1 CWP No.5702/2006(29.1.2009) EIH V. STATE AND OTHERS IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. CIVIL WRIT PETITION NO.5702/2006 EIH ASSOCIATED HOTELS LIMITED VERSUS THE STATE OF RAJASTHAN AND OTHERS Date of order ::: January 29,2008 HON'BLE MR.JUSTICE PREM SHANKER ASOPA Mr.Sudhanshu Kasliwal with Mr.K.Verma, for the petitioner Dr.A.S.Khangarot, Addl.GA for the State Mr.Bharat Vyas, for the JDA Mr.U.N.Bhandari, Sr.Advocate with Mr.Ajeet Bhandari, for the respondents Mr.Rajendra Prasad, Amicus Curiae REPORTABLE BY THE COURT (1) By this writ petition, the petitioner has challenged the judgment dated 9.6.2006 (Anx.16) passed by the Jaipur Development Authority Appellate Tribunal (in short `the Tribunal') whereby Reference No.107/2006 filed by the petitioner has been dismissed. The petitioner has further challenged the impugned notifications dated 31.1.2006 (Anx.14) and 26.6.2006 (Anx.17) whereby objections have been invited for proposed conversion of land use in Kho- Nagorian, Tehsil Sanganer, Distt. Jaipur in respect of Khasra Nos. 596, 597, 598, 599, 600 measuring 3.40 Hectares and further in later notification dated 26.6.2006, the total land use of 3.40 Hectares of the aforesaid Khasra Nos. has been changed from `ecological' to `residential'. (2) In order to deal with the facts in effective manner, the 2 CWP No.5702/2006(29.1.2009) EIH V. STATE AND OTHERS facts referred in the writ petition and the documents annexed thereto; reply and documents annexed thereto as well as rejoinder have been consolidated and the same are as under: (3) In the Master Development Plan of Jaipur, 2011 (in short `the Master Plan') three Zones have been delineated namely `urbanisable area', `ecological zone' and `rural area'. The case of the petitioner is that land of the aforesaid Khasra Nos. falls within the ecological zone and the same has been converted to residential area contrary to the interim directions of this Court dated 20.5.2004, final directions dated 17.3.2005 and without considering the statutory flavour of the ecological zone attached to it as per Section 25 of the Jaipur Development Authority Act, 1982 (in short `the JDA Act). As regards challenge to the order of the Tribunal as well as the aforesaid impugned order of inviting objections and finalisation of the same, other facts which are relevant have been mentioned that on 1.2.2006, the notification dated 31.1.2006 u/s 25(3) of the JDA Act was published calling for the objections within fifteen days with regard to the change of land use of aforesaid Khasra Nos.596 to 600 of the master plan. The petitioner who is said to have been running a Motel has not filed any objection. However, the objections have been received from other persons and the same were finalised by issuing the notification u/s 25(1) of the JDA Act on 26.6.2006 permitting the land use of Khasra Nos.596 to 600 from ecological to residential. In between, the Reference Application 3 CWP No.5702/2006(29.1.2009) EIH V. STATE AND OTHERS filed by the petitioner without filing any objection was dismissed on 9.6.2006. The challenge to the order of the Tribunal is also based on the aforesaid facts and grounds. (4) The respondent State and the J.D.A. both in their reply supported the aforesaid final notification dated 26.6.2006 as well as the judgment of the Tribunal dated 9.6.2006 by stating in the reply that the master plan categorised certain regions meant for use as such. The Committee constituted by this Court in pursuance to the interim direction dated 19.9.2003 in the two PIL under the chairmanship of the Chief Secretary considered the aforesaid issue after providing opportunity to the person concerned and/or their counsel to represent their cases. Subsequently, the report has been given by the Committee that change in land use in question was necessitated on account of the desire of the State Government and the J.D.A. by timely interjection to stop haphazard development in the area. The Committee considered all the issues and found that if this kind of timely interjection is not undertaken, the development is bound to suffer and quality of life thereby would be adversely affected. The Committee has also taken into consideration that the framers of the master plan, some how or the other, could not keep in view the fact that the ecological zone shown in the plan covers thousands of Acres of private khatedari land. The khatedar tenants are utilising the land for development purposes and in order to maintain the zone as such,it was physically not possible to 4 CWP No.5702/2006(29.1.2009) EIH V. STATE AND OTHERS acquire such vast chunk of land. The Committee further took into consideration the development of housing scheme of the Rajasthan Housing Board and other residential schemes approved by the JDA in the rural belt adjoining ecological area. The Committee has observed that all this land is private Khatedari land and