SBCWP NO.9333/07. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR S.B. CIVIL WRIT PETITION NO.9333/2007 M/s. Prem Nath Motors Versus J.D.A. Tribunal & Ors. Date of order : 20/02/2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri R.K.Agrawal ] Shri Ravi Chirania ] Counsel for petitioner. Shri Alok Sharma ] Shri G.L.Pareek, Sr. Adv. with Shri A.N.Sharma ], Counsel for respondents. ****** BY THE COURT: This matter comes up on application for vacation of stay order passed by this Court on 02.11.2007, the same was however heard finally with the consent of the parties and is now being decided accordingly. Present writ petition is directed against the judgment dated 04.10.2007 passed by Jaipur Development Authority Appellate Tribunal(for short “the Tribunal”) in an appeal preferred by the petitioner challenging the notice dated 14.08.2007 served upon it by the Jaipur Development Authority under Section 72 of the Jaipur Development Authority Act, 1982 (hereinafter referred to as “the Act”). Learned counsel for the petitioner has argued that initially, 567 Sq.Yd. piece of land was alloted to the petitioner by Urban Improvement SBCWP NO.9333/07. 2 Trust, Jaipur (hereinafter referred to as “the UIT”) vide order dated 06.04.1955. However, the UIT on 04.10.1972, offered to allot an alternate piece of land to the petitioner. Conditions of such allotment were prescribed vide order dated 18.04.1974. Deed of Agreement was executed between the parties on 04.11.1976 according to which, the land measuring 1333.3 Sq.Yd. was alloted to the petitioner on rent basis @ Rs.100.38 per month and the period of lease was to expire on 06.04.1980. The Deed of Agreement further stated that the allotment would be subject to the Revenue Standing Order No.1 and bye-laws prevailing in Scheme Subhash Nagar Scheme, Jhotwara Road, Jaipur. After expiry of the present lease i.e. after 06.04.1980, the petitioner would be entitled to enter into fresh deed for renewal of lease according to the aforesaid standing order. Certain correspondences took place between the petitioner on the one hand and the UIT and thereafter, the Jaipur Development Authority (for short “the J.D.A.”) on the other. The petitioner submitted the plans for approval of petrol pump on alloted plot to the J.D.A. on 28.05.1993 as demanded by them. The J.D.A. however, in the meantime, vide order dated 05.09.1995 cancelled the allotment made to the petitioner, which was quashed by the J.D.A. Appellate Tribunal in the appeal preferred by the petitioner vide its order dated 24.11.1997. In SBCWP NO.9333/07. 3 that order, the Tribunal held that if the possession of the petitioner in the disputed land is not taken as that of tenant but one attracting Section 100 of the Act, the J.D.A. would be free to proceed against it under the Provisions of Rajasthan Premises (Eviction of Unauthorized Occupants) Act, 1964 (in short “the Act of 1964”). The appeal was dismissed with the direction that if the Jaipur Development Authority wanted to dispossess the petitioner, then this could be done in independent proceedings under the relevant laws. With that direction, the Tribunal quashed the order dated 05.09.1995 canceling the allotment of the petitioner. The petitioner thereafter, again approached the Tribunal by making fresh application on the premise that J.D.A. might interfere with its possession and use of the plot by the petitioner and put it to auction. The said fresh application was decided by the Tribunal vide its judgment dated 13.04.2004 restraining the JDA from evicting the petitioner from the disputed land except by due process of law. It appears that the JDA initiated the proceedings of dispossessing the petitioner and recovery of the possession of the disputed land by proceedings under Section 4 (1) of the Act of 1964. Notice of such proceedings was issued to the petitioner on 07.01.2006. The petitioner filed its reply thereto on 01.02.2006. The Estate Officer passed the order of the SBCWP NO.9333/07. 4 eviction of the petitioner on 14.06.2007. On that basis, the J.D.A. issued notice under Section 72 of the J.D.A. Act to the petitioner on 14.08.2007 to which also the petitioner submitted his reply on 17.08.2007. Claim of the petitioner is that it at that stage for the first time on 24.08.2007 came to know that the J.D.A. has illegally alloted the petitioner's land to respondent No.4 on 23.08.2007. The petitioner immediately filed an appeal before the Tribunal again against the aforesaid notice under Section 72 of the Act on 24.08.2007. Separately, it also filed an appeal before the learned District Judge against the order of the Estate Officer directing eviction of the petitioner vide order dated 14.06.2007. The Tribunal dismissed this last appeal of the petitioner filed against the notice issued under Section 72 vide its judgment dated 04.10.2007 which is impugned in the present proceedings. Shri R.K.Agrawal, learned counsel for the petitioner has argued that the land was alloted to the petitioner for setting up petrol pump vide allotment order dated 18.04.1974 and, thereafter, an agreement, though described as deed of agreement, which in substance was a lease agreement was executed on 04.11.1976. According to the learned counsel, the lease was renewable at the option of the petitioner. Since the lease deed was signed in 1976 with the lease period of 30 years, starting from 1976, this period expired in SBCWP NO.9333/07. 