2013 Supreme(Raj) 1920
RAJASTHAN HIGH COURT AT JAIPUR BENCH
R.S.Chauhan, Veerendr Singh Siradhana, JJ.
Babu Lal Sharma - Appellant
Versus
J.D A. and Others - Respondent
D.B. Special Appeal (Writ) No. 826 of 2013.
Decided On : 4-10-2013
Advocates:
For the Appellant:D.K. Dixit, Advocate.
For the Respondent: Amit tanwani, Amit Kuri, Amit Punia, J.D.A.
The availability of an alternative remedy, such as an appeal before a statutory tribunal, may bar the exercise of the High Court's writ jurisdiction under Article 226 of the Constitution of India.
Headnote:
JDA ACT - SECTION 83 - APPEAL TO JDA TRIBUNAL - AVAILABILITY OF ALTERNATIVE REMEDY - INTERPRETATION OF SECTION 83 - SCOPE AND AMBIT OF SECTION 83 - WRIT JURISDICTION OF HIGH COURT - AVAILABILITY OF ALTERNATIVE REMEDY AS A BAR TO WRIT JURISDICTION.
Fact of the Case:
The appellant, Mr. Babu Lal Sharma, filed a writ petition before the Rajasthan High Court challenging the inaction of the Jaipur Development Authority (JDA) in taking action against illegal construction on a plot adjacent to his property. The appellant contended that the JDA had failed to take action despite receiving complaints about the illegal construction. The learned Single Judge dismissed the writ petition on the ground that the appellant had an alternative remedy of appeal before the JDA Tribunal under Section 83 of the JDA Act.
Finding of the Court:
The Rajasthan High Court held that the appellant had an alternative remedy of appeal before the JDA Tribunal under Section 83 of the JDA Act. The Court interpreted Section 83(8) of the JDA Act and held that it can be divided into two parts: sub-section (a) and sub-section (b). Sub-section (a) restricts itself to the category of persons aggrieved by "an order" and "notice" issued by the Authority, whereas sub-section (b) covers a larger group of those persons who are aggrieved by any threatened act or injury. The Court held that the word "act" in Section 83(2) of the JDA Act would also include "an illegal omission" committed by the JDA. Therefore, the appellant was entitled to invoke the jurisdiction of the JDA Tribunal.
Issues: 1. Whether the appellant had an alternative remedy of appeal before the JDA Tribunal under Section 83 of the JDA Act? 2. Whether the High Court could exercise its writ jurisdiction under Article 226 of the Constitution of India in the presence of an alternative remedy?
Ratio Decidendi: 1. The Court held that Section 83(8) of the JDA Act can be divided into two parts: sub-section (a) and sub-section (b). Sub-section (a) restricts itself to the category of persons aggrieved by "an order" and "notice" issued by the Authority, whereas sub-section (b) covers a larger group of those persons who are aggrieved by any threatened act or injury. 2. The Court held that the word "act" in Section 83(2) of the JDA Act would also include "an illegal omission" committed by the JDA. Therefore, the appellant was entitled to invoke the jurisdiction of the JDA Tribunal. 3. The Court held that since the appellant had an alternative remedy of appeal before the JDA Tribunal, the learned Single Judge was justified in refusing to exercise his discretion under Article 226 of the Constitution of India.
Final Decision: The Rajasthan High Court dismissed the appeal filed by the appellant. The Court held that the appellant had an alternative remedy of appeal before the JDA Tribunal under Section 83 of the JDA Act and, therefore, the High Court could not exercise its writ jurisdiction under Article 226 of the Constitution of India.
JUDGMENT
1. - The appellant, Mr. Babu Lal Sharma, is aggrieved by the judgment dated 7.8.2013 passed by the learned Single Judge of this Court in S.B. Civil Writ Petition No. 14259/2013 whereby the learned Single Judge has dismissed the writ petition filed by the appellant.
2. The brief facts of the case are that the petitioner happens to be a resident of Plot No. 161, Vishveshwariya Nagar, Gopalpura Bye Pass, Jaipur. According to him, he has purchased Plot No. 54 in the said Vishveshwariya Nagar. Initially, Plot No. 57-A belonged to one Mr. Naveen Chand. When the plot was sold to the original owner, there were certain conditions and regulations contained in the lease-deed issued by the J.D.A. Later on Mr. Naveen Chand sold the plot to Mr. Aakash Gupta-respondent No. 3. The said Plot No. 57-A had an area near about 311.11 square yards. According to the appellant, after purchasing the said plot, Mr. Aakash Gupta started a construction allegedly of flats. He constructed a basement, ground floor, first floor and the second floor. On each floor, he constructed two flats. As long as Mr. Gupta raised the construction in accordance with the approved plans, the appellant did not complaint But when he started to raise the construction for which he did not have approved plans, the appellant filed complaints with the J.D.A. The complaints were registered at Nos. 3929 and 4726 dated 13.7.2013. The said complaints were filed with the Commissioner, J.D.A. as well as with the Deputy Commissioner, Zone-5. But despite having received the complaints, the J.D.A. did not take any action; it did not prevent further construction on the said plot. Therefore, the appellant was constrained to file the writ petition before this Court. He prayed that the J.D.A. be directed to immediately demolish the illegal construction on plot No. 57A, Vishveshwariya Nagar Extension, Gopalpura Bye Pass, Jaipur. However, after hearing the learned counsel, by judgment dated 7.8.2013, the learned Single Judge dismissed the writ petition. Hence, this appeal before this Court.
3. Mr. D.K. Dixit, the learned counsel for the appellant, has vehemently contended that the learned Single Judge has erred in dismissing the writ petition ostensibly on the ground that the appellant had an alternative remedy under the J.D.A. Act. Although Section 83 of the Act does provide a remedy of appeal before the J.D.A. Tribunal, but the same cannot be availed of by the appellant. According to the learned counsel, the provision of appeal is available only when an order or notice has been issued by the J.D.A. However, in the present case, neither any order, nor a notice has been issued by the J.D.A. Thus, the appellant does not have the availability of alternative remedy to approach the JDA Tribunal by way of filing or an appeal. Secondly, according to Rule 30, a reference can be made to the Tribunal. But the said reference can only be made by the Secretary of the JDA, and not by a private person. Thus, the appellant neither has a remedy of filing of an appeal, nor a remedy of filing of a reference before the J.D.A. Tribunal. Hence, according to the learned counsel, the learned Judge has misinterpreted the scope and ambit of Section 83 of the JDA Act. Therefore, the impugned judgment deserves to be interfered with.
4. On the other hand, Mr. Amit Tanwani, learned counsel for JDA, has contended that Section 83 clearly provides that an appeal can be filed by any person, who is aggrieved by any threatened act or injury from the Authority. Therefore, Section 83 entitles the appellant to file an appeal before JDA Tribunal. Hence, learned Single Judge was justified in concluding that since the appellant has an alternative remedy, the writ jurisdiction of this Court should not be invoked. Therefore, the learned counsel has supported the impugned judgment.
5. Heard counsel for the parties and perused the impugned judgment.
6. Section 83(8) of the JDA Act is as under :
"(8) xxx xxx xxx
(a) any person aggrieved b
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