it is in close vicinity of Jaipur City, therefore, it would be difficult to ensure that the housing colonies do not develop on this land. In fact, substantial portion of this land has already been utilised for housing. Considering the over all position the Committee is of the view that it would be proper to allow planned development of houses on this land. If the Jaipur Development Authority does not allow the planned housing development on this land chances are that un-planned housing will take place on this land which would not be in the interest of city of Jaipur. It is stated in the reply that the said report of the Committee has been accepted by the Division Bench of this Court and the PIL writ petition was dismissed on 17.3.2005. It is further stated that the recommendation of the Committee was considered by the Jaipur Development Authority and the fact of allowing planned housing development on this land in order to curb the un-planned housing has been considered by the Tribunal with the further consideration of the fact that at some places, un- planned development has already taken place. It is stated in reply to the writ petition that the impugned orders are in accordance with Sec.25 of the JDA Act. 5 CWP No.5702/2006(29.1.2009) EIH V. STATE AND OTHERS (5) In reply, Mr.U.N.Bhandari, Sr.Advocate assisted by Mr.Ajeet Bhandari, appearing for the private respondents No.4 and 6 raised the preliminary objection that the petitioner has not filed any objection in pursuance to the notification dated 1.2.2006 issued u/s 25(3) of the JDA Act whereby objections have been invited within fifteen days but directly filed the Reference Application which was not maintainable. In the reply, it was further stated that in compliance to the interim direction dated 19.9.2003 this Court has constituted a Committee under the chairmanship of the Chief Secretary and the said Committee submitted its report on 22.2.2004 (Anx.R- 2/1) whereby subsequent development in between the publication of the master plan till date have been taken into consideration and recommendations of the Committee as accepted by this Court which has been already referred in Government and the JDA reply, has been repeated, therefore, the petitioner has no right to challenge the said orders of conversion of the land which are in consonance with the direction of this Court. (6) The other facts which have been mentioned in the reply are that on 19.7.2002, the Khatedar respondent No. 4 Babulal submitted an application to the J.D.A. for grant of no objection certificate to set up the residential scheme in Khasra No. 596 to 600 measuring 3.40 Hectares in Village Kho-Nagorian, Tehsil Sanganer, Distt. Jaipur; on 16.9.2002 the no objection certificate was granted by the JDA; on 23.6.2003, the 6 CWP No.5702/2006(29.1.2009) EIH V. STATE AND OTHERS Authorised Officer resumed the land under section 90-B of the Rajasthan Land Revenue Act, 1956 (in short `Land Revenue Act') and directed that the land may be recorded in the name of the JDA; on 23.12.2005 Rs.55000/- were deposited by the respondent No.4 with the JDA and subsequently, the aforesaid proceedings for inviting objections and final order took place. (7) On 4.8.2008, time was sought for filing reply to the third stay petition and the case was ordered to be listed on 28.8.2008. Meanwhile, the respondents were restrained from making construction over the land in dispute till 30.8.2008. Thereafter, this interim order was extended from time to time upto 3.9.2009. On 3.9.2008, Mr.Kasliwal submitted that in paras 5 to 9 of the reply filed by the respondent No.4 to the third stay petition, it was given out that the respondent No.4 had transferred the land in question in favour of M/s. Pooja Construction Ltd. vide registered sale deed dated 20.1.2007 and therefore, Mr.Kasliwal sought time for making an application for impleadment of M/s. Pooja Construction Ltd. as party respondent. The case was ordered to be listed on 5.9.2008 and till then the interim order was ordered to continue. On 5.9.2008, the application filed by Mr.Kasliwal for impleadment was allowed and M/s.Pooja Construction was impleaded as respondent No.6. The respondent No.6 in its reply has also supported the case of the respondent No.4 i.e. the original Khatedar. 