(1of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
CIVIL WRIT (PIL) No.1554 of 2004
PETITIONER
Gulab Kothari, Editor, Rajasthan Patrika, Jaipur
Versus
RESPONDENTS
1.
State of Rajasthan
2.
Jaipur Development Authority, Jaipur
3.
Jodhpur Development Authority, Jodhpur
4.
Urban Improvement Trust,Kota
5.
Urban Improvement Trust, Ajmer.
6.
Urban Improvement Trust, Udaipur.
7.
Urban Improvement Trust,Bikaner.
connected with
CIVIL WRIT (PIL) No.5642 of 2008
PETITIONER
Poonam Chand Bhandari son of Late Shri Rikhab Raj
Bhandari, Resident of B-211, Malviya Nagar, Jaipur.
Versus
RESPONDENTS
1.
The State of Rajasthan through Chief Secretary,
Secretariate, Jaipur.
2.
The Principal Secretary, UDH, Secretariate, Jaipur.
3.
The Jaipur Development Authority, Jawahar Lal
Nehru Marg, Jaipur, through its Commissioner.
4.
The Chief Town Planner, Jawahar Lal Nehru Marg, Jaipur.
5.
The Additional Commissioner (East), JDA, Jawahar
Lal Nehru Marg, Jaipur.
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6.
The Municipal Council, Lal Kothi, Jaipur through
its Administrator.
7.
M/s. Jai Drinks Private Limited (Capstan Meter
Private Limited), Tonk road, Jaipur through its
Chairman Mr. Mahavir Prasad Jaipuria.
8.
The Pollution Control Board Rajasthan, Jaipur.
CIVIL WRIT (PIL) No.5645 of 2008
PETITIONER
Smt. Kamlesh Wife of Shri Mahadev Meena,
aged about 31 years, resident of village Mundari,
Tehsil Hindaun, District Karauli.
Versus
RESPONDENTS
1.
State of Rajasthan through its Secretary,
Urban Development & Housing Department,
Secretariat, Jaipur.
2.
Jaipur Development Authority through its
Commissioner, Jawahar Lal Nehru Marg, Jaipur.
CIVIL WRIT (PIL) No.5646 of 2008
PETITIONER
Poonam Chand Bhandari son of Late Shri Rikhab Raj
Bhandari, Resident of B-211, Malviya Nagar, Jaipur.
Versus
RESPONDENTS
1.
The State of Rajasthan through Chief Secretary,
Secretariate, Jaipur
2.
The Jaipur Development Authority, Jawahar Lal
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Nehru Marg, Jaipur, through its Commissioner.
3.
The Pollution Control Board Rajasthan, Jaipur.
CIVIL WRIT (PIL) No.5907 of 2008
PETITIONER
Lok Sampatti Sanrakshan Samiti through its Secretary,
P.N.Mendola, S/o late Sh. Ravi Dutta ji, age-58 years,
office at G-144, Shyam Nagar, Ajmer Road, Sodala,
Jaipur.
Versus
RESPONDENTS
1.
The State of Rajasthan through Chief Secretary,
Government of Rajasthan, Jaipur.
2.
Jaipur Development Authority through its
Commissioner, J.L.N.Marg, Jaipur.
3.
Genpact Infrastructure (Jaipur) Private Limited,
J.L.N. Marg, Malviya Nagar, Jaipur.
CIVIL WRIT (PIL) No.5908 of 2008
PETITIONER
V.N.Sharma S/o late Pt. Govind Prasad Sharma aged 71
yrs R/o Jailal-Munshi-Ka-Rasta 1st crossing, Chandpole
Bazar, Jaipur.
Versus
RESPONDENTS
1.
State of Rajasthan through the Secretary,
Local Self Government under Ministry of Urban
Development and Housing, Government of
Rajasthan, Jaipur.
2.
Jaipur Development Authority, through
Secretary, having its Office at Indira Circle, JLN
Marg, Jaipur, Rajasthan.
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Dated:-
12th January, 2017
HON'BLE MR.JUSTICE SANGEET LODHA
HON'BLE MR.JUSTICE ARUN BHANSALI
Mr.M.S.Singhvi, Senior Advocate, assisted by Mr.Vineet
Dave, Amicus Curiae )
Mr.Abhinav Bhandari, Advocate
on behalf of petitioners in Writ Petition No.5642/08,
5645/08 and 5907/08.
Mr.Poonam
person.
Chand
Bhandari-petitioner,
present-in-
Mr.N.M.Lodha, Advocate General alongwith
Mr.V.D.Dadhich
)
Dr. P.S.Bhati, Additional Advocate General alongwith
Mr.S.S.Rathore
)
Mr.Manoj Bhandari
), for the respondents.
Mr.P.P.Choudhary, Senior Advocate with
Mr.Ankur Mathur
)
Mr. Ashok Chhangani
)
Mr.Sanjeev Johari
)
Dr.Sachin Acharya
Mr.Deelip Kawadia
)
)
Mr.Muktesh Maheshwari
)
Dr.Aklavya Bhansali
), for the applicants.
BY THE COURT:(PER HON'BLE SANGEET LODHA,J)
Reportable
ORDER
1.
By an order dated 7.4.04, this court treated a
letter
received
from
Shri
Gulab
Kothari,
Editor,
Rajasthan Patrika, a leading daily newspaper of the
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State, containing allegations related to gross violation
of the Master Development Plan of Jaipur and other
cities, accompanied by various news items published in
the said newspaper, as a writ petition (PIL) and issued
notices to the Chief Town Planner, Urban Development
& Housing Department, Government of Rajasthan.
2.
On 20.1.05, a reply to the writ petition was filed
on behalf of the State taking the stand that the Master
Plan prepared covers various essential land uses e.g.,
residential, commercial, industrial, Government and
Semi-Government offices, Bus Stand, Transport Nagar,
Common community facilities, Parks, Open spaces,
Network of the Roads and also the Periphery Control
Belt required to be developed for projected population.
Regarding the allegations of deviation of Master Plans
as raised in the letter petition, the respondents took
specific stand as under:
“(3) That so far as the allegation of the deviation
as raised by the letter writ petition are concerned,
the answering respondents humbly submit that
some deviations are there and some are still
taking place but then until and unless the general
civics sense are developed in public at large and
the public is made aware that the deviation of
master plan is not in their interest, without the
active cooperation of public at large, the
answering respondents feel themselves not so
happily equipped with the measure and means to
control such deviation.
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(4) That the answering respondents humbly
submit that though the master plan is prepared,
notified yet it is common phenomena that 100%
projected development plan can never be
implemented. For the alleged deviation, the
answering respondents alone should not be
blamed. It is the public which has to ultimately
implement the master plan by extending there
active cooperation, by giving cooperation of such
a nature that everybody abides by the master
plan. If nobody commits breaches or dare to
violate the master plan then perhaps the
answering respondents will be able to implement
it in toto. The general deviation which has been
pointed is because of the utilisation of the areas
for the commercial and residential purposes by
the private coloniser while developing their private
colonies. Major factor which has been detected as
the root cause for that alleged violation is that the
people do not want to go far from the town and
maximum people want to reside by the nearby
areas irrespective of the different land use of that
area.
The another reason for the alleged deviation
which in the respectful submission of the
answering respondent is promulgation of the
Rajasthan Municipalities (change of land use)
Rules, 2000. These rules have been enforced
w.e.f. 31.3.2000 vide publication in Rajasthan
Gazette. The copy of the same is annexed
herewith and marked as Annexure R/2.
Now from the above narration, it is clear that
the preparation of master plan and further change
of land use to what extent can be permitted, is
definitely a policy matter which has to be decided
in individual case in accordance with the policy
laid down by the Government and in the
respectful
submission
of
the
answering
respondents, this Hon'ble High Court should
observe self imposed restriction in this respect
and should not interfere in the policy matter.
It is again made clear that the change of land
used is not to be granted merely by asking under
the Rules of 2000 but is to be granted in guarded
manner at the instance of the respective
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committees. In this way, the purpose of the writ
petition can safely be said to have been fulfilled as
to prevent the future deviation of the land use the
various committies has been constituted to check
the unfatered change of land use now.”
3.
Vide order dated 25.4.06, this court directed the
respondents to place on record following particulars
about Master Plans prepared under the Rajasthan
Urban Improvement Act, 1959 ('UIT Act') and operative
in the five major townships of Rajasthan viz. Jodhpur,
Kota, Bikaner, Ajmer and Udaipur:
“1. The no construction zone green belt and public
amenities zone provided under the Master plan of
respective towns.
2. Deviation made in the original Master plans of
each city from time to time in respect of aforesaid
zones.
3. Deviation, if any, permitted in respect of the
aforesaid zones while approving the development
scheme in the aforesaid towns.
4. The construction or development which have
actually taken place in respect of aforesaid zone
contrary to Master plan.
5. Action, if any, taken by the authorities to remove
the construction or development that have taken
place in each town contrary to Master plan. The
aforesaid details may be submitted separately in
respect of each of the aforesaid 5 towns form within
8 weeks.
The Chief Town Planner of the State or any officer
duly authorised by him not below the rank of
Deputy Town Planner of the aforesaid 5 towns shall
be present on the next date of hearing to explain
the matter.”
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4.
In compliance of order dated 25.4.06 passed by
this court as aforesaid, the respondents submitted a
compliance report on 2.8.06 taking the stand that the
Master Plans have been prepared for Jodhpur, Kota,
Bikaner, Ajmer and Udaipur cities, in which, certain
places have been reserved as 'Green Belt Areas' (also
known as peripheral control belt) and for the purpose of
public amenities zone. While giving the details of
deviation from the Master Plans of various cities made,
the stand of the respondents was that the change in
the land use of areas reserved in the Master Plans have
been made by the Committee constituted by the State
Government under Rajasthan Municipalities (Change in
Land
Use)
Rules,
2000,
on
the
basis
of
the
recommendations made by the local bodies and the site
reports of the land. According to the respondents, the
change in the land use permitted is very small looking
to the overall areas reserved for various purposes in
the Master Plans.
5.
Later, the State filed yet another report on 10.7.07
giving details of deviations from the proposal of the
Master Plans of the various cities. The respondents
have
also
placed
on
record
copies
of
certain
proceedings taken by the State Level Change of Land
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Use Committee permitting the change of land use of
various categories of the land as specified under the
Master Plans.
6.
Vide order dated 25.7.07, this court directed the
Chief Town Planner to furnish the particulars of the
applications
for
deviations
made
in
the
Master
Development Plan and the number of applications
rejected, during last five years.
7.
Pursuant to directions contained in order dated
July 25, 2007, the respondents submitted the report
indicating deviations made in the Master Plans and the
number of applications rejected during the last five
years. However, vide order dated 20.8.07, on the
request of learned Additional Advocate General, further
time
as
prayed
for
was
granted
to
enable
the
respondents to place better particulars in support of
what is stated in the report as well as broad norms
adopted for permitting deviations in the Master Plan
relating to Jaipur City.
8.
Vide order dated 25.9.07, Jaipur Development
Authority ('JDA'), Jaipur, was impleaded as party
respondent in the matter.
(10 of 257)
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9.
On 5.12.07, this court requested the counsels
appearing as amicus curiae to analyse the detail
submitted by the respondents about the deviations. The
court directed that the amicus curiae shall further place
on record their submissions on the report about
deviation and possible suggestion to remit assistance in
the
six
townships
of
Rajasthan
separately.
The
Additional Advocate General appearing on behalf of the
JDA was directed to furnish like information about
deviations made in Master Plan/Scheme of Jaipur. At
the same time, the court passed an interim order
restraining
the
respondents
from
making
further
deviation in the green belt identified in the following
terms:
“Meanwhile, until further orders, no deviations in
the green belt identified in the Master Plan of all
the six major townships governed by above order
shall be permitted by the respondents.”
10. On an application preferred on behalf of the State
for vacating the interim order dated 5.12.07, this court
vide order dated 28.4.08 modified the interim order, in
the following terms:
“In view of the mandates of Section 25 of the Act
and the rules framed under the Municipal Statutes,
the State Authorities are well-protected and they
may go ahead with the deviation if any in the
(11 of 257)
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Master Plan for the benefit of the public at large in
accordance with law.
The interim order passed by this Court, in
this view of the matter, needs to be clarified in the
following terms:The State Authority and the Development
Authorities may proceed with the changes, if any,
in accordance with law as referred to above and
such decisions taken by them, however, will abide
by the ultimate result of this writ application.
With these directions and observations, the
interim order dated 05.12.2007 stands modified.
Since this PIL is of 2004, in our view, let it be
listed for final disposal in second week of July,
2008, by which time the report of the Committee
is also expected.”
11. At this stage, PIL petitions being Nos.8974/05,
6084/06, 2500/07, 5083/07, 10115/07 pending before
the Jaipur Bench of this court, involving substantially
the same issue regarding deviation of the Master
Development Plan, were directed to be transferred to
the Principal Seat for hearing alongwith the writ
petition No.1554/04, vide order dated 31.7.08 passed
by the Division Bench at Jaipur. The said writ petitions
Nos.
8974/05,
6084/06,
2500/07,
5083/07
and
10115/07, transferred from Jaipur Bench of this court
have been registered at Principal Seat as writ petitions
Nos.5646/08,
5907/08,
5642/08,
5908/08
and
5645/08 respectively and accordingly, these petitions
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are listed for consideration alongwith the main Writ
Petition (PIL) No.1554/04.
12. A brief reference of the controversy raised in
various petitions connected with the Writ Petition
No.1554/04, which is taken to be the lead petition,
would be appropriate.
13. By way of Writ Petition No.5642/08, the petitioner
has questioned the change of land use made in the
Jaipur City in deviation of the Master Development Plan
after
1.9.98.
The
petitioner
has
averred
that
respondent no.3-JDA and respondent no.6-Municipal
Corporation, Jaipur are frequently changing the land
use in contravention of the Master Development Plan,
2011 in the garb of Section 25(3) of the Jaipur
Development Authority Act, 1982 ('Act No.25 of 1982')
and thus, affecting material alteration in the character
of Master Plan. The petitioner has prayed that all such
change of the land use made be quashed and the
respondents be directed not to change the Master
Development Plan without applying the provisions of
Sections 25 and 28 of the Act No.25 of 1982. While
questioning the change of the land use permitted, the
petitioner has placed on record certain notifications
(13 of 257)
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issued by the State Government proposing to change
the land use.
The respondents in reply to the petition, have
taken the stand that while making a prayer for
quashing the change of land use made after 1.9.98 and
for removal of the construction raised, none of the
persons in whose favour permission for change in land
use has been granted and who have raised construction
pursuant thereto, have been impleaded as party to the
petition. Precisely, the stand of the respondents is that
the change of the land use has been permitted after
following the provisions of Section 25 of the Act No.25
of 1982. It is submitted that the change of the land use
in terms of the provisions of Section 25 of the Act
No.25 of 1982, does not amount to review of the
Master
Development
Plan
so
as
to
attract
the
provisions of Section 28 of the Act No.25 of 1982.
14. By way of Writ Petition No.5645/08, the petitioner
has questioned the action of the respondents in taking
a decision to convert the land measuring 1222.93
hectares between Kho-Nagoria to Goner Road, covered
by the Master Development Plan of Jaipur, 2011, from
ecological zone to residential and mixed land use, by
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way of zonal lay out plan of Sector 34 and Sector 35.
The allegation of the petitioner is that the said sector
plans have been prepared and approved under the
influence of Senior IAS officers who have planned their
own colony. The petitioner has named the IAS officers,
who are holding the land comprising khasra nos.3315,
4726/3312 and 4727/3314. It is averred that the plan
has been framed to suit the requirement of high ups
and for that purpose even the alignment of proposed
roads, have been changed to a great extent. It is
submitted that the conversion of the land of ecological
zone to residential and mixed land use by the State
Authorities is in defiance of the undertaking given by
the JDA and State and the directions issued by this
court in the matter of “Yashwant Sharma vs. State of
Rajasthan”, decided on 17.3.05.
Responding to the notice, the respondents have
filed a reply to the petition taking the stand that when
the Master Development Plan of Jaipur was being
prepared, the framers of the Master Development Plan
presumed that future growth in Jaipur would be only
towards West and South side and therefore, the area
on the East side was set apart for ecological zone,
however, this presumption did not appear to be correct.
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It is stated that the State Level Committee found that
area in east of Jhalana Hills and south of Jaipur Agra
Highway between Railway Line and Kho-Nagoria Road
and Goner Road is all private khatedari land, which has
not been acquired by the JDA. It is submitted that it is
not possible for the JDA to acquire such huge land for
maintaining it as green belt and therefore, keeping in
view the growing pressure on the land of housing and
the fact that this entire land is private khatedari land
and it is in close vicinity of Jaipur City, it would be
difficult to ensure that the housing colony do not
develop on this land and accordingly, visualizing the
chances of unplanned growth adverse to the interest of
the city, for the coordinated planning of Jaipur Region
Master Development Plan and the Zonal Development
Plan of the area in question was modified from
ecological to residential and mixed uses. It is submitted
that the modifications were made in accordance with
provisions of Section 25 of the Act No.25 of 1982.
15. By way of Writ Petition No.5646/08, the petitioner
has questioned legality of the action of the respondents
in issuing the notification dated 16.4.05 permitting the
use of the land in 200 ft. wide strip in both the sides of
the road on Jawahar Lal Nehru (JLN) Marg from south
(16 of 257)
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end of Mahavir Park to Jawahar Circle after the right to
way as prescribed, for the purpose of institutional as
well as commercial (Big business establishment), which
is shown in the Master Development Plan of Jaipur,
2011 as institutional area.
The petition is being contested by the State taking
the stand that two big roads connecting International
Airport with JLN Marg are in pipeline and JLN Marg is
going to be a showcase for international and domestic
tourists and it will ease off pressure from MI Road,
which is at present the main business centre in the city.
It is submitted that such developments are bound to
take place with the development of the city. It is
submitted that the JLN Marg is a six lane road, which is
free of traffic jams. It is submitted that the change of
land use has been permitted in conformity with the
provisions of Section 25 of the Act No.25 of 1982.
16. By way of Writ Petition No.5907/08, the petitioner
has questioned indiscriminate modifications of the
Master Development Plan of Jaipur, 2011 made about
500 times in the preceding years. The details of
modifications permitted, are set out in the Schedule A
annexed with the writ petition, which reveal that by
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way of various orders, even the land use of the land
forming part of green belt, ecological zone, park,
recreational activities, catchment area and pasturage,
has been changed. While questioning the modifications
made as aforesaid, the petitioner has specifically
prayed that the JDA may be directed not to part with
the land recorded as gair mumkin nadi etc. and in this
regard the position as it was existing on 15.8.1947
may be directed to be restored. It is further prayed
that the respondents may be directed not to change
the land use of charagah land and not to allot charagah
land to anybody and further that if in any case, the
change of land use of charagah is unavoidable, then an
equal area of land should be
reserved as charagah.
That apart, it is prayed that the respondents may be
directed to immediately take up steps regarding Zonal
Development Plan as per Section 23 of the Act No.25 of
1982 and publish the same immediately.
The respondents in their reply to the writ petition
have taken the stand that the Master Development
Plan is not a static document and the modifications
have been permitted by the State Government in
accordance with provisions of Section 25 of the Act
No.25 of 1982. Regarding Zonal Development Plan, it is
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[CW 1554/2004 AND FIVE CONNECTED MATTERS]
submitted by the respondents that JDA has already
embarked upon the preparation of Master Development
Plan of Jaipur City with horizon year 2025 wherein,
necessary care shall be taken for preparation of Zonal
Development
Plan
in
accordance
with
law.
It
is
submitted that Section 16 of the Rajasthan Tenancy
Act, 1955 (for short “the Act of 1955”), do not apply to
Jaipur Region as the development in the Jaipur Region
is governed by the provisions of Act No.25 of 1982.
17. By way of Writ Petition No.5908/08, the petitioner,
an Architect by profession, has questioned the action of
the JDA, Jaipur, in
Range
Project
in
proposing to develop a Shooting
village-Todiramjanipura,
Tehsil-
Sanganer, District-Jaipur, on the land which is shown in
the Master Development Plan of Jaipur as land reserved
for the purpose of construction of 200 ft. wide road.
A reply to the petition has been filed on behalf of
the respondents taking the stand that the Shooting
Range, Archery and Equestrian Centre of international
standard was proposed on 15.9 hectares land of which
11.17 hectares was owned by JDA, 0.9779 hectare was
owned by Department of Forest and 2.95 hectare was
owned by private khatedar tenants. It is submitted that
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the Government of India has permitted diversion of the
forest land vide order dated 13.4.06 with certain
conditions. It is submitted that compliance of the
conditions imposed was ensured vide communication
dated 12.5.06 and the land acquisition proceedings
were initiated for acquiring the khatedari land. It is
submitted
that
challenge
to
the
land
acquisition
proceedings laid before this court has failed. The
categorical stand of the respondents is that the JDA
has already developed fully functional Shooting Range
in December, 2007 and in February, 2008, reputed
national and international level shooting competitions
were held. According to the respondents, the entire
land which is used for developing the Shooting Range
was not reserved for the purpose of construction of
road as claimed. It is submitted that the proposal for
the construction of the road already stands dropped,
which is not impugned in the present petition.
18. During the pendency of the petitions, a Committee
constituted by this court consisting of learned counsels
Mr.M.R.Singhvi
and
Mr.Kuldeep
Mathur,
submitted
interim compliance report pointing out deviations made
by
the
State
and
Local
Authorities
from
Master
Development Plans of major cities with the suggestions
(20 of 257)
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to issue directions to the respondents in the following
terms:
“22. That in view of the material which has come
on record it would be just and proper to suggests
that (i) the local bodies (Municipalities, Urban
Improvement Trust, Jaipur Development Authority,
Jodhpur Development Authority etc) be directed
not to grant any permission contrary to master
plan; (ii) the Registration Department be also
apprised of the master plan of the respective areas
and should be bound down not to register any
document contrary to master plan and if possible,
some provisions may also be made in the
Registration Act; (iii) deviations which have so far
been made, but have not been acted upon may not
be permitted to go ahead with the deviation and
(iv) special care should be taken to and maintain
the peripheral control belt, which is the lung of a
town (v) all changes, which as detailed above are
void ab-initio may be declared as such and the
same may be given effect to under the supervision
of the Court.”
19. The
respondent-JDA
while
filing
the
written
submissions with regard to interim compliance report
submitted by the Court Commissioners, has taken the
stand that the change of the land use is permitted after
due
consideration
of
the
objections/suggestions
received pursuant to the notice issued under Section 25
of the Act No.25 of 1982. It is submitted that the total
area of Jaipur Region is about 3 lac hectare against
which the area of the changed land use is only 47
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hectare, which is very minimum looking to the total
area and population of the Jaipur Region.
20. In the written submissions filed on behalf of the
State
with
regard
to
interim
compliance
report
submitted, the stand taken is that during last few years
particularly, after economic liberation and reform set in
force after 1991, the pace of development in the urban
area
has
multiplied
manifold
and
the
level
of
urbanisation has gone up from about 19% in the year
1991 to 23% in 2001. It is submitted that the
migration from the rural areas to big cities like Jaipur,
Jodhpur,
Udaipur,
Kota,
Bikaner
and
Ajmer
is
significantly higher. Precisely, the stand of the State is
that the change of the land use is permitted only in the
public interest after following the procedure laid down
under the statute by the competent authority.
21. On
7.12.10,
this
court
while
adjourning
the
matters for a day, directed concerned and responsible
officer of the JDA and Jodhpur Development Authority
to remain present in the court alongwith data regarding
how many modifications have been made in the Master
Plans and how many applications seeking modifications
are pending.
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22. On 9.12.10, after due consideration of the position
regarding deviation from Master Plans, the court
passed an interim order in the following terms:
“From Jaipur Development Authority, Mr.P.Aravind
is present in person and he has submitted a chart
showing that in last six months, 151 changes have
been sanctioned under Section 25(1) which comes
to roughly 25 changes done to the master plan
every month. It is submitted that in ecological
zone, the change is made as per the
recommendations made by the State Government
and even in ecological zone, changes have been
made of which number has not been specified.
Similarly, information has been submitted Jodhpur
Development Authority, Jodhpur.
In
the
circumstances,
we
direct
Jaipur
Development
Authority,
Jaipur;
Jodhpur
Development
Authority,
Jodhpur;
Urban
Improvement Trust, Ajmer; Urban Improvement
Trust, Bikaner; Urban Improvement Trust, Kota and
Urban Improvement Trust, Udaipur to submit the
details of the changes in the master plan after the
Committee has submitted the report on 21.1.2009.
We also deem it proper to direct the aforesaid
authorities to specifically point out how many
changes have been made in the ecological zone
along with the area covered under the change.
Let the requisite information be filed within a
period of three weeks from today supported by an
affidavit.
As changes are also being made in the ecological
zone and periphery belt including green belt, we
deem it proper to direct the authorities not to
effect any change without prior permission of the
Court in the ecological zone and periphery belt area
including green belt.
It is also made clear that ordinarily even the
changes in other zones should not be made in the
routine manner. It appears that changes are made
in routine manner. In case, it is found that any
(23 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
change is found to be illegal, the responsibility shall
be fixed on the individual officer.” (emphasis
supplied)
23. Pursuant to the order passed by this court noticed
hereinabove, besides reply to the writ petitions, the
State of Rajasthan and Local Authorities have furnished
the
reports
regarding
violations/deviations
of
the
master plans of six major cities of the State viz. Jaipur,
Jodhpur, Ajmer, Kota, Bikaner and Udaipur. In view of
the interim order dated 9.12.10 passed by this court,
directing the respondent authorities not to effect any
change in the land use without prior permission of the
court in ecological zone and periphery belt area
including green belt, many applications have been
preferred by the applicants seeking diversion of the
land use from ecological zone/green belt/periphery
control belt to residential, commercial, institutional and
industrial purposes etc. Some of the applications
seeking permission for change of land use were granted
by this court in the larger public interest and many
more are still pending consideration.
24. We have heard Mr.M.S.Singhvi, Senior Advocate,
Amicus Curiae, Mr. Poonam Chand Bhandari, appearing
(24 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
in person, Mr.Abhinav Bhandari, appearing for the
petitioners (in Writ Petition No.5642/08, 5645/08 and
5907/08), Mr.N.M.Lodha, the Advocate General and
Dr.P.S.Bhati, Additional Advocate General (as he then
was) appearing for the State and Mr.P.P.Choudhary,
Senior
Advocate,
Mr.Ashok
Chhangani,
Advocate,
appearing for the applicants.
25. The learned Amicus Curiae, Mr.M.S.Singhvi, Senior
Advocate, contended that the Master Development Plan
is prepared under the provisions contained in UIT Act,
the Act No.25 of 1982, Jodhpur Development Authority
Act, 2009 (“Act No.2 of 2009”) and Ajmer Development
Authority Act, 2013 ('Act No.39 of 2013'), as the case
may
be,
to
ensure
systematic
and
planned
development of a city and adjoining areas with a view
to protect the residents from ill effects of urbanization.
Learned amicus curiae would submit that the protection
of
environment,
provisions
regarding
ecological
zone/green belt/ peripheral control belt, open spaces
for recreation and fresh air, playgrounds for children,
promenade for residents and other conveniences or
amenities are matters of great public concern, which
are
taken
care
of
while
preparing
a
Master
Development Plan. Learned amicus curiae submitted
(25 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
that the ecological zone, green belt, periphery control
belt, open spaces, parks etc. in terms of the phrase as
used by the Hon'ble Supreme Court are “lung spaces”
provided
for
the
citizens
and
deprivation
thereof
amounts to violating the right of citizens to healthy,
hygienic and clean environment, guaranteed as a
concomitant right to life enshrined in Article 21 of the
Constitution of India. Learned amicus curiae submitted
that Article 48A in Part-IV of the Constitution of India
enjoins that the State shall endeavour to protect and
improve the environment and to safeguard the forest
and wildlife of the country and therefore, there is a
constitutional imperative on the State Government and
the Local Authorities not only to ensure and safeguard
a proper environment but also a duty to take adequate
measures to promote, protect both the man-made and
natural environment. Learned counsel submitted that in
the
ecological
zone/green
belt/peripheral
control
belt/open area/park and civil amenities for citizens are
provided in the Master Plan but a small section of the
society for vested interest is indulged in violating the
same indiscriminately with the aid of local authorities.
Learned
counsel
submitted
that
the
statement
regarding the change in the land use in peripheral
(26 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
control belt/ecological zone will show that a large
number of deviations have been permitted by the State
Authorities with impunity. Learned counsel submitted
that the applications made before this court for the
change of land use as many as 84 in numbers also
indicate that huge land is sought to be diverted from
ecological
Learned
zone/green
counsel
belt/peripheral
submitted
that
control
with
the
belt.
urban
habitation in the cities and towns, since the ambient air
in the atmosphere gets polluted on account of vehicular
traffic, sewage, garbage and affluent discharge by
industries located within the city or in the vicinity of the
cities, the Government and the local bodies which have
been invested with the regulatory powers to make
adequate provisions in the form of green belt/ecological
zone/peripheral control belt, ensuring adequate number
of plants, trees and shrubs to generate adequate
quantum of oxygen, ambient quality of air for ensuring
quality of life to the citizens and therefore, once an
area is earmarked as ecological zone/peripheral control
belt/green belt, it should not be permitted to be
changed in any manner. In support of the contention,
learned amicus curiae has relied upon the decisions of
the Hon'ble Supreme Court in the matter of 'Manohar
(27 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
Joshi vs. State of Maharasthra', (2012) 3 SCC 619 and
'Virendra Gaur Vs. State of Haryana' (1995) 2 SCC 577.
Learned amicus curiae submitted that keeping in view
the increasing level of pollution in the cities, there
exists a need for creation of more and more green
spaces in the city besides preserving the existing one.
Learned amicus curiae would submit that the ecological
zone/ peripheral control belt/green belt specified in the
notified
Master
Development
Plan
form
basic
character/feature of Master Development Plan, which
cannot be permitted to be altered and such land cannot
be permitted to be put to other uses i.e. commercial,
residential, institutional and industrial etc.. Learned
amicus curiae submitted that the study of the Master
Development Plans notified over the years, reveals that
every time when a new Master Development Plan is
prepared for a city, the area originally earmarked in the
preceding Master Development Plan as periphery belt is
obliterated and its boundaries shifted, only to form the
area/villages newly added as a new peripheral control
belt.
Learned
amicus
curiae
submitted
that
this
methodology is not pragmatic and defies the entire
purpose of having a control belt around the core
developed area in the Master Development Plan and
(28 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
therefore, the area shown as control belt in the existing
Master Development Plan should not be given up
entirely
for
development
in
the
new
Master
Development Plan. Learned amicus curiae submitted
that before shifting the control belt while expanding the
area of the city, a buffer zone/green zone of at least
one kilometer should be left around the periphery of
the
core
developed
area.
Learned
amicus
curiae
submitted that no change of the land use should be
permitted in this buffer zone, which will help to
maintain the lung spaces for the citizens and the
ecology of the area. Learned amicus curiae would
submit that in any case, the ecological zone and green
belt specified in the existing Master Development Plan
should not be diverted for any other use. Learned
amicus curiae submitted that even Section 25 of Act
No.25 of 1982, pari materia provisions in the Act No.2
of 2009, Act No.39 of the Act of 2013 and Section 73B
of UIT Act, which provide for subsequent modifications
of the Plans, permits only the modifications which in
the opinion of the authority do not affect material
alteration in the character of the plan and which do not
relate to the extent of the land uses or the standards of
the population density. Learned amicus curiae would
(29 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
submit that the power conferred upon the authorities to
promote planned development of any part of the city in
more efficient manner, cannot be used for permitting
the change of the land use in routine manner. Learned
amicus
curiae
incorporated
submitted
providing
for
that
various
framing
of
provisions
the
Master
Development Plan and modification/review thereof have
to be read not in isolation, but as a whole, in the
context of purpose of their enactment. Learned amicus
curiae would submit that the modification of the Master
Development Plan is permissible as an exception in the
larger public interest but the material on record clearly
indicate that there is wholesale breach of the provisions
contained in the Master Development Plan and it is
modified very lightly by permitting the use of the land
meant for green belt, ecological zone, peripheral control
belt for other purposes just to serve the vested interest
of individuals to earn undue profits. Learned amicus
curiae submitted that the public interest has to be
understood and interpreted in the light of the entire
scheme, purpose and object of the enactment. In
support of the contention, reliance is placed upon a
decision of the Hon'ble Supreme Court in the matter of
“Bangalore
Medical
Trust
Vs.
B.S.Muddappa
and
(30 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
Others”, (1991) 4 SCC 54. Relying upon the decision of
the Hon'ble Supreme Court in the matter of “Manohar
Joshi vs. State of Maharashtra” 2012 (3) SCC 619,
learned amicus curiae submitted that in the garb of
modification of the plan, the respondents cannot be
permitted to carry out a development contrary to
Master Development Plan frustrating its very object i.e.
planned development of the city. Drawing the attention
of the court to Jodhpur Master Development Plan 20012023, learned amicus curiae submitted that during the
operative period of the Master Development Plan, the
uses of the land forming part of the periphery control
belt have been specifically delineated and therefore, the
question of permitting the land forming part of the
periphery control belt for the purposes other than
specified,
does
not
arise.
Learned
amicus
curiae
submitted that the statistics made available by the
Department of Forest, Government of Rajasthan on its
website clearly show that the extent of forest land in
the State has reduced from 39,420 sq. kms. in the year
1960-61 to 32,638.64 sq. kms. in the year 2006-07.
Learned amicus curiae submitted that the ever growing
tendency is seen that the modification of the Master
Development Plan is permitted to subserve the interest
(31 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
of private colonizers/builders/developers, who have
failed to adhere to the norms prescribed, giving a set
back to the purpose sought to be achieved by the
Master Development Plans. Learned amicus curiae
submitted that though, before passing the prohibitory
order
by
this
court
while
preparing
the
Master
Development Plan, the authorities had made some
provisions
for
belt/ecological
green
zone
in
belt/peripheral
the
respective
control
Master
Development Plans but after prohibitory order being
passed by the court, a novel method has been adopted
by revising the plans and shifting the places meant for
ecological zone, green belt and peripheral control belt
by giving a different nomenclature. Learned amicus
curiae submitted that in garb of revision of Master
Development
Plan,
the
minimum
ecological zone/green belt and
requirement
of
peripheral control belt
with reference to the population at the relevant time
and projected increase therein during the plan period
cannot be done away with or reduced. Learned amicus
curiae submitted that obviously the “lung spaces” for
existing population cannot be shifted to number of
kilometers away in the garb of requirement of future
expansion of the city and thus, converting the city into
(32 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
just a cluster of buildings. Learned amicus curiae
submitted that the respondents with an intention to
avoid the effect of interim order passed by this court,
have resorted to revision of the Master Development
Plan of Jodhpur and Udaipur wherein, the periphery
control belt/ecological/green belt has been done away
with.
Learned amicus curiae submitted that the land
forming part of peripheral control belt/eco sensitive
zone/green belt/ urban 2/ urban 3, as the case may be,
is
the
land
most
sought
for
by
the
private
entrepreneurs for various projects and therefore, its
exploitation by a very small section of the people for
satisfying
their
personal
goals
is
definitely
not
conducive to the health of the city and in the larger
public interest.
26. Learned amicus curiae submitted that in order to
prevent wholesale breach of the Master Development
Plan and to check and curb the tendency of certain
people constituting a small section of the society and to
ensure the adherence and compliance of the Master
Development Plans and the relevant law governing the
field, once a place has been marked for ecological
zone/green
belt/periphery
belt,
it
should
not
be
permitted to be changed in any manner resorting to the
(33 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
provisions
of
the
various
enactments
permitting
modifications of the Master Development Plans during
their operative period. Learned amicus curiae submitted
that the adequate provisions should be made making
environmental impact assessment as mandatory prerequisites for approving any change of the land use in
the area covered by the Master Development Plan.
27. Learned amicus curiae submitted that the major
cause of unplanned development is that the private
colonies are being permitted to be developed on the
land having area less than the reasonable area required
for
developing
a
colony.
Learned
amicus
curiae
submitted that instead of forming layout of the colonies
on large scale, the colonies are approved on the basis
of small individual layouts in the area running from 2 to
10 acres, wherein obviously no provision for a park or a
playground or civic amenities can be made. Learned
amicus curiae would submit that so as to check
haphazard and unplanned development formation of
small layouts by developers should be discouraged and
the development authorities should take up large scale
developments inasmuch as, no small developer can
develop a good colony with all facilities in a few acres of
land. In support of the contention, learned amicus
(34 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
curiae has relied upon a decision of the Hon'ble
Supreme Court in the matter of 'Bondu Ramaswamy
Vs. Bangalore Development Authority',
(2010) 7 SCC
129.
28. Learned amicus curiae suggested that the location
of the industries should not be scattered and the Master
Development
Plan should provide two separate zones
at the boundary limit of the urban area with the buffer
area for any future expansion in the same patch, if
required. Learned amicus curiae submitted that the
Rajasthan Industrial Investment Corporation Limited
(RIICO), a body constituted for industrial development,
is permitting the change of land use in the industrial
area, needs to be restrained from doing so. Learned
amicus curiae submitted that Master Development Plan
should contain adequate provisions for re-location of
industrial set ups operating in the core developed area
and should be shifted beyond the area covered by
Master Development Plan.
