishali Nagar, Jaipur, were carved out in the facility
area of scheme?
(ii) Whether the judgment of JDA Tribunal dated
24.08.2009, dismissing the Reference Petition No.271/2009
filed by petitioner-Vikas Samiti and the withdrawal of D.B.
Civil Writ (PIL) Petition No. 12990/2011, filed by petitioner-
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[2024:RJ-JP:45306] (21 of 61) [CW-984/2023]
Vikas Samiti vide order dated 07.02.2020, have any adverse
effect against the petitioner-Vikas Samiti, for claiming the
relief prayed in the instant writ petition?
(iii) Whether the decision dated 13.02.2015 taken in 225th
BPC-LP meeting of JDA to develop the area of six plots in
question as facility-park for common use by the Members of
petitioner-Vikas Samiti, was illegally revoked in the 227th BPC
meeting dated 10.04.2015, and the decision dated
13.02.2015 is liable to be restored?
(iv) Whether the judgment impugned herein dated
29.11.2022 passed by the JDA Tribunal requires any
interference by the High Court in exercise of its jurisdiction
under Article 227 of the Constitution of India?
(v) Whether the registered lease deeds of six plots in
question, issued by the JDA in favour of the respondent
Nos.4, 5 & 6 are liable to be cancelled?
11. At the outset, it has been noticed by this Court that the
foundation of the petitioner-Vikas Samiti to claim the lands of
six plots in question as facility area of the Nemi Nagar Vistar
Scheme, is fundamentally based on the first layout plan of
the scheme which has been said to be technically approved
by the JDA in 2nd BPC-LP meeting dated 19.06.1985. The
copy of minutes of meeting dated 19.06.1985 and the layout
plan have been placed on record by the petitioner-Vikas
Samiti. A bare perusal of the minutes of BPC meeting dated
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[2024:RJ-JP:45306] (22 of 61) [CW-984/2023]
19.06.1985 goes to show that the Nemi Nagar Extension
Scheme was developed as a residential colony by the
Topkhana Desh Grah Nirman Sehkari Samiti Limited and
layout plan was proposed by the society for approval by JDA,
which was taken into consideration in BPC-LP meeting dated
19.06.1985 in second series of schemes at Serial No.6. From
perusal of minutes of meeting dated 19.06.1985, it is difficult
to conclude and discern that in such meeting dated
19.06.1985, the layout plan of scheme, showing the area of
lands in question as facility of the scheme, was approved
either technically or finally rather, such layout plan of scheme
was kept under consideration with following observations,
which were made in the meeting and same reads as under:
“Øe la[;k&6 dh ;kstuk ds ckjs esa fu.kZ; fy;k x;k
fd 750 oxZ xt ls cMs Hkw[k.Mksa dks NksVk dj lfefr ls iqu%
la’kksf/kr uD’kk ekaxk tk;A”
12. This Court finds that the layout plan of scheme which
has been alleged to be technically approved in the BPC-LP
meeting dated 19.06.1985 and has been enclosed as Annx.3
along with the writ petition, does not show and prove that
same is an approved layout plan by the JDA nor such layout
plan bears signatures of respective authorities of JDA and the
Members, who convened the BPC meeting dated 19.06.1985.
At the most, such layout plan may be considered as a
proposed plan by the cooperative society for seeking its
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[2024:RJ-JP:45306] (23 of 61) [CW-984/2023]
approval in the BPC meeting but cannot be held as an
approved layout plan of the scheme by JDA.
13. This Court further finds that during course of the
consideration of such proposed layout plan of Nemi Nagar
Vistar Scheme, but before its approval, such proposed layout
was dropped and turned down by the JDA and the decision of
cancellation of such proposed layout plan was informed by
the Secretary of JDA to the Secretary of cooperative society
vide letter dated 17.06.1992. The issuance of letter dated
17.06.1992 by the JDA is an undisputed fact. For ready
reference, the letter dated 17.06.1992 is being reproduced
hereunder:
“Øekad%,Q&3¼33½¼19½tfoizk@,y-lh-#@85@Mh&
lfpo]
rksi[kkuk ns’k x`g fuekZ.k lgdkjh lfefr fy0]
t;iqjA
fo”k;%& lfefr }kjk xzke chM+ [kkrhiqjk ds [k-ua- 134 ij izLrqr
;kstuk useh uxj foLrkj ds ekufp= vuqeksnu ckcrA
mijksDr fo”k;kUrxZr ys[k gS fd [k-ua- 134 xzke chM+ [kkrhiqjk
izkf/kdj.k dh vkokfIr/khu gS rFkk izkf/kdj.k dh fp=dwV vkoklh; ;kstuk esa
lfEefyr gSA
vki }kjk izkf/kdj.k esa izLrqr ;kstuk [k-ua- 134 xzke chM+ [kkrhiqjk ij
izLrkfor gS vr% vkidh mDr ;kstuk usehuxj foLrkj ds ekufp= vuqeksnu
ds izLrkoksa dks vkokfIr/khu Hkwfe ij gksus ds dkj.k fujLr fd;k tkrk gSAlfpo
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[2024:RJ-JP:45306] (24 of 61) [CW-984/2023]fnukad
Øekad%,Q&3¼33½¼19½tfoizk@,y-lh-#@85@Mh
izfrfyfi& vfrfjDr dyDVj ¼d`f”k Hkwfe :ikUrj.k t;iqj½ dks Hkstdj ys[k
gS fd [k-ua- 134 xzke chM+ [kkrhiqjk izkf/kdj.k dh vkokfIr/khu gS vr% bl
Hkwfe ij fdlh Hkh lgdkjh lfefr ;k vU; }kjk vkids ;gka izLrqr
:ikUrj.k ds izLrkoksa dks fujLr dj voxr djkosaA
lfpo”
14. Thus, it stands clear that the proposed layout plan dated
19.06.1985 of society was not approved, but cancelled by the
JDA. The contention of learned senior counsel for petitioner-
Vikas Samiti is that the first layout plan of the scheme dated
19.06.1985 was erroneously cancelled by JDA, on the
premise that the land of scheme has fallen under the
acquisition whereas this fact was found incorrect. Therefore,
the contention of counsel for petitioner is that the
cancellation of layout plan vide letter dated 17.06.1992 is
meaningless and Letter dated 17.06.1992 virtually has
rendered non-est and was issued without authority of law,
hence, the submission is that the first layout plan dated
19.06.1985 be treated as revived. But, in the opinion of this
Court, such contention of counsel for petitioner, cannot be
accepted for the simple reason that firstly it is a clear case of
JDA that layout plan of scheme, considered in the BPC
meeting dated 19.06.1985 has already been cancelled and
secondly it has never been the case of petitioner before the
Tribunal.
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In addition, as has already been observed hereinabove
that the layout plan dated 19.06.1985 is not an approved
layout plan by JDA, but same was merely a proposal of the
society and such proposed layout plan had been cancelled
and turned down by the JDA. The decision of JDA to turn
down such proposed layout plan as indicated in the letter
dated 17.06.1992, extracted hereinabove, was never put to
challenge either by petitioner-Vikas Samiti or by the
cooperative society at any point of time. Therefore, the plea
of treating the letter dated 17.06.1992 of JDA as non-est and
revival of the layout plan dated 17.06.1995, is absolutely
deemed baseless and preposterous, which has been raised
just as a fluke in the air. Thus, such plea is wholly devoid of
substance, hence, is hereby outrightly rejected.
