Gulab Kothari v. State of Rajasthan [Order dated 12.01.2017]

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.
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, 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,

PNMendola, 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,JLN 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.

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, a friend of the Court)

Mr.Abhinav Bhandari, Advocate on behalf of petitioners in Writ Petition No.5642/08, 5645/08 and 5907/08.

Mr.Poonam Chand Bhandari-petitioner, present-in-person.

Mr.N.M.Lodha, Advocate General alongwith 

Mr.VDDadhich                 ) 

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 aletter received from Shri Gulab Kothari, Editor, Rajasthan Patrika, a leading daily newspaper of the State, containing allegations related to gross violation of the Master Development Plan of Jaipur and other cities, accompanied by various news items published inthe said newspaper, as a writ petition (PIL) and issuednotices 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 MasterPlan prepared covers various essential land uses e.g., residential, commercial, industrial, Government andSemi-Government offices, Bus Stand, Transport Nagar,Common community facilities, Parks, Open spaces,Network of the Roads and also the Periphery ControlBelt required to be developed for projected population.Regarding the allegations of deviation of Master Plansas raised in the letter petition, the respondents took specific stand as under:

“(3) That so far as the allegation of the deviationas raised by the letter writ petition are concerned, the answering respondents humbly submit thatsome deviations are there and some are stilltaking place but then until and unless the generalcivics sense are developed in public at large andthe public is made aware that the deviation ofmaster plan is not in their interest, without theactive cooperation of public at large, theanswering respondents feel themselves not sohappily equipped with the measure and means to control such deviation

(4) That the answering respondents humblysubmit 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, theanswering respondents alone should not beblamed. It is the public which has to ultimatelyimplement the master plan by extending thereactive cooperation, by giving cooperation of sucha nature that everybody abides by the masterplan. If nobody commits breaches or dare toviolate the master plan then perhaps theanswering respondents will be able to implementit in toto. The general deviation which has beenpointed is because of the utilisation of the areasfor the commercial and residential purposes bythe private coloniser while developing their privatecolonies. Major factor which has been detected asthe root cause for that alleged violation is that thepeople do not want to go far from the town andmaximum people want to reside by the nearbyareas irrespective of the different land use of that area.

 

The another reason for the alleged deviation which in the respectful submission of theanswering respondent is promulgation of the Rajasthan Municipalities (change of land use)Rules, 2000. These rules have been enforcedw.e.f. 31.3.2000 vide publication in RajasthanGazette. The copy of the same is annexedherewith and marked as Annexure R/2.

Now from the above narration, it is clear tha 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 landused is not to be granted merely by asking underthe Rules of 2000 but is to be granted in guardedmanner at the instance of the respective committees. In this way, the purpose of the writpetition can safely be said to have been fulfilled asto prevent the future deviation of the land use thevarious committies has been constituted to checkthe 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 publicamenities zone provided under the Master plan ofrespective towns.

2. Deviation made in the original Master plans ofeach city from time to time in respect of aforesaidzones.

3. Deviation, if any, permitted in respect of theaforesaid zones while approving the developmentscheme in the aforesaid towns.

4. The construction or development which haveactually taken place in respect of aforesaid zonecontrary to Master plan.

5. Action, if any, taken by the authorities to removethe construction or development that have takenplace in each town contrary to Master plan. Theaforesaid 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 shallbe present on the next date of hearing to explainthe matter.”

4. In compliance of order dated 25.4.06 passed by this court as aforesaid, the respondents submitted acompliance 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 inthe land use of areas reserved in the Master Plans havebeen made by the Committee constituted by the StateGovernment under Rajasthan Municipalities (Change inLand Use) Rules, 2000, on the basis of therecommendations made by the local bodies and the sitereports of the land. According to the respondents, thechange in the land use permitted is very small lookingto the overall areas reserved for various purposes inthe Master Plans. 

5.Later, the State filed yet another report on 10.7.07giving details of deviations from the proposal of theMaster Plans of the various cities. The respondents have also placed on record copies of certain proceedings taken by the State Level Change of Land Use Committee permitting the change of land use ofvarious categories of the land as specified under theMaster 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 therequest of learned Additional Advocate General, furthertime 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 DevelopmentAuthority ('JDA'), Jaipur, was impleaded as partyrespondent in the matter.

9.On 5.12.07, this court requested the counselsappearing as amicus curiae to analyse the detailsubmitted by the respondents about the deviations. Thecourt directed that the amicus curiae shall further placeon record their submissions on the report aboutdeviation and possible suggestion to remit assistance inthe six townships of Rajasthan separately. TheAdditional Advocate General appearing on behalf of theJDA was directed to furnish like information aboutdeviations made in Master Plan/Scheme of Jaipur. Atthe same time, the court passed an interim orderrestraining the respondents from making further deviation in the green belt identified in the following terms:

 

“Meanwhile, until further orders, no deviations inthe green belt identified in the Master Plan of allthe six major townships governed by above ordershall be permitted by the respondents.”

10.On an application preferred on behalf of the Statefor vacating the interim order dated 5.12.07, this courtvide order dated 28.4.08 modified the interim order, inthe following terms:

“In view of the mandates of Section 25 of the Actand the rules framed under the Municipal Statutes,the State Authorities are well-protected and theymay go ahead with the deviation if any in the Master Plan for the benefit of the public at large in accordance with law.

 

    The interim order passed by this Court, inthis 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 writpetition 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 and5645/08 respectively and accordingly, these petitions are listed for consideration alongwith the main WritPetition (PIL) No.1554/04.

12. A brief reference of the controversy raised invarious 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 petitionerhas questioned the change of land use made in theJaipur City in deviation of the Master Development Plan after 1.9.98. The petitioner has averred thatrespondent 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, thepetitioner has placed on record certain notifications issued by the State Government proposing to changethe land use. 

    

        The respondents in reply to the petition, havetaken 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 thatthe change of the land use has been permitted afterfollowing the provisions of Section 25 of the Act No. 25 of 1982. It is submitted that the change of the land usein terms of the provisions of Section 25 of the Act No. 25 of 1982, does not amount to review of theMaster Development Plan so as to attract theprovisions 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, coveredby 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.The allegation of the petitioner is that the said sectorplans have been prepared and approved under theinfluence of Senior IAS officers who have planned theirown 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 planhas been framed to suit the requirement of high upsand for that purpose even the alignment of proposedroads, have been changed to a great extent. It issubmitted that the conversion of the land of ecologicalzone to residential and mixed land use by the StateAuthorities is in defiance of the undertaking given bythe JDA and State and the directions issued by thiscourt in the matter of “Yashwant Sharma vs. State of Rajasthan”, decided on 17.3.05. 

        Responding to the notice, the respondents havefiled a reply to the petition taking the stand that whenthe 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. 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 Roadand Goner Road is all private khatedari land, which has not been acquired by the JDA. It is submitted that it isnot possible for the JDA to acquire such huge land for maintaining it as green belt and therefore, keeping inview the growing pressure on the land of housing and the fact that this entire land is private khatedari landand it is in close vicinity of Jaipur City, it would be difficult to ensure that the housing colony do notdevelop on this land and accordingly, visualizing the chances of unplanned growth adverse to the interest ofthe 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 petitionerhas questioned legality of the action of the respondents in issuing the notification dated 16.4.05 permitting theuse of the land in 200 ft. wide strip in both the sides of the road on Jawahar Lal Nehru (JLN) Marg from south 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 InternationalAirport with JLN Marg are in pipeline and JLN Marg isgoing to be a showcase for international and domestictourists 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 isfree of traffic jams. It is submitted that the change ofland use has been permitted in conformity with theprovisions of Section 25 of the Act No.25 of 1982. 

16.By way of Writ Petition No.5907/08, the petitionerhas 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 Aannexed with the writ petition, which reveal that by way of various orders, even the land use of the landforming part of green belt, ecological zone, park, recreational activities, catchment area and pasturage, has been changed. While questioning the modificationsmade as aforesaid, the petitioner has specificallyprayed that the JDA may be directed not to part withthe land recorded as gair mumkin nadi etc. and in thisregard 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 changethe land use of charagah land and not to allot charagah land to anybody and further that if in any case, thechange of land use of charagah is unavoidable, then anequal area of land should be reserved as charagah.That apart, it is prayed that the respondents may bedirected to immediately take up steps regarding Zonal Development Plan as per Section 23 of the Act No.25 of1982 and publish the same immediately. 

    The respondents in their reply to the writ petitionhave taken the stand that the Master DevelopmentPlan is not a static document and the modificationshave been permitted by the State Government inaccordance with provisions of Section 25 of the ActNo.25 of 1982. Regarding Zonal Development Plan, it is submitted by the respondents that JDA has alreadyembarked 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 issubmitted that Section 16 of the Rajasthan TenancyAct, 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 proposing to develop a Shooting Range Project in village-Todiramjanipura, Tehsil-Sanganer, District-Jaipur, on the land which is shown int he 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 which11.17 hectares was owned by JDA, 0.9779 hectare was owned by Department of Forest and 2.95 hectare wasowned by private khatedar tenants. It is submitted that the Government of India has permitted diversion of theforest land vide order dated 13.4.06 with certainconditions. It is submitted that compliance of theconditions imposed was ensured vide communicationdated 12.5.06 and the land acquisition proceedings were initiated for acquiring the khatedari land. It issubmitted that challenge to the land acquisition proceedings laid before this court has failed. Thecategorical stand of the respondents is that the JDA has already developed fully functional Shooting Rangein December, 2007 and in February, 2008, reputednational and international level shooting competitionswere held. According to the respondents, the entireland which is used for developing the Shooting Rangewas not reserved for the purpose of construction ofroad as claimed. It is submitted that the proposal forthe 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 madeby the State and Local Authorities from Master Development Plans of major cities with the suggestions to issue directions to the respondents in the following terms:

“22. That in view of the material which has comeon record it would be just and proper to suggests that (i) the local bodies (Municipalities, UrbanImprovement Trust, Jaipur Development Authority, Jodhpur Development Authority etc) be directednot to grant any permission contrary to masterplan; (ii) the Registration Department be also apprised of the master plan of the respective areasand should be bound down not to register anydocument contrary to master plan and if possible,some provisions may also be made in the Registration Act; (iii) deviations which have so farbeen made, but have not been acted upon may notbe permitted to go ahead with the deviation and(iv) special care should be taken to and maintainthe peripheral control belt, which is the lung of atown (v) all changes, which as detailed above arevoid ab-initio may be declared as such and thesame may be given effect to under the supervisionof the Court.”

19. The respondent-JDA while filing the written submissions with regard to interim compliance reportsubmitted by the Court Commissioners, has taken the stand that the change of the land use is permitted afterdue consideration of the objections/suggestions received pursuant to the notice issued under Section 25of the Act No.25 of 1982. It is submitted that the total area of Jaipur Region is about 3 lac hectare againstwhich the area of the changed land use is only hectare, which is very minimum looking to the totalarea 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 responsibleofficer 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. 

22. On 9.12.10, after due consideration of the positionregarding deviation from Master Plans, the courtpassed an interim order in the following terms:

“From Jaipur Development Authority, Mr. P.Aravind is present in person and he has submitted a charts howing 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; UrbanImprovement Trust, Ajmer; Urban ImprovementTrust, Bikaner; Urban Improvement Trust, Kota andUrban Improvement Trust, Udaipur to submit thedetails of the changes in the master plan after theCommittee has submitted the report on 21.1.2009.

    We also deem it proper to direct the aforesaidauthorities to specifically point out how manychanges have been made in the ecological zonealong with the area covered under the change.

    Let the requisite information be filed within aperiod of three weeks from today supported by anaffidavit.

    As changes are also being made in the ecological zone and periphery belt including green belt, wedeem 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 change is found to be illegal, the responsibility shall be fixed on the individual officer.” (emphasissupplied)

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 in person, Mr.Abhinav Bhandari, appearing for thepetitioners (in Writ Petition No.5642/08, 5645/08 and5907/08), 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 Planis prepared under the provisions contained in UIT Act, the Act No.25 of 1982, Jodhpur Development AuthorityAct, 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 oramenities are matters of great public concern, whichare taken care of while preparing a Master Development Plan. Learned amicus curiae submitted that the ecological zone, green belt, periphery controlbelt, open spaces, parks etc. in terms of the phrase asused 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 forestand 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 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 thechange of land use as many as 84 in numbers alsoindicate that huge land is sought to be diverted fromecological zone/green belt/peripheral control belt.Learned counsel submitted that with the urbanhabitation in the cities and towns, since the ambient airin 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/ecologicalzone/peripheral control belt, ensuring adequate numberof plants, trees and shrubs to generate adequate quantum of oxygen, ambient quality of air for ensuringquality of life to the citizens and therefore, once anarea is earmarked as ecological zone/peripheral controlbelt/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 ofthe Hon'ble Supreme Court in the matter of 'Manohar 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 cannotbe permitted to be put to other uses i.e. commercial,residential, institutional and industrial etc.. Learnedamicus curiae submitted that the study of the Master Development Plans notified over the years, reveals that every time when a new Master Development Plan isprepared for a city, the area originally earmarked in thepreceding Master Development Plan as periphery belt isobliterated and its boundaries shifted, only to form thearea/villages newly added as a new peripheral controlbelt. Learned amicus curiae submitted that thismethodology is not pragmatic and defies the entirepurpose of having a control belt around the coredeveloped area in the Master Development Plan and therefore, the area shown as control belt in the existingMaster Development Plan should not be given upentirely for development in the new MasterDevelopment Plan. Learned amicus curiae submittedthat before shifting the control belt while expanding thearea of the city, a buffer zone/green zone of at least one kilometer should be left around the periphery ofthe core developed area. Learned amicus curiaesubmitted that no change of the land use should be permitted in this buffer zone, which will help tomaintain 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 73Bof UIT Act, which provide for subsequent modifications of the Plans, permits only the modifications which inthe opinion of the authority do not affect materialalteration in the character of the plan and which do notrelate to the extent of the land uses or the standards ofthe population density. Learned amicus curiae would 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. Learnedamicus curiae submitted that various provisionsincorporated providing for framing of the Master Development Plan and modification/review thereof have to be read not in isolation, but as a whole, in thecontext of purpose of their enactment. Learned amicuscuriae would submit that the modification of the Master Development Plan is permissible as an exception in thelarger 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 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 2001-2023, 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 inthe 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 of private colonizers/builders/developers, who have failed to adhere to the norms prescribed, giving a setback to the purpose sought to be achieved by the Master Development Plans. Learned amicus curiaesubmitted that though, before passing the prohibitory order by this court while preparing the MasterDevelopment Plan, the authorities had made some provisions for green belt/peripheral controlbelt/ecological zone in the respective Master Development Plans but after prohibitory order beingpassed by the court, a novel method has been adopted by revising the plans and shifting the places meant forecological 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 requirement of ecological zone/green belt and 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 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 provisions of the various enactments permitting modifications of the Master Development Plans duringtheir operative period. Learned amicus curiae submittedthat the adequate provisions should be made making environmental impact assessment as mandatory pre-requisites 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 to10 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 curiae has relied upon a decision of the Hon'ble Supreme Court in the matter of 'Bondu RamaswamyVs. Bangalore Development Authority', (2010) 7 SCC129. 

