In the High Court of Judicature for Rajasthan Jaipur Bench **
Civil Writ Petition No.2773/2009
Geeta Devi Versus JDA & Ors
Date of Order ::: 20/10/2010
Hon’ble Mr. Justice Ajay Rastogi
Mr. RS Mehta, for petitioner
Mr. Bharat Vyas, for respondent-3
Mr. Deepak Pareek for respondent-JDA
Instant petition is directed against judgment dt.02/03/2009 (Ann.16) whereby the Jaipur Development Authority Appellate Tribunal dismissed appeal (No.121/2008) preferred by petitioner against notice served U/s 72 of Jaipur Development Authority Act, 1982 (JDA Act).
As alleged, petitioner purchased a plot No.33 (measuring 235 sq. yards), in Tagore Nagar Extension, Heerapura, Jaipur from Shri Mahaveer Swami Grah Nirman Sahkari Samiti Ltd (respondent-4) on 01/04/1990 and on possession being handed over, construction was raised way back in November, 1990 and since then she is residing and in possession of the said plot. Initially a notice dt.28/09/1991 U/s 32 of JDA Act was served upon her – against which a Reference was filed before the JDA Appellate Tribunal; and at that time, petitioner along with her husband went to the Officer of JDA and apprised of the factual position of the plot in question pursuant to notice (supra) and since the JDA has not taken steps thereafter and in the meanwhile, the petitioner applied for no objection certificate for electricity and water connections at residential plot in question, which was granted on 23/09/1998 (Ann.4) and that apart, petitioner deposited conversion charges vide challan No.17335/dt.09/06/2005 besides Nazrana charges vide challan No.A-419/dt.21/04/2007 and no further dues remained payable. However, in the year 1999, notice was served by respondent JDA threatening of action being taken against her, she filed Reference petition before JDA appellate Tribunal on 22/05/1999, and since no active steps being taken by JDA and she has also not pursued Reference petition, it was dismissed on 22/05/1999 for non-prosecution and after dismissal of Reference petition, she preferred CWP-2717/2001 which was disposed of vide order dt.18/07/2006 observing that the Tribunal may decide the dispute regard plot in question on merits and liberty was also granted to her to approach again. At the same time, while the respondents were trying to dispossess the petitioner by use of force, petitioner had no option but to file suit for injunction before Civil Judge and temporary injunction was granted by civil court vide order dt.10/08/07 (Ann.5); however, temporary injunction was modified vide order dt.10/08/2007 (Ann.R.6) with a liberty granted to the JDA to take possession of the suit plot after following due process of law; and accordingly, the JDA served notice dt.23/08/2007 (Ann.6) U/s 72 of JDA Act, 1982, to which reply was filed by her on 30/08/2007 (Ann.7) and after hearing the parties, matter was remanded by appellate Tribunal to the JDA vide order dt.01/09/2007 (Ann.8) in Reference No.251/2007 directing the petitioner to appear on or before 06/09/2007 alongwith documents in support of her claim for being placed on record before the authority so as to objectively consider the matter and decide in accordance with law. However, instead of appearing before the JDA pursuant to Tribunal’s order dt. 01/09/2007, petitioner filed CWP-6945/2007 and after the reply being filed by the JDA, writ petition was disposed of by this Court vide order dt.10/01/2008 (Ann.9) with the direction that the order dt.01/09/2007 be maintained and the JDA may decide the matter as directed by the Tribunal; without being guided by previous action taken against her; and if any adverse order is passed against her finally by the JDA then she should not be dispossessed for three weeks after passing of such order by JDA; and she was given liberty to avail of remedy. Pursuant to order dt.01/08/2008 in CWP-6945/07, the JDA served notice dt.18/03/08 upon petitioner U/s 72 of JDA Act to place relevant documents and after affording opportunity of hearing, the JDA passed order dt.19/04/2008 (Ann.15) to dispossess the petitioner against which she preferred appeal (No.121/2008) which was dismissed by JDA appellate Tribunal vide judgment dt. 02/03/2009 (Ann.16) holding that notice U/s 72 of JDA Act was valid and rightly served upon her and no such scheme was submitted by respondent-4 (Shri Mahavir Swami Grah Nirman Sahakari Samiti) for approval in the name of Tagore Nagar Extension Scheme; and after the land was acquired and possession was taken over on 16/11/1984, it vested with the State Government; as such no such allotment could have been made in favour of petitioner without holding any title by the respondent-Society in April, 1990 and taking note whereof, petitioner was held as encroacher and accordingly directed that possession of the disputed plot may be handed over to the allottee (respondent-3) in terms of letter of allotment dt.13/09/1996.
It would be relevant to mention that much prior to alleged plot NO.33 being purchased by petitioner through Society, it had fallen in Khasra No.31 measuring 3 bighas & 13 biswas of land situated at village Heera Pura Tehsil Jaipur, of which acquisition proceedings were initiated by State Govt vide notification dt. 07/03/1984 (Ann.R-1/1). The land acquisition officer after holding acquisition proceedings took possession of Khasra No.31 from Khatedar on 16/11/1984 (Ann.R-1/2). After acquiring land, the JDA allotted the acquired land (supra) for residential purposes under its Chitrakoot Scheme, including plot No.33 in question which came to be demarcated as plot No.E-6/263 & E-6/264 in Chitrakoot Scheme and Plot No.E-6/264 was allotted to respondent-3 vide letter of allotment dt.13/09/96 (Ann.R-1/3); but its possession could not be handed over to the allottee (respondent-3) despite all charges being deposited because of the dispute raised at the behest of petitioner and pending before this Court.