15. It appears from the record that Nemi Nagar Vistar
Scheme was developed by the cooperative society on the land
of Khasra No.124/3, 127/3, 134/1, 141, 143/1 and 143/2 at
village Khatipura, Tehsil Jaipur over the land of total 46 bigha
6 biswa situated towards eastern side of 200 ft. Bye-Pass
Road. It has already been held and observed hereinabove
that the first layout plan of the scheme proposed by
cooperative society, although was considered in the BPC-
Layout plan meeting dated 19.06.1985 but was not approved
and before its approval, same has been cancelled and turned
down by the JDA vide letter dated 17.06.1992. Otherwise
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[2024:RJ-JP:45306] (26 of 61) [CW-984/2023]
also as per the old scheme, even after approval of the layout
plan of scheme by the JDA, same was subject to conversion
of the land use by the competent authority of State
Government and for this purpose the technically approved
plan was required to be sent to the Additional Collector
(Agricultural Land Conversion Officer), to the Collectorate
Office. Thus, firstly the layout plan was not approved in the
BPC meeting dated 19.06.1985 and even if presumed to be
technically approved, as alleged by the petitioner-Vikas
Samiti, same was not sent for conversion of land use by the
competent authority. Therefore, it can safely be held and
observed that the JDA did not approve and recognized the
layout plan of Nemi Nagar Vistar Scheme on 19.06.1985 at
any point of time and more over such proposed layout plan
had been cancelled and turned down by the JDA vide letter
dated 17.06.1992, which had attained finality. In this view,
the prayer of petitioner to revive and restore the layout plan
of 1985 and to act upon the same, for the purpose of
declaring the land in question as facility area for the Nemi
Nagar Vistar Scheme is devoid of substance and is hereby
rejected.
16. It is noteworthy and factually undisputed fact that the
cooperative society again submitted layout plan of Nemi
Nagar Vistar Scheme by adding certain additional lands for
approval by the JDA. In the meanwhile, new scheme for grant
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[2024:RJ-JP:45306] (27 of 61) [CW-984/2023]
of approval, in form of insertion of Section 90-B in the
Rajasthan Land Revenue Act, 1956 r/w Section 102-A of
Rajasthan Land Revenue Act, 1956 (for short, “the Act of
1956”) and 54-B of the JDA Act, have come in force,
therefore, the JDA undertook the proceedings under Section
90-B and the new layout plan of scheme of Nemi Nagar Vistar
was placed for approval before the BPC-LP meeting of JDA.
17. In the BPC-LP meetings dated 17.01.2008 and
23.04.2008, the new and amended layout plan of scheme
was considered for approval and in view of the circular of the
State Government dated 06.09.2007, the scheme was
approved in ratio of 70:30. The minutes of meetings dated
17.01.2008 and 23.04.2008 are available on record and from
perusal of minutes of meeting dated 23.04.2008, in agenda
item No.19, it appears that the petitioner Vikas Samiti
actively participated in the process of approval of scheme and
on its prayer the width of roads were widened from 30 ft. to
40 ft. in order to maintain the ratio of 70:30 so as to ensure
the approval of scheme.
18. It is worthy to note that the land in question was not
shown as facility in the scheme but six plots in question have
been shown to be carved out on such land, which were
approved by JDA while approving the layout plan in meeting
dated 23.04.2008. Thus, it is an established fact on record
that the Nemi Nagar Vistar Scheme was approved by the JDA
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[2024:RJ-JP:45306] (28 of 61) [CW-984/2023]
in BPC-LP meetings dated 17.01.2008 and 23.04.2008 and
the approved layout plan of scheme clearly shows the
existence and approval of six plots No. 18-A, 18-B, 19, 30,
30-A & 30-B, over the land in question as much as the land in
question was neither shown as facility nor was reserved for
facility of the scheme.
19. Petitioner-society has questioned the approved layout
plan of Nemi Nagar Vistar Scheme dated 23.04.2008 and it
has been pointed out that in the first layout plan of the
cooperative society, land in question was kept reserved for
facility of scheme and plot No.19,20,29 and 30 carved out on
such area were crossed. The attention of Court has been
invited to the letter dated 01.06.1985 issued by the Assistant
Town Planner (Ann.52) to urge that these plots No.19,20,29,
30 were reserved for facilities and not recommended for
conversion. The attention of Court has also been invited to
the note-sheet dated 08.01.2008 (Ann.11) available on
record of JDA. The note-sheets Nos.400, 401, 402, 403, 425
and 426 have also been placed on record as Annexure-AA2
with the additional affidavit dated 23.10.2024.
Note-sheet dated 08.01.2008, already enclosed with the
writ petition as Annx.11 has again been filed with additional
affidavit as Annx.A-5. Perusal of such note-sheets/ order-
sheets of the JDA record goes to show that as far as first
layout plan considered in BPC meeting dated 19.06.1985 had
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[2024:RJ-JP:45306] (29 of 61) [CW-984/2023]
been treated as cancelled throughout and although thereafter
from the side of petitioner-Vikas Samiti demand was put forth
to keep the area of land in question reserved for facility but
same was rejected by JDA and new layout plan of the scheme
submitted by the society with additionally carved out new
plots to adjust the other members of society in the scheme
was approved after consultation from the Joint Registrar
(Cooperative) including the approval of six plots in question
bearing Plot Nos.18-A, 18-B, 19, 30, 30-A and 30-B. It has
also transpired from the perusal of the note-sheets that not
only the six plots in question but in total 54 plots were
additionally carved out by the society to adjust its members
in the scheme of new layout plan since for few of the
members to whom shops were allotted, same were not
approved and for others, due to widening the width of road,
size of their plots was squeezed. It is also apparent from the
record that the petitioner society was well aware about the
approval of the new layout plan of Nemi Nagar Vistar Scheme
in the year 2008 by the JDA wherein existence of six plots in
question in the scheme also approved by the JDA and
thereafter camp was also organized in the colony to
regularize the other plots in the Nemi Nagar Vistar Scheme in
accordance with the approved layout plan dated 23.04.2008.
20. It appears from the record that the petitioner-society,
despite having knowledge about the approved layout plan
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[2024:RJ-JP:45306] (30 of 61) [CW-984/2023]
dated 23.04.2008 with 54 additional plots including six plots
in question in the scheme and organization of camp to
regularize the plot in accordance with such layout plan of
Nemi Nagar Vistar Scheme, did not opt to challenge the
approved layout plan dated 23.04.2008, more particularly in
respect of approval of the six plots in question over the area
of land in question which was claimed by the petitioner-Vikas
Samiti as an area for facility of the scheme.
21. It appears that in the aforesaid layout plan, the other
facility area at two different places were left out in the
scheme and this fact was admitted by the petitioner-Vikas
Samiti as well in the complaint made by the Samiti. From
record, it is an admitted case of Samiti that the petitioner-
Vikas Samiti made a written complaint dated 06.10.2008 to
the Commissioner, JDA and then another complaint dated
21.02.2009 to the State Government (Annx. 9 and 10)
stating inter alia that on 10th and 11th July, 2008, a
regularization camp of the Nemi Nagar Vistar Scheme was
organized wherein on the land in question, plots have been
approved whereas the land in question is being used as ‘Park’
by the members of petitioner-Vikas Samiti since long and it
was prayed in the complaint that the plots carved out and
approved by the JDA in such land in question of facility be
cancelled and the land be developed as a ‘Park’. Perusal of
the complaint dated 06.10.2008 also reveals that there is an
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admission of petitioner-society that the roads in the scheme
have been widened from 30 ft. to 40 ft.
22. It is also an admitted fact that thereafter, the petitioner-
society filed one Reference Petition No.271/2009 on
13.08.2009 before the JDA Tribunal making out a case that
the cause of action to file the reference petition accrued on
09.08.2009 when few persons intended to encroach upon the
facility area of the scheme. In such reference petition,
petitioner-Vikas Samiti relied upon the note-sheets of JDA
dated 01.08.2008 and other note-sheets which have been
relied upon and referred before this Court and also placed
reliance on the letter dated 01.06.1985 issued by the
Assistant Town Planner, JDA, Jaipur. Petitioner-Vikas Samiti in
the reference petition sought to establish the fact that the
area of land in question is a facility area of the scheme and
since same is being used as ‘Park’ by the members of
petitioner-Vikas Samiti, JDA and Cooperative Society be
restrained not to interfere in the use and occupation of the
facility area.