29. Learned amicus curiae would submit that the
roads shown in the Master Development Plan should be
earmarked by mounting pillars on the actual site in
order to ensure that such land remains intact at the
(35 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
time of execution and is not encroached upon by
anybody. Learned amicus curiae suggested that the
road
width
for
the
area
reserved
for
residential
purposes, industrial purposes and the ring road should
not be less than 80 ft., 200 ft. and 300 ft. respectively.
Similarly, appropriate width should also be prescribed
for Major District Roads (MDR), State Highway (SH) and
National Highways (NH) for the entire State.
30. Learned amicus curiae submitted that as per the
norms laid down and the provisions made in the Master
Development Plan, 100 ft. wide strip land on the either
side of the Highways must be strictly reserved for the
purpose of tree plantation. Learned amicus curiae
submitted that such strips of green belt should be
converted
into
forest
land
and
no
conversion
whatsoever should be permitted. Learned amicus curiae
urged that the conversion made and any construction
raised in the width of 100 ft. on the either side of the
Highways, must be removed and the green strips as per
the norms laid down must be restored.
31. Learned amicus curiae while reiterating that the
protection
of
the
environment,
open
spaces
for
recreation and fresh air, playgrounds for the children
(36 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
and other amenities for the residents of the city
specified in the Master Development Plan or the colony
developed, cannot be permitted to be converted to any
other use whatsoever, but the respondents have even
proceeded to permit the change of land use of the lands
earmarked in the Master Development Plan for the said
purposes. Learned amicus curiae would submit that
change of use of such land earmarked in the Master
Development Plan for the aforesaid purposes is against
the public interest and defeats the very purpose of the
statutory mandate to ensure the planned development
so as to attain a quality of life for the residents of the
city and therefore, all such conversions permitted in
defiance of the Master Development Plans deserve to
be undone and the land use as specified in the Master
Development Plans, must be restored. In this regard,
learned amicus curiae has relied upon decisions of the
Hon'ble Supreme Court in the matters of “Bangalore
Medical Trust vs. B.S.Mudappa”, (1991) 4
SCC 54,
“Virendra Gaur vs. State of Haryana”, (1995) 2
SCC
577, “M.C.Mehta vs. Union of India”, (1996) 4 SCC
351, “M.C.Ludhiana vs. Balinder Bachan Singh”, (2004)
5 SCC 182, “M.C. Mehta vs. Union of India”, (2004) 6
SCC 588, “Sushanta Tagore & Ors. vs. Union of India &
(37 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
Ors.”, (2005) 3 SCC 16, “S.N.Chandrashekhar vs. State
of Karnataka”, AIR 2006 SC 1204, “Machavarapu
Srinivasa Rao vs. Vijaywads, Guntur, Tanali”, 2011 AIR
SCW 5424.
32. Learned amicus curiae submitted that the change
of the land use in the Master Development Plan from
residential to commercial, institutional or industrial
purpose is playing havoc with the healthy, hygienic and
peaceful life of the residents settled in the residential
colonies and therefore, the change of the land use in
the residential colonies already developed or proposed
to be developed as per the Master Development Plan,
for commercial or institutional or industrial or mixed
use needs to be banned altogether. In support of the
contention, learned counsel has relied upon a decision
of the Hon'ble Supreme Court in the matter of
“R.K.Mittal & Ors. vs. State of Uttar Pradesh & Ors.”,
(2012) 2 SCC 232.
33. Learned
amicus
curiae
urged
that
wherever
permission for residential or commercial multi storey
buildings are granted, a person should be bound down
to provide parking space and the construction of the
building should not be permitted to be proceed with,
(38 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
unless the requirement of parking place is satisfied.
Learned amicus curiae submitted that unless the
parking is provided, such building should not be
permitted
to
commence
its
functioning
and
after
commencement of the functioning, if parking spaces
are used for other purposes, such building should be
sealed forthwith and heavy penalty should be imposed
on the builder/developer. Learned amicus curiae would
submit that in existing buildings where parking spaces
provided in the sanctioned plan, are diverted to other
use, the same should be directed to be restored within
time schedule failing which the sealing of the building
should be ordered coupled with heavy penalties.
34. Learned
amicus
curiae
submitted
that
the
construction of the building in deviation of the Master
Development Plan, the sanctioned plan of the building
and the bye-laws of the concerned local authority has
become routine and therefore, it is the need of time
that the building bye-laws of the local authorities are
directed to be enforced strictly. Learned amicus curiae
submitted that illegal construction raised in set backs
are being compounded as a matter of course. Learned
amicus curiae submitted that the compounding of set
backs and the height of the building should not be
(39 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
permitted in any circumstances. Drawing the attention
of this Court to the provisions of the Rajasthan
Municipalities (Compounding and Compromising of the
Offences) Rules, 1966, learned amicus curiae submitted
that the same confer unbridled and uncanalized power
in the hands of local authority, which is against the
scheme of Rajasthan Municipalities Act, 2009 ('Act
No.18 of 2009') and therefore, deserve to be declared
ultra vires or should not be permitted to operate in
contravention of the provisions of the Act No.18 of
2009.
Learned
amicus
curiae
submitted
that
compounding of unauthorised construction raised in
deviation of the sanctioned plan should be permitted in
conformity with the building bye-laws of the local
authorities only by way of exception when it is found to
be
absolutely
bona
fide.
Learned
amicus
curiae
submitted that unauthorised construction raised in
deviation of the Master Development Plan or the
building bye-laws of the local authority concerned must
be demolished. In support of the contention, learned
amicus curiae has relied upon decisions of the Hon'ble
Supreme Court in the matters of “Pratibha Cooperative
Housing
Society
Ltd.
&
Anr.
vs.
The
State
of
Maharashtra & Ors.”, JT 1991(2) SC 543, “Dr. G.N.
(40 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
Khajuria Vs. Delhi Development Authority”, (1995) 5
SCC 762, “M.I. Builders Vs. Radhey Shyam Sahu”
(1999) 6 SCC 464, “Friends Colony Development
Committee vs. State of Orissa & Ors.”, (2004) 8 SCC
733, “Shanti Sports Club and Anr. vs. Union of India &
Ors.” (2009) 15 SCC 705,
“Dipak Kumar Mukherjee
Vs. Kolkata Municipal Corporation”, 2013(5) SCC 336,
“Esha Ekta Apartments Cooperative Housing Society
Limited & Ors. vs. Municipal Corporation of Mumbai &
Ors.”, (2013) 5 SCC 357, “Association for Environment
Protection Vs. State of Kerala”, (2013) 7 SCC 226.
35. Learned amicus curiae submitted that while raising
construction of commercial buildings, a tendency has
developed to put the stair case and ramp on the
footpath and in the residential colonies, open land
meant for footpath are being used for lawn by putting
fencing, which needs to be checked with a strong hand.
Learned amicus curiae submitted that no signboard or
hoarding should be permitted to be put on the
footpath/public way.
36. Learned amicus curiae submitted that for purpose
of developing multi-storey buildings in the city, the area
should be distinctly marked in the Master Development
(41 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
Plan and no multi storey building should be permitted
to
come
up
in
the
existing
residential
colonies
developed with the infrastructure, keeping in view the
number of family units to be settled in such colonies.
Learned amicus curiae submitted that the construction
of
the
multi
storey
buildings
where
there
are
settlements of the individual family units in the houses
constructed
as
per
the
building
bye-laws,
the
permission to raise multi storey buildings cannot be
granted, adversely affecting rights of residents of the
residential colony developed by the local authority or
developed by the private developers and approved by
the local authority.
37. Learned amicus curiae submitted that provisions
of Section 33-A of Act No.25 of 1982, Section 34 of Act
No.2 of 2009 and Section 34 of the Act No.39 of 2013,
which permit composition of unauthorised development
is
ex
facie
contrary
to
the
concept
of
planned
development envisaged under Chapter V of Act No.25
of 1982, Act No.2 of 2009 and Act No.39 of 2013 and
therefore, the said provisions, which confer unbridled
power in the hands of the JDA, Jaipur, JDA, Jodhpur and
JDA, Ajmer, deserve to be declared ultra vires.
(42 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
38. Regarding the change of land use of pasture land
for other purposes, learned amicus curiae submitted
that 'pasture land' as defined by Section 5(28) of the
Act of 1955, meant for grazing of the cattles of the
village or villages cannot be divested to use for any
other purpose unless and until special circumstances
exist which necessitate change of classification of any
pasture land. Learned amicus curiae submitted that
change
of
classification
could
be
made
by
the
competent authority in conformity with Rule 7 of the
Rajasthan Tenancy (Government) Rules, 1955 (for
short “the Rules of 1955”) but then, while permitting
the change of classification, it is obligatory on the
District Collector to set apart equal area of unoccupied
culturable government land as pasture land. Learned
amicus curiae submitted that unauthorised occupation
over the pasture land cannot be regularized and must
be removed. In support of the contention, learned
amicus curiae has relied upon decision of the Hon'ble
Supreme Court in the matter of
“Jagpal Singh and
Others Vs. State of Punjab and Others”, 2011(11) SCC
396.
39. Mr.Abhinav Bhandari, learned counsel appearing
on behalf of the petitioners in Writ Petition No.5646/08,
(43 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
submitted that the area earmarked in the Master
Development Plan as institutional cannot be permitted
to be converted to commercial use during the operative
period
of
the
Master
Development
Plan
or
even
thereafter, while revising the same. Learned counsel
submitted that the land uses prescribed in the Master
Development Plan cannot be materially changed in the
subsequent Master Development Plan. Learned counsel
submitted that the respondents while effecting the
change of the land use in the Master Development Plan,
of the specified area on JLN Marg from institutional to
commercial and mixed use, have materially altered the
Master Development Plan and therefore, the position of
the land use in respect of such area specified in the
Master
Development
Plan
of
Jaipur,
2011
as
institutional, deserves to be restored. Drawing the
attention of this court to the Schedule attached to the
writ petition (D.B.C.Writ Petition No.5907/08), learned
counsel submitted that the respondents by invoking the
provisions of Section 25 have made the modifications
altering the basic character of the plan and proceeded
with the development in unplanned manner. Learned
counsel would submit that the land forming part of
nadi, water tank, catchment area, the ecological zone,
(44 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
green belt and the land reserved for parks and other
common facilities in the Master Development Plan,
cannot be divested for any other use and thus, the
action of the respondents in permitting the change of
the land use is ex facie against the spirit of the
provisions of Section 25 of the Act No.25 of 1982.
Learned counsel submitted that the action of the
respondents in permitting the change of the land use in
defiance of the provisions of Section 25 of the Act
No.25
of
1982
and
dehors
the
policy
decision
underlying the Master Development Plan duly notified,
is null and void. Learned counsel submitted that the
specific allegation levelled in Writ Petition No.5645/08,
preferred by the petitioner-Kamlesh regarding change
of the land use from ecological to residential and mixed
use, just to extend favour to higher officials of the
State, is not controverted by the respondents by
placing any material on record and thus, the original
use of the said land as specified in the Master
Development Plan of Jaipur, 2011 deserves to be
restored. Learned counsel submitted that as a matter
of fact, so as to extend the undue favour to the IAS
Officers, the plans for Sector 34 and 35 were approved
by the Building Plan Committee and not by the
(45 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
competent authority in conformity with the provisions
of Section 23 of the Act No.25 of 1982.
Learned
counsel submitted that while preparing the sector plan,
the roads have been provided in four sides just to
isolate the colony sought to be developed for IAS
Officers. Relying upon a decision of this court in the
matter of 'Yashwant Sharma Vs. State of Rajasthan &
Ors.', 2005 (2) WLC 559, learned counsel submitted
that the question that the land earmarked as ecological
zone in the Master Development Plan cannot be
divested to be used for any other purpose, is no more
res integra and therefore, the action of the respondents
in changing the land use of ecological zone just to
extend favour to the higher ups, deserves to be
declared illegal and the position of the land falling in
ecological zone, deserves to be restored. Learned
counsel would submit that any policy decision of the
Government cannot override statutory provisions and
therefore, the change of land use effected by the local
authorities relying upon the circulars issued by the
State Government in defiance of provisions of Section
25 of the Act No.25 of 1982, is not sustainable in the
eyes of law. In support of the contention, learned
counsel has relied upon decisions of the Hon'ble
(46 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
Supreme Court in the matters of 'Punjab Water Supply
& Sewerage Board Vs. Ranjodh Singh and Others'
(2007) 2 SCC 491 and 'State of Orrisa and Others Vs.
Prasana Kumar Sahoo' (2007) 15 SCC 129. Learned
counsel would submit that it is well settled that the
power of the State Government to issue executive
instructions is confined to filling up of the gaps or
covering the area which is otherwise not covered by the
existing
statutes
and
therefore,
the
executive
instructions issued by the State Government overriding
the statutory provisions are null and void. In this
regard, learned counsel has relied upon the decision of
the Hon'ble Supreme Court in the matter of 'Union of
India and Another Vs. Central Electrical & Mechanical
Engineering
Service
(CE&MES)
Group
'A'
(Direct
Recruits) Assn., CPWD and Others' (2008) 1 SCC 354.
40. Mr. Poonam Chand Bhandari, the petitioner in Writ
Petition No.5642/08 and 5646/08, appearing in person,
submitted that the change in the land use effected by
the local authorities in purported exercise of the power
under sub-section (3) of Section 25 of Act No.25 of
1982, impugned in the Writ Petition No.5642/08,
amounts to material alteration in the character of the
plan, which is not permissible as per the mandate of
(47 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
provisions of sub-section (1) of Section 25 of Act No.25
of 1982. In this regard, learned counsel has relied upon
a Bench decision of this Court in Yashwant Sharma's
case (supra). Mr. Bhandari submitted that JLN Marg is
an institutional area where various schools, colleges,
hospitals are situated and therefore, if commercial
activities are permitted on the said road, it will result in
increase of traffic on the road, which is bound to
generate air pollution affecting the health of the
students and the patients. It is submitted that if the
change of the land use of an area earmarked in the
Master Development Plan for institutional purposes is
diverted to be used for commercial purposes, it will
amount to altering the basic character of the plan and
thus, the impugned notification dated 16.4.05 issued by
the
State
institutional
Government
area
for
permitting
institution
mixed
and
use
of
commercial
purpose, deserves to be quashed.
41. Mr.N.M.Lodha,
learned
Advocate
General,
submitted that the Master Development Plan is a policy
document for guiding the future development of the
city in a planned manner, which is prepared after
considering the past trends of socio-economic and
physical pattern of growth of the city, future prospects
(48 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
and projected population, current policies of Central
and State Government. Drawing the attention of the
court to the Jaipur Master Development Plan-2025,
learned AG submitted that the notified area in the plan
is divided in three basic parts; (i) Urbanized area
(existing developed area), (ii) Urbanisable area and (iii)
Peripheral area termed as green belt/peripheral control
belt/ecological area or rural belt. Learned AG submitted
that area immediately adjoining the urbanisable area is
very
much
growth
and
susceptible
therefore,
to
to
unorganized/unplanned
arrest
undesirable
and
unplanned growth on the periphery of urbanisable area
and to ensure orderly and planned development in
concise form and coordinate manner in the urbanisable
area, it is necessary to put control on the development
which may take place in the immediate periphery and
for this purpose a control belt is provided around the
urbanisable area, which is termed as periphery control
belt.
Learned
AG
urged
that
the
growth
and
development of the towns are guided by various factors
such
as,
change
in
Government
policies
and
investment, social habits of the society and number of
natural or man made unforeseen reasons. Learned AG
would
submit
that
the
peripheral
control
belt
(49 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
area/ecological
area/rural
area
in
the
Master
Development Plan is never proposed for developing as
green area to serve as 'lung space' for the city. It is
submitted that basically peripheral area, predominately
agriculture in nature, is under the private ownership.
Learned AG urged that no plan can be rigid and the
certain degree of flexibility is always necessary to
accommodate the changes and therefore, during the
operation of the Master Development Plan and while
preparing
the
new
Master
Development
Plan
for
extension of the city and when the need arises for city
development, the said area can always be used for
planned development. Learned AG would submit that
the contention sought to be raised that the land falling
within the periphery belt cannot be put to any use other
than specified under Master Development Plan, is
absolutely fallacious. Learned AG submitted that the
changes in the Master Development Plans are effected
as per the procedure laid down under the law after
taking into consideration the objections/ suggestions
made by public at large. Drawing the attention of this
court to the provisions of Section 21 & 25 of Act No.25
of 1982 and Section 73B of the UIT Act and Section 162
of the Act No.18 of 2009, learned AG submitted that
(50 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
the provisions incorporated provide sufficient checks
and balances on exercise of the power by the State
Government and other authorities to allow subsequent
change of land use in the Master Development Plan.
Referring to the provisions of Section 25 of the
Act
No.25 of 1982, learned AG submitted that as per
provisions of sub-section (1) of Section 25, JDA is
empowered to make only those modifications in the
plan, which do not affect material alterations in the
character of the plan and do not relate to the extent of
the land uses or the standards of the population
density. Learned AG submitted that by virtue of
provisions of sub-section (2) of Section 25, other
modifications in the Master Development Plan can be
effected by the JDA only with the approval of the State
Government. However, the learned AG submitted that
in terms of the provisions of sub-section (2a) of
Section 25, the JDA or the authority or the Nagar
Nigam or any other body or committee authorised by
the State Government may make modification in the
land use plan, as may be specified by the State
Government by notification in the Official Gazette
independent of the provisions of sub-section (2) of
Section 25. Learned AG submitted that before making
(51 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
modification to the plan, the authority concerned is
required to publish a notice inviting objections and the
objections and
suggestions made are
mandatorily
required to be considered by the JDA. Learned AG
submitted that by virtue of Section 28 of the Act No.25
of 1982, the State Government is empowered to revise
the plan if necessary even during its operative period.
Drawing the attention of the Court to the provisions of
Section 162 of the Act No.18 of 2009, learned AG
submitted that under the said provision the municipality
is empowered to make any modification to the Plan
with the prior approval of the State Government, which
in its opinion do not affect material alterations in the
character of the Plan and which do not relate to the
extent of land uses or the standards of the population
density. It is submitted that even under Section 73B(2)
of the UIT Act, the State Government or any authority
authorised by it, is empowered to permit the change of
land use as specified only if it is satisfied so to do in the
public interest. Learned AG would submit that the
provisions incorporated provides for sufficient guidance
and therefore, the question of misuse of the power
does not arise. Learned AG submitted that of course,
the natural resources such as hills, notified forest, river,
(52 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
lake etc. cannot be disturbed while preparing the
Master Development Plan or modifying the same.
Learned AG submitted that whether the modification
made in the Master Development Plan amounts to
material alteration depends on facts and circumstances
of each case and therefore, no fixed parameters can be
laid down by this court in this regard. Learned AG
submitted that the Master Development Plan is not a
static
document,
therefore,
State
which
cannot
Government
be
and
altered
its
and
authorities
empowered under the Act to make modification in the
Master Development Plan cannot be restrained from
exercising the statutory power vested in them. In
support of the contention, learned AG has relied upon a
decision of the Hon'ble Supreme Court in the matter of
'Pune Municipal Corporation and another Vs. Promoters
and Builders Association and another', AIR 2004 SC
3502. Learned AG submitted that the letter petition
does not point out any specific deviation of the Master
Development Plan and thus, on the basis of the
omnibus allegations, no conclusion can be drawn that
the wholesale change in the land use has been effected
in violation of Master Development Plan. Learned AG
submitted that ordinarily the Court cannot substitute its
(53 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
decision for that of the planning authority, permitting
change of the land use during the operative period of
the Master Development Plan, taking into consideration
the relevant factors, unless an appropriate case is made
out therefor. In support of the contention, learned AG
has relied upon a decision of the Hon'ble Supreme
Court in the matter of 'Bombay Dyeing & Mfg. Co. Ltd.
Vs. Bombay Environmental Action Group and Others'
(2006) 3 SCC 434. Drawing the attention of the court
to
the
report
submitted
on
behalf
of
the
State
Government giving details of the change in the land use
permitted, learned AG submitted that small percentage
of change in the land use effected, by no stretch of
imagination, could be construed as wholesale change of
the land use. Learned AG urged that the reduction in
the forest area does not relate to area covered by
Master Development Plan. Drawing the attention of this
court to sub-section (2) of Section 73B of the UIT Act,
learned AG submitted that the change in the land use
as specified therein, is permissible only when the State
Government authorises the authority to allow the
change of use if it is satisfied so to do in the public
interest and therefore, no change in the land use is
permitted unless the change proposed is found to be in
(54 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
public interest. Learned AG submitted that what would
be in the public interest is not required to be expressly
provided in the provision but such guidelines can be
gathered from the provisions of the Act and the Rules
made thereunder. Learned AG submitted that whether
particular change of the land use is in public interest or
not, is required to be decided by the authority
concerned. In support of the contention, learned AG
has relied upon a decision of the Hon'ble Supreme
Court in the matter of 'Premium Granites and another
Vs. State of T.N. and others' (1994) 2 SCC 691.
Learned AG submitted that the modification of the plan
in terms of provisions of Section 25 of Act No.25 of
1982, is permissible in order to promote the planned
development of any part of Jaipur region in more
efficient manner and therefore, obviously, the power
shall be exercised thereunder for accomplishment of
the specified object. In support of the contention,
learned AG has relied upon a decision of the Hon'ble
Supreme Court in the matter of 'Hotel Sea Gull Vs.
State of West Bengal and others' AIR 2002 SC 1506.
Relying upon a decision of the Hon'ble Supreme Court
in the matter of 'Mangal Amusement Park Private
Limited and another Vs. State of Madhya Pradesh and
(55 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
Others' (2012) 11 SCC 713, learned AG submitted that
unless a decision of the authority permitting the change
of the land use in exercise of statutory power is found
to be actuated by malafides or suffering from vice of
colourable exercise of power, the same should not be
interfered with by the Court. Learned AG submitted
that no details regarding alleged wholesale deviations
from the Master Development Plan is furnished by the
petitioners and therefore, on the basis of vague and
indefinite pleading, there is no reason why this Court
should enter into a roving and fishing enquiry into the
questions of facts. In support of the contention, learned
AG relied upon a decision of the Hon'ble Surpeme Court
in the matter of 'State of Madhya Pradesh Vs. Narmada
Bachao Andolan and another' (2011) 7 SCC 639.
42. Dr.P.S.Bhati, learned Additional Advocate General
submitted that the Master Development Plan is a vision
document to guide for next 20-25 years, but to cope up
with
the
pace
of
urban
development
due
to
unanticipated and unprecedented technological changes
and
economical
development,
every
Master
Development Plan requires updating and renewing in
order to incorporate new requirements. Learned AAG
while reiterating the submissions made by learned AG
(56 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
on behalf of the State, submitted that the peripheral
control belt/green belt/ecological or rural area, are
predominately
rural/agriculture
area
provided
for
control of haphazard development. Learned AAG would
submit that peripheral control belt/green belt/ecological
or rural area is also part of the region where the
Development Authority constituted under the statute is
empowered to undertake planned development and
therefore, the modification/change of the land use in
the area shown in the Master Development Plan as
peripheral control belt/green belt/ecological or rural
area, is always permissible in conformity with the
statutory provisions governing the modification of the
Master Development Plan during its operative period.
Learned
AAG
submitted
that
while
effecting
the
modifications in the Master Development Plan, the
natural features such as, hills, forests, water bodies etc.
are never touched and cannot be disturbed. Learned
AAG would submit that even the open spaces provided
in the Master Development Plan for parks and other
recreational facilities for the public also cannot be
permitted to be disturbed while modifying the plan.
Learned AAG submitted that with the increase in the
population and the change in the pattern of urban
(57 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
development, to meet the need of the time, the
required
changes
in
the
operational
Master
Development Plan, cannot be avoided. Learned AAG
would
submit
that
taking
into
consideration
the
population density in the city, the minimum green area
is required to be maintained but then, on that account,
the change in the land use in the green belt shown in
the Master Development Plan, which is nothing but the
peripheral control belt, cannot be ceased altogether.
Learned AAG would submit that while operating the
Master Development Plan and revising the same, the
State shall ensure that minimum green area required
as per the population density of the city/town in
conformity with the norms laid down by the Ministry of
Urban Development, Government of India under Urban
and
Regional
Development
Plans
Formulation
&
Implementation Guidelines, 2014 (“URDPFI Guidelines,
2014”), is maintained. Learned AAG submitted that the
“lung spaces” for the residents of the city cannot be far
away from the residential area and therefore, the
contention raised by the Amicus Curiae that the
periphery control belt or the green belt notified are the
“lung spaces” for the residents of the city, is absolutely
misconceived. Learned AAG submitted that with the
(58 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
increase of population, urbanisable area in the Master
Development
Plan
has
to
be
increased
and
the
development of a particular city has to be in continuum
and therefore, there is no logic in keeping one
kilometer buffer zone around the old development
before allowing the new planned development as
proposed by learned Amicus Curiae. Learned AAG
submitted that while modifying or revising the Master
Development Plan, the area which falls within forest
notified area is never touched. Learned AAG submitted
that the State has no objection if the matter with
regard to change of the land use in peripheral control
belt
during
the
operative
period
of
the
Master
Development Plan is directed to be dealt with by the
State Level Committee to be constituted by the State
Government. Learned AAG would submit that open
spaces shown in the Master Development Plan reserved
for park, playgrounds, recreational activities and other
common facilities, have to be preserved and therefore,
the land use of such open spaces, if any changed, shall
be restored in accordance with law. Learned AAG
submitted that water bodies, catchment area, high
flood area/wetlands have to be preserved at any cost
and therefore, the State Authorities shall take the
(59 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
appropriate steps to undone such change of the land
use, if any. Learned AAG candidly submitted that the
roads and footpath have to be kept open for the use of
public at large and therefore, the encroachment made
on footpath and the public way by putting stairs, ramp,
hoardings or fencing for the purpose of lawn etc. shall
be dealt with strictly and all encroachments made in
the various cities on footpath and road, shall be
removed. Learned AAG submitted that the parking
places provided in the sanctioned plan, cannot be put to
use for any other purpose and therefore, the Local
Authorities are under an obligation to take appropriate
measures for restoration of parking places provided in
the commercial and residential buildings. Drawing the
attention of this court to the draft Urban Development
Scheme Policy-2015, learned AAG submitted that the
said Scheme to be finalized by the State shall cover all
types of small and larger Schemes for various uses
including
residential,
commercial,
institutional
and
industrial and other uses. Learned AAG would submit
that there is a paramount need to involve private sector
in the city development and therefore, appropriate
provisions are sought to be incorporated for monitoring
development of the colonies by the private developers
(60 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
as well. Learned AAG submitted that in order to
encourage larger Scheme with the higher space for
social and physical infrastructure, in the policy a
concept to incremental saleable area on larger Scheme
while maintaining the suitable proportion of facility
area, is proposed. Learned AAG submitted that in the
policy sought to be framed to encourage compact
development, it is proposed for phasing out selected
zones/sectors/areas for the phased development in
different directions so that there is concerted effort
from all the stake holders to develop the areas,
however, approval outside the phase development
zone, can also be permitted in certain cases such as,
development of Integrated Residential Township after
ensuring that the infrastructure such as, roads, water
and
electricity supply are provided by the developer
and for which certificate certifying the availability of
service shall be mandatory. Learned AAG would submit
that taking into consideration the population increase
and the requirement of various town, the colony
coming up in smaller area cannot be stopped as
suggested by Amicus Curiae. Learned AAG submitted
that to discourage the colonies coming up in small area,
the saleable area is proposed to be reduced. Learned
(61 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
AAG submitted that it cannot be disputed that some
constructions are coming up without sanction of the
Local Authority and in deviation of the building plan
approved but the compounding of illegal construction is
governed by the Rules framed in this regard and is not
permitted as a matter of course. Learned AAG fairly
submitted that to ensure the construction of the
buildings and the provision of facility areas therein,
enforcement cell of the local bodies needs to be
strengthened and for that purpose, learned AAG has
suggested the measures to be taken as under:
“(1) Whole urban area be divided into zones of
manageable sizes.
(2) For each zone a building inspector or junior
engineer shall be designated. Copies of all the
approved building plans and scheme layout
plans shall be sent to him immediately after
approval.
(3) A report in writing in prescribed format
shall be submitted by the designated in charge
of the zone, stating the list of plots/area where
construction is going on, list in which
construction is as per approval and list of
violation during the construction in their zone
with details of violations and photographs. A
register of such reports shall also be
maintained.
(4)
Such reports shall be submitted to Zone
Commissioner and JDC in case of Development
Authority, Secretary, UIT and to Deputy
Secretary UDH in case of UIT's, and to EO
Municipality and Deputy Director Local Bodies in
case of Municipalities in every 15 days (twice in
a month).
(62 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
(5) On receipt of these reports action shall be
initiated against the violations by the concerned
authorities, which should be monitored regularly
by higher authorities. Action taken report
monthly shall also be submitted to higher
authority regularly.
(6) Every local body should operate a citizen
grievances link on its website, on which citizens
may send report of violations. Action taken on
such public grievances shall also be put on
public domain.”
43.
Learned AAG would submit that the minor
deviation in the set backs and the height of the
buildings have to be permitted in the larger public
interest. Learned AAG submitted that the multi storey
buildings in the existing residential/commercial areas
are permitted as per the norms laid down regarding the
set backs, FAR, height of the building and park spaces
and therefore, it does not stand to reason that such
buildings should not be permitted to come up in the
existing residential and commercial areas specified in
the Master Development Plan. Learned AAG submitted
that all sincere efforts shall be made by the State for
restoration of the use of the parks and other common
utility spaces put to use for other purposes in the
private residential
colonies as well. Learned
AAG
candidly submitted that the norms laid down for
providing green belt on both the sides of the highways
have to be followed and therefore, the appropriate
(63 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
steps shall be taken to ensure the implementation of
the norms and for removal of the constructions, if any
raised, in violation of the norms but the strip of the
land on both sides of the highways are generally
privately owned land and therefore, it is not desirable
to declare such land as forest land. Regarding the
preservation of pasture land, learned AAG submitted
that Section 16 of the Act of 1955, prohibits accrual of
khatedari rights in pasture land but then, as per Rule 7
of the Rules of 1955, the Collector is empowered to
change the classification of any pasture land for
allotment for agriculture or non agriculture purposes,
however, as per proviso to Rule 7, in case where land
sought to be allotted or set apart exceeds 4 hectares,
the Collector is required to obtain prior permission of
the State Government. That apart, it is submitted that
as per mandates of sub-rule (2) of Rule 7 where
classification of any pasture land is changed under subRule (1), the Collector may set apart an equal area of
unculturable Government land, if available as pasture
land in the same village. Learned AAG would submit
that setting apart of an equal area of unculturable
Government land in lieu of pasture land put to other
use in terms of sub-Rule (2) of Rule 7, is not
(64 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
mandatory. Learned AAG submitted that the restriction
imposed under the provisions of Section 16 of the Act
of 1955, do not apply to the land falling within Jaipur
Region,
Jodhpur
Region
and
Ajmer
Region,
the
development wherein is governed by the provisions of
Act No.25 of 1982, the Act No.2 of 2009 and Act No.39
of 2013.
44. Mr. P.P. Choudhary, Senior Advocate, drawing the
attention of this Court to the provisions of Sections 16,
17, 21, 23 & 25 of the Act No.2 of 2009, submitted that
the
Master
Development
Plan
prepared
by
the
authorities in exercise of the statutory power is only a
macro planning, a vision document, which is flexible
and it is always permissible to modify the same to
secure integrated development with the passage of
time. Learned counsel submitted that the statute
empowers JDA and Jodhpur Development Authority to
undertake urban planning including the preparation of
Master Development Plan, Zonal Development Plans
and carrying out surveys for the purpose and also
making
alterations
therein
as
may
be
deemed
necessary and therefore, the statutory power of local
authority to alter the plan cannot be seized by this
Court. Learned counsel submitted that the legislative
(65 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
competence to frame the law or the vires of the
provision
providing
for
alteration
of
the
Master
Development Plan whenever it is deemed necessary is
not under challenge and therefore, no direction can be
issued by this Court, restraining the State and the local
authorities from exercising power under the statute.
Learned counsel drawing the attention of this Court to
the letter petition and the documents annexed thereto,
submitted that no research work has been undertaken
by the petitioner before filing the petition and there is
no material on record suggesting that there is a
wholesale violation of the Master Development Plans of
the major cities and therefore, the PIL preferred must
not be entertained by this Court. Learned counsel
submitted that the contention raised that the ecological
zone/green
belt/peripheral
belt
earmarked
in
the
Master Development Plan cannot be divested for any
other use is misconceived, to say the least. Learned
counsel would urge that the Master Development Plans
are prepared taking into consideration the present and
future requirement and therefore, if to fulfill the future
requirement
for
overall
development,
the
land
is
required to be diverted for the purposes other than
specified, the State and its authorities cannot be
(66 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
restrained from exercising the powers in this regard
and therefore, the interim order passed by this Court,
restraining the State and the local authorities from
effecting any change in ecological zone and periphery
belt including green belt without permission of the
Court deserves to be vacated.
45. Mr. Ashok Chhangani, learned counsel submitted
that the Mater Plan is not a inflexible document, which
cannot be altered for the public purpose. Learned
counsel would submit that the Master Development
Plan is prepared for the purposes specified after
following the procedure laid down and
by virtue of
proviso to sub-section (3) of Section 21 of Act No.25 of
1982 and Act No.2 of 2009, but, the area of any zone
specified therein, can always be altered in the public
interest. Learned counsel submitted that modification
for a class or section is different than the modification
for any individual and certainly the modification of the
Master Development Plan cannot be made to serve the
purpose of an individual. Learned counsel would submit
that various provisions incorporated in Chapter V of the
JDA Act, which deals with Master Development and
Zonal
Development
Plans
must
be
harmoniously
construed and the modification of Master Development
(67 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
Plan for the purpose other than those specified in the
larger public interest, should always be permitted
inasmuch as the problems arising during the course of
implementation of plan are also required to be taken
care of and cannot be ignored. Learned counsel
submitted that the peripheral belt specified in the
Master
Development
Plan
is
certainly
not
a
“No
Construction Zone” and the use thereof is not specified
either and therefore, any modification therein proposed
must be considered with reference to the object of the
modification.
Learned
counsel
submitted
that
a
particular activity of an individual to serve the public at
large may fall within the definition of “Public Purpose”.
Learned counsel would submit that undoubtedly, the
power conferred under Section 25 of Act No.25 of 1982
and Section 25 of the Act No.2 of 2009, has to be
exercised by the authority concerned rationally and
reasonably and the material alteration cannot be
permitted to affect the basic character of the plan as
such. Learned counsel urged that the change of land
use for educational and medical facilities purposes do
fall within the definition of “Public Purpose”.
46. Replying the arguments of learned AG, AAG and
the counsels for the applicants, learned amicus curiae,
(68 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
while referring to the reply of the State submitted that
the factum of deviations from the Master Development
Plan without authority of law is not even disputed by
the respondents rather the respondents have taken the
stand that unless the general civic sense is developed
in the public at large and the public is made aware that
the deviation from the Master Development Plan is not
in their interest, without active cooperation of the
public at large, the respondents are not happily
equipped with the measures and means to control such
deviation. Learned amicus curiae submitted that the
stand sought to be taken by the respondents that there
is no concept of green belt in the Master Development
Plan of the various towns and the peripheral control
belt indicated in the Master Development Plans are
commonly called as green belt is contrary to the known
concept of Town Planning. Learned amicus curiae
drawing the attention of the court to the compliance
reports submitted by the State of Rajasthan in respect
of the cities Jodhpur, Kota, Bikaner, Ajmer and Udaipur,
submitted that the factum of change of land uses in
peripheral control belt and the public amenities zones
and the factum of construction or development which
have actually taken place in respect of the said zones
(69 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
also stand admitted by the State. Learned amicus
curiae while drawing attention to the submissions of the
respondents, JDA, Jaipur, submitted that indisputably,
the ecological zone delineated in the JDA Region on
both the sides of National Highway 11, leading to Agra
up to Agra Railway Line, being the area in Aravali
Range, only the activities which are eco friendly such as
recreation and health resort, sports complex etc. are
permitted
therein
and
the
area
has
to
remain
predominately green area, yet the change of the land
use is permitted in the ecological zone with impunity.
Learned amicus curiae submitted that the change of the
land use in the towns in respect whereof the Master
Plan is prepared under the provisions of UIT Act, the
change of the land use are permitted even at the local
authority level and thus, the Master
Plan prepared
after due deliberation is set at naught by the local
authority concerned on consideration of the applications
preferred by the individuals for change of the land use
even
for
small
plots
without
there
being
any
development plan prepared in respect of the land falling
within the periphery control belt. Drawing the attention
of the Court to the Summary of change of land use in
ecological/rural/periphery
control
belt/open
spaces
(70 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
reserved
for
submitted
park
by
and
JDAs/UITs,
other
common
learned
facilities,
amicus
curiae
submitted that the permission have been granted for
the change of land use to serve the interest of the
individuals without there being any involvement of
public interest and thus, the change of the land use
permitted in perfunctory manner in
gross violation of
the provisions of Section 25 of the Act No.25 of 1982,
deserves to be undone and the original position of the
land as specified in the Master Development Plans
deserve
to
be
restored.
