JAIPUR DEVELOPMENT AUTHORITY Vs. SHRI BAL CHAND AGARWAL

JUDGEMENT

(1.) This writ petition has been filed by the Jaipur Development Authority (for short, the "JDA") against the order of the Jaipur Development Authority Appellate Tribunal (for short, "Tribunal") dated 9/10/2009. By the aforesaid judgment, the Tribunal allowed appeal filed by Shri Bal Chand Agarwal, respondent No.1 herein whereby, the Tribunal granted permission to the respondent to raise construction upto the height of 30 meter on the basis of the width of his road, which is 80 feet because respondent surrendered additional land and therefore, he was held entitled to additional Flor Area Ratio (FAR). It was further directed that in case construction of parking place is made, an additional height may be permitted only as per clause 8.11 of the Jaipur Development Authority (Jaipur Region Building) Bye Laws, 2000 (for short, Bye-laws of 2000"). The Tribunal further directed removal of two temples, which were constructed by making encroachment on the land acquired for widening of road.

(2.) Shri R.B. Mathur, learned counsel for the petitioner has argued that so far as claim of the petitioner for giving benefit on parity with Labh Singh i.e. allotment of alternative land and cash compensation is concerned, same stands rejected by judgement of the co-ordinate bench of this Court in his earlier writ petition, namely S.B. Civil Writ Petition No.3937/1997 vide judgement dated 8/1/2007. In the aforesaid writ petition, respondent challenged validity of the decision of the Building Plan Committee (for short, "BPC"), which in its meeting held on 6/1/2007 sanctioned building plan of the respondent and an information in this regard was sent to him vide communication dated 16/1/2007. In that meeting, respondent was also present, who agreed for zero setback on front and backside and setback of 6 feet each on both sides. Building plan was approved subject to respondent's furnishing an undertaking that while digging basement, no damage should be caused to adjoining building and subject to that undertaking, he shall be entitled to raise construction up to maximum height of 12.5 meters and built basement + ground floor + two upper floors.SBCWP No.8917/10. 3 This Court by the aforesaid judgement, while partly allowing the writ petition directed reconsideration of the matter by the BPC on the question of setback and height with reference to clauses 8.8(ii) and 8.11 (i), respectively of the Bye-laws of 2000. Respondent filed appeal against the aforesaid order, which was dismissed by the Division Bench of this Court vide order dated 5/11/2008. Respondent then filed review petition wherein, division bench directed the respondent to approach the Jaipur Development Authority Appellate Tribunal against the fresh order passed by it on 1/5/2008 reiterating the same building plan. It was thereupon that respondent filed appeal before the Tribunal. The Tribunal has by misconstruing clauses 8.8(ii) and 8.11(i) of the Regulations of 2000 allowed appeal in the aforesaid terms. The Tribunal also directed that in view of acquisition of the land by the JDA for widening of the road, construction of temples made by encroachment on the land acquired for land may be removed by adopting due process of law because it was frustrating the purpose of acquiring the land for widening of the road.

(3.) Shri R.B. Mathur, learned counsel for the petitioner has argued that so far as setback is concerned, respondent by filing affidavit in lieu of surrendering 110 square yards of land without any compensation had agreed for approval of the SBCWP No.8917/10. 4 building plan while leaving 5 feet setback on Southern side, 6 feet setback on Eastern side, 7 feet setback on Western side and Zero setback on Northern side. This was subject to the condition that he will be entitled to construct the basement, ground floor, first floor and second floor as per Bye-laws of 2000. Even then, the JDA considering that Labh Singh, whose land was also acquired for the same purpose, was granted zero setback on either side, respondent was also additionally granted zero setback at the backside. If the respondent is constructing the basement, he cannot be granted zero setback on both the sides and he himself agreed to leave setback of 6 feet. In the case of Labh Singh, circumstances were entirely different because JDA acquired 89.25 square meters of plot out of total 173.2 square meters of plot of Labh Singh by way of surrender for the purpose of widening of the road, thus leaving only 86.9 square meters, therefore he was granted certain additional benefits on the aspect of zero setback. However, plot size of the respondent is in the dimension of 66.26 x 66 feet, which comes to approximately 390 square meters. Two cases cannot be therefore said to be comparable. On the question of height, learned counsel for the petitioner referring from the lists appended to the Bye-laws of 2000 argued that case of the respondent would fall within the purview of 'Talika Ga' in clause (vi) wherefor, 5 maximum permissible height is 12.5 square meters. It is this provision, which is applicable to the petitioner and not clause 8.11(iv) of the Bye-laws of 2000. Wherever, the rule making authority intended to apply clause 8.11 of the Bye-laws of 2000, it has specifically so indicated. Learned counsel in this connection referred to Part-II of 'Talika Ga' in Entry 8 whereof, clause 8.11 supra has been applied for the construction of building of cinema hall. He also referred to 'Talika Da', which is applicable for the institutional buildings in clauses (iii) to (vii) thereof, where for, similarly, clauses 8.11 have been held to be applicable. It is argued that this Court was not apprised of these provisions when the earlier writ petition was argued therefore despite remand of the matter to the BPC, such committee was bound by the provisions contained in the Bye-laws of 2000. Permissible height limit in conformity therewith was allowed to the respondent but not beyond the maximum permissible height of 12.5 meters, accepting width of 80 feet on the front side of the land whereas, on the other side, width of the road is only 30 feet.