The case put forth by the petitioner-Vikas Samiti in the
reference petition was contested and repelled by the JDA as
also by the Cooperative Society. JDA Tribunal, finally vide
judgment dated 24.08.2009 dismissed the reference petition
taking note of the fact that at two other places in the scheme
facility area have been left out and as far as case of
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petitioner-Vikas Samiti to claim the area of six plots in
question as facility area is not maintainable in view of the fact
that there is clear admission of petitioner-Vikas Samiti that
over such area, six plots have been approved by the JDA in
its layout plan dated 23.04.2008 and the approved layout
plan was not put to challenge by the petitioner- Vikas Samiti.
The occurrence of cause of action against the JDA as pleaded
by the petitioner-Vikas Samiti in the reference petition, was
also found fake. A perusal of the judgment dated 24.08.2009
clearly shows that the Tribunal had also considered and
discussed the letter dated 01.06.1985 written by the
Assistant Town Planner, JDA as also of the other relevant
note-sheets of JDA, which were referred and relied upon by
the petitioner-Vikas Samiti. In the reference petition, the
petitioner-Vikas Samiti miserably failed to establish its case
to show the land in question is reserved as facility for the
scheme and the resort of such letter dated 01.06.1985 and
note-sheets on the file of JDA could not succeed and finally
his case was rejected by the JDA Tribunal on merits as well,
while holding the reference petition as not maintainable,
mainly due to approval of the layout plan of the scheme in
BPC-LP meetings dated 17.01.2008 and 23.04.2008 which
was not under challenge. This Court finds that there is clear
fact finding of the JDA Tribunal in the judgment dated
24.08.2009 that petitioner-Vikas Samiti is well acquainted
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with approval of the layout plan of scheme by JDA in BPC
meeting dated 23.04.2008, however, the approved layout
plan was not challenged by filing an appeal and in that view,
the reference petition was dismissed as not maintainable. In
the opinion of this Court, further challenge to the approved
layout plan dated 23.04.2008 by the petitioner-Vikas Samiti
is ex-facie barred by virtue of provision of Order 2 Rule 2
CPC.
It is an admitted case of petitioner-Vikas Samiti that the
judgment dated 24.08.2009 passed by the JDA Tribunal,
dismissing reference petition of the petitioner-Vikas Samiti
was not further challenged by the petitioner-Vikas Samiti and
the fact findings recorded in the judgment dated 24.08.2009
has attained finality. In this view, this Court is of the
considered opinion that the reliance placed by the petitioner-
Vikas Samiti on the letter dated 01.06.1985 of the Assistant
Town Planner and the note-sheets of the JDA record, referred
hereinabove do not render any support to the case of
petitioner-Vikas Samiti to prove that the land in question was
kept reserve for facility- Park in the Nemi Nagar Vistar
Scheme and in view of the fact findings on such documents,
recorded by the JDA Tribunal in the judgment dated
24.08.2009, which have attained finality, again placing
reliance on same documents before this Court in the instant
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writ petition is wholly misplaced and fruitless exercise on the
part of the petitioner-Vikas Samiti.
23. Thereafter, the petitioner-Vikas Samiti invoked the writ
jurisdiction of High Court under Article 226 of the Constitution
of India by filing D.B. Civil Writ (PIL) Petition No.12990/2011
seeking to quash the sanction of layout plan dated
23.04.2008 particularly to the extent of carving out plots in
question in the area, for which the petitioner-Vikas Samiti put
forth its claim to left that area as facility for the scheme.
Undeniably, such PIL petition was not pressed by the
petitioner-Vikas Samiti, hence, the challenge to the approved
layout plan dated 23.04.2008 in the PIL petition was
voluntarily withdrawn by the petitioner-Vikas Samiti. The
prayer made in the PIL petition has already been extracted
hereinabove and the order of permitting withdrawal of PIL
petition dated 07.02.2020 is also available on record as
Annexure-19. In this way, the petitioner-Vikas Samiti is
bound by the principle of estoppel as well to again question
the approved layout plan of the scheme dated 23.04.2008 in
the instant writ petition.
24. It is undoubtedly true that while withdrawing the PIL
petition, the petitioner-Vikas Samiti prayed for and was
granted liberty to assail the subsequent order of JDA passed
in 227th BPC-LP meeting dated 10.04.2015, by way of filing
appeal thereagainst before the JDA Tribunal, but as far as the
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issue in respect of questioning the layout plan dated
23.04.2008 is concerned, same was put at rest as neither any
liberty to challenge such layout plan dated 23.04.2008 was
made nor was given nor in the appeal filed by the petitioner-
Vikas Samiti before the JDA Tribunal against the order of
BPC-LP dated 10.04.2015, the approved layout plan of the
scheme dated 23.04.2008 was under challenge. In that view
also, questing of the layout plan dated 23.04.2008 in the
instant writ petition in contrary to facts and law. The instant
writ petition has arisen out of the appeal filed by the
petitioner-Vikas Samiti before the JDA Tribunal, which has
been dismissed by the judgment dated 29.11.2022.
25. Petitioner-Vikas Samiti by way of filing additional
affidavit dated 23.10.2024 has sought to make out a case
before this Court that the land in question, on the spot, is still
being used as ‘Park’ by the members of petitioner-Vikas
Samiti and few photographs have also been placed on record
to buttress such plea. This Court, in this context, does not
want to enter in such factual area about actual use and
occupation of the land in question because firstly, same would
certainly lead to a disputed question of facts, which cannot be
adjudicated in the writ jurisdiction relying upon the
photographs and secondly, indisputably, lease deeds have
already been issued and registered by the JDA in favour of
the private respondents with regard to the lands in question,
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therefore, the ownership and possession of the lands in
question rest and vest with the private respondents. The
clinching issue as to whether the land in question was
earmarked and reserved by the JDA as facility-Park for the
Nemi Nagar Vistar Scheme and the JDA has approved the six
plots over the land in question of facility area, is to be
adjudicated on the basis of propriety rights of the parties,
over the lands in question, instead of the present use of the
land in question which is indisputably in form of an open
piece of land. Therefore, this Court finds that merely by
placing few photographs and by raising a plea of current use
of the land in question as ‘Park’ does not render any support
to the case of petitioner-Vikas Samiti on merits.
