SBCWP No.2450/10. SBCWP No.4485/10. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R 1) S.B. CIVIL WRIT PETITION NO.2450/2010. National Engineering Industries Ltd. Vs. The J.D.A. Appellate Tribunal & Ors. 2) S.B. CIVIL WRIT PETITION NO.4485/2010. National Engineering Industries Ltd. Vs. The J.D.A. Appellate Tribunal & Ors. Date of Order:- December 16, 2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Alok Sharma for the petitioner. Shri N.S. Chauhan for the respondents. Shri Atul Kumar Jain for respondent No.2. ******* BY THE COURT:- These writ petitions have been filed by the petitioner-National Engineering Industries Ltd. inter- alia with the prayer that the J.D.A. Appellate Tribunal may be refrained from hearing Appeal No.108/2009 and the order passed by the Tribunal dated 1/12/2009 refusing to decide the question of jurisdiction as a preliminary issue be set-aside. Shri Alok Sharma, learned counsel for the petitioner has argued that the Tribunal in its power under Section 83 of the Jaipur Development Authority Act, 1982 cannot decide inter-se dispute between two private parties and the land although was acquired land SBCWP No.2450/10. SBCWP No.4485/10. 2 but was lawfully alloted to the petitioner in 2000 and this allotment was challenged before the Division Bench by way of public interest litigation and was held to be valid and therefore respondents cannot claim a way through the land allotted to the petitioner. Similar appeal was filed by another resident of Shanti Nagar Colony, Shri Lallu Prasad Sharma, which was rejected by the Tribunal against which, S.B. Civil Writ Petition No.6157/1998 filed before this Court is pending. It is contended that respondents have now again approached the Tribunal. It is contended that this Court in the said writ petition directed vide order dated 1/4/2009 the Jaipur Development Authority to create a way in the disputed property of Shanti Nagar Colony and when Jaipur Development Authority intended doing so by taking land of holders of that colony, they approached the Tribunal and thereafter this Court with a view to circumventing that order. Appeal before the Tribunal would not be maintainable and in any case in case petitioner may be deleted from the array of respondents in that appeal. It is further contended that the special appeal filed by the respondents has been dismissed by the Division Bench with liberty to them to approach the Tribunal. Order passed by the Division Bench would not confer jurisdiction of the Tribunal to any law, which has no proper jurisdiction. It is therefore prayed that writ petitions be allowed and the order passed by the Tribunal dated 1/12/2009 be set- aside and the name of the petitioner be deleted from SBCWP No.2450/10. SBCWP No.4485/10. 3 the array of respondents in the appeal pending before the Tribunal and in the meantime, Tribunal be directed to decide the question of jurisdiction as a preliminary issue. Per contra, Shri N.S. Chouhan and Shri Atul Kumar Jain, learned counsel for the respondents have submitted that respondents had filed an appeal against the order passed by the learned Single Bench dated 10/4/2009 passed in S.B. Civil Writ Petition No.6157/1998 filed by Lallu Prasad Sharma in which, they were impleaded as party. Division Bench however did not entertain the appeal and dismissed the same vide order dated 29/4/2009 because in its view, order of the Jaipur Development Authority calling upon the respondents to surrender 30 feet land out of Plots No.140 & 141 was appealable before the Tribunal itself and could not be directly challengeable before the High Court. According to the Division Bench, appropriate remedy available to the respondents was to approach the Tribunal constituted under Jaipur Development Authority Act, 1982. Learned counsel argued that with regard to pending writ petition of Lallu Prasad Sharma, it was clarified by the Division Bench that pendency of that writ petition filed by Lallu Prasad Sharma and others in which they were arrayed as parties, would not come in the way of the Tribunal in deciding the appeal on merits. Learned counsel therefore submitted that the Tribunal is bound by the Division Bench order, which ordained it to decide the appeal at this stage on SBCWP No.2450/10. SBCWP No.4485/10. 4 merits and not on preliminary issue and therefore application of the petitioner has rightly been rejected. Upon hearing the learned counsel for the parties and perusing the material available on record, I find that Division Bench when petitioner assailed the order passed by the Single Bench on 10/4/2009, asked Jaipur Development Authority to provide a way in Shanti Nagar Colony, which action of the Jaipur Development Authority was actually based on earlier order passed by the Single Bench on 1/4/2009. They approached the Division Bench challenging those orders and therefore it cannot be said that the Division Bench was not conscious of pendency of the writ petition or notice served upon the respondents by the Jaipur Development Authority for surrendering 30 feet land out of the plots allotted to them by the society. The order passed by the Division Bench is specific to the effect that such disputed questions of facts could not be assailed directly before the High Court and the only remedy available with the respondents was to approach the Tribunal in accordance with the provisions contained in the Jaipur Development Authority Act, 1982 itself. Division Bench further clarified that pendency of the writ petition filed by Lallu Prasad Sharma and others in which respondents have not been arrayed as parties, would not come in the way of the Tribunal to decide the appeal on merits. The assertion of the petitioner that its name be deleted from the array of respondents in SBCWP No.2450/10. SBCWP No.4485/10. 5 that appeal pending before the Tribunal or that question of jurisdiction should be decided as a preliminary issue, cannot be accepted because Division Bench directed Tribunal to decide the appeal on merits and if what the respondents are claiming is eventually granted to them, it might affect the petitioner. I do not find any infirmity in the impugned- order of the Tribunal. Both the writ petitions are therefore dismissed. (MOHAMMAD RAFIQ) J. anil