Learned
amicus
curiae
submitted that while admitting the construction being
raised in deviation of the Master Development Plan not
a single case is pointed out wherein the action is taken
against the violator and the illegal construction raised is
demolished, rather such constructions raised are being
regularised as a matter of course. Learned amicus
curiae submitted that when the modification of the plan
is permissible only in the public interest, the impact of
modification proposed on public in general must be
examined and no change of land use can be permitted
to serve the interest of an individual. In support of the
contention, learned amicus curiae has relied upon a
decision of the Hon'ble Supreme Court in the matters of
(71 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
“Administrator Nagar Palika Vs. Bharat and Others ”
(2001) 9 SCC 232 and “M.C. Mehta Vs. Union of India
and Others”, (2006) 3 SCC 399. Learned amicus curiae
submitted that the public has right to expect certain
lands
and
natural
characteristics
and
area
the
to
retain
“Doctrine
of
their
Public
natural
Trust”
evolved demands that the resources like air, sea,
waters and the forests cannot be diverted to other use
and the same cannot be made subject of private
ownership and thus, the diversion of such lands and
resources permitted has to be undone. In support of
the contention, learned amicus curiae has relied upon a
decision of the Hon'ble Supreme Court in the matter of
“M.C. Mehta Vs. Kamalnath”, 1997 (1) SCC 388.
Learned amicus curiae would submit that if the change
of land use in peripheral control belt is to be permitted,
it should be permitted only at the level of State
Government and the strict guidelines must be provided
for the purpose of exercise of the powers. Learned
amicus curiae while reiterating the submissions earlier
made submitted that no private colony should be
permitted to come up on the small piece of land and
the minimum area required for developing a colony
should not be less than 100 hectares. Learned amicus
(72 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
curiae would submit that all the details regarding a
private
colony/residential
building
proposed
to
be
developed by the private developers must be uploaded
on the website of the local authority concerned.
Learned amicus curiae would submit that it is a matter
of common knowledge that the land reserved in the
layout plan of the private residential colony or the
spaces provided in the residential/commercial building
for parking and other common facilities of the residents
are being converted by the private developers for their
own use with an intention to earn undue profit and
therefore, it is expedient that appropriate directions are
issued to restore the position of such spaces reserved
for the purposes specified forthwith. Learned amicus
curiae submitted that no multistorey buildings should
be permitted to come up in the residential colonies
already developed with the sewerage system and other
facilities to serve the projected population to be settled
therein. Learned amicus curiae submitted that as per
the provisions of
Act No.25 of 1982 and Act No.2 of
2009 and the Act No.18 of 2009, no construction is
permissible to be raised without permission and there is
no reason as to why the compounding of illegal
construction should be at all permitted. Learned amicus
(73 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
curiae submitted that if compounding is permitted as a
matter of course, no person will follow the law. Learned
amicus curiae submitted that this Court can examine
the validity of law suo moto. Learned amicus curiae
submitted that since the Rules of 1966, confers
unbridled power in the hands of the local authority, the
same deserves to be declared ultra vires of the
provisions of Act of 2009.
47. Having considered the rival
submissions, the
principal questions arising for consideration of this
Court in these PILs, may be summarised thus:
(1)
What is the ambit and scope of the power of
the State Government and the other authorities
under
the
relevant
statutes
as
regard
to
preparation of the Master Development Plan &
Zonal Development Plan and modification/revision
thereof during their operative period ?
(2)
Whether the peripheral control belt/green
belt/ecological
zone,
as
the
case
may
be,
specified in the notified Master Development Plan,
a statutory instrument, form its basic character/
feature, which cannot be altered and the land
forming part thereof cannot be permitted to be
put to other uses i.e. commercial/residential/
institutional/industrial purposes etc. during its
operative period and thereafter, while revising the
Master Development Plan at the end of its tenure?
(74 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
If
the
alteration/modification
therein
is
permissible, what are the parameters therefor ?
(3)
Whether the authorities entrusted with the
task
of
revision/modification
of
Master
Development Plan/Zonal Development Plan can
do away with/alter the minimum requirement of
green area/open spaces/parks/ recreational area
as provided for under the Master Development
Plan/Zonal Development Plan with reference to
the population at the relevant time and projected
increase therein and put the same to the use for
the purposes other than those specified during
its operative period ?
(4)
Whether
the
area
reserved
for
common
facilities/parks/open spaces/recreation etc. in a
colony developed by local authority or by private
developers approved by the local authority, can
be diverted to any other use? Whether the
changes, if any, made in area reserved as
aforesaid in the approved layout plan of the
colony, deserves to be undone and the position
as per the original layout plan, deserves to be
restored ?
(5)
Whether the area earmarked in the Scheme
under
the
Development
Master
Plan
Development
for
commercial/residential/
the
Plan/Zonal
purposes
institutional/
of
industrial
etc., can be put to use for the purposes other
than those specified, during the currency of the
Master
Development
Plan/Zonal
Development
(75 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
Plan or at the time of revision of the Master
Development Plan ?
(6)
Whether
the
area
for
the
purpose
of
developing the multi-storey buildings in the city,
needs to be distinctly marked in the Master
Development Plan/Zonal Development Plan and
no multi-storey building should be permitted to
come up in the existing residential colonies
developed with the infrastructure, keeping in
view the individual family units to be settled in
the houses to be constructed in such colonies?
(7)
Whether the private or public colony can be
permitted to come up on the land having area
less
than the reasonable area required
for
developing a colony with requisite facilities?
(8)
Whether the industrial areas located in the
close vicinity of the city settlements need to be
shifted outside the urbanisable area shown in the
Master Development Plan ?
(9)
Whether the norms laid down for providing
green belt abutting the highway are not being
followed by the State and the Local Authorities?
What measures are required to be adopted to
check the violation of the norms laid down in this
regard?
(10) Whether it is open to the local authorities i.e.
Municipalities, Urban Development/Improvement
Authorities
to
permit
the
commercial
establishment and the owner of the residential
houses to put stairs or ramp or hoardings on
(76 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
footpath/public way or to use the same for
personal use, by putting fencing? Whether such
encroachments made on footpath/ public way are
liable to be removed?
(11) Whether it is open for any person/builder to
divert the use of the place meant for parking to
any other use ? If not, whether all such parking
spaces put to other use are required to be
restored ?
(12) Whether
under
the
the
(Compounding
provisions incorporated
Rajasthan
and
Municipalities
Compromising
of
the
Offences) Rules, 1966 are in consonance with the
provisions as well as Scheme of the Rajasthan
Municipalities Act, 2009? If the compounding of
the unauthorised construction raised in deviation
of the sanctioned plan or without approval of the
plan and/or Building Bye-laws deserves to be
permitted by way of an exception, then to what
extent ?
(13)
Whether provisions of 33A of Act No.25 of
1982, Section 34 of the Act No.2 of 2009 and
Section 34 of Act No.39 of 2013, regarding the
regularisation of unauthorised development, in
absence of guidelines for exercising of the
powers conferred, deserve to be declared ultra
vires?
(14) Whether the pasture land set apart for the
grazing of the cattles can be permitted to be
used for other purposes? If yes, to what extent ?
(77 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
Whether the encroachment made on the pasture
land can be regularised or the unauthorised
occupation
over
the
pasture
land
must
be
removed by the State authorities?
(15)
What measures need to be taken for
conservation
and
preservation
of
the
land
forming part of nadi, pond, lakes, river bed and
catchment area etc.?
CONSIDERATION & CONCLUSIONS:
Preparation of the Master Development Plan and
Zonal Development Plan and ambit and scope of
modification/revision
thereof
during
their
operative period (Question No.1)
48. Master Development Plan is prepared with an
objective
to
ensure
systematic
and
planned
development of a city and adjoining areas with a view
to protect the residents from ill-effects of urbanisation
as also to create sustainable physical and social
environment for improving their quality of life. It lays
down the planning, guidelines, policies, development
code, space requirement for various socio economic
activities supporting the city population during the plan
period. As a matter of fact, Master Development Plan
translates community values, decisions and visions into
land use and development principles which can guide
the future growth of community and decision making
for planning authorities and implementation thereof by
local authorities.
(78 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
49. Indisputably, the process of planned development
of the cities and towns in the State of Rajasthan began
with the enactment of UIT Act, which came into force
w.e.f. July 24, 1959. Later, keeping in view the fact that
the Jaipur City and the areas contiguous to it are being
progressively developed and populated, it was felt
necessary for forming these areas into Jaipur Region
and for setting up an Authority for the purpose of
planning, coordinating and supervising the proper,
orderly and rapid development of these areas as also to
provide that such Authority be enable either itself or
through other authority to formulate and execute plans,
projects and schemes, the State Legislature enacted
the Act No.25 of 1982. In the same line, for the parity
of reasons, the Act No.2 of 2009 was enacted for
planned and rapid development of Jodhpur Region
consisting of Jodhpur City and certain contiguous areas
and thereafter, Ajmer Development Authority Act, 2013
('Act No.39 of 2013') has been enacted for planned
development of Ajmer, Kishangarh, Pushkar City and
areas
contiguous
thereto.
The
preparation
and
operation of the Master Development Plan and Zonal
Development Plan, for the various cities of the State of
Rajasthan except Jaipur Jodhpur, Ajmer, Kishangarh,
(79 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
Pushkar City & areas contiguous thereto and such areas
which are governed by UIT Act, urban development and
town planning in the cities and towns within the
municipal area thereof, now, the Act No.18 of 2009,
which has come into force w.e.f. 15 th September, 2009
after repealing of Rajasthan Municipalities Act, 1959,
incorporates specific chapter i.e. Chapter XI.
50. In order to appreciate the statutory object and
purpose behind preparation of the Master Development
Plan, its basic characteristic and the ambit & scope of
its modification during the operative period of the plan,
it
would
be
appropriate to
refer
to the various
provisions contained in UIT Act, the Act No. 25 of 1982,
the Act No.2 of 2009, the Act No.39 of 2013 and Act
No.18 of 2009.
51. The provisions of the Act No.2 of 2009 and Act
No.39 of 2013, relevant for the consideration of the
questions arising in the matter, are pari materia to the
provisions of Act No.25 of 1982 and therefore, the
same
are
not
being
referred
to
and
dealt
with
separately.
52. The various provisions of the UIT Act, the Act
No.25 of 1982 and the Act No.18 of 2009, germane to
(80 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
the issues arising for consideration of this court may be
beneficially quoted :
UIT ACT
“3. Power of State Government to order
preparation of master plan-(1) The State
Government may, by order, direct that in respect
of and for any urban area in the State specified in
the order, a civil survey shall be carried out and a
master plan shall be prepared, by such officer or
authority as the State Government may appoint
for the purpose.
(2) For the purpose of advising the officer or
authority appointed under sub-section (1) on the
preparation of the master plan, the State
Government may constitute an advisory council
consisting of a Chairman and such number of
other members as the State Government may
deem fit.
4. Contents of master plan-The master plan
shall(a) define the various zones into which the urban
area for which the plan has been prepared may be
divided for the purposes of its improvement and
indicate the manner in which the land in each
zone is proposed to be used, and
(b) serve as basic pattern of frame work within
which the improvement schemes of the various
zones may be prepared.
5.
Procedure to be followed- (1) Before
preparing any master plan officially the officer or
authority appointed to prepare it shall public a
draft of the master plan by making a copy thereof
available for inspection and publishing a notice in
such form and manner as may be prescribed by
rules made in this behalf inviting objections and
suggestions from every person with respect to the
(81 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
draft master plan before such date as may be
specified in the notice.
(2) Such officer or authority shall also give
reasonable opportunity to every local authority
within whose local limits any land touched by the
master
plan
is
situated
to
make
any
representations with respect to the master plan.
(3) After considering all objections, suggestions
and representations that may have been received,
such officer or authority shall finally prepare the
master plan.
(4) Provisions may be made by rules made in this
behalf with respect to the form and contents of a
master plan and with respect to the procedure to
be followed and any other matter in connection
with the preparation of the master plan.
6. Submission of master plan to Government(1) Every master plan shall, as soon as may be
after its preparation, be submitted to the State
Government for approval in the prescribed
manner.
(2) The State Government may direct the officer
or authority appointed for the preparation of a
master plan to furnish such information as it may
require for the purpose of approving any master
plan submitted to it under this section.
(3) The State Government may either approve
the master plan without modifications or with such
modifications as it may consider necessary or
reject it with directions for the preparation of a
fresh master plan.
7. Date of operation of master planImmediately after a master plan has been
approved by the State Government, it shall
publish in the prescribed manner a notice stating
that the master plan has been approved and
naming a place where a copy of the same may be
(82 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
inspected during officer hours; and upon the date
of the first publication of the aforesaid notice the
master plan shall come into operation.
8. Establishment
and incorporation of
Trusts- (1) The State Government may, by
notification in the official Gazette, establish, for
the purpose of carrying out improvement of any
urban area in the State, whether a master plan in
respect thereof has or has not been prepared, a
Board of Trustees to be called the Improvement
Trust of the place where its principal office is
shifted, hereinafter called 'the Trust'.
(2) Every such Trust shall be a body corporate by
the aforesaid name having perpetual succession
and a common seal with power to acquire, hold
and dispose of property both movable and
immovable and to contract and shall by the said
name sue and be sued.
....xxxxx.......xxxx
31. Scheme to conform to master plan- (1) If
for and in respect of the urban area for which the
Trust is constituted a master plan has been
prepared and approved and is in operation, every
scheme framed by the Trust in accordance with
the provisions of this Chapter shall conform to
such master plan and shall not be framed so as to
affect an alteration in the different zones defined
by the master plan.
....xxxxx.......
73.B. Restriction on change of use of land
and power of State Government to allow
change in the use of land.-(1) Notwithstanding
anything contained in section 72 or 73A,(1) no person shall use or permit the use of any
land situated in any urban area notified under
section 8, for the purpose other than that for
which such land was originally allotted or sold to
(83 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
any person by the State Government, any Urban
Improvement Trust, any other local authority or
any other body or authority in accordance with
any law for the time being in force or, otherwise
than as specified under a Master Plan, wherever
it is in operation;
(ii) In the case of any land not allotted or sold
as aforesaid and not covered under clause (i),
no person shall use or permit the use of any
such land situated in a Urban Area notified
under section 8, for the purpose other than that
for which such land-use was or is permissible, in
accordance with the Master Plan, wherever it is
in operation, or under any law for the time being
in force.
(2) Notwithstanding anything contained in subsection(1), the State Government or any authority
by it, by notification in the Official Gazette, may
allow the owner or holder of any such land, to
have change of use thereof, it it is satisfied so to
do in public interest, on payment of conversion
charges at such rates and in such manner as may
be prescribed with respect to the following
changes in use:(i) from residential to commercial or any other
purpose;or
(ii) from commercial to any other purpose; or
(iii) from industrial to commercial or any other
purpose; or
(iv) from cinema to commercial or any other
purpose; or
(v) from any existing permissible use of land to
any other purposes, as the State Government may
prescribe:
Provided that rates of conversion charges
may be different for different areas and for
different purposes.
(84 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
(3) Any person who has already changed the use
of land in violation of the provisions of this Act in
force at the time of change of use, shall apply to
the State Government or any authority authorised
by it under sub-section (2), within such period as
maya be prescribed, for regularisation of said use
and upon regularisation of the change of use of
land, he shall deposit the amount contemplated
under sub-section (2).
(4) Where the State Government or the authority
authorised by it is satisfied that a person who
ought to have applied for permission or
regularisation under this section, has not applied
and that such permission can be granted or the
use of land can be regularised, it may proceed to
determine the conversion charges after due notice
and hearing the party/parties and the changes so
determined shall be come due to the Urban
Improvement Trust and be recoverable under subsection (6).
(5) The conversion charges so realised shall be
credited to fund of the Urban Improvement Trust.
(6) Changes under this section shall be the first
charge on the interest of the person liable to pay
such charges with respect to the land, the use of
which has been changed and shall be recoverable
as arrears of land revenue.
Jaipur Development Authority Act (Act No.25 OF
1982)
“16. Functions of the Authority.- The main
object of the Authority shall be to secure the
integrated development of the Jaipur Region and
for that purpose the functions of the Authority
shall be :(a) urban planning including the preparing of
Master
Development
Plan
and
Zonal
Development Plans and carrying out surveys
(85 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
for the purpose and also making alterations
therein as may be deemed necessary;
(b) formulation and sanction of the projects and
schemes for the development of the Jaipur
Region or any part thereof;
(c)
execution of projects and schemes directly
by itself or through a local authority or any
other agency;
(d) to make recommendations to the State
Government on any matter or proposal
requiring action by the State Government,
Central Government, any local authority or
any other authority for overall development
of the Jaipur Region;
(e) participation with any other authority for the
development of the Jaipur Region;
(f)
co-ordinating execution of projects or
schemes for the development of the Jaipur
Region;
(g) supervision or otherwise ensuring adequate
supervision over the planning and execution
of any project or scheme, the expenses of
which, in whole or in part are to be met from
the Jaipur Region Development Fund;
(h) preparing
schemes
and
advising
the
concerned authorities departments and
agencies in formulating and undertaking
schemes for development of agriculture,
horticulture, floriculture, forestry, dairy
development,
transport,
communication,
schooling,
cultural
activities,
sports,
medicare, tourism entertainment and similar
other activities;
(i)
execution of projects and schemes on the
directions of the State Government;
(86 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
(j)
undertaking housing activity in Jaipur Region,
provided that the delineation of responsibility
for housing between Rajasthan Housing
Board and the Authority will be made by
State Government effective from the date to
be fixed by it;
(k) to acquire, hold, manage and dispose of
property, movable or immovable, as it may
deem necessary;
(l)
to enter into contracts, agreements or
arrangements
with
any
person
or
organisation as the Authority may deemed
necessary for performing its functions;
(m) to prepare Master Plan for traffic control and
management, devise policy and programme
of action for smooth flow of traffic and
matters connected therewith;
(n) to perform functions designated by the State
Government in the areas of urban renewal,
environment and ecology, transport and
communication,, water energy resource
management
directly
or
through
its
Functional
Boards
or
other
departments/agencies
as
the
State
Government may specify;
(o) regulating the posting of bills, advertisement
hoardings, signpost, and name boards in
Jaipur Region or in any part thereof as
specified by the Authority;
(p) regulating the erection or re-erection of
buildings and projections, making material
alterations therein and providing for open
spaces in Jaipur Region or any part thereof
as specified by the Authority;
(q) removing obstructions and encroachments
upon public streets, open spaces
and
(87 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
properties vesting in the Government or the
Authority;
(r)
to do all such other acts and things which
may be necessary for or incidental or
conducive to, any matters which arise on
account of its activity and which are
necessary for furtherance of the objects for
which the Authority is established; and
(s)
to perform any other functions that the State
Government may designate in furtherance of
the objectives of this Act;
....xxxxx.....xxx
21. Civil Survey and preparation of Master
Development Plan.-(1) The Authority with a
view to securing planned integrated development
and use of land, shall carryout a civic survey of
and prepare a Master Development Plan for Jaipur
Region.
(2) The Master Development Plan shall precisely
define the quality of life that a citizen of Jaipur
Region could desirably be expected to lead in (i)
medium range perspective of the year 1991 AD,
(ii) long term perspective of the year 2001 AD and
thereafter, and (iii) such other intermediate
stages, as the State Government may direct,
balanced and time targeted development to subserve the needs of the growing city of Jaipur and
other areas of Jaipur Region, the net work of
public utilities, civil amenities, community
facilities, housing, communications and transport,
the projects or schemes for conservation and
development of natural resources and such other
matters as are likely to have a bearing on the
integrated development of the Jaipur Region and
in particular may provide for(i)
transport and communications such as
roads, high-ways, railways, canals, international
(88 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
air ports, air cargo-complexes and bus-service,
including their development;
(ii) water supply, drainage, sewarage, sewage
disposal and other public utilities, amenities and
services, including electricity and gas;
(iii) preservation, conservation and development
of areas of natural scenery, city forests, wild life,
natural resources and landscaping;
(iv) preservation of objects, features, structures
or places of historical, natural, architectural or
scientific interest and educational value;
(v) prevention
of
erosion,
provision
for
afforestation or re-forestation, improvement of
water front areas, rivers, nallahs, lakes and
tanks;
(vi) irrigation, water supply of hydro-electric
works, flood control and prevention of water and
air pollution;
(vii) educational and medical facilities;
(viii) district business centres, other shopping
complexes, export oriented industrial areas and
clearing houses, permanent exhibition centres,
cattle fairs and markets;
(ix) games and sports complexes
holding international events;
worthy
of
(x) amusement parks including disney land, style
complexes safari parks and other gardens and
parks, picnic centres and day amusement
including artificial lakes and water reservoirs;
(xi) cultural
complexes
including
theaters,
cinemas,
rangmanch,
studios,
recreation
centres, conference hall complexes, concert
halls, town halls and auditoria;
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(xii) tourist complexes including hotels and
motels, car hiring servicer, organised tours and
treks;
(xiii) development of satellite towns in Jaipur
Region and their appropriate integration with
the City of Jaipur including development of new
townships;
(xiv)allocation of land for different uses, general
distribution and general location of land and the
extent t which the land may be used as
residential, commercial, industrial, agricultural,
or as forests or for mineral exploitation or for
other purposes;
(xv) reservation of areas for open spaces,
gardens, recreation centres, zoological gardens,
nature-reserves, animal sanctuaries, dairies and
health resorts and other purposes;
(xvi)the relocation of the population or industry
from over populated and industrially congested
areas and indicating the density of population or
the concentration of industry to be allowed in
any area of Jaipur Region;
(xvii)
housing including rural housing;
(xviii)
filling up or reclamation of low lying,
swampy or un-healthy areas or levelling up of
lands;
(xix)re-development and improvement of existing
built-up areas;
(xx) planning standards and zoning regulations for
different zones including development of 'abadi';
and
(xxi)planning for Jaipur Region for management
or urban growth and all matters connected
therewith and other matters as are consistent
with the object of this Act.
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(3) The Master Development Plan may also
define the various zones into which the Jaipur
Region shall be divided for the purposes of
development and indicate the manner in which the
development is to be carried out and the land in
each zone is proposed to be used (whether by the
carrying out therein development or otherwise)
and the stages by which any such development
shall be carried out and shall serve as a basic
pattern of frame-work within which the Zonal
Development Plans of the various zones may be
prepared:
Provided that the Authority may, if so
considers necessary in the public interest after the
area of any zone.
22. Zonal
Development
Plan(1)
Simultaneously with the preparation of the Master
Development Plan or as soon as may be
thereafter, the Authority shall proceed with the
preparation of a Zonal Development Plan for each
of the Zone into which the Jaipur Region may be
divided.
(2) A Zonal Development Plan may(a) contain the provision for the developmental
activities to be carried out as mentioned in
sub section (2) of section 21;
(b) contain a site-plan for the development of
the zone and show the approximate locations
and extents of land uses proposed in the
zone for such things as public buildings and
other public works and utilities, roads,
housing, recreation, industry, business,
markets, schools, hospitals, public and
private open spaces and other categories of
public and private uses;
(c) specify the standards of population density
and building density;
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(d) show every area in the zone which may, in
the opinion of the Authority, by required or
declared for development or redevelopment;
and
(e) in particular, contain provisions regarding all
or any of the following matters, namely:
(i)
the division of any site into plots
for the erection of buildings;
(ii)
the allotment or reservation of
land for roads, open spaces,
gardens,
recreation
grounds,
schools, markets and other public
purposes;
(iii)
the development of any area into
a township or colony and the
restrictions and conditions subject
to which such development may be
undertaken or carried out;
(iv)
the erection of buildings on any
site and the restrictions and
conditions in regard to the open
spaces to be maintained in or
around buildings and height and
character of buildings;
(v)
the alignment of buildings on any
site;
(vi)
the architectural features of the
elevation or frontage of any
building to be erected on any site;
(vii)
the number of residential buildings
which may be erected on any plot
or site;
(viii) the amenities to be provided in
relation to any site or buildings on
such site whether before or after
the erection of buildings and the
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person or authority by whom or at
whose expense such amenities are
to be provided;
(ix)
the prohibitions or restrictions
regarding
erection
of
shops,
workshops,
warehouses
or
factories or buildings of a specified
architectural feature or buildings
designed for particular, purposes in
the locality;
(x)
the maintenance of walls, fences,
hedges or any other structural or
architectural construction and the
height at which they shall be
maintained;
(xi)
the restrictions regarding the use
of any site for purposes other than
erection of buildings; and
(xii) any
other
matter
which
is
necessary
for
the
proper
development of the zone or any
area thereof according to plan and
for preventing buildings being
erected haphazardly in such zone
or area.
23.Procedure to be followed in the
preparation and sanction of Plans- (1) Before
preparing any Plan finally the Authority shall
prepare a Plan in draft and publish it by making a
copy thereof available for inspection and
publishing a notice in such form and manner as
may be determined by regulations inviting
objections and suggestions from any person with
respect to the draft Plan before such date as may
be specified in the notice.
(2) The Authority shall also give reasonable
opportunity to every local authority within whose
local limits any land touched by the Plan is
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situated, to make
respect to the Plan.
any
representation
with
(3) After considering all objections, suggestions
and representations that may have been received
by the Authority, the Authority shall finally
sanction the Plan.
(4) Provisions may be made by regulations with
respect to the form and content of a Plan and
with respect to the procedure to be followed and
any other matter, in connection with the
preparation and sanction of such plan.
(5) Notwithstanding anything contained in subsection (1) to (4), the procedure as laid down in
the said sub-sections shall not be required to be
followed in case the development of any project
or scheme or any improvement thereof, in any
zone is to be carried out on any land vested in
the Authority.
25.Subsequent modification of Plans-(1) At
any time after a Plan has come into operation
according to provisions of section 24, the
Authority may make any modification to the Plan
as it thinks fit, the modifications, which in its
opinion, do not affect material alterations in the
character of the plan and which do not relate to
the extent of land uses or the standards of
population density.
(2) The Authority with the approval of the State
Government may make any other modifications
into the plan in order to promote Planned
development of any part of the Jaipur Region in
more efficient manner.
(2-a) The Authority or the Nagar Nigam, Jaipur,
or any other body or Committee, as may be
authorised by the State Government in this
behalf, may, in order to promote planned
development of any part of the Jaipur Region in
more efficient manner, make such modifications
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in land use of the Plan for such area, as may be
specified by the State Government by notification
in the Official Gazette.
(3) Before making any modification to the Plan,
Authority, (Nagar Nigam, or any other body or
Committee) shall publish a notice, in such form
and manner as may be determined by regulation
inviting objection before such date as may be
specified in the notice and shall consider all
objections and suggestions that may be received
by the Authority, Nagar Nigam, Jaipur or any
other body or Committee.
(4) Every modification made under the provisions
of this section shall be published and the
modification shall come into operation either on
the date of publication or on such date as the
Authority (Nagar Nigam, Jaipur or any other body
or Committee) may fix by notice published in the
official Gazette whereupon the modified plan
shall come into operation to all intents and for all
purposes of this Act.
...xxxx......xxx
28.Review of Plan- Notwithstanding anything
contained in this Act, if the State Government or
the Authority at any time within ten years from
the date on which a Plan comes into operation
under this act is of the opinion that the revision
of such Plan is necessary, the State Government
may direct the Authority to revise or the
Authority, may of its own motion undertaken,
revision of, such Plan, after carrying out, if
necessary fresh civic survey and preparing an
existing land use map of the Jaipur Region and
the reupon the foregoing provisions of this
Chapter shall, so far as they can be made
applicable, apply to the revision of such Plan as
those provisions apply in relation to the
preparation, publication and sanction of a Plan.
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Rajasthan Municipalities Act, 2009 (the Act No.18
of 2009)
160.
Procedure to be followed in the
preparation and sanction of Plan.- (1) Before
preparing any plan finally the Municipality shall
prepare a Plan in draft and publish it by making a
copy thereof available for inspection and
publishing a notice in such form and manner as
may be determined by bye-laws inviting
objections and suggestions from any person with
respect to the draft Plan before such date as may
be specified in the notice.
(2) The Municipality may, if it considers
appropriate, constitute an Advisory Committee
consisting of the following to consider the draft
plan before it is given a final shape:(i) All members of the Municipality;
(ii) Representatives of associations of industry,
commerce and trade and professions;
(iii) Six representatives from academic institutions
located in the city:
(iv) Six representatives from prominent NonGovernment-Organizations located in the city; and
(v)Six any other prominent citizens of the city.
(3) After considering all objections, suggestions,
representations and recommendations of the
advisory committee, if any, the Municipality shall
send the Plan to the State Government for
approval and after receipt of the approval of the
State Government finally sanction the Plan.
(4) Provisions may be made by bye-laws with
respect to the form and content of a Plan and with
respect to the procedure to be followed and any
other matter, in connection with the preparation
and sanction of such Plan.
(96 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
...........xxxxxx............
162. Subsequent modification of Plans.- (1)
At any time after a Plan has come into operation
according to provisions of section 161, the
Muncipality may, with the prior approval of the
State Government, make any modification to the
Plan as it thinks fit, the modifications, which in its
opinion, do not affect material alterations in the
character of the Plan and which do not relate to
the extent of land uses or the standards of
population density.
(2) Before making any modification to the Plan,
the Municipality shall publish a notice, inviting
objections before such date as may be specified in
the notice and shall consider all objections and
suggestions that may be received by the
Municipality.
(3) Every modification made under the provisions
of this section shall be published and the
modification shall come into operation either on
the date of publication or on such date as the
Municipality may fix by notice published in the
Official Gazette whereupon the modified Plan shall
come into operation to all intents and for all
purposes of this Act.
(4) Upon coming into operation of any modified
Plan, any reference in any other section, except in
the foregoing sections of this Chapter, to the
Master Development Plan or any other plan, shall
be construed as a reference to the Master
Development Plan or, as the case may be other
plan, as modified under the provisions of this
section.
(5) No modification of the Plan shall be made
under this section until and unless it is finally
approved by the State Government.
.....xxxxxx.........
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164. Plans prepared prior to this Act deemed
to have been prepared under this Act.- Any
Master Development Plan prepared under the
provisions of any other law for the time being in
force prior to the commencement of this Act, shall
be deemed to have been prepared under the
provision of this Act, to which the provisions of the
foregoing sections relating to the sanction,
modification and operation of Master Plan/Master
Development Plan shall mutatis mutandis apply:
Provided that any Master Development Plan
sanctioned for the Municipality under any other
provisions of law shall cease to operate as soon as
a Plan is sanctioned under the provisions of this
Act.
165. Review of Plan.- Notwithstanding anything
contained in this Act, if the State Government or
the Municipality at any time within ten years from
the date on which a Plan comes into operation
under this Act is of the opinion that the revision of
such Plan is necessary, the State Government may
direct the Municipality to revise or the Municipality
may of its own motion undertake revision of such
Plan after carrying out, if necessary, fresh civic
survey and preparing an existing land use map
and thereupon the foregoing provisions of this
Chapter shall, so far as they can be made
applicable, apply to the revision of such Plan as
those provisions apply in relation to the
preparation, publication and sanction of a Plan.
166. Declaration of Development Areas.- (1)
As soon as may be after a plan comes into
operation as provided in section 161, the
Municipality may, with the approval of the State
Government and by notification in the Official
Gazette, declare any area in the city to be a
development area for the purpose of this Act.
(2) On or after the date on which notification
under sub-section (1) is published in the Official
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Gazette, no person shall institute or change the
use of any land or carry out any development of
land without the permission in writing of the
Municipality:
Provided that, no such permission shall be
necessary(i) for carrying out works for the maintenance,
improvement or other alteration of any building,
being works which affect only the interior of the
building or which do not materially affect the
external appearance thereof;
(ii) the carrying out of works in compliance with
any order or direction made by any authority
under any law for the time being in force;
(iii) the carrying out of works by the Municipality
in exercise of its powers under any law for the
time being in force;
(iv) for the carrying out by the Central or the
State Government or any local authority of any
works(a)required for the maintenance or improvement
of a highway, road or public street, being works
carried out on land within the boundaries of such
highway, road or public street; and
(b) for the purpose of inspecting, repairing or
renewing any drains, sewers, mains, pipes, cable,
telephone or other apparatus;
(v) for the excavation (including wells) made in
the ordinary course of agricultural operation;
(vi) for the construction of a road intended to give
access to land solely for agricultural purposes;
(vii) for normal use of land which has been used
temporarily for other purposes; and
(viii) in case of land, normally used for one
purpose and occasionally used for any other
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purpose, for the use of land for that other purpose
on occasion.
53. As noticed hereinabove, in the first instance, to
regulate the improvement and expansion of urban
areas in the State of Rajasthan, UIT Act was enacted,
which came into force w.e.f. 24 th July, 1959. Chapter II
of UIT Act deals with preparation of Master Plan, its
contents and procedure to be followed before preparing
any Master Plan.
54.
Section 3 of the UIT Act, empowers the State
Government to issue the order directing that in respect
of and for any urban area in the State specified in the
order, a civic survey shall be carried out and a Master
Plan shall be prepared by such officer or authority as
the State Government may appoint for the purpose.
Sub-section (2) of Section 3, empowers the State
Government to constitute an advisory council consisting
of Chairman and such number of other members, as
the State Government may deem fit to advise the
officer or authority appointed under sub-section (1) on
the preparation of Master Plan. That apart, Section 8,
empowers the State Government to establish a Board
of Trustees to be called Improvement Trust, a body
corporate, for the purpose of carrying out improvement
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of any urban area in the State, whether a Master Plan
in respect thereof has or has not been prepared.
55. Section 4 provides that the Master Plan to be
prepared for any urban area, [Defined under Section
2(x) to mean the urban area as notified under Section
3 or as the case may be under Section 8], shall define
the various zones into which urban area for which plan
has been prepared may be divided for the purposes of
its improvements and indicate the manner in which the
land in each zone is proposed to be used, which shall
serve as basic pattern of framework within which
improvement of scheme of the various zones may be
prepared.
56. As per Section 5, before preparing any Master Plan
officially, the officer or authority appointed to prepare it
is required to publish a draft of the Master Plan by
making available the copy thereof for inspection and to
publish a notice inviting objections
and suggestions
from every person with respect to the draft Master Plan
before such date as may be specified in the notice. As
per the mandate of sub-section (2) of Section 4, every
local authority within whose local limits any land
touched by Master Plan is situated is also entitled to a
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reasonable opportunity to make any representation
with respect to the proposed Master Plan.
57. It
is
only
after
considering
all
objections,
suggestions and representations that Master Plan is
finalised and submitted for approval to the State
Government as per the mandate of provisions of
Section 6 of the Act, which in its turn may either
approve the Master Plan with or without modification or
with such modification, as it may consider necessary or
reject it with the directions for preparation of fresh
Master Plan.
58. Suffice it to say that the statutory obligations and
democratic procedure envisaged under the UIT Act
mandates that the Master Plan must be prepared after
consideration of the views, suggestions and objections
of the public. Once the Master Plan is prepared and
brought into operation by way of publication of notice
in terms of provisions of Section 7 of the UIT Act, as
per mandate of provisions of Section 31 in respect of
the urban area for which the Trust is constituted, every
scheme framed by the Trust in accordance with the
Chapter V of UIT Act shall conform to such Master Plan
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and shall not be framed so as to affect an alteration in
different zones defined by the Master Plan.
59. Likewise,
sub-section
(1)(i)
of
Section
73B
mandates that no person can use or permit the use of
any land situated in any urban area notified under
Section 8 for the purpose other than for which such
land was originally allotted to any person by the State
Government or Urban Improvement Trust, any other
local authority or any other body or authority in
accordance with law for the time being in force,
otherwise than as specified under a Master Plan
wherever it is in operation. Further, by virtue of Section
73B (1)(ii), even in cases where the land is not covered
by clause (i) of Section 73B (1), no person shall use or
permit to use of any such land situated in the urban
area notified under Section 8 for the purposes other
than for which such land use was or is permissible in
accordance with the Master Plan, wherever it is in
operation or under any law for the time being in force.
60. Thus, under the scheme of UIT Act, the urban
areas in respect whereof Master Plan is once prepared
in accordance with the procedure laid down, the
sanctity
thereof
has
to
be
maintained
and
all
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improvement schemes of the various zones and the
development work to be undertaken by the local
authorities or private entrepreneurs or anybody else
during the operative period of the Master Plan must
conform to the land use as specified under the Master
Plan.
61. It is pertinent to note that the UIT Act, does not
provide for modification of the Master Plan during its
operative period or the revision thereof but then, the
power to frame the Master Plan inheres in it power to
modify or revise it in the manner and after following
the procedure as provided for preparation of the Master
Plan.
