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2018 Supreme(Raj) 875
IN THE HIGH COURT OF JUDICATURE AT RAJASTHAN BENCH AT JAIPUR
Sanjeev Prakash Sharma, J.
Shiv Nagar - A Vikas Samiti Harnathpura – Appellant
Versus
State of Rajasthan – Respondent
Civil Writ Petition No. 8991 of 2006
Decided On : 11-09-2018
Devendera Raghava, Mahesh Gupta, D.S. Poonia, Amit Tanwani, Anil Mehta.
Headnote:
Constitution of India - 1950 – Charges – Construction of park - Plot holders purchased their plots, - Submission of counsel for petitioner is that housing society i.e. Mutual housing cooperative society limited had set up on road scheme known as Nagar While approving plan submitted by Mutual Society JDA in its meeting held on had approved facility area of square yards for construction of park - JDA also constructed a feet high boundary wall around park and the facilities of park were being enjoyed by residents of area peacefully and uninterrupted - When plot holders purchased their plots Mutual had shown park of area of square yards –Held, Noted that private plots had already been purchased by respondents prior to colony being approved by JDA in its meeting of - It is also to be noted that these plots holders were Army Personnel’s who may not have known about their plots being included in park area at that relevant time - This Court finds that JDA has only corrected its earlier mistake by taking decision in its meeting and such a decision regularizing plots which were already existing in plan is within their jurisdiction and domain and no interference - Petition dismissed
1. The petitioners have filed this present writ petition wherein they have challenged the decision taken by the Bhawan Nirman Manchitra Samiti in its 92nd meeting dated 27.01.2006 of agenda no. 9 and also the decision of the JDA Appellate Tribunal dated 10.11.2006.
2. Vide decision dated 27.01.2006 in its 92nd meeting, the JDA has revised its earlier decision taken in 14th meeting dated 17.04.2002 and has released plots No. 146 to 152 and 159 to 165 from the facility area.
3. The submission of the learned counsel for the petitioner is that housing society i.e. Mutual housing cooperative society limited, had set up on Kalwar road scheme known as Shiv Nagar A. While approving the plan submitted by the Mutual Society, the JDA in its 14th meeting held on 17.04.2002 had approved facility area of 3500 square yards for construction of park. The JDA also constructed a 4 feet high boundary wall around the park and the facilities of the park were being enjoyed by the residents of the area peacefully and uninterrupted. When the plot holders purchased their plots, the Mutual Grah Nirman Sahkari Samiti had shown the park of the area of 3500 square yards.
4. It is their submission that in 92nd meeting of JDA, the earlier decision dated 17.04.2002 was reversed and the decision to keep facility area was deleted wrongfully. Thereafter the JDA released the plots for allotment namely plot nos. 142 to 152 and 159 to 165 in favour of respondents.
5. The aforesaid decision dated 27.01.2006 was challenged by the petitioners by preferring an appeal before the JDA Appellate Tribunal, the Tribunal appointed a Commissioner for site inspection who give a report that the park was bound by a boundary wall by all four corners. The Tribunal has rejected the appeal subsequently vide its judgment dated 10.11.2006.
6. The submissions of learned counsel are firstly that the JDA does not have the authority to revise the plan after four years and exclude from the land already earmarked for park and allot it for residential purpose. Secondly, an open space reserved as public park which was duly approved could not have been reduced merely because the total area of the colony as per the plan only contained 36% residential area and remaining was facility area, thirdly that the conversion has been done by the JDA for extraneous purposes and to give benefit to the respondents, fourthly that the change in the approved plan has been done in contravention of the Rajasthan Urban (Sub-Division Reconstitution and Improvement of Plots) Rules 1975 (hereinafter referred to as "the Rules of 1975").
7. Counsel for the petitioners has pointed out that an interim order was passed by this Court on 29.11.2006 which was vacated on 06.08.2007 on the application filed under Section 226(3). Against the interim order of dismissal, the petitioner had filed D.B. Special Appeal (Writ) No. 1054/2007 wherein the Court passed interim order in following terms:-
"It fully protects the interests of the petitioners and we are satisfied that the following order shall meet the ends of justice to remain operative until disposal of the writ petition:
(1) The respondents no. 6, 7, 8 and 9 shall file a undertakings, individually or collectively as the case may be, with the Registrar (Administration) of this Court that in the event of Writ Petition No. 8991/2006 filed by Shiv Nagar - A Vikas Samiti, Harnathpura, Jhotwara, Jaipur being allowed and the decision taken by the Bhawan Nirman Manchitra Samiti in its 92nd meeting dated 27th January, 2006 as regards Agenda no. 9 and the decision of the Jaipur Development Authority Appellate Tribunal dated 10th November, 2006 being set aside, the respondents no. 6, 7, 8 & 9 shall remove the development, if any on plots no. 146 to 152 and 159 to 165, Shiv Nagar A Scheme at their cost and the said plots (being plots no. 146 to 152 and 159 to 165) shall be restored to its original position.
(2) The respondents no. 6, 7, 8 and 9 are restrained from transferring, alienati