7 CWP No.5702/2006(29.1.2009) EIH V. STATE AND OTHERS (8) As regards the Tribunal's order dated 9.6.2006, counsel for the respondents stated in the reply that the said orders have been issued after following the procedure as laid down under section 25(1) and 25(2) of the JDA Act. (9) Submission of Mr.Kasliwal is that the J.D.A. Appellate Tribunal has ignored the interim direction dated 20.5.2004 of the Division Bench of this Court as well as final direction dated 17.3.2005 of the Division Bench of this Court while dismissing the reference filed by the petitioner. His main submission is that the Division Bench had directed for the preservation of the ecological area but the J.D.A. Appellate Tribunal has ignored the same and the Jaipur Development Authority has also acted contrary to the provisions of Sec. 25(1) and 25(2) of the J.D.A Act, 1982. He also submits that the decision of the regularisation of land as well as building in the ecological zone is wholly contrary to the aforesaid interim directions and judgment of the Division Bench. Further submission of Mr.Kasliwal is that the Reference was filed prior to the notification under section 25(3) of the JDA Act. Mr.Kasliwal submitted that orders of the State authorities of converting the land use in ecological zone is contrary to the Jaipur Master Plan-2011 as well as Sec. 25 of the J.D.A. Act, 1982 and the JDA Appellate Tribunal has not appreciated the said aspect of the matter and has passed the order of reference considering the fact of subsequent development of the construction of residential colonies in the area which are being regularised. 8 CWP No.5702/2006(29.1.2009) EIH V. STATE AND OTHERS (10) In support of his contentions, Mr. Kasliwal placed reliance on the following judgments: (a) Sri K. Ramdas Shenoy V. The Chief Officers, Town Municipal Council, Udipi and others (1974) 2 SCC 506 (b) Bangalore Medical Trust V. B.S.Muddappa and others (1991) 4 SCC 54. (c) M.L.Sud and others V. Union of India and ors. (1992) Supp.(2) SCC 123). (d) Virender Gaur and others V. State of Haryana and others (1995) 2 SCC 577. (e) Dr.G.N.Khajuria and others V. Delhi Development Authority and others (1995) 5 SCC 762. (f) Delhi Development Authority V.Ravindra Mohan Aggarwal and another (1999) 3 SCC 172. (g) Govt. of A.P. and others V. J.Sridevi & others (2002) 5 SCC 37. (h) M.C.Mehta V. Union of India and others (2002) 9 SCC 481. (i) Mount Abu Education Society (Regd.) Vs. Delhi Development Authority and another (CWP No.5264/2002 and other connected cases decided on 6.5.2003 by the High Court of Delhi). (11) Mr.Rajendra Prasad, who was also allowed to participate in the proceedings to assist the Court, supported the submissions made by Mr.Kasliwal which will be dealt with at appropriate place. He further submitted that the ecological zone in the master plan is of permanent nature and it can neither be reduced nor shifted for the main reason that the same has been prepared by the expert body in the interest of the citizens of Jaipur. He further submits that as per Sec. 25 (1) of the J.D.A. Act, the JDA is authorised to make any 9 CWP No.5702/2006(29.1.2009) EIH V. STATE AND OTHERS modification which does not affect material alteration in the character of the master plan and further the State may make any other modification into the plan in order to promote planned development of any part of the Jaipur Region. The present modification in the ecological zone will not be covered by the aforesaid section therefore, the order of the J.D.A.Appellate Tribunal as well as further regularisation orders are contrary to Sec.25(1) and 25(2) of the JDA Act. (12) The State and the JDA had submitted that the order of the Tribunal dated 9.6.2006 and the notification dated 26.6.2006 are in accordance with the report of the Committee headed by the Chief Secretary as per the aforesaid interim orders dated 19.9.93, 17.3.2004 and final order dated 17.3.2005, as accepted by the Division Bench in aforesaid two PIL Writ Petitions No.1844/2001 and 4694/2003 and further observations and findings of the Division Bench given after consideration of Sec.25 of the JDA Act have also been taken into consideration, therefore, the order of the Tribunal dated 9.6.2006 and the notification dated 26.6.2006 are legal and valid. (13) Submission of Mr.U.N.Bhandari, Sr.Advocate assisted by Mr.Ajeet Bhandari, appearing for the private respondent No.4 and 6, was that the petitioner has not filed any objection, therefore, he has no right to file the Reference and seek any relief on merit. He further submitted that as per the direction of this Court, the Committee constituted under the 10 CWP No.5702/2006(29.1.2009) EIH V. STATE AND OTHERS chairmanship of the Chief Secretary submitted its report on 19.9.2003 taking note of the situation and recommended for modification. He had also submitted that once the decision of the Division Bench is there, there was no need of filing any Reference or the writ petition. He had also submitted that the notification dated 26.6.2006 (Anx.17) is as per the provisions of the J.D.A. Act as well as the directions issued by this Court in pursuance to which the petitioner has deposited fee of conversion and his land has been regularised whereon he has made part construction and other part could not be constructed on account of the interim order, therefore, the writ petition be dismissed. (14) Mr.U.N.Bhandari, Sr.Advocate further submitted that many residential colonies are situated in the area and Raj Vilas Hotel, reference of which has been given in para No. 7 of the writ petition, is not a Motel but world class Seven Star Hotel, therefore, the petitioner who has not come with clean hands, is not entitled to any relief. (15) Lastly, Mr.Bhandari submitted that in policy matter of conversion, the Court should not interfere. (16) In support of his contentions, Mr.Bhandari placed reliance on the following judgments: (a) Syed Hasan Rasul Numa and others V.UOI (AIR 1991 SC 711) (b) Bombay Dyeing & Mfg.Co.Ltd.