62. Of course, sub-section (2) of Section 73B, a non
obstante clause, empowers the State Government or
any authority authorised by it by notification in official
Gazette to allow the owner or holder of any land to
have change of land use as specified, if it is satisfied to
do so in public interest, on payment of conversion
charges as specified or for regularisation of change of
land use in terms of sub-section (3) of Section 73B, but
then, once the Master Plan is prepared under the UIT
Act for planned development of the urban area, the
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deviation
therefrom
is
not
permissible
without
modification thereof in accordance with the procedure
laid down. Obviously, the change of the land use as
contemplated under sub-section (2) & (3) of Section
73B in public interest cannot be permitted to be
effected so as to serve the purpose of an individual,
owner or holder of any such land ignoring the land use
specified in the Master Plan else it is bound to lead to
unplanned
development,
which
is
sought
to
be
remedied/checked by way of the statutory document
i.e. Master Plan and Zonal Development Plan, made
operative under the provisions of the UIT Act.
63. Coming to the Act No.25 of 1982, it is enacted for
establishing an Authority for the purposes of planning,
coordinating and supervising the proper, orderly and
rapid development of Jaipur Region and for executing
plans, projects and schemes for such development and
to
provide
for
matters
connected
therewith
and
accordingly, for the accomplishment of the statutory
object, the State Government in exercise of the power
conferred
under
Section
3,
has
constituted
the
statutory body, JDA, which has been entrusted with the
functions
inter
alia
to
undertake
urban
planning
including the preparation of the Master Development
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Plan & Zonal Development Plan, carrying out surveys
for the purpose, making alteration therein as may be
deemed necessary and also to coordinate execution of
the projects or schemes for the development of Jaipur
Region and generally, to perform any other functions
that
the
State
Government
may
designate
in
furtherance of the objectives of the Act No.25 of 1982.
64. The preparation of Master Development Plan and
Zonal Development Plans for Jaipur Region is regulated
by the provisions contained in Chapter V of the Act of
1982. Sub-section (1) of Section 21 of the Act No.25 of
1982 mandates that the Authority with a view to
securing planned integrated development and use of
land, shall carryout a civic survey of and prepare a
Master Development Plan for Jaipur Region. Subsection (2) of Section 21, mandates that the Master
Development Plan shall precisely define the quality of
life that a citizen of Jaipur could desirably be expected
to lead in (i) medium range perspective of the year
1991
(ii)
long
term
perspective
year
2001
and
thereafter and (iii) such other intermediate stages as
the State Government may direct, balanced and time
targeted
development
to
subserve
the
needs
of
growing city of Jaipur and other areas of Jaipur Region.
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Sub-section (2) of Section 21 further lays down that
the Master Plan shall provide for the matters as are
likely to have bearing on integrated development of
Jaipur Region and also specifies particular matters
which may be provided for in the Master Plan, which
include provision for preservation, conservation and
development of the areas of natural scenery, city
forests, wildlife, natural resources, land scapping;
preservation of the objects, features, structures or
places of historical, natural, architectural or scientific
interest
and
educational
value.
It
is
specifically
mandated that the Master Development Plan shall
provide for allocation of land for different uses, general
distribution and general location of land and to the
extent to which the land may be used as residential,
commercial, industrial, agriculture, as forests or for
mineral
exploitation
or
for
other
purposes.
It is
mandated that the Master Development Plan should
also provide for reservation of areas for open spaces,
gardens, recreation centres, zoological gardens, nature
reserves, animal sanctuaries, dairies and health resorts
etc.
65. Sub-section (3) of Section 21, contemplates that
the Master Development Plan may also define the
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various zones into which Jaipur Region shall be divided
for the purposes of development and indicate the
manner in which development is to be carried out and
the land in each Zone is proposed to be used (whether
by carrying out therein development or otherwise) and
the stages by which such development shall be carried
out and shall serve as a basic pattern of framework
within which Zonal Development Plan of the various
zones may be prepared.
66. As per mandate of Section 22, the Authority is
required
to
proceed
with
preparation
of
Zonal
Development Plan for each of the Zone into which
Jaipur Region is divided, simultaneously with the
preparation of the Master Development Plan or as soon
as may be thereafter. As per sub-section (2) of Section
22, the Zonal Development Plan may inter alia contain
a site plan for the development of the Zone and show
the approximate location and extent of the land uses
proposed in the Zone for such things as public buildings
and other public works and utilities, roads, housing,
recreation,
hospitals,
industry,
public
and
business,
private
markets,
open
schools,
spaces,
other
categories of public and private uses. It is mandated
that the Zonal Development Plan shall also specify the
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standards of population density and building density;
show every area in the zone which may in the opinion
of
the
authority,
development
or
be
required
redevelopment;
or
and
declared
in
for
particular
contain provisions regarding all or any of the matters
as specified under sub-section 2(e) including the
division of any site into plots for the erection of
buildings; the allotment or reservation of land for
roads,
schools,
open
spaces, gardens,
markets
and other
recreation
grounds,
public purposes;
the
number of residential buildings which may be erected
or any plot or site as also the amenities to be provided
in relation to any site or building on such site whether
before or after the erection of the buildings and the
person or authority by whom or at whose expense such
amenities are to be provided.
67. Precisely, as per provisions of Section 21 and 22 of
the Act No.25 of 1982, the Master Development Plan as
also the Zonal Development Plans to be prepared for
the development, has to be a comprehensive goal
oriented strategy plan for overall orderly development
of the Jaipur Region. As a matter of fact, the Master
Development Plan must set goals and map out plans
for future so clearly that it functions like a road map or
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blue print and guide one and all concerned regarding
future development of the city. To put in other words,
the
Master
Development
Plan
and
the
Zonal
Development Plan are mandated to be self contained
documents providing a long range vision, guiding the
appropriate uses of the land within the region so as to
protect
public
sustainable,
health
physical
and
and
safety
social
and
to
create
environment
for
improving the quality of life of the citizens and to
promote the general public welfare.
68. Section 23 of the Act No.25 of 1982 deals with the
procedure to be followed in preparation and sanction of
plans which obviously includes Master Development
Plan and Zonal Development Plan, as the case may be.
As per mandate of provisions of Section 23, before
finalisation of the plan, the JDA is under an obligation
to prepare a draft plan and publish it by making a copy
thereof available for inspection and publishing a notice
in the form and manner determined by the Regulations
inviting objections and suggestions from any person
with respect to draft plan before such date as specified
in the notice. As per the provisions of sub-section (2) of
Section 23, it is mandatory for the Authority to give
reasonable opportunity to every local authority within
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whose local limits, any land touched by the plan is
situated, to make any representation with respect to
the plan. It is only after consideration of all objections,
suggestions and representations, as may have been
received, the plan is finally sanctioned by the Authority.
69. Thus, undoubtedly, the Master Development Plan
or the Zonal Development Plan, as the case may be,
finally
sanctioned,
after
undertaking
intensive
consultation process involving experts drawn from
various
disciplines
and
other
stake
holders,
for
systematic and planned development of the city and
adjoining areas are democratically prepared planning
documents expressing the community desire to develop
physically, economically and socially and therefore, its
binding
effect
and
inviolability
could
be
well
issue,
the
understood.
70. Coming
to
the
most
contentious
modification of the Plans during its operative period,
Section 25 of the Act No.25 of the Act of 1982,
contemplates three situations whereunder the Master
Development Plan or the Zonal Development Plan, as
the case may be, is permissible to be modified to the
extent and in the manner provided.
(111 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
71. As per sub-section (1) of Section 25, at any time
after the Plan has come into operation, the JDA is
empowered to make any modification to the Plan as it
thinks fit, which in its opinion:
(i)
do not affect material alterations in the
character of the Plan; and
(ii)
do not relate to the extent of land uses or the
standards of population density.
72. It is to be noticed that the Master Plan, a long
term perspective Plan for guiding sustainable planned
development of the city laying down the planning
guidelines,
policies,
requirement
for
development
various
socio
code,
economic
space
activities
supporting the existing and future population of the city
during the Plan period, once finalised and come into
operation, even the creator of the Plan, the JDA, is not
vested with the unfettered authority to modify the Plan
during its operative period as it thinks fit. The power
vested with the JDA to
operative
period
is
modify the Plan during the
circumscribed
by
the
triad
conditions noticed hereinabove.
73. The JDA on its own is not empowered to modify
the Plan, which affects material alteration in the
character of the Plan. It is true that what amounts to
(112 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
material alteration in the character of Plan, is not
defined. But then, the basic features of the plan
forming foundation for the planned development of the
city as projected certainly forms basic character of the
plan, which is not permissible to be altered by the JDA
in exercise of the power conferred under sub-section
(1) of Section 25 of the Act No.25 of 1982. That apart,
as noticed hereinabove, the Master Development Plan
and Zonal Development Plan are prepared after due
deliberation on all the relevant aspects including the
need of the existing population and future growth of
population during the operative period of the Plan and
therefore, it has been specifically provided that the
Authority on its own shall not be entitled to modify the
land use as defined or affecting the standards of
population density in any planning area as projected.
74. Sub-section (2) of Section 25 mandates that with
the approval of the State Government, the Authority
may make any other modification into the Plan in order
to promote the Planned Development of any part of
Jaipur Region in most efficient manner. But then, the
discretion vested with the State Government under
sub-section (2) of Section 25, in granting approval of
modification of the Master Development Plan or Zonal
(113 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
Development Plan as projected by the respondents, is
not absolute. Undoubtedly, the discretion conferred
upon the State Government in permitting modification
of the Plan at the instance of the JDA is circumscribed
with the condition that it must be in order to promote
the Planned Development of Jaipur Region in most
efficient manner and thus, while exercising the power
conferred
as
aforesaid,
the
State
Government
is
required to act with great caution and circumspection
and while approving the modification suggested, must
satisfy itself that such modification is in furtherance of
Planned Development of any part of Jaipur Region. It
needs to be reiterated and emphasised that the Master
Development Plan or the Zonal Development Plan
finally
sanctioned
consultation
process
is
product
involving
of
an
expert
intensive
drawn
from
different disciplines and the objective consideration of
the objections/suggestions of the public at large and
therefore, the material on record and the decision of
the
State
Government
thereupon
approving
the
modification thereof must reflect that the modification
permitted
is
in
larger
public
interest
for
accomplishment of the statutory objective of Planned
(114 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
Development in most efficient manner and not to serve
an individual interest.
75. In Bangalore Medical Trust's case
(supra), while
considering the question with regard to permissibility of
the change of land use of the land reserved in the
Master
Plan
as
open
space,
public
park
and
playgrounds, where the power was conferred upon the
authority to alter the scheme, the Hon'ble Supreme
Court observed:
“47. Was the exercise of discretion under subsection (4) of Section 19 in violation or in
accordance with the norm provided in law. For
proper appreciation the sub-section is extracted
below:
“19. (4) If at any time it appears to be
Authority that an improvement can be made in
any part of the scheme, the Authority may alter
the scheme for the said purpose and shall
subject to the provisions of sub-sections (5)
and (6) forthwith proceed to execute the
scheme as altered.”
This legislative mandate enables the Authority to
alter any scheme. Existence of power is thus
clearly provided for. What is the nature of this
power and the manner of its exercise? It is
obviously statutory in character. The legislature
took care to control the exercise of this power by
linking it with improvement in the scheme. What is
an improvement or when any change in the
scheme can be said to be improvement is a matter
of discretion by the authority empowered to
exercise the power. In modern State activity
discretion with execution and administrative
agency is a must for efficient and smooth
functioning. But the extent of discretion or
constrains on its exercise depends on the rules
(115 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
and regulations under which it is exercised. Subsection (4) of Section 19 not only defines the
scope and lays down the ambit within which the
discretion could be exercised but it envisages
further the manner in which it could be exercised.
Therefore, any action or exercise of discretion to
alter the scheme must have been backed by
substantive rationality flowing from the section.
Public interest or general good or social
betterment have no doubt priority over priority or
individual interest but it must not be a pretext to
justify the arbitrary or illegal exercise of power. It
must withstand scrutiny of the legislative standard
provided by the statute itself. The authority
exercising discretion must not appear to be
impervious to legislative directions.” (emphasis
added)
76. In R.K.Mittal's case (supra), the Hon'ble Supreme
Court while dealing with the power of the Developing
Authority to amend the Master Plan, observed:
“40. It has to be noticed at this stage that the
development plan prepared in accordance with the
Regulations take the statutory colour in terms of
Section 6(2)(b) of the Act and, therefore, its
alteration by an executive order would be
impermissible. Even when a Master Plan is to be
amended, the entire prescribed procedure must be
followed. The power to amend should be exercised
only in consonance with the settled norms without
going beyond the original power of the
Development Authority to make such plan in
accordance with the provisions of the Act. The
power to amend cannot be used to frustrate the
provisions of the statute. Regulations, being
subordinate legislation must fall in line with the
principal provisions of the Act and in no way should
be detrimental to the provisions and the legislature
scheme of the Act.
48. A decision which is sought to be taken by the
Development Authority in the garb of a policy
decision matter, if not in conformity to the Master
Plan, the Regulations and the provisions of the Act
(116 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
in force, would be an action extra jus. The
Development Authority is to act in adherence to
the provisions of the law regulating such user or
construction. The laconic result of a collective
reading of the afore referred statutory provisions is
that the Development Authority or its officers, have
no power to vary the user and spaces prescribed in
the Master Plan, except by amending the relevant
laws and that too, for a proper object and purpose.
Any decision, as a policy matter or otherwise, for
any extent of public convenience, shall be vitiated,
if it is not supported by the authority. The courts
would examine what is the sensible way to deal
with this situation, so as to give effect to the
presumed purpose of the legislation. The provisions
in question should be construed on their plan
reading, supporting the structure of the legislative
intent and its purpose. The rule of schematic
interpretation would come into play in such
situations
and
the
Development
Authority
concerned cannot be permitted to overreach the
procedure prescribed by law with designs not
acceptable in law.
49. The Development Authority is inter alia
performing regulatory functions. There has been
imposition of statutory duties on the power of this
regulatory authority exercising specified regulatory
functions. Such duties and activities should be
carried out in a way which is transparent,
accountable, proportionate and consistent. It
should target those cases in which action is called
for and the same be exercised free of
arbitrariness. The Development Authority is vested
with drastic regulatory powers to investigate,
make regulations, impute fault and even to impose
penalties of a grave nature to an extent of
cancelling
the
lease.
The
principles
of
administrative justice squarely apply to such
functioning and are subject to judicial review. The
Development
Authority,
therefore,
cannot
transgress its power as stipulated in law and act in
a discriminatory manner. The Development
Authority should always be reluctant to mould the
statutory provisions for individuals, or even the
public convenience as this would bring an inbuilt
element of arbitrariness into the action of the
authorities. Permitting mixed user, where the
(117 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
Master Plan does not so provide, would be glaring
example of this kind.” (emphasis added)
77. Thus, it can be safely concluded that the power
conferred upon the State Government under subsection (2) of Section 25 of the Act to grant approval to
the Authority to make modification into the Plan not
covered by the provisions of sub-section (1) is not
absolute and no modification in the Plan suggested by
the Authority is permissible to be approved by the State
Government, which is not in furtherance of the planned
development of Jaipur Region in most efficient manner.
Suffice it to say that power to modify the Master
Development Plan conferred upon the Authority with
the prior approval of the State Government in no
manner empowers it to effect the modification of the
Plan in deviation of the original legislative intent
underlying the enactment i.e. the planned and orderly
development of Jaipur Region.
78. This takes us to consider the provisions of subsection
(2a)
of
Section
25,
inserted
vide
Jaipur
Development Authority (Amendment) Act, 2001 w.e.f.
26th of May, 2001, which provides that Authority or
Nagar Nigam, Jaipur or any other body or committee,
(118 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
as may be authorised by the State Government in this
behalf may in order to promote Planned Development
of any part of Jaipur Region in most efficient manner,
make such modification in the land use of the Plan for
such
area,
as
may
be
specified
by
the
State
Government in the Official Gazette. As discussed
hereinabove, the Authority which is empowered to
prepare and finally sanction the Plan, is also not
empowered to make any modification on its own to the
Plan, which inter alia affects the extent of the land
uses. Further, by virtue of provisions of sub-section (2)
of Section 25, the Authority is not empowered to effect
any modification other than permissible under subsection (1) of Section 25, into the Plan even in order to
promote planned development of any part of Jaipur
Region in most efficient manner, on its own, without
approval of the State Government. Obviously, the other
modification in the Plan as contemplated under subsection (2) of Section 25, in order to promote planned
development of any part of Jaipur Region in more
efficient manner permissible to be made by the JDA,
the creator of the Plan with the approval of the State
Government, includes the change in the land use. But
then, while permitting the modification in the land use
(119 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
of the Plan even under sub-section (2a) of Section 25,
before issuing notification specifying the change in land
use, the State Government on the basis of the material
on record including the opinion of planning authorities
having expertise in the field and after taking into
consideration the objections/ suggestions that may be
received, must arrive at a conclusion that the change in
the land use is absolutely necessary for planned
development of any part in Jaipur Region. It needs to
be emphasised that the modification in the Plan in
terms of the provisions of sub-section (2) & (2a) of
Section 25, is permissible only for accomplishment of
the
basic
object
of
the
enactment
i.e.
planned
development of Jaipur Region, in the larger public
interest and not just to serve interest of an individual.
79. There is yet another aspect of the matter. As per
mandate of the provisions of sub-section (3) of Section
25, any modification to the Plan in terms of the
provisions of sub-section (1), (2) or (2a) cannot be
effected without publication of the notice inviting
objection before the date as may be specified in the
notice and after consideration of the suggestions, as
may be received pursuant thereto. Thus, even the
modification to the Plan during its operative period to
(120 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
the extent permissible, is not open to be made, without
consideration
of
the
objections
and
suggestions
received pursuant to the notice issued, as in the case of
preparation of the Plan. Obviously, the objections and
suggestions received are required to be considered by
the Authority empowered to permit the modification in
the Plan in terms of the provisions of sub-section (1)
and (2) of the Section 25 of Act No.25 of the Act of
1982. To be more specific, the procedure to be adopted
for modification of the Plan under Section 25 of the Act
by the Authority or the State Government, is not
different than the procedure required to be adopted
while undertaking preparation/revision of the Plan.
80. The provisions of Section 33-A, which finds place
in Chapter VI of the Act No.25 of 1982, provide that
notwithstanding anything contained in said Chapter
where
any
person
carry
any
development
of
a
permanent nature or has changed the use of land
without permission required under the Act or which is
not in accordance with the permission granted, is in
contravention of any conditions subject to which any
permission has been granted or in contravention of any
permission granted or duly modified, such development
or change of use of land may be compounded by the
(121 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
Authority on such terms and on payment of such fees
and charges as may be prescribed by the State
Government from time to time. Indisputably, the
provisions incorporated as aforesaid, cannot override
the provisions of Chapter V of the Act, including Section
25 incorporated therein, which imposes restriction on
modification
of
the
Master
hereinabove.
In
other
Plan
words,
the
as
discussed
unauthorised
development permissible to be compounded in terms of
Section 33A, must conform to the land use plan under
the Master Development Plan and therefore, unless and
until, the unauthorised development sought to be
compounded
falls
within
the
parameters
of
the
modification of the Plan as contemplated under subsection
(1)
&
(2)
of
Section
25
as
discussed
hereinabove and such modification to the Plan is
actually effected by following the procedure laid down,
no unauthorised development in terms of Section 33A
is permissible to be compounded.
81. Coming to the provisions of Act No.18 of 2009, the
said Act incorporates specific chapter i.e. Chapter XI,
which deals with urban development and town planning
within
the
municipal
area.
Section
159
thereof,
empowers the Municipality to carry out detailed survey
(122 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
of the city and prepare a Master Development Plan and
other statutory plans specified i.e. Execution Plan for
five years period and Annual Municipal Action Plan for
one
year
period.
The
procedure
provided
for
preparation and sanction of the plan as laid down under
Section 160 of the Act No.18 of 2009, is not different
than the procedure as provided for the preparation and
sanction of the Plan under the Act No.25 of 1982 or the
UIT Act and other relevant statutes. Section 162 of the
Act No.18 of 2009, which deals with subsequent
modification of the Plan, sub-section (1) thereof,
empowers the Municipality to make modification to the
Plan as it thinks fit which in its opinion do not affect the
material alteration in the character of the Plan and
which does not relate to the extent of the land uses or
standards of the population density. Thus, like the
Authority under the Act No.25 of 1982, the Municipality
is also not empowered to make modification in the Plan
on its own which affects material alteration in the
character of the Plan. But then, Section 162 does not
incorporate any provision permitting the Municipality to
make any other modifications not referred to under
sub-section (1) of Section 162 with the approval of the
State Government. Rather, as per the mandate of
(123 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
provisions of sub-section (5) of Section 162, no
modification of the Plan even which is referred to under
sub-section (1), is permissible to be made unless and
until it is finally approved by the State Government.
Suffice it to say that during the operative period of the
Plan under Section 162 of the Act No.18 of 2009, no
modification other than those referred to under subsection (1) of Section 162 discussed hereinabove, is
permissible to be made.
82. Further, it is relevant to notice that by virtue of
provisions of Section 164, any Master Development
Plan prepared under the provisions of any other law for
time in force, prior to commencement of the Act No.18
of 2009, shall be deemed to have been prepared under
the Act No.18 of 2009 and the provisions incorporated
as aforesaid for sanction, modification and operation of
the Master Plan/Master Development Plan shall mutatis
mutandis apply, however, the same shall cease to
operate as soon as Plan is sanctioned under the
provisions of the Act No.18 of 2009. In this view of the
matter, except in respect of the urban areas in respect
whereof Improvement Trust has been constituted under
Section 8 of the UIT Act and the Jaipur Region, Jodhpur
Region and Ajmer Region, the development planning
(124 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
whereof is governed by the provisions of Act No.25 of
1982,
Act No.2 of 2009 and Act No.39 of 2013
respectively, the urban development and town planning
in other municipal areas shall be governed by the
provisions of Chapter XI of the Act No.18 of 2009.
83. Much emphasis was laid by the learned AG and
AAG on the proposition that the Master Development
Plan is an organic document and not static and cannot
be considered so sacrosanct that it cannot be altered in
any circumstances during its operative period and
unless the decision of the Authority permitting the
change of land use in exercise of the statutory power is
found to be actuated by mala fides or suffering from
vice of colourable exercise of the power, the same
should not be interfered with by the court.
84. In Bombay Dyeing & Manufacturing Ltd's case,
relied upon by the learned AG, the Hon'ble Supreme
Court while emphasising that the development plan is
an organic document regarding the periodic changes
required in development plan and interpretation of the
words “change in character of the plan”, observed:
“249. A development plan is an organic
document in the sense that periodic changes
are contemplated thereby. A development plan
(125 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
is required to be changed every 20 years. Such
changes are to be brought about keeping in
view the past
experience of the planning
authority and the intended future development
of the town. While, therefore, interpreting the
words “change in the character of plan” the
question would be as to whether the change in
the character is referable to alteration of the
entire plan. The change in the character would,
therefore, necessarily mean the change in the
basic feature thereof and the entire plan as a
whole wherefor the same must be read in
totality. In this case, the changes made do not
bring about any significant changes so as to
come to a conclusion that its basic features are
altered.”
85. In Pune Municipal Corporation's case (supra), the
Hon'ble Supreme Court with reference to the provisions
of Section 37 of the Maharashtra Regional & Town
Planning Act, 1966, while considering the question of
minor modification of the final development plan
without affecting its basic character, observed:
“3. The question now for consideration is
whether the State Government can make any
changes of its own in the modifications
submitted by the Planning Authority or not. The
impugned Section 37 of the Act reads as
follows :
“37 (1) Where a modification of any part of
or any proposal made in, a final
development plan is of such a nature that it
will not change the character of such
development plan, the Planning Authority
may, or when so directed by the State
Government shall, within sixty days from the
date of such direction, publish a notice in the
Official Gazette and in such other manner as
may be determined by it inviting objections
and suggestions from any person with
(126 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
respect to the proposed modification not
later than one month from the date of such
notice; and shall also serve notice on all
persons
affected
by
the
proposed
modification and after giving a hearing to
any such persons, submit the proposed
modification with amendments, if any, to the
State Government for sanction.
(1A) .....
(1AA)....
(1B)......
(2) The State Government may, make such
inquiry as it may consider necessary and
after consulting the Director of Town
Planning by notification in the Official
Gazette, sanction the modification with or
without such changes, and subject to such
conditions as it may deem fit, or refuse to
accord sanction. If a modification is
sanctioned, the final development plans shall
be deemed to have been modified
accordingly.”
(Emphasis supplied)
4. Reading of this provision reveals that under
clause (1), the Planning Authority after inviting
objections and suggestions regarding the
proposed amendment and after giving notice to
all affected persons shall submit the proposed
modification for sanction to the Government. The
deliberation with the public before making the
amendment is over at this stage. The
Government, thereafter, under clause (2) is
given absolute liberty to make or not to make
necessary inquiry before granting sanction.
Again, while according sanction, Government
may do so with or without modifications.
Government could impose such conditions as it
deem fit. It is also permissible for the
Government to refuse the sanction. This the true
meaning of the clause (2). It is difficult to uphold
the contrary interpretation given by the High
Court. The main limitation for the Government is
made under Clause (1) that no authority can
(127 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
propose an amendment so as to change the
basic character of the development plan. The
proposed amendment could only be minor within
the limits of the development plan. And for such
minor changes it is only normal for the
government to exercise a wide discretion, by
keeping various relevant factors in mind. Again,
if it is arbitrary or unreasonable the same could
be challenged. It is not the case of the
respondents herein that the proposed change is
arbitrary or unreasonable. They challenged the
same citing the reason that the Government is
not empowered under the Act to make such
changes to the modification.”
86. In Manohar Joshi's case (supra), the Hon'ble
Supreme Court while dealing with the issue regarding
the conversion of the space meant for public amenities
for the purposes of housing at the instance of few land
owners and builders, observed:
“199. As stated above, we adopted the model of
democratic
planning
which
involves
the
participations of the citizens, administrators,
municipal bodies and the Government as is also
seen throughout the MRTP Act. Thus, when it
comes to the development plan for a city, at the
initial stage itself there is the consideration of the
present and future requirements of the city.
Suggestions and objections of the citizens are
invited with respect to the proposed plan, and
then the planners apply their mind to arrive at the
plan which is prepared after a scientific study, and
which will be implemented during the next 10 to
20 years as laid down under Section 38 of the
MRTP Act.
The plan is prepared after going through the entire
gamut under Section 21 to 30 of the Act, and then
only the sanction is obtained thereto from the
State Government. That is why the powers to
modify the provisions of the plan are restricted as
noted earlier. If the plan is to be tinkered for the
(128 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
benefit of the interested persons, or for those who
can approach the persons in authority, then there
is no use in having a planned development.
Therefore, Section 37 which permits minor
modifications provides that even that should not
result into changing the character of the
development plan, prior whereto also a notice in
the gazette is required to be issued to invite
suggestions
and
objections.
Where
the
modification is of a substantial nature, then the
procedure under Section 29 of the Act requiring a
notice in the local newspapers inviting objections
and suggestions
from the citizens is to be
resorted to. Even the decision of reservation under
Section 50 is at the instance of the appropriate
authority only when it does not want the land for
the designated purpose.
200. The idea is that once the plan is formulated,
one has to implement it as it is, and it is only in
the rarest of rare cases that you can depart
therefrom. There is no exclusive power given to
the State Government, or to the Planning
Authority, or to the Chief Minister to bring about
any modification, deletion or dereservation, and
certainly not by a resort to any of the DC Rules.
All these constituents of the planning process have
to follow the mandate under Section 37 or 22-A,
as the case may be if any modification becomes
necessary. That is why this Court observed in para
45 of Indore Vikas Pradhikaran v. Pure Industrial
Coke & Chemicals Ltd. As follows: (SCC p.729)
“45.
Town and country planning involving
land development of the cities which are sought
to be achieved through the process of land use,
zoning plan and regulating building activities
must receive due attention of all concerned. We
are furthermore not oblivious of the fact that
such planning involving highly complex cities
depends upon scientific research, study and
experience and, thus, deserves due reverence.”
(emphasis supplied)
87. Thus, there cannot be any quarrel with the
proposition that the Master Plan, which is a policy
(129 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
document for guiding the future development of the
city or town in the planned manner and to arrest
undesirable and unplanned growth, is not a static
document, which cannot be modified or revised as and
when considered necessary in the larger public interest
in furtherance of planned development of the urban
area in respect whereof it is made operative. But then,
the Master Development Plan prepared to master the
future development in the city or town democratically,
after due deliberation and consideration of suggestions
and objections from the public at large, cannot be
permitted to be set at naught at the whim and fancy of
the authority concerned just to serve the interest of
individuals.
Obviously,
development
shall
the
be
object
achieved
of
by
the
planned
rigorous
and
successful implementation of the Master Development
Plan and not by deviation therefrom with impunity.
88. We are firmly of the opinion that once the Master
Development
Plan
is
brought
into
being,
vigilant
implementation thereof should be the rule and any
deviation therefrom an exception and therefore, the
power
vested
Government
with
for
the
Authority
modification
or
thereof
the
State
should
be
exercised sparingly in furtherance of the planned
(130 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
development in the larger public interest and not
otherwise.
The status of peripheral control belt /green
belt/ecological zone specified in the notified
Master Development Plan, permissibility of use of
the
land
forming
part
of
peripheral
control
belt/ecological zone/green belt specified in the
Master Development Plan for the purposes other
than those specified during its operative period
and thereafter, at the time of revision thereof at
the end of its tenure and further the scope of
alteration/modification thereof (Question No.2)
89. The
belt/green
issue
belt/
whether
the
ecological
zone,
peripheral
specified
control
in
the
notified Master Plan, a statutory instrument forms basic
character/ feature of the Master Plan, which cannot be
altered and land forming part thereof cannot be put to
other uses i.e. residential, commercial, institutional and
industrial purposes etc., has been a most contentious
issue in these PILs.
90. Before considering the issue in light of the
statutory provisions, we consider it appropriate to refer
to
the
provisions
regarding
periphery
control
belt/ecological zone/green belt, made in the successive
(131 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
Master Developments Plans of the six major cities viz.
Jaipur, Jodhpur, Ajmer, Udaipur, Kota and Bikaner,
prepared and made operative over the years after
coming into force the UIT Act, the Act No.25 of 1982,
the Act No.2 of 2009 and Act No.39 of 2013, referred
to by the learned amicus curiae, the learned AG and
AAG during the course of hearing in support of their
contentions so as to show the status of the peripheral
control belt/ecological zone/green belt specified, its
purpose and permissibility of alteration thereof, so as to
put it to other uses such as commercial, residential,
institutional and industrial etc. during the operative
period
of
the
Plan,
at
the
time
of
revision
or
preparation of the new Master Development Plan before
or after the horizon year of the existing Master
Development Plan.
THE MASTER DEVELOPMENT PLAN OF JAIPUR
91. The Master Plan of Jaipur with the horizon year1991, was prepared under the provisions of UIT Act.
After coming into force of the Act No.25 of 1982 and
constitution of JDA, Master Development Plan 2011 of
Jaipur Region came into force w.e.f. 1.9.1998. Taking
(132 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
into
account,
regional
direction
the
drainage
of
environmental
slops,
growth,
existing
requirement
considerations,
developments,
of
land
to
accommodate the expected increase in the population
and related increase in the various activities, the land
utilization in Jaipur Region was divided into three broad
categories namely, Rural Area, Ecological Zone and
Urbanisable Area. The proposal of land utilization in
Ecological Zone delineated in the Master Development
Plan 2011 of Jaipur Region reads as under :
“Traditionally in the Master Plan of various Towns,
the urban areas have been shown as surrounded
by a ring of peripheral belt or green belt. This
green belt was expected to act as lung space
around the urban areas. It was also expected to
cater to the activities operating in rural areas
including agriculture, partly catering to the
requirements of the urban uses. The agricultural
based activities on such lands are often pushed
back by other more profitable activities like
housing, industries etc. It is also a fact that with
the increase of land requirements for urban uses,
the urban land parcel keeps expanding and
engulfs a large part of the lung space legally
delineated as green belt or peripheral control belt
in accordance with law. Thus the area shown as
green belt in a Master Plan prepared in seventies
becomes an urban area for the same city when
the revised or a New Master Plan is prepared on
expiry of the stipulated date of earlier document.
This obviously does not simply that the urban
area which required certain green lung spaces
around it during the stipulated Master Plan period
ceases be so after expiry of the Master Plan
Period. While the Master Plan exercises, under the
provisions of various acts are carried out by and
large for twenty years period, it is essential even
(133 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
to look beyond the stipulated time frame, for the
complex urbanisation phenomenon has no
bounds.
In this context, it has, therefore, been
consideral necessary to delineate a green zone
which may continue to remain so even after the
plan period and ordinarily may not be altered it
subsequent
revisions
modification
or
new
development plans. Jaipur is fortunate to have
available Aravali Hill ranges with forest covers
abutting the urban areas towards north and east.
These have provided a natural barrier against
indiscriminate urbanisation, thus saving the
agricultural character of the areas towards North,
east, as compared to areas towards north west,
west, south east. The study of regional drainage
slopes reveals that areas of Achrol valley are
drained towards south a large part of which form
catchment area of Ramgarh Dam, the main
source of drinking water to walled city area. This
area contiguous with the areas on both sides of
NH 11 leading to Agra up to the Agra Railway line
form one contiguous green zone in the Region
which
has
a
sensitive
eco-system.
Any
degradation or deterioration in this eco-system is
likely to effect quality of life of the citizens of the
Region.
Keeping in view all these aspects, besides the
Urbanisable Area, Ecological Zone has been
delineated in the Region. This zone including the
hill ranges, fores covers water bodies, settlements
etc. is ideally suited to be maintained as a
predominant green zone to be utilized for
Agriculture, forestry and allied activities besides
compatible activities. The existing settlements
and legally established urban and rural functions
in this zone will be allowed to expand to the
extent of natural growth. Functions and activities
which are eco-friendly and occupy minimal built
area for incidental use like recreational & health
resorts, sports complexes, stud forms, golf
courses etc. may come up in this zone subject to
stringent control with respect to environmental
and other planning aspects. The Ecological Zone
shall by all means be protected against
indiscriminate urbanisation and shall continue to
(134 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
be a predominant green area even beyond the
horizon year as stipulated in this document. The
boundaries of the ecological zone as delineated in
the over all regional context may very slightly for
planning considerations while working out details
in the Zonal Development Plans and those plans
may accommodate selective extractive industries
in specific areas, designated for them, few ecofriendly urban functions as may be promoted by
JDA/Govt. The area of the Ecological Zone
delineated at this stage is approx 449 Sq. Kms.”
(emphasis supplied)
(Master Development Plan-2011 Jaipur Region
Part-I, page 52)
92. During the operative period of Jaipur Master
Development Plan 2011, the JDA prepared Master
Development Plan with a horizon year 2025, which has
come
into
force
from
6.9.2011.
The
Master
Development Plan 2025 of the Jaipur Region has been
drawn up with the reference to following five policy
zone :
·
Urban area 1 -U1
·
Urban area 2 -U2
·
Urban area 3 -U3
·
Ecological Zone
·
Rural Area
U1 is the compact urban area placed as nuclie of
development, and U2 will be the immediate influence
area of periphery of U1 area. U3 is intended to be
(135 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
continuum to U1 & U2 area in either side of Major
roads.
In Ecological Zone G1 (Green Zone-1) is primarily
a zone where the principal aim is to conserve the
natural features such as hills, river, nala, water bodies,
forests flora fauna at any cost. The said zone is strictly
reserved and to be protected from any development,
whereas G2 (Green Zone-2) primarily the area abutting
intended to be developed a continuum to G1. It is
provided that the Ecological area includes the area
which is suitable for agriculture and other eco sensitive
purposes. However, in the Ecological Area G2, activity
like eco friendly housing, biotech parks, Motel, Resorts
has been permitted and further the “Pulses villages”
“Oil Palm”, Vegetable Clusters, Mega Food Parks may
also be proposed therein. But it is specifically provided
that other uses are to be discouraged in G2 and
Ecological Area. At the same time, it is provided that if
in the interest of general public, the Competent
committee may arrive at any other activity with the
environmental impact assessment. A further restriction
is imposed that such use shall adhere to the basic
principle of low intensity development. [vide (iv.)
(136 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
Ecological
Zone,
Master
Development
Plan-2025,
Volume-2, Page 50-51]
Thus, as per the Master Development Plan 2025 of
the Jaipur Region, the Ecological Zone (G1) delineated
is strictly reserved and protected, which cannot be put
to use for any development purposes. Even the
Ecological Zone (G2) is ordinarily not permitted to be
used for the purposes other than the restrictive
purposes specified.
The area of Ecological Zone shown in the Master
Plan 2011 as 481 Sq. Kms. stands increased in Jaipur
MDP 2025 to 894 Sq. Kms. It needs to be mentioned
that neither Master Development Plan 2011 nor Master
Development Plan 2025, provides for peripheral control
belt around the urban area in addition to the Ecological
Zone.
JODHPUR DEVELOPMENT PLAN
93. The Master Plan 2001-2023 of Jodhpur Region
consisting of Jodhpur City and 72 Revenue Villages
after approval under sub-section (3) of Section 6 was
notified under Section 7 of the UIT Act on 18.8.03.
