1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER Jaipur Development Authority V. Ratan Chand Gupta & anr. S.B. CIVIL WRIT PETITION NO.9114/2005 Jaipur Development Authority V. Kamal Kant & anr. S.B. CIVIL WRIT PETITION NO.9113/2005 Jaipur Development Authority V. Mahesh Kumar & anr. S.B. CIVIL WRIT PETITION NO.9109/2005 Jaipur Development Authority V.Smt. Snehlata & anr. S.B. CIVIL WRIT PETITION NO.9189/2005 Jaipur Development Authority V. Ganesh Sales Agencies & anr. S.B. CIVIL WRIT PETITION NO.9112/2005 Jaipur Development Authority V. Lalit Kumar & anr. S.B. CIVIL WRIT PETITION NO.9111/2005 Jaipur Development Authority V. M/s.Hari Stores & anr. S.B. CIVIL WRIT PETITION NO.9461/2005 Jaipur Development Authority V. Prakash Banjani & anr. S.B. CIVIL WRIT PETITION NO.9643/2005 Jaipur Development Authority V. Dinesh Kumar & anr. S.B. CIVIL WRIT PETITION NO.9255/2005 Date of order ::: February 05,2008 HON'BLE MR.JUSTICE PREM SHANKER ASOPA Mr. Bharat Vyas, Addl. AG for the JDA Mr. R.K.Agrawal ) for the respondent-reference petitioners Mr. Anil Sharma ) BY THE COURT (1) In all the above writ petitions, common issue is whether the Jaipur Development Authority Appellate Tribunal (in short `the 2 Tribunal') vide its order dated 2.9.2005 has rightly held that reference-petitioner (respondent No.1 herein) was tenant of Maharaja Sawai Man Singh II Trust (in short `the Trust') and is further entitled for allotment of shops in the New Atish Market as have been allotted to the similarly situated persons in lieu of vacating the shops in Maharani Gayatri Devi Atish Market, therefore, all the writ petitions have been clubbed together and are being decided together. (2) Since the facts are common, therefore, for the purpose of deciding the controversy involved in the matter, the facts of SBCWP No.9114/2005 are being taken. (3) Case of the reference petitioner before the Tribunal (respondent No.1 herein) was that he is a tenant of the Trust and has taken Plot No.269 measuring 9.6 x 32.6 feet total area 308 Ft. in respect of which a rent note was executed and along with the rent note, site plan was also enclosed. He has continuously paid rent to the Trust and the Trust has issued receipts. His further case is that the Trust and the J.D.A. have signed the memo of understanding dated 27.4.2005 whereby the aforesaid land of M.G.D. Atish Market of the Trust which included open space measuring 6879.36 Sq. Meters was surrendered to the JDA by the Trust for development of parking and in lieu thereof, JDA has allotted 3 3.65 Hectares of land in Village Sri Kishanpura, Jaipur to the Trust. Further case of the respondent No.1 is that he was not the signatory to the memo of understanding or surrender therefore, even if the aforesaid fact is taken as true then the reference petitioner becomes tenant of the JDA by way of attornment. When the JDA authorities came to dispossess the reference-petitioner, he filed reference petition before the Tribunal and sought injunction that unless shop is allotted to him in new Atish Market he should not be dispossessed. (4) JDA filed reply before the Tribunal and submitted that the reference-petitioner is a trespasser hence not entitled to any allotment of the shop in the New Atish Market. (5) The reference-petitioner who is occupier of the open space and utilising the same after placing tin shed structure and taking electricity connection as a shop and has further successfully proved before the Tribunal by producing the documentary evidence that he was a tenant of the Trust. After giving the aforesaid finding, the Tribunal accepted the reference and directed the JDA to allot the shop to the reference petitioner within fifteen days as has been done in the cases of other shop keepers. The Tribunal has further observed that the reference petitioner of M.G.D. Atish Market will vacate the shops and cooperate the JDA in developing 4 the parking place otherwise the JDA will be entitled to remove them. In the last, it has been finally directed that proceedings for allotment of shop be completed within 15 days. (6) The aforesaid orders of the Tribunal were challenged by the JDA in these writ petitions on the ground that the reference-petitioners are having no shops and are trespassers on the open space therefore, they are not entitled for allotment of shops in the New Atish Market as has been allotted to 162 shop keepers. (7) When a query was raised to the JDA counsel on 17.4.2007 to apprise this Court whether any list of tenants of the old Atish Market has been furnished by the Trust and if not, whether the JDA has called any such list of tenants of the old Atish Market from the said Trust