(3) V.Bombay Environmental Action Group and others (2006) 3 SCC 434. (c) Shri Sachidanand Pandey and another Vs. 11 CWP No.5702/2006(29.1.2009) EIH V. STATE AND OTHERS The State of West Bengal and others (AIR 1987 SC 1109) (d) B.K.Muniraju V. State of Karnataka and ors. (2008) 4 SCC 451 (17) I have heard learned counsel for the parties and Mr.Rajendra Prasad, Amicus Curiae and further I have considered record of the writ petition. (18) Before proceeding further to discuss the contentions of the parties and Mr. Rajendra Prasad, it would be worthwhile to reproduce relevant portion of the Master Plan, interim orders dated 19.9.2003 in DBCWP No.1844/2001, relevant portion of the report of the Chief Secretary dated 22.2.2004 (Anx.R- 2/1), relevant portion of the order dated 17.3.2004 passed in DBCWP No.4694/2003, order dated 20.5.2004 passed in DBCWP No.1844/2001, Interim order dated 20.5.2004 passed in DBCWP No.4694/2003, final order dated 17.3.2005 passed in the DBCWP No.4694/2003 and 1844/2001 (PIL), notice inviting objections dated 31.1.2006 (Anx.12) and finalisation order dated 26.6.2006 (Anx.17) along with Sec.25 of the JDA Act which are as under: RELEVANT PORTION OF THE MASTER DEVELOPMENT PLAN OF JAIPUR – 2011 “..In this context, it has therefore, been considered necessary to delineate a green zone which may continue to remain so even after the plan period and ordinarily may not be altered in subsequent revisions modification or new development plans. Jaipur is fortunate to have available Aravali Hill ranges with forest covers abutting the urban areas towards north and east. These have provided a natural barrier against indiscriminate urbanization, thus saving the agricultural character of the area towards North, 12 CWP No.5702/2006(29.1.2009) EIH V. STATE AND OTHERS East, as compared to areas towards North West, West, South East. The study of regional drainage slopes reveals that areas of Achrol Valley are drained towards South a large part of which form catchments area of Ramgarh Dam, the main source of drinking water to walled city area. This area contiguous with the areas on both sides of NH 11 leading to Agra up to the Agra Railway line form one contiguous green zone in the Region which has a sensitive eco-system. Any degradation or deterioration in this eco-system is likely to affect quality of life of the citizens of the Region. (emphasis supplied) Keeping in view all these aspects, besides the Urbanisable Area, Ecological Zone has been delineated in the Region, this zone including the hill ranges, forest covers water bodies, settlements etc. is ideally suited to be maintained as a predominant green zone to be utilised for agriculture, forestry and allied activities besides compatible activities. The existing settlements and legally established urban and rural functions in this zone will be allowed to expand to the extent of natural growth. Functions and activities which are eco-friendly and occupy minimal built area for incidental use like recreational and health resorts, sports complexes, stud forms, golf courses etc.may come up on this zone subject to stringent control with respect to environmental and other planning aspects. The Ecological Zone shall by all means be protected against indiscriminate urbanisation and shall continue to be a predominant green area even beyond the horizon year as stipulated in this document. The boundaries of the ecological zone as delineated in the over all regional context may vary slightly for planning considerations while working out details in the Zonal Development Plans and those plans may accommodate selective extractive industries in specific areas, designated for them, few eco-friendly urban functions as may be promoted by JDA/Govt. The area of the Ecological Zone delineated at this stage is approx.449 Sq.Kms.” (emphasis supplied) Relevant portion of the order dated 19.9.2003 passed in DBCWP No.1844/2001 Kayam Singh V. State “.....Be that as it may, before such matters of larger public interest come up before the court, the same are to be scrutinized at the State Level by a High Power Committee. On scrutiny of the matters at the State Level, only those are to come to the 13 CWP No.5702/2006(29.1.2009) EIH V. STATE AND OTHERS Court, where the litigant is not satisfied with the decision and in that situation the Court may be in a better position to decide and resolve those disputes. In our opinion the interest of justice will be served in case this writ petition is disposed of in the terms that, for the grievance made in this writ petition, the petitioner may file a detailed representation to the Chief Secretary to the Government of Rajasthan. On receipt of such a representation, the Chief Secretary to the Government of Rajasthan is directed to constitute the following committee for the decision on the representation, 1. The Chief Secretary Chairman to the Government 2. The Secretary to Govern- Member ment, Urban Development & Housing Department, Government of Rajasthan, Jaipur. 