Under the Plan while specifying the land use for
residential, commercial, industrial, Government & Semi
(137 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
Government and other purposes, a periphery control
belt was provided around the urban area to check the
encroachment and unauthorised development wherein
the land use was mainly restricted to agriculture,
plantation and the purposes related thereto. The clause
4.12 of Master Plan 2001-2023 dealing with periphery
control belt reads as under:
“
4-12 ifjf/k fu;a=.k {ks=
'kgj ds ifjf/k {ks= esa vfrØe.k ,oa vukf/kd`r fodkl dks
jksdus ds fy, uxjh; {ks= ds pkjksa vkSj ifjf/k fu;a=.k {ks= dk
izko/kku fd;k x;k gSA bl {ks= dh Hkwfe dk mi;ksx] izeq[k :i esa
d`f"k] o`{kkjksi.k ,oa blls lacaf/kr mi;ksx ds fy, gh fd;k tk
ldsxkA ifjf/k fu;a=.k {ks= esa iM+us okyh xzkeh.k cfLr;ksa dk fodkl
fu;af=r ,oa fu;fer fd;k tk;sxkA xzkeh.k cfLr;ksa dk fodkl xzke
iapk;rksa }kjk pyk;s tk jgs xzkeh.k dk;ZØe ds vUrxZr fd;k
tk;sxkA
jktekxZ ckbZ ikl ds lkFk&lkFk os leLr Hkw&mi;ksx vk
ldsaxs] tks gfjr iV~Vh {ks= esa vuqKs; gSa rFkk vU; Hkw&mi;ksx] tSls
%& lsok dsUnz] iSVªksy iai] xzkeh.k vkcknh dk foLrkj] eksVy] dqDdqV
'kkyk,a ,oa fjlksVZ] QkeZ gkml] d`f"k lsok dsUnz rFkk d`f"k vk/kkfjr
y?kq m|ksx Hkh vk ldsaxsA
jktekxksZ ,oa ckbZikl ds lgkjs] vuqKs; fodkl djrs le; bu
ekxksZ ds ekxkZf/kdkj ds i'pkr~ 100 QhV pkSM+h iV~Vh xgu
o`{kkjksi.k gsrq NksM+uh gksxh rFkk bl iV~Vh ds ckn gh mi;qDr
leLr vuqKs; fodkl dk;Z vk ldsaxsA bl izdkj ds lHkh vuqKs;
fodkl lfoZl jksM+ ,oa jktekxZ ckbZikl dh vksj mUeq[k u gksdj
ihNs dh vksj [kqyrs gq, vUreqZ[kh gksaxsA“
(138 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
(Jodhpur Master Plan 2001-2023 clause 4.12
page 54)
94. Mr.M.S.Singhvi,
learned
amicus
curiae
while
specifically referring to the Draft Master Development
Plan-2031 of Jodhpur Region, pointed out that so as to
circumvent the interim order passed by this court
restraining the respondents from effecting any change
in the land use without permission of this court in
ecological zone and periphery control belt including the
green belt, in the proposed Master Development Plan2031 of Jodhpur Region, the provision for ecological
zone/periphery
control
belt/green
belt,
has
been
altogether deleted. It is pertinent to note that in
Jodhpur MDP 2031 (Draft), it is proposed that at the
local level for the purpose of the garden and open
spaces on the basis of the population in the residential
area, the park shall be developed but then, no
reservation of the land for ecological zone/periphery
control belt/green belt is proposed.
AJMER MASTER DEVELOPMENT PLAN:
95. The Master Development Plan 1971-1991 of Ajmer
City was prepared under the provisions of UIT Act, was
(139 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
notified vide notification dated September 13, 1976,
which makes the provision for Peripheral Control Belt as
also for Rural Settlements, as under:
“PERIPHERAL CONTROL BELT: The Notified Urban
Area of Ajmer covers about 243 sq. Kms. It includes
27 revenue villages. The development programme
within the Notified Urban Area would be in two
distinct ways firstly the development of Ajmer City,
second the development of rural settlements falling
within the peripheral belt.
Ajmer has assumed special importance for export of
eggs not only to other parts of Rajasthan but other
States as well. More than one lakh eggs are being
exported every day and this activity is likely to
increase. Special consideration has therefore been
given in the Plan for earmarking areas where these
activities could be promoted and properly
developed. Dairies and large poultry farms now
located in or adjoining the developed area shall be
ultimately moved to the new sites, located on the
peripheral control belt towards the south-east,
south-west and west. These Dairies and Poultry
farms will form part of urbanisable area for 1991.
Selected villages lying within the Peripheral control
belt but outside the urbanisable area shall have to
be developed to strengthen the rural economy.
These proposals shall envisage some degree of
control on the Use of land in the rural areas. In the
absence of any restrictions, people are likely to be
build in the rural areas is an in-discriminate manner
which would not only spoil the rural country side but
may also lead to haphazard and sub-standard urban
sprawl outside the urbanisable limits. This shall
defeat the whole objective of compact and
organised urban development. A few villages, lying
within the peripheral control belt shall be developed
under rural development programme to improve the
economy of the rural settlements in the area.
Permissible uses within the peripheral Control Belt
may be forestry, cultivation, nurseries, orchards
etc.”
(Ajmer Master Plan 1971-91 page 50 & 51)
(140 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
Thereafter, Ajmer Master Development Plan 20012023 was notified under Section 7 of the UIT Act, vide
notification dated 4.4.05, which also makes provision
regarding periphery control belt in the following terms:
“¼y½ ifjf/k fu;a=.k mi {ks= %&
'kgj ds Hkkoh uxjh; dj.k ;ksX; {ks= ds ckgj vfu;af=r
foLrkj
,oa vfu;ksftr fodkl dks fu;af=r djus ds fy, ifjf/k
fu;a=.k {ks= dh vo/kkj.kk dh mRifRr gq;h gSA bl ifjf/k fu;a=.k
{ks= esa orZeku esa fLFkr xzkeh.k vkcknh {ks=ksa ,oa vU; ,dy :i esa
fufeZr ifjlEifRr;ksa ds vfrfjDr d`f"k Hkwfe ij fujarj o`gn Lrj ij
fuekZ.k xfrfof/k;ksa dks lEcfU/kr vf/kfu;e ds rgr fu;af=r fd;k
tk,xkA orZeku esa uxj ds mRrj iwoZ dh vksj ifjf/k fu;a=.k {ks= esa
[kuu {ks= fLFkr gSA bl ifj{ks= dk {ks=Qy 59468 ,dM+ gS rFkk
bl ifj{ks= esa] d`f"k vk/kkfjr m|ksx] Ms;jh] o`{kkjksi.k] eqxhZikyu]
gkWV cktkj] fjlksVZ] QkeZ gkml vkfn rFkk vko';drkuqlkj xzkeh.k
vkcknh ds foLrkj gsrq ys vkÅV Iyku vuqeksnu ds i'pkr vkcknh
ds foLrkj vuqKs; gksxk] rkfd xzkeh.k {ks=ksa dk Hkh fu;ksftr fodkl
gks lds rFkk bl ;kstuk ifj{ks= esa fLFkr jktdh; Hkwfe Hkfo"; essa
tulqfo/kkvksa ds fy, vkjf{kr dh tkuh izLrkfor gSA uxj dh ifjf/k
esa laHkkfor vfu;ksftr fodkl dks fu;af=r djus rFkk uxj ds Hkkoh
fodkl dks O;ofLFkr :i ,oa fn'kk iznku djus esa ;g ifj{ks=
egRoiw.kZ gSA”
However, during the operative period of Ajmer
Master Development Plan, 2001-2023, in the year
2013, Draft Master Development Plan 2013-2033 has
been prepared under the provisions of Act No.39 of
2013, which does not provide for Periphery Control Belt
(141 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
as such but makes the provision for Green Area (G-1)
& (G-2). Green Area (G-1) is the zone strictly reserved
intended to conserve the natural features such as hills,
river, nallah, water bodies, forests, flora and fauna and
to be protected from any development. G-2 area is the
area abutting G-1 which is buffer zone to control the
development in Green Area G-1. In the G-2 area,
agriculture and other eco-sensitive
activities such as
eco-friendly residence, bio-park, resorts, vegetable
group, mega food park etc. may be permitted. Thus,
the
provision
incorporated
in
the
Draft
Master
Development of Ajmer Region makes the provision for
Green
Area
in
the
line
of
the
Jaipur
Master
Development Plan 2025, which provides for Ecological
Zone (G-1 & G-2).
UDAIPUR MASTER DEVELOPMENT PLAN
96. Udaipur Master Plan 1997-2022 came into force
w.e.f. 23.1.03 wherein, the entire area within the urban
limit outside the urbanizable area was declared as
peripheral control belt wherein land use for the
specified purposes was allowed. Clauses 4.1 y
and
(142 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
5.15 whereof, dealing with Peripheral Control Belt reads
as under:“y- ifjf/k fu;a=.k ifj{ks= ¼Peripherial Control Belt½
ifjf/k fu;a=.k {ks= dk foLrkj uxjhd`r ;ksX; {ks= ds ckgj dk]
vf/kfu;e ds rgr vf/k?kksf"kr uxjh; lhek ds e/; dk lEiw.kZ {ks=
gksxkA d`f"k ,oa mlds lgk;d O;olk; rFkk Ms;jh] eqxhZ ikyu
ikS/k'kkyk] ckxku vkfn fØ;kdyki bl ifj{ks= esa fodflr fd;s tk
ldrs gSaA jhdks }kjk dyM+okl ds ikl izLrkfor yxHkx 400 ,dM+]
ftad LesYVj vkS|ksfxd {ks= 900 ,dM+ rFkk 300 ,dM+ dk xqM+yh
vkS|ksfxd {ks= bl ifj{ks= ds vUrxZr fLFkr gSA bl ifj{ks= ds
vUrxZr vf/k?kksf"kr jktLo xzkeksa dh vkcknh {ks= Hkh blh esa lfEefyr
gSA bl ifj{ks= dk dqy {ks=Qy yxHkx 59]530 ,dM+ gS rFkk bl
ifj{ks= esa d`f"k vkSj mlds lgk;d O;olk;] [kuu dk;Z] vk/kkfjr
m|ksx] fjlksVZ vkfn izeq[k vkfFkZd fØ;kdyki gksaxsA uxj dh ifjf/k esa
laHkkfor ;n`PN@vfu;ksftr fodkl ds fu;fU=r djus rFkk
O;ofLFkr ,oa lagr uxjh; fodkl dh n`f"V ls ;g ifj{ks= egRoiw.kZ
gSA”
5-15 ifjf/k fu;a=.k iV~Vh ¼Peripheral Control Belt)
“uxj dh ifjf/k esa laHkkfor ;n`PN@vfu;ksftr fodkl ij dBksj
fu;a=.k djus rFkk O;ofLFkr ,oa lgr uxjh; fodkl dks lqfuf’pr
djus ds mn~ns’; ls uxjh; {ks= ds pkjksa vksj ifjf/k fu;a=.k iV~Vh
izLrkfor dh xbZ gSA ;g iV~Vh lkekU;r% 3 ls 4 fdyksehVj xgjkbZ esa
'kgj ds pkjksa vksj gksxhA vf/klwfpr uxjh; {ks= esa tks {ks= izLrkfor
fd;k x;k gS blesa uxjh;d`r {ks= izLrkfor uxjh;dj.k ;ksX; {ks= ,oa
ifjf/k fu;a=.k iV~Vh gSA blesa 62 jktLo xzke lfEefyr gSA bldh
vkcknh foLrkj ds vfrfjDr bl fu;a=.k iV~Vh esa vkus okyh Hkwfe dk
mi;ksx d`f"k ds vfrfjDr nqX/k 'kkyk] Qyks|ku] ikS/k 'kkyk] eqxhZikyu]
QkeZ gkml] fjlksVZl~] eksVYl] ,E;wtesUV ikdZ] okVj ikdZ] fMtuhys.M]
vIiw?kj] bZaV HkV~Vs ,oa d`f"k vk/kkfjr m|ksxksa vkfn ds fy;s fd;k tk
(143 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
ldsxkA ifjf/k fu;a=.k iV~Vh esa Hkwfexr ty Lrj dks Åapk mBkus gsrq
fjpktZ csflu tSlh ;kstuk;sa lEcfU/kr foHkkxksa }kjk rS;kj fd;k tkuk
izLrkfor gSA
jktekxksZa ,oa ckbZikl ftudk ekxkZf/kdkj 200 QhV o 160
QhV vFkok l{ke izkf/kdkjh }kjk tks Hkh fu/kkZfjr ekxkZf/kdkj gS ds
nksuksa vksj lM+d ds e/; ls 70 QhV@ 60QhV @ ekxkZf/kdkj ds
vuqikfrd nwjh j[krs gq, Øe’k% 16 QhV ;k 12 QhV pkSM+h lfoZl jksM+
j[kh tk;sxhA bl lfoZl jksM+ ds ckgj dh rjQ nksuksa vkSj
fo|qrhdj.k ,oa gfj;kyh ds fy;s Øe’k% 14 QhV@ 8 QhV vFkok
ekxkZf/kdkj dh leqfpr pkSM+kbZ ds vuqikr esa vfrfjDr {ks= NksM+k
tk;sxkA uxjh;dj.k {ks= ds ckgj jktekxksZa@ ckbZikl ds lgkjs lHkh
fodkldrkZvksa }kjk mijksDr ekxksZa ds ekxkZf/kdkj ds i’pkr~ 100 QhV
pksM+h iV~Vh xgu o`{kkjksi.k gsrq NksM+uh gksxh rFkk bl iV~Vh ds ckn
leLr vuqKs; fodkl dk;Z l{ke izkf/kdkjh }kjk Hkw mi;ksx ifjorZu
ds i’pkr~ gh fd;s tk ldsaxsA
leLr vkUrfjd lM+ds lfoZl jksM+ ij ,d fdyksehVj ds
vUrjky ij gh feysxh] rRi’pkr~ ;g lfoZl jksM+ jktekxZ@ ckbZikl
ij 2 fdyksehVj ls igys dksbZ lM+d ,d nwljs dks ugha dkVsxhA bl
izdkj ;g lqfuf’pr fd;k tk ldsxk fd jktekxZ@ ckbZikl ij
;krk;kr lqjf{kr ,oa leqfpr xfr ls fuckZ/k :i ls lapkfjr gks ldsaA
jktekxZ@ ckbZikl ds lkFk&lkFk os leLr Hkw mi;ksx vk ldsaxs tks
ifjf/k fu;a=.k {ks= esa vuqKs; gS rFkk Hkw mi;ksx tSls fd jktekxZ lsok
dsUnz xzkeh.k fodkl foHkkx }kjk LFkkfir rFkk isVªksy iEi] xzkeh.k
vkcknh dk foLrkj] eksVy] dqDdqV 'kkyk,a ,oa fjlksVZ ,oa QkeZ gkml]
d`f"k lsok dsUnz rFkk d`f"k vk/kkfjr y?kq
izkf/kdkjh
m|ksx Hkh l{ke
}kjk fu/kkZfjr ekin.M@ vuqeksfnr lsV cSd ds lkFk vk
ldsaxsA”
(Udaipur Master Plan 1997-2022 clause 4.1 y
page 34, clause 5.15 page 61)
(144 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
During the operative period of Udaipur Master Plan
1997-2022, the Plan has been revised and Udaipur
Master Plan 2011-2031 prepared under the provisions
of UIT Act has been notified vide notification dated
24.9.2013. The Peripheral Control Belt as provided for
under the Plan 1997-2022 has been done away with
and instead Green Area-1 and Green Area-2 have been
provided for in the following terms:
“5-6-2 xzhu {ks=&1
bl fo'ks"k {ks= esa unh] ukys] tyk'k; rFkk fiNkSYkk] Qrglkxj ,oa
mn;lkxj rkykc dk ty Hkjko {ks= gS tks iw.kZ:i ls fuekZ.k
fu"ks/k jgsxkA xzhu {ks=&1 ls vfHkizk; >hy ds Qqy Vsad ysoy {ks=
ls 100 ehVj rd dk vij&LVªhe dk {ks=] tks fd ekSds ij fjDr
d`f"k Hkwfe {ks=] ls gSA fiNkSyk ,oa Qrglkxj ds xzhu {ks=&1 ds
i'pkr ds {ks= esa jkT; ljdkj }kjk fnukad 10-12-1999 dks
vf/k?kksf"kr fu;fU=r fuekZ.k {ks= esa fnukad 22-05-2000 dks mDr
{ks= gsrq jkT; ljdkj }kjk Lohd`r Hkou fofu;e 2000 ds vuqlkj
Hkou fuekZ.k Lohd`fr vuqKs; gksxhA blds vykok jkT;
ljdkj
}kjk ;k ekuuh; U;k;ky;ksa }kjk fu/kkZfjr nwjh Hkh ekU;
gksxh ysfdu iwoZ esa l{ke Lohd`fr ls fd;s x;s fuekZ.kksa dks
lek;ksftr ekuk tkosxkA
lTtux< vH;kj.k ds pkjksa vksj 100 ehVj ;k ou foHkkx }kjk
fu/kkZfjr iV~Vh xzhu {ks=&1 ds vraxZr jgsxhA mDr {ks= fuekZ.k
fu"ks/k jgsxk ysfdu iwoZ esa l{ke Lohd`fr ls fd;s x;s fuekZ.kksa dks
lek;ksftr ekuk tkosxkA
Qrglkxj ds mRrj esa cM+h tkus okyh lM+d ij uhep ekrk
pkSjkgs ij fLFkr x<+h jko ukeh Hkwfe dk Hkw&mi;ksx jkT; Lrjh;
Hkw&mi;ksx ifjorZu lfefr cSBd fnukad 04-07-2006 esa okf.kfT;d
(145 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
¼gksVy½ iz;kstukFkZ Hkw&mi;ksx ifjorZu gks tkus ds dkj.k bls
Commitment ekurs gq, Hkw&mi;ksx ekufp= esa okf.kT;d
Hkw&mi;ksx ds vUrxZr n'kkZ;k x;k gSA ysfdu bl Hkw&mi;ksx ds
lEcU/k esa vfxze dk;Zokgh ekuuh; mPp U;k;ky; }kjk tkjh
vkns'kksa ds v/;/khu gksxhA
5-6-3 xzhu {ks=&2
bl fo'ks"k {ks= esa unh] ukys] tyk'k; ds xzhu {ks=&1 ls lVs gq;s
{ks= ls rkRi;Z gS ftlesa vYi ?kuRo ds mi;ksx tSls nqX/k 'kkyk]
Qyks|ku] ikS/k'kkyk] QkeZ gkml] fjlksVZl~] ,E;wtesUV ikdZ] okVj
ikdZ] fMtuhys.M bR;kfn fu;kstu ds ekin.Mksa dks /;ku esa j[krs
gq;s vuqKs; jgsxsA ,sls {ks=ksa esa Hkw&mi;ksx vuwKs; djrs le;
i;kZoj.k dks /;ku esa j[kk tkosA jktLo xzkeksa dk vkcknh {ks=
;Fkkor jgsxk ,oa fcUnq la[;k 4-3 ¼N½ ds vuqlkj vkcknh foLrkj
vuwKs; gksxkA bu >hyksa ds fy;s ,oa >hyksa ds vkl&ikl ds {ks=
esa] ekuuh; U;k;ky; ds }kjk tkjh vkns'k] iwoZ esa tkjh vuqeksnu]
Lohd`rh;k ,oa Hkw&:ikr.k bR;kfn ekU; jgsxsA bl {ks= ds fy,
ekuuh; U;k;ky;ksa }kjk le;&le; ij ikfjr fu.kZ; ekLVj Iyku
ds Hkkx ekusa tk;saxsA”
(Udaipur Master Plan 2011-2031 page 65-66)
KOTA MASTER PLAN
97. Kota
Master
Plan
2001-2023,
notified
vide
notification dated 15.4.05 while specifying the different
land uses to control the unwarranted development
during the operative of the Plan, provide for the
Peripheral Control Belt, the relevant clause 5.8 thereof,
reads as under:
“5-8 ifjf/k fu;U=.k iV~Vh
(146 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
uxj dh ifjf/k esa vokaNuh; fodkl ij fu;U=.k ds mn~ns'; ls
2023 rd uxjh;dj.k ;ksX; {ks= ds pkjksa vksj ifjf/k fu;U=.k iV~Vh
izLrkfor gSA bl {ks= esa vkus okyh Hkwfe dk mi;ksx d`f"k] ou
fodkl ,oa blds lgk;d fØ;kdykiksa ,oa lhfer [kuu vkfn ds
fy, fd;k tk ldsxkA blls ifjf/k fu;U=.k iV~Vh esa vkus okys
xzkeksa] tks fd uxjh;dj.k ;ksX; {ks= 2023 ds ckgj gSa] dk fodkl
fu;fU=r ,oa ;kstukc) gksxkA vU; Hkw mi;ksx tSls dh xzkeh.k
fodkl foHkkx }kjk LFkkfir jktekxZ lsok dsUnz] isVªksy iEi] xzke
vkcknh dk foLrkj] eksVy] dqDdqV 'kkyk,sa] fjlksVZ] QkeZ gkml] d`f"k
lsok dsUnz] ,E;wtesUV ikdZ] okVj ikdZ] bZaV HkV~Vs] pwuk HkV~Vs rFkk
d`f"k vk/kkfjr y/kq m|ksx Hkh fu/kkZfjr ekin.M@vuqeksfnr lSV cSd
ds lkFk vk ldsaxsA 'kgj esa fLFkr bZaV HkV~Vksa dks ;kstukc) :i ls
ifjf/k fu;U=.k {ks= esa mfpr LFky ij LFkkukUrfjr fd;k tkuk
izLrkfor gSA uxj lq/kkj U;kl dksVk }kjk vHksM+k rkykc ls cwWanh jksM+
dks feykus okyh lM+d ds nf{k.k esa QkeZ gkml uxj ;kstuk
fodflr dh xbZ gS] ftls ifjf/k fu;a=.k {ks= esa 'kkfey fd;k x;k
gSA lhost VªhVesaV IykaV gsrq ,-Mh-ch- izkstsDV ds vUrxZr xzke /kkdM+
[ksM+h ds lehi p;fur LFky dks Hkh ifjf/k fu;a=.k {ks= esa n'kkZ;k
x;k gSA”
( Kota Master Plan 2001-2023, page 102)
BIKANER MASTER PLAN
98. The Master Plan of Bikaner projecting the needs of
the town for 25 years with the base year being 1971
and
horizon
year
as
1996
was
notified
by
the
Government of Rajasthan under Section 7 of the UIT
Act on 31.3.1980. The notified urban area of Bikaner
under the Master Plan, 1996 was about 386 kms.
(147 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
encompassing
17
revenue
villages,
towns
of
Gangashahar and Bhimasar and the city of Bikaner. The
development programme under the Plan was intended
to be in two distinct ways, firstly, the development of
Bikaner Urbanisable Area and then the development of
Rural Settlements within the peripheral belt. The
provision with regard to peripheral control belt and
rural settlements, as incorporated in the Master Plan,
reads as under:
“The Notified Urban Area of Bikaner covers about
386 sq. kms. It includes 17 revenue villages,
Bikaner city and towns of Gangashahar and
Bhinasar.The development programme within the
Notified Urban Area would be in two distinct
ways, firstly the development of Bikaner
Urbanisable Area and secondly the development
of rural settlements falling within the peripheral
belt. The land within the peripheral belt shall be
used for agriculture and allied activities like
afforestation, poultry, dairy etc. Dairies now
located in or adjoining the developed areas shall
ultimately be moved to new sites to be located in
the peripheral control belt. Intensive plantation
work shall be undertaken within this belt towards
the south and south west. Such a shelter belt
shall help to arrest sand storms.
Selected villages lying within the Peripheral
control belt but outside the Urbanisable Area
shall have to be developed to strengthen rural
economy. These proposals shall envisage some
degree of control on the Use of land in this rural
belt. In the absence of any restrictions, people
are likely to build in the rural areas in an
indiscriminate manner. This would not only spoil
(148 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
the rural country-side but may also lead to
haphazard and sub-standard urban sprawl
outside the urbanisable limits. This shall defeat
the whole objective of compact and urbanised
urban development. A few villages, lying within
the peripheral control programme to improve the
economy of the rural settlements within the
area. Permissible uses within the Peripheral
Control Belt may be forestry, cultivation,
nurseries, dairies, orchards etc.”
(Bikaner Master Plan 1971-1996, page 67)
The Master Plan of Bikaner was revised with the base
year 2001 and horizon year 2023. The clause 4.08
whereof, which deals with the Peripheral Control Belt,
reads as under:
”4-08 ifjf/k fu;a=.k {ks= %&
fodflr {ks= vkSj vf/klwfpr uxjh; {ks= ds e/; fLFkr {ks=
ifjf/k fu;a=.k ds :i esa j[kk tk;sxkA bl {ks= dk Lo:i eq[; :i
ls xzkeh.k gh gksxk vkSj ;gkWa ij dsoy d`f"k ij vk/kkfjr tSls
taxykr] o`{kkjksi.k] Ms;jh bR;kfn dk;ksZ dh vuqefr nh tk,xhA vr%
bl gjh iV~Vh }kjk 'kgj dk vO;ofLFkr fodkl tks eq[;r% ckgjh
{ks=ksa esa gksrk gS] dks fu;af=r fd;k tk ldsxkA bl {ks= esa
jk"Vªh; ,oa jkT; ekxZ rFkk ckg~; lM+dksa ds fdukjs o`{kkjksi.k]
i;kZoj.k lq/kkj dk;ZØeksa ds vUrxZr fd;k tkuk izLrkfor gSA ”
(Bikaner Master Plan 2001-2023, clause 4.08,
page 47)
99. A bare look at
the plan proposal of ecological
zone incorporated in the Master Plan 2011 of Jaipur
(149 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
Region, makes it abundantly clear that the land forming
part of ecological zone was permissible to be put to use
for the restrictive purposes inasmuch as, green zone
delineated was accepted to act as lung space around
the urban area and it was specifically provided that the
delineated green zone may continue to remain so even
after plan period and ordinarily, was not intended to be
altered
in
subsequent
revision/
modification
or
preparation of new development plans. The provision
as aforesaid was incorporated noticing the fact that the
urban area which requires certain green lung spaces
around it during the stipulated Master Plan period does
not cease to be so after expiry of the Master Plan
period.
100. It is pertinent to note that the ecological zone in
the Master Plan 2011 was the area contiguous with the
areas on both the sides of NH 11 leading to Agra upto
Agra Railway Line form one contiguous green zone in
the Region
therefore,
which
it
was
has sensitive eco
specifically
system
observed
that
and
any
degradation or deterioration in the eco system is likely
to effect quality of life of the Region. In the Jaipur MDP
2025, the area of the ecological zone, which was shown
to be 481 Sq. Kms. in Master Plan 2011, has been
(150 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
increased to 894 Sq. Kms. however, the urbanisable
area stands increased to 1596 Sq. Kms. as against 391
Sq. Kms. covered under the Master Plan 2011. It is
pertinent to note that percentage wise, the urbanisable
area stands increased from 19.94% of the total land
utilization to 54.30%, but, the ecological area stands
increased from 24.55% to 30.40% only. That apart, as
noticed hereinabove, in the Master Development Plan
2025, the ecological zone bifurcated in two zones i.e.
G-1 & G-2. G-1 covers only 381 kms. which includes
Reserve Forest, Protected Forest, Hills, Drains, Rivers,
Water Body. G-2 has been further bifurcated in two
zones i.e. Buffer to G-1 and Ecological Area, which
cover 196 Sq. Kms. and 417 Kms. respectively. In any
case, the ecological zone as specified in the Master Plan
2011 or the Master Development Plan 2025, clearly
indicates that the ecological zone, which includes all
bio-diverse and incompatible use areas like reserve
forest, protected forest, flora and fauna area, wet
lands, flood prone areas, water recharges areas, water
bodies, heritage conservation areas, animal rescue
centres, water sheds, habitat of migratory birds,
national parks, sanctuaries, significant local areas etc.
is categorised as eco sensitive area to be kept open to
(151 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
protect environmentally sensitive land from urban
development and sprawl. Even the land forming part of
Ecological Zone (G2) is also not intended to be used for
the purpose other than low density restrictive purposes
specified. Similar is the position in respect of the Green
Area (G1 & G2) as provided under Udaipur Master Plan
2011-2031.
The
position
of
the
Green
Area
as
projected in the Draft Ajmer Master Development Plan
2013-2033 is also not different.
101.
As noticed hereinabove, in the Writ Petition
No.5645/08, the petitioner has questioned the action of
the respondents in permitting the change of user of the
land measuring 1222.93 hectares between Kho-Nagoria
to Goner Road, covered by the Master Development
Plan of Jaipur, 2011, from ecological zone to residential
and mixed land use, by way of zonal lay out plan of
Sector 34 and Sector 35. Strangely enough, while
defending the change of the land use permitted, the
respondents have sought to take the stand that it is not
possible for the JDA to acquire such a huge private land
for maintaining it as green belt and therefore, keeping
in view of the ground growing pressure on the land of
housing and the fact that the land is private khatedari
land and closed vicinity of Jaipur City, it would be
(152 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
difficult to ensure that housing colony do not develop
on this land. It is not understandable that if the land is
earmarked as green belt, why the JDA is required to
acquire the land so as to maintain it as green belt. If
the land is shown to be part of ecological zone, the
private owners of the land shall not be permitted to use
the land for raising constructions but, they are not
precluded from using the land while maintaining the
nature of the land use as specified under the Master
Development Plan.
102.
In Yashwant Sharma's case (supra), while dealin
with
the
issue
regarding
respondents'
allowing
indiscriminate urbanisation and exploitation of the
ecological zone, the court did not interfere with the
change of land use made by the State Government on
JDA giving the undertaking to develop the ecological
zone by setting apart 200 bighas of land for the said
purpose in lieu of the land taken out from the
demarcated use for ecological zone in the Master Plan
to rehabilitate slum dwellers. But, at the same time,
the court warned the JDA not to amend the Master Plan
casually in future unless and until, it is necessarily
warranted to modify the Master Development Plan, that
too, in the limited scope. Thus, ignoring the directions
(153 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
of this court, the change of the land use of such a huge
area forming part of ecological zone for residential and
mixed
user
by
the
respondents,
cannot
be
countenanced by this court.
103. As a matter of fact, the fundamental object of
providing ecological zone or green belt is to prevent
urban sprawl by keeping the land permanently open so
as to protect natural or semi natural environment;
improve air quality within the urban area and to ensure
the lung spaces for the inhabitants of the urban area.
In other words, the permanent openness is the most
important attribute of ecological zone/green belt and
for this reason, while designating the land use in such
area,
the
care
is
taken
that
it
remains
largely
undeveloped and only eco friendly development not
affecting the natural and healthful environment comes
up within the area. In the considered opinion of this
court, the green belt/ecological zone specified in the
Master Development Plan in furtherance of welfare of
the inhabitants of the area forms basic feature of the
Master Development Plan, which once established, is
not permissible to be altered even while undertaking
the revision of the Plan or the preparation of the new
Plan. Even the area which is shown in the various
(154 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
Master Plans as Green Zone/Area (G2) abutting G-1
developed as buffer to promote a continuum to G-1 is
permissible to be used for the activities other than
those specified only in exceptional circumstances in the
interest of the general public and not otherwise to
serve an individual interest.
104. In the matter of “Essar Oil Limited vs. Halar
Utkarsh
Samiti”,
(2004)2
SCC
392,
the
Hon'ble
Supreme Court while referring to Stockholm declaration
laying down the principle providing for the protection of
natural resources of the earth including air, water, land,
flora and fauna, observed:
“27. This, therefore, is the aim, namely, to
balance economic and social needs on the one
hand with environmental consideration on the
other. But in a sense all development is an
environmental threat. Indeed, the very existence
of humanity and the rapid increase in the
population together with consequential demands
to sustain the population has resulted in the
concreting of open lands, cutting down of forests,
the filling up lakes and pollution of water
resources and the very air which we breathe.
However, there need not necessarily be a
deadlock between development on the one hand
and the environment on the other. The objective
of all laws on environment should be to create
harmony between the two since neither one can
be sacrificed at the altar of the other.”
105.
In
Karnataka
Industrial
Areas
Development
Board's case (supra), the Hon'ble Supreme Court while
(155 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
emphasising on state obligation to protect the natural
resources and environment invoking the concept of
public trusteeship, observed:
“83. The concept of public trusteeship may be
accepted as a basic principle for the protection of
natural resources of the land and sea. The Public
Trust Doctrine (which, found its way in the ancient
Roman Empire) primarily rests on the principle
that certain resources like air, sea, water and the
forests have such a great importance to the
people as a whole that it would be wholly
unjustified to make them a subject of private
ownership. The said resources being a gift of
nature should be made freely available to
everyone irrespective of their status in life. The
doctrine enjoins upon the Government and its
instrumentalities to protect the resources for the
enjoyment of the general public.
....xxxxx....
87. The Public Trust Doctrine primarily rests on
the principle that certain resources like air, sea,
waters and the forests have such a great
importance to the people as a whole that it would
be wholly unjustified to make them a subject of
private ownership. The, said resources being a gift
of nature, they should be made freely available to
everyone irrespective of the status in life. The
doctrine enjoins upon the Government to protect
the resources for the enjoyment of the general
public rather than to permit their use for private
ownership or commercial purposes. According to
Professor Sax the Public Trust Doctrine imposes
the following restrictions on governmental
authority:
“Three types of restrictions on governmental
authority are often thought to be imposed by
the public trust: first; the property subject to
the trust must not only be used for a public
purpose, but it must be held available for use
by the general public; second, the property
may not be sold, even for a fair cash
(156 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
equivalent; and their the property must be
maintained for particular types of uses.”
(emphasis added)
106. In Intellectuals Forum, Tirupathi's case (supra),
the
Hon'ble
question
Supreme
regarding
Court
economic
while
growth
examining
the
vis-a-vis
the
environmental protection with reference to Article 48A
& 51A of the Constitution of India, observed:
“82. Article 48-A of the Constitution mandates
that the State shall endeavour to protect and
improve the environment to safeguard the forests
and wildlife of the country. Article 51-A of the
Constitution enjoins that it shall be the duty of
every citizen of India, inter alia, to protect and
improve national environment including forests,
lakes, rivers, wildlife and to have compassion for
living creatures. These two Articles are not only
fundamental in the governance of the country but
also it shall be the duty of the State to apply
these principles in making laws and further these
two articles are to be kept in mind in
understanding the scope and purport of the
fundamental rights guaranteed by the Constitution
including Article 14, 19 and 21 of the Constitution
and also the various laws enacted by the
Parliament and the State Legislature.
83. On the other hand, we cannot also shut our
eyes that shelter is one of the basic human needs
just next to food and clothing. Need for a national
housing and habitat policy emerges from the
growing requirements of shelter and related
infrastructure. These requirements are growing in
the context of rapid pace of urbanization,
increasing migration from rural to urban centres in
search of livelihood, mismatch between demand
and supply of sites and services at affordable cost
and inability of most new and poorer urban
settlers to access formal land markets in urban
areas due to high costs and their own lower
incomes, leading to a non-sustainable situation.
(157 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
This policy intends to promote sustainable
development of habitat in the country, with a view
to ensure equitable supply of land, shelter and
services at affordable prices.
84. The World has reached a level of growth in
the 21st Century as never before envisaged. While
the crisis of economic growth is still on, the key
question which often arises and the Courts are
asked to adjudicate upon is whether economic
growth
can
supersede
the
concern
for
environmental protection and whether sustainable
development which can be achieved only by way
of protecting the environment and conserving the
natural resources for the benefit of the humanity
and future generations could be ignored in the
garb of economic growth or compelling human
necessity. The growth and development process
are terms without any content, without an inkling
as to the substance of their end results. This
inevitably leaves us to the conception of growth
and development which sustains from one
generation to the next in order to secure “our
common future”. In pursuit of development, focus
has to be on sustainability of development and
policies towards that end have to be earnestly
formulated and sincerely observed. As Prof. Weiss
puts it, “conservation, however, always takes a
back seat in times of economic stress.” It is now
an accepted social principle that all human beings
have a fundamental right to a healthy
environment, commensurate with their well being,
coupled with a corresponding duty of ensuring
that resources are conserved and preserved in
such a way that present as well as the future
generations are aware of them equally.”
107. To sum up, whatever may be the compulsion for
the economical growth, the right of the citizens to a
healthy environment has to be protected and therefore,
in the garb of the planned development, the land falling
(158 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
within the eco sensitive zone/ ecological zone/green
belt cannot be permitted to be unscrupulously put to
use for the purposes other than those specified else,
the basic goal underlying the Master Development Plan,
the welfare of the people in ensuring quality of life by
creating healthful environment for the present and
future generations, shall stand frustrated.
108. Coming to the peripheral control belt as provided
under Jodhpur Master Plan 2001-2023, Ajmer Master
Plans 1971-1991 and 2023, Kota Master Plan 20012023, Udaipur Master Plan 1997-2022 and Bikaner
Master Plan-2001-2023, it is
to be noticed that
peripheral control belt around the cities
so
as
to
unplanned
prevent
and
control
development
are provided
unauthorised
around
the
and
existing
urbanisable area of the city and therefore, the land
falling within the peripheral control belt is permissible
to be used only for restrictive low density development
purposes specified. It is true that the peripheral control
belt as defined under the different Master Plans does
not indicate that it will continue to remain so even after
the plan period but then, certainly, during the operative
period
of
the
Plans,
the
land
falling
within
the
peripheral control belt is not permissible to be used for
(159 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
the purposes other than those specified and ordinarily,
cannot be put to any other use.