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 Planshould contain adequate provisions for re-location of industrial set ups operating in the core developed areaand should be shifted beyond the area covered byMaster Development Plan. 

29.Learned amicus curiae would submit that the roads shown in the Master Development Plan should beearmarked by mounting pillars on the actual site in order to ensure that such land remains intact at the time of execution and is not encroached upon by anybody. Learned amicus curiae suggested that theroad width for the area reserved for residential purposes, industrial purposes and the ring road shouldnot be less than 80 ft., 200 ft. and 300 ft. respectively. Similarly, appropriate width should also be prescribedfor Major District Roads (MDR), State Highway (SH) andNational Highways (NH) for the entire State. 

30.Learned amicus curiae submitted that as per thenorms laid down and the provisions made in the MasterDevelopment Plan, 100 ft. wide strip land on the eitherside of the Highways must be strictly reserved for thepurpose of tree plantation. Learned amicus curiaesubmitted that such strips of green belt should beconverted into forest land and no conversionwhatsoever should be permitted. Learned amicus curiaeurged that the conversion made and any constructionraised in the width of 100 ft. on the either side of theHighways, must be removed and the green strips as perthe norms laid down must be restored. 

31.Learned amicus curiae while reiterating that theprotection of the environment, open spaces forrecreation and fresh air, playgrounds for the children and other amenities for the residents of the cityspecified in the Master Development Plan or the colonydeveloped, cannot be permitted to be converted to anyother use whatsoever, but the respondents have evenproceeded to permit the change of land use of the landsearmarked in the Master Development Plan for the saidpurposes. Learned amicus curiae would submit thatchange of use of such land earmarked in the MasterDevelopment Plan for the aforesaid purposes is againstthe public interest and defeats the very purpose of thestatutory mandate to ensure the planned developmentso as to attain a quality of life for the residents of thecity and therefore, all such conversions permitted indefiance of the Master Development Plans deserve tobe 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 “BangaloreMedical Trust vs. B.S.Mudappa”, (1991) 4 SCC 54,“Virendra Gaur vs. State of Haryana”, (1995) 2 SCC577, “M.C.Mehta vs. Union of India”, (1996) 4 SCC351, “M.C.Ludhiana vs. Balinder Bachan Singh”, (2004)5 SCC 182, “M.C. Mehta vs. Union of India”, (2004) 6SCC 588, “Sushanta Tagore & Ors. vs. Union of India & Ors.”, (2005) 3 SCC 16, “S.N.Chandrashekhar vs. Stateof Karnataka”, AIR 2006 SC 1204, “MachavarapuSrinivasa Rao vs. Vijaywads, Guntur, Tanali”, 2011 AIRSCW 5424.

32.Learned amicus curiae submitted that the changeof the land use in the Master Development Plan fromresidential to commercial, institutional or industrialpurpose is playing havoc with the healthy, hygienic andpeaceful life of the residents settled in the residentialcolonies and therefore, the change of the land use inthe residential colonies already developed or proposedto be developed as per the Master Development Plan,for commercial or institutional or industrial or mixeduse needs to be banned altogether. In support of thecontention, learned counsel has relied upon a decisionof 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 whereverpermission for residential or commercial multi storeybuildings are granted, a person should be bound downto provide parking space and the construction of thebuilding should not be permitted to be proceed with, unless the requirement of parking place is satisfied.Learned amicus curiae submitted that unless theparking is provided, such building should not bepermitted to commence its functioning and aftercommencement of the functioning, if parking spacesare used for other purposes, such building should besealed forthwith and heavy penalty should be imposedon the builder/developer. Learned amicus curiae wouldsubmit that in existing buildings where parking spacesprovided in the sanctioned plan, are diverted to otheruse, the same should be directed to be restored withintime schedule failing which the sealing of the buildingshould be ordered coupled with heavy penalties. 

34.Learned amicus curiae submitted that the construction of the building in deviation of the MasterDevelopment Plan, the sanctioned plan of the building and the bye-laws of the concerned local authority hasbecome routine and therefore, it is the need of time that the building bye-laws of the local authorities aredirected to be enforced strictly. Learned amicus curiaesubmitted that illegal construction raised in set backsare being compounded as a matter of course. Learnedamicus curiae submitted that the compounding of setbacks and the height of the building should not be permitted in any circumstances. Drawing the attentionof this Court to the provisions of the Rajasthan Municipalities (Compounding and Compromising of theOffences) Rules, 1966, learned amicus curiae submittedthat the same confer unbridled and uncanalized powerin the hands of local authority, which is against thescheme 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 incontravention of the provisions of the Act No.18 of2009. Learned amicus curiae submitted thatcompounding of unauthorised construction raised indeviation of the sanctioned plan should be permitted inconformity with the building bye-laws of the localauthorities only by way of exception when it is found tobe absolutely bona fide. Learned amicus curiaesubmitted that unauthorised construction raised indeviation of the Master Development Plan or thebuilding bye-laws of the local authority concerned mustbe demolished. In support of the contention, learnedamicus curiae has relied upon decisions of the Hon'bleSupreme Court in the matters of “Pratibha CooperativeHousing Society Ltd. & Anr. vs. The State of Maharashtra & Ors.”, JT 1991(2) SC 543, “Dr. G.N. Khajuria Vs. Delhi Development Authority”, (1995) 5SCC 762, “M.I. Builders Vs. Radhey Shyam Sahu”(1999) 6 SCC 464, “Friends Colony DevelopmentCommittee vs. State of Orissa & Ors.”, (2004) 8 SCC733, “Shanti Sports Club and Anr. vs. Union of India & Ors.” (2009) 15 SCC 705, “Dipak Kumar MukherjeeVs. Kolkata Municipal Corporation”, 2013(5) SCC 336,“Esha Ekta Apartments Cooperative Housing SocietyLimited & Ors. vs. Municipal Corporation of Mumbai &Ors.”, (2013) 5 SCC 357, “Association for EnvironmentProtection Vs. State of Kerala”, (2013) 7 SCC 226.

35.Learned amicus curiae submitted that while raisingconstruction of commercial buildings, a tendency hasdeveloped to put the stair case and ramp on thefootpath and in the residential colonies, open landmeant for footpath are being used for lawn by puttingfencing, which needs to be checked with a strong hand.Learned amicus curiae submitted that no signboard orhoarding should be permitted to be put on thefootpath/public way. 

36.Learned amicus curiae submitted that for purposeof developing multi-storey buildings in the city, the areashould be distinctly marked in the Master Development Plan and no multi storey building should be permittedto come up in the existing residential coloniesdeveloped with the infrastructure, keeping in view thenumber of family units to be settled in such colonies.Learned amicus curiae submitted that the constructionof the multi storey buildings where there aresettlements of the individual family units in the housesconstructed as per the building bye-laws, thepermission to raise multi storey buildings cannot begranted, adversely affecting rights of residents of theresidential colony developed by the local authority ordeveloped by the private developers and approved bythe local authority. 

37.Learned amicus curiae submitted that provisionsof Section 33-A of Act No.25 of 1982, Section 34 of ActNo.2 of 2009 and Section 34 of the Act No.39 of 2013,which permit composition of unauthorised developmentis ex facie contrary to the concept of planneddevelopment envisaged under Chapter V of Act No.25of 1982, Act No.2 of 2009 and Act No.39 of 2013 andtherefore, the said provisions, which confer unbridledpower in the hands of the JDA, Jaipur, JDA, Jodhpur andJDA, Ajmer, deserve to be declared ultra vires.

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 theAct of 1955, meant for grazing of the cattles of thevillage or villages cannot be divested to use for anyother purpose unless and until special circumstancesexist which necessitate change of classification of anypasture land. Learned amicus curiae submitted thatchange of classification could be made by thecompetent authority in conformity with Rule 7 of the Rajasthan Tenancy (Government) Rules, 1955 (forshort “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 andOthers 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, submitted that the area earmarked in the Master Development Plan as institutional cannot be permittedto be converted to commercial use during the operativeperiod of the Master Development Plan or eventhereafter, while revising the same. Learned counselsubmitted that the land uses prescribed in the MasterDevelopment Plan cannot be materially changed in thesubsequent Master Development Plan. Learned counselsubmitted that the respondents while effecting thechange of the land use in the Master Development Plan,of the specified area on JLN Marg from institutional tocommercial and mixed use, have materially altered theMaster Development Plan and therefore, the position ofthe land use in respect of such area specified in theMaster Development Plan of Jaipur, 2011 asinstitutional, deserves to be restored. Drawing theattention of this court to the Schedule attached to thewrit petition (D.B.C.Writ Petition No.5907/08), learnedcounsel submitted that the respondents by invoking theprovisions of Section 25 have made the modificationsaltering the basic character of the plan and proceededwith the development in unplanned manner. Learnedcounsel would submit that the land forming part ofnadi, water tank, catchment area, the ecological zone, green belt and the land reserved for parks and othercommon facilities in the Master Development Plan,cannot be divested for any other use and thus, theaction of the respondents in permitting the change ofthe land use is ex facie against the spirit of theprovisions of Section 25 of the Act No.25 of 1982.Learned counsel submitted that the action of therespondents in permitting the change of the land use indefiance of the provisions of Section 25 of the ActNo.25 of 1982 and dehors the policy decisionunderlying the Master Development Plan duly notified,is null and void. Learned counsel submitted that thespecific allegation levelled in Writ Petition No.5645/08,preferred by the petitioner-Kamlesh regarding changeof the land use from ecological to residential and mixeduse, just to extend favour to higher officials of theState, is not controverted by the respondents byplacing any material on record and thus, the originaluse of the said land as specified in the MasterDevelopment Plan of Jaipur, 2011 deserves to berestored. Learned counsel submitted that as a matterof fact, so as to extend the undue favour to the IASOfficers, the plans for Sector 34 and 35 were approvedby the Building Plan Committee and not by the competent authority in conformity with the provisionsof Section 23 of the Act No.25 of 1982. Learnedcounsel submitted that while preparing the sector plan,the roads have been provided in four sides just toisolate the colony sought to be developed for IASOfficers. Relying upon a decision of this court in thematter of 'Yashwant Sharma Vs. State of Rajasthan &Ors.', 2005 (2) WLC 559, learned counsel submittedthat the question that the land earmarked as ecologicalzone in the Master Development Plan cannot bedivested to be used for any other purpose, is no moreres integra and therefore, the action of the respondentsin changing the land use of ecological zone just toextend favour to the higher ups, deserves to bedeclared illegal and the position of the land falling inecological zone, deserves to be restored. Learnedcounsel would submit that any policy decision of theGovernment cannot override statutory provisions andtherefore, the change of land use effected by the localauthorities relying upon the circulars issued by theState Government in defiance of provisions of Section25 of the Act No.25 of 1982, is not sustainable in theeyes of law. In support of the contention, learnedcounsel has relied upon decisions of the Hon'ble 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. Learnedcounsel would submit that it is well settled that thepower of the State Government to issue executiveinstructions is confined to filling up of the gaps orcovering the area which is otherwise not covered by theexisting statutes and therefore, the executiveinstructions issued by the State Government overridingthe statutory provisions are null and void. In thisregard, learned counsel has relied upon the decision ofthe Hon'ble Supreme Court in the matter of 'Union ofIndia and Another Vs. Central Electrical & MechanicalEngineering Service (CE&MES) Group 'A' (DirectRecruits) Assn., CPWD and Others' (2008) 1 SCC 354.

40.Mr. Poonam Chand Bhandari, the petitioner in WritPetition No.5642/08 and 5646/08, appearing in person,submitted that the change in the land use effected bythe local authorities in purported exercise of the powerunder sub-section (3) of Section 25 of Act No.25 of1982, impugned in the Writ Petition No.5642/08,amounts to material alteration in the character of theplan, which is not permissible as per the mandate of provisions of sub-section (1) of Section 25 of Act No.25of 1982. In this regard, learned counsel has relied upona Bench decision of this Court in Yashwant Sharma'scase (supra). Mr. Bhandari submitted that JLN Marg isan institutional area where various schools, colleges,hospitals are situated and therefore, if commercialactivities are permitted on the said road, it will result inincrease of traffic on the road, which is bound togenerate air pollution affecting the health of thestudents and the patients. It is submitted that if thechange of the land use of an area earmarked in theMaster Development Plan for institutional purposes isdiverted to be used for commercial purposes, it willamount to altering the basic character of the plan andthus, the impugned notification dated 16.4.05 issued bythe State Government permitting mixed use ofinstitutional area for institution and commercialpurpose, deserves to be quashed. 