3. The Secretary to the Gove- Member rnment, Law & Legal Affairs Department, Government of Rajasthan, Jaipur. 4. The Jaipur Development Member Authority through its Commissioner, Jaipur. The representation shall be decided within a period of two months from the date of receipt thereof. If the petitioner or any other person desire personal hearing in the matter, it shall be afforded by the Committee. The decision made on this representation shall be communicated to the petitioner. Compliance of this order be reported to the Court by the Committee. Liberty is granted to the petitioner to apply for revival of this writ petition in case decision on his representation of that Committee goes adverse to him. The copy of this order be sent to the Chief Secretary to the Government of Rajasthan, Jaipur. Accordingly the writ petition stands disposed of. In view of this order, the stay application filed along with the writ petition also stands disposed 14 CWP No.5702/2006(29.1.2009) EIH V. STATE AND OTHERS of.” (emphasis supplied) Relevant portion of the report of the Chief Secretary dated 22.2.2004 “72. The Committee observed that when the Master Development Plan of Jaipur – 2011 was being prepared the framers of the Master Plan presumed that the future growth of Jaipur City would be only towards the West side and South Side. The area on the East side adjoining the existing Jaipur City was set apart for as ecological zone. However, this presumption does not appear to have been correct. The Committee observed that the area east of the Jhalana Hills and South of the Jaipur-Agra Highway (between the railway line and the Kho Nagoriyan Road and Goner Road) is all private khatedari land. This land has not been acquired by the Jaipur Development Authority or any other Government Department. It is also not possible for the State Government to acquire such a large area for maintaining it as a green belt. Keeping in view the growing pressure on land for housing and the fact that all this land is private khatedari land and it is in close vicinity of Jaipur City, it would be difficult to ensure that housing colonies do not develop on this land. In fact substantial portions of this land have already been utilised for housing. Considering the overall position the Committee is of the view that it would be proper to allow planned development of housing on this land. If Jaipur Development Authority does not allow planned housing development on this land the chances are that unplanned housing will take place on this land which would not be in the interest of the city of Jaipur.” (emphasis supplied) Relevant portion of the order dated 17.3.2004 passed in DBCWP NO.4694/2003 YASHWANT SHARMA V. STATE AND OTHERS “...The aforesaid extract as already pointed out is from Part-I of the Master Development Plan-2011 and is in the form of a proposal. Part-II concretises the aforesaid proposals. The relevant para of the Master Development Plan-2011 Part-II to the extent relevant reads as under: Ecological zone 15 CWP No.5702/2006(29.1.2009) EIH V. STATE AND OTHERS “Besides the Urbanisable area, Ecological zone has been delineated in the region. This zone includes the hill ranges, forest covers, water bodies, settlements etc. This area is contiguous on both sides on N.H.11 from eastern boundary of urbanisable Area up to Agra railway line. This contiguous green zone in the region has a sensitive eco- system. The existing settlements and legally established urban and rural centres in this zone will be allowed to expand to the extent of natural growth only. Functions and activities which are eco-friendly and occupy minimum built up area for incidental use may come up in this zone. The Ecological area imbibe hierarchical distribution of Eco Growth Centres, Eco Villages and Eco Hamlets. The ecological area is proposed to be provided with adequate road network linking the growth centres, villages and hamlets. The Eco Growth Centres have been allocated 300 mt. Radius of land parcel and Eco villages with 200 mt.radius land parcel to accommodate the growing needs of the rural population. The Ecological Zone and its suitability of development is determined by natural characteristics of land such as geology, soil, hydrology and vegetation. In an endeavour to retain the natural characteristics the impact of developmental activities that come in