Back
2005 Supreme(Raj) 779
High Court Of Rajasthan
Judgename : K.S. Rathore
Chanderpal Bagga - Appellant
Versus
State of Rajasthan - Respondent
S.B. Civil Writ Petition No. 279 of 2003
Decided On : 03/22/2005
Mr. R.N. Mathur,Mr. Mahesh Gupta, for the Petitioner.
Mr. S.M. Mehta, Senior Advocate with Mr.R.S. Mehta, Mr. Mohd. Rafiq, AAG,
Mr. A.K. Gupta, Dr. P.C. Jain and Mr.M.M. Ranjan, for the Respondents.
Lack of locus to challenge municipal permission and availability of alternative efficacious remedy.
Headnote:
JDA Act, 1982 - Construction Permission - Sections 16, 96, 32(iii), 68, 170 of Rajasthan Municipalities Act - Regulations of 2000 - Table ka and Table kha - Validity of Regulations and JDA Act - AIR 1963 SC 771, 1955 RLW 442, 1959 RLW 6, 1965 RLW 360, 1982 WLN (UC) 188, 1992 (1) WLC 382
Fact of the Case:
The writ petition challenges the permission granted for construction of a multi-storey building and the validity of JDA Act, 1982. The petitioner argues that the construction permission and adoption of Regulations of 2000 by Jaipur Municipal Corporation are unlawful.
Finding of the Court:
The court found that the petitioner has no locus to file the writ petition as the petitioner is not entitled to challenge the permission granted by the Municipal Corporation. The court also held that the Regulations and JDA Act are not in contravention of the Constitution and are intra vires.
Issues: Validity of construction permission and JDA Act, 1982, maintainability of the writ petition, and compliance with regulations and bye-laws.
Ratio Decidendi: The petitioner lacked locus to challenge the permission granted by the Municipal Corporation and had alternative efficacious remedy. The court also relied on previous judgments upholding the validity of JDA Act, 1982.
Final Decision: The writ petition was dismissed with cost of Rs. 2000.
K.S. Rathore, J.-This writ petition has been filed challenging the permission granted by the Municipal Corporation, Jaipur to respondent No. 4 M/s. Shruti Associates for construction of a multi-storey building on plot No. 565, Rajapark, Jaipur.
2. The petitioner has also challenged the validity of Jaipur Development Act, 1982 (hereinafter to be referred as the JDA Act, 1982) on the basis of amended provision Part IX A of the Constitution (74th Constitutional (Amendment) Act on the basis that after insertion of Article 243 (P) to Article 243 ZD, the JDA Act, 1982 may be declared ultra vires of the provisions of the Constitution.
3. Learned Counsel for the petitioner also mentioned the Judgment passed by the Division Bench in case of Ram Chandra Kasliwal vs. State of Rajasthan, reported in 2004 (4) WLC 17 by which the validity of the JDA Act, 1982, was upheld.
4. Learned Counsel for the petitioner submits that the grievance of the petitioner is that permission dated 26.08.2002 issued by the Jaipur Municipal Corporation to the respondent No. 4 for construction of house in accordance with Regulation 4 (i) of the Jaipur Development Authority (Jaipur Region Building) Regulations, 2000 (hereinafter to be referred as the Regulations of 2000) is unlawful. Mr. R.N. Mathur also referred the provisions of Section 16 read with Section 96, 32 (iii) and 68 by which the area was demarcated and submits that the aforesaid provisions are inapplicable in the jurisdiction of Jaipur Municipal Corporation area.
5. Mr. Mathur further referred the provision of Section 170 of the Rajasthan Municipalities Act framed Jaipur (Building) Bye Laws, 1970 in respect of the construction of the building in the area falling within the Jaipur Municipal Corporation, Jaipur and submits that Jaipur Municipal Corporation could not have adopted the Regulations of 2000. The adoption of Regulation of 2000 by Jaipur Municipal Corporation is not only illegal, but also in contravention of Section 90 Sub-section 2 of the Rajasthan Municipalities Act, which provides that the Board shall before any bye laws under this Section put draft of the proposed bye laws with a notice specifying date when the proposed draft will be taken into consideration and the objections or suggestions in this respect shall be considered before the specified date.
6. It is further submitted that even if the Regulations of 2000 are applicable then also the construction of building which the respondent No.4 is undertaking is apparently in the category of group housing/flats as given in table ka of the Regulations of 2000. The permission granted treating construction raised by respondent No. 4 as a separate residence within new plans as given in Table kha" is illegal and erroneous.
7. The publication of by laws to the public or person concerned, inviting objections and consideration of the objections as well as sanction by the State Government are mandatory requirement for amending the bye laws or by adopting any other bye laws. In support of his submissions, learned Counsel for the petitioner placed reliance on the following Judgment s:-
1) AIR 1963 SC 771(6,7,12)
2) 1955 RLW 442 (5,6,7, & 8)
3) 1959 RLW 6
4) 1965 RLW 360 (30,31,35,38
5) 1982 WLN (UC) 188
6) 1992 (1) WLC 382
8. While placing reliance on the aforesaid Judgment s, learned Counsel for the petitioner submits that the Regulations of 2000 were not adopted in the manner provided because no publication was made, no objections were invited and the State Government never gave consent for it.
9. Per contra, learned Counsel appearing on behalf of the respondents raised the preliminary objection regarding maintainability of the writ petition. Learned Counsel for the respondent No. 4 Mr. Mehta submits that the petitioner has filed the writ petition during the pendency of the civil suit on the same subject matter. On additional relief sought by the petitioner is with regard to declare the Regulations of 2000 as ultra vires and unconstitutional alon