which was stated to be the owner of the old Atish Market, in response to that the JDA has filed an affidavit. In para No.4 the JDA has submitted that the President of the MGD Market Association was informed about the allotment of the commercial plots in New Atish Market vide communication dated 14.2.2001 (Anx.A-2) and from the said Traders' Association list for the purpose of allotment was sought but the JDA has not given any specific answer on the issue whether the Trust has submitted list of the tenants or they have summoned list of the tenants from 5 the JDA. (8) Reference-petitioner herein in his counter affidavit submitted that there are in all 287 plots in the New Atish Market and many of which are still lying vacant and submitted list of the tenants as Schedule A to the counter affidavit wherein the deponent is one of the tenants. (9) The reference-petitioner herein has also filed reply earlier to the said affidavit in pursuance of the order dated 27.1.2006. The reference-petitioner has also submitted that he had applied for allotment. JDA Tribunal has taken into consideration the reply filed by the JDA and has further considered the documents placed on record by the respondent herein. After taking into consideration, finding of the Tribunal is that the reference petitioner (respondent herein) has successfully proved his claim that he was the tenant of the Trust and passed order to allot shop within fifteen days in New Atish Market as has been allotted to the other shop keepers and the reference-petitioners will further vacate their shops and assist in developing the parking place otherwise the JDA will be free to remove the said construction. It was also finally directed that the proceedings for allotment be completed within fifteen days. (10) Submission of counsel for the petitioner-J.D.A. is that 6 the Tribunal has committed an error of jurisdiction in not considering the fact that there was no prayer in the reference application for allotment of shops and the same was confined to issue of permanent injunction restraining the JDA from dispossessing the reference-petitioner. Further submission of the counsel is that otherwise also, it was not within the competence of the Tribunal to decide the tenancy right of the reference-petitioner qua the Trust which was not impleaded as a party. He also submits that the reference-petitioner is trespasser and possession of the open space was taken by the JDA on 27.4.2005 therefore, no injunction could have been issued. (11) Submission of counsel for the reference-petitioner is that a bare perusal of Sec. 83 of the J.D.A Act, 1982 would reveal that the reference is maintainable for any threatened act or injury from the JDA affecting his right. He further submits that the term `affecting his right' cannot be given restricted meaning to seek protection from any discriminatory or arbitrary action. He also submits that the right for allotment of alternative site in New Atish Market was duly projected by the reference-petitioner in the reference petition and the discriminatory and arbitrary act of the JDA of not allotting the shop to them was challenged and further, there 7 was no dispute with regard to the relationship of landlord and tenant between the Trust and the respondent hence the Trust was not a necessary party. Counsel for the reference- petitioner lastly submits that the Tribunal has rightly come to the conclusion that the reference-petitioner was tenant of the Trust and as per the policy of the JDA, is entitled for allotment and therefore, the injunction order was passed. On the issue of lessee and lessor relationship, the counsel submits that the authority of the executive authority is contrary to the principles of rule of law. The said authority does not enjoy higher rights than the citizen in the matter of taking possession of his property. In support of his above mentioned submission, counsel for the respondent has referred to State of UP and others V. Maharaja Dharmander Prasad Singh and others 1989(2) SCC 505, State of West Bengal V. Vishnunarayan and Associates (P) Ltd. and another (JT 2002 (3) SC 166), M/s. Chandra and Co. V. State of Rajasthan and others (AIR 1981 Rajasthan 217) and Bharat Petroleum Corporation Ltd. V. Maddula Ratnavalli and others (JT 2007(6) SC 264) para 16. An executive action must be informed by the grounds and attornment of tenancy. In Shangrila Food Products V. LIC (AIR 1986 SC 2410) the Supreme Court has held that the jurisdiction of the High Court 8 being extraordinary is normally exercisable keeping in mind the principles of equity. (12) I have gone through contents of the writ petitions and further considered