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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
SANGEET LODHA, ARUN BHANSALI, JJ.
Gulab Kothari – Petitioner
Versus
State of Rajasthan – Respondent
CIVIL WRIT (PIL) No.1554 of 2004, CIVIL WRIT (PIL) No.5642, 5645, 5646, 5907, 5908 of 2008
Decided on : 12-01-2017
(b) Rajasthan Urban Improvement Act, 1959 – Section 73B(2) – Change of land use – Conversion – Not permissible after preparation of Master Plan without modification. (Para 62)
(c) Jaipur Development Authority Act (Act No.25 OF 1982) – Section 21, 22 – Master Development Plan /Zonal Development Plan – Comprehensive goal oriented strategy plan – Prepared in accordance with section 23 – Binding and inviolable (Para 67, 69)
(d) Jaipur Development Authority Act (Act No.25 OF 1982) – Section 25 – Modification of Master Plan – No unfettered power to JDA – Cannot modify land use as defined or affecting the standards of population density in any planning area as projected – Any other modification permissible with approval of state – Section 25(2) – Even then the modification must be in furtherance of planned development of the Region in most efficient manner. (Para 73, 74, 77)
(1991) 4 SCC 54; (2012) 2 SCC 232 – Relied upon
(e) Jaipur Development Authority Act (Act No.25 OF 1982) – Section 33-A – Change of use of land – Compounding – Unauthorised development only conforming to land use plan under the Master Development Plan can be compounded. (Para 80)
(f) Rajasthan Municipalities Act, 2009 (Act No.18 of 2009) – Section 162 – Modification of Master Plan – Modification by Municipality without following procedure in section 160 and approval of State government – Not permissible. (Para 81)
(g) Rajasthan Municipalities Act, 2009 (Act No.18 of 2009) – Section 164 – Master Development Plan prepared prior to Act, 2009 – Deemed to be prepared under the Act – Can be modified in accordance with section 162. (Para 82)
(h) Town Planning – Master plan is not a static document – But it cannot be modified or set at naught at the whim and fancy of the authority concerned just to serve the interest of individuals. (Para 87)
(2006) 3 SCC 434; AIR 2004 SC 3502; (2012) 3 SCC 619 – Relied upon
(i) Town planning – Green belt – Respondents expressing inability to maintain the belt as such for its inability to acquire such huge area – Contention untenable – Acquisition not required at all – Land owners not precluded from using the lands – They will only be precluded from raising constructions – Land falling within the eco sensitive zone/ ecological zone/green belt cannot be permitted to be unscrupulously put to use for the purposes other than those specified – Article 48A & 51A, Constitution of India. (Para 101, 107)
2005 (2) WLC 559; (2004) 2 SCC 392; Karnataka Industrial Areas Development Board; Intellectuals Forum, Tirupathi – Relied upon
(j) Town Planning – Peripheral control belt – Area of peripheral control belt in Master Plans of all regions much higher than urbanisable area – Could not be intended to be kept open and unaltered for all times to come – However, any change in land use plan in the peripheral control belt during the operative period of the plan must be in the larger public interest and not to serve the interest of individuals. (Para 115, 116, 117)
(k) Town Planning – Open space/Green space/playground/recreational area etc – Must be identified and characterized and protected. (Para 119, 126, 132)
(1991) 4 SCC 54; (1995) 2 SCC 577; (2004) 5 SCC 182; 2011 AIR SCW 5424; (2012) 3 SCC 619; (2005) 3 SCC 16 – Relied upon
(l) Town planning – All civic amenities areas like mini markets etc. need to be provided and earmarked in residential areas – However once the plan is sanctioned and notified it has to be implemented strictly – Land uses in Master Development Plan form part of basic character of it – Cannot be permitted to be altered at the whims and fancy of the JDA or other local authorities so as to serve the individual interest. (Para 135, 136, 138)
(2012) 3 SCC 619; (2012) 2 SCC 232 – Relied upon
(m) Town planning – Development of number of colonies in small area – Without integrated layout plan for the infrastructure facilities and civic amenities – Should be discouraged. (Para 143)
(2010) 7 SCC 129 – Relied upon
(n) Town planning – Encroachment of footpath and deletion or conversion of parking spaces for other use – Should be viewed seriously – Section 238-A, Rajasthan Municipalities Act, 2009; Section 37B, Act No.25 of 1982; Jaipur Development Authority (Provision of Parking Space) Rules, 2011 – Implementation of the law for ensuring the provisions for adequate parking space in every building constructed within the municipal area – Extremely poor. (Para 148, 149, 150, 156)
Padma – Relied upon