Counsel submits that the that finding recorded by JDA Tribunal because of non-participation by Housing Co-operative Society, from whom she purchased the plot, no adverse inference can be drawn, is totally erroneous and deserves to be set aside.
Counsel submits that after issuance of allotment of plot being purchased through Society, its possession was handed over by the Society in April, 1990 over which construction was raised and No objection certificate was issued by the JDA in her favour for electricity & water connection; and taking note whereof, finding recorded by the Tribunal holding petitioner as encroacher and upholding the notice served upon petitioner U/s 72 of JDA Act is not legally sustainable.
Counsel further submits that petitioner since residing in the plot NO.33 from April 1990 is entitled for regularization of her plot pursuant to Circular dt.26/05/2000 issued by State Government under which the plots under various schemes have been regularized details of which have been furnished in additional affidavit filed by her – on the basis whereof, Counsel submits that she being bonafide purchaser is entitled for regularization; and inaction on the part of respondent-JDA is violative of Art.14 of the Constitution and this has not been properly appreciated by the learned tribunal while rejecting her claim.
Counsel for respondents jointly on the other hand submit that the finding recorded by the Tribunal under impugned judgment is duly supported by material on record and does not call for interference under limited scope of judicial review U/Art.226 of the Constitution.
This Court has considered rival contentions of Counsel for the parties and with their assistance, examined material on record. It has not been disputed that acquisition proceedings were initiated way back vide notification dt.07/03/1984 (Ann.R-1/1) in respect of Khasra NO.31 measuring 3 bighas & 13 biswas of land situated at village Heerapura Tehsil Jaipur & possession whereof was taken over by land acquisition officer on 16/11/1984 (Ann.R-1/2); and plot NO.33 allegedly purchased by petitioner through Society had fallen in Khasra No.31, which finally vested with State Government on being acquired vide notification dt.07/03/1984 (Ann.R-1/1). That apart, no material has come on record as to how title of plot NO.33 was legally vested with the Society which had allegedly allotted to the petitioner in April, 1990 under its Tagore Nagar Extension Scheme.
It is not the case of petitioner that Khatedar of Khasra NO.31 acquired by State Govt vide notification dt.07/03/1984 (Ann.R-1/1) at any point of time, transferred possession of the land to the Society and from whom it was transferred to the petitioner. It has come on record that the Society has never submitted such Scheme before Jaipur Development Authority under the name of Tagore Nagar Extension; in absence of Society having held any title, allotment of plot No.33 as claimed by petitioner in April, 1990 does not hold any legal significance and no legal title could have transferred to the petitioner.
Learned Tribunal also observed that when there was no such scheme in the name of Tagore Nagar Extension being ever submitted by the Society, so called allotment of plot No.33 as claimed by petitioner is of no significance and title whereof in no manner could have been transferred to the petitioner when the Society itself was not holding any valid title and in such circumstances, indisputably petitioner is an encroacher and the authority has rightly served notice impugned upon her for removal of encroachment U/s 72 of the JDA Act.
As regards submission made on which Counsel for petitioner laid much thrust that the petitioner holding possession since April, 1990 and having raised construction over plot No.33, is entitled to seek regularization pursuant to Circular dt.26/05/2000 of State Government and in terms whereof other vacant plot No.E-6/263 or any other suitable alternative plot be allotted to her, is of no substance for the reason that the petitioner came into possession of plot NO.33 as alleged in April, 1990 much after acquisition proceedings having commenced vide notification dt.07/03/1984 (Ann.R-1/1) and possession of acquired land having been taken way back on 16/11/1984 (Ann.R-1/2).
That apart, the finding has come on record that the Society has never submitted any such Scheme in the name of Tagore Nagar Extension; as such plot NO.33 being isolated plot allotted to her, in the facts of instant case, when the society itself was not holding valid title – in absence whereof, the so-called allotment of plot NO.33 and claiming possession over Government land for regularization under Circular dt.26/05/2000 is not available to the petitioner and this Court would not countenance and give judicial recognition to such encroachers claiming regularization of plot on the premise of unauthorized/illegal possession over Government land.
After going through material on record and the judgment of the Tribunal, this Court does not find any manifest error or perversity in the findings recorded which may call for interference.
Before parting with the order, this Court would like to observe that indisputably plot NO.33 over which the petitioner claimed possession is part of Khasra No.31 having been acquired by State Government vide notification No.07/03/1984 (Ann.R-1/1) for Chitrakoot Housing Scheme of the JDA and Plot NO.33 falls within Chitrakoot Scheme and where the JDA has drawn plot Nos.E-6/263 & E-6/264 and indisputably plot No.E-6/264 has been allotted by the JDA to Tej Singh who since died is being represented by his legal heir & representative, who deposited all the charges raised by JDA, but has not been given possession of allotted plot since its allotment made on 13/09/1996 (Ann.R/3) so far, certainly entitled for possession.
Consequently, writ petition fails and is hereby dismissed. However, the JDA is directed to hand over the vacant possession of plot Nos.E-6/264 to respondent NO.3 without any further delay. No order as to costs.
(Ajay Rastogi), J.
K.Khatri/p7/
2773CW2009Oct20RsrJDA.doc