41.Mr.N.M.Lodha, learned Advocate General,submitted that the Master Development Plan is a policydocument for guiding the future development of thecity in a planned manner, which is prepared afterconsidering the past trends of socio-economic andphysical pattern of growth of the city, future prospects and projected population, current policies of Centraland State Government. Drawing the attention of thecourt to the Jaipur Master Development Plan-2025,learned AG submitted that the notified area in the planis divided in three basic parts; (i) Urbanized area(existing developed area), (ii) Urbanisable area and (iii)Peripheral area termed as green belt/peripheral controlbelt/ecological area or rural belt. Learned AG submittedthat area immediately adjoining the urbanisable area isvery much susceptible to unorganized/unplannedgrowth and therefore, to arrest undesirable andunplanned growth on the periphery of urbanisable areaand to ensure orderly and planned development inconcise form and coordinate manner in the urbanisablearea, it is necessary to put control on the developmentwhich may take place in the immediate periphery andfor this purpose a control belt is provided around theurbanisable area, which is termed as periphery controlbelt. Learned AG urged that the growth anddevelopment of the towns are guided by various factorssuch as, change in Government policies andinvestment, social habits of the society and number ofnatural or man made unforeseen reasons. Learned AGwould submit that the peripheral control belt area/ecological area/rural area in the MasterDevelopment Plan is never proposed for developing asgreen area to serve as 'lung space' for the city. It issubmitted that basically peripheral area, predominatelyagriculture in nature, is under the private ownership.Learned AG urged that no plan can be rigid and thecertain degree of flexibility is always necessary toaccommodate the changes and therefore, during theoperation of the Master Development Plan and whilepreparing the new Master Development Plan forextension of the city and when the need arises for citydevelopment, the said area can always be used forplanned development. Learned AG would submit thatthe contention sought to be raised that the land fallingwithin the periphery belt cannot be put to any use otherthan specified under Master Development Plan, isabsolutely fallacious. Learned AG submitted that thechanges in the Master Development Plans are effectedas per the procedure laid down under the law aftertaking into consideration the objections/ suggestionsmade by public at large. Drawing the attention of thiscourt to the provisions of Section 21 & 25 of Act No.25of 1982 and Section 73B of the UIT Act and Section 162of the Act No.18 of 2009, learned AG submitted that the provisions incorporated provide sufficient checksand balances on exercise of the power by the StateGovernment and other authorities to allow subsequentchange of land use in the Master Development Plan.Referring to the provisions of Section 25 of the ActNo.25 of 1982, learned AG submitted that as perprovisions of sub-section (1) of Section 25, JDA isempowered to make only those modifications in theplan, which do not affect material alterations in thecharacter of the plan and do not relate to the extent ofthe land uses or the standards of the populationdensity. Learned AG submitted that by virtue ofprovisions of sub-section (2) of Section 25, othermodifications in the Master Development Plan can beeffected by the JDA only with the approval of the StateGovernment. However, the learned AG submitted thatin terms of the provisions of sub-section (2a) ofSection 25, the JDA or the authority or the NagarNigam or any other body or committee authorised bythe State Government may make modification in theland use plan, as may be specified by the StateGovernment by notification in the Official Gazetteindependent of the provisions of sub-section (2) ofSection 25. Learned AG submitted that before making modification to the plan, the authority concerned isrequired to publish a notice inviting objections and theobjections and suggestions made are mandatorilyrequired to be considered by the JDA. Learned AGsubmitted that by virtue of Section 28 of the Act No.25of 1982, the State Government is empowered to revisethe plan if necessary even during its operative period.Drawing the attention of the Court to the provisions ofSection 162 of the Act No.18 of 2009, learned AGsubmitted that under the said provision the municipalityis empowered to make any modification to the Planwith the prior approval of the State Government, whichin its opinion do not affect material alterations in thecharacter of the Plan and which do not relate to theextent of land uses or the standards of the populationdensity. It is submitted that even under Section 73B(2)of the UIT Act, the State Government or any authorityauthorised by it, is empowered to permit the change ofland use as specified only if it is satisfied so to do in thepublic interest. Learned AG would submit that theprovisions incorporated provides for sufficient guidanceand therefore, the question of misuse of the powerdoes not arise. Learned AG submitted that of course,the natural resources such as hills, notified forest, river, lake etc. cannot be disturbed while preparing theMaster Development Plan or modifying the same.Learned AG submitted that whether the modificationmade in the Master Development Plan amounts tomaterial alteration depends on facts and circumstancesof each case and therefore, no fixed parameters can belaid down by this court in this regard. Learned AGsubmitted that the Master Development Plan is not astatic document, which cannot be altered andtherefore, State Government and its authoritiesempowered under the Act to make modification in theMaster Development Plan cannot be restrained fromexercising the statutory power vested in them. Insupport of the contention, learned AG has relied upon adecision of the Hon'ble Supreme Court in the matter of'Pune Municipal Corporation and another Vs. Promotersand Builders Association and another', AIR 2004 SC3502. Learned AG submitted that the letter petitiondoes not point out any specific deviation of the MasterDevelopment Plan and thus, on the basis of theomnibus allegations, no conclusion can be drawn thatthe wholesale change in the land use has been effectedin violation of Master Development Plan. Learned AGsubmitted that ordinarily the Court cannot substitute its decision for that of the planning authority, permittingchange of the land use during the operative period ofthe Master Development Plan, taking into considerationthe relevant factors, unless an appropriate case is madeout therefor. In support of the contention, learned AGhas relied upon a decision of the Hon'ble SupremeCourt 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 courtto the report submitted on behalf of the StateGovernment giving details of the change in the land usepermitted, learned AG submitted that small percentageof change in the land use effected, by no stretch ofimagination, could be construed as wholesale change ofthe land use. Learned AG urged that the reduction inthe forest area does not relate to area covered byMaster Development Plan. Drawing the attention of thiscourt to sub-section (2) of Section 73B of the UIT Act,learned AG submitted that the change in the land useas specified therein, is permissible only when the StateGovernment authorises the authority to allow thechange of use if it is satisfied so to do in the publicinterest and therefore, no change in the land use ispermitted unless the change proposed is found to be in public interest. Learned AG submitted that what wouldbe in the public interest is not required to be expresslyprovided in the provision but such guidelines can begathered from the provisions of the Act and the Rulesmade thereunder. Learned AG submitted that whetherparticular change of the land use is in public interest ornot, is required to be decided by the authorityconcerned. In support of the contention, learned AGhas relied upon a decision of the Hon'ble SupremeCourt in the matter of 'Premium Granites and anotherVs. State of T.N. and others' (1994) 2 SCC 691.Learned AG submitted that the modification of the planin terms of provisions of Section 25 of Act No.25 of1982, is permissible in order to promote the planneddevelopment of any part of Jaipur region in moreefficient manner and therefore, obviously, the powershall be exercised thereunder for accomplishment ofthe specified object. In support of the contention,learned AG has relied upon a decision of the Hon'bleSupreme 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 Courtin the matter of 'Mangal Amusement Park PrivateLimited and another Vs. State of Madhya Pradesh and Others' (2012) 11 SCC 713, learned AG submitted thatunless a decision of the authority permitting the changeof the land use in exercise of statutory power is foundto be actuated by malafides or suffering from vice ofcolourable exercise of power, the same should not beinterfered with by the Court. Learned AG submittedthat no details regarding alleged wholesale deviationsfrom the Master Development Plan is furnished by thepetitioners and therefore, on the basis of vague andindefinite pleading, there is no reason why this Courtshould enter into a roving and fishing enquiry into thequestions of facts. In support of the contention, learned AG relied upon a decision of the Hon'ble Surpeme Courtin 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 Generalsubmitted that the Master Development Plan is a visiondocument to guide for next 20-25 years, but to cope upwith the pace of urban development due tounanticipated and unprecedented technological changesand economical development, every MasterDevelopment Plan requires updating and renewing inorder to incorporate new requirements. Learned AAGwhile reiterating the submissions made by learned AG on behalf of the State, submitted that the peripheralcontrol belt/green belt/ecological or rural area, arepredominately rural/agriculture area provided forcontrol of haphazard development. Learned AAG wouldsubmit that peripheral control belt/green belt/ecologicalor rural area is also part of the region where theDevelopment Authority constituted under the statute isempowered to undertake planned development andtherefore, the modification/change of the land use inthe area shown in the Master Development Plan asperipheral control belt/green belt/ecological or ruralarea, is always permissible in conformity with thestatutory provisions governing the modification of theMaster Development Plan during its operative period.Learned AAG submitted that while effecting themodifications in the Master Development Plan, thenatural features such as, hills, forests, water bodies etc.are never touched and cannot be disturbed. LearnedAAG would submit that even the open spaces providedin the Master Development Plan for parks and otherrecreational facilities for the public also cannot bepermitted to be disturbed while modifying the plan.Learned AAG submitted that with the increase in thepopulation and the change in the pattern of urban development, to meet the need of the time, the required changes in the operational Master Development Plan, cannot be avoided. Learned AAGwould submit that taking into consideration the population density in the city, the minimum green areais required to be maintained but then, on that account, the change in the land use in the green belt shown inthe 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, theState shall ensure that minimum green area required as per the population density of the city/town inconformity with the norms laid down by the Ministry of Urban Development, Government of India under Urbanand 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 faraway from the residential area and therefore, the contention raised by the Amicus Curiae that theperiphery control belt or the green belt notified are the "lung spaces” for the residents of the city, is absolutelymisconceived. Learned AAG submitted that with the increase of population, urbanisable area in the MasterDevelopment Plan has to be increased and thedevelopment of a particular city has to be in continuumand therefore, there is no logic in keeping onekilometer buffer zone around the old developmentbefore allowing the new planned development asproposed by learned Amicus Curiae. Learned AAGsubmitted that while modifying or revising the MasterDevelopment Plan, the area which falls within forestnotified area is never touched. Learned AAG submittedthat the State has no objection if the matter withregard to change of the land use in peripheral controlbelt during the operative period of the MasterDevelopment Plan is directed to be dealt with by theState Level Committee to be constituted by the StateGovernment. Learned AAG would submit that openspaces shown in the Master Development Plan reservedfor park, playgrounds, recreational activities and othercommon facilities, have to be preserved and therefore, the land use of such open spaces, if any changed, shallbe restored in accordance with law. Learned AAGsubmitted that water bodies, catchment area, highflood area/wetlands have to be preserved at any cost and therefore, the State Authorities shall take the appropriate steps to undone such change of the landuse, if any. Learned AAG candidly submitted that theroads and footpath have to be kept open for the use ofpublic at large and therefore, the encroachment madeon footpath and the public way by putting stairs, ramp, hoardings or fencing for the purpose of lawn etc. shallbe dealt with strictly and all encroachments made inthe various cities on footpath and road, shall beremoved. Learned AAG submitted that the parking places provided in the sanctioned plan, cannot be put touse for any other purpose and therefore, the LocalAuthorities are under an obligation to take appropriatemeasures for restoration of parking places provided inthe commercial and residential buildings. Drawing theattention of this court to the draft Urban DevelopmentScheme Policy-2015, learned AAG submitted that thesaid Scheme to be finalized by the State shall cover alltypes of small and larger Schemes for various usesincluding residential, commercial, institutional andindustrial and other uses. Learned AAG would submitthat there is a paramount need to involve private sectorin the city development and therefore, appropriate provisions are sought to be incorporated for monitoring development of the colonies by the private developers as well. Learned AAG submitted that in order toencourage larger Scheme with the higher space for social and physical infrastructure, in the policy aconcept to incremental saleable area on larger Scheme while maintaining the suitable proportion of facilityarea, is proposed. Learned AAG submitted that in the policy sought to be framed to encourage compactdevelopment, it is proposed for phasing out selected zones/sectors/areas for the phased development indifferent 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, waterand electricity supply are provided by the developer and for which certificate certifying the availability ofservice 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 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 fairlysubmitted that to ensure the construction of thebuildings and the provision of facility areas therein,enforcement cell of the local bodies needs to bestrengthened and for that purpose, learned AAG hassuggested 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 theapproved building plans and scheme layoutplans shall be sent to him immediately afterapproval.

(3) A report in writing in prescribed formatshall be submitted by the designated in chargeof the zone, stating the list of plots/area whereconstruction is going on, list in whichconstruction is as per approval and list ofviolation during the construction in their zonewith details of violations and photographs. Aregister of such reports shall also bemaintained.

(4)Such reports shall be submitted to ZoneCommissioner and JDC in case of DevelopmentAuthority, Secretary, UIT and to DeputySecretary UDH in case of UIT's, and to EOMunicipality and Deputy Director Local Bodies incase of Municipalities in every 15 days (twice ina month).

(5) On receipt of these reports action shall beinitiated against the violations by the concernedauthorities, which should be monitored regularlyby higher authorities. Action taken reportmonthly shall also be submitted to higherauthority regularly.

(6) Every local body should operate a citizengrievances link on its website, on which citizensmay send report of violations. Action taken onsuch public grievances shall also be put onpublic domain.”

43. Learned AAG would submit that the minordeviation in the set backs and the height of thebuildings have to be permitted in the larger publicinterest. Learned AAG submitted that the multi storeybuildings in the existing residential/commercial areasare permitted as per the norms laid down regarding theset backs, FAR, height of the building and park spacesand therefore, it does not stand to reason that suchbuildings should not be permitted to come up in theexisting residential and commercial areas specified inthe Master Development Plan. Learned AAG submittedthat all sincere efforts shall be made by the State forrestoration of the use of the parks and other commonutility spaces put to use for other purposes in theprivate residential colonies as well. Learned AAGcandidly submitted that the norms laid down forproviding green belt on both the sides of the highwayshave to be followed and therefore, the appropriate steps shall be taken to ensure the implementation ofthe norms and for removal of the constructions, if anyraised, in violation of the norms but the strip of theland on both sides of the highways are generallyprivately owned land and therefore, it is not desirableto declare such land as forest land. Regarding thepreservation of pasture land, learned AAG submittedthat Section 16 of the Act of 1955, prohibits accrual ofkhatedari rights in pasture land but then, as per Rule 7of the Rules of 1955, the Collector is empowered tochange the classification of any pasture land forallotment for agriculture or non agriculture purposes,however, as per proviso to Rule 7, in case where landsought to be allotted or set apart exceeds 4 hectares,the Collector is required to obtain prior permission ofthe State Government. That apart, it is submitted thatas per mandates of sub-rule (2) of Rule 7 whereclassification of any pasture land is changed under sub-Rule (1), the Collector may set apart an equal area ofunculturable Government land, if available as pastureland in the same village. Learned AAG would submitthat setting apart of an equal area of unculturableGovernment land in lieu of pasture land put to otheruse in terms of sub-Rule (2) of Rule 7, is not mandatory. Learned AAG submitted that the restrictionimposed under the provisions of Section 16 of the Actof 1955, do not apply to the land falling within JaipurRegion, Jodhpur Region and Ajmer Region, thedevelopment wherein is governed by the provisions ofAct No.25 of 1982, the Act No.2 of 2009 and Act No.39of 2013. 

44.Mr. P.P. Choudhary, Senior Advocate, drawing theattention of this Court to the provisions of Sections 16,17, 21, 23 & 25 of the Act No.2 of 2009, submitted thatthe Master Development Plan prepared by theauthorities in exercise of the statutory power is only amacro planning, a vision document, which is flexibleand it is always permissible to modify the same tosecure integrated development with the passage oftime. Learned counsel submitted that the statuteempowers JDA and Jodhpur Development Authority toundertake urban planning including the preparation ofMaster Development Plan, Zonal Development Plansand carrying out surveys for the purpose and alsomaking alterations therein as may be deemednecessary and therefore, the statutory power of localauthority to alter the plan cannot be seized by thisCourt. Learned counsel submitted that the legislative competence to frame the law or the vires of theprovision providing for alteration of the MasterDevelopment Plan whenever it is deemed necessary isnot under challenge and therefore, no direction can beissued by this Court, restraining the State and the localauthorities from exercising power under the statute.Learned counsel drawing the attention of this Court tothe letter petition and the documents annexed thereto,submitted that no research work has been undertakenby the petitioner before filing the petition and there isno material on record suggesting that there is awholesale violation of the Master Development Plans ofthe major cities and therefore, the PIL preferred mustnot be entertained by this Court. Learned counselsubmitted that the contention raised that the ecologicalzone/green belt/peripheral belt earmarked in theMaster Development Plan cannot be divested for anyother use is misconceived, to say the least. Learnedcounsel would urge that the Master Development Plansare prepared taking into consideration the present andfuture requirement and therefore, if to fulfill the futurerequirement for overall development, the land isrequired to be diverted for the purposes other thanspecified, the State and its authorities cannot be restrained from exercising the powers in this regardand therefore, the interim order passed by this Court,restraining the State and the local authorities fromeffecting any change in ecological zone and peripherybelt including green belt without permission of theCourt deserves to be vacated. 

45.Mr. Ashok Chhangani, learned counsel submittedthat the Mater Plan is not a inflexible document, whichcannot be altered for the public purpose. Learnedcounsel would submit that the Master DevelopmentPlan is prepared for the purposes specified afterfollowing the procedure laid down and by virtue ofproviso to sub-section (3) of Section 21 of Act No.25 of1982 and Act No.2 of 2009, but, the area of any zonespecified therein, can always be altered in the publicinterest. Learned counsel submitted that modificationfor a class or section is different than the modificationfor any individual and certainly the modification of theMaster Development Plan cannot be made to serve thepurpose of an individual. Learned counsel would submitthat various provisions incorporated in Chapter V of theJDA Act, which deals with Master Development andZonal Development Plans must be harmoniouslyconstrued and the modification of Master Developmen Plan for the purpose other than those specified in thelarger public interest, should always be permittedinasmuch as the problems arising during the course ofimplementation of plan are also required to be takencare of and cannot be ignored. Learned counselsubmitted that the peripheral belt specified in theMaster Development Plan is certainly not a “NoConstruction Zone” and the use thereof is not specifiedeither and therefore, any modification therein proposedmust be considered with reference to the object of themodification. Learned counsel submitted that aparticular activity of an individual to serve the public atlarge may fall within the definition of “Public Purpose”.Learned counsel would submit that undoubtedly, thepower conferred under Section 25 of Act No.25 of 1982and Section 25 of the Act No.2 of 2009, has to beexercised by the authority concerned rationally andreasonably and the material alteration cannot bepermitted to affect the basic character of the plan assuch. Learned counsel urged that the change of landuse for educational and medical facilities purposes dofall within the definition of “Public Purpose”.