(o) Rajasthan Municipalities Act, 2009 (Act No.18 of 2009) – Section 194 – Unauthorised constructions – Authorities empowered to demolish whole or part of the construction in addition to prosecuting the defaulter – Section 33A, Act No.25 of 1982 r/w Section 34, Act No.2 of 2009; Section 34, Act No.39 of 2013 and Section 73B, UIT Act – Municipality not to sanction any construction proposed in violation of provisions of the Act, rules, by-laws made thereunder or public convenience. (Para 159, 169)
(p) Rajasthan Municipalities Act, 2009 (Act No.18 of 2009) – Section 299 and 194 – Composition of unauthorised development – Rajasthan Municipalities (Compounding and Compromising of Offences) Rules, 1966 – Rules 4, 5 – Unauthorised constructions not permissible u/s 194 cannot be compounded – Discretion of compounding must be exercised judiciously – Conniving officials of the Authorities need to be punished adequately. (Para 172, 175, 185)
JT 1991(2) SC 543; (1999) 6 SCC 464; (2004) 8 SCC 733; (2009) 15 SCC 705; (2013) 5 SCC 336; (2013) 5 SCC 357; (1995) 5 SCC 762 – Relied upon
(q) Rajasthan Tenancy Act, 1955 (Act of 1955) – Section 16 r/w Section 93, Rajasthan Land Revenue Act, 1956 (Act of 1956), and Rule 4, Rajasthan Land Revenue (Allotment of Land for Agriculture Purposes) Rules, 1970 – Pasture land – Not available for allotment for agriculture purposes – Rule 7, Rajasthan Tenancy (Government) Rules, 1955 – Collector empowered to change classification of pasture land – Not exceeding 4 hectares without prior permission of the Government – Section 53, Rajasthan Panchayati Raj Act, 1994 and Rule 169, Rajasthan Panchayati Raj Rules, 1996 – Law providing not only for preservation of pasture land but extension of pasture area to ensure vegetation in abundance to feed the livestock – State authorities duty bound to ensure that the land set apart for pasturage is not divested to be used for any other purpose unauthorisedly. (Para 190, 192, 193, 194, 197)
[D.B.Civil Writ Petition (PIL) No.8816/11, decided on 16.5.12]; (2011) 11 SCC 396 – Relied upon
(r) Town planning – Natural resources – Rivers, ponds, hills etc – Required to be protected and preserved – Inaction on part of authorities despite directions from Court – Deprecated. (Para 204)
2005 RRT 59; (S.B.C.Writ Petition No.11153/11) – Referred
Certainly. Based on the provided detailed legal document, the key points regarding the scope and scope of modifications to the Master Development Plan and the status of the peripheral control belt/green belt/ecological zone are as follows:
Preparation and Validation of Master Development Plan: The Master Development Plan is a comprehensive goal-oriented strategy for systematic and planned urban development. It is prepared democratically, considering public suggestions and objections, and approved by the relevant authority and the State Government. Once approved, it becomes a legally binding document that guides land use and development.
Scope of Modification During the Operative Period: The authorities, such as the Development Authority or Municipalities, can make modifications to the Master Plan during its operational period only if such changes do not materially alter its basic character or the standards of land use and population density. These modifications require adherence to prescribed procedures, including public notices and consideration of objections.
Permissible Modifications with State Approval: The State Government may approve modifications that promote planned development in larger public interest, but such modifications must be exercised cautiously and only if they align with the overarching objectives of the original plan. The discretion of the State is not absolute and must be exercised in accordance with the statutory purpose.
Alteration of Land Use in Sensitive Zones: The land designated as ecological zones, green belts, or peripheral control belts in the Master Development Plan is a fundamental feature, intended to serve as "lung spaces" and environmental buffers. These areas are meant to be preserved and protected against any change of use during the plan’s operative period and even during revision or renewal processes.
Protection of Green and Ecological Zones: The ecological zones (including G1 and G2 zones) and green belts are critical for environmental conservation, ecological balance, and public health. They are not static but are intended to remain largely undeveloped, with any change in land use only permissible in exceptional circumstances that serve the larger public interest and are supported by environmental impact assessments.
Restrictions on Peripheral Control Belt/Green Belt: The peripheral control belt’s primary purpose is to regulate unplanned growth and urban sprawl. During the operative period, its land use cannot be altered for purposes other than those specified, unless such change is in the larger public interest and is part of a planned development strategy. Any isolated change without inclusion in the overall land use plan is not permissible.