26. As far as case of petitioner-Vikas Samiti to rely upon the
decision dated 13.02.2015, taken in 225 th BPC-LP meeting of
JDA is concerned, to claim that the JDA itself had decided to
develop the land in question as ‘Park’, it is noteworthy that
such decision has already been revoked by the JDA itself in
its 227th BPC-LP meeting dated 10.04.2015. Thus, as on date,
the decision of BPC-LP meeting dated 13.02.2015 is neither in
existence nor it is case of petitioner-Vikas Samiti that same
had been acted upon or implemented, before its revocation
vide order dated 10.04.2015. This Court deems it just and
proper to reproduce hereunder the minutes of BPC-LP
meetings 225th, 226th and 227th hereunder:-
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[2024:RJ-JP:45306] (37 of 61) [CW-984/2023]
“,ts.Mk la[;k&2 ¼tksu&07½
225@13-02-2015
fo”k;%& rksi[kkuk ns’k x`g fuekZ.kZ lgdkjh lfefr
dh ;kstuk useh uxj foLrkj ds vuqeksfnr ekufp= esa Hkw[k.M
la[;k 18] 18&,] 18&ch o 30] 30&, o 30&ch dh fLFkfr
ij ekSds vuqlkj lqfo/kk {ks= l`ftr fd;s tkus ds lEcU/k esaAlfefr }kjk fopkj foe’kZ dj fu.kZ; fy;k x;k fd
izdj.k esa ekuuh; mPp U;k;ky; esa fopkjk/khu okn ds
ifjis{k esa funs’k ¼fo/kh½ ls ekxZn’kZu izkIr dj leqfpr fof/kd
izfØ;k viukbZ tkosA tksu ds izLrkokuqlkj Hkw[k.M/kkjh;ksa dk
ekSds ij dCtk ugha gS o ;kstuk dh lnL;rk lwph esa uke Hkh
ugha gS rFkk bl ;kstuk vU;= ikdZ gsrq Hkwfe ugha gS] vr,o
bl LFkku ij mijksDrkuqlkj fof/kd izfØ;k viukrs gq, ikdZ
l`ftr dj fn;k tkosA,ts.Mk la[;k&1
226@10-03-2015
fo”k;%&chihlh ¼,yih½ dh 225 oha cSBd fnukjad 13-02-
2015 dks lEiUu gqbZ cSBd ds dk;Zokgh fooj.k dh iqf”V gsrqAvfrfjDr ,tsUMk la[;k 15 ¼tksu&8½ ds dze la[;k&2
okLrq uxj Qst&v ds lqfo/kk {ks= dk mi;ksx End Use
izkbZejh Ldwy ,oa dze la[;k 4 f=iqjk uxj ds lqfo/kk {ks= dk
mi;ksx End Use fMLisaljh mik;qDr tksu 8 ds izLrkokuqlkj
dk;Zokgh fooj.k esa vafdr u gksdj vU; rjhds ls gks x;k
Fkk] ftls Bhd djus rFkk ,tsUMk la[;k 2 esa mik;qDr
tksu&7 ds izLrkokuqlkj useh uxj foLrkj ds Hkw[k.M la[;k
18 ds LFkku ij 19 i<+k tkus ds lkFk dk;Zokgh fooj.k dh
iqf”V dh xbZA,ts.Mk la[;k&5 ¼tksu&07½
227@10-04-2015
fo”k;%& rksi[kkuk x`-fu-l-l- dh ;kstuk useh uxj
foLrkj ds Hkw-la- 18&,] 18&ch] 19 o 30] 30&, o 30&ch ds
chihlh ,yih dh 225oha cSBd esa fy;s x;s fu.kZ; ds djus
lEcU/k esaA(Downloaded on 06/11/2024 at 10:09:10 PM)
[2024:RJ-JP:45306] (38 of 61) [CW-984/2023]lfefr }kjk fopkj foe’kZ dj fu.kZ; fy;k x;k fd iwoZ
esa chihlh ¼,y-ih-½ dh cSBd fnukad 13-02-2015 esa Hkw[k.M
la[;k 18,] 18ch] 19 o 30] 30, o 30ch dks =qfVo’k ikdZ j[ks
tkus dk fu.kZ; fy;k x;k Fkk] tcfd QkbZuy vuqeksfnr
ekufp= esa ;s Hkw[k.M vuqeksfnr gSA vr,o bu Hkw[k.Mksa dks iwoZ
esa QkbZuy vuqeksfnr Iyku ds vuqlkj ;Fkkor j[ks tkus dk
fu.kZ; fy;k x;kA”
27. The cumulative and simultaneous perusal of the minutes
of BPC meetings dated 13.02.2015, 10.03.2015 and
10.04.2015, referred hereinabove re-affirms the fact that the
existence of six plots in question bearing plot Nos.18A, 18B,
19, 30, 30A and 30B over the land in question had been
approved by the JDA while granting approval to the layout
plan of Nemi Nagar Vistar Scheme in its BPC meeting dated
23.04.2008. In the decision dated 13.02.2015, no authentic
document was relied upon by the committee for taking a
decision to develop the land in question as facility-Park by the
JDA. Indisputably, in the approved layout plan of scheme
dated 23.04.2008, land in question was not reserved for
facility of ‘Park’. The layout plan dated 23.04.2008 was not
cancelled/ modified in the BPC meeting dated 13.02.2015. In
the decision dated 13.02.2015, to develop the land in
question as ‘Park’, there is no whisper of cancellation/
modification of the approved layout plan of the scheme dated
23.04.2008, wherein over the land in question, existence of
six plots was approved. In the next BPC-LP meeting dated
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[2024:RJ-JP:45306] (39 of 61) [CW-984/2023]
10.04.2015, the decision dated 13.02.2015 was observed to
be taken on erroneous premise and pretext and therefore,
the same was recalled/ revoked forthwith in the 227 th BPC
meeting dated 10.04.2015. In the 226 th BPC meeting dated
10.03.2015, the error indicating in plot No.18 instead of plot
No.19 was rectified. The decision dated 13.02.2015 is not
based on the appreciation of any documents and in the light
of approved layout plan dated 23.04.2008, by the JDA, this
decision certainly was erroneous and non-implementable. The
JDA Tribunal has correctly observed in the judgment
impugned that when the petitioner-Vikas Samiti miserably
failed to show that the land in question was kept reserved for
facility of Park in the Nemi Nagar Vistar Scheme, merely on
the basis of decision dated 13.02.2015, such land cannot be
declared to be a facility for ‘Park’ more so, when such
decision itself has been revoked by the JDA within a period of
two months. It is not the case of petitioner-Vikas Samiti that
the decision dated 13.02.2015 had been acted upon or
implemented. The decision of BPC meeting dated 10.04.2015
is based on the approved layout plan of the scheme dated
23.04.2008, therefore, the JDA Tribunal has not committed
any perversity in affirming such decision/ order dated
10.04.2015.
28. As far as opportunity of hearing is concerned, the
decision dated 13.02.2015 does not show to provide any
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[2024:RJ-JP:45306] (40 of 61) [CW-984/2023]
opportunity of hearing either to the petitioner-Vikas Samiti or
to the plot holders of six plots in question, hence, while
revoking such decision on 10.04.2015 on the ground that the
decision was taken on erroneous pretext and premise, no
opportunity was required to be given to the petitioner-Vikas
Samiti. Nevertheless, the opportunity of hearing to the
petitioner-Vikas Samiti has been given by the JDA Tribunal
and after appreciating all its contentions and submissions, to
challenge the order dated 10.04.2015, appeal of Vikas Samiti
has been dismissed on merits. For ready reference, it would
apposite to reproduce hereunder the relevant portion of the
judgment passed by the JDA Tribunal:-
“11- vihykFkhZ i{k dh ,d eq[; vkifÙk ;g gh gS fd
