Rajasthan High Court
Smt Sapna Soni Wife Of Shri Shankar ... vs Jaipur Development Authority on 12 May, 2022
Bench: Mahendar Kumar Goyal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 6039/2022
Smt Sapna Soni Wife Of Shri Shankar Soni, Aged About 35
Years, R/o 37/90 Radhakrishna Nikunj, Govind Nagar-West,
Amer Road, Jaipur.
----Petitioner
Versus
Jaipur Development Authority, Through Secretary Jawahar Lal
Nehru Marg, Jaipur.
----Respondent
For Petitioner(s) : Mr. O.P. Mishra with
Mr. Ajay Kumar Verma
For Respondent(s) :
HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL
Order
12/05/2022
This writ petition under Article 227 of the Constitution of
India is directed against the judgment dated 11.04.2022 passed
by the learned Appellate Tribunal, Jaipur Development Authority
(for brevity, "the Tribunal") whereby, an Appeal No. 801/2018
(CIS No.788/2018) preferred by the petitioner against the notice
dated 14.11.2018 issued under Section 72 of the Jaipur
Development Authority Act, 1982 (for brevity, "the Act of 1982"),
has been dismissed.
The facts in brief are that the petitioner was served upon
with a notice under Section 72 of the Act of 1982 wherein, it was
stated that the petitioner has encroached upon 23'6'' X 30'9'' of
land on the road in a residential scheme. The notice was assailed
by the petitioner by way of an appeal under Section 83 which has
(2 of 5) [CW-6039/2022]
been dismissed by the learned Appellate Tribunal vide its
judgment dated 08.08.2018, the subject matter of challenge in
the writ petition.
Assailing the judgment, learned counsel for the petitioner
contended that Section 72 did not apply in the present case in as
much as the petitioner is owner of the land in question and it is
not part of the public land. Drawing attention of this Court towards
the registered sale deed dated 05.06.2017 executed by Mr. Kunj
Bihari in her favour, learned counsel submitted that she is under
ownership and possession of the Plot No.90 measuring 311.10 Sq.
yards, which is a part of free hold property of erstwhile Khatedars
of the land of Khasra Nos. 502 & 503 Village Nahargarh, Jaipur. He
submitted that the total area of land of Khasra Nos. 502 & 503
was 4 Bighas and 4 Biswas out of which its Khatedar have sold
their 1/3rd share in 3 Bighas and 4 Biswas land in favour of "Shri
Govind Grih Nirman Sahakari Samiti" (for brevity, "the Samiti")
vide sale agreement dated 19.04.1975 and she has purchased a
piece of land measuring 311.10 Sq. yards out of remaining 1
Bigha of land belonging to the erstwhile Khatedars. He submits
that the petitioner is paying house tax and has also applied for
change of land use, which is pending consideration. Learned
counsel submitted that without adverting to all these aspects, the
learned Tribunal has dismissed the appeal preferred by her.
Learned counsel for the petitioner places reliance upon the
judgment of Hon'ble Apex Court of India in case of Kalyani
(Dead) through Lrs. and Ors. Vs. Sulthan Bathery
Municipality & Ors., 2022 SCC Online SC 516 in support of his
submissions. He, therefore prayed that this writ petition be
(3 of 5) [CW-6039/2022]
allowed and the judgment dated 11.04.2022 be quashed and set
aside.
Heard. Considered.
A perusal of the impugned judgment dated 11.04.2022
reveals that after appreciating the material on record including the
approved lay plan of the scheme, the learned Tribunal has
recorded a categorical finding that no plot No.37/90 claimed by
the petitioner to be under her ownership, exists in between the
Plots No.90 & 38. It has been observed by the learned Tribunal
that the petitioner failed to show that she has been issued any
lease deed/valid patta of the land in question and hence, in view
of the approved lay out plan wherein, instead of this plot, a public
road has been shown, the appeal has been dismissed.
Contention of the learned counsel for the petitioner that the
said land is part of the private property of the erstwhile Khatedars
and not a part of the Govind Nagar West residential scheme
carved out by the Samiti on the land purchased through sale
agreement dated 19.04.1975, cannot be countenanced in view of
the material on record. In the power of attorney dated 20.12.1989
(Annexure-2) executed by one of the Khatedars, namely Shri
Raghunath @ Lala, there is a recital to the effect that the subject
land, comprising of Plot No.90, exists in the residential scheme
Govind Nagar West.
In the sale deed dated 12.05.2016 executed by Shri Daulat
Ram Rana, the power of attorney holder, in favour of Shri Kunj
Bihari, the Plot No.90 has been shown to be existing in Govind
Nagar West Scheme with further averment that this plot exists in
the Govind Nagar Scheme carved out on the land of Khasra Nos.
502 & 503, Village Nahargarh and so are the recitals in the
(4 of 5) [CW-6039/2022]
registered sale deed dated 05.06.2017 executed by Shri Kunj
Bihari in favour of the petitioner. The letter dated 02.05.1986
issued by the JDA (Annexure-07) addressed to Shri Daulat Ram,
the power of attorney holder for Shri Raghunath @ Lala reflects
that he was required to deposit a sum of Rs.9,333/- towards
development charges for the Plot No.90 measuring 311.10 Sq.
yards, part of the Govind Nagar West, the residential scheme
carved out by the Samiti in pursuance whereof, Shri Daulat Ram
has deposited the amount vide receipts (Annexure-08) against the
Plot No.90 shown to be part of a residential scheme carved out by
the Samiti. Since, this plot was not approved by the competent
authority while approving the lay out plan submitted by the
Samiti, it does not exist in the approved plan. Therefore, in view
of the aforesaid documents placed on record by the petitioner
herself, it does not lie in her mouth to contend that the subject
land is not part of Govind Nagar West Scheme; but, represents
private land under Khatedari of the erstwhile Khatedars of the
Khasra Nos. 502 & 503.
Even otherwise also, claim of the petitioner that her plot
exists in between the land of approved lay out plan of the scheme
being part of the private Khatedari land of the erstwhile
Khatedars, does not merit acceptance in view of the description of
the property sold vide agreement dated 19.04.1975 which reveals
that a cohesive piece of land was sold in favour of the Samiti. It
also militates against the common sense that the JDA would
approve a residential scheme carved out by a Housing Society
leaving small pockets of the land in between under Khatedari of
the Khatedars.
(5 of 5) [CW-6039/2022]
There is another important aspect of the matter. As per the
note endorsed on the approved map of the Govind Nagar West
residential scheme, it was approved by the Building Plan
Committee of the JDA in its meeting dated 30/31.03.2021 and
indisputably, decision of the Building Plat Committee has not been
assailed by the petitioner till date. Since, no Plot No.37/90 claimed
by the petitioner to be under her ownership and possession exists
in the approved plan of the Govind Nagar West Scheme and
instead of this plot, the land has been shown to be part of public
way, in the considered opinion of this Court, the learned Tribunal
did not err in dismissing the appeal preferred by the petitioner
against the notice issued to her under Section 72 of the Act of
1982. This Court finds that the findings recorded by the learned
Tribunal are well reasoned and are based on cogent material on
record which do not warrant any interference of this Court under
its supervisory jurisdiction vide Article 227 of the Constitution of
India.
The judgment of the Hon'ble Apex Court of India in case of
Kalyani (supra) is of no help to the petitioner in as much as in
the present case, the petitioner has failed to establish her title
over the land in question.
Accordingly, this writ petition is dismissed being devoid of
merit.
(MAHENDAR KUMAR GOYAL),J
Sudha/67
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