The JDA had no authority to modify the approved plan to the prejudice of the petitioner, who had already completed construction in accordance with the original plan.

Headnote:
JAIPUR DEVELOPMENT AUTHORITY ACT - SECTION 83 - REFERENCE TO TRIBUNAL - MAINTAINABILITY - APPROVAL OF MAPS - MODIFICATION - RIGHTS OF ADJOINING PLOT HOLDERS - CONSTRUCTION PRIOR TO APPROVAL - EFFECT - INTERPRETATION OF STATUTORY PROVISIONS.
Fact of the Case:

The petitioner, owner of plot No. 209 in Vasundhara Colony, Jaipur, challenged the order of the Tribunal allowing the respondent, owner of plot No. 210, to raise a wall between their plots. The petitioner claimed that the approved plan showed plot Nos. 208 and 209 as attached plots with a common wall, while plot No. 210 was an independent plot with setbacks on all four sides. The petitioner had completed construction on her plot as per the approved plan before the Jaipur Development Authority (JDA) Act came into force in 1982. The JDA had initially approved the society's plan, but later modified it, declaring plot No. 208 as an independent plot and allowing a wall between plots 209 and 210. The petitioner objected to this modification and the JDA restored the original plan.
Finding of the Court:

The court held that the Tribunal erred in allowing the respondent's reference without issuing notice to the petitioner, whose interest was directly affected. The court also found that the JDA had no authority to modify the approved plan to the prejudice of the petitioner, who had already completed construction in accordance with the original plan. The court further held that the respondent could not be allowed to construct a wall between plots 209 and 210, as this would violate the approved plan and the petitioner's rights.
Issues: 1. Whether the Tribunal could entertain a reference under section 83 of the JDA Act without issuing notice to the petitioner, whose interest was directly affected? 2. Whether the JDA had the authority to modify the approved plan to the prejudice of the petitioner, who had already completed construction in accordance with the original plan? 3. Whether the respondent could be allowed to construct a wall between plots 209 and 210, in violation of the approved plan and the petitioner's rights?
Ratio Decidendi: 1. Section 83 of the JDA Act provides that any dispute arising out of any provision of the Act may be referred to the Tribunal by the Authority, except as otherwise provided. In this case, the respondent was aggrieved by the action of the JDA officer, and therefore, his reference to the Tribunal was maintainable. 2. The JDA had no authority to modify the approved plan to the prejudice of the petitioner, who had already completed construction in accordance with the original plan. The modification was made without any application from the petitioner for modification of her plan, and it was not shown that the respondent had started construction before the petitioner. 3. The respondent could not be allowed to construct a wall between plots 209 and 210, as this would violate the approved plan and the petitioner's rights. The petitioner had completed construction on her plot before the JDA Act came into force, and the respondent had started construction later. Therefore, the petitioner's rights could not be affected by allowing the respondent to construct a wall.
Final Decision: The court set aside the orders of the Tribunal and remanded the case back to the Tribunal for a fresh inquiry. The Tribunal was directed to determine the dates of commencement and completion of construction on plots 209 and 210, and to pass necessary orders in accordance with the court's observations.

JUDGMENT

1. 1. In the year 1975 Plot No. 209 situated in Vasundhara Colony, Tonk Road, Jaipur was acquired by the petitioner from Bharat Bhavan Nirman Sahkari Samiti, Jaipur (herein-after called as Society). According to the petitioner as per the maps approved by the society she had completed the constructions in the year 1980 or so. The Jaipur Development Authority Act (here-in-after called as the Act) had replaced the Improvement Trust Act, 1959 with effect from October 1982 i.e. the Jaipur Development Authority Act had come into existence in the year 1982. The society was required to get its L scheme approved from the Jaipur Development Authority. It is stated that the society after making certain changes had sent the plan to the JDA and the JDA after certain modifications had approved the plan. According to the petitioner her plot No. 209 had been shown as semi-detached i.e. three sides of plot have been kept open according to the plan and the rules and a common wall between plot Nos. 208 & 209 was to be constructed i.e., an attached wall between plot Nos. 208 and 209. There is another plot No. 210 adjoining plot No. 209. It is stated by the petitioner that as per plan plot holder of plot No. 209 was to keep 10 ft. portion open towards North and similarly holder of plot No. 210 was to keep 15 ft. portion open towards South for passage of sun and air in between the two plots. It is stated that the JDA had made certain changes in the plan which were opposed by the residents of the colony and a representation was made vide Annexure-2. There were certain complaints that allotee of plot No. 210 had made certain illegal constructions as alleged. A report is said to have been made by the authorities vide Annexure-3. Some complaint was made by the petitioner vide Annexure-4. A notice was sent to the respondent No. 1 vide Annexure-6 for explaining certain matters. Vide Annexure-9 certain changes were approved in regard to set- backs of plot Nos. 206 to 21 0. It is the case of the petitioner that plot Nos. 206, 207, 208 & 209 were required to keep three sides open with one wall in between plot Nos. 206 & 207 and again in between plot Nos. 208 and 209, whereas the corner plot No. 210 which is called as independent plot was supposed to keep all the four sides open. It is so depicted in the revised approval of the JDA. Being aggrieved the respondent Shyam Sunder holder of plot No. 210 moved an application for reference under section 83 of the Jaipur Development Authority Act before the Tribunal and after going into the facts of the case, a direction was given by the Tribunal that the holder of plot No. 210 shall be entitled to raise a wall towards the South of his plot i.e. in between plot Nos. 209 and 210.

2. Admittedly, while issuing direction in favour of the respondent No. I the Tribunal had not issued any notice to the petitioner even though the dispute had been raised by the petitioner from the very beginning. On having coming to know of the order passed in reference under section 83 of the Act, the petitioner moved a review application before the Tribunal. The review application was ultimately dismissed vide order dated 2.4.1996. The petitioner is challenging the order of the Tribunal Annexure-10 and also the orders of the Tribunal passed in review on 2.4.1996 (Annexure- 13).

3. Shyam Sunder, respondent No. I had filed the written statement. Initially, the JDA had not filed the written statement at all, however, on the direction of this Court, ultimately the JDA did file its reply.

4. It is stated in the reply filed by the JDA that initially these plots were carved out by the society because of the reason that in the block there were only five plots i.e. plot Nos. 206 to 210, an odd situation had been created. It is stated that in the map submitted by the society for approval to the JDA plot Nos. 206 and 207 were shown as attached having a common boundary wall and similarly the position with regard to plot Nos. 208 and 209 having c

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Judicial Analysis

1998 Supreme(Raj) 887

RAJASTHAN HIGH COURT AT JAIPUR BENCHJ.C.Verma, J.Smt. Bhanwari Devi - AppellantVersusShyam Sunder Chauhan & Ors. - RespondentS.B. Civil Writ Petition No. 3635 of 1996.Decided On : 15-01-1998

The JDA had no authority to modify the approved plan to the prejudice of the petitioner, who had already completed construction in accordance with the original plan.

Judicial Analysis

RAJASTHAN HIGH COURT AT JAIPUR BENCH
J.C.Verma, J.
Smt. Bhanwari Devi - Appellant
Versus
Shyam Sunder Chauhan & Ors. - Respondent
S.B. Civil Writ Petition No. 3635 of 1996.
Decided On : 15-01-1998