46.Replying the arguments of learned AG, AAG andthe counsels for the applicants, learned amicus curiae, while referring to the reply of the State submitted thatthe factum of deviations from the Master DevelopmentPlan without authority of law is not even disputed bythe respondents rather the respondents have taken thestand that unless the general civic sense is developedin the public at large and the public is made aware thatthe deviation from the Master Development Plan is notin their interest, without active cooperation of thepublic at large, the respondents are not happilyequipped with the measures and means to control suchdeviation. Learned amicus curiae submitted that thestand sought to be taken by the respondents that thereis no concept of green belt in the Master DevelopmentPlan of the various towns and the peripheral controlbelt indicated in the Master Development Plans arecommonly called as green belt is contrary to the knownconcept of Town Planning. Learned amicus curiaedrawing the attention of the court to the compliancereports submitted by the State of Rajasthan in respectof the cities Jodhpur, Kota, Bikaner, Ajmer and Udaipur,submitted that the factum of change of land uses inperipheral control belt and the public amenities zonesand the factum of construction or development whichhave actually taken place in respect of the said zones also stand admitted by the State. Learned amicuscuriae while drawing attention to the submissions of therespondents, JDA, Jaipur, submitted that indisputably,the ecological zone delineated in the JDA Region onboth the sides of National Highway 11, leading to Agraup to Agra Railway Line, being the area in AravaliRange, only the activities which are eco friendly such asrecreation and health resort, sports complex etc. arepermitted therein and the area has to remainpredominately green area, yet the change of the landuse is permitted in the ecological zone with impunity.Learned amicus curiae submitted that the change of theland use in the towns in respect whereof the MasterPlan is prepared under the provisions of UIT Act, thechange of the land use are permitted even at the localauthority level and thus, the Master Plan preparedafter due deliberation is set at naught by the localauthority concerned on consideration of the applicationspreferred by the individuals for change of the land useeven for small plots without there being anydevelopment plan prepared in respect of the land fallingwithin the periphery control belt. Drawing the attentionof the Court to the Summary of change of land use inecological/rural/periphery control belt/open spaces reserved for park and other common facilities,submitted by JDAs/UITs, learned amicus curiaesubmitted that the permission have been granted forthe change of land use to serve the interest of theindividuals without there being any involvement ofpublic interest and thus, the change of the land usepermitted in perfunctory manner in gross violation ofthe provisions of Section 25 of the Act No.25 of 1982,deserves to be undone and the original position of theland as specified in the Master Development Plansdeserve to be restored. Learned amicus curiaesubmitted that while admitting the construction beingraised in deviation of the Master Development Plan nota single case is pointed out wherein the action is takenagainst the violator and the illegal construction raised isdemolished, rather such constructions raised are beingregularised as a matter of course. Learned amicuscuriae submitted that when the modification of the planis permissible only in the public interest, the impact ofmodification proposed on public in general must beexamined and no change of land use can be permittedto serve the interest of an individual. In support of thecontention, learned amicus curiae has relied upon adecision of the Hon'ble Supreme Court in the matters of “Administrator Nagar Palika Vs. Bharat and Others ”(2001) 9 SCC 232 and “M.C. Mehta Vs. Union of Indiaand Others”, (2006) 3 SCC 399. Learned amicus curiaesubmitted that the public has right to expect certainlands and natural area to retain their naturalcharacteristics and the “Doctrine of Public Trust”evolved demands that the resources like air, sea,waters and the forests cannot be diverted to other useand the same cannot be made subject of privateownership and thus, the diversion of such lands andresources permitted has to be undone. In support ofthe contention, learned amicus curiae has relied upon adecision 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 changeof land use in peripheral control belt is to be permitted,it should be permitted only at the level of StateGovernment and the strict guidelines must be providedfor the purpose of exercise of the powers. Learnedamicus curiae while reiterating the submissions earliermade submitted that no private colony should bepermitted to come up on the small piece of land andthe minimum area required for developing a colonyshould not be less than 100 hectares. Learned amicus curiae would submit that all the details regarding aprivate colony/residential building proposed to bedeveloped by the private developers must be uploadedon the website of the local authority concerned.Learned amicus curiae would submit that it is a matterof common knowledge that the land reserved in thelayout plan of the private residential colony or thespaces provided in the residential/commercial buildingfor parking and other common facilities of the residentsare being converted by the private developers for theirown use with an intention to earn undue profit andtherefore, it is expedient that appropriate directions areissued to restore the position of such spaces reservedfor the purposes specified forthwith. Learned amicuscuriae submitted that no multistorey buildings shouldbe permitted to come up in the residential coloniesalready developed with the sewerage system and otherfacilities to serve the projected population to be settledtherein. Learned amicus curiae submitted that as perthe provisions of Act No.25 of 1982 and Act No.2 of2009 and the Act No.18 of 2009, no construction ispermissible to be raised without permission and there isno reason as to why the compounding of illegalconstruction should be at all permitted. Learned amicus curiae submitted that if compounding is permitted as amatter of course, no person will follow the law. Learnedamicus curiae submitted that this Court can examinethe validity of law suo moto. Learned amicus curiaesubmitted that since the Rules of 1966, confersunbridled power in the hands of the local authority, thesame deserves to be declared ultra vires of theprovisions of Act of 2009.

47. Having considered the rival submissions, theprincipal questions arising for consideration of thisCourt in these PILs, may be summarised thus:

(1)What is the ambit and scope of the power ofthe State Government and the other authoritiesunder the relevant statutes as regard topreparation of the Master Development Plan &Zonal Development Plan and modification/revisionthereof during their operative period ? 

(2)Whether the peripheral control belt/greenbelt/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 landforming part thereof cannot be permitted to beput to other uses i.e. commercial/residential/institutional/industrial purposes etc. during itsoperative period and thereafter, while revising theMaster Development Plan at the end of its tenure?

If the alteration/modification therein ispermissible, what are the parameters therefor ?

(3)Whether the authorities entrusted with thetask of revision/modification of MasterDevelopment Plan/Zonal Development Plan cando away with/alter the minimum requirement ofgreen area/open spaces/parks/ recreational areaas provided for under the Master DevelopmentPlan/Zonal Development Plan with reference tothe population at the relevant time and projectedincrease therein and put the same to the use forthe purposes other than those specified duringits operative period ?

(4)Whether the area reserved for commonfacilities/parks/open spaces/recreation etc. in acolony developed by local authority or by privatedevelopers approved by the local authority, canbe diverted to any other use? Whether thechanges, if any, made in area reserved asaforesaid in the approved layout plan of thecolony, deserves to be undone and the positionas per the original layout plan, deserves to berestored ?

(5)Whether the area earmarked in the Schemeunder the Master Development Plan/ZonalDevelopment Plan for the purposes ofcommercial/residential/ institutional/ industrialetc., can be put to use for the purposes otherthan those specified, during the currency of theMaster Development Plan/Zonal Development Plan or at the time of revision of the MasterDevelopment Plan ?

(6)Whether the area for the purpose ofdeveloping the multi-storey buildings in the city,needs to be distinctly marked in the MasterDevelopment Plan/Zonal Development Plan andno multi-storey building should be permitted tocome up in the existing residential coloniesdeveloped with the infrastructure, keeping inview the individual family units to be settled inthe houses to be constructed in such colonies? 

(7)Whether the private or public colony can bepermitted to come up on the land having arealess than the reasonable area required fordeveloping a colony with requisite facilities? 

(8)Whether the industrial areas located in theclose vicinity of the city settlements need to beshifted outside the urbanisable area shown in theMaster Development Plan ?

(9)Whether the norms laid down for providinggreen belt abutting the highway are not beingfollowed by the State and the Local Authorities?What measures are required to be adopted tocheck the violation of the norms laid down in thisregard?

(10)Whether it is open to the local authorities i.e.Municipalities, Urban Development/ImprovementAuthorities to permit the commercialestablishment and the owner of the residentialhouses to put stairs or ramp or hoardings on footpath/public way or to use the same forpersonal use, by putting fencing? Whether suchencroachments made on footpath/ public way areliable to be removed? 

(11)Whether it is open for any person/builder todivert the use of the place meant for parking toany other use ? If not, whether all such parkingspaces put to other use are required to berestored ?

(12)Whether the provisions incorporatedunder the Rajasthan Municipalities(Compounding and Compromising of theOffences) Rules, 1966 are in consonance with theprovisions as well as Scheme of the RajasthanMunicipalities Act, 2009? If the compounding ofthe unauthorised construction raised in deviationof the sanctioned plan or without approval of theplan and/or Building Bye-laws deserves to bepermitted by way of an exception, then to whatextent ?

(13)Whether provisions of33A of Act No.25 of1982, Section 34 of the Act No.2 of 2009 andSection 34 of Act No.39 of 2013, regarding theregularisation of unauthorised development, inabsence of guidelines for exercising of thepowers conferred, deserve to be declared ultravires?

(14)Whether the pasture land set apart for thegrazing of the cattles can be permitted to beused for other purposes? If yes, to what extent ? 

Whether the encroachment made on the pastureland can be regularised or the unauthorisedoccupation over the pasture land must beremoved by the State authorities? 

(15)What measures need to be taken forconservation and preservation of the landforming part of nadi, pond, lakes, river bed andcatchment area etc.?

CONSIDERATION & CONCLUSIONS:

Preparation of the Master Development Plan andZonal Development Plan and ambit and scope ofmodification/revision thereof during theiroperative period (Question No.1)

48.Master Development Plan is prepared with anobjective to ensure systematic and planneddevelopment of a city and adjoining areas with a viewto protect the residents from ill-effects of urbanisationas also to create sustainable physical and socialenvironment for improving their quality of life. It laysdown the planning, guidelines, policies, developmentcode, space requirement for various socio economicactivities supporting the city population during the planperiod. As a matter of fact, Master Development Plantranslates community values, decisions and visions intoland use and development principles which can guidethe future growth of community and decision makingfor planning authorities and implementation thereof bylocal authorities.

49.Indisputably, the process of planned developmentof the cities and towns in the State of Rajasthan beganwith the enactment of UIT Act, which came into forcew.e.f. July 24, 1959. Later, keeping in view the fact thatthe Jaipur City and the areas contiguous to it are beingprogressively developed and populated, it was feltnecessary for forming these areas into Jaipur Regionand for setting up an Authority for the purpose ofplanning, coordinating and supervising the proper,orderly and rapid development of these areas as also toprovide that such Authority be enable either itself orthrough other authority to formulate and execute plans,projects and schemes, the State Legislature enactedthe Act No.25 of 1982. In the same line, for the parityof reasons, the Act No.2 of 2009 was enacted forplanned and rapid development of Jodhpur Regionconsisting of Jodhpur City and certain contiguous areasand thereafter, Ajmer Development Authority Act, 2013('Act No.39 of 2013') has been enacted for planneddevelopment of Ajmer, Kishangarh, Pushkar City andareas contiguous thereto. The preparation andoperation of the Master Development Plan and ZonalDevelopment Plan, for the various cities of the State ofRajasthan except Jaipur Jodhpur, Ajmer, Kishangarh, Pushkar City & areas contiguous thereto and such areaswhich are governed by UIT Act, urban development andtown planning in the cities and towns within themunicipal area thereof, now, the Act No.18 of 2009,which has come into force w.e.f. 15th September, 2009after repealing of Rajasthan Municipalities Act, 1959,incorporates specific chapter i.e. Chapter XI. 

50.In order to appreciate the statutory object andpurpose behind preparation of the Master DevelopmentPlan, its basic characteristic and the ambit & scope ofits modification during the operative period of the plan,it would be appropriate to refer to the variousprovisions contained in UIT Act, the Act No. 25 of 1982,the Act No.2 of 2009, the Act No.39 of 2013 and ActNo.18 of 2009. 

51.The provisions of the Act No.2 of 2009 and ActNo.39 of 2013, relevant for the consideration of thequestions arising in the matter, are pari materia to theprovisions of Act No.25 of 1982 and therefore, thesame are not being referred to and dealt withseparately. 

52.The various provisions of the UIT Act, the ActNo.25 of 1982 and the Act No.18 of 2009, germane to the issues arising for consideration of this court may bebeneficially quoted:

UIT ACT 

“3. Power of State Government to orderpreparation of master plan-(1) The StateGovernment may, by order, direct that in respectof and for any urban area in the State specified inthe order, a civil survey shall be carried out and amaster plan shall be prepared, by such officer orauthority as the State Government may appointfor the purpose.
(2) For the purpose of advising the officer orauthority appointed under sub-section (1) on thepreparation of the master plan, the StateGovernment may constitute an advisory councilconsisting of a Chairman and such number ofother members as the State Government maydeem fit.

4. Contents of master plan-The master plan shall-

(a) define the various zones into which the urbanarea for which the plan has been prepared may bedivided for the purposes of its improvement andindicate the manner in which the land in eachzone is proposed to be used, and

(b) serve as basic pattern of frame work withinwhich the improvement schemes of the variouszones may be prepared.

5. Procedure to be followed- (1) Beforepreparing any master plan officially the officer orauthority appointed to prepare it shall public adraft of the master plan by making a copy thereofavailable for inspection and publishing a notice insuch form and manner as may be prescribed byrules made in this behalf inviting objections andsuggestions from every person with respect to the draft master plan before such date as may bespecified in the notice.

(2) Such officer or authority shall also givereasonable opportunity to every local authoritywithin whose local limits any land touched by themaster plan is situated to make anyrepresentations with respect to the master plan.

(3) After considering all objections, suggestionsand representations that may have been received,such officer or authority shall finally prepare themaster plan.

(4) Provisions may be made by rules made in thisbehalf with respect to the form and contents of amaster plan and with respect to the procedure tobe followed and any other matter in connectionwith the preparation of the master plan.

6. Submission of master plan to Government-(1) Every master plan shall, as soon as may beafter its preparation, be submitted to the StateGovernment for approval in the prescribedmanner.

(2) The State Government may direct the officeror authority appointed for the preparation of amaster plan to furnish such information as it mayrequire for the purpose of approving any masterplan submitted to it under this section.

(3) The State Government may either approvethe master plan without modifications or with suchmodifications as it may consider necessary orreject it with directions for the preparation of afresh master plan.

7. Date of operation of master plan-Immediately after a master plan has beenapproved by the State Government, it shallpublish in the prescribed manner a notice statingthat the master plan has been approved andnaming a place where a copy of the same may be inspected during officer hours; and upon the dateof the first publication of the aforesaid notice themaster plan shall come into operation.

