CW 2512/08 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.2512/2008 Ram Avtar Agarwal & Ors. Versus Jaipur Development Authority & Ors. Date of Order ::: 10/04/09 Hon'ble Mr. Justice Ajay Rastogi Mr. Rajdeepak Rastogi, for petitioners Mr. Kamlakar Sharma, for respondent NO.3 Mr. Bharat Vyas, for respondent No.1 & 2 (JDA) Mr. B.C.Chirania, for respondent NO.4 Jaipur Munc.Corp. Vide order dt.14/11/08, this Court observed to dispose of at admission stage, hence at request, matter was finally heard. Instant petition has been jointly filed by four petitioners who are residing across the road to plot No.C-82-C, Chaitnya Marg, C-Scheme Jaipur, assailing (1) the permission granted by Jaipur Development Authority (“JDA”) for constructing bank currency chest over plot in question vide letter dt.14/09/07 (Ann.1) and (2) notification dt.12/07/2007 (Ann.5) whereby bank currency chest has been inserted in Land-use zoning area under Cl.9.1.1 (residential) of Land Use Zoning Code (Jaipur Region). Petitioners, as alleged, are holders & residents of plot Nos.F-147, F-151 & F-159 at Chaitnya Marg, C-Scheme, Jaipur, and in front of their houses across 40 ft road, there is a plot C-82-C (for short, “disputed plot”) measuring CW 2512/08 //2// 546.83. sq. mtrs duly owned & possessed by respondent NO.3 whose building plans over disputed plot for constructing “bank currency chest” was approved by JDA vide letter dt. 14/09/07 (Ann.1), petitioners raised grievance by way of instant petition on the premise that “bank currency chest” being used for commercial purposes, construction whereof cannot be permitted over disputed plot being situated in residential colony, and building plans approved for constructing “bank currency” chest” were in violation of JDA (Jaipur Region Building) Bye- laws, 2000 (“Bye-laws, 2000”) - as per Cl.2.46 whereof, and schedule-C appended thereto, “Bank” is included as commercial activity unit, which cannot be permitted in residential colony and permission granted by JDA, being contrary to bye- laws, 2000, based on such assertions, petitioners later on by making amendment in instant petition, have further assailed notification dt.12/07/07 published in official gazetted dt.18/07/08 (Ann.5) issued by JDA in exercise of its powers U/s 21 read with Ss.23 & 24 of JDA Act, 1982 (“JDA Act”) whereby introducing 'bank currency chest” in Cl.9.1.1 of Land Use Zoning Code (Jaipur Region) of Master Development Plan, 2011 (“Master Plan, 2011”) as one of residential CW 2512/08 //3// permissible activities; on the premise that the land use zoning Code in master plan cannot be changed and if at all any amendment still required, could be made only after complying with due procedure provided U/s 25(3) of JDA Act which according to petitioners have not been followed in instant case; and their further objection is that once in Building Bye-laws, 2000, “bank” has been defined as commercial activity unit – in absence of any amendment made under JDA Building Bye Laws, very notification dt. 12/07/07 (Ann.5) has no legal sanctity and deserves to be set aside. Respondent-JDA & NO.3 who is affected respondent being owner of disputed plot, have filed their separate reply also raising preliminary objection that approval of building plans having been assailed in instant petition, is appealable U/s 83 of JDA Act. Respondents further averred that Master Plan, 2011 basically has three principles (1) Land Use Zoning Code; (2) Permitted land use & (3) Permitted Use premises and Master plan being a living document has to address need based changes concerning regulations affecting population. Taking note whereof and definition of “bank currency chest” having no public dealings CW 2512/08 //4// as provided by Reserve Bank of India, the authority (JDA) in its 53rd meeting held on 18/10/2006 took decision (Ann.R.1/3) to include “bank currency chest” as “permitted use” in “residential use premises” and such a decision was implemented by issuing notification dt. 12/07/07 in exercise of powers U/Ss 21, 23 & 24 of the JDA Act and duly published in official gazette dt.18/07/07 (Ann.R.1/4) – on the basis whereof, Respondents submit that “bank currency chest” being permissible in residential use premises, plans submitted by respondent NO.3 in respect of disputed plot, after conducting site inspection and technical examination of plans, it was initially placed for