fnukad 13-02-15 dh chihlh dh cSBd esa bu Hkw[k.Mksa dks fjä
gksus ds vk/kkj iqj bUgsa ikdZ l`ftr djus dk fu.kZ; fy;k
x;k Fkk vkSj tksu ds izLrkokuqlkj Hkw[k.M/kkfj;ksa dk ekSds ij
dCtk ugha gksuk ekurs gq, lnL;rk lwph esa uke ugha gksuk
ekurs gq, bls ikdZ ds :i esa lqjf{kr djus dk fu.kZ; fy;k
x;k] fdUrq fnukad 13-02-15 dh chihlh dh bl 225oha cSBd
ds fu.kZ; dks fnukad 10-04-15 dh chihlh dh 227oha cSBd esa
fujLr djrs gq, iwoZ esa Hkw[k.M la[;k 18,] 18ch] 19] 30] 30,
,oa 30ch dks ikdZ j[ks tkus dk fu.kZ; =qfViw.kZ j[ks tkus ,oa
vfUre vuqeksfnr ;kstuk ekufp= esa bu Hkw[k.Mksa ds vuqeksfnr
gksus ds vk/kkj ij bUgsa Hkw[k.Mksa ds :i esa gh ;Fkkor~ j[ks
tkus dk fu.kZ; fy;k x;k gSA bl çdkj Li”V gS fd bu
Hkw[k.Mksa dks iwoZ esa vuqeksfnr ;kstuk ekufp= esa Hkw[k.Mksa
ds :i esa gh vuqeksfnr fd;s tkus ds vk/kkj ij chihlh dk
fnukad 13-02-15 dk fu.kZ; fujLr COP] fd;k x;k gS- ,slh
fLFkfr esa dsoy nks ekg rd bls lqfo/kk {ks= esa j[ks tkus dk
fu.kZ; vfLrRo esa jgk Fkk] tcfd vfUre vuqeksfnr ;kstuk
ekufp= ,oa orZeku esa Hkh bUgsa Hkw[k.Mksa ds :i esa gh
vuqeksfnr fd;k x;k gS] ftldk foLr`r fooj.k tfoçk }kjk
i=koyh esa ,oa dk;kZy; fVIif.k;ksa esa vafdr djrs gq, fy;k
x;k gSA(Downloaded on 06/11/2024 at 10:09:10 PM)
[2024:RJ-JP:45306] (41 of 61) [CW-984/2023]12- tks U;k; -“VkUr vihykFkhZ i{k dh vksj ls çLrqr fd;s
x;s gSa] muesa lqfo/kk {ks= dks vkoklh; ifjofrZr djus ds
lEcU/k esa çkf/kdj.k dh dk;Z’kSyh dks mfpr ugha ekuk x;k
gS] fdUrq tgk¡ rd bl gLrxr çdj.k dk lEcU/k gS] o”kZ
1985 dk rduhdh :i ls vuqeksfnr ;kstuk ekufp= o”kZ
1992 esa fujLr dj fn;k x;k Fkk vkSj ml le; useh uxj
folrkj ;kstuk esa i`Fohjkt uxj dh vokfIr/khu Hkwfe
lfEefyr ugha FkhA ckn esa o”kZ 1996 esa jktLFkku ljdkj ds
vokfIr eqfä ds fu.kZ; ds i’pkr~ bls iqu% useh uxj folrkj
esa lfEefyr djrs gq, ,oa [kljk uEcj 134 Hkkx dks Hkh
lfEefyr djrs gq, u;s fljs ls o”kZ 2002 esa /kkjk 90ch dh
dk;Zokgh ds ckn o”kZ 2008 esa bldk vfUre :i ls ;kstuk
ekufp= vuqeksfnr fd;k x;k gS vkSj ml o”kZ 2008 ds
vuqeksfnr ;kstuk ekufp= esa bu lHkh Ng Hkw[k.Mksa dk l`tu
n’kkZ;k x;k gSA bl çdkj ;s Hkw[k.M dHkh vuqeksfnr ekurs
gq, lqfo/kk {ks= ds Hkkx ugha jgs Fks vkSj ,slh dksbZ ifjfLFkfr;ka
;k fjdkMZ ugha gS] ftlds vk/kkj ij o”kZ 2008 esa vuqeksnu ds
le; bu Hkw[k.Mksa dks lqfo/kk {ks= esa n’kkZus ds ckn budk
fue;u fd;k x;k gksA fnukad 13-02-15 ds fu.kZ; dks nks ekg
i’pkr~ gh =qfViw.kZ vk/kkj ij fy;s tkus ls fnukad 10-04-15
dks fujLr dj fn;k x;k FkkA ,slh fLFkfr esa o”kZ 2008 esa
;kstuk ekufp= ds vuqeksnu ds le; bu Ng Hkw[k.Mksa ds
LFkku ij dksbZ lqfo/kk {ks= vfLrRo esa jgk gks] ,slh
ifjfLFkfr;ka ;k fjdkMZ ugha gSA bl vk/kkj ij çkf/kdj.k }kjk
vuf/k–r :i ls lqfo/kk {ks= dh Hkwfe dks Hkw[k.Mksa ds :i esa
vkoafVr dj fn;k x;k gks] ,slh Hkh ifjfLFkfr;ka Hkh ugha gSA
çR;FkhZ rksi[kkuk ns’k x`g fuekZ.k lgdkjh lfefr }kjk o”kZ
1996 esa çLrqr lnL;rk lwph esa ‘ks”k çR;FkhZx.k ds bu Ng
Hkw[k.M/kkfj;ksa ds uke lfEefyr fd;s x;s gSa vkSj jkT; ljdkj
ds ifji= ds vk/kkj ij ;kstuk dk vfUre :i ls vuqeksnu
fd;k tkdj] gh ;g fu;eu fd;k x;k gSA ;fn bu Hkw[k.Mksa
ds o”kZ 2020 esa fu;eu fd;s tkus ls iwoZ bldk mi;ksx ikdZ
ds :i esa fd;k tkrk jgk gks rks Hkh ftl mís’; ls ;kstuk
ekufp= esa budk fu;eu o l`tu fd;k x;k gS] ogh fu;eu
dk okLrfod vk/kkj gksus ls rkRdkfyd mi;ksx ds vk/kkj ij
bu Hkw[k.Mksa ds yhtMhM dks fujLr ugha fd;k tk ldrk gSA13- mijksä foospu ds vk/kkj ij vihykFkhZ i{k }kjk fnukad
10-04-15 ds Hkou ekufp= lfefr ds 227oha cSBd ds fu.kZ;
dks voS/k o ‘kwU; ?kksf”kr fd;s tkus ,oa bu Ng Hkw[k.Mksa dk
fu;eu 227oha cSBd esa fujLr djrs gq, lqfo/kk {ks= esa j[ks
tkus dk tks vuqrks”k pkgk x;k gS] og vLohdkj fd;s
tkus ;ksX; gSA
vkns’k %%(Downloaded on 06/11/2024 at 10:09:10 PM)
[2024:RJ-JP:45306] (42 of 61) [CW-984/2023]ifj.kkeLo:i vihykFkhZ useh uxj foLrkj fodkl
lfefr }kjk çLrqr vihy çR;FkhZ tfoçk] rksi[kkuk ns’k x`g
fuekZ.k lgdkjh lfefr ,oa Jherh çoh.k dqekj] jf’e :ikuh
,oa- nhid ‘kekZ ds fo:) ckcr~ vikLr fd;s tkus chihlh ds
vkns’k fnukad 10-04-15 ,oa Hkw[k.M la[;k 18,] 18ch] 19]
30] 30, ,oa 30ch dks lqfo/kk {ks= ?kksf”kr fd;s tkus o
çR;FkhZx.k ds yhtMhM fujLr fd;s tkus ds lEcU/k esa fujLr
dh tkrh gSA
;g fu.kZ; vkt fnukad 29-11-2022 dks [kqys
U;k;kf/kdj.k esa fy[kk;k tkdj lquk;k ,oa gLrk{kfjr fd;k
x;kA bl fu.kZ; dh izekf.kr izfr lfpo tfoizk dks vko’;d
dk;Zokgh gsrq izsf”kr dh tkosA”
Thus, this Court does not find any reason to set aside
the decision of BPC meeting dated 10.04.2015 and to restore
the decision of BPC meeting dated 13.02.2015. The
reasonings assigned by the JDA Tribunal in dismissing the
appeal against the decision/ order of BPC meeting dated
10.04.2015 are well within jurisdiction of the Tribunal and
have been rendered after appreciation of the material
available on record.
29. It is undisputed fact that the lease deeds of all six plots
in question have already been issued by the JDA in favour of
respondents No.4, 5 and 6 respectively and further the lease
deeds have also been registered. The case of petitioner-Vikas
Samiti to cancel and declare such lease deeds as null and
void is solely based on strength that the land in question, on
which these six plots have been carved out and approved, is
a land, reserved for facility-Park for the Nemi Nagar Vistar
Scheme but in view of the above discussions, it has not been
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[2024:RJ-JP:45306] (43 of 61) [CW-984/2023]
established by any document or other material that the land
in question was ever reserved by the JDA to be used as
facility of Park in the Nemi Nagar Vistar Scheme. The claim of
petitioner-Vikas Samiti to allege the land in question as
facility area of the Nemi Nagar Vistar Scheme is baseless and
unfounded rather, can be said to be hypothetical whereas on
the contrary, in the light of approval of the six plots over such
land in question by the JDA while approving the layout plan of
scheme on 23.04.2008 and further after issuance of the lease
deeds of these plots by the JDA in favour of respondents
No.4, 5 and 6 respectively, the title and possession of such
plots stand vested in the respondents No.4, 5 and 6, hence,
for no good reason, registered lease deeds of the six plots in
question are liable to be cancelled.
