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High Court Of Rajasthan
Judgename : N.L. Tibrewal
Nizam - Appellant
Versus
Jaipur Development Authority - Respondent
S.B. Civil Writ Petition No. 332 of 1990
Decided On : 04/12/1993
OPEN SPACE - RAJASTHAN URBAN AREAS (SUB-DIVISION, RECONSTRUCTION AND IMPROVEMENT OF PLOTS) RULES, 1975 - ALLOTMENT TO PRIVATE BODY - VALIDITY - COURT ANALYSIS AND CONCLUSION: 1. Open spaces reserved under an approved scheme under the Rajasthan Urban Areas (Sub-Division, Reconstruction and Improvement of Plots) Rules, 1975 cannot be allotted by the Jaipur Development Authority (JDA) to a private personal body for a school. 2. The Rules provide a complete procedure for subdivision, reconstruction, and improvement of plots by individuals, private bodies, or government departments. The approval of a plan requires compliance with specific standards and provisions for roads, open spaces, educational facilities, and other amenities. 3. Open spaces are defined as parks, gardens, lawns, or any other form of open space intended for public use. The Rules specify the minimum size and location requirements for open spaces and local parks. 4. Educational facilities are provided for separately under the Rules. The ownership of roads, parks, and open spaces vests in the JDA from the date of approval of the plan, while the ownership of the area reserved for educational or other facilities remains with the developer. 5. In the present case, the JDA allotted a site of open space to a private school, despite the existence of a public school in the vicinity and objections from residents of the locality. 6. The Court held that the JDA's action was illegal and without authority in law. It emphasized that open spaces are meant for public use and cannot be sold or allotted to private entities at the expense of the general public. 7. The Court also rejected the argument that the site in question was not earmarked for a children's playground but was reserved as a 'facility area' in the approved plan. It clarified that a school is not a facility within the meaning of the Rules and that the JDA had no discretion to change the user of the open space. 8. The Court further held that the residents of the locality had the necessary locus standi to challenge the JDA's decision, as they were directly affected by the loss of the open space. 9. The Court's decision upholds the importance of preserving open spaces for public use and prevents the arbitrary allotment of such spaces to private entities.
Fact of the Case:
The Jaipur Development Authority (JDA) allotted a site of open space to a private school, despite the existence of a public school in the vicinity and objections from residents of the locality. The residents filed writ petitions challenging the allotment, arguing that it was illegal and without authority in law.
Finding of the Court:
The Court held that the JDA's action was illegal and without authority in law. It emphasized that open spaces are meant for public use and cannot be sold or allotted to private entities at the expense of the general public. The Court also rejected the argument that the site in question was not earmarked for a children's playground but was reserved as a 'facility area' in the approved plan. It clarified that a school is not a facility within the meaning of the Rules and that the JDA had no discretion to change the user of the open space.
Issues: 1. Whether JDA could change or convert the user of the land of an open space intended to be used by the public for park, garden, lawn or children’s play ground etc. for a school; 2. Whether such open space could be allotted to a private person or body.
Ratio Decidendi: 1. Open spaces reserved under an approved scheme under the Rajasthan Urban Areas (Sub-Division, Reconstruction and Improvement of Plots) Rules, 1975 cannot be allotted by the Jaipur Development Authority (JDA) to a private personal body for a school. 2. The Rules provide a complete procedure for subdivision, reconstruction, and improvement of plots by individuals, private bodies, or government departments. The approval of a plan requires compliance with specific standards and provisions for roads, open spaces, educational facilities, and other amenities. 3. Open spaces are defined as parks, gardens, lawns, or any other form of open space intended for public use. The Rules specify the minimum size and location requirements for open spaces and local parks. 4. Educational facilities are provided for separately under the Rules. The ownership of roads, parks, and open spaces vests in the JDA from the date of approval of the plan, while the ownership of the area reserved for educational or other facilities remains with the developer.
Final Decision: The Court allowed the writ petitions and quashed the JDA's allotment of the open space to the private school.
N.L. Tibrewal, J.-Both the writ petitions relate to the same subject-matter and common questions of law and facts are involved hence, they are disposed of by a common order. An important question of general
importance involved in the petitions is : --
“Whether an open space/spaces reserved as per approved scheme under Rajasthan Urban Areas (Sub-Division, Reconstruction and Improvement of Plots) Rules, 1975 could be allotted by Jaipur Development Authority to a private personal body for a school.”
2. Rajasthan Urban Areas (Sub-Division, Reconstruction and Improvement of Plots) Rules, 1975 (in short, ‘the Rules’) have been framed by the State Government in exercise of powers under Section 74 read with Section 73-A of the Urban Improvement Trust Act (for short, ‘UIT Act), The Rules provides a complete procedure permission for subdivision, reconstruction and improvement of plots by a person or a private individual or a local authority or group of individuals, societies including Co-operative Societies or companies whether incorporated or not, or a coloniser, a State Government Department other than the Defence Department of the Government of India, Under Rule 28, the Trust is empowered to approve a plan for subdivision, reconstruction or improvement of plots with or without modification or reject any plan submitted by a developer for any reason enumerated in the said Rule. Proper standards and provisions for roads, open space, educational facilities and other facilities as prescribed by the Rules have to be complied with for the approval of a plan. ‘Open space’ means a park, garden, lawn or any other form of open space which is intended to be used by the public, as per definition given in the Rules. Rule 13 provides the standard for open space/spaces to be left reserved for public use in a plan. It provides as under: --
“Rule 13. - Open Space --Open space shall be uniformally located as far as possible and be provided at the rate of 1.0 to 1.5 acre per 100 persons and shall be distribution as follows: -
S. No. Type of Minimum LOCATIO ____
open space size dimension N
on one side.
To serve To serve an area. plots numbering
1. Totlot 650 sq. 18 M 30-40 195-240 M. (650’-800’)
meter (800 (60.0) radius. sq. yds.)
2. Local Park 3000 sq. 45 M 360- 450
meter (150’-O) M. (1200’ - (3630 sq. 1500’)
yds.) radius.” For educational facilities provision is made as provided under Rule 14. For any other
facility that may be deemed necessary in the plan, an area is adequately provided as per direction of the Trust. It is noteworthy that as per Rule 30(2), the ownership of road, parks and open spaces is vested in the Tust from the date of the approval of the plan by the Trust. In other words, the ownership of the area/site reserved for educational facility or any other facility remains in the developer even after the approval of the scheme.
3. Writ Petition No. 332/90 is a letter petition --public interest litigation, while writ petition No. 1856/89 has been filed by Modem Educational Cultural Society (hereinafter, to be referred as ‘Modern School’). The necessary facts of the case, as gathered from the replies of the parties and the original relevant files produced by the learned Counsel for Jaipur Development Authority (in short, ‘JDA’ or ‘Authority’) may be stated in short.
New-Lite Housing Co-operative Society Ltd. (for short ‘Co-operative Society’) applied for sub-division of plots under the Rules in the year 1976. A lay out plan of the lands bearing khasra Nos. 106, 107, 107/119 and 114 was also submitted along with the application as required in the Rules. The scheme was approved by the Authority after some modifications. In the approved plan, an area measuring 884.72 sq. yds. was reserved for a school, and open spaces were also earmarked intended to be used by the public as provided under the Rules. Sometime in the year 1981, the Principal of the Modern School had applied to the then Minister for Local Self Government for the allotment of a s
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