Environmental and Public Interest Considerations: Preservation of open spaces, parks, recreational areas, and natural resources is a constitutional and statutory obligation. These areas form part of the basic character of the Master Plan and cannot be diverted or altered to serve private or individual interests during the plan’s validity or revision process, unless overriding public interest is established.
Procedural Safeguards for Changes: Any change in land use, especially in sensitive zones like ecological or green areas, requires transparent procedures, including public notices, environmental impact assessments, and consideration of public interest. Unauthorized or arbitrary modifications are liable to be reversed or declared void.
Implications of Unauthorized Changes: Unauthorized alterations or deviations from the approved Master Plan, without following due statutory procedures, are illegal. Regularization or compounding of such deviations is only permissible if they conform to permissible modifications under the law and are not detrimental to the core objectives of planned urban development.
Enforcement and Oversight: The authorities are under a constitutional and statutory obligation to enforce the preservation of designated green and ecological zones, open spaces, and civic amenities. Any illegal encroachments, unauthorized constructions, or deviations in land use must be dealt with strictly, including demolition where necessary, and officials involved in such violations should be held accountable.
In summary, the legal framework emphasizes that the Master Development Plan’s fundamental features, especially the ecological zones, green belts, and peripheral control belts, are protected as part of the plan’s basic character. Any modifications affecting these areas during the plan’s operative period or during revision require strict adherence to statutory procedures, environmental considerations, and the larger public interest, and cannot be arbitrarily or casually altered to serve private or individual interests.
SANGEET LODHA, J.
1. By an order dated 7.4.04, this court treated a letter received from Shri Gulab Kothari, Editor, Rajasthan Patrika, a leading daily newspaper of the State, containing allegations related to gross violation of the Master Development Plan of Jaipur and other cities, accompanied by various news items published in the said newspaper, as a writ petition (PIL) and issued notices to the Chief Town Planner, Urban Development & Housing Department, Government of Rajasthan.
2. On 20.1.05, a reply to the writ petition was filed on behalf of the State taking the stand that the Master Plan prepared covers various essential land uses e.g., residential, commercial, industrial, Government and Semi-Government offices, Bus Stand, Transport Nagar, Common community facilities, Parks, Open spaces, Network of the Roads and also the Periphery Control Belt required to be developed for projected population. Regarding the allegations of deviation of Master Plans as raised in the letter petition, the respondents took specific stand as under:
“(3) That so far as the allegation of the deviation as raised by the letter writ petition are concerned, the answering respondents humbly submit that some deviations are there and some are still taking place but then until and unless the general civics sense are developed in public at large and the public is made aware that the deviation of master plan is not in their interest, without the active cooperation of public at large, the answering respondents feel themselves not so happily equipped with the measure and means to control such deviation.
(4) That the answering respondents humbly submit that though the master plan is prepared, notified yet it is common phenomena that 100% projected development plan can never be implemented. For the alleged deviation, the answering respondents alone should not be blamed. It is the public which has to ultimately implement the master plan by extending there active cooperation, by giving cooperation of such a nature that everybody abides by the master plan. If nobody commits breaches or dare to violate the master plan then perhaps the answering respondents will be able to implement it in toto. The general deviation which has been pointed is because of the utilisation of the areas for the commercial and residential purposes by the private coloniser while developing their private colonies. Major factor which has been detected as the root cause for that alleged violation is that the people do not want to go far from the town and maximum people want to reside by the nearby areas irrespective of the different land use of that area.
The another reason for the alleged deviation which in the respectful submission of the answering respondent is promulgation of the Rajasthan Municipalities (change of land use) Rules, 2000. These rules have been enforced w.e.f. 31.3.2000 vide publication in Rajasthan Gazette. The copy of the same is annexed herewith and marked as Annexure R/2.
Now from the above narration, it is clear that the preparation of master plan and further change of land use to what extent can be permitted, is definitely a policy matter which has to be decided in individual case in accordance with the policy laid down by the Government and in the respectful submission of the answering respondents, this Hon'ble High Court should observe self imposed restriction in this respect and should not interfere in the policy matter.
It is again made clear that the change of land used is not to be granted merely by asking under the Rules of 2000 but is to be granted in guarded manner at the instance of the respective committees. In this way, the purpose of the writ petition can safely be said to have been fulfilled as to prevent the future deviation of the land use the various committies has been constituted to check the unfatered change of land use now.”
3. Vide order da
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