consideration before 62nd building plans committee (“BPC”) in its meeting held on 29/08/07, which decided to approve building plan of respondent NO.3 and subsequently certain changes in the plan were proposed, for which the BPC in its meeting held on 30/10/08 finally approved changes in building plans as is evident from BPC minutes dt.29/08/07 & 30/01/08 (Ann.R1/1 & R.1/2). Respondents in their reply further averred that while “bank currency chest” is not commercial activity unit and more so taking note of resolution of JDA dt.18/10/06 (Ann.R1/3) CW 2512/08 //5// followed by notification dt.18/07/07 (Ann.R1/4), use of building for purposes of “bank currency chest” is not commercial activity as per Master plan, 2011 there was no reason to apply Cl.2.46 of Bye-laws 2000, which defines “commercial buildings” and applies in respect of commercial use premises; and expression “bank” used in Cl.2.46 in no manner relates to “bank currency chest” where no public dealing takes place involving commercial activity. Contesting respondent No.3 has further averred that he got his building plans approved for residential use in terms of notification dt. 18/07/07 (Ann.R1/4). Respondent NO.3 also produced site plan (Ann.R3/1) showing details of commercial activities being undertaken on adjacent or nearby plots on Prithviraj Road, Azad Marg & Chaitnya Marg where disputed plot is situated – on the basis whereof, submits that at following plots there are commercial activities being undertaken, as well : No.C-81-A - HDFC Bank branch & Sony Erickson with Consultancy Firm NO.C-82 – Liquor, handicraft & design shops; NO.C-84 - Natural health Care Clinic Shop Thai Florists, Arches Gallery, NIIT Dungari Studio. No.F-143 Just Opp. C-82-C (disputed plot) & Next to houseof writ petitioner, there is Two Boutique & Azad Memorial School/ CW 2512/08 //6// Aster Play School and On the same road – Moti Niwas, Riya Ladies Parlour, Reliance STD Booth, Mahalaxmi Finance, Unique Power and SRI Electronics. But, against those commercial activities being undertaken in residential colony, petitioners have never raised objection asserting to such construction made. Respondent No.3 further averred that C- Scheme has always been an area of mixed land use consisting of Government buildings,commercial shops, residential area, hospitals as is evident from site plan (Ann.R.3/3) and even in master plan, 2011 (Ann.R.3/4), C-Scheme is shown as having multiple & mixed land use. It has been further averred that constructions over disputed plot have been raised strictly in accordance with approved building plans; and in addition to it, as per plans, requisite ECU for a building of disputed plot was 8.46 ECUs (+) 25% = 10./56 or 11 ECU and proposed ECU in his map was for 8 cars & 27 scooters – as per which parking space was made available for 17 ECUs in place of 11 as required by Bye laws, 2000; and that apart, once the JDA in terms of notification dt.18/07/07 has made “bank currency chest” in residential use zone, where there is no public dealing inasmuch CW 2512/08 //7// as no common man is allowed to enter into store house of coins and currency notes (bank currency chest); therefore, petitioner cannot be justified to say that bank currency chest involves commercial activities, nevertheless respondent NO.3 was required to deposit conversion charges of Rs.19,68,588/- as is evident from letter dt. 07/09/2007 (Ann.R3/7) and after deposit of conversion charges vide challan dt.10/09/07 (Ann.R.3/8), his building plans were got approved in terms of Bye-laws, 2000. I have considered rival contentions of Counsel for the parties and with their assistance, examined material on record. As regards preliminary objection raised by Opposite Counsel in respect of maintainability of petition on account of availability of remedy of appeal U/s 83 of JDA Act, suffice it to say that since notification dt.12/07/07 published in official gazette dt.18/07/07 is under challenge, its validity could be assailed only in writ proceedings U/Art. 226 of the Constitution and cannot be examined by JDA Appellate Tribunal. In the facts of instant case, preliminary objection raised by Opposite Counsel stands over-ruled. Although it has not been pleaded in writ petition despite the fact that petitioners got CW 2512/08 //8// opportunity to amend the petition by moving application therefor, but Counsel for petitioner s made