109. To appreciate the purpose of providing peripheral
control belt around the urban area of the city and the
issue with regard to non permissibility of the use of the
land falling within the peripheral control belt for the
purposes
other
than
those
specified,
during
the
operative period of the plan or subsequent revision
thereof or preparation of the new plan, it would be
appropriate to refer to the datas of the land use
planning projected under the Master Plans of different
cities notified from time to time.
110.
It is pertinent to note that at the time of
preparation of the Jodhpur Master Plan 2001-2023,
under the existing land use plan, the urbanised area
was shown to be 26,880 acres out of which 16,326
acres land was covered by developed area and the
remaining land was covered by defence area, open
area, forest, hills and water bodies. Further, the area
covered by the park and open space was only 1133
acres which comes to 6.94% of the developed area. It
is pertinent to note that in the Jodhpur Master Plan
2023, the total urbanised area included was 2,48,500
(160 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
acres out of which, 69,300 acres land was proposed to
be covered by developed area and 9916 acres land was
shown to be covered by government reserved area,
forest, hills and water bodies. Significantly, the open
space of 4120 acres shown in the Master Plan 1991 was
deleted in the land use plan of Master Plan 2001-2023.
But out of the total urbanised area, 2,48,500 acres,
1,69,284 acres was shown to be covered by peripheral
control belt. Suffice it to say that out of the total urban
area covered by the Master Plan about 68.12% land
was proposed to be covered by peripheral control belt.
111.
Likewise, as per the land use as provided for in
Ajmer Master Plan 1971-1991, out of notified urban
area 60,800 acre, the area of peripheral control belt
was provided as 44,570 acre which under seven
Planning Districts notified has been referred to as
'Green Belt District'. In Ajmer Master Plan 2001-2023,
out of total notified urban area 92,754 acre, 59,467
acre area has been shown as peripheral control belt.
112.
In the Udaipur Master Plan 1997-2022, out of
86,710 acre land notified as urban area, 59,530 acre
land was shown as peripheral control belt.
(161 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
113. In the Kota Master Plan 2001-2023, out of total
urban area 1,25,000 acre, the land measuring 86,491
acre is shown to be within the peripheral control belt.
114. In Bikaner Master Plan 2001-2023,
the urban
area was notified as 1,12,705 acre and out of that
38,758 was shown as urbanisable area and the
remaining 73,947 acre area has been projected as
peripheral control belt.
115. A bare look at the proportion of the area included
within the peripheral control belt vis-a-vis the total
urban area notified under the Master Plans of various
cities
promulgated
from
time
to
time
makes
it
abundantly clear that the area included within the
peripheral control belt to be used for the restricted
purposes during the operative period of the plan is
much higher than the urbanisable area included within
the land use plan. In the considered opinion of this
court,
the
ratio
of
the
urbanised
area
and
the
peripheral control belt by itself is indicative of the fact
that the peripheral control belt does not have attribute
of openness for all time to come and thus, the learned
AG was justified in contending that the peripheral
control belt as provided for in the Master Plan was
(162 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
never intended to be kept open and unaltered for all
times to come. In this view of the matter, the
contention of learned amicus curiae that the restrictive
land use of the peripheral control belt in the Master
Plans of various cities must be ceased and should not
be permitted to be used for
other
development
purposes on the revision of the Master Plans, cannot be
countenanced by this court.
116. Coming to the use of the land falling within the
peripheral control belt for the purposes other than
those specified, during the operative period of the
Master Plan of the city, as discussed hereinabove, the
basic purpose of the constitution of statutory authority
to undertake the urban development planning is to
promote healthy growth and development of the city so
as to achieve the ultimate object of promotion and
enhancement
of
quality
Undoubtedly,
while
of
notifying
life
for
the
the
urban
citizens.
area
and
undertaking the development in the urbanisable area,
as per the land use plan depicted in the Master
Development Plan, the peripheral control belt has been
provided
so
surrounding
as
areas
to
control
the
inasmuch
as,
development
unplanned
in
and
unauthorised development in the peripheral control belt
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is bound to affect the quality of life of the inhabitants in
the urbanised and urbanisable area. In this view of the
matter, this court is firmly of the opinion that during
the operative period of the Master Plan, the land use in
the peripheral control belt for the purposes other than
those specified generally should not be permitted. But
if the change of the land use in the peripheral control
belt is considered to be inevitable, the subsequent
alteration or modification of the plan must subserve the
legislative intent of planned development for promotion
and enhancement of the quality of life of the citizens
and therefore, any isolated change in the land use of
the land falling within the peripheral control belt
without inclusion thereof in the land use plan of
urbanisable area shown in the Master Development
Plan, the development wherein has to be further
regulated by Zonal Development Plans
notified, in
accordance with the procedure laid down, should not be
permitted. That apart, any change in the land use plan
in the peripheral control belt during the operative
period of the plan must be in the larger public interest
and not to serve the interest of individuals.
117. There is yet another aspect of the matter, which
requires consideration of this court. Indisputably, as the
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city grows, adequate open spaces, green spaces such
as parks, woodlands and rolling countrysides accessible
to all the inhabitants must be reserved and preserved
which by all means would contribute in large measure
to quality of life, the citizens are entitled for and
therefore, the population growth and migration to the
city may necessitate modification in the planning but
then, under the pressure of population growth and
migration, the land use plan cannot be permitted to be
changed in such a manner that it converts the city into
just a cluster of buildings frustrating the very object of
the
planned
development
undertaken
under
the
statutory scheme so as to ensure healthy and peaceful
environment for the citizens. It needs to be emphasised
that whenever modification of the Master Plan is
undertaken so as to include the land forming part of
the peripheral control belt within the scheme of urban
development, the authorities entrusted with the duty to
ensure the quality of life for the citizen through planned
development, are under an obligation to take into
consideration the requirement of the lung spaces for
the existing population of the city and reserve the
adequate land for that purpose in the close vicinity
inasmuch as, if the urbanised area in the city go on
(165 of 257)
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expanding and the further inclusion of the surrounding
villages is made within the urbanisable area, the lung
spaces required for existing population in the close
vicinity cannot be done away with or shifted to a
remote place and therefore, whenever the modification,
alteration or revision of the Master Development Plan is
undertaken, the green spaces required for the existing
population must be reserved by providing buffer zone.
To put in other words, any development activity within
the peripheral control belt for the purposes other than
those specified under the peripheral control belt should
not be permitted without ensuring the fulfillment of
requirement of open spaces/green spaces for the
existing population settled in different zones of the city.
The
minimum
requirement
of
the
green
area/open space/parks/recreational area under
the Master Development Plan, diversion of the
land use thereof and restoration of the original
user thereof (Question no.3 & 4)
118. Indubitably, the purpose of Master Development
Plan is to set down long term perspective plan for
guiding the sustainable planned development of the
city. One of the most important aspect of the planned
development pertains to protection and preservation of
(166 of 257)
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environment
by
reservation
of
open
spaces
for
ventilation, recreation, parks and playground for the
general public so as to achieve the ultimate objective of
the planned development i.e. a quality of life for the
citizens. As noticed hereinabove, the legislative intent
to provide for clear policy regarding preservation and
reservation of the open spaces, gardens, recreation
centres, zoological gardens, nature reserves, health
resorts etc. in the Master Development Plan and Zonal
Development Plan, is explicitly mandated under the
provisions of Sections 16, 21 and 22, which deal with
the functions of the Authority, the preparation of Master
Development
Plan
and
Zonal
Development
Plan
respectively. As a matter of fact, keeping in view the
increasing level of pollution in the cities in order to
ensure adequate 'lung spaces' for the citizens, it is the
need
of
time
that
besides
preservation
of
the
open/green spaces already available, more and more
open/green spaces are created within the city. Thus,
whatever
may
be
compelling
circumstances,
the
immigration of the citizens from the rural area to the
cities or the growth of population within the city, while
undertaking the development planning, the authorities
are under an obligation to ensure the minimum
(167 of 257)
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requirement of the green space per city dweller.
Obviously, the requirement of the green space has to
be taken into account by the authorities not only while
preparing the Master Development Plan but also while
undertaking the implementation of the various schemes
under the Zonal Development Plan inasmuch as,
besides the general requirement of the open/green
spaces for the inhabitants of the city, the availability of
adequate open/green spaces for the residents settled in
the different zones, has to be there within the scheme
areas.
119.
It
need
to
be
emphasised
that
the
city's
requirement for green space within the urban area and
opportunities to provide it will continue to germinate
with the communities' development and redevelopment
and therefore, the lands for open space, green space,
playground, recreational area etc. to fulfill the need of
the
communities
must
be
clearly
identified
and
characterised in the Master Development Plan and
Zonal Development Plan and must be protected during
the operative period of the Plan and even thereafter
while undertaking revision thereof and the same cannot
be permitted to be used for the purposes other than
those identified.
(168 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
120. In Bangalore Medical Trust's case (supra), the
Hon'ble Supreme Court while examining the question
regarding diversion of the open space earmarked for
park for the purpose of construction of the hotel for a
trust, observed :
“23. The scheme is meant for the reasonable
accomplishment of the statutory object is to
promote the orderly development of the city of
Bangalore and adjoining areas and to preserve
open spaces by reserving public parks and
playgrounds with a view to protecting the
residents from the ill-effects of urbanisation. It
means for the development of the city in a way
that maximum space is provided for the benefit of
the public at large for recreation, enjoyment,
'ventilation' and fresh air. This is clear from the
Act itself as it originally stood. The amendments
inserting Section 16(1)(d), 38-A and other
provisions are clarificatory of this object. The very
purpose of BDA, as a statutory authority, is to
promote the healthy growth and development of
the city of Bangalore and the areas adjacent
thereto. The legislative intent has always been the
promotion and enhancement of the quality of life
by preservation of the character and desirable
aesthetic features of the city. The subsequent
amendments are not a deviation from or
alteration of the original legislative intent, but only
an elucidation or affirmation of the same.
24. Protection of the environment, open spaces
for recreation and fresh air, playgrounds for
children, promenade for the residents, and other
conveniences or amenities are matters of great
public concern and of vital interest to be taken
care of in a development scheme. It is that public
interest which is sought to be promoted by the Act
by establishing the BDA. The public interest in the
reservation and preservation of open spaces for
parks and playgrounds cannot be sacrificed by
leasing or selling such sites to private persons for
conversion to some other user. Any such act
(169 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
would be contrary to the legislative intent and
inconsistent with the statutory requirements.
Furthermore,it would be in direct conflict with the
constitutional mandate to ensure that any State
action is inspired by the basic values of individual
freedom and dignity and addressed to the
attainment of a quality of the which makes the
guaranteed rights a reality for all the citizens.
25. Reservation of open spaces for parks and
playgrounds is universally recognised as a
legitimate exercise of statutory power rationally
related to the protection of the residents of the
locality from the ill-effects of urbanisation.”
(emphasis added)
121.
In Virendra Gaur's case (supra), the Hon'ble
Supreme Court while emphasising the obligation of the
local authority to maintain and protect environment
man made as well as natural with reference to the
Stockholm Declaration of United Nations on Human
Environment 1972 and Article 47, 48A and 51A(g) of
the Constitution of India, observed:
“5. Envirnoment is a polycentric and multifaceted
problem
affecting
the
human
existence.
Environmental pollution causes bodily disabilities,
leading to non-functioning of the vital organs of
the body. Noise and pollution are two of the
greatest offenders; the later affects air, water,
natural growth and health of the people.
Environmental pollution affects, thereby, the
health of general public. The Stockholm
Declaration of United Nations on Human
Environment, 1972, reads its Principle No.1, inter
alia, thus:
“Man has the fundamental right of freedom,
equality and adequate conditions of life. In
an environment of equality that permits a life
of dignity and well-being and he bears a
(170 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
solemn responsibility to protect and improve
the environment for present and future
generations.”
6. The Declaration, therefore, affirms both
aspects of environment,
the natural and the
man-made and the protection is essential to his
well-being and to the enjoyment of basic human
rights, i.e. the right to life itself. The right to have
living atmosphere congenial to human existence
is a right to life. The Declaration, therefore, says
that “in the developing countries, most of the
environmental
problems
are
caused
by
underdevelopment”. The Declaration suggests
recourse to safe actions with prudent care for
ecological balance. “It is necessary to avoid
massive and irreversible harm to the earthly
environment and strive for achieving a better life
for the present generation and posterity in an
environment more in keeping with their needs
and hopes.” The affirmative declaration in
Principle No.1 (supra) enjoins the Municipal States
to solve environmental problems in the broadest
human context and not as mere problems to
conserve the nature for its own sake.”
7. Article 48-A in Part IV (Directive Principles)
brought by the Constitution 42nd Amendment Act,
1976, enjoins that “the State shall endeavour to
protect and improve the environment and to
safeguard the forests and wild life of the country”.
Article 47 further imposes the duty on the State
to improve public health as its primary duty.
Article 51-A(g) imposes “a fundamental duty” on
every citizen of India to “protect and improve the
natural environment including forests, lakes,
rivers and the wild life and to have compassion for
living creatures”. The word “environment” is of
broad spectrum which brings within its ambit
“hygienic atmosphere and ecological balance”. It
is, therefore, not only the duty of the State but
also the duty of every citizen to maintain hygienic
environment. The State, in particular has duty in
that behalf and to shed its extravagant unbridled
hygienic environment. Article 21 protects right to
life as a fundamental right. Enjoyment of life and
its attainment including their right to life with
human dignity encompasses within its ambit, the
(171 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
protection and preservation of environment,
ecological balance free from pollution of air and
water, sanitation without which life cannot be
enjoyed. Any contra acts or actions would cause
environmental
pollution.
Environmental,
ecological, air, water, pollution, etc. should be
regarded as amounting to violation of Article 21.
Therefore, hygienic environment is an integral
facet of right to healthy life and it would be
impossible to live with human dignity without a
humane and healthy environment. Environmental
protection, therefore, has now become a matter
of grave concern for human existence. Promoting
environmental protection implies maintenance of
the environment as a whole comprising the manmade and the natural environment. Therefore,
there is a constitutional imperative on the State
Government and the municipalities, not only to
ensure and safeguard proper environment but
also an imperative duty to take adequate
measures to promote, protect and improve both
the man-made and the natural environment.”
8. Section 203 of the Act enjoins the
Municipality to frame the Scheme providing
environment and sanitary amenities and obtain
sanction from the competent authority to provide,
preserve and protect parks, open lands,
sanitation, roads, sewage, etc. to maintain
ecological balance with hygienic atmosphere not
only to the present residents in the locality but
also in the future generation. The lands vested in
Section 61(c) of the Act should be used for the
purposes envisaged therein. We do not agree with
the appellants that for non-user of open land by
the Municipality for more than two decades, the
land stood divested from the Municipality and
vested in them. Yet the Municipality has to use
the land for the purposes envisaged in the
Scheme read with those found in Section 61
unless avoidable compelling public purpose
require change of user. Take a case where in the
zonal plan certain land is marked out and
reserved for park or recreational purpose. It
cannot be acquired or allotted for building
purpose though housing, it is a public purpose.
(172 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
11. It is seen that the open lands, vested in the
Municipality, were meant for the public amenity to
the residents of the locality to maintain ecology,
sanitation, recreation, playground and ventilation
purposes. The buildings directed to be constructed
necessarily affect the health and the environment
adversely, sanitation and other effects on the
residents in the locality. Therefore, the order
passed by the Government and the action taken
pursuant thereto by the Municipality would clearly
defeat the purpose of the scheme. Shri D.V.
Sehgal, learned Senior Counsel, again contended
that two decades have passed by and that,
therefore, the Municipality is entitled to use the
land for any purpose. We are unable to accept the
self-destructive argument to put a premium on
inaction. The land having been taken from the
citizens for a public purpose, the Municipality is
required to use the land for the protection or
preservation of hygienic conditions of the local
residents in particular and the people in general
and not for any other purpose. Equally acceptance
of the argument of Shri V.C.Mahajan encourages
pre-emptive action and conduct, deliberately
chartered out to frustrate the proceedings and to
make the result fait accompli on the touchstone of
prospective operation of our order.”
(emphasis added)
122.
In Balinder Bachan Singh's case (supra), the
Hon'ble Supreme Court emphasised that the green
spaces and green belts have to be provided in every
locality to provide the lung space to the residents of the
locality. The court observed:
“17. For every locality green spaces and green
belts have to be provided to provide lung space to
the residents of the locality. A provision for green
park was made by the Municipal Corporation
keeping in view the minimum requirement to
provide open/green space to the residents of the
(173 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
locality. Rajinder Kaur, mother of the plaintiffrespondents herself had submitted a layout plan
which comprised the present suit land. She had
herself agreed to leave 25 per cent of the area
under the Scheme to be used by the inhabitants
of the locality for common purposes including the
open space area which is in dispute. The
documentary evidence which has come on record
in the form of the original Scheme as well as
documents Exts. D-1 to D-38 and the report
submitted
by
the
Deputy
Commissioner
conclusively shows that the suit land measuring
3.16 kanals was left in the Scheme to be used as
open space for the use of the residents of the
locality.” (emphasis added)
123. In Machavarapu Srinivasa Rao's case (supra),
while considering the legality of the permission granted
by the Urban Development Authority for construction of
the temple at the site of which land use was shown as
recreational in Zonal Development Plan approved by
the State Government, the Hon'ble Supreme Court
held:
“14. An analysis of the above-noted provisions
shows that once the Master Plan or the Zonal
Development Plan is approved by the State
Government, no one including the State
Government/Development Authority can use
land for any purpose other than the one
specified therein. There is no provision in the
Act under which the Development Authority can
sanction construction of a building etc. or use of
land for a purpose other than the one specified
in the Master Plan/Zonal Development Plan. The
power vested in the Development Authority to
make modification in the development plan is
also not unlimited. It cannot make important
(174 of 257)
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alterations in the character of the plan. Such
modification can be made only by the State
Government and that too after following the
procedure prescribed under Section 12(3).”
124.
In Manohar Joshi's case (supra), the Hon'ble
Supreme Court while emphasising the reservation of
the space for public amenities including playgrounds
and parks, observed:
“208. As we have seen, the MRTP Act give a
place of prominence to the spaces meant for
public amenities. An appropriately planned city
requires good roads, parks, playgrounds,
markets, primary and secondary schools, clinics,
dispensaries and hospitals and sewerage
facilities amongst other public amenities which
are essential for a good civic life. If all the
spaces in the cities are covered only by the
construction for residential houses, the cities will
become concrete jungles which is what they
have started becoming. That is how there is
need to protect the spaces meant for public
amenities which cannot be sacrificed for the
greed of a few landowners and builders to make
more money on the ground of creating large
number of houses. The MRTP Act does give
importance to the spaces reserved for public
amenities, and makes the deletion thereof
difficult after the planning process is gone
through, and the plan is finalised. Similar are
the provisions in different State Acts.”
(emphasis added)
125.
In Sushanta Tagore's case (supra), the Hon'ble
Supreme Court while dealing with the issue relating to
protection and preservation of environmental ambience
of Visva-Bharti University, Shanti Niketan, observed:
(175 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
“33.
It may be true that the development of
a town is the job of the Town Planning Authority
but the same should conform to the
requirements of law. Development must be
sustainable in nature. A land use plan should be
prepared not only having regard to the
provisions contained in the 1979 Act and the
Rules and Regulations framed thereunder but
also the provisions of other statutes enacted
therefor and in particular those for protection
and preservation of ecology and environment.”
126. Keeping in view the authoritative pronouncements
of the Apex Court as aforesaid, the issue that the land
specifically
earmarked
as
open
spaces,
common
facilities, parks, playgrounds and recreation grounds
etc.
in
the
Master
Development
Plan
or
Zonal
Development Plan, cannot be diverted to the use other
than those specified, does not require further dilation.
In the considered opinion of this court, besides ecosensitive
zone/ecological
zone/green
area,
the
reservation and preservation of the land as green cover
i.e. parks, open spaces, playgrounds etc. provided for
protecting the residents of the city from ill-effects of
urbanisation
and
to
ensure
healthful
environment
certainly forms part of basic character of the Master
Development Plan and Zonal Development Plan and
therefore, the land use specified for the said purpose
cannot be permitted to be altered to subserve an
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individual interest as against the community interest in
preserving the same.
127.
Coming to the facts brought on record in these
PILs regarding diversion of the lands earmarked in the
Master Development Plan as open space, playground,
parks, recreation area etc. by the various authorities to
other uses, it is to be noticed that the factum of
diversion
of
the
land
earmarked
for
the
public
amenities to other use is not even disputed on behalf of
the respondents. As a matter
of fact, the only
contention of the respondents defending the change of
user of the land for the purposes other than those
specified, is that the diversion permitted is negligible,
which keeping in view the increase in population and
the change in the pattern of urban development, to
meet the need of the time, could not have been
avoided. The factum of diversion of the user of the land
earmarked
as
open
spaces,
parks,
playgrounds,
recreation area, plantation belt etc. in the Master Plans
of the major cities, on the applications made by the
individuals
for
other
purposes
i.e.
residential,
commercial and industrial etc. stands fortified from the
written submissions made by the respondents pursuant
(177 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
to the directions issued by this court vide order dated
25.4.06 and thereafter.
128.
It is to be noticed that in Writ Petition
No.5907/08, filed by a voluntary organisation, the
details of as many as 268 conversion permitted
including the conversion of the land earmarked for the
purposes
of
playgrounds,
green
belt,
park,
recreational
areas
ecological
to
zone,
residential,
commercial, industrial and institutional purposes have
been set out in the Schedule A annexed with the writ
petition. The factum of conversion of the land as
alleged is not disputed by the respondent, however, the
same is sought to be defended taking the stand that
the modification has been permitted by the State
Government in accordance with the provisions of
Section 25 of the Act.
129.
power
As discussed in the earlier part of the order, the
conferred
under
the
statute
permitting
modification/alteration of the land use during the
operative period of the Plan and thereafter, at the time
of revision thereof, is not absolute and it is directly
linked with the basic objective of the enactment i.e. the
planned development of the city covered by the Master
(178 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
Development Plan. Thus, the authority in the garb of
the exercise of the power conferred under the statute,
cannot modify the land use earmarked for the specified
purposes as aforesaid at its whims and fancy rather,
the power conferred has to be exercised in fair and
reasonable manner, in furtherance of the basic object of
the enactment i.e. planned development in most
efficient manner and thus, obviously, to protect the
right of the residents to have healthful environment
and to save them from ill-effect of urbanisation. To put
it
strictly,
unless
the
diversion
of
user
of
such
earmarked land under the Master Development Plan or
Zonal Development Plan as sought for, is so compelling
that it even outweighs the right of the citizens to have
the healthful environment and enjoy the quality of life
assured,
130.
no
such
diversion
should
be
permitted.
Coming to the land earmarked for common
facilities, parks, open spaces, recreational area etc. in
the colonies development by local authority or by
private developers with the prior approval of the local
authority, it cannot be disputed that whenever a colony
is developed taking into consideration all the relevant
aspects
i.e.
including the population
density, the
requirement of open spaces, parks etc. so as to ensure
(179 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
the comfort and the quality of life for the inhabitants to
be settled in the colony. Once a colony is developed, a
person settling there after purchasing the land acquires
right to live in an atmosphere congenial to human
existence as projected under the lay out plan approved
and therefore, when the land is earmarked in a colony
developed by the local authority or the private coloniser
as open space, playground, park or for recreational
purpose, cannot be put to any other use and certainly
even a private coloniser cannot claim any right to use
such land for any other purpose. As a matter of fact, it
is the duty of the State to take all appropriate
measures to maintain healthful environment in the
colony
developed
and
therefore,
the
land
use
earmarked in the lay out plan of the colony for the
purpose of open spaces, parks etc. cannot be permitted
to
be
131.
used
even
for
other
public
purposes.
As noticed hereinabove, in Balinder Bachhan
Singh's case (supra), the Hon'ble Supreme Court has
emphasised that for every locality,
green spaces and
green belts have to be provided to provide lung space
to the residents of the locality. The Court further
specifically held therein:
(180 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
“18.
...xxx.... It is well known and judicial
notice can be taken of the fact that residential
plots sell at a much higher price than the
agriculture land. To sell the land as plots, a part
of the land has to be left to provide for common
purposes such as roads, community centre,
schools and parks. Having taken advantage of
selling the plots in a developed colony and
charging a higher price, which were purchased
by the inhabitants with the understanding that
civic amenities including the park were wellprovided-for, the plaintiff-respondents cannot be
permitted to turn around to claim the land left in
the Scheme for being used as a park as their
personal property.” (emphasis added)
132.
Thus, the illegality in permitting the change of
the land use of the land earmarked for playgrounds,
parks and other public amenities cannot be permitted
to be perpetuated and the appropriate steps deserves
to be taken by the State to restore the user of such
land illegally diverted to use for other purposes.
The permissibility
of the change of the user of
the land earmarked in the scheme under the
Master
Development
Plan
for
commercial/
residential/institutional/industrial etc. during the
currency of the Master Development Plan or at
the time of revision thereof (Question No.5)
133.
Undoubtedly, the Master Development Plan and
Zonal Development Plan are prepared taking into
consideration all the relevant aspects at the initial stage
including the present requirement and future growth,
(181 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
the development and preservation of the character and
resources of the city, the specific areas of concern and
overall
interest
of
the
community.
A
Master
Development Plan finally approved needs to be a
comprehensive and self explanatory document.
134.
It goes without saying that land uses in the
Master Development Plan and Zonal Development Plan
are specified inasmuch as, different land uses have
their own requirement and inter mingling thereof is
bound to lead to a chaos adversely affecting the quality
of life assured to the citizens by way of planned
development projected under the plans. For example,
when a particular area is earmarked in the Master
Development Plan and Zonal Development Plan as
residential area and accordingly, a residential colony is
developed
commercial
therein,
activity
there
should
is
no
be
reason
permitted
why
in
a
the
residential colony developed by changing the land use
to subserve the individual interest sacrificing the
interest of the community, who had chosen to settle in
exclusive residential colony with the hope that after
hectic activities of the day, they will be able to steal a
few moments of solace at their abode of joy.
(182 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
135. It is not that in the residential colony, there
cannot be any commercial area, mini markets or other
facilities
area
but
development
then,
and
while
preparing
undertaking
the
the
for
plan
implementation, all such areas are required to be
distinctly marked in the plan of the colony to come up
and
thereafter,
the
land
use
within
the
colony
developed needs to be ceased. As observed by the
Hon'ble
Supreme
Court
in
Manohar
Joshi's
case
(supra), that once the plan is formulated, one has to
implement it adhering to it strictly and it is only in a
rarest of the rare case, the departure therefrom is
permissible.
136. There is yet another aspect of the matter. Why
the change of land use in a particular area earmarked
should not be generally permitted. Whenever a plan is
prepared,
all
the
infrastructure
facilities
such
as
provision for drainage, electricity, lay out of the roads
etc., required according to the population density to be
settled within the area, are also worked out and
planned accordingly. To say the least, by permitting
mixed use in exclusive residential colony at the later
stage in deviation of the Plan, the residents of the area
who have acted upon an assurance for a definite quality
(183 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
of life projected under the housing scheme in the
Master Development Plan or Zonal Development Plan
cannot be made to suffer the life of discomfort as a
consequence of unplanned development for no fault on
their part.
137.
In R.K.Mittal's case (supra), where the question
with regard to ambit and scope of the power of the
Noida Development Authority to permit users other
than residential, in the sector specifically marked for
residential use in the Master Plan of New Okhla
Industrial Development Area, the Hon'ble Supreme
Court while considering the various aspects of the town
planning
with
reference
to
the
relevant
statute,
emphasised that when a Master Plan is to be amended,
the entire prescribed procedure must be followed and
the exercise of the power should be only in consonance
with settled norms without going beyond the original
power of the development authority to make such plan
in accordance with the provisions of the Act. The court
observed that where the requisite prescribed procedure
is followed, still the discretion should be exercised
sparingly for achieving the object and not to completely
vary or destruct the purpose for which the sector has
been earmarked. The Hon'ble Supreme Court while
(184 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
discussing the regulatory functions being discharged by
the Development Authority regarding the exercise of
the discretion to change designate user of a site under
the Master Plan, observed:
“47. All the above judgments clearly show that it
is not merely at the discretion of the Development
Authority concerned to designate of a site and then
alter the same without following due process of
law. Even where such an exercise is required to be
undertaken by the Development Authority, there
also it is expected of the Development Authority to
act for the betterment of the public and strictly in
accordance with the plans and the statutory
provisions. It cannot take recourse to its powers
and use its discretion contrary to such provisions
and that too, to frustrate the very object of the Act.
Exercise of power ought not to be destructive of
the provisions of the Act and the plans having the
force of law. We would hasten to add that even
where the requisite prescribed procedure is
followed, still the discretion should be exercised
sparingly for achieving the object of the statute
and not to completely vary or destruct the purpose
for which the sector has been earmarked.
.....xxxxxx.....
49. The Development Authority is inter alia
performing regulatory functions. There has been
imposition of statutory duties on the power of this
regulatory
exercising
specified
regulatory
functions. Such duties and activities should be
carried out in a way which is transparent,
accountable, proportionate and consistent. It
should target those cases in which action is called
for and the same be exercised free of arbitrariness.
The Development Authority is vested with drastic
regulatory
powers
to
investigate,
make
regulations, impute fault and even to impose
penalties of a grave nature to an extent of
cancelling
the
lease.
The
principles
of
administrative justice squarely apply to such
functioning and are subject to judicial review. The
(185 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
Development
Authority,
therefore,
cannot
transgress its power as stipulated in law and act in
a discriminatory manner. The Development
Authority should always be reluctant to mould the
statutory provisions for individuals, or even the
public convenience as this would bring an inbuilt
element of arbitrariness into the action of the
authorities. Permitting mixed user, where the
Master Plan does not so provide, would be glaring
example of this kind.
....xxxx.....
55. It is settled position of law that no authority
can exercise the power vested in it, contrary to
law. In the present case, there appears to be no
proper data collected or study carried out by the
Development Authority even for mooting such a
proposal, much less amending the Plan or the
Regulations. It is a mater of regret that the
Development Authority is dealing with such serious
matters in such a casual manner. Either way, this
certainly affected the rights of the parties
adversely. It is not only the rights of individuals
which are to be examined by the authorities
concerned, but also the effect of such amendment
on the residential sector as a whole which is one of
the relevant factors to be considered.
....xxxxx...
59. All the cases where banks, nursing homes or
any commercial activity is being carried on,
particularly like the appellants' case, where a bank
and company are running their offices in the
residential sectors would amount to change of
user and thus be impermissible. The officers of
the Development Authority should refrain from
carving out exceptions to the implementation of
the Master Plan and the Regulations in force, that
too without the authority of law. For taking up any
exercise for change of user or such similar
conditions,
amendment
to
the
relevant
Regulations, Master Plan and if needed, the
provisions of the Act, is a condition precedent. It
should be ensured that such exercise would
further the cause and object of the Act and would
not be destructive to the scheme of the
development. We have no hesitation in our minds
(186 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
in holding that no such jurisdiction or authority
vests in the officers of the Development Authority
to permit change of users in its discretion and in
violation of the law in force.
.....xxx.....xxxxxx.
68. The Master Plan and the zonal plan specify
the user as residential and therefore these plots
cannot be used for any other purpose. The plans
have a binding effect in law. If the scheme/master
plan is being nullified by arbitrary acts and in
excess in derogation of the power of the
Development Authority under law, the Court will
intervene and would direct such authorities to take
appropriate action and wherever necessary even
quash the orders of the public authorities.
.....xxxxx.......
72. From the above dictum of this Court, it is
clear that environmental impact, convenience of
the residents and ecological impact are relevant
considerations for the courts while deciding such
an issue. The law imposes an obligation upon the
Development Authority to strictly adhere to the
plan, regulations and the provisions of the Act.
Thus, it cannot ignore its fundamental duty by
doing acts impermissible in law. There is not even
an iota of reason stated in the affidavits filed on
behalf of the Development Authority as to why the
public notice had been issued without amending
the relevant provisions that too without following
the procedure prescribed under the law.
73. The concept of public accountability and
performance of public duties in accordance with
law and for the larger public good are applicable
to the statutory bodies as well as to the
authorities functioning therein. We find no
justification, whatsoever,for the respondents to
act arbitrarily in treating equals who are similarly
placed as unequals. This is also no justification for
the Development Authority to issue a public
notice in the fashion in which it has done. A few
officers of the Development Authority cannot
collectively act in violation of the law and
frustrate the very object and purpose of the
(187 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
Master Plan in force,
provisions of the Act.”
the
Regulations
and
(emphasis added)
138.
In view of the discussion above, we are firmly of
the opinion that the defined land uses in the Master
Development Plan form part of basic character of the
plan and cannot be permitted to be altered at the
whims and fancy of the JDA or other local authorities so
as to serve the individual interest and thus, frustrating
the legislative intent of planned development, sought to
be
materialized
by
implementation
of
Master
Development Plan and Zonal Development Plan, the
statutory documents creating hope in the minds of the
citizen that it will be strictly implemented so as to
achieve the goal of a quality life for them.
The
discretion vested with the authority of the State
Government to effect the change of land use cannot be
exercised arbitrarily. The change of the land use in the
residential colony developed in conformity with the
Master Development Plan or Zonal Development Plan
cannot be permitted from residential to commercial or
any other uses in casual manner so as to serve the
individual interest adversely affecting rights of the
residents already settled in the exclusive residential
area.
As laid down by the Hon’ble Supreme Court in
(188 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
R.K.Mittal’s case (supra), permitting mixed user, where
the Master Development Plan does not so provide
would be per se arbitrary and illegal.
The construction of multi-storey building in the
existing residential colonies developed with the
infrastructure keeping in view the density of the
population to be settled therein. (Question No.6)
139. The sufferings of a common man on account of
unplanned development in local authorities permitting
the construction of multi-storey buildings in the existing
residential colonies with the infrastructure developed,
keeping in view the individual family units to be settled
in the houses to be constructed is aptly expressed by
two lines written by a legendary poet
Shri Javed
Akhtar :
“Å¡ph bZekjrksas ls edka esjk f?kj x;k]
dqN yksx esjs fgLls dk lwjt Hkh [kk x;sA”
The urban development planning could be seen
with three level hierarchy namely, Master Development
Plan, Zonal Development Plans and plans for specific
scheme.
residential
Obviously, when a scheme for developing a
colony
is
framed
and
approved,
the
(189 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
provision for requirement of infrastructure facilities
including open spaces, parks, major roads and sub
roads, traffic movement, the water supply, sewerage
etc. is determined with the reference to number of
family units/inhabitants to be settled in the houses to
be constructed on the plots allotted. It goes without
saying that the norms for infrastructure facilities for
multi-storey building where the number of family units
to be settled is much higher shall be different than the
infrastructure facilities required for number of individual
family units to be settled in the individual houses to be
constructed as proposed in the scheme and therefore,
if muti-storey buildings are permitted to be constructed
in a residential colony developed with the infrastructure
keeping in view the individual family units to be settled
in
the
houses
development
is
constructed,
bound
to
slide
such
unplanned
towards
chaos,
jeopardising the quality of life assured to the citizens
deciding to settle in the residential colony to come up
under the approved scheme. It cannot be disputed that
the population growth and migration to the cities may
necessitate vertical development i.e. construction of
multi storey buildings but then, such development must
conform
to
the
basic
objective
of
the
planned
(190 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
development i.e. to ensure quality of life to the
residents
by
preserving/creating
the
healthful
environment. As a matter of fact, the citizens who
while spending their hard earn money purchase a plot
and decide to settle in a residential colony with
projected infrastructure facilities as per the lay out plan
duly approved, obviously acquire a right to avail the
facilities
assured
and
therefore,
if
the
same
is
permitted to be interfered with by indiscriminate,
unplanned and uncontrolled development, they will feel
cheated.
140.
In this view of the matter, we are of the
considered opinion that in the existing residential
colonies which are developed with the infrastructure
facilities keeping in view, the number of family units to
be settled in such colonies, no multi storey buildings
should be permitted to come up adversely affecting the
rights of the citizens to live the quality of life assured to
them.
Permissibility of the development of private or
public colony on the land having area less than
the reasonable area required for developing a
colony with requisite facilities (Question No.7)
(191 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
141.
setting
The object underlying the relevant statutes in
up
of
the
Development
Authorities
and
Improvement Trusts is to ensure orderly, planned and
rapid development of the towns/cities as also to check
unplanned and haphazard growth and to do all such
other acts and things which are necessary to achieve
the object of planned development. The planned
development
residential
pre-supposes
scheme
is
that
approved,
whenever
the
any
authorities
concerned shall ensure that adequate provision is made
therein for open spaces, parks, playgrounds, civic
amenities,
roads,
sewerage,
adequate
water
and
electricity supply and the colony developed is properly
connected to the main roads and the surrounding
areas. Thus, any residential area to be developed or
approved by the town planning or local authorities
must conform to the norms laid down under Master
Development Plan/Zonal Development Plan and the
township policy. Obviously, if the colonies are permitted
to be developed in the small areas, it would be
impossible for the local authority or private colonizer to
provide for the requisite facilities noticed hereinabove
and therefore, it is quint essential that whenever the
layout plan for development of any area as residential
(192 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
area is prepared, the authority concerned must first
undertake
the
exercise
for
environment
impact
assessment and no layout plan of the development to
be undertaken should be approved without there being
the adequate provisions for requisite infrastructure
facilities and amenities contemplated under the Master
Development Plan and Zonal Development Plan for the
development of the area for the purpose specified with
reference to the population density.