5 2006. It is further argued that the petitioner submitted map for approval of the plan of petrol pump and no decision was taken by the respondent J.D.A. either for approval or rejection of such plan. J.D.A. vide letter dated 15.03.1990 conveyed the petitioner that the matter with regard to the approval of the said plan was still pending for consideration. Possession of the petitioner over the land in dispute for the subsequent period would be treated as based on extension of the lease. Shri R.K. Agrawal learned counsel for the petitioner has argued that the position of the petitioner cannot be in any manner described as a trespasser. The petitioner came to know for the first time from the reply of the J.D.A. before the Tribunal in their appeal filed against the notice under Section 72 that the final eviction order has been passed by the Tribunal. Learned counsel also argued that the Estate Officer has not applied his mind and has simply put his signature on the draft order prepared by his clerk. The order therefore, besides suffering from non-application of mind, is also bad in law as no notice of hearing was given to the petitioner and for that reason, it could not participate in the hearing proceedings. Impugned order therefore, is liable to be set aside, though appeal against the order of Estate Officer has already been preferred by the petitioner before the learned District Judge. It SBCWP NO.9333/07. 6 is argued that the District Judge has passed an interim-order directing the parties to maintain status-quo with regard to land in dispute pending disposed of the aforesaid appeal. It is further argued that the petitioner is still in possession of the plot in question and first information report lodged against it by the respondent has resulted in Final Report being given by the police. It is, therefore, prayed that the impugned order be set-aside. On the other hand, Shri Alok Sharma, learned counsel for the J.D.A. has opposed the writ petition and argued that the so called lease deed is not a lease deed but is simply a deed of agreement and therefore, it cannot be accepted that the land in dispute was ever leased out to the petitioner. It is argued that even though original period expired on 06.04.1980, inspite availability of option to the petitioner to enter into a fresh lease agreement for renewal as per the Clause 5 of the aforesaid agreement dated 04.11.1976, the petitioner never exercised such option by expressing desire to get the agreement renewed for any further period. Even if it is assumed that this was a lease deed though it is contested, the petitioner never paid a single paisa as lease money for all this period of 30 years or at any time even after 06.04.1980. Lease money, alleged to have been deposited by the petitioner with J.D.A. as late as in 1991, was SBCWP NO.9333/07. 7 not accepted and, refunded and therefore, this also cannot improve the case of the petitioner. Learned counsel argued that the the appeal of the petitioner against the order passed by the Estate Officer being already pending before the District Judge and writ petition against the order passed in the proceedings initiated against the petitioner under Section 72 of the Act, is not maintainable. Even otherwise, the J.D.A. could invoke Section 72 of the Act independent of the order passed by the Tribunal because the period of 30 years expired way back on 06.04.1980. It is argued that in fact the J.D.A. has already recovered possession of the disputed land and alloted the same to respondent No. 4 and the petitioner has no right to claim the land. Since the lease period expired on 06.04.1980, the Tribunal has rightly rejected the appeal of the petitioner. Shri Ganga Lahri pareek, learned Senior Advocate appearing for respondent No.4 also opposed the writ petition and argued that the status of the petitioner was never that of lease holder and in any case, period prescribed in the agreement having come to an end on 06.04.1980, it was not entitled to retain the possession. The proceedings against the petitioner under Section 72 of the Act were initiated and after the order passed by the Estate Officer, it was evicted from the disputed premises following the due process of SBCWP NO.9333/07. 