oral submission that the areas where disputed plot (C-82-C) is situated falls within the jurisdiction of Municipal Corporation, Jaipur and approval of building plans of respondent NO.3 at the instance of respondents JDA, impugned herein is without authority and in support, placed reliance upon notification dt.27/06/92 published in Compendium of JDA & allied Laws by Man Singh Gupta (Edn. 2007) at page 75. Contrarily, Counsel for respondents vehemently denied aforesaid fact and submits that it has neither been pleaded despite opportunity of amendment being permitted by this Court while subsequently vide notification dt.5/07/93 (published at p.79 of aforesaid compendium) issued in super-cession of earlier notification dt.27/06/92 which was read over by petitioners' Counsel, C-Scheme is one of colony falls within jurisdiction of JDA. Counsel for respondents further submits that by subsequent notification dt.22/02/96 made effective from 01/04/96, further amendment was made and area of C-Scheme (north side to Prithviraj Marg) falls within municipal Corporation, Jaipur but, present disputed plot (C-82-C) in C-Scheme still falls within CW 2512/08 //9// jurisdiction of JDA. It is true that submission made by petitioner's Counsel during arguments has neither been pleaded in the petition nor document in support whereof has been placed on record in order to put strength to the contention that disputed plot (C-82-C) at relevant point of time was within municipal corporation and without there being any pleading in this regard, petitioners filed application seeking permission to implead Jaipur Municipal Corporation as party respondents which was allowed by this Court vide order dt.28/05/08 and despite Municipal Corporation Jaipur being represented by its Counsel, neither petitioners nor respondent- Jaipur Municipal Corporation placed any material on record by which it can be inferred that disputed plot (C-82-C) in regard to which dispute was raised by petitioners, at any time after 05/07/93 ever came within jurisdiction of Jaipur Municipal Corporation – in absence whereof, in the opinion of this Court, submission made is bereft of merit and deserves rejection. Indisputably, petitioners are residing in plots across the road of 40 ft width at Chaitnya Marg, where disputed plot is situated as referred to in para 2 of the petition. Disputed plot (C- CW 2512/08 //10// 82-C) situated at Chaitnya Marg is owned and possessed by respondent No.3 who applied for building plans for construction of “bank currency chest” which was approved by JDA in 62nd meeting of Building plan committee held on 29/08/07 (Ann.R1/1) and on 30/01/08 (Ann.R1/2). Master development plan or zonal development plan as defined in S.2(15) of JDA Act is one of objects & functions of Jaipur Development Authority U/s 16 of JDA Act. Master Development Plan, 2011 was finally approved in terms of Chapter V of JDA Act, alongwith Land use plan & Land Use Zoning Code and was brought into operation from 01/09/98 in terms of S.24 of JDA Act. Purpose of land use proposals contained in Master Development Plan, Land Use plan 2011 is to regulate development in Jaipur Region within framework of the Land Use Plan 2011. Land use zoning Code, Jaipur Region being part of Master Development plan came into force on the date of publication of notification – as per Para 4 whereof, 32 use zones were classified in Nine categories viz. (1) residential; (2) Commercial; (3) industrial; (4) Mixed Land use; (5) Government; (6) Public/Semi Public institutional; (7) Recreational; (8) Agriculture & Water body and (9) Circulation. Para 9 whereof deals with CW 2512/08 //11// permission of use premises in Use zones, as per which, permission of use premises as a part of approval of layout plan has to be obtained from competent authority. Para 9(1) relates to “residential” and its sub-para (i) means for permission of selected use premises in Use zones while sub-para (ii) for permission of secondary use premises ad infra: “9. Permission of Use Premises in Use Zones – Permission of use premises maybe as a part of approval of Layout plan or as a case of special permission from the authority. (1) Residential : (i) Permission of selected use Premises in Use Zones - Plotted Housing, Group Housing, Residence cum Work plot, Hostel, Guest House, Boarding House and Lodging House, Convenience shopping, Local shopping Centre, Health