142.
In Bondu Ramaswamy's case (supra), the
Hon'ble Apex Court while dealing with the issue of
unauthorised
and
illegal
development
and
the
development of the colonies by the private developers
in the small area ranging from 2 to 15 acres,
emphasised
that
the
small
unauthorised
layouts
without any basic amenities must be discouraged. The
court observed:
“129. The object of establishing a Development
Authority like BDA is to provide for orderly and
planned development so that the haphazard
growth of a city is checked. The disastrous effects
of unauthorised and illegal development by some
unscrupulous colonisers/developers are well
known. In a planned and authorised standard
residential development, about 30% to 35% of
the total area is used to provide broad and
adequate roads and footpaths, drains, etc., and at
least another 10% to 15% of the land is
earmarked for parks, playgrounds and community
(193 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
development
or
civic
amenities
(schools,
hospitals, police stations, post offices, minimarkets, community halls, etc.). Further, the
layout will have adequate provision for drainage
of rainwater as well as sewerage water, adequate
supply and electricity, well-laid metalled roads
which properly connect the layout to main roads
and other surrounding areas, by providing
approaches and linkages.
130.
But
in
an
unauthorised
or
illegal
development, the roads are narrow and minimal,
virtually no open spaces for parks and
playgrounds, and no area earmarked for civic
amenities. There will be no proper water supply or
drainage; and there be a mixed use of the area for
residential, commercial and industrial purposes
converting the entire are into a polluting concrete
jungle. The entries and exists from the layouts will
be bottlenecks leading to traffic jams. Once such
illegal colonies come up with poor infrastructure
and amenities, it will not be possible to either
rectify and connect the mistakes in planning nor
provide any amenities even in future. Residents of
such unauthorised layouts are forever condemned
to a life of misery and discomfort. It is to avoid
such haphazard, unhealthy development activities
by greedy illegal colonisers and ignorant
landowners, the State Legislatures provided for
city improvement trusts and Development
Authorities so that they could develop well
planned citizens-friendly layouts with all amenities
and facilities.
131. In this background large tracts of lands
running into hundreds of acres are acquired to
have integrated layouts. Only when a layout is
formed on a large scale, adequate provision can
be made for good-size parks, playgrounds and
community/civic amenities. For example, if a
layout is made in 1000 acres of land, the
developer can provide a good-sized park of twenty
acres and one or two small parks of 2 to 5 acres,
have playgrounds of 5 to 10 acres. Instead of such
an integrated large layout, if 200 small individual
layouts are made in areas ranging from 2 to 10
acres, there will obviously be no provision for a
park or a playground nor any space for civic
(194 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
amenities. Further, small private colonies/layouts
will not have well aligned uniform roads and
accesses. While it is true that municipal and town
planning authorities can be strict monitoring and
licensing
procedures
arrest
haphazard
development, it is seldom done. That is why
formation of small layouts by developers is
discourages and Development Authorities take up
large-scale developments.
132. If 200 acres of land on the outskirts of a city
has to be developed, and if 30 to 50 private
developers proceed to develop areas ranging from
2 to 15 acres, it will be impossible for them to
provide for parks or any playgrounds of
reasonable size or make provision for planned
civic amenities. Further, there will be no alignment
in regard to roads. Each layout will have roads to
suit their own convenience and this will lead to
misalignment and bottlenecks leading to traffic
snarls. The width of the roads also will differ from
layout to layout depending upon the “greed” of
each private developer, resulting in the size, shape
and alignment of roads varying for every stretch
of 200 to 500 metres. There will be no proper
drainage of rainwater or sewerage water leading
to constant flooding or stagnation. Therefore large
integrated layouts were found to be the answer for
orderly development. No small developer can
develop a good township in a few acres of land. It
was also though that developers will be mainly
profit motivated and will try to minimise the roads,
open spaces and community areas. It is therefore
that legislature constituted statutory Development
Authorities to undertake large-scale developments
without any profit motive.
133. If authorities like BDA notify 3000 acres of
land for development and then delete from the
proposed acquisition several pockets which
aggregate to about 1000 to 1500 acres, then the
result is obvious. There will be no integrated
development at all. What was intended to be a
uniform, contiguous and continuous layout of 3000
acres will get split into small pockets which are not
connected with the other pockets or will be
intersected by own illegal pockets of private
colonies thereby perpetuating what was intended
(195 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
to be prevented, that is, haphazard growth
without proper infrastructure. It will then not be
possible to provide proper road connections and
drainage and impossible to provide appropriate
parks, playgrounds and civic amenities of
appropriate and adequate size and situation.
When a Development Authority starts developing
pockets of lands measuring 2 acres to 5 acres,
obviously it also cannot provide open spaces and
civic amenities and may end up with one pocket
having plots, another far away pocket having a
playground and another far away pocket having a
park and their being no uniformity or continuity of
roads. As noticed above, a large layout enables
formation of long and straight roads for easy
movement of traffic. On the other hand, short and
disjointed roads affects smooth movement of
traffic.
134. Therefore, if a Development Authority,
having acquired a large tract of land withdraws or
deletes huge chunks, the development by the
Development Authority will resemble haphazard
developments by unscrupulous private developers
rather than being a planned and orderly
development expected from a Development
Authority. Therefore when a large layout is being
planned, the Development Authorities should
exercise care and caution in deleting large
number of pocket/chunks of land in the middle of
the proposed layout. There is no point in
proposing a planned layout but then deleting
various portions of land in the middle merely on
the ground that there is a small structure of 100
sq ft or 200 sq ft which may be authorised or
unauthorised. Such deletions make a mockery of
development. Further, such deletions/exclusions
encourage corruption and favouritism and bring
discontent among those who are not favourably
treated.”
(emphasis added)
143.
In the considered opinion of this court, on
account of the population growth and migration to the
cities, the basic object of the enactment i.e. planned
(196 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
development cannot be set at naught by permitting
small colonies to come up with no infrastructure
facilities and the civic amenities and precipitate a
situation where the residents are condemned to live a
miserable life in unhealthy environment. In this view of
the matter, it is need of the time that as observed by
the Hon'ble Supreme Court in Bondu Ramaswamy's
case (supra), instead of permitting the small colonies
coming up in small area with no infrastructure facilities,
the authorities should undertake the exercise for
approval of integrated layouts of the residential and
other schemes either by acquisition of the land or by
undertaking the exercise of the land pooling. But, in
any case,
the development of number of colonies in
small area without integrated layout plan for the
infrastructure facilities and civic amenities necessary for
the residents to be settled in conformity with the
Master Development Plan and Zonal Development Plan
for various zones of the city leading to haphazard
growth, has to be discouraged.
The shifting of industrial areas located in the
close vicinity of the city settlements to outside
(197 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
the
urbanisable
area
shown
in
the
Master
Development Plan (Question No.8)
144. Indisputably, the setting up of industries should
be permitted only in conforming areas i.e. the industrial
areas
earmarked
for
the
purpose
in
the
Master
Development Plan and functioning of any unauthorised
industrial
activity
in
residential
area
cannot
be
permitted. But then, the issue raised by the learned
Amicus Curiae is not with regard to the unauthorised
activities being carried out in the residential area
rather, the issue raised is with regard to the shifting of
the industrial area already developed, which are located
in close vicinity of the residential area. There is no
specific details regarding such industrial areas which
are located close to the residential colonies in any of
the major cities and need to be shifted are available on
record and therefore, at this stage, this court is not
inclined to issue any general directions for shifting of
the
industrial
areas
as
prayed
for.
It
would
be
appropriate that the matter with regard to shifting of
the
hazardous
industries/industrial
areas
in
close
vicinity of the residential colonies, is appropriately dealt
with by the State Government by framing Relocation
(198 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
Scheme, after conducting a survey in all the major
cities by constituting a high power committee.
Adherence to the norms laid down for providing
green belt abutting the highway (Question No.9)
145. Indisputably, specific provisions are incorporated
in the Master Development Plans of the major cities
that the land in the width of 100 ft. abutting the
highways after right to way shall be left open as green
belt for dense plantation and the development work as
permissible shall be undertaken only on the land after
the green belt. As a matter of fact, the violation of the
norms
laid
down
as
also
the
necessity
to
take
appropriate measures to implement the norms laid
down strictly and to undo the violation made is not
even disputed before this court. To the contrary,
learned AAG has taken the specific stand that the
norms laid down for providing green belt on both the
sides of the highways have to be followed and
therefore, appropriate steps shall be taken to ensure
the implementation of the norms and for removal of the
constructions, if any raised, in violation of the norms.
In this view of the matter, this court is not required to
dilate on the issue any further.
(199 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
The encroachment made on footpath/public ways
by putting stairs, ramps and hoardings or the
personal
user
thereof
by
putting
fencing
(Question No.10)
146.
It is well settled that the footpaths and public
roads are meant for convenience of public at large and
no private person can be allowed to make unauthorised
use of the same for personal use. As a matter of fact,
every citizen has right to pass over the footpaths and
public ways and custody thereof with the State and the
Local Authorities is in realm of public trust and
therefore, what to say of private individuals even, the
State Government and Local Authorities are yoked
under an inhibition not to put any structure on
footpaths and public ways, which is not necessary for
regulating and maintaining the user thereof. Every inch
of the land forming part of footpaths and public ways
has to be preserved and maintained meticulously and
therefore,
the
State
Government
and
the
Local
Authorities, who are under an obligation to check
growth
of
unauthorised
encroachment
made
by
unscrupulous persons on footpaths and public ways and
remove the same, cannot shirk from their responsibility
to take the appropriate measures in this regard.
(200 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
147.
This Court takes judicial notice of the fact that
the tendency to occupy unauthorisedly the land forming
part of footpaths and public ways, is rampant in various
cities of the State and one hardly finds enough space
on the footpaths and public ways which is creating
numerous traffic hazards and the pedestrians are
compelled to move in the midst of vehicular traffic
endangering their life. We are constraint to observe
that this tendency to encroach upon the footpaths and
public ways amongst the unscrupulous citizens is
flourishing because of
deleterious inaction
and tacit
support of the persons at the helm of affairs in the local
authorities.
148.
To conclude, it is high time that the menace of
encroachment and unauthorised construction over the
footpath and public way is viewed seriously and dealt
with strictly.
149.
As noticed herein above, during the course of
hearing,
learned
AAG
has
assured
that
the
encroachment made on footpaths and public way by
putting stairs, ramps, hoardings or fencing in various
cities and towns of the State by the unscrupulous
persons shall be removed and therefore, no further
dilation on the issue is considered necessary.
(201 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
Restoration of parking spaces in the buildings
constructed put to other use (Question No.11)
150.
Undoubtedly, with the growing high number of
vehicle ownerships in the major cities, parking has
become a conflicting and confusing situation for the
public
at
large.
Each
development
must
provide
adequate parking spaces to meet the parking needs of
the occupiers, tenants and visitors/customers. That
apart, the developer must ensure the provision of a
safe and functional parking place layout to facilitate
smooth and convenient passage for the vehicles.
Parking provisions serving a development must be
made concurrent or prior to the completion within the
site of development use. Deletion or conversion of
existing parking spaces for other use needs to be
viewed seriously.
151.
It is really unfortunate that at the time of
sanction of the plan, the provision is made for adequate
parking spaces as prescribed by the State Government
or the Local Authority concerned under the Building Bylaws, but over the years, a tendency is developing
among the developers to delete or reduce the parking
spaces while undertaking constructions or the parking
spaces provided are being diverted to other uses. It is
(202 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
really
strange
that
ignoring
stringent
statutory
provisions providing for compulsory parking space in
every
building
constructed,
the
unscrupulous
developers with the connivance of the officials of local
authorities are violating the parking space norms with
impunity, which is creating a great traffic congestion in
all major cities of the State.
152.
It is to be noticed that by way of Rajasthan
Municipalities (Amendment) Act, 2010, for ensuring the
provision
of
constructed
parking
within
spaces
the
in
municipal
all
the
area,
buildings
the
State
Legislature has inserted Section 238-A in the Act No.18
of 2009, which reads as under:
“238-A. Provision of parking space.-(1) In every
building constructed in a municipal area after the
commencement of the Rajasthan Municipalities
(Amendment) Act, 2010 (Act No.19 of 2010), it
shall be compulsory to provide such parking space
as may be prescribed by the State Government:
Provided that the State Government may, having
regard to the area of land and situation and use of
building, exempt, by notification in the Official
Gazette, any building or class of buildings from the
provisions of this section.
(2)
The Municipality shall not grant any
permission under Sec. 194 unless the person
seeking permission makes provision for parking
space as prescribed under sub-sec. (1) in the maps
and required under that section and undertakes to
provide such parking space and furnishes security
for the same to the satisfaction of the Municipality.
(203 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
(3)
Notwithstanding anything contained in Sec.
194 or any other provision of this Act, every owner
of the building, for which provision of parking space
is compulsory under the provisions of this section,
shall, after completion of such building, obtain a
completion certificate in the prescribed manner and
no such building shall be occupied unless and until
such certificate has been obtained.
(4)
The officer or authority authorized to issue
completion certificate certificate under sub-section
(3) shall not issue such certificate unless he is
satisfied that parking space as prescribed under
sub-sec.(1) has been provided in the building.
(5)
Any development of land in a municipal area
made or continued in contravention of the
provisions of this section shall be deemed to be an
unauthorized development for the purpose of this
Act.
(6)
No permanent water connection from any
public water supply system shall be permitted in a
building, for which provision of parking space is
compulsory under the provisions of this section,
unless the owner or occupier thereof produces a
completion certificate issued under sub-sec.(3).
(7)
Any person who contravenes any provision of
this section shall, on conviction and without
prejudice to any other action that may be taken
against him under any other provision of this Act or
any other law for the time being in force, be
punishable with imprisonment which may extent to
seven days or with fine which shall not be less than
rupees twenty five thousand but which may extend
to rupees one lakh or with both.”
153.
Similarly,
by
way
of
Jaipur
Development
Authority (Amendment) Act, 2010, by inserting Section
37B in the Act No.25 of 1982, the similar provision is
made regarding compulsory parking in every building
constructed.
(204 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
154.
That apart, in exercise of the power conferred
by Section 95 read with Section 37B of the Act No.25 of
1982,
the
State
Government
has
framed
Jaipur
Development Authority (Provision of Parking Space)
Rules, 2011, which while specifying the parking space
requirement in commercial buildings and other than
commercial buildings, specifically mandates that after
construction of the building, the owner shall make an
application to the authority for issuance of Completion
Certificate and after inspection of the building and on
being satisfied that the provisions of Section 37B of the
Act No.25 of 1982, has been complied with, the officer
is authorised by JDA in this behalf, shall issue such
certificate.
155.
Further, as per sub-section (5) of Section 37B of
the Act No.25 of 1982, any development land in Jaipur
Region made or continued in contravention of the
provisions of the said section shall be deemed to be an
unauthorised development for the purposes of the Act
and the JDA is empowered to seal the unauthorised
development by virtue of provisions of Section 34A of
the
Act
No.25
of
1982
and
JDA
Unauthorised Development) Rules, 2011.
(Sealing
of
(205 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
156.
We are constrained to observe that though the
legislature has enacted the law for ensuring the
provisions for adequate parking space in every building
constructed within the municipal area, the enforcement
thereof has been extremely poor and the norms laid
down are being violated by the developers with
impunity,
which
is
resulting
in
chaotic
situation
inasmuch as, major area of roads in the major cities
are taken up just for parking of the vehicles and
therefore, it is high time that the law enacted in this
regard is strictly enforced and besides the stern action
against the violators, the responsibility of the erring
officials of local authorities who permit such buildings
to come up without adequate provision for parking
spaces, is also properly fixed. Needless to say that
while enforcing the provisions incorporated as aforesaid
to ensure adequate parking spaces in the buildings
already constructed, the local authorities are under an
obligation
to
take
all
appropriate
measures
in
accordance with law to restore the position of the
parking spaces as per the plan sanctioned, put to any
other use.
Permissibility
of compounding of unauthorised
construction raised in deviation of the Mater Plan,
(206 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
Zonal Development Plan, sanctioned plan of the
building without approval of the building plan
and/or in violation of the Building Bye Laws
(Question No.12)
157.
Undoubtedly, the menace of unauthorised pell-
mell
construction
in
deviation
of
the
Master
Development Plan, Zonal Development Plan and the
building plans duly sanctioned by the local authority in
conformity
with
the
Building
By-laws,
by
the
unscrupulous persons with the tacit support of officials
of local authority concerned is playing havoc with the
life of a common man. It is really unfortunate that the
local authorities which are under the legal obligation to
at once remove the unauthorised constructions in
conformity with the provisions of the law made in this
regard and the state authorities, who are lawfully
bound to watch law and order, do not strive in this
direction, which besides creating numerous hazards for
the health and safety of general public, are polluting
the environment and ruining the beauty of the cities to
an irredeemable degree.
158.
As observed by the Hon'ble Supreme Court in
Padma's case (supra), the planned development is the
crucial zone that strikes a balance between the needs
(207 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
of large scale urbanization and individual buildings. It is
the science and aesthetics of urbanization as it saves
the development from chaos and uglification.
159.
Coming
to
the
statutory
provisions,
the
construction of the buildings in the municipal areas is
governed by Section 194 of the Act No.18 of 2009. As
per mandate of sub-section (1) of Section 194, any
person intending to erect a new building or to re-erect
or make material addition in any building or any
projecting portion of a building or any tower or any
similar structure on any land or building is under an
obligation to seek permission of the Municipality before
starting the construction. As per the Explanation
attached to sub-section (1) of Section 194,
any
changes in existing setbacks, coverage, height, land
use and parking area wherever parking areas are
mandatory under the law, shall fall within the definition
of 'material addition'. Sub-section (7) of Section 194,
mandates that no person shall commence any type of
construction
without
written
permission
of
the
Municipality. The plan for erection/re-erection of the
building or for material addition has to be in conformity
with the Building By-laws of the Municipality and no
plan in deviation of the Building By-laws is permissible
(208 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
to be sanctioned by the Municipality and for this
reason, even where a person becomes entitled to raise
construction under the deemed permission of the
Municipality, it is specifically provided under the clause
(c) of sub-section (7) of Section 194 that he shall not
violate any provision of the Act, rules or by-laws made
thereunder.
The
commencement,
continuance
or
completion of any kind of erection, re-erection or
material alteration in a building
or part thereof or
erection or re-erection of any projecting of a building in
respect of which Municipality is empowered under
Section 192 to enforce removal of the projecting part
or restoration to regular line of setback in violation of
provisions of sub-section (1) of Section 194, are
offences punishable under clause (a) to (d) of subsection (10) of Section 194. As per clause (g) of subsection (10) of Section 194, an employee of the
Municipality who has been assigned duties for a
particular area and made responsible for reporting the
matter of violation of the provisions of the said section,
is under an obligation to ensure that such violations are
reported properly without delay and the same are
entered in the register kept for the purpose and take
necessary action to stop unauthorised construction and
(209 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
if it is proved that he willfully or knowingly ignored to
stop such unauthorised construction and to make a
report shall be liable to be punished in accordance with
the provisions of sub-section (18) of Section 245 of the
Act No.18 of 2009. Under sub-section (18) of Section
245, a person on conviction, is liable to be punished for
a term which shall not be less than three months which
may extend to three years or with fine which may
extent to thirty thousand rupees or both. That apart,
under clause (h) of sub-section (10) of Section 194,
the Municipality is empowered to stop any work
commenced without permission or violating the norms
of sanctioned map or without submitting an application
and further under clause (i) thereof, in addition to
prosecution of defaulter, the Municipality is empowered
to demolish whole or part of the construction which has
come up without permission or violating the permission
or where permission was sought by fraud etc. as
mentioned in the said section.
160.
It is relevant to mention here that beside the
provisions
regarding regulation
of
construction
as
contained in Section 194, the Act No.18 of 2009
incorporates
various
provisions
regulating
the
development of the city/town including prescribing a
(210 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
line on either side or both sides of the street within the
municipal area, compulsory provisions for footpaths,
setbacks and projection of the buildings and parking
places etc..
161.
It goes without saying that once the plan for
erection/re-erection of the building or to make a
material addition in building or the erection/re-erection
of the projecting portion of the building is sanctioned
by the Municipality in conformity with the provisions of
the Act, rules and the by-laws made thereunder, it
must be executed strictly and any deviation therefrom
could be permitted only in the rarest of rare case after
following the procedure laid down under the law.
162.
Learned AAG has emphasised that the statutes
permits compounding of unauthorised construction and
therefore, the local authorities cannot be restrained
from regularising the illegal construction raised in
accordance with law and therefore, at this stage, it
would be appropriate to refer to the provisions of the
Act No.25 of 1982, Act No.2 of 2009, Act No.39 of
2013, the UIT Act, Act No.18 of 2009 and the Rules
made
thereunder,
dealing
development/constructions.
with
the
unauthorised
(211 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
163.
Section 33A of the Act No.25 of 1982, Section
34 of the Act No.2 of 2009 and Section 34 of Act No.39
of 2013 and Section 73B of UIT Act, which permits
composition
of
unauthorised
development
without
permission or which is not in accordance with
any
permissions granted or is in contravention of any
condition
subject
to
which
permission
has
been
granted, have already been dealt with by us while
dealing
with
the
issue
relating
to
the
modification/revision of Master Development Plan and
Zonal Development Plan and therefore, it is not
necessary to enter into the discussion on the said issue
all over again.
164.
So far as Act No.18 of 2009 is concerned, the
compounding/compromise of any offence committed
under the Act or any By-law made thereunder, is dealt
with by Section 299, which reads as under:
“299. Powers with respect to prosecuting for
offences.- A Municipality may(a) compromise with any person who in the
opinion of the Municipality has committed an
offence punishable under this Act or any bye-law
thereunder
and
on
such
compromise
no
proceedings shall be taken against such person in
respect of such offence;
(212 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
(b) withdraw prosecutions under this Act or under
any bye-law made thereunder;
(c) compound any offence against this Act or
against any bye-law made thereunder which may,
by rules made by the State Government, be
declared compoundable;
Provided that the State Government may make
rules to regulate the proceedings of persons
empowered to compromise offences under this
section.”
165.
It is to be noticed that the State Government in
exercise of power conferred under Section 297 read
with Section 266 of Rajasthan Municipalities Act, 1959,
(the Act No.38 of 1959), which stands repealed by
virtue of the provisions of Sub-section (1) of Section
344 of the Act No.18 of 2009, had framed 'Rajasthan
Municipalities
(Compounding
and
Compromising
of
Offences) Rules, 1966' ('the Rules of 1966').
166.
The provisions of Section 266 of the Act No.38
of 1959 and Rules 4 & 5 of the Rules of
1966,
germane to the determination of the issue raised, are
quoted hereunder:
Section 266 of the Act No.38 of 1959
(213 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
“Section 266. Power to compound offences: A board
may;
(a) compromise with any person who in the opinion
of the board has committed an offence punishable
under this Act or any bye-law thereunder and on
such compromise no proceeding shall be taken
against such person in respect of such offence;
(b) withdraw from prosecutions instituted under this
Act or under any bye-law made thereunder;
(c) compound any offence against this Act or
against any bye-law made thereunder which may,
by rule made by the State Government, be declared
compoundable:
Provided that the State Government may make
rules
to
regulate
the
proceedings
of
persons
empowered to compromise offences under this
section.”
Rules 4 & 5 of the Rules of 1966
“4.
Offences
which
may
be
compounded
or
compromised.- (1) Offence punishable under the
provision of the Act and/or any rules or bye-laws
made thereunder except under sections 165(4) and
203 shall be compoundable or compromisable.
(2)
The
offences
under
section
170
may
be
compounded or compromised by the Board on the
following basis:-
(214 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
(i)
In the case of constructions put
up after obtaining sanction but
in which minor deviations have
been made from the sanctioned
plan and such deviations do not
contravene any bye-law rule,
policy or resolution of the board.
No compensation should be charged
if the party concerned makes an
application along with sanctioned
plans, within one month requesting
that such deviations should be
sanctioned
and
regularised.
Corrections in the sanctioned plan
may be made departmentally at his
cost.
(ii)
In
cases
of
unauthorised
constructions which do not
offend against bye laws in which
no application for sanction had
been made.
May be condoned on payment of
5% of the cost of unauthorized
constructions
as
compensation
subject to the minimum of Rs.5/-.
(iii)
In
cases
of
unauthorized
constructions which do not
offend against bye-laws but
which were continued inspite of
prohibitory
notice
to
stop
constructions.
May be condoned on payment of
7.5% of the cost on unauthorized
constructions
as
compensation
subject minimum of Rs.5/-.
(iv)
The unauthorised constructions Should not, as a rule, be allowed to
which offend against by-laws.
stand, but if however, it is
considered desirable to condone
such constructions on payment of
compensation on the request of the
party may be considered, and the
compensation in such cases shall
not be less than 25% of the cost of
the unauthorized construction as
may be considered on merits of
each such case.
(v)
The unauthorized constructions
which offend against bye-laws
and which were continued in
spite of prohibitory notice to
stop construction.
Should also not, as a rule, be
allowed to stand, but if however, it
is considered desirable to condone
on payment of compensation such
constructions at the request of the
party, may be considered and the
compensation in such cases shall
not be less than 33-1.3% of the
cost of unauthorized constructions
as may be considered on merits of
each such case.
5.
Power to compound or compromise offences.(1) Subject to the provisions of Rule 4, a Board may
accept from any person in respect of whom there is
reasonable ground to believe that he has committed
act or omission made punishable under the Act or
bye-laws made thereunder a sum of money by way
of compensation therefore.
(215 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
(2) On payment of such sum no further proceedings
shall be taken against the offender in respect of the
offence so compounded or compromised.
(3) Sums paid by way of compensation under these
rules shall be credited to the Municipal Fund.”
167.
A bare perusal of the provisions of Section 299
of the Act No.18 of 2009, makes it abundantly clear
that same are pari materia to the provisions of Section
266 of the Act No.38 of 1959 and therefore by virtue of
clause (a) of sub-section (2) of Section 344 to the
extent they are not inconsistent with the provisions of
the Act No.18 of 2009 stand saved.
168.
The question remains for consideration of this
court is to what extent the unauthorised construction
raised in deviation of the sanctioned plan or the
Building By-laws of the municipality concerned is
permissible to be compounded under the provisions of
the Act and the Rules of 1966.
169.
A bare look at the provisions of Section 194 of
the Act No.18 of 2009, makes it abundantly clear that
statutory mandate is that the erection, re-erection of
the building, material addition therein or erection reerection of any projecting building etc. is not permitted
unless the plan thereof is duly sanctioned by the
(216 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
Municipality
procedure
concerned
laid
down.
in
accordance
Obviously,
the
with
the
Municipality
concerned is not empowered to sanction any plan in
deviation of the Building By-laws of the Municipality, if
any framed and further, any construction
which falls
within the purview of sub-section (5) of Section 194
i.e. a multi storied building (above height of 15 meters)
or any institutional complex or commercial complex in
an area more than 500 sq. meters cannot be permitted
by
the
municipality
without
obtaining
advice
of
Regional Town Planner of the State Government and
the Municipality is under an obligation to ensure that
the proposed plan and construction is not inconsistent
with the Rules, By-laws and public convenience. Suffice
it to say that while permitting the construction, the
Municipality concerned is under a statutory obligation
not to sanction any construction proposed to be raised
which is in violation of the provisions of the Act, rules,
by-laws made thereunder or public convenience.
170.
Coming to the compounding power of the
Municipality, it is pertinent to note that by virtue of
clause (a) of Section 299 of the Act No.18 of 2009, the
Municipality is empowered to enter into compromise
with any person who has committed an offence
(217 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
punishable under the Act or any By-law thereunder and
by virtue of clause (c), it may compound any offence
against the Act or By-laws made thereunder which by
Rules made by the State Government, be declared
compoundable and further that on the Municipality
entering
into
a compromise
or
compounding,
no
proceedings shall be taken against such person in
respect of such offence.
171. At this stage, it is essential to notice that Section
337 of the Act No.18 of 2009,
empowers the State
Government to make Rules or orders generally for the
purpose of carrying into effect the provisions of the Act.
Obviously, the provisions of Section 194 regulating the
constructions to be raised within the municipal area
have been incorporated to ensure planned development
for the convenience of the public at large. It cannot be
disputed that the Building By-laws framed by the
Municipality, taking into consideration all the relevant
aspects for planned development, duly approved by the
State Government, are required to be strictly followed
and neither the Municipality is empowered to approve
the building plans in deviation of the Master Plan nor
any person can claim as a matter of right to raise
construction beyond the para meters and norms laid
(218 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
down under the Building By-laws. Thus, the State
Government while framing the Rules in exercise of the
rule making power under Section 299 of the Act No.18
of 2009, is certainly empowered to frame the Rules for
carrying out the object underlying the provisions of
Section 194 of the Act i.e. the regulation of the
construction
within
the
municipal
area
strictly
in
accordance with the para meters laid down by the
concerned Municipality regarding the building line in
the street, projections, parking places etc. in exercise
of the statutory power or the regulation of construction
of the building in accordance with the norms laid down
under the Building By-laws framed in exercise of the
power conferred under the statute and not to frustrate
the same.
172.
As noticed hereinabove, the commencement of
the construction, continuance or completion thereof
without sanction of the plan, in contravention of the
sanctioned plan or violating norms, conditions and
restriction imposed under the Act or rules or the bylaws framed thereunder, are the offences punishable
under the provisions of sub-section (10) of Section
194. Since, clause (a) of Section 299 empowers the
Municipality to enter into compromise with the person
(219 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
who has committed offence punishable under the Act
or any By-law thereunder, and by virtue of clause (c) of
Section 299, the State Government is empowered to
declare any offence under the Act or By-laws to be
compoundable, the act of the State Government in
framing the Rules of 1966 to regulate the compounding
of the offences, which are punishable under the
provisions of sub-section (10) of Section 194 and thus,
absolving the person from any proceedings under the
Act in respect of the offence committed, cannot be
faulted with. But, the power to compound the offences
and consequently, not to take any proceedings against
the
person
who
has
indulged
in
commission
of
offences, does not empower the State Government to
frame the Rules permitting compounding of the illegal
constructions raised, ignoring the mandate of the
provisions of Section 194 incorporated for regulating
the planned development and constructions within the
municipal area and to ensure the convenience of the
public at large. Suffice it to say that the Rules of 1966
framed by the State Government in exercise of its rule
making power are permissible to be operated for
carrying out the object underlying Section 194 of the
Act and not to frustrate the same. In other words, the
(220 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
unauthorised constructions raised, which cannot be
otherwise permitted by the Municipality by virtue of the
provisions of Section 194 and other ancillary provisions
referred to hereinbove and the Building By-laws framed
in this regard, cannot be permitted to be compounded.
173.
As a matter of fact, in the garb of the Rules of
1966, the local authorities having constitutional status,
constituted in the country so as to ensure the interest
of general public and enable the local inhabitants to
have a say for solving the immediate problem at the
local level, due to their indifferent attitudes and
deleterious inaction, are making the inhabitants of the
local area to suffer immeasurably and the very object
of constituting local authorities, is being defeated.
174.
Looking to the gravity of the problem, even
learned AAG fairly conceded that the enforcement cell
of local bodies needs to be strengthened and time
bound effective action on violation must be ensured.
175. It is true that the Rules of 1966 enables the
Municipalities
to
compound
the
unauthorised
constructions but the discretion vested in this regard is
permissible to be exercised only in furtherance to the
ultimate object of planned development sought to be
(221 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
achieved by effective and strict enforcement of the
Master Development Plan, Zonal Development Plan, the
Schemes framed thereunder and the Building By-laws
of the Municipality concerned regulating constructions
within the local area.
176.
the
The Hon'ble Supreme Court has pronounced on
issues
relating
constructions
and
to
menace
permissibility
of
unauthorised
of
compounding
thereof time and again and therefore, reference of
a
few decisions cited at the bar would be appropriate at
this stage.
177.
In Pratibha Cooperative Housing Societies' case
(supra), where the petitioner, a cooperative housing
society had raised construction of eight floors of the
building violating the permissible Floor Space Index
(FSI) upholding the action of the Bombay Municipal
Corporation
in
proposing
demolition
thereof,
the
Hon'ble Supreme Court held:
“6. It is an admitted position that six floors have
been completely demolished and a part of seventh
floor has also been demolished. It was pointed out
by Mr.K.K.Singhvi, learned counsel for the
Corporation that the tendency of raising unlawful
constructions by the builders in violations of the
rules and regulations of the Corporation was
rampant in the city of Bombay and the Municipal
Corporation with its limited sources was finding it
(222 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
difficult to curb such activities. We are also of the
view that the tendency of raising unlawful
constructions and unauthorised encroachments is
increasing in the entire country and such activities
are required to be dealt with by firm hands. Such
unlawful constructions are against public interest
and hazardous to the safety of occupiers and
residents of multistoreyed buildings. The violation
of F.S.I. in the present case was not a minor one
but was to an extent of more than 24,000 sq. ft.
Such unlawful construction was made by the
Housing Society in clear and flagrant violation and
disregard of F.S.I. and the order for demolition of
eight floors had attained finality right upto this
Court. The order for demolition of eight floors has
been substantially carried out and we find no
jurisdiction to interfere in the order passed by the
High Court as well as in the order passed by the
Municipal Commissioner dated 13th November,
1990.”
(emphasis added)
178.
In the matter of M.I.Builders' case (supra),
where Lucknow Nagar Mahapalika had entered into an
agreement with the builder for construction of an
underground shopping complex in a park situated at
Amina Bag Market, Lucknow pursuant to the resolution
adopted by Mahapalika, the Hon'ble Supreme Court
while upholding a Bench decision of High Court of
Allahabad
shopping
holding
complex
construction
illegal,
of
underground
arbitrary
and
unconstitutional, observed:
“73.The High Court has directed dismantling of
the whole project and for restoration of the park
to its original condition. This Court in numerous
decisions has held that no consideration should be
shown to the builder or any other person where
construction is unauthorised. This dicta is now
(223 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
almost bordering the rule of law. Stress was laid
by the appellant and the prospective allottees of
the shops to exercise judicial discretion in
moulding the relief. Such a discretion cannot be
exercised
which
encourages
illegality
or
perpetuates
an
illegality.
Unauthorised
construction, if it is illegal and cannot be
compounded, has to be demolished. There is no
way out. Judicial discretion cannot be guided by
expediency. Courts are not free from statutory
fetters. Justice is to be rendered in accordance
with law. Judges are not entitled to exercise
discretion wearing the robes of judicial discretion
and pass orders based solely on their personal
predilections and peculiar dispositions. Judicial
discretion wherever it is required to be exercised
has to be in accordance with law and set legal
principles. As will be seen in moulding the relief in
the present case and allowing one of the blocks
meant for parking to stand we have been guided
by the obligatory duties of the Mahapalika to
construct and maintain parking lots.” (emphasis
added)
179.
In the matter of 'Friends Colony Development
Committee vs. State of Orissa & Ors.', (2004) 8 SCC
733, the Hon’ble Supreme Court held:
“25. Though the municipal laws permit deviations
from sanctioned constructions being regularised
by compounding but that is by way of exception.
Unfortunately, the exception, with the lapse of
time and frequent exercise of the discretionary
power conferred by such exemption, has become
the rule. Only such deviations deserve to be
condoned as are bona fide or are attributable to
some misunderstanding or are such deviations as
where the benefit gained by demolition would be
far less than the disadvantages suffered. Other
than these, deliberate deviations do not deserve
to be condoned and compounded. Compounding
of deviations ought to be kept at a bare minimum.
The cases of professional builders stand on a
different footing from an individual constructing
(224 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
his own building. A professional builder is
supposed to understand the laws better and
deviations by such builders can safely be assumed
to be deliberate and done with the intention of
earning profits and hence deserve to be dealt with
sternly so as to act as a deterrent for future. It is
common knowledge that the builders enter into
underhand dealings. Be that as it may, the State
Governments should think of levying heavy
penalties on such builders and therefrom develop
a welfare fund which can be utilised for
compensating and rehabilitating such innocent or
unwary buyers who are displaced on account of
demolition of illegal constructions.” (emphasis
added)
180.