8.Establishment and incorporation ofTrusts- (1) The State Government may, bynotification in the official Gazette, establish, forthe purpose of carrying out improvement of anyurban area in the State, whether a master plan inrespect thereof has or has not been prepared, aBoard of Trustees to be called the ImprovementTrust of the place where its principal office isshifted, hereinafter called 'the Trust'.(2) Every such Trust shall be a body corporate bythe aforesaid name having perpetual successionand a common seal with power to acquire, holdand dispose of property both movable andimmovable and to contract and shall by the saidname sue and be sued

.....xxxxx.......xxxx 

31.Scheme to conform to master plan- (1) Iffor and in respect of the urban area for which theTrust is constituted a master plan has beenprepared and approved and is in operation, everyscheme framed by the Trust in accordance withthe provisions of this Chapter shall conform tosuch master plan and shall not be framed so as toaffect an alteration in the different zones definedby the master plan

.....xxxxx.......

73.B. Restriction on change of use of landand power of State Government to allowchange in the use of land.-(1) Notwithstandinganything contained in section 72 or 73A,- 

(1) no person shall use or permit the use of anyland situated in any urban area notified undersection 8, for the purpose other than that forwhich such land was originally allotted or sold to any person by the State Government, any UrbanImprovement Trust, any other local authority orany other body or authority in accordance withany law for the time being in force or, otherwisethan as specified under a Master Plan, whereverit is in operation;

(ii) In the case of any land not allotted or soldas aforesaid and not covered under clause (i),no person shall use or permit the use of anysuch land situated in a Urban Area notifiedunder section 8, for the purpose other than thatfor which such land-use was or is permissible, inaccordance with the Master Plan, wherever it isin operation, or under any law for the time beingin force.

(2) Notwithstanding anything contained in sub-section(1), the State Government or any authorityby it, by notification in the Official Gazette, mayallow the owner or holder of any such land, tohave change of use thereof, it it is satisfied so todo in public interest, on payment of conversioncharges at such rates and in such manner as maybe prescribed with respect to the followingchanges in use:-

(i) from residential to commercial or any otherpurpose;or

(ii) from commercial to any other purpose; or

(iii) from industrial to commercial or any otherpurpose; or

(iv) from cinema to commercial or any otherpurpose; or

(v) from any existing permissible use of land toany other purposes, as the State Government mayprescribe:

Provided that rates of conversion chargesmay be different for different areas and fordifferent purposes.

(3) Any person who has already changed the useof land in violation of the provisions of this Act inforce at the time of change of use, shall apply tothe State Government or any authority authorisedby it under sub-section (2), within such period asmaya be prescribed, for regularisation of said useand upon regularisation of the change of use ofland, he shall deposit the amount contemplatedunder sub-section (2).

(4) Where the State Government or the authorityauthorised by it is satisfied that a person whoought to have applied for permission orregularisation under this section, has not appliedand that such permission can be granted or theuse of land can be regularised, it may proceed todetermine the conversion charges after due noticeand hearing the party/parties and the changes sodetermined shall be come due to the UrbanImprovement Trust and be recoverable under sub-section (6).

(5)The conversion charges so realised shall becredited to fund of the Urban Improvement Trust.

(6)Changes under this section shall be the firstcharge on the interest of the person liable to paysuch charges with respect to the land, the use ofwhich has been changed and shall be recoverableas arrears of land revenue.

Jaipur Development Authority Act (Act No.25 OF 1982)

“16. Functions of the Authority.- The mainobject of the Authority shall be to secure theintegrated development of the Jaipur Region andfor that purpose the functions of the Authorityshall be :-

(a)urban planning including the preparing ofMaster Development Plan and ZonalDevelopment Plans and carrying out surveys for the purpose and also making alterationstherein as may be deemed necessary;

(b)formulation and sanction of the projects andschemes for the development of the JaipurRegion or any part thereof;

(c)execution of projects and schemes directlyby itself or through a local authority or anyother agency;

(d)to make recommendations to the StateGovernment on any matter or proposalrequiring action by the State Government,Central Government, any local authority orany other authority for overall developmentof the Jaipur Region;

(e)participation with any other authority for thedevelopment of the Jaipur Region;

(f)co-ordinating execution of projects orschemes for the development of the JaipurRegion;

(g)supervision or otherwise ensuring adequatesupervision over the planning and executionof any project or scheme, the expenses ofwhich, in whole or in part are to be met fromthe Jaipur Region Development Fund;

(h)preparing schemes and advising theconcerned authorities departments andagencies in formulating and undertakingschemes for development of agriculture,horticulture, floriculture, forestry, dairydevelopment, transport, communication,schooling, cultural activities, sports,medicare, tourism entertainment and similarother activities;

(i)execution of projects and schemes on thedirections of the State Government;

(j)undertaking housing activity in Jaipur Region,provided that the delineation of responsibilityfor housing between Rajasthan HousingBoard and the Authority will be made byState Government effective from the date tobe fixed by it;

(k)to acquire, hold, manage and dispose ofproperty, movable or immovable, as it maydeem necessary;

(l)to enter into contracts, agreements orarrangements with any person ororganisation as the Authority may deemednecessary for performing its functions;

(m)to prepare Master Plan for traffic control andmanagement, devise policy and programmeof action for smooth flow of traffic andmatters connected therewith;

(n)to perform functions designated by the StateGovernment in the areas of urban renewal,environment and ecology, transport andcommunication,, water energy resourcemanagement directly or through itsFunctionalBoardsorotherdepartments/agencies as the StateGovernment may specify;

(o)regulating the posting of bills, advertisementhoardings, signpost, and name boards inJaipur Region or in any part thereof asspecified by the Authority;

(p)regulating the erection or re-erection ofbuildings and projections, making materialalterations therein and providing for openspaces in Jaipur Region or any part thereofas specified by the Authority;

(q)removing obstructions and encroachmentsupon public streets, open spaces and properties vesting in the Government or theAuthority;

(r) to do all such other acts and things whichmay be necessary for or incidental orconducive to, any matters which arise onaccount of its activity and which arenecessary for furtherance of the objects forwhich the Authority is established; and

(s)to perform any other functions that the StateGovernment may designate in furtherance ofthe objectives of this Act;

....xxxxx.....xxx

21.Civil Survey and preparation of MasterDevelopment Plan.-(1) The Authority with aview to securing planned integrated developmentand use of land, shall carryout a civic survey ofand prepare a Master Development Plan for JaipurRegion.

(2) The Master Development Plan shall preciselydefine the quality of life that a citizen of JaipurRegion 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 andthereafter, and (iii) such other intermediatestages, as the State Government may direct,balanced and time targeted development to sub-serve the needs of the growing city of Jaipur andother areas of Jaipur Region, the net work ofpublic utilities, civil amenities, communityfacilities, housing, communications and transport,the projects or schemes for conservation anddevelopment of natural resources and such othermatters as are likely to have a bearing on theintegrated development of the Jaipur Region andin particular may provide for-

(i)transport and communications such asroads, high-ways, railways, canals, international air ports, air cargo-complexes and bus-service,including their development;

(ii)water supply, drainage, sewarage, sewagedisposal and other public utilities, amenities andservices, including electricity and gas;

(iii)preservation, conservation and developmentof areas of natural scenery, city forests, wild life,natural resources and landscaping;

(iv)preservation of objects, features, structuresor places of historical, natural, architectural orscientific interest and educational value;

(v)prevention of erosion, provision forafforestation or re-forestation, improvement ofwater front areas, rivers, nallahs, lakes andtanks;

(vi)irrigation, water supply of hydro-electricworks, flood control and prevention of water andair pollution;

(vii)educational and medical facilities;

(viii)district business centres, other shoppingcomplexes, export oriented industrial areas andclearing houses, permanent exhibition centres,cattle fairs and markets;

(ix)games and sports complexes worthy ofholding international events;

(x)amusement parks including disney land, stylecomplexes safari parks and other gardens andparks, picnic centres and day amusementincluding artificial lakes and water reservoirs;

(xi)cultural complexes including theaters,cinemas, rangmanch, studios, recreationcentres, conference hall complexes, concerthalls, town halls and auditoria

(xii)tourist complexes including hotels andmotels, car hiring servicer, organised tours andtreks;

(xiii)development of satellite towns in JaipurRegion and their appropriate integration withthe City of Jaipur including development of newtownships;

(xiv)allocation of land for different uses, generaldistribution and general location of land and theextent t which the land may be used asresidential, commercial, industrial, agricultural,or as forests or for mineral exploitation or forother purposes;

(xv)reservation of areas for open spaces,gardens, recreation centres, zoological gardens,nature-reserves, animal sanctuaries, dairies andhealth resorts and other purposes;

(xvi)the relocation of the population or industryfrom over populated and industrially congestedareas and indicating the density of population orthe concentration of industry to be allowed inany 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 oflands;

(xix)re-development and improvement of existingbuilt-up areas;

(xx)planning standards and zoning regulations fordifferent zones including development of 'abadi';and 

(xxi)planning for Jaipur Region for managementor urban growth and all matters connectedtherewith and other matters as are consistentwith the object of this Act.

(3) The Master Development Plan may alsodefine the various zones into which the JaipurRegion shall be divided for the purposes ofdevelopment and indicate the manner in which thedevelopment is to be carried out and the land ineach zone is proposed to be used (whether by thecarrying out therein development or otherwise)and the stages by which any such developmentshall be carried out and shall serve as a basicpattern of frame-work within which the ZonalDevelopment Plans of the various zones may beprepared: 

    Provided that the Authority may, if soconsiders necessary in the public interest after thearea of any zone.

22.Zonal Development Plan-(1)Simultaneously with the preparation of the MasterDevelopment Plan or as soon as may bethereafter, the Authority shall proceed with thepreparation of a Zonal Development Plan for eachof the Zone into which the Jaipur Region may bedivided.

(2)A Zonal Development Plan may-

(a)contain the provision for the developmentalactivities to be carried out as mentioned insub section (2) of section 21;

(b)contain a site-plan for the development ofthe zone and show the approximate locationsand extents of land uses proposed in thezone for such things as public buildings andother public works and utilities, roads,housing, recreation, industry, business,markets, schools, hospitals, public andprivate open spaces and other categories ofpublic and private uses;

(c)specify the standards of population densityand building density;

(d) show every area in the zone which may, inthe opinion of the Authority, by required ordeclared for development or redevelopment;and 

(e)in particular, contain provisions regarding allor any of the following matters, namely:

(i)the division of any site into plotsfor the erection of buildings;

(ii)the allotment or reservation ofland for roads, open spaces,gardens, recreation grounds,schools, markets and other publicpurposes;

(iii)the development of any area intoa township or colony and therestrictions and conditions subjectto which such development may beundertaken or carried out;

(iv)the erection of buildings on anysite and the restrictions andconditions in regard to the openspaces to be maintained in oraround buildings and height andcharacter of buildings;

(v)the alignment of buildings on anysite;

(vi)the architectural features of theelevation or frontage of anybuilding to be erected on any site;

(vii)the number of residential buildingswhich may be erected on any plotor site;

(viii)the amenities to be provided inrelation to any site or buildings onsuch site whether before or afterthe erection of buildings and the person or authority by whom or atwhose expense such amenities areto be provided;

(ix)the prohibitions or restrictions regarding erection of shops,workshops,warehouses or factories or buildings of a specified architectural feature or buildingsdesigned for particular, purposes in the locality;

(x)the maintenance of walls, fences,hedges or any other structural orarchitectural construction and theheight at which they shall bemaintained;

(xi)the restrictions regarding the useof any site for purposes other thanerection of buildings; and 

(xii)any other matter which isnecessary for the properdevelopment of the zone or anyarea thereof according to plan andfor preventing buildings beingerected haphazardly in such zoneor area.

23.Procedure to be followed in thepreparation and sanction of Plans- (1) Beforepreparing any Plan finally the Authority shallprepare a Plan in draft and publish it by making acopy thereof available for inspection andpublishing a notice in such form and manner asmay be determined by regulations invitingobjections and suggestions from any person withrespect to the draft Plan before such date as maybe specified in the notice.

(2)The Authority shall also give reasonableopportunity to every local authority within whoselocal limits any land touched by the Plan is situated, to make any representation withrespect to the Plan.

(3) After considering all objections, suggestionsand representations that may have been receivedby the Authority, the Authority shall finallysanction the Plan.

(4)Provisions may be made by regulations withrespect to the form and content of a Plan andwith respect to the procedure to be followed andany other matter, in connection with thepreparation and sanction of such plan.

(5)Notwithstanding anything contained in sub-section (1) to (4), the procedure as laid down inthe said sub-sections shall not be required to befollowed in case the development of any projector scheme or any improvement thereof, in anyzone is to be carried out on any land vested inthe Authority.

25.Subsequent modification of Plans-(1) Atany time after a Plan has come into operationaccording to provisions of section 24, theAuthority may make any modification to the Planas it thinks fit, the modifications, which in itsopinion, do not affect material alterations in thecharacter of the plan and which do not relate tothe extent of land uses or the standards ofpopulation density.

(2)The Authority with the approval of the StateGovernment may make any other modificationsinto the plan in order to promote Planneddevelopment of any part of the Jaipur Region inmore efficient manner.

(2-a) The Authority or the Nagar Nigam, Jaipur,or any other body or Committee, as may beauthorised by the State Government in thisbehalf, may, in order to promote planneddevelopment of any part of the Jaipur Region inmore efficient manner, make such modifications in land use of the Plan for such area, as may bespecified by the State Government by notificationin the Official Gazette.

(3)Before making any modification to the Plan,Authority, (Nagar Nigam, or any other body orCommittee) shall publish a notice, in such formand manner as may be determined by regulationinviting objection before such date as may bespecified in the notice and shall consider allobjections and suggestions that may be receivedby the Authority, Nagar Nigam, Jaipur or anyother body or Committee.

(4)Every modification made under the provisionsof this section shall be published and themodification shall come into operation either onthe date of publication or on such date as theAuthority (Nagar Nigam, Jaipur or any other bodyor Committee) may fix by notice published in theofficial Gazette whereupon the modified planshall come into operation to all intents and for allpurposes of this Act 

....xxxx......xxx

28.Review of Plan- Notwithstanding anythingcontained in this Act, if the State Government orthe Authority at any time within ten years fromthe date on which a Plan comes into operationunder this act is of the opinion that the revisionof such Plan is necessary, the State Governmentmay direct the Authority to revise or theAuthority, may of its own motion undertaken,revision of, such Plan, after carrying out, ifnecessary fresh civic survey and preparing anexisting land use map of the Jaipur Region andthe reupon the foregoing provisions of thisChapter shall, so far as they can be madeapplicable, apply to the revision of such Plan asthose provisions apply in relation to thepreparation, publication and sanction of a Plan.

Rajasthan Municipalities Act, 2009 (the Act No.18of 2009)

160. Procedure to be followed in thepreparation and sanction of Plan.- (1) Beforepreparing any plan finally the Municipality shallprepare a Plan in draft and publish it by making acopy thereof available for inspection andpublishing a notice in such form and manner asmay be determined by bye-laws invitingobjections and suggestions from any person withrespect to the draft Plan before such date as maybe specified in the notice.

(2) The Municipality may, if it considersappropriate, constitute an Advisory Committeeconsisting of the following to consider the draftplan 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 institutionslocated in the city:

(iv) Six representatives from prominent Non-Government-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 theadvisory committee, if any, the Municipality shallsend the Plan to the State Government forapproval and after receipt of the approval of theState Government finally sanction the Plan.