Centre (upto 30 beds), Nursing Home, Nursery & kindergarten School, Primary School, Secondary School, Senior Secondary School, Integrated School, Integrated Residential School, Social Welfare Centre without auditorium, Religious Premises. (ii) Permission of Secondary Use Premises - Residential Flat, Dharamshala, Baratghar, Night Shelter, Clinical Laboratory, Voluntary Health Service, Old-age Home, Vocational Training CW 2512/08 //12// Institute, Research & Development Centre, Library, Technical Training Centre, Music, Dance and Drama Training Centre, Children Traffic Park, Museum, Exhibition Centre and Ar Gallery, Open Air Theater, Community Hall, Cultural & Information Centre, Social & Cultural Institute, Orphanage, Yoga Centre, Meditation, Spiritual & Religious Discourse Centre, Plan Nursery. It is relevant to mention that kind of Commercial use of premises in Use Zone has been separately defined in para 9(2) of Land Use Zoning Code. In its 53rd meeting held on 18/10/06 the authority (JDA) decided to add “bank currency chest” where there is no public dealings as one of permissible selected Use residential Premises in Use Zones permitted use in Para 9.1.1 which defines “residential” as quoted supra, as is evident from its minutes (Ann.R1/3) – in pursuance whereof, notification (Ann.R1/4) was issued on 12/07/07 in exercise of powers U/Ss 21, 23 & 24 of JDA Act and published in official gazette on 18/07/07; in terms whereof, building plans submitted by respondent No.3 in respect of his disputed plot (C-82-C) were approved by Building Plans Committee in 62nd meeting held on 29/08/07, and minor changes were approved in its meeting dt.30/01/08 as is evident from Ann.R1/1 & R1/2). CW 2512/08 //13// It is not the case of petitioners that plans having approved by Building Plans Committee for residential use are not in accordance with JDA Bye Laws, 2000; however, their objections is that it being residential colony where disputed plot is situated, commercial activities are not permissible in residential colony and Building plans accordingly approved in favour of respondent NO.3 for commercial activities is contrary to Bye-Laws, 2000 and beyond authority of JDA and in support, Counsel for petitioners has laid much stress on Table A (Talika Ka) appended to Bye-laws 2000, where Godown/Store/ Warehouse in residential premises are completely banned and are not permissible under para (v) appended to Table A which reads ad infra:- तािलका क हेतु िटप् पणी भूखÖ ड मɅ िकसी मंǔजल पर ः वयं के िनवास का 25 ूितशत अथवा 100 व.मी. जो भी कम हो, िनà न ूकार के ः विनयोजन å यवसाय के िलये उपयोग मɅ िलया जा सकता है - (क) एडवोकेट (ख) इंजीिनयर (ग) डाÈ टर (घ) वाः तुिवद (ड.) चाटर्डर् एकाउन् टेन् ट/ िवततीय सलाहकार . लेिकन िनà न गितिविधयां अनु£ेय नहीं होगी (1)खुदरा दकाने ु (2) थोक å यापार (3) मरà मत हेतु दकान ु (4) सिवर्स शाप् स (5) गोदाम//भÖ डारण (6) ऐसी अन् य गितिविध जो भवन मɅ िनवासकतार्ओ के िलये हािनकारक एवं संकटमय हो, जैसा िक भवन मानिचऽ सिमित Ʈारा िनधार्ǐरत िकया जाय. CW 2512/08 //14// According to petitioners' Counsel, “Godown/Godam” has been separately defined in Cl.2.12 of Bye- laws, 2000 and permissible commercial activities as per Schedule-1 (अनुसूची-1) which contains list of buildings based on different activities & works done therein including commercial building as defined in para 2.46; and amendment made by respondent JDA vide notification dt.12/07/07 (Ann.5) is in violation of S.25(3) of JDA Act and not permissible under law. In the opinion of this Court, submission made by Counsel for petitioners is not of any substance for the reason that “bank currency chest” in no manner relates to godown/warehouse or store house of which reference has been made in Table A (तािलका क) appended to Bye-laws 2000 and that apart, as per Schedule-1 (अनुसूची-1) to Bye-laws 2000, of course, Farm House, Plotted Housing, Group/Flats Housing are considered to be “residential” and “bank” is considered as “commercial” activities; while at the same time, for purposes of Use premises under Land Use Zoning Code, Jaipur Region, “Commercial” under sub-para (2) to Para 9 of aforesaid Code has been elaborately defined. Under heading “Residential” in sub para (1) to Para 9 of aforesaid Code, apart from plotted housing, group housing other CW 2512/08 //15// activities are also permissible of selected use premises in Use Zones quoted supra. The authority (JDA) in exercise of statutory