Panchu Lal Paharia v. Rajneesh Gupta

S.B. Civil Writ Petition No. 4264/2011 1. Panchu Lal Paharia S/o Shri Mohan Lal Paharia, aged about 63years, R/o 46-A, Income Tax Colony, Tonk Road, Jaipur. 2. Smt. Nirmala Paharia W/o Shri Panchu lal Paharia, aged about60 years, R/o 46-A, Income Tax Colony, Tonk Road, Jaipur. ----Petitioners Versus 1. Rajneesh Gupta S/o Shri B.K. Gupta, R/o 1993, MorizaMension, Ram Lalaji Ka Rasta, Johari Bajar, Jaipur. –---Respondent 2. Jaipur Development Authority Appellate Tribunal, JDA,Jawahar Lal Nehru Marg, Jaipur.3. Jaipur Development Authority through Its Secretary, J.L.N.Marg, Jaipur. 4. Dy. Commissioner, Zone-4, Jaipur Development Authority,J.L.N. Marg, Jaipur. ----RespondentsConnected With S.B. Civil Writ Petition No. 8366/2012 1. Jaipur Development Authority through Secretary, IndiraCircle, JLN Marg, Jaipur. 2. The Deputy Commissioner, Zone-4, Jaipur DevelopmentAuthority, Jaipur. –--Petitioners/Respondents No. 1 and 2 Versus 1. The Appellate Tribunal, Jaipur Development Authority, IndiraCircle, JLN Marg, Jaipur.Circle, JLN Marg, Jaipur. –---Proforma-Non-Petitioner 2. Rajnish Gupta S/o Shri B.K. Gupta, 1993, Morija Mansion,Ramlalla Ji Ka Rasta, Johari Bazar, Jaipur. –---Non-Petitioners/Appellant 3. Panchu Lal Pahadiya S/o Shri Mohanlal Pahadiya, R/o 46-A,Income Tax Colony, Tonk Road, Jaipur. 4. Smt. Nirmala W/o Shri Panchu Lal Pahadiya, R/o 46-A,Income Tax Colony, Tonk Road Jaipur. –---Non-Petitioners/Respondents No. 3 & 4 For Petitioner(s) : Mr.Sudhanshu Kasliwal, Sr.Adv. with Ms.Suruchi Kasliwal, Adv. & Mr.Krishna Verma, Adv.Mr.Anuroop Singhi, Adv. with Mr.Devansh Sharma, Adv.For Respondent(s): Mr.Manoj Sharma, Adv. HON'BLE MR. JUSTICE ASHOK KUMAR GAUROrder 12/09/2022 The issue involved in both the writ petitions is common andas such with the consent of learned counsel for the parties, boththe writ petitions are being decided by the present common order. S.B.Civil Writ Petition No.4264/2011 has been filed bythe petitioner-Pachulal Pahadiya challenging the order/judgmentdated 01.03.2011, passed by the JDA Appellate Tribunal(hereinafter shall be referred to as “the Tribunal”) in AppealNo.103/2010 and prayer has been made to dismiss the appealfiled by the respondent No.2-Rajneesh Gupta before the JaipurDevelopment Appellate Authority. The petitioner-JDA has filed S.B.Civil Writ Petition No.8366/2012 to set aside the judgment dated 01.03.2011,passed by the Tribunal and with the further prayer to dismiss theappeal filed by the respondent No.2 – Rajneesh Gupta. The Tribunal has decided two appeals by a common order i.e.Appeal No.103/2010 and Appeal No.87/2010, filed by the privaterespondent. The private respondent filed appeal No.87/2010 against thenotice dated 08.04.2010 issued by the JDA and filed appealNo.103/2010 challenging the report of Second Committee dated16.02.2010 and order/site plan dated 14.05.2010. The facts, in the nutshell as pleaded before the Tribunal &High Court, are that on 22.11.1981 one plot bearing No.K-42 inIncome Tax Colony, Tonk Road, Jaipur was originally allotted byKisan Grah Nirman Sahakari Samiti Limited (hereinafter shall bereferred to as “Housing Society) in favour of Rajen Jindal inScheme No.5, measuring 50x75 yards i.e. 416.66 Sq. Yards. The Housing Society had submitted a list of members, inwhich the said plot was shown at Serial No.42. The JDA issued alease deed/Patta on 30.09.2003 and the lease deed issued by theJDA was registered in the office of Registrar, Jaipur-I on10.03.2004. The respondent No.1 purchased the aforesaid plotfrom Smt. Rajen Jindal through registered sale deed andpossession was handed over to him on 28.08.2006. The Deputy Commissioner, Zone-IV, JDA issued order oftransfer of Patta/lease deed on 16.11.2009 in favour of therespondent No.1 showing the plot size as 50 yards x 75 yards. The Housing Society had submitted a list of members, inwhich the said plot was shown at Serial No.42. The JDA issued alease deed/Patta on 30.09.2003 and the lease deed issued by theJDA was registered in the office of Registrar, Jaipur-I on10.03.2004. The respondent No.1 purchased the aforesaid plotfrom Smt. Rajen Jindal through registered sale deed andpossession was handed over to him on 28.08.2006. The Deputy Commissioner, Zone-IV, JDA issued order oftransfer of Patta/lease deed on 16.11.2009 in favour of therespondent No.1 showing the plot size as 50 yards x 75 yards. The petitioners - Panchu Lal Pahadiya and Smt. NirmalaPahadiya in S.B.Civil Writ Petition No.4264/2011 purchased oneplot measuring 469.52 Sq. Mtrs. along-with constructed boundarywalls by way of registered