30. It is hereby further observed that the ownership of six
plots in question vests into the respondents No.4, 5 and 6
and since the land of plots in question is lying as open piece
of land, it is the fundamental principle of law that possession
follows title. Therefore, the ownership and possession of the
plots in question, obviously rest and vest with the
respondents No.4, 5 and 6 only and petitioner-Vikas Samiti
has no concern with the land of such six plots in question.
31. In the judgment delivered by the Division Bench of
Rajasthan High Court in case of Rakesh & Ors. Vs. The
State of Rajasthan & Ors. (supra), relied upon by the
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[2024:RJ-JP:45306] (44 of 61) [CW-984/2023]
learned senior counsel for petitioner-Vikas Samiti, the facts
were entirely different. In that case in the approved plan of
Kanota Bagh, the area in question over which plots were
regularised by the JDA, was earmarked as children’s park and
the existence of such approved plan was an undisputed fact,
hence, in such factual backdrop of the case, the Division
Bench relied upon the theory of doctrine of public trust and
held that the facility area/ children’s park became the public
trust property and the State had no jurisdiction to convert the
property of public trust into private residential plot, whereas,
the factual matrix of the present case in hand is entirely
different as the petitioner-Vikas Samiti has not been able to
establish that the land in question, over which the existence
of six plots in question has been approved by the JDA, was
kept reserved as facility area for park of the Nemi Nagar
Vistar Scheme. Therefore, the ratio decidendi of the judgment
delivered in D.B. Civil Writ (PIL) Petition No.13084/2009 does
not render any support to the case of petitioner-Vikas Samiti
for cancellation of the lease deeds, issued by the JDA in
favour of private respondents in respect of the six plots in
question.
32. In case of Machavarapu Srinivasa Rao (supra), relied
upon by the learned senior counsel for petitioner-Vikas
Samiti, the Hon’ble Supreme Court held that “once the State
Government approves the master plan or the zonal
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[2024:RJ-JP:45306] (45 of 61) [CW-984/2023]
development plan, no one can change or alter the plan and
allot land for any other purpose than the one specified in the
approved plan”. In that case, the land area earmarked for
park in the development plan, a permission was granted to
construct the temple, whereas, the land was not allotted for
construction of temple. Hence, the permission to construct
the temple was quashed. Such judgment has no application
to the facts of the present case.
33. In case of Dr. G.N. Khajuria (supra), the part of a land
which was reserved for park in the layout plan for residential
colony, was allotted by the Officer of Delhi Development
Authority (DDA) to construct for school. Such allotment was
held to be unauthorised and was cancelled. In the case at
hand, land in question has not been proved to be reserved for
park/facility for the Nemi Nagar Vistar Colony.
34. In case of Banglore Medical Trust (supra), it was a
public interest litigation and the conversion of a public park
into private nursing home by the State Government was held
illegal. On facts, the judgment does not render any support to
the case of petitioner-Vikas Samiti.
35. Similar was the factual matrix in the case of Perala
Jyotsna (supra), before the High Court of Andhra Pradesh,
where the issue under challenge was conversion of the land
for public use, which was earmarked for school, temple,
community hall and park into house sites, which was declared
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[2024:RJ-JP:45306] (46 of 61) [CW-984/2023]
illegal. In case of Sri Balaji Park Residents Welfare
Association (supra), the action of Visakhapatnam Urban
Development Authority, dividing the vacant land into plots
and selling the same by public auction, without leaving space
for public purpose, was held illegal and against the public
policy. Both judgments were rendered in different factual
context, whereas the factual matrix of the case at hand
travels in different context, hence, both judgments of Andhra
Pradesh High Court are not applicable to the present case.
36. It is matter of record that the instant writ petition has
been directed against the judgment dated 29.11.2022 passed
by the JDA Tribunal dismissing the appeal filed by the
petitioner-Vikas Samiti against the decision/ order dated
10.04.2015 of the BPC-LP meeting of JDA. The appeal was
filed within scope and jurisdiction of Section 83 of the JDA
Act, 1982 (for short “the Act of 1982”). As per the provision
of Section 83 of the Act of 1982, the decision of the Tribunal
is final and not amenable to be challenged by way of appeal
or revision. Nevertheless, petitioner-Vikas Samiti has
challenged the judgment before this Court under Article 227
of the Constitution of India. With regard to the scope of
Article 227 of the Constitution of India, the counsel for the
respondents has referred catena of judgments of the Hon’ble
Supreme Court which more or less subscribe the same
proposition of law. Therefore, it is suffice to refer and
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[2024:RJ-JP:45306] (47 of 61) [CW-984/2023]
reproduce the portion of judgment delivered by the
Constitutional Bench of the Hon’ble Supreme Court in case of
Nagendra Nath Bora and Anr. Vs. Commissioner of Hills
Division and Appeals, Assam and Ors: [AIR 1958 SC
398] and more particularly, para No.30 of the judgment,
which reads as under:-
“30. A Constitution Bench of this Court examined
the scope of Art. 227 of the Constitution in the
case of Waryam Singh v. Amarnath, 1954
SCR 565: (AIR 1954 SC 215) (P). This court,
in the course of its judgment, made the following
observations at p. 571 (of SCR): (at p. 217 of
AIR):
“This power of superintendence conferred by
article 227 is, as pointed out by Harries, C. J., in
Dalmia Jain Airways Ltd. v. Sukumar Mukherjee,
AIR 1951 Cal 193 (Q), to be exercised most
sparingly and only in appropriate cases in order
to keep the Subordinate Courts within the bounds
of their authority and not for correcting mere
errors.”
It is, thus, clear that the powers of judicial
interference under Art. 227 of the Constitution
with orders of judicial or quasi-iudicial nature, are
not greater than the powers under Art. 226 of the
Constitution, Under Art. 226, the power of
interference may extend to quashing an
impugned order on the ground of a mistake
apparent on the face of the record. But under Art.
227 of the Constitution, the power of interference
is limited to seeing that the tribunal functions
within the limits of its authority. Hence,
interference by the High Court, in these cases
either under Art. 226 or 227 of the Constitution,
was not justified.
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[2024:RJ-JP:45306] (48 of 61) [CW-984/2023]
37. In view of above discussions, all the points framed by
this Court for consideration in the instant writ petition from
point Nos.(i), (ii), (iii), (iv) and (v), mentioned in para 10 are
answered in negative and against the petitioner-Vikas Samiti.
The judgment impugned dated 29.11.2022 has not been
found to be suffered from any perversity in the fact findings
and the JDA Tribunal has passed the judgment well within its
jurisdiction, hence, the judgment does not warrant any
interference by this Court.
38. As a final result, Writ Petition No.984/2023 fails and
same is hereby dismissed. Stay application and other pending
application(s), if any, also stand disposed of.
S.B. Civil Writ Petition No.9695/2023
39. This writ petition arises out of a civil suit for mandatory
and prohibitory injunction filed by respondent No.2-Smt.