In Shanti Sports Club's case (supra), while
dealing with an issue of illegal construction of a
commercial complex raised over the acquired land
without even making an application to the competent
authority for sanction of the building plan, the Hon'ble
Supreme Court observed:
“74. In the last four decades, almost all cities, big
or small, have been seen unplanned growth. In the
21st century, the menace of illegal and unauthorised
constructions and encroachments has acquired
monstrous proportions and everyone has been
paying heavy price for the same. Economically
affluent people and those having support of the
political and executive apparatus of the State have
constructed buildings, commercial complexes,
multiplexes, malls, etc. in blatant violation of the
municipal and town planning laws, master plans,
zonal development plans and even the sanctioned
building plans. In most of the cases of illegal or
unauthorised constructions, the officers of the
municipal and other regulatory bodies turn blind
eye either due to the influence of the higher
functionaries of the State or other extraneous
reasons. Those who construct buildings in violation
of the relevant statutory provisions, master plan,
(225 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
etc. and those who directly or indirectly abet such
violations are totally unmindful of the grave
consequences of their actions and/or omissions on
the present as well as future generations of the
country which will be forced to live in unplanned
cities and urban areas. The people belonging to this
class do not realise that the constructions made in
violation of the relevant laws, master plan or zonal
development plan or sanctioned building plan or the
building is used for a purpose other than the one
specified in the relevant statute or the master plan,
etc, such constructions put unbearable burden on
the public facilities/amenities like water, electricity,
sewerage, etc. apart from creating chaos on the
roads. The pollution caused due to traffic
congestion affects the health of the road users. The
pedestrians and people belonging to weaker
sections of the society, who cannot afford the
luxury of air-conditioned cars, are the worst victims
of pollution. They suffer from skin diseases of
different types, asthma, allergies and even more
dreaded diseases like cancer. It can only be a
matter of imagination how much the Government
has to spend on the treatment of such persons and
also for controlling pollution and adverse impact on
the environment due to traffic congest on the roads
and chaotic conditions created due to illegal and
unauthorised constructions. This Court has, from
time to time, taken cognizance of buildings
constructed in violation of municipal and other laws
and emphasised that no compromise should be
made with the town planning scheme and no relief
should be given to the violator of the town planning
scheme, etc. on the ground that he has spent
substantial amount on construction of the buildings,
etc.- K.Ramadas Shenoy v. Town Municipal Council,
Udipi, G.N.Khajuria (Dr.) v. DDA, M.I. Builders (P)
Ltd. vs. Radhey Shyam Sahu, Friends Colony
Development Committee v. State of Orissa, M.C.
Mehta v. Union of India and S.N.Chandrashekar v.
State of Karnataka.
75. Unfortunately, despite repeated judgments of
this Court and the High Courts, the builders and
other affluent people engaged in the construction
activities, who have, over the years shown scant
respect for regulatory mechanism envisaged in the
municipal and other similar laws, as also the master
(226 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
plans, zonal development plans, sanctioned plans,
etc., have received encouragement and support
from the State apparatus. As and when the Courts
have passed orders or the officers of local and other
bodies have taken action for ensuring rigorous
compliance
with
laws
relating
to
planned
development of the cities and urban areas and
issued
directions
for
demolition
of
the
illegal/unauthorised constructions, those in power
have come forward to protect the wrongdoers
either by issuing administrative orders or enacting
laws for regularisation of illegal and unauthorised
constructions in the name of compassion and
hardship. Such actions have done irreparable harm
to the concept of planned development of the cities
and urban areas. It is high time that the executive
and political apparatus of the State take serious
view of the menace of illegal and unauthorised
constructions and stop their support to the lobbies
of affluent class of builders and others, else even
the rural areas of the country will soon witness
similar chaotic conditions.” (emphasis added)
181.
In Dipak Kumar Mukherjee's case (supra), the
Hon'ble Supreme Court set aside a Bench decision of
the Calcutta High Court reversing the judgment of the
learned Single Judge directing the demolition of illegal
constructions and while referring to various earlier
decisions of the Court, observed:
“8. What needs to be emphasised is that illegal
and unauthorised constructions of buildings and
other structure not only violate the municipal laws
and the concept of planned development of the
particular
area
but
also
affect
various
fundamental and constitutional rights of other
persons. The common man feels cheated when he
finds that those making illegal and unauthorised
constructions are supported by the people
(227 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
entrusted with the duty of preparing and
executing master plan/development plan/zonal
plan. The reports of demolition of hutments and
jhuggi
jhopris
belonging
to
poor
and
disadvantaged section of the society frequently
appear in the print media but one seldom gets to
read about demolition of illegally/unauthorisedly
constructed multi-stories structure raised by
economically affluent people. The failure of the
State apparatus to take prompt action to
demolish such illegal constructions has convinced
the citizens that planning laws ar enforced only
against poor and all compromises are made by
the State machinery when it is required to deal
with those who have money power or unholy
nexus with the power corridors.
......xxxxx..........xxxx...
29. It must be remembered that while preparing
master plans/zonal plans, the Planning Authority
takes into consideration the prospectus of future
development and accordingly provides for basic
amenities like water and electricity lines, drainage,
sewerage, etc. Unauthorized construction of
buildings not only destroys the concept of planned
development which is beneficial to the public but
also places unbearable which is beneficial to the
public but also places unbearable burden on the
basic amenities and facilities provided by the
public authorities. At times, construction of such
buildings becomes hazardous for the public and
creates congestion. Therefore, it is imperative for
the concerned public authorities not only to
demolish such construction but also impose
adequate penalty on the wrongdoer.” (emphasis
added)
182.
In Esha Ekta Apartments Cooperative Housing
Societies's case (supra), where the builder had raised
construction of additional floors in the residential
buildings despite rejection of the revised building plans
and issuance of the stop-work notice, the Hon'ble
(228 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
Supreme Court while relying upon its earlier decision
in Royal Paradise Hotel (P) Ltd. vs. State of Haryana,
(2006) 7 SCC 597 held:
“3. In Royal Paradise Hotel (P) Ltd. vs. State of
Haryana, this Court noted that the construction
had been made in the teeth of notices issued for
stopping the unauthorised construction and held
that no authority administering municipal laws can
regularise the constructions made in violation of
the Act. Some of the observations made in that
judgment are extracted below:
(SCC pp.601-02, paras 7 & 8)
“7....... Whatever it be, the fact remains that
the construction was made in the teeth of the
notices and the directions to stop the
unauthorised
construction.
Thus,
the
predecessor of the appellant put up the
offending construction in a controlled area in
defiance of the provisions of law preventing
such a construction and in spite of notices and
orders to stop the construction activity. The
construction put up are thus illegal and
unauthorised and put up in defiance of law. The
appellant is only an assignee from the person
who put up such a construction and his present
attempt is to defeat the statute and the
statutory scheme of protecting the sides of
highways in the interest of the general public
and moving traffic on such highways.
Therefore, this is a fit case for refusal of
interference by this Court against the decision
declining the regularisation sought for by the
appellant.
Such
violations
cannot
be
compounded and the prayer of the appellant
was rightly rejected by the authorities and the
High Court was correct in dismissing the writ
petition filed by the appellant. It is time that
the message goes abroad that those who defy
the law would not be permitted to reap the
benefit of their defiance of law and it is the duty
of the High Courts to ensure that such defiers
of law are not rewarded. The High Court was
(229 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
therefore fully justified in refusing to interfere
in the matter. The High Court was rightly
conscious of its duty to ensure that violators of
law do not get away with it.
8.We also find no merit in the argument that
regularisation of the acts of violation of the
provisions of the Act ought to have been
permitted. No authority administering municipal
laws and others laws like the Act involved
therein, can encourage such violations. Even
otherwise, compounding is not to be done when
the violations are deliberate, designed, reckless
or
motivated.
Marginal
or
insignificant
accidental violations consciously made after
trying to comply with all the requirements of
the law can alone qualify for regularisation
which is not the rule, but a rare exception. The
authorities and the High Court were hence right
in refusing the request of the appellant.”
....xxxxx.....xxxxx....
8. At the outset, we would like to observe that
by rejecting the prayer for regularisation of the
floors constructed in wanton violation of the
sanctioned plan, the Deputy Chief Engineer and
the appellate authority have demonstrated their
determination to ensure planned development of
the commercial capital of the country and the
orders passed by them have given a hope to the
law-abiding citizens that someone in the hierarchy
of administration will not allow unscrupulous
developers/builders to take law in their hands and
get away with it.
...........xxxxx...............xxxx
56. In view of the above discussion, we hold that
the petitioners in the transferred case have failed
to make out a case for directing the respondents
to regularise the construction made in violation of
the sanctioned plan. Rather, the ratio of the
abovenoted judgments and, in particular, Royal
Paradise Hotel (P) Ltd. vs. State of Haryana is
clearly attracted in the present case. We would
like to reiterate that no authority administering
municipal laws and other similar laws can
encourage violation of the sanctioned plan. The
(230 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
courts are also expected to refrain from exercising
equitable jurisdiction for regularisation of illegal
and unauthorised constructions else it would
encourage violators of the planning laws and
destroy the very idea and concept of planned
development of urban as well as rural areas.”
(emphasis added)
183.
The Hon'ble Supreme Court while dealing with
the issue regarding the officers of the statutory body
who permits unauthorised constructions coming up
unabatedly, in Dr.G.N.Khajuria's case (supra) observed:
“10. Before parting, we have an observation to
make. The same is that a feeling is gathering
ground that where unauthorised constructions are
demolished on the force of the order of course,
the illegality is not taken care of fully inasmuch as
the officers of the statutory body who had allowed
the unauthorised construction to be made or make
illegal allotments go scot free. This should not,
however, have happened for two reasons. First, it
is the illegal action/order of the officer which lies
at the root of the unlawful act of the citizen
concerned, because of which the officer is more to
be blamed than the recipient of the illegal benefit.
It is thus imperative, according to us, that while
undoing the mischief which would require the
demolition of the unauthorised construction, the
delinquent officer has also to be punished in
accordance with law. This, however, seldom
happens. Secondly, to take care of the injustice
completely, the officer who had misused his power
has also to be properly punished. Otherwise, what
happens is that the officer, who made the hay
when the sun shined, retains the hay, which
tempts others to do the same. This really gives
fillip to the commission of tainted acts, whereas
the aim should be opposite.” (emphasis added)
(231 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
184.
Similarly, in Friends Colony case's case (supra),
the Court observed:
“26. The application for compounding the
deviations made by the builders should always be
dealt with at a higher level by a multi-membered
High Powered Committee so that the builders
cannot manipulate. The officials who have
connived at unauthorised or illegal constructions
should not be spared. In developing cities the
strength of staff which is supposed to keep a
watch on building activities should be suitably
increased in the interest of constant and vigilant
watch on illegal or unauthorised constructions.”
(emphasis added)
185.
the
To conclude, it is imperative that the State and
local
authorities
keep
unauthorised
constructions
unscrupulous
persons
a
and
vigil
being
any
eye
over
raised
the
by
unauthorised
construction which destroys the concept of planned
development is not permitted to be come up and if any
such construction has been raised in deviation of the
Master Development Plan, Zonal Development Plan and
the Building By-laws, is not permitted to be regularised
or compounded rather, the same needs to be dealt with
strictly. Further, it needs to be ensured that the officials
of the local authorities with whose connivance or tacit
support, such unauthorised construction is raised, is
punished adequately.
(232 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
The vires of the provisions of Section 33A of Act
No.25 of 1982, Section 34 of the Act No.2 of 2009
and Section 34 of Act No.39 of 2013, regarding
the composition of unauthorised development.
(Question No.13)
186.
In view of conclusion arrived at by this court
while interpreting the provisions of Section 33A of the
Act No.25 of 1982 and pari-materia provisions as
contained in Section 34 of Act No. 2 of 2009 and
Section 34 of Act No.39 of 2013 that the compounding
permissible in terms of the said provisions must
conform to the land use plan under the Master
Development Plan and Zonal Development Plan and
therefore,
unless
and
until,
the
unauthorised
development sought to be compounded falls within the
para meters of permissible modification of the plan as
contemplated under sub-section (1) and (2) of Section
25 and such modification to the plan is actually effected
by following the procedure laid down, no unauthorised
development in terms of Section 33A is permissible to
be compounded, we are of the opinion that the issue
with regard to constitutional validity of the said
provisions is not required to be gone into by us.
Permissibility of the user of pasture land set
apart
for
grazing
of
the
cattles
for
other
(233 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
purposes,
measures
regularisation
to
be
thereof
and
for
removal
adopted
the
of
unauthorised occupation over the pasture land
(Question No.14)
187. 'Pasture land' as defined by Section 5(28) of the
Act of 1955, means land used for grazing of the cattle
of a village or villages or recorded in settlement records
as such at the commencement of the Act or thereafter
reserved as such in accordance with the Rules framed
by the State Government.
188. As per provisions of Section 92 of the Rajasthan
Land Revenue Act, 1956( for short “the Act of 1956”),
subject to general or special orders of the State
Government, the Collector may set apart land for any
special purpose such as for free pasturage of cattle, for
forest reserve, for development of abadi or for any
other public or municipal purpose and such land shall
not be used otherwise than for the purpose without the
previous sanction of the Collector.
189. Section 16 of the Act of 1955 prohibits accrual of
khatedari rights in pasture land.
Land
Revenue
(Allotment
of
Rule 4 of Rajasthan
Land
for
Agriculture
Purposes) Rules, 1970 which specifies the categories of
the land not available for allotment for agriculture
(234 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
purposes includes the lands mentioned in Section 16 of
the Act of 1955 which includes the pasture land as
aforesaid.
190.
Section 93 of
Act of 1956 mandates that the
right of grazing on pasturage land shall extend only to
the cattle of the village or villages for which such land
has been set apart and shall be regulated by the Rules
made by the State Government.
191.
To give effect to inter-alia the provisions of
Clause 28 of Section 5 of the Act of 1955 and regulate
the user of the pasture land in exercise of the power
conferred under Section 257 of the Act of 1955, the
State Government has framed Rajasthan Tenancy
(Government) Rules, 1955 (“the Rules of 1955”).
192. As per Rule 7 in Chapter II of the Rules of 1955,
the Collector is empowered to change the classification
of any pasture land as defined u/s 5(28) or any pasture
land set apart u/s 92 of the Act of 1956 as unoccupied
culturable government land (Siwai Chak), for allotment
for
agriculture
or
any
non
agricultural
purposes.
However, as per first proviso to Rule 7, in case where
land sought to be allotted or set apart exceeds 4
hectares, the Collector is under an obligation to obtain
(235 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
prior permission of the State Government. As per
second proviso to Rule 7(1) of the Rules of 1955, the
pasture land falling within the boundary limits of the
Jaipur Region as defined under the Act No.25 of 1982
or within the periphery of 2 kms. of the municipality
shall not be allotted except for the purpose of public
utility institution or for expansion of abadi. Further,
sub-rule
(2)
of
Rule
7
mandates
that
where
classification of any pasture land is changed under subRule (1), the Collector may set apart an equal area of
unculturable government land if available as pasture
land in the same village.
193.
That apart, Section 53 of Rajasthan Panchayati
Raj Act, 1994, empowers the Government to make over
the management of pasture lands belonging to the
Government situated within the panchayat area to the
Gram Panchayat. Further, Rule 169 of the Rajasthan
Panchayati Raj Rules, 1996 ('Panchayat Rules,1996'), in
case, the common grazing ground in any village has not
been placed at the disposal of any Panchayat, casts
obligations upon the Gram Panchayat to send proposal
for the taking over or establishing a new grazing
ground to the Tehsildar and on the receipt of the
proposal, the Tehsildar is required to take action
(236 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
forthwith and intimate to the Panchayat about the
decision taken within a period of three months from the
date of receipt of proposal from the Panchayat. To
check the possible inaction on the part of the Tehsildar,
it is further provided that if the sanction is not received
by the Panchayat within a period of three months of the
submission of the proposal, it may move the Vikas
Adhikari, who shall take steps for allotment of grazing
grounds. Sub-rule (6) of Rule 169, empowers the
Panchayat to extend the area of grazing ground in case
of increase of cattle heads by adopting the procedure
provided in case of establishing a new grazing ground.
As per sub-rule (8) of Rule 169, if the pasture land has
been occupied unlawfully by a person on the basis of
the survey conducted under Rule 165 of the Panchayat
Rules, 1996, the Panchayat is mandated to make an
application in this regard to the concerned Tehsildar.
Thus, besides the provisions being incorporated for
preservation
of
pasture
land,
the
provisions
are
incorporated for extension of the area of pasturage so
as to ensure vegetation in abundance to feed the
livestock.
194.
Thus, to sum up, the pasture land is meant for
grazing of the cattles of the village or villages and once
(237 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
the land is categorized as pasture land, it cannot be
divested to use for any other purposes, unless and until
on existence of special circumstances, its classification
as pasture land is changed by the competent authority
in
accordance
with
the
procedure
laid
down
as
aforesaid. Further, it is statutory obligation of the state
authorities to ensure that the land set apart for
pasturage is not divested to be used for any other
purpose unauthorisedly.
195.
In the matter of “Jetha Ram & Ors. vs. State of
Rajasthan
&
Ors.”
[D.B.Civil
Writ
Petition
(PIL)
No.8816/11, decided on 16.5.12], a Bench of this court
while dealing with the issue of mining operation in
pasture land, emphasised the need of preservation and
development of pasture land, as under:
“Suffice it to say that the pasture land is meant
for grazing of cattles of the village or villages
and once the land is categorised as pasture
land, it cannot be divested to use for any other
purposes including the mining operation unless
and until in the special circumstances, its
classification as pasture land is changed by the
competent authority in accordance with the
procedure laid down under the relevant
Statutes. Further, it is statutory obligation of the
state authorities to ensure that the land set
apart for pasturage is not divested to be used
for any other purpose unauthorisedly. The
livelihood of large number of villagers is
dependent on the livestock and therefore, it is
the bounden duty of the state authorities to
(238 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
preserve, develop and manage the pasture land
in a manner which ensures therein the
vegetation in abundance to feed the livestock.
Needless to say that if illegal mining and other
such activity in the pasture land is not viewed
seriously and dealt with sternly by taking
appropriate measures, pasture land will be
fragmented and deteriorated and ultimately, will
be destroyed, frustrating the very purpose of
setting apart the land as pasturage.” (emphasis
supplied)
196.
In Jagpal Singh's case (supra), the Hon'ble
Supreme Court while dealing with the issue regarding
common lands inhering in the village including the land
used as grazing ground for cattle, observed:
“2. Since time immemorial there have been
common
lands
inhering
in
the
village
communities in India, variously called Gram
Sabha land, Gram Panchayat land ( in may North
Indian States), shamlat deh ( in Punjab, etc.),
mandaveli and poramboke land (in South India),
kalam, maidan, etc., depending on the nature of
user. These public utility lands in the villages
were for centuries used for the common benefit
of the villagers of the village such as ponds for
various purposes e.g. for their cattle to drink and
bathe, for storing their harvested grain, as
grazing ground for the cattle, threshing floor,
maidan for playing by children, carnivals,
circuses, ramlila, cart stands, water bodies,
passages, cremation ground or graveyards, etc.
These lands stood vested through local laws in
the State, which handed over their management
to Gram Sabhas/Gram Panchayats. They were
generally treated as inalienable in order that
their status as community land be preserved.
There were no doubt some exceptions to this
rule which permitted the Gram Sabha/Gram
Panchayat to lease out some of this land to
landless labourers and members of the
Scheduled Castes/Tribes, but this was only to be
done in exceptional cases.
(239 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
....xxxxx.......xxxx
4. What we have witnesses since Independence,
however, is that in large parts of the country this
common village land has been grabbed by
unscrupulous persons using muscle power,
money power or political clout, and in many
States now there is not an inch of such land left
for the common use of the people of the village,
though it may exist on paper. People with power
and pelf operating in villages all over India
systematically encroached upon communal lands
and put them to uses totally inconsistent with
their
original
character,
for
personal
aggrandisement at the cost of the village
community.
This
was
done
with
active
connivance of the State authorities and local
powerful vested interests and goondas. This
appeal is a glaring example of this lamentable
state of affairs.
.....xxx......xxxxx.....
23. Before parting with this case we give
directions to all the State Governments in the
country that they should prepare schemes for
eviction of illegal/unauthorised occupants of the
Gram Sabha / Gram Panchayat /poramboke
/shamlat land and these must be restored to the
Gram Sabha/Gram Panchayat for the common
use of villagers of the village. For this purpose
the
Chief
Secretaries
of
all
State
Governments /Union Territories in India are
directed to do the needful, taking the help of
other senior officers of the Governments. The
said scheme should provide for the speedy
eviction of such illegal occupant, after giving him
a show-cause notice and a brief hearing. Long
duration of such illegal occupation or huge
expenditure in making constructions thereon or
political connections must not be treated as a
justification possession. Regularisation should
only be permitted in exceptional cases e.g.
where lease has been granted under some
government notification to landless labourers or
members of the Scheduled Castes/Scheduled
Tribes, or where there is already a school,
(240 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
dispensary or other public utility on the land.”
(emphasis supplied)
197.
We are of the considered opinion that keeping in
view the mandate of the provisions of the Act of 1955
and the Rules made thereunder, the preservation and
development
of
the
pasture
land
by
the
State
Authorities is the rule and diversion of user thereof is
an exception and therefore, the power conferred upon
the Collector under Rule 7 of the Rules of 1955, to
change the classification of the pasture land should be
exercised sparingly only in the larger public interest and
not so as to subserve the interest of any individual.
198.
At this stage, it is to be noticed that in the Writ
Petition No.5907/08, the petitioner has given the
details of some of the orders passed by the JDA
converting the land set apart as pasture land in the
rural areas of Jaipur Region but there is no details
available in respect of the rural areas falling within the
Jodhpur Region, Ajmer Region and various districts of
the State and therefore, before further dilation of the
issue, it would be appropriate that the directions are
issued to the State to furnish the complete details
regarding the availability of the pasture land in various
districts of the State of Rajasthan as on the date of
(241 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
commencement of the Act of 1955, the diversion of the
user
of
the
pasture
land
permitted
after
the
commencement of the Act of 1955, and the land set
apart as pasture land after the commencement of the
Act of 1955. The State should also furnish the the
district-wise details of unauthorised occupation over the
pasture land.
199.
But in any case, pending consideration of the
issue, as mandated by the Hon'ble Supreme Court in
Jagpal
Singh's
case
(supra),
the
indiscriminate
diversion of the pasture land for other purposes needs
to be checked and any unauthorised occupation over
the pasture land by unscrupulous persons needs to be
dealt with strictly.
Conservation
and
preservation
of
the
land
forming part of nadi, pond, lakes, river bed and
catchment area etc.? (Question No.15)
200.
As laid down by the Hon'ble Apex Court in Karnataka
Industrial Areas Development Board's case (supra), the
natural resources like air, sea, water and forest have such a
great importance to the people as a whole that it would be
wholly unjustified to make them a subject of private
ownership. The court laid down that the Doctrine of Public
Trust enjoins upon the Government to protect the resources
(242 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
for the enjoinment of the general public rather than to use
for private ownership or commercial purposes.
201. The necessity of protecting the forest, lakes, rivers,
wildlife has been further emphasised by the Hon'ble Apex
Court in Intellectual Forum's case (supra).
202.
As noticed hereinabove, the learned AG and AAG
have fairly conceded before this court that the natural
resources such as hills, notified area, forest, river, lake etc.
cannot
be
disturbed
while
preparing
the
Master
Development Plan or modifying the same.
203.
It is pertinent to note that in 'Abdul Rahman v.
State”, 2005 RRT 59, a Bench of this court has issued
direction to the State Government to remove encroachment
in the catchment area of the water bodies. That apart, in
“Suo Motu vs. State of Rajasthan“ (S.B.C.Writ Petition
No.11153/11), disposed of by Jaipur Bench of
vide order
dated
this
court
29.5.12, specific directions are issued
restraining allotment of the land falling in catchment areas
of water reservoirs like Johar, Nala, Tank, River, Pond etc.
and it is further directed that the appropriate action shall be
taken for cancellation of the allotment made in defiance of
Section 16 of the Act of 1955.
204.
But the fact remains that no effective steps have
been taken so far for conservation and preservation of the
(243 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
natural resources i.e. hills, forest, river, lake, other water
bodies and the encroachment thereon by unscrupulous
persons continues unabated. We earnestly feel that the
State Authorities should take a drive to remove all
encroachments made over the natural resources noticed
hereinabove
and
the
unauthorised
activities
operating
thereon, with utmost expedition.
205.
In the result, having regard to the aforesaid
conclusions
arrived
at,
we
issue
the
following
directions:
(i)
The
Development
Authorities
and
the
State
Government shall ensure that Master Development
Plan of a city or town prepared under the relevant
statutes is a comprehensive and self explanatory
document providing for preservation, conservation
and development of eco-sensitive zone/ecological
zone/green area, peripheral control belt, natural
scenery, city forest, wildlife, natural resources and
landscaping
as also allocation of land for different
uses such as residential, commercial, industrial,
institutional, cultural complexes, tourist complexes,
open spaces, garden, recreation centres, amusement
parks, zoological gardens, animal sanctuaries, dairies
and health resorts etc.
(244 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
(ii)
Simultaneously with the preparation of Master
Development
Plan
or
immediately
thereafter
as
contemplated by Section 4 of the UIT Act and Section
22 of the Act No.25 of 1982 and other relevant
statutes, the authority concerned shall proceed with
the preparation of Zonal Development Plan for each
zone clearly specifying the location and extent of the
land uses proposed in the zone for such thing as
public buildings and other public works and utilities,
roads, housing, recreation, parks, industry, business,
markets, schools, public and private open spaces etc.
(iii)
The sanctity of Master Development Plan or the
Zonal Development Plan finally sanctioned shall be
maintained and all development schemes of the
various zones and the development work to be
undertaken
by
the
local
authorities
or
private
entrepreneurs or anybody else during the operative
period thereof, shall conform to the land uses as
specified under the Master Development Plan or
Zonal Development Plan, as the case may be.
(iv)
Once the Master Development Plan is brought
into being, vigilant implementation thereof shall be
the rule and any deviation therefrom an exception
(245 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
and therefore, the power vested with the authority or
the State Government for modification thereof during
its operative period shall be exercised sparingly in
larger public interest, to achieve the basic object
thereof i.e. planned development of the concerned
region, city or town and not to sub-serve interest of
an individual.
(v)
The eco-sensitive zone/ecological zone/green
area specified in the Master Development Plan once
established shall not be altered or put to other uses
during the operative period of the Plan and even
while
undertaking
the
revision
of
the
Plan
or
preparation of the new Plan.
(vi)
Even the area which is shown in the various
Master Development Plans as Green Zone/Green Area
marked as G-2 abutting G-1 developed as buffer to
promote a continuum to G-1 shall not be permitted to
be used for the activities other than those specified,
unless
and
objective
conclusion
until,
the
consideration
that
the
State
arrives
public
Government
at
interest
a
after
categorical
involved
in
diversion of the land for other use outweighs the
object sought to be achieved in permitting its
(246 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
restrictive use specified. In any case, change of the
land use of the Green Zone/Green Area (G2) shall be
as an exception to serve the larger public interest, to
achieve
the
basic
object
thereof
i.e.
planned
development of the concerned region, city or town
and not to subserve the interest of an individual.
(vii)
During the operative period of the Master
Development Plan, the land use in the peripheral
control belt for the purposes other than those
specified shall not be generally permitted. But if the
change of the land use in the peripheral control belt
is considered inevitable in the larger public interest
and not to serve the interest of an individual, the
change of the land use for the activities other than
those specified, should only be permitted to subserve the legislative intent of planned development
for promotion and enhancement of the quality of life
of the citizens and not otherwise.
(viii) No isolated change in the land use of the land
falling within the peripheral control belt shall be
permitted without inclusion thereof in accordance
with the procedure laid down, in the land use plan of
urbanisable area shown in the Master Development
(247 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
Plan, the development wherein has to be further
regulated by Zonal Development Plans notified.
(ix)
Further, the development activity within the
peripheral control belt for the purposes aforesaid,
shall
not
be
permitted
without
assessment
of
environment impact and ensuring the fulfillment of
requirement of the open spaces/green spaces for the
existing population settled in the different zones of
the city. The authorities shall be under an obligation
to provide for buffer zone to ensure the availability of
minimum requirement of green space/open space per
city dweller.
(x)
The State Government while permitting the
change of the land use in the peripheral control belt
or the Green Zone (G-2)/Green Area(G-2) shall
maintain complete transparency, the applications
made for the change of land use as also the orders
passed thereon, shall be uploaded on the website of
Department of Urban Development & Housing so also
on the website of the concerned local authority. The
order permitting the change of land use shall be an
speaking
order
reflecting
the
fulfillment
parameters laid down as aforesaid.
of
the
(248 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
(xi)
The
open
spaces,
green
spaces,
common
facilities, playgrounds, gardens, parks, recreational
areas specified in the Master Development Plan or
Zonal Development Plan shall be protected during the
operative period of the Plans and even thereafter,
while undertaking revision thereof or preparing a new
Plan and the same shall not be diverted to the use
other than those specified.
(xii)
The local authorities and the State Government
are directed to take appropriate steps in accordance
with law, for restoration of the user of the open
spaces,
green
playgrounds,
spaces,
gardens,
parks,
common
facilities,
recreational
areas
specified in the Master Development Plan or Zonal
Development Plan or the Layout Plan of the colonies
developed by the local authorities or the private
colonisers in all the six major cities and other towns
of
the
State,
which
stand
diverted
to
other
unauthorised use.
(xiii) The different land uses as specified in the Master
Development Plan or Zonal Development Plan, as the
case may be, form basic character of the Plan and
the land use as specified shall not be permitted to be
(249 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
changed without alteration/modification of the Plan
after following the procedure laid down under the
relevant statute. The change of the land use to be
permitted by way of modification of the Plans must
be in furtherance of the planned development of the
city or town in the larger public interest and not to
sub-serve the interest of an individual.
(xiv) In the residential colonies developed as per the
layout plan approved, where the plan does not
provide for mixed user, no residential land in such
colonies shall be permitted to be used for commercial
or any other uses.
(xv)
The Development Authorities and the State
Government
shall
take
appropriate
steps
for
specifying the locations in the Master Development
Plan
and
the
Zonal
Development
Plan
for
development of multistorey buildings.
(xvi) In the existing residential colonies which are
developed with the infrastructure facilities keeping in
view the number of family units to be settled in the
houses to be constructed in such colonies, no
multistorey buildings shall be permitted to come up
(250 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
adversely affecting the rights of the residents settled
therein.
(xvii)
The local authorities and the State shall
frame the township policy ensuring that no small
colony comes up in small area with no infrastructure
facilities
precipitating
a
situation
wherein
the
residents are condemned to live a miserable life. As
laid down by the Hon'ble Supreme Court in Bondu
Ramaswamy's case (supra), instead of permitting
small colonies coming up in small areas, the local
authorities and the State Government shall make
sincere efforts to undertake the exercise for approval
of integrated layout of residential and other schemes
either by acquisition of the land or undertaking the
exercise of land pooling.
(xviii)
The
local
authorities
and
the
State
Government shall ensure that the norms laid down
for providing green belt on both the sides of the
highways in the width of 100 ft. after the right to way
is strictly followed. Further, the appropriate steps
shall be taken for removal of the unauthorised
construction raised, if any, in violation of the norms
laid down.
(251 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
(xix) The local authorities and the State Government
shall
take
immediate
steps
to
check
the
encroachment and unauthorised constructions over
the public ways and footpaths. The encroachment
made on the footpath and public way by way of
putting stairs, ramps, hoardings or fencing etc. in
various cities and towns of the State shall be
removed in accordance with law, expeditiously.
(xx) The local authorities shall enforce the building bylaws strictly and no construction shall be permitted in
deviation of the approved plan. The construction of
the building shall be regulated by the concerned
officials of the local authorities at all stages and if any
deviation is found, the immediate measures shall be
taken
to
stop
the
construction
and
undo
the
deviation.
(xxi) No deviation from the norms laid down under the
building by-laws shall be permitted. The unauthorised
construction raised violating the building line and the
set backs norms laid down under the Building Bylaws or otherwise by the concerned local authority,
shall not be permitted to be compounded in any
circumstances.
(252 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
(xxii)
The
suggestions
made
by
the
AAG
for
strengthening the enforcement of Building By-laws in
the municipal areas and to check the unauthorised
constructions as reproduced in para no.42 of this
order, shall be enforced by all the local authorities of
the State.
(xxiii)
in
The norms prescribed for compulsory parking
the
commercial
commercial
buildings
buildings
and
constructed
other
within
than
the
municipal area of the various cities shall be enforced
strictly and the buildings shall not be permitted to
commence its functioning unless the completion
certificate is issued by the authority concerned after
being satisfied about compliance of the provisions
incorporated
under
the
relevant
statutes
for
compulsory parking. In the existing buildings where
the parking spaces have not been provided as per the
sanctioned plan or which have been converted to
other use, shall be restored within the time frame to
be notified by the local authority, failing which such
buildings shall be sealed and appropriate penal action
shall be taken against the defaulters in accordance
with law.
(253 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
(xxiv)
Unauthorised development or change of land
use shall not be compounded in exercise of the power
conferred under Section 33A of the Act No.25 of
1982, Section 34 of the Act No.2 of 2009 and Section
34 of the Act No.39 of 2013, as the case may be,
unless and until such unauthorised development or
change of land use sought to be compounded falls
within the parameters of permissible modification of
the plan as contemplated under sub-sections (1) &
(2) of Section 25 of the Act No.25 of 1982 and other
relevant statutes and such modification to the Plans
is actually carried out by following the procedure laid
down.
(xxv)
No change of land use in terms of sub-section
(2) of Section 73B of UIT Act or regularisation of
unauthorised change of land use in terms of subsection (3) of Section 73B of UIT Act, shall be
permitted
without
modification
of
the
Master
Development Plan or Zonal Development Plan, as the
case may be, in accordance with the procedure laid
down. Further, no modification of the Plans for the
said
purpose
shall
be
permitted
by
the
State
authorities unless such modification is expedient in
(254 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
the larger public interest to achieve the basic object
of planned development.
(xxvi)
The Development Authorities and the State
Authorities shall take appropriate steps to ensure
that the industrial area is located away from the
residential area and shall provide for green areas
between the industrial area and the residential area
to buffer the residential areas.
(xxvii)
The State shall constitute a high power
committee consisting of inter alia the experts of the
field, to frame the Relocation Scheme with regard to
shifting
of
hazardous
industries/industrial
areas
located in close vicinity of the residential colonies,
after conducting survey in all the major cities of the
State.
The
report
of
the
committee
with
the
recommendations to take the appropriate measures
for shifting of industries so as to save the citizens
from ill-effects of industrial activities, shall be placed
before this court.
(xxviii)
The State is directed to furnish complete
details regarding availability of the pasture land in
various districts of the State of Rajasthan as on the
date of commencement of the Act of 1955; the
(255 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
diversion of the user of the pasture land permitted
after commencement of the Act of 1955 and the land
set apart as pasture land after commencement of the
Act of 1955. The State shall also furnish the district
wise details of unauthorised occupation over the
pasture land.
(xxix)
Pending
consideration
of
the
issue
with
regard to the diversion of the pasture land for other
uses by this court, the State Government is directed
to take appropriate steps to check and remove
unauthorised occupation over the pasture land by
unscrupulous persons in various villages of the State
forthwith.
(xxx)
The State Government is directed to produce
the original record of the proceedings taken for
permitting the change of the user of the land
measuring 1222.93 hectares situated between KhoNagoria to Goner Road, covered by the Master
Development Plan of Jaipur, 2011 from ecological
zone to residential and mixed land use, by way of
zonal layout plan of Sector 34 and Sector 35 for
perusal of this court on the next date of hearing. No
permission for raising construction on the aforesaid
(256 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
land shall be granted by the concerned local authority
and the status quo as it exists today shall be
maintained qua the open land in the aforesaid area
till further orders.
(xxxi)
The State Authorities shall take effective
steps for conservation and preservation of natural
resources i.e. hills, forests, rivers, other water bodies
and catchment area. Further, the State Authorities
shall undertake a drive to remove all encroachments
made over the natural resources noticed hereinabove
and the unauthorised activities operating thereon and
shall
restore
appropriate
such
action
natural
resources
including
the
by
taking
cancellation
of
allotment made in defiance of provisions of Section
16 of the Act of 1955.
(xxxii)
The respondents local authorities and the
State Government shall comply with the directions
issued as aforesaid within a period of four months.
(xxxiii)
The compliance report shall be filed by the
respective local authorities and the State Government
before the next date of hearing.
(xxxiv)
The
Rajasthan,
Chief
the
Secretary,
Principal
Government
Secretary,
of
Urban
(257 of 257)
[CW 1554/2004 AND FIVE CONNECTED MATTERS]
Development & Housing Department, Government of
Rajasthan and the Secretary, Department of Local
Self Government, Government of Rajasthan shall
ensure the compliance of the directions issued by this
court as aforesaid.
(xxxv)
The interim order dated 9.12.10 passed by
this court shall stand modified in terms of the
directions issued as aforesaid.
206. The applications preferred by various applicants
for change of the land use of the land forming part of
ecological zone/green belt/peripheral control belt shall
be open to be considered by the State Government
strictly in terms of directions issued as aforesaid.
Consequently, all the applications preferred by the
applicants before this court seeking permission for the
change of land use shall stand disposed of.
The matters shall be listed for perusal of the
compliance report and further orders on 22.5.2017.
(ARUN BHANSALI),J.
Aditya/
(SANGEET LODHA),J.