sale deed from one Ajit Kumar. Vijay PalSingh and Ajit Kumar were sons of Kumbha Ram Arya and wererecorded Khatedar of agricultural land admeasuring 27 Bigha 17Biswa, in Village Durgapura and Ramjipura, Tehsil Sanganer,District Jaipur. An agreement dated 03.01.1972 was executed by these twopersons and they sold the land to Kisan Grah Nirman SahkariSamiti Ltd. measuring 23 Bigha and 7 Biswa out of total land of 27Bigha and 17 Biswa. Shri Vijay Pal Singh sold his half share vide sale deed dated20.04.1972 and Ajit Kumar sold his share vide sale deed dated07.08.1972 to the Housing Society and total 4 Bigha and 10 Biswaremained with the Khatedars. The above-named two petitioners applied with the JDA forconversion of land and issuance of Patta on the basis of registeredsale deeds dated 26.12.1998 purchased from Ajit Kumar and theyclaimed to be in actual physical possession. The Deputy Registrar Commissioner, Zone-IV, had written aletter to the petitioners informing them that JDA had adopted dueprocess of law and proceedings of Section 90-B of the RajasthanLand Revenue Act, 1956 were done in favour of the Society andPattas were issued in accordance with the approved plan on thebasis of possession of the plot. It was also mentioned that detailedenquiry was conducted by High Power Committee and the landpurchased by the petitioner-Panchu Lal Pahadiya, throughregistered sale deed, from erstwhile Khatedars out of KhasraNos.205, 206 and 207, was part of the land, already sold byKhatedars to the Society. The petitioners submitted a detailed representation againstthe letter dated 18.12.2009 on 30.12.2009. The JDA on the basisof representation of the petitioners constituted a new Committeeand a report dated 16.02.2010 was prepared and the Authoritiescame to the conclusion that land sold by Ajit Singh ad-measuring 469.52 Sq. Mtrs. was not part of the land sold to the Society andPatta in respect of Plot No.K-42 in favour of Smt. Rajen Jindal wasissued without physical verification. The JDA-Authorities on the basis of Second CommitteeReport issued notices to the respondent No.1 on 08.04.2010 andby order dated 14.05.2010, the lease deed issued in favour of therespondent No.1, was ordered to be modified and only landadmeasuring 158.33 Sq. Yard, was available for the respondentNo.1. The Tribunal after considering the pleadings of the parties,while deciding the appeals filed by the respondent No.1 framedissue, as whether the JDA Authorities could have amended orcancelled, validly issued lease deed in favour of a person at thereown level without hearing the party concerned. The Tribunal has recorded a finding that the respondent No.1had purchased the plot in question and lease deed was executedand on a complaint being filed, one Committee was constitutedand no illegality was found in respect of title of the plot in favourof the respondent No.1. The Tribunal has found that the JDA-Authorities constituted a Second Committee and without hearingthe respondent No.1, the said Committee prepared the report andon that basis, the impugned order dated 14.05.2010 was issued. The Tribunal after considering the pleadings of the parties,while deciding the appeals filed by the respondent No.1 framedissue, as whether the JDA Authorities could have amended orcancelled, validly issued lease deed in favour of a person at thereown level without hearing the party concerned. The Tribunal has recorded a finding that the respondent No.1had purchased the plot in question and lease deed was executedand on a complaint being filed, one Committee was constitutedand no illegality was found in respect of title of the plot in favourof the respondent No.1. The Tribunal has found that the JDA-Authorities constituted a Second Committee and without hearingthe respondent No.1, the said Committee prepared the report andon that basis, the impugned order dated 14.05.2010 was issued. The Tribunal has come to the conclusion that if anyregistered lease deed or registry of a plot has been done, then thesame cannot be cancelled or amended by the JDA Authorities andsuch power is only available to the Civil Court and the JDA-Authorities at their own, cannot cancel the lease deed. The Tribunal further came to the conclusion that even theissue of possession of plot in question not being with therespondent No.1 was subject-matter of dispute before the CivilCourt in the suit and as such the JDA-Authorities could not havecancelled or modified the lease deed only on the basis ofpossession, not being with the respondent No.1. Learned counsel for the petitioners have raised followingsubmissions before this Court:- 1.The Tribunal has seriously erred in not considering theSecond Committee Report prepared by the JDA and wrongly reliedonly on First Report. 2.The Tribunal only on the basis of First Report wronglyconcluded that the erstwhile owner of the land, sold the land twicei.e. to the Society as well as to the petitioners. 3.The finding of the First Report was prima-facie wrong as thetwo separate plots admeasuring 469.52 Sq. Mtrs. and 561.57 Sq.Mtrs. were sold to the petitioners Panchu Lal Pahadiya and NirmalaPahadiya, whereas in fact only one Plot admeasuring 469.52 Sq.Mtrs. was sold to both of them by two separate sale deeds, halfundivided share to each of them. 4.The Tribunal has wrongly come to the conclusion that therewas cancellation of Patta but in fact there was only a modificationof lease deed/Patta and as such the JDA-Authorites were withintheir power to do so. 5.The Tribunal has failed to consider that the person (employeeof JDA) - Heera Lal who issued lease deed in respect of Plot No.K-42, did not Act legally and even Lokayukta had asked for takingaction against the said person. 6.The petitioners are in possession of the land from16.12.1998 and even no suit for declaration and possession hasbeen filed against the petitioners and limitation period has alsoexpired long back. On the contrary learned counsel Mr. Manoj Sharma appearingfor the respondent submitted that finding of the JDA-Tribunal donot require any interference by this Court under Article 227 of theConstitution of India, as the findings do not suffer from anyperversity. Learned counsel submitted that the JDA had no Authority torevise/cancel the registered lease deed and registered documentcan only be cancelled by the Civil Court. The appointment of Second Committee and its report waswithout hearing to the petitioner. The report relating to not havingpossession of the plot in question was also wrongly formed by theJDA-Authorities, as the JDA itself in the Civil Court, in suit forinjunction had stated that possession of the property was with therespondent No.1. On the contrary learned counsel Mr. Manoj Sharma appearingfor the respondent submitted that finding of the JDA-Tribunal donot require any interference by this Court under Article 227 of theConstitution of India, as the findings do not suffer from anyperversity. Learned counsel submitted that the JDA had no Authority torevise/cancel the registered lease deed and registered documentcan only be cancelled by the Civil Court. The appointment of Second Committee and its report waswithout hearing to the petitioner. The report relating to not havingpossession of the plot in question was also wrongly formed by theJDA-Authorities, as the JDA itself in the Civil Court, in suit forinjunction had stated that possession of the property was with therespondent No.1. Learned counsel submitted that the petitioners had neverchallenged the report of the First Committee and they have basedtheir claim on the alleged sale deed dated 26.12.1998, whereasthe land in question was already sold to the Society and theSociety had issued Pattas of the Plots to its members and leasedeeds were issued after completing the proceedings of Section 90-B of the Land Revenue Act, 1956. In support of his submissions, learned counsel for therespondents has placed reliance on the following judgments :- 1.Poonam Chand Kasliwal Vs. Jaipur DevelopmentAuthority and Ors. reported in RLR 1998 (2) Page 204; 2.M/s.Anukampa Avas Vikas Pvt. Ltd. & Anr. Vs. State ofRaj. & Anr. reported in RLR 2008 (3) Page 145; 3.Sunil Panna Lal Banthia & Ors. Vs. C & I Dev. Corpn. ofMaharastra Ltd. & Ors. reported in JT 2007 (4) SC 271; 4.Syed Wasif Husain Rizvi Vs.Hasan Raza Khan and Ors.reported in AIR 2016 All 52 (FB). Learned counsel further places reliance on the judgmentspassed by the co-ordinate Bench of this Court in S.B.Civil WritPetition No.3150/2011 (Mahendra Goyal & Ors. Vs. State ofRajasthan & Anr.) decided on 11.05.2012 and further inS.B.Civil Writ Petition No.1248/2011 (Deep Darshan GrahNirman Sahakari Samiti “Sopan” Vs. State of Rajasthan &Anr.) decided on 29.02.2016. The operative portion of the judgment passed by the Co-ordinate Bench of this Court in the case of Deep Darshan GrahNirman Sahakari Samiti (supra) is quoted hereunder:- “It is well settled that registered sale/lease deedscontractual in nature cannot be cancelled by a partythereto. Only a suit for declaration and cancellationof such lease deed is the remedy. The UrbanImprovement Trust, Ajmer has filed such a suit forcancellation of the aforesaid lease deed dated20.08.2009, 04.11.2009 and 03.06.2010, as statedby AAG, Mr. G.S. Gill. In the state of law, I aminclined to quash and set-aside the impugned orderdated 22.01.2011 (Annexure-23) passed by theUrban Improvement Trust, Ajmer. It is accordinglyset-aside. It is however made clear that thequashing and setting aside of the orderdated22.01.2011 is not a reflection of the merits ofthe petitioner Samitis' case. The jurisdictional civil court shall decide the suit before it uninfluenced bythis order in accordance with the pleadings and theevidence led thereon by the parties to the civil suit.The suit be decided within 12 months, and ifnecessary on the basis of day to day hearing as thesuit filed would pertain to a matter of greatimportance involving public land. All the petitionsstand allowed accordingly. A copy of this order beplaced in each file.” I have heard the submissions made by learned counsel forthe parties and perused the material available on record. This Court has to consider validity of order dated 01.03.2021passed by the JDA Tribunal, as whether such order suffers fromany legal infirmity. court shall decide the suit before it uninfluenced bythis order in accordance with the pleadings and theevidence led thereon by the parties to the civil suit.The suit be decided within 12 months, and ifnecessary on the basis of day to day hearing as thesuit filed would pertain to a matter of greatimportance involving public land. All the petitionsstand allowed accordingly. A copy of this order beplaced in each file.” I have heard the submissions made by learned counsel forthe parties and perused the material available on record. This Court has to consider validity of order dated 01.03.2021passed by the JDA Tribunal, as whether such order suffers fromany legal infirmity. This Court finds that the Tribunal has come to the conclusionthat a lease deed, which was executed in favour of the respondentNo.1, could not have been modified or cancelled by reducing thearea as no such power is available with the JDA-Authorities and itis not provided under the JDA Act that lease deed/Patta issued bythe JDA-Authorities, can be revoked/cancelled by them. This Court finds that power of revocation of allotment orcancellation of lease deed has only been inserted in Chapter VIIIof the JDA Act, 1982 by way of Amendment Notification dated15.04.2021 and as such Section 54(D) has been inserted. This Court finds that at the relevant time, when the JDA hasissued the impugned order dated 14.05.2010, no such power wasavailable with the Authorities and as such the action of the JDA-Authorities, cannot be approved. This Court further finds that the power of cancellation oflease deed can only be exercised by the Competent Civil Court, as has been held by this Court in the case of M/s. Anukampa Avas Vikas Pvt. Ltd. & Anr. Vs. State of Raj. & Anr. (supra). This Court further finds that the Tribunal has further rightlycome to the conclusion that the JDA-Authorities cannot appointsuccessive committees and even if such committees areappointed, then at least prior notice is also required to be given tothe person concerned before any decision is taken affecting rightsof such person, in whose favour lease deed has already beenissued. This Court finds that in the present case admittedly theSecond Committee was constituted on the basis of representationgiven by the petitioners and the report of the Committee wasprepared and later on decision was taken to modify/reduce thearea of the respondent No.1 in respect of a lease deed which wasduly executed in his favour. The submission of learned counsel for the petitioners thatthe JDA-Tribunal has erred in placing reliance on First Report andthe First Report was prima-facie wrong, suffice it to say by thisCourt that the respondent No.1 was having validly executed leasedeed in his favour and appointment of Second or SuccessiveCommittee could not have defeated, his right to own the plot inquestion. The submission of learned counsel for the petitioner that theJDA-Authorities were within their domain to modify the lease deedand in fact they had not cancelled the lease deed of the petitionersin entirety, suffice it to say by this Court that if the Authorities hadmade up their mind and reduced the area of the respondent No.1by making him entitled only for 158.33 Sq. Mtrs., the samenecessarily resulted into modification and altering the size of the plot and as such the JDA-Authorities have no power to pass suchan order. This Court finds that no error has been committed by theTribunal while passing the order and accordingly the writ petitionsare dismissed. (ASHOK KUMAR GAUR), J Monika