rival submission of counsel for the parties. (13) As regards objection relating to the jurisdiction of the Tribunal raised by the petitioner, the reference-petitioners submission is that the same was not raised before the Tribunal and further both the parties were aware of the fact that the injunction was not only in the nature of not dispossessing them from the MGD market but the same also involves right of the respondent for allotment of shop. Therefore, the same is liable to be rejected. Further objection of the petitioner is that right of the tenancy of the Trust was involved but the Trust was not made a party also equally does not hold water for the reason that in case the reference- petitioner has successfully proved him to be a tenant of the Trust then as per the law of attornment the reference- petitioner becomes tenant of the petitioner. Therefore, the Trust was not a necessary party for seeking injunction against the JDA may be the issue is based on the tenancy of the Trust. On merit, the Tribunal has considered the receipts of rent and other documents which are the best piece of 9 evidence to prove the tenancy. The submission of Mr. Bharat Vyas that the rent note and the rent receipts are fabricated/forged has been raised for the first time before this Court and that too, without substantiating the same. Further, in the memo of understanding of surrender of land the JDA itself has not obtained any list of the tenants from the Trust. Simply making a mention in the additional affidavit that the Trust has not disclosed the list of the tenants, will not permit the JDA to allot the premises on the basis of the list submitted by the MGD Market Association which is not the owner of the shops/open space. Submission of counsel for the reference-petitioner that the JDA ought not have acted upon the list of the Association of the MGD Market while allotting shops in New Atish Market has some force as the Association is not the owner. Reference-petitioners were not the members of the Association, therefore, action of the JDA to solely rely on that list submitted by the Association is unwarranted for the purpose of tenancy appears to be correct. In the facts and circumstances of the case, the JDA ought to have called the list of the tenants from the Trust before making allotment of the shops in New Atish Market. No issue was raised by the J.D.A. before the Tribunal that the rent deed and rent receipts are fabricated/forged, therefore, it 10 cannot be permitted to be raised for the first time before this Court under Articles 226 and 227 of the Constitution of India. In the additional affidavit filed by the JDA in compliance to the order of this Court dated 17.4.2007 as indicated above, no reason has been mentioned for not calling the list of tenants from the Trust whereas the tenants have produced the list wherein their names have been placed and there is no reason to disbelieve the said list and other documents. Therefore, in my view, the Tribunal has rightly relied on the documents produced before it and committed no error of law in granting injunction. (14) Judgments referred by the petitioner need not be discussed for the simple reason that the main issue is whether the Tribunal has committed any error in accepting the petitioner as tenant of the Trust which is based on documents. (15) All the above mentioned writ petitions have no force and the same are dismissed. (PREM SHANKER ASOPA) J. GoPal 11 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER Jaipur Development Authority V. Ratan Chand Gupta & anr. S.B. CIVIL WRIT PETITION NO.9114/2005 Jaipur Development Authority V. Kamal Kant & anr. S.B. CIVIL WRIT PETITION NO.9113/2005 Jaipur Development Authority V. Mahesh Kumar & anr. S.B. CIVIL WRIT PETITION NO.9109/2005 Jaipur Development Authority V.Smt. Snehlata & anr. S.B. CIVIL WRIT PETITION NO.9189/2005 Jaipur Development Authority V. Ganesh Sales Agencies & anr. S.B. CIVIL WRIT PETITION NO.9112/2005 Jaipur Development Authority V. Lalit Kumar & anr. S.B. CIVIL WRIT PETITION NO.9111/2005 Jaipur Development Authority V. M/s.Hari Stores & anr. S.B. CIVIL WRIT PETITION NO.9461/2005 Jaipur Development Authority V. Prakash Banjani & anr. S.B. CIVIL WRIT PETITION NO.9643/2005 Jaipur Development Authority V. Dinesh Kumar & anr. S.B. CIVIL WRIT PETITION NO.9255/2005 Date of order ::: February 05,2008 HON'BLE MR.JUSTICE PREM SHANKER ASOPA Mr. Bharat Vyas, Addl. AG for the JDA Mr. R.K.Agrawal ) for the respondent-reference petitioners Mr. Anil Sharma ) Since all the above mentioned writ petitions have been dismissed, therefore,the stay petitions also stand dismissed. (PREM SHANKER ASOPA) J. GoPal