8 law. The respondent No.4 has invested more than Rs.80 lacs in getting the aforesaid land alloted and for that reason, it is entitled to use the land for the purpose, the same was alloted. It is argued that the petitioner has already been put in possession of the land on 23.08.2007 and it is evident from the possession memo filed at Annex.R- 4/6A. It is argued that as regards the final report given by the police on the FIR registered by the respondent No.4, already a protest petition has been filed in the concerned Court, which is still pending. It is argued that after the allotment of the land to the respondent No.4, the lease deed has already been executed in its favour by J.D.A. on 23.08.2007. I have given my thoughtful consideration to the arguments made by the learned counsel for the parties and perused the impugned-order dated 04.10.2007 passed by the Tribunal. The Tribunal by the aforesaid order has rejected the appeal preferred by the petitioner, which was filed against the notice under Section 72 of the Act. Section 72 of the J.D.A. Act, 1982 provides that: “Whoever makes any encroachment in any land or space not being private property, whether such land or space belongs to or vests in the Authority or not, except steps over drain in the public street shall on conviction be punished with simple imprisonment which shall not be less than one month but which may extend to three years and with fine which may extend to twenty thousand rupees.” SBCWP NO.9333/07. 9 A perusal of the aforesaid impugned order dated 04.10.2007 reveals that the proceedings pursuant to the notice under Section 72 of the Act were preceded by a declaration about the status of the petitioner as a trespasser in the order of the Estate Officer dated 14.06.2007. Aforesaid impugned-order refers to the background facts already stated above and then proceeds to state that notice of eviction was issued to the petitioner requiring him to remove his possession from the disputed land in question on the basis of order of the Estate Officer and further that once when the allotment made to the petitioner has been cancelled, it was not entitled to retain the possession of the land. The petitioner was, therefore, ordered to be evicted from the land in dispute. The notice issued by the J.D.A. to the petitioner, therefore, proceeds on the footing that the petitioner is a trespasser in the disputed land and that assumption is founded on the order passed by the Estate Officer on 14.06.2007. The proceedings persuant to notice under Section 72 of the Act issued to the petitioner and consequently, the appeal preferred by the petitioner and then the judgment of the Tribunal rejecting the said appeal, in the sequence of events, are all therefore, result of the basic order passed by the Estate Officer which is SBCWP NO.9333/07. 10 separately under challenge separately in the appeal. Any consideration of the matter on merits of the case so as to pronounce upon the entitlement or otherwise of the petitioner to retain the possession on renewal of the lease deed would obviously therefore, have an important bearing on the outcome of the appeal which is pending for consideration with the learned District Judge. Instead of adverting to examination of the arguments on merits as aforementioned, I therefore, leave it open to the District Judge or the transferee Court to decide first whether the order of the Estate Officer dated 14.06.2007 is legally sustainable and valid order. In doing so, the Court would also obviously consider all such arguments which have been raised in this writ petition by either of the parties which they would be free to agitate there. Learned counsel for the respondent at this stage submitted that when already the status quo order has been passed by the learned District Judge, it may be clarified that the status-quo order passed by this Court stands vacated. It goes without saying that status quo order was passed by this Court pending present writ petition which is being disposed of, every order which is passed during the pendency of this petition would come to an end with its decision. At the same time, it is directed that the status-quo order passed by the Appellate Court would be co-terminous with the SBCWP NO.9333/07. 11 judgment of the appeal. While therefore, not interfering with the impugned order passed by the Tribunal, it is held that its validity would depend on the final outcome of the appeal that this is to be decided by the learned District Judge or the transferee Court. Present writ petition is disposed of with the direction to learned Appellate Court to consider and decide the appeal within a period of three months from the date certified copy of this order is produced before it. (MOHAMMAD RAFIQ), J. preety Item No. 13