Praveena Kumar against the petitioner-Vikas Samiti and the
S.H.O of concerned Police Station-Vaishali Nagar, Jaipur,
along with an application for temporary injunction. In the civil
suit, respondent No.2 claimed her ownership and possession
over the plot No.18-A situated in Nemi Nagar Vistar Colony,
Vaishali Nagar, Jaipur, relying upon the lease deed dated
14.02.2020, registered on 25.02.2020 issued by JDA in her
favour and claimed injunction against the petitioner-Vikas
Samiti and the S.H.O of concerned Police Station, not to
interrupt in peaceful use and occupation of her plot, on
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[2024:RJ-JP:45306] (49 of 61) [CW-984/2023]
pretext of claiming her plot to be a part of facility of the
colony.
40. In the present civil suit, while deciding the application
for temporary injunction filed by the respondent No.2 under
Order 39 Rule 1 and 2 CPC, the Court of Civil Judge and
Metropolitan Magistrate No. 3, Jaipur Metropolitan II, vide
order dated 09.05.2022, rejected the prayer of temporary
injunction, but on filing civil miscellaneous appeal
thereagainst by respondent No.2-plaintiff, the Court of
Additional District Judge No. 2, Jaipur Metropolitan II, vide
judgment dated 29.05.2023, has held and observed that the
trial Court committed jurisdictional error in exercising its
discretionary and equitable jurisdiction and has also
committed perversity in rejecting the prayer for temporary
injunction. Finally, the Appellate Court has set aside the order
dated 09.05.2022 and granted temporary injunction in favour
of respondent No.2, restraining the petitioner-Vikas Samiti
and the S.H.O of concerned Police Station-Vaishali Nagar,
Jaipur, from not interrupting or creating hindrance in use,
occupation and development of plot No.18-A by the
respondent No.2. The injunction order dated 29.05.2023 has
already been reproduced in para No.3 of the writ petition.
That injunction order has been put to challenge by petitioner-
Vikas Samiti in the instant writ petition.
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41. Learned Senior Counsel for petitioner-Vikas Samiti has
argued that the Appellate Court has exceeded its jurisdiction
in interfering with the order dated 09.05.2022, since the trial
Court in its discretionary jurisdiction has rightly rejected the
application for temporary injunction and the order was not
required to be interfered with by the Appellate Court. It has
been argued that the Appellate Court while deciding the
application for temporary injunction has virtually decided the
rights of parties on merits, which are to be adjudicated in the
main suit, hence, it has been prayed that the injunction order
dated 29.05.2023 passed by the Appellate Court be quashed
and set aside and the order dated 09.05.2022 passed by the
trial Court, dismissing the application for temporary
injunction, be affirmed.
42. Counsel appearing on behalf of respondent No.2 has
vehemently opposed the writ petition and argued that the
Appellate Court in the judgment dated 29.05.2023, has
assigned reasons to interfere with the order of trial Court
dated 09.05.2022 and concerning the reasons assigned by
the Appellate Court, the order impugned may not be held to
be suffered from jurisdictional error. It has been argued that
the Appellate Court may set aside the order of trial Court, if
finds that the trial Court has not appreciated the facts
correctly and has also not applied the proposition of law in
right perspective, rather has committed manifest illegality
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and jurisdictional error while deciding the application for
temporary injunction. Since the Appellate Court found the
order dated 09.05.2022 palpably wrong, therefore, the
Appellate Court has not exceeded from its jurisdiction to set
aside the same and has issued order of temporary injunction,
which is just and proper. It has been argued that in order to
examine prima-facie case, preliminary analysis of documents
and evidence on record to determine rights of parties and to
look into the equity to maintain balance of interest of parties
as also to consider irreparable loss is permissible in law,
hence, it may not be said that the findings recorded by the
Appellate Court are without jurisdiction or would pre-judice
main case of either party on merits before the trial Court,
therefore, the order impugned does not require any
interference by the High Court in exercise of its supervisory
jurisdiction under Article 227 of the Constitution of India and
writ petition is liable to be dismissed.
43. Having pondered over the rival contentions of counsel
for both parties and from perusal of the record, this Court
finds that the civil suit seeking mandatory and prohibitory
injunction in respect of plot No.18-A in the Nemi Nagar Vistar
Colony, Vaishali Nagar, Jaipur, was filed by respondent No.2
along with an application for temporary injunction on
22.03.2022. The plaintiff claimed her ownership and
possession over the plot in question and apart from relying
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the other documents, mainly relied upon the lease deed
dated 14.02.2020 issued by the JDA for this plot in her
favour. This lease deed has later on been registered by the
JDA on 25.02.2020.
44. The petitioner-Vikas Samiti, although has not denied the
issuance of lease deed of the plot in question by the JDA in
favour of respondent No.2-plaintiff, nevertheless claimed that
the plot No.18-A is part of facility area of the colony. It was
pointed out by the Vikas Samiti that the JDA in its BPC-LP
meeting dated 13.02.2015 has taken a decision to develop
the area in question as park and in that decision, it was
clearly observed that the possession of plot No.18-A has not
been delivered to the plot holder. It was also pointed out by
the Vikas Samiti that later on the decision dated 13.02.2015
has been withdrawn by the JDA in its BPC-LP meeting dated
10.04.2015, for no good reasons and thereagainst, Vikas
Samiti has filed an Appeal No.139/2020, before the JDA
Tribunal, which is pending under consideration. Hence, the
petitioner-Vikas Samiti disputed the possession of plaintiff
over the plot in question and raised a plea that the plot
No.18-A is part of facility area of park of the colony.
45. No reply by and on behalf of the S.H.O of Police Station-
Vaishali Nagar, was filed.
46. The trial Court, vide order dated 09.05.2022, dismissed
the application for temporary injunction and recorded a
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finding that the plaintiff is not in possession over the plot in
question and her title based on the lease deed of JDA dated
14.02.2020 is under dispute in the appeal, pending before
the JDA Tribunal on behest of the Vikas Samiti.
47. On filing the civil miscellaneous appeal against the
dismissal of the application for temporary injunction, the
Appellate Court allowed the appeal vide order dated
29.05.2023 and has set aside the order of trial Court dated
09.05.2022 as also has issued temporary injunction in favour
of respondent No.2-plaintiff and against the non-applicants-
defendants.
48. The Appellate Court has observed in the order impugned
dated 29.05.2023 that after dismissal of the application for
temporary injunction by the trial Court vide order dated
09.05.2022, the appeal filed by Vikas Samiti, before the JDA
Tribunal against the order dated 10.04.2015 whereby the
decision dated 13.02.2015 was recalled, has been dismissed
by the Tribunal vide judgment dated 29.11.2022. In this
view, the Appellate Court observed that the finding of trial
Court that the title of plaintiff over the plot in question on the
basis of lease deed of JDA dated 14.02.2020 is under clouds
due to pending appeal before the JDA Tribunal, stand nullified
and prima-facie case for grant of temporary injunction in
favour of plaintiff is made out.
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49. In respect of possession of plaintiff, it was observed by
the Appellate Court that the plot in question is in form of
open piece of land, whereupon no construction has been
raised, hence, the fundamental principle of law that
“possession follows title” comes into play and it was held that
the ownership and possession of the plot in question vest in
the plaintiff-appellant and therefore, prima-facie, it is
established that plaintiff is entitled to use, develop and
occupy the plot in question without intervention/ interruption
by the Vikas Samiti with the connivance of the concerned
S.H.O of Police Station-Vaishali Nagar, Jaipur.
50. It was observed by the Appellate Court that the case of
Vikas Samiti to claim that the area of plot No.18-A is part of
facility area has already been dismissed on merits by the JDA
Tribunal, however, Vikas Samiti is at liberty to take recourse
of law, to quash the lease deed of plaintiff on the basis of
alleging the same to be issued on the facility area.
51. It was observed that since the plaintiff-appellant is
absolute owner and possession holder of the plot in question
and the Vikas Samiti has no authority or legal right to
interfere in the use and occupation of the plot in question by
the plaintiff, except in accordance with due course of law,
therefore, an order of temporary injunction was issued in
favour of plaintiff, and against the Vikas Samiti in this regard.