powers has not made amendment either in master plan or under JDA Building Bye-laws, 2000 but in fact exercised statutory powers for inserting “bank currency chest” in para 9.1.1 of aforesaid Zoning Code as one of permissible use of selected Use Premises in Use Zones, as is evident from a bare perusal of notification ad infra: जयपुर िवकास ूािधकरण जयपुर अिघसूचना जयपुर जुलाई 12, 2007 संख् या जिवूा/डी-222/07 :- जिवूा अिधिनयम की धारा 21 के साथ पिठत धारा 23 व 24 के अन् तगर्त बनाये गये माः टर िवकास योजना, 2011 जो जिवूा रीजन मɅ िदनांक 01-09-1998 से ूभावी है के लैÖ यूज जोिनंग की धारा 9 .1.1 मɅ आवासीय उपयोग मɅ अनु£ेय गितिविधय मɅ बɇक करɅसी चैः ट को सǔà मिलत िकया जाता है. बɇक करɅसी चैः ट की पǐरभाषा ǐरजवर् बɇक आफ इंिडया Ʈारा िनà नानुसर दी गयी है - Currency Chest -Definition. Currency chests are store houses of notes and coins maintained by specific bank branches on behalf of the Reserve Bank of India. Currency chests are the property of the Reserve Bank of India but located in the premises of other banks under a contract for Bailment. The currency chest has to be necessarily attached to a Bank branch CW 2512/08 //16// though the two need not necessarily be in the same premises. Round the clock security arrangements are made at currency chests. Currency chests do not have direct dealings with the members of the public. As regards location of currency chests in residential zones etc., the same is subject to the Rules & Regulations of the Local Government authorities.” Apart from nature of activities permitted in selected Use premises residential use zones, “bank currency chest” is added as one of selected use premises in residential use zone under para 9 (1)(i) of aforesaid Zoning Code appended to Master Plan 2011. In the opinion of this Court, making addition in para 9.1.1 as introduced by respondent (JDA) in exercise of statutory powers vide notification dt.12/07/07 is not an amendment either in Master Development Plan or in JDA Building Bye-laws, 2000- in view whereof, S.25(3) of JDA Act on which much stress was laid by petitioner's Counsel, has no application. As regards second contention urged by petitioners' Counsel that “commercial activities” in residential colony are not permitted, suffice it to say that once “bank currency chest” has been considered to be one of permissible use in residential premises in residential use Zones CW 2512/08 //17// under para 9.1.1 vide notification dt.12/07/07, in pursuance whereof, plans of respondent NO.3 were approved by building plan committee in respect of residential use zones, which are certainly in consonance with Table-B (तािलका-ख) Col.(vii) whereof, being disputed plot (546.83 sq.mtr) measuring more than 500 sq. mtr, therefore, plans were approved for residential use for bank currency chest being in no manner considered to be a commercial use/activities as per para 2.46 of Bye-laws, 2000. However, this fact can also not be ruled out that contesting respondent No.3 has pointed out about plots situated nearby plots of petitioners, where indisputably commercial activities are going on – details have been furnished as is evident from site plan (Ann.R3/1), against which petitioners have never raised objection at any point of time. But, in the instant case, person who proceeded in getting building plans approved after seeking due permission and compliance of provisions of JDA Act, its bye-laws and master plan, his rights have been seriously affected and jeopardized only for the reason that petitioners at the initial stage of filing instant petition have not taken care of the fact that process of CW 2512/08 //18// approval of building plan of disputed plot were considered by building plan committee only after the authority took decision of introducing “bank currency chest” as one of permissible residential use in residential use zones adding in para 9.1.1 of aforesaid Zoning Code and only in conformity of notification dt.12/07/07 (Ann.R1/4), plans were approved; and without disclosing about it obtained interim stay order of maintaining status quo and thereafter in this regard got writ petition amended by moving application on account of which respondent No.3 failed to complete its project which was permissible under law. Consequently, writ petition fails and is hereby dismissed. Interim order dt.17/03/2008 stands vacated. No order as to costs. (Ajay Rastogi), J. K.Khatri/p.18/2512CW08RsrApr10.doc