(4) Provisions may be made by bye-laws withrespect to the form and content of a Plan and withrespect to the procedure to be followed and anyother matter, in connection with the preparationand sanction of such Plan.

...........xxxxxx............

162. Subsequent modification of Plans.- (1)At any time after a Plan has come into operationaccording to provisions of section 161, theMuncipality may, with the prior approval of theState Government, make any modification to thePlan as it thinks fit, the modifications, which in itsopinion, do not affect material alterations in thecharacter of the Plan and which do not relate tothe extent of land uses or the standards ofpopulation density.

(2) Before making any modification to the Plan,the Municipality shall publish a notice, invitingobjections before such date as may be specified inthe notice and shall consider all objections andsuggestions that may be received by theMunicipality.

(3) Every modification made under the provisionsof this section shall be published and themodification shall come into operation either onthe date of publication or on such date as theMunicipality may fix by notice published in theOfficial Gazette whereupon the modified Plan shallcome into operation to all intents and for allpurposes of this Act.

(4) Upon coming into operation of any modifiedPlan, any reference in any other section, except inthe foregoing sections of this Chapter, to theMaster Development Plan or any other plan, shallbe construed as a reference to the MasterDevelopment Plan or, as the case may be otherplan, as modified under the provisions of thissection.

(5) No modification of the Plan shall be madeunder this section until and unless it is finallyapproved by the State Government

......xxxxxx.........

164. Plans prepared prior to this Act deemedto have been prepared under this Act.- AnyMaster Development Plan prepared under theprovisions of any other law for the time being inforce prior to the commencement of this Act, shallbe deemed to have been prepared under theprovision of this Act, to which the provisions of theforegoing sections relating to the sanction,modification and operation of Master Plan/MasterDevelopment Plan shall mutatis mutandis apply:

    Provided that any Master Development Plansanctioned for the Municipality under any otherprovisions of law shall cease to operate as soon asa Plan is sanctioned under the provisions of thisAct.

165. Review of Plan.- Notwithstanding anythingcontained in this Act, if the State Government orthe Municipality at any time within ten years fromthe date on which a Plan comes into operationunder this Act is of the opinion that the revision ofsuch Plan is necessary, the State Government maydirect the Municipality to revise or the Municipalitymay of its own motion undertake revision of suchPlan after carrying out, if necessary, fresh civicsurvey and preparing an existing land use mapand thereupon the foregoing provisions of thisChapter shall, so far as they can be madeapplicable, apply to the revision of such Plan asthose provisions apply in relation to thepreparation, publication and sanction of a Plan.

166. Declaration of Development Areas.- (1)As soon as may be after a plan comes intooperation as provided in section 161, theMunicipality may, with the approval of the StateGovernment and by notification in the OfficialGazette, declare any area in the city to be adevelopment area for the purpose of this Act.

(2) On or after the date on which notificationunder sub-section (1) is published in the Official Gazette, no person shall institute or change theuse of any land or carry out any development ofland without the permission in writing of theMunicipality:

    Providedthat, no such permission shall benecessary-

(i) for carrying out works for the maintenance,improvement or other alteration of any building,being works which affect only the interior of thebuilding or which do not materially affect theexternal appearance thereof;

(ii) the carrying out of works in compliance withany order or direction made by any authorityunder any law for the time being in force; 

(iii) the carrying out of works by the Municipalityin exercise of its powers under any law for thetime being in force;

(iv) for the carrying out by the Central or theState Government or any local authority of anyworks-

(a)required for the maintenance or improvementof a highway, road or public street, being workscarried out on land within the boundaries of suchhighway, road or public street; and

(b) for the purpose of inspecting, repairing orrenewing any drains, sewers, mains, pipes, cable,telephone or other apparatus;

(v) for the excavation (including wells) made inthe ordinary course of agricultural operation;

(vi) for the construction of a road intended to giveaccess to land solely for agricultural purposes;

(vii) for normal use of land which has been usedtemporarily for other purposes; and 

(viii) in case of land, normally used for onepurpose and occasionally used for any other purpose, for the use of land for that other purposeon occasion.

53.As noticed hereinabove, in the first instance, toregulate the improvement and expansion of urbanareas in the State of Rajasthan, UIT Act was enacted,which came into force w.e.f. 24th July, 1959. Chapter IIof UIT Act deals with preparation of Master Plan, itscontents and procedure to be followed before preparingany Master Plan.

54. Section 3 of the UIT Act, empowers the StateGovernment to issue the order directing that in respectof and for any urban area in the State specified in theorder, a civic survey shall be carried out and a MasterPlan shall be prepared by such officer or authority asthe State Government may appoint for the purpose.Sub-section (2) of Section 3, empowers the StateGovernment to constitute an advisory council consistingof Chairman and such number of other members, asthe State Government may deem fit to advise theofficer or authority appointed under sub-section (1) onthe preparation of Master Plan. That apart, Section 8,empowers the State Government to establish a Boardof Trustees to be called Improvement Trust, a bodycorporate, for the purpose of carrying out improvement of any urban area in the State, whether a Master Planin respect thereof has or has not been prepared. 55.Section 4 provides that the Master Plan to beprepared for any urban area, [Defined under Section2(x) to mean the urban area as notified under Section3 or as the case may be under Section 8], shall definethe various zones into which urban area for which planhas been prepared may be divided for the purposes ofits improvements and indicate the manner in which theland in each zone is proposed to be used, which shallserve as basic pattern of framework within whichimprovement of scheme of the various zones may beprepared. 

56.As per Section 5, before preparing any Master Planofficially, the officer or authority appointed to prepare itis required to publish a draft of the Master Plan bymaking available the copy thereof for inspection and topublish a notice inviting objections and suggestionsfrom every person with respect to the draft Master Planbefore such date as may be specified in the notice. Asper the mandate of sub-section (2) of Section 4, everylocal authority within whose local limits any landtouched by Master Plan is situated is also entitled to a reasonable opportunity to make any representationwith respect to the proposed Master Plan. 

57.It is only after considering all objections,suggestions and representations that Master Plan isfinalised and submitted for approval to the StateGovernment as per the mandate of provisions ofSection 6 of the Act, which in its turn may eitherapprove the Master Plan with or without modification orwith such modification, as it may consider necessary orreject it with the directions for preparation of freshMaster Plan.

58.Suffice it to say that the statutory obligations anddemocratic procedure envisaged under the UIT Actmandates that the Master Plan must be prepared afterconsideration of the views, suggestions and objectionsof the public. Once the Master Plan is prepared andbrought into operation by way of publication of noticein terms of provisions of Section 7 of the UIT Act, asper mandate of provisions of Section 31 in respect ofthe urban area for which the Trust is constituted, everyscheme framed by the Trust in accordance with the Chapter V of UIT Act shall conform to such Master Plan and shall not be framed so as to affect an alteration indifferent zones defined by the Master Plan. 

59.Likewise, sub-section (1)(i) of Section 73Bmandates that no person can use or permit the use ofany land situated in any urban area notified underSection 8 for the purpose other than for which suchland was originally allotted to any person by the StateGovernment or Urban Improvement Trust, any otherlocal authority or any other body or authority inaccordance with law for the time being in force,otherwise than as specified under a Master Planwherever it is in operation. Further, by virtue of Section73B (1)(ii), even in cases where the land is not coveredby clause (i) of Section 73B (1), no person shall use orpermit to use of any such land situated in the urbanarea notified under Section 8 for the purposes otherthan for which such land use was or is permissible inaccordance with the Master Plan, wherever it is inoperation or under any law for the time being in force.

60.Thus, under the scheme of UIT Act, the urbanareas in respect whereof Master Plan is once preparedin accordance with the procedure laid down, thesanctity thereof has to be maintained and all improvement schemes of the various zones and thedevelopment work to be undertaken by the localauthorities or private entrepreneurs or anybody elseduring the operative period of the Master Plan mustconform to the land use as specified under the MasterPlan. 

61.It is pertinent to note that the UIT Act, does notprovide for modification of the Master Plan during itsoperative period or the revision thereof but then, thepower to frame the Master Plan inheres in it power tomodify or revise it in the manner and after followingthe procedure as provided for preparation of the MasterPlan.

62.Of course, sub-section (2) of Section 73B, a nonobstante clause, empowers the State Government orany authority authorised by it by notification in officialGazette to allow the owner or holder of any land tohave change of land use as specified, if it is satisfied todo so in public interest, on payment of conversioncharges as specified or for regularisation of change ofland use in terms of sub-section (3) of Section 73B, butthen, once the Master Plan is prepared under the UITAct for planned development of the urban area, the deviation therefrom is not permissible withoutmodification thereof in accordance with the procedurelaid down. Obviously, the change of the land use ascontemplated under sub-section (2) & (3) of Section73B in public interest cannot be permitted to beeffected so as to serve the purpose of an individual,owner or holder of any such land ignoring the land usespecified in the Master Plan else it is bound to lead tounplanned development, which is sought to beremedied/checked by way of the statutory documenti.e. Master Plan and Zonal Development Plan, madeoperative under the provisions of the UIT Act. 

63.Coming to the Act No.25 of 1982, it is enacted forestablishing an Authority for the purposes of planning,coordinating and supervising the proper, orderly andrapid development of Jaipur Region and for executingplans, projects and schemes for such development andto provide for matters connected therewith andaccordingly, for the accomplishment of the statutoryobject, the State Government in exercise of the powerconferred under Section 3, has constituted thestatutory body, JDA, which has been entrusted with thefunctions inter alia to undertake urban planningincluding the preparation of the Master Development Plan & Zonal Development Plan, carrying out surveysfor the purpose, making alteration therein as may bedeemed necessary and also to coordinate execution ofthe projects or schemes for the development of JaipurRegion and generally, to perform any other functionsthat the State Government may designate infurtherance of the objectives of the Act No.25 of 1982. 64.The preparation of Master Development Plan andZonal Development Plans for Jaipur Region is regulatedby the provisions contained in Chapter V of the Act of1982. Sub-section (1) of Section 21 of the Act No.25 of1982 mandates that the Authority with a view tosecuring planned integrated development and use ofland, shall carryout a civic survey of and prepare aMaster Development Plan for Jaipur Region. Sub-section (2) of Section 21, mandates that the MasterDevelopment Plan shall precisely define the quality oflife that a citizen of Jaipur could desirably be expectedto lead in (i) medium range perspective of the year1991 (ii) long term perspective year 2001 andthereafter and (iii) such other intermediate stages asthe State Government may direct, balanced and timetargeted development to subserve the needs ofgrowing city of Jaipur and other areas of Jaipur Region. 

Sub-section (2) of Section 21 further lays down thatthe Master Plan shall provide for the matters as arelikely to have bearing on integrated development ofJaipur Region and also specifies particular matterswhich may be provided for in the Master Plan, whichinclude provision for preservation, conservation anddevelopment of the areas of natural scenery, cityforests, wildlife, natural resources, land scapping;preservation of the objects, features, structures orplaces of historical, natural, architectural or scientificinterest and educational value. It is specificallymandated that the Master Development Plan shallprovide for allocation of land for different uses, generaldistribution and general location of land and to theextent to which the land may be used as residential,commercial, industrial, agriculture, as forests or formineral exploitation or for other purposes. It ismandated that the Master Development Plan shouldalso provide for reservation of areas for open spaces,gardens, recreation centres, zoological gardens, naturereserves, animal sanctuaries, dairies and health resortsetc.

65.Sub-section (3) of Section 21, contemplates thatthe Master Development Plan may also define the various zones into which Jaipur Region shall be dividedfor the purposes of development and indicate themanner in which development is to be carried out andthe land in each Zone is proposed to be used (whetherby carrying out therein development or otherwise) andthe stages by which such development shall be carriedout and shall serve as a basic pattern of frameworkwithin which Zonal Development Plan of the variouszones may be prepared. 

66.As per mandate of Section 22, the Authority isrequired to proceed with preparation of ZonalDevelopment Plan for each of the Zone into whichJaipur Region is divided, simultaneously with thepreparation of the Master Development Plan or as soonas may be thereafter. As per sub-section (2) of Section22, the Zonal Development Plan may inter alia containa site plan for the development of the Zone and showthe approximate location and extent of the land usesproposed in the Zone for such things as public buildingsand other public works and utilities, roads, housing,recreation, industry, business, markets, schools,hospitals, public and private open spaces, othercategories of public and private uses. It is mandatedthat the Zonal Development Plan shall also specify the standards of population density and building density;show every area in the zone which may in the opinionof the authority, be required or declared fordevelopment or redevelopment; and in particularcontain provisions regarding all or any of the mattersas specified under sub-section 2(e) including thedivision of any site into plots for the erection ofbuildings; the allotment or reservation of land forroads, open spaces, gardens, recreation grounds,schools, markets and other public purposes; thenumber of residential buildings which may be erectedor any plot or site as also the amenities to be providedin relation to any site or building on such site whetherbefore or after the erection of the buildings and theperson or authority by whom or at whose expense suchamenities are to be provided. 

67.Precisely, as per provisions of Section 21 and 22 ofthe Act No.25 of 1982, the Master Development Plan asalso the Zonal Development Plans to be prepared forthe development, has to be a comprehensive goaloriented strategy plan for overall orderly developmentof the Jaipur Region. As a matter of fact, the MasterDevelopment Plan must set goals and map out plansfor future so clearly that it functions like a road map or blue print and guide one and all concerned regardingfuture development of the city. To put in other words,the Master Development Plan and the ZonalDevelopment Plan are mandated to be self containeddocuments providing a long range vision, guiding theappropriate uses of the land within the region so as toprotect public health and safety and to createsustainable, physical and social environment forimproving the quality of life of the citizens and topromote the general public welfare.

68.Section 23 of the Act No.25 of 1982 deals with theprocedure to be followed in preparation and sanction ofplans which obviously includes Master DevelopmentPlan and Zonal Development Plan, as the case may be.As per mandate of provisions of Section 23, beforefinalisation of the plan, the JDA is under an obligationto prepare a draft plan and publish it by making a copythereof available for inspection and publishing a noticein the form and manner determined by the Regulationsinviting objections and suggestions from any personwith respect to draft plan before such date as specifiedin the notice. As per the provisions of sub-section (2) ofSection 23, it is mandatory for the Authority to givereasonable opportunity to every local authority within whose local limits, any land touched by the plan issituated, to make any representation with respect tothe plan. It is only after consideration of all objections,suggestions and representations, as may have beenreceived, the plan is finally sanctioned by the Authority.

69.Thus, undoubtedly, the Master Development Planor the Zonal Development Plan, as the case may be,finally sanctioned, after undertaking intensiveconsultation process involving experts drawn fromvarious disciplines and other stake holders, forsystematic and planned development of the city andadjoining areas are democratically prepared planningdocuments expressing the community desire to developphysically, economically and socially and therefore, itsbinding effect and inviolability could be wellunderstood. 

70.Coming to the most contentious issue, themodification of the Plans during its operative period,Section 25 of the Act No.25 of the Act of 1982,contemplates three situations whereunder the MasterDevelopment Plan or the Zonal Development Plan, asthe case may be, is permissible to be modified to theextent and in the manner provided. 

71.As per sub-section (1) of Section 25, at any timeafter the Plan has come into operation, the JDA isempowered to make any modification to the Plan as itthinks fit, which in its opinion:

(i)do not affect material alterations in thecharacter of the Plan; and

(ii)do not relate to the extent of land uses or thestandards of population density.

72.It is to be noticed that the Master Plan, a longterm perspective Plan for guiding sustainable planneddevelopment of the city laying down the planningguidelines, policies, development code, spacerequirement for various socio economic activitiessupporting the existing and future population of the cityduring the Plan period, once finalised and come intooperation, even the creator of the Plan, the JDA, is notvested with the unfettered authority to modify the Planduring its operative period as it thinks fit. The powervested with the JDA to modify the Plan during theoperative period is circumscribed by the triadconditions noticed hereinabove. 

73.The JDA on its own is not empowered to modifythe Plan, which affects material alteration in thecharacter of the Plan. It is true that what amounts to material alteration in the character of Plan, is notdefined. But then, the basic features of the planforming foundation for the planned development of thecity as projected certainly forms basic character of theplan, which is not permissible to be altered by the JDAin 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 Planand Zonal Development Plan are prepared after duedeliberation on all the relevant aspects including theneed of the existing population and future growth ofpopulation during the operative period of the Plan andtherefore, it has been specifically provided that theAuthority on its own shall not be entitled to modify theland use as defined or affecting the standards ofpopulation density in any planning area as projected.

74.Sub-section (2) of Section 25 mandates that withthe approval of the State Government, the Authoritymay make any other modification into the Plan in orderto promote the Planned Development of any part ofJaipur Region in most efficient manner. But then, thediscretion vested with the State Government undersub-section (2) of Section 25, in granting approval ofmodification of the Master Development Plan or Zonal Development Plan as projected by the respondents, isnot absolute. Undoubtedly, the discretion conferredupon the State Government in permitting modificationof the Plan at the instance of the JDA is circumscribedwith the condition that it must be in order to promotethe Planned Development of Jaipur Region in mostefficient manner and thus, while exercising the powerconferred as aforesaid, the State Government isrequired to act with great caution and circumspectionand while approving the modification suggested, mustsatisfy itself that such modification is in furtherance ofPlanned Development of any part of Jaipur Region. Itneeds to be reiterated and emphasised that the MasterDevelopment Plan or the Zonal Development Planfinally sanctioned is product of an intensiveconsultation process involving expert drawn fromdifferent disciplines and the objective consideration ofthe objections/suggestions of the public at large andtherefore, the material on record and the decision ofthe State Government thereupon approving themodification thereof must reflect that the modificationpermitted is in larger public interest foraccomplishment of the statutory objective of Planned Development in most efficient manner and not to servean individual interest. 

75 .In Bangalore Medical Trust's case (supra), whileconsidering the question with regard to permissibility ofthe change of land use of the land reserved in theMaster Plan as open space, public park andplaygrounds, where the power was conferred upon theauthority to alter the scheme, the Hon'ble SupremeCourt observed: 

“47. Was the exercise of discretion under sub-section (4) of Section 19 in violation or inaccordance with the norm provided in law. Forproper appreciation the sub-section is extractedbelow:

“19. (4) If at any time it appears to beAuthority that an improvement can be made inany part of the scheme, the Authority may alterthe scheme for the said purpose and shallsubject to the provisions of sub-sections (5)and (6) forthwith proceed to execute thescheme as altered.”

This legislative mandate enables the Authority toalter any scheme. Existence of power is thusclearly provided for. What is the nature of thispower and the manner of its exercise? It isobviously statutory in character. The legislaturetook care to control the exercise of this power bylinking it with improvement in the scheme. What isan improvement or when any change in thescheme can be said to be improvement is a matterof discretion by the authority empowered toexercise the power. In modern State activitydiscretion with execution and administrativeagency is a must for efficient and smoothfunctioning. But the extent of discretion orconstrains on its exercise depends on the rules and regulations under which it is exercised. Sub-section (4) of Section 19 not only defines thescope and lays down the ambit within which thediscretion could be exercised but it envisagesfurther the manner in which it could be exercised.Therefore, any action or exercise of discretion toalter the scheme must have been backed bysubstantive rationality flowing from the section.Public interest or general good or socialbetterment have no doubt priority over priority orindividual interest but it must not be a pretext tojustify the arbitrary or illegal exercise of power. Itmust withstand scrutiny of the legislative standardprovided by the statute itself. The authorityexercising discretion must not appear to beimpervious to legislative directions.” (emphasisadded)

76. In R.K.Mittal's case (supra), the Hon'ble SupremeCourt while dealing with the power of the DevelopingAuthority to amend the Master Plan, observed:

“40. It has to be noticed at this stage that thedevelopment plan prepared in accordance with theRegulations take the statutory colour in terms ofSection 6(2)(b) of the Act and, therefore, itsalteration by an executive order would beimpermissible. Even when a Master Plan is to beamended, the entire prescribed procedure must befollowed. The power to amend should be exercisedonly in consonance with the settled norms withoutgoing beyond the original power of theDevelopment Authority to make such plan inaccordance with the provisions of the Act. Thepower to amend cannot be used to frustrate theprovisions of the statute. Regulations, beingsubordinate legislation must fall in line with theprincipal provisions of the Act and in no way shouldbe detrimental to the provisions and the legislaturescheme of the Act.

48.A decision which is sought to be taken by theDevelopment Authority in the garb of a policydecision matter, if not in conformity to the MasterPlan, the Regulations and the provisions of the Actin force, would be an action extra jus. TheDevelopment Authority is to act in adherence tothe provisions of the law regulating such user orconstruction. The laconic result of a collectivereading of the afore referred statutory provisions isthat the Development Authority or its officers, haveno power to vary the user and spaces prescribed inthe Master Plan, except by amending the relevantlaws and that too, for a proper object and purpose.Any decision, as a policy matter or otherwise, forany extent of public convenience, shall be vitiated,if it is not supported by the authority. The courtswould examine what is the sensible way to dealwith this situation, so as to give effect to thepresumed purpose of the legislation. The provisionsin question should be construed on their planreading, supporting the structure of the legislativeintent and its purpose. The rule of schematicinterpretation would come into play in suchsituations and the Development Authorityconcerned cannot be permitted to overreach theprocedure prescribed by law with designs notacceptable in law.

49.The Development Authority is inter aliaperforming regulatory functions. There has beenimposition of statutory duties on the power of thisregulatory authority exercising specified regulatoryfunctions. Such duties and activities should becarried out in a way which is transparent,accountable, proportionate and consistent. Itshould target those cases in which action is calledfor and the same be exercised free ofarbitrariness. The Development Authority is vestedwith drastic regulatory powers to investigate,make regulations, impute fault and even to imposepenalties of a grave nature to an extent ofcancelling the lease. The principles ofadministrative justice squarely apply to suchfunctioning and are subject to judicial review. TheDevelopment Authority, therefore, cannottransgress its power as stipulated in law and act ina discriminatory manner. The DevelopmentAuthority should always be reluctant to mould thestatutory provisions for individuals, or even thepublic convenience as this would bring an inbuiltelement of arbitrariness into the action of theauthorities. Permitting mixed user, where the Master Plan does not so provide, would be glaringexample of this kind.” (emphasis added)

77.Thus, it can be safely concluded that the powerconferred upon the State Government under sub-section (2) of Section 25 of the Act to grant approval tothe Authority to make modification into the Plan notcovered by the provisions of sub-section (1) is notabsolute and no modification in the Plan suggested bythe Authority is permissible to be approved by the StateGovernment, which is not in furtherance of the planneddevelopment of Jaipur Region in most efficient manner.Suffice it to say that power to modify the MasterDevelopment Plan conferred upon the Authority withthe prior approval of the State Government in nomanner empowers it to effect the modification of thePlan in deviation of the original legislative intentunderlying the enactment i.e. the planned and orderlydevelopment of Jaipur Region. 

78.This takes us to consider the provisions of sub-section (2a) of Section 25, inserted vide JaipurDevelopment Authority (Amendment) Act, 2001 w.e.f.26th of May, 2001, which provides that Authority orNagar Nigam, Jaipur or any other body or committee, as may be authorised by the State Government in thisbehalf may in order to promote Planned Developmentof any part of Jaipur Region in most efficient manner,make such modification in the land use of the Plan forsuch area, as may be specified by the StateGovernment in the Official Gazette. As discussedhereinabove, the Authority which is empowered toprepare and finally sanction the Plan, is also notempowered to make any modification on its own to thePlan, which inter alia affects the extent of the landuses. Further, by virtue of provisions of sub-section (2)of Section 25, the Authority is not empowered to effectany modification other than permissible under sub-section (1) of Section 25, into the Plan even in order topromote planned development of any part of JaipurRegion in most efficient manner, on its own, withoutapproval of the State Government. Obviously, the othermodification in the Plan as contemplated under sub-section (2) of Section 25, in order to promote planneddevelopment of any part of Jaipur Region in moreefficient manner permissible to be made by the JDA,the creator of the Plan with the approval of the StateGovernment, includes the change in the land use. Butthen, while permitting the modification in the land use of the Plan even under sub-section (2a) of Section 25,before issuing notification specifying the change in landuse, the State Government on the basis of the materialon record including the opinion of planning authoritieshaving expertise in the field and after taking intoconsideration the objections/ suggestions that may bereceived, must arrive at a conclusion that the change inthe land use is absolutely necessary for planneddevelopment of any part in Jaipur Region. It needs tobe emphasised that the modification in the Plan interms of the provisions of sub-section (2) & (2a) ofSection 25, is permissible only for accomplishment ofthe basic object of the enactment i.e. planneddevelopment of Jaipur Region, in the larger publicinterest and not just to serve interest of an individual. 

79.There is yet another aspect of the matter. As permandate of the provisions of sub-section (3) of Section25, any modification to the Plan in terms of theprovisions of sub-section (1), (2) or (2a) cannot beeffected without publication of the notice invitingobjection before the date as may be specified in thenotice and after consideration of the suggestions, asmay be received pursuant thereto. Thus, even themodification to the Plan during its operative period to the extent permissible, is not open to be made, withoutconsideration of the objections and suggestionsreceived pursuant to the notice issued, as in the case ofpreparation of the Plan. Obviously, the objections andsuggestions received are required to be considered bythe Authority empowered to permit the modification inthe Plan in terms of the provisions of sub-section (1)and (2) of the Section 25 of Act No.25 of the Act of1982. To be more specific, the procedure to be adoptedfor modification of the Plan under Section 25 of the Actby the Authority or the State Government, is notdifferent than the procedure required to be adoptedwhile undertaking preparation/revision of the Plan.

80.The provisions of Section 33-A, which finds placein Chapter VI of the Act No.25 of 1982, provide thatnotwithstanding anything contained in said Chapterwhere any person carry any development of apermanent nature or has changed the use of landwithout permission required under the Act or which isnot in accordance with the permission granted, is incontravention of any conditions subject to which anypermission has been granted or in contravention of anypermission granted or duly modified, such developmentor change of use of land may be compounded by the Authority on such terms and on payment of such feesand charges as may be prescribed by the StateGovernment from time to time. Indisputably, theprovisions incorporated as aforesaid, cannot overridethe provisions of Chapter V of the Act, including Section25 incorporated therein, which imposes restriction onmodification of the Master Plan as discussedhereinabove. In other words, the unauthoriseddevelopment permissible to be compounded in terms ofSection 33A, must conform to the land use plan underthe Master Development Plan and therefore, unless anduntil, the unauthorised development sought to becompounded falls within the parameters of themodification of the Plan as contemplated under sub-section (1) & (2) of Section 25 as discussedhereinabove and such modification to the Plan isactually effected by following the procedure laid down,no unauthorised development in terms of Section 33Ais permissible to be compounded.

81.Coming to the provisions of Act No.18 of 2009, thesaid Act incorporates specific chapter i.e. Chapter XI,which deals with urban development and town planningwithin the municipal area. Section 159 thereof,empowers the Municipality to carry out detailed survey of the city and prepare a Master Development Plan andother statutory plans specified i.e. Execution Plan forfive years period and Annual Municipal Action Plan forone year period. The procedure provided forpreparation and sanction of the plan as laid down underSection 160 of the Act No.18 of 2009, is not differentthan the procedure as provided for the preparation andsanction of the Plan under the Act No.25 of 1982 or theUIT Act and other relevant statutes. Section 162 of theAct No.18 of 2009, which deals with subsequentmodification of the Plan, sub-section (1) thereof,empowers the Municipality to make modification to thePlan as it thinks fit which in its opinion do not affect thematerial alteration in the character of the Plan andwhich does not relate to the extent of the land uses orstandards of the population density. Thus, like theAuthority under the Act No.25 of 1982, the Municipalityis also not empowered to make modification in the Planon its own which affects material alteration in thecharacter of the Plan. But then, Section 162 does notincorporate any provision permitting the Municipality tomake any other modifications not referred to undersub-section (1) of Section 162 with the approval of theState Government. Rather, as per the mandate of provisions of sub-section (5) of Section 162, nomodification of the Plan even which is referred to undersub-section (1), is permissible to be made unless anduntil it is finally approved by the State Government.Suffice it to say that during the operative period of thePlan under Section 162 of the Act No.18 of 2009, nomodification other than those referred to under sub-section (1) of Section 162 discussed hereinabove, ispermissible to be made. 

82.Further, it is relevant to notice that by virtue ofprovisions of Section 164, any Master DevelopmentPlan prepared under the provisions of any other law fortime in force, prior to commencement of the Act No.18of 2009, shall be deemed to have been prepared underthe Act No.18 of 2009 and the provisions incorporatedas aforesaid for sanction, modification and operation ofthe Master Plan/Master Development Plan shall mutatismutandis apply, however, the same shall cease tooperate as soon as Plan is sanctioned under theprovisions of the Act No.18 of 2009. In this view of thematter, except in respect of the urban areas in respectwhereof Improvement Trust has been constituted underSection 8 of the UIT Act and the Jaipur Region, JodhpurRegion and Ajmer Region, the development planning whereof is governed by the provisions of Act No.25 of1982, Act No.2 of 2009 and Act No.39 of 2013respectively, the urban development and town planningin other municipal areas shall be governed by theprovisions of Chapter XI of the Act No.18 of 2009. 

83.Much emphasis was laid by the learned AG andAAG on the proposition that the Master DevelopmentPlan is an organic document and not static and cannotbe considered so sacrosanct that it cannot be altered inany circumstances during its operative period andunless the decision of the Authority permitting thechange of land use in exercise of the statutory power isfound to be actuated by mala fides or suffering fromvice of colourable exercise of the power, the sameshould not be interfered with by the court. 

84.In Bombay Dyeing & Manufacturing Ltd's case,relied upon by the learned AG, the Hon'ble SupremeCourt while emphasising that the development plan isan organic document regarding the periodic changesrequired in development plan and interpretation of thewords “change in character of the plan”, observed:

“249. A development plan is an organicdocument in the sense that periodic changesare contemplated thereby. A development plan is required to be changed every 20 years. Suchchanges are to be brought about keeping inview the past experience of the planningauthority and the intended future developmentof the town. While, therefore, interpreting thewords “change in the character of plan” thequestion would be as to whether the change inthe character is referable to alteration of theentire plan. The change in the character would,therefore, necessarily mean the change in thebasic feature thereof and the entire plan as awhole wherefor the same must be read intotality. In this case, the changes made do notbring about any significant changes so as tocome to a conclusion that its basic features arealtered.”

85.In Pune Municipal Corporation's case (supra), theHon'ble Supreme Court with reference to the provisionsof Section 37 of the Maharashtra Regional & TownPlanning Act, 1966, while considering the question ofminor modification of the final development planwithout affecting its basic character, observed:

“3.The question now for consideration iswhether the State Government can make anychanges of its own in the modificationssubmitted by the Planning Authority or not. Theimpugned Section 37 of the Act reads asfollows :

“37 (1) Where a modification of any part ofor any proposal made in, a finaldevelopment plan is of such a nature that itwill not change the character of suchdevelopment plan, the Planning Authoritymay, or when so directed by the StateGovernment shall, within sixty days from thedate of such direction, publish a notice in theOfficial Gazette and in such other manner asmay be determined by it inviting objectionsand suggestions from any person with respect to the proposed modification notlater than one month from the date of suchnotice; and shall also serve notice on allpersons affected by the proposedmodification and after giving a hearing toany such persons, submit the proposedmodification with amendments, if any, to theState Government for sanction.

(1A) .....

(1AA)....

(1B)......

(2) The State Government may, make suchinquiry as it may consider necessary andafter consulting the Director of TownPlanning by notification in the OfficialGazette, sanction the modification with orwithout such changes, and subject to suchconditions as it may deem fit, or refuse toaccord sanction. If a modification issanctioned, the final development plans shallbe deemed to have been modifiedaccordingly.” (Emphasis supplied)

4.Reading of this provision reveals that underclause (1), the Planning Authority after invitingobjections and suggestions regarding theproposed amendment and after giving notice toall affected persons shall submit the proposedmodification for sanction to the Government. Thedeliberation with the public before making theamendment is over at this stage. TheGovernment, thereafter, under clause (2) isgiven absolute liberty to make or not to makenecessary inquiry before granting sanction.Again, while according sanction, Governmentmay do so with or without modifications.Government could impose such conditions as itdeem fit. It is also permissible for theGovernment to refuse the sanction. This the truemeaning of the clause (2). It is difficult to upholdthe contrary interpretation given by the HighCourt. The main limitation for the Government ismade under Clause (1) that no authority can propose an amendment so as to change thebasic character of the development plan. Theproposed amendment could only be minor withinthe limits of the development plan. And for suchminor changes it is only normal for thegovernment to exercise a wide discretion, bykeeping various relevant factors in mind. Again,if it is arbitrary or unreasonable the same couldbe challenged. It is not the case of therespondents herein that the proposed change isarbitrary or unreasonable. They challenged thesame citing the reason that the Government isnot empowered under the Act to make suchchanges to the modification.”

86.In Manohar Joshi's case (supra), the Hon'bleSupreme Court while dealing with the issue regardingthe conversion of the space meant for public amenitiesfor the purposes of housing at the instance of few landowners and builders, observed:

“199. As stated above, we adopted the model ofdemocratic planning which involves theparticipations of the citizens, administrators,municipal bodies and the Government as is alsoseen throughout the MRTP Act. Thus, when itcomes to the development plan for a city, at theinitial stage itself there is the consideration of thepresent and future requirements of the city.Suggestions and objections of the citizens areinvited with respect to the proposed plan, andthen the planners apply their mind to arrive at theplan which is prepared after a scientific study, andwhich will be implemented during the next 10 to20 years as laid down under Section 38 of theMRTP Act.

The plan is prepared after going through the entiregamut under Section 21 to 30 of the Act, and thenonly the sanction is obtained thereto from theState Government. That is why the powers tomodify the provisions of the plan are restricted asnoted earlier. If the plan is to be tinkered for the benefit of the interested persons, or for those whocan approach the persons in authority, then thereis no use in having a planned development.Therefore, Section 37 which permits minormodifications provides that even that should notresult into changing the character of thedevelopment plan, prior whereto also a notice inthe gazette is required to be issued to invitesuggestions and objections. Where themodification is of a substantial nature, then theprocedure under Section 29 of the Act requiring anotice in the local newspapers inviting objectionsand suggestions from the citizens is to beresorted to. Even the decision of reservation underSection 50 is at the instance of the appropriateauthority only when it does not want the land forthe designated purpose.

200.The idea is that once the plan is formulated,one has to implement it as it is, and it is only inthe rarest of rare cases that you can departtherefrom. There is no exclusive power given tothe State Government, or to the PlanningAuthority, or to the Chief Minister to bring aboutany modification, deletion or dereservation, andcertainly not by a resort to any of the DC Rules.All these constituents of the planning process haveto 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 para45 of Indore Vikas Pradhikaran v. Pure IndustrialCoke & Chemicals Ltd. As follows: (SCC p.729)

“45.Town and country planning involvingland development of the cities which are soughtto be achieved through the process of land use,zoning plan and regulating building activitiesmust receive due attention of all concerned. Weare furthermore not oblivious of the fact thatsuchplanning involving highly complex citiesdepends upon scientific research, study andexperience and, thus, deserves due reverence.” (emphasis supplied)

87.Thus, there cannot be any quarrel with theproposition that the Master Plan, which is a policy document for guiding the future development of thecity or town in the planned manner and to arrestundesirable and unplanned growth, is not a staticdocument, which cannot be modified or revised as andwhen considered necessary in the larger public interestin furtherance of planned development of the urbanarea in respect whereof it is made operative. But then,the Master Development Plan prepared to master thefuture development in the city or town democratically,after due deliberation and consideration of suggestionsand objections from the public at large, cannot bepermitted to be set at naught at the whim and fancy ofthe authority concerned just to serve the interest ofindividuals. Obviously, the object of the planneddevelopment shall be achieved by rigorous andsuccessful implementation of the Master DevelopmentPlan and not by deviation therefrom with impunity.

88.We are firmly of the opinion that once the MasterDevelopment Plan is brought into being, vigilantimplementation thereof should be the rule and anydeviation therefrom an exception and therefore, thepower vested with the Authority or the StateGovernment for modification thereof should beexercised sparingly in furtherance of the planned development in the larger public interest and nototherwise.

The status of peripheral control belt /greenbelt/ecological zone specified in the notifiedMaster Development Plan, permissibility of use ofthe land forming part of peripheral controlbelt/ecological zone/green belt specified in theMaster Development Plan for the purposes otherthan those specified during its operative periodand thereafter, at the time of revision thereof atthe end of its tenure and further the scope ofalteration/modification thereof (Question No.2)

89.The issue whether the peripheral controlbelt/green belt/ ecological zone, specified in thenotified Master Plan, a statutory instrument forms basiccharacter/ feature of the Master Plan, which cannot bealtered and land forming part thereof cannot be put toother uses i.e. residential, commercial, institutional andindustrial purposes etc., has been a most contentiousissue in these PILs.

90.Before considering the issue in light of thestatutory provisions, we consider it appropriate to referto the provisions regarding periphery controlbelt/ecological zone/green belt, made in the successive Master Developments Plans of the six major cities viz.Jaipur, Jodhpur, Ajmer, Udaipur, Kota and Bikaner,prepared and made operative over the years aftercoming into force the UIT Act, the Act No.25 of 1982,the Act No.2 of 2009 and Act No.39 of 2013, referredto by the learned amicus curiae, the learned AG andAAG during the course of hearing in support of theircontentions so as to show the status of the peripheralcontrol belt/ecological zone/green belt specified, itspurpose and permissibility of alteration thereof, so as toput it to other uses such as commercial, residential, institutional and industrial etc. during the operativeperiod of the Plan, at the time of revision orpreparation of the new Master Development Plan beforeor 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 year-1991, was prepared under the provisions of UIT Act.After coming into force of the Act No.25 of 1982 andconstitution of JDA, Master Development Plan 2011 ofJaipur Region came into force w.e.f. 1.9.1998. Taking into account, the environmental considerations,regional drainage slops, existing developments,direction of growth, requirement of land toaccommodate the expected increase in the populationand related increase in the various activities, the landutilization in Jaipur Region was divided into three broadcategories namely, Rural Area, Ecological Zone andUrbanisable Area. The proposal of land utilization inEcological Zone delineated in the Master DevelopmentPlan 2011 of Jaipur Region reads as under : 

“Traditionally in the Master Plan of various Towns,the urban areas have been shown as surroundedby a ring of peripheral belt or green belt. Thisgreen belt was expected to act as lung spacearound the urban areas. It was also expected tocater to the activities operating in rural areasincluding agriculture, partly catering to therequirements of the urban uses. The agriculturalbased activities on such lands are often pushedback by other more profitable activities likehousing, industries etc. It is also a fact that withthe increase of land requirements for urban uses,the urban land parcel keeps expanding andengulfs a large part of the lung space legallydelineated as green belt or peripheral control beltin accordance with law. Thus the area shown asgreen belt in a Master Plan prepared in seventiesbecomes an urban area for the same city whenthe revised or a New Master Plan is prepared onexpiry of the stipulated date of earlier document.This obviously does not simply that the urbanarea which required certain green lung spacesaround it during the stipulated Master Plan periodceases be so after expiry of the Master PlanPeriod. While the Master Plan exercises, under theprovisions of various acts are carried out by andlarge for twenty years period, it is essential even to look beyond the stipulated time frame, for thecomplex urbanisation phenomenon has nobounds.

    In this context, it has, therefore, beenconsideral necessary to delineate a green zonewhich may continue to remain so even after theplan period and ordinarily may not be altered itsubsequent revisions modification or newdevelopment plans. Jaipur is fortunate to haveavailable Aravali Hill ranges with forest coversabutting the urban areas towards north and east.These have provided a natural barrier againstindiscriminate urbanisation, thus saving theagricultural character of the areas towards North,east, as compared to areas towards north west,west, south east. The study of regional drainageslopes reveals that areas of Achrol valley aredrained towards south a large part of which formcatchment area of Ramgarh Dam, the mainsource of drinking water to walled city area. Thisarea contiguous with the areas on both sides ofNH 11 leading to Agra up to the Agra Railway lineform one contiguous green zone in the Regionwhich has a sensitive eco-system. 

    Any degradation or deterioration in this eco-system islikely to effect quality of life of the citizens of theRegion.Keeping in view all these aspects, besides theUrbanisable Area, Ecological Zone has beendelineated in the Region. This zone including thehill ranges, fores covers water bodies, settlementsetc. is ideally suited to be maintained as apredominant green zone to be utilized forAgriculture, forestry and allied activities besidescompatible activities. The existing settlementsand legally established urban and rural functionsin this zone will be allowed to expand to theextent of natural growth. Functions and activitieswhich are eco-friendly and occupy minimal builtarea for incidental use like recreational & healthresorts, sports complexes, stud forms, golfcourses etc. may come up in this zone subject tostringent control with respect to environmentaland other planning aspects. The Ecological Zoneshall by all means be protected againstindiscriminate urbanisation and shall continue to be a predominant green area even beyond thehorizon year as stipulated in this document. Theboundaries of the ecological zone as delineated inthe over all regional context may very slightly forplanning considerations while working out detailsin the Zonal Development Plans and those plansmay accommodate selective extractive industriesin specific areas, designated for them, few eco-friendly urban functions as may be promoted byJDA/Govt. The area of the Ecological Zonedelineated at this stage is approx 449 Sq. Kms.”(emphasis supplied)

(Master Development Plan-2011 Jaipur RegionPart-I, page 52)

92.During the operative period of Jaipur MasterDevelopment Plan 2011, the JDA prepared MasterDevelopment Plan with a horizon year 2025, which hascome into force from 6.9.2011. The MasterDevelopment Plan 2025 of the Jaipur Region has beendrawn up with the reference to following five policyzone :·

• 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 ofdevelopment, and U2 will be the immediate influencearea of periphery of U1 area. U3 is intended to be continuum to U1 & U2 area in either side of Majorroads. 

In Ecological Zone G1 (Green Zone-1) is primarilya zone where the principal aim is to conserve thenatural features such as hills, river, nala, water bodies,forests flora fauna at any cost. The said zone is strictlyreserved and to be protected from any development,whereas G2 (Green Zone-2) primarily the area abuttingintended to be developed a continuum to G1. It isprovided that the Ecological area includes the areawhich is suitable for agriculture and other eco sensitivepurposes. However, in the Ecological Area G2, activitylike eco friendly housing, biotech parks, Motel, Resortshas been permitted and further the “Pulses villages”“Oil Palm”, Vegetable Clusters, Mega Food Parks mayalso be proposed therein. But it is specifically providedthat other uses are to be discouraged in G2 andEcological Area. At the same time, it is provided that ifin the interest of general public, the Competentcommittee may arrive at any other activity with theenvironmental impact assessment. A further restrictionis imposed that such use shall adhere to the basicprinciple of low intensity development. [vide (iv.) Ecological Zone, Master Development Plan-2025,Volume-2, Page 50-51] 

    Thus, as per the Master Development Plan 2025 ofthe Jaipur Region, the Ecological Zone (G1) delineatedis strictly reserved and protected, which cannot be putto use for any development purposes. Even theEcological Zone (G2) is ordinarily not permitted to beused for the purposes other than the restrictivepurposes specified. 

    The area of Ecological Zone shown in the MasterPlan 2011 as 481 Sq. Kms. stands increased in JaipurMDP 2025 to 894 Sq. Kms. It needs to be mentionedthat neither Master Development Plan 2011 nor MasterDevelopment Plan 2025, provides for peripheral controlbelt around the urban area in addition to the EcologicalZone. 

JODHPUR DEVELOPMENT PLAN

93. The Master Plan 2001-2023 of Jodhpur Regionconsisting of Jodhpur City and 72 Revenue Villagesafter approval under sub-section (3) of Section 6 wasnotified under Section 7 of the UIT Act on 18.8.03.Under the Plan while specifying the land use forresidential, commercial, industrial, Government & Semi Government and other purposes, a periphery controlbelt was provided around the urban area to check theencroachment and unauthorised development whereinthe land use was mainly restricted to agriculture,plantation and the purposes related thereto. The clause4.12 of Master Plan 2001-2023 dealing with peripherycontrol belt reads as under: ---

                                                    (Jodhpur Master Plan 2001-2023 clause 4.12 page 54)

94. Mr.M.S.Singhvi, learned amicus curiae whilespecifically referring to the Draft Master DevelopmentPlan-2031 of Jodhpur Region, pointed out that so as tocircumvent the interim order passed by this courtrestraining the respondents from effecting any changein the land use without permission of this court inecological zone and periphery control belt including thegreen belt, in the proposed Master Development Plan-2031 of Jodhpur Region, the provision for ecologicalzone/periphery control belt/green belt, has beenaltogether deleted. It is pertinent to note that inJodhpur MDP 2031 (Draft), it is proposed that at thelocal level for the purpose of the garden and openspaces on the basis of the population in the residentialarea, the park shall be developed but then, noreservation of the land for ecological zone/peripherycontrol belt/green belt is proposed.

AJMER MASTER DEVELOPMENT PLAN:

95.The Master Development Plan 1971-1991 of AjmerCity was prepared under the provisions of UIT Act, was notified vide notification dated September 13, 1976,which makes the provision for Peripheral Control Belt asalso for Rural Settlements, as under:