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52. Having gone through the order dated 09.05.2022 passed
by the trial Court, this Court finds that the trial Court has
virtually recorded adverse findings against the plaintiff in
respect of her ownership and possession over the plot in
question, while dismissing the application for temporary
injunction which ought not to be passed at this stage. The
Appellate Court too has observed in its order dated
29.05.2023 that the trial Court has exceeded from its
jurisdiction in rendering a conclusion/finding about the
ownership and possession of plaintiff over the plot in
question, which are not expected at this stage of civil
proceedings.
53. Further, this Court finds that the factual scenario has
also changed after passing the order dated 09.05.2022, since
thereafter, the appeal of petitioner-Vikas Samiti, pending
before the JDA Tribunal has been dismissed on merits vide
judgment dated 29.11.2022, therefore, in view of such
drastic change of factual matrix, the Appellate Court granted
indulgence to set aside the order dated 09.05.2022.
54. Further, the trial Court travelled on the erroneous
premise that the plot in question is not in possession of the
plaintiff, but is in possession of the Vikas Samiti. Such
conclusion of trial Court was fundamentally based on the
decision dated 13.02.2015 taken by the JDA in its BPC-LP
225th meeting, to develop the area as park. In fact, such
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decision has been revoked by the JDA itself in its next BPC-LP
227th meeting dated 10.04.2015 with clear observation that
decision dated 13.02.2015 was taken on erroneous premise
and without appreciating the fact of approval of the plots
situated over the land in question in the layout plan dated
23.04.2008. The order of BPC meeting dated 10.04.2024 has
been affirmed by the JDA Tribunal while dismissing appeal
thereagainst vide judgment dated 29.11.2022 and C.W.P.
No.984/2023, filed thereagainst has also been dismissed on
merits. Thus, the very basis, on which the trial Court
recorded its finding of possession against the plaintiff in
respect of plot in question, has gone and no more exist.
55. The trial Court also committed illegality on its face value
in not considering that the land of plot No.18-A is open piece
of land and it is settled proposition of law that in respect of
open piece of land, the principle “possession follows title”,
applies. In case of Nazir Mohamed Vs. J. Kamala & Ors.
[(2020) 19 SCC 57], Hon’ble Supreme Court observed that
“the maxim “possession follows title” is limited in its
application to property, which having regard to its nature,
does not admit to actual and exclusive occupation, as in the
case of open spaced accessible to all.” Thus, applying such
principle of law, prima-facie, plaintiff is presumed to be in
possession of plot in question, being its owner.
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56. Undisputedly, the lease deed of plot in question has
been issued by the JDA in favour of plaintiff, therefore, title of
the plot, obviously rests and vests with the plaintiff. Since the
plot in question is an open piece of land, therefore, the
possession of the plot in question also lies with the plaintiff,
following the title, which certainly vests with the plaintiff only.
The doubt created by the trial Court on legality and validity of
such lease deed, on account of the pendency of appeal before
the JDA Tribunal, has come to an end with dismissal of appeal
and writ petition thereagainst.
57. This Court finds that the order of trial Court, for various
reasons, suffers from perversity and jurisdictional error as
also stands contrary to the settled proposition of law
governing the grant/refusal of temporary applications and the
Appellate Court has assigned the reasons to exercise its
jurisdiction to set aside the order dated 09.05.2022 and
issuing the order of temporary injunction.
58. It is well established principle of law that the Appellate
Court may exercise its jurisdiction to interfere with the
exercise of discretionary jurisdiction by the Trial Court,
whenever it is found that the exercise of discretionary
jurisdiction by the Trial Court is palpably incorrect or
untenable in law. It is equally true that ordinarily the
Appellate Court should not interfere with the exercise of
discretion by the Trial Court in granting or refusing the
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interlocutory injunctions and should not substitute its own
view over the view of the Trial Court, if the view taken by the
Trial Court is a possible view. Reference-Mohd. Mehtab
Khan & Ors Vs. Khushnuma Ibrahim Khan and Ors.
(2013) 9 SCC 2021. But where it appears to the Appellate
Court that the discretion has been exercised by the Trial
Court arbitrarily, or capriciously or perversely or where the
Court had ignored the settled principles of law, regulating
grant or refusal or interlocutory injunction, certainly the
Appellate Court would be justified to grant indulgence.
Reference-Seema Arshad Zaheer and Ors. Vs. Municipal
Corporation of Greater Mumbai & Ors.(2006) 5 SCC
282.
59. In the case at hand, this Court does not find that the
Appellate Court has unwarrantedly interfered with the
exercise of discretion by the Trial Court rather, it appears that
the Trial Court travelled beyond its jurisdiction and recorded
findings in respect of title and possession of plaintiff which
are not expected to render at the stage of deciding the
application for Temporary Injunction. Since the factual
circumstances have changed and the Trial Court had ignored
the principle of law of possession in respect of open piece of
land that the “possession follows title”, therefore, the
Appellate Court has not committed any error nor has
exceeded its jurisdiction in granting indulgence against the
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order of Trial Court and same has rightly been set aside. The
injunction order, passed by the Appellate Court is equitable
and is a possible view, hence, deserves to be affirmed.
60. In addition, the Appellate Court has also observed that
on the strength of lease deed dated 14.02.2020 issued by the
JDA in favour of plaintiff in respect of plot No.18-A, obviously
the title and possession of plot in question, rest and vest with
the plaintiff only and the Vikas Samiti, having connivance
with the concerned Police Station, cannot interfere with the
use and occupation of the plot in question by the plaintiff,
although Vikas Samiti is free to take recourse to the legal
process. It is hereby observed that the recourse of law, taken
by the Vikas Samiti has failed.
61. Thus, the order passed by the Appellate Court is well
within jurisdiction and the injunction order passed is just and
proper, which does not warrant any interference by the High
Court in exercise of its writ jurisdiction under Article 227 of
the Constitution of India.
62. The Hon’ble Supreme Court in a recent judgment
delivered in case of Garment Craft Vs. Prakash Chadn
Goel [(2022) 4 SCC 181] has expressed the view that the
High Court exercising supervisory jurisdiction does not act as
a court of first appeal to reappreciate, reweigh the evidence
or facts upon which the determination under challenge is
based. It was observed that supervisory jurisdiction is not to
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correct every error of fact or even a legal flaw when the final
finding is justified or can be supported. The High Court is not
to substitute its own decision on facts and conclusion, for that
of the inferior court or tribunal. The jurisdiction exercised is in
the nature of correctional jurisdiction to set right grave
dereliction of duty or flagrant abuse, violation of fundamental
principles of law or justice. The power under Article 227 of
the Constitution of India is exercised sparingly in appropriate
cases, like when there is no evidence at all to justify, or the
finding is so perverse that no reasonable person can possibly
come to such a conclusion that the court or tribunal has come
to. It is axiomatic that such discretionary relief must be
exercised to ensure that there is no miscarriage of justice.
For reference-Prakash Chand Goel Vs. Garment Craft
(2019) SCC OnLine Del 11943, Celina Coelho Pereira
vs. Ulhas Mahabaleswhar Kholkar (2010) 1 SCC 217
and Estralla Rubber vs. Dass Estate (P) Ltd. (2001) 8
SCC 97.
63. Having tested the impugned order on the touchstone of
the principle of law as expounded by the Hon’ble Supreme
Court hereinabove and having considered the facts and
circumstances of the present case, this Court is of the
considered opinion that the order of Temporary Injunction is
just and proper as also maintains balance of interest and
equity between the parties and same does not warrant any
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interference by the High Court in exercise of its jurisdiction
under Article 227 of the Constitution of India.
64. For the above reasons, Writ Petition No.9695/2023 is
hereby dismissed.
65. Stay application and other pending application(s), if any,
also stand disposed of.
(SUDESH BANSAL),J
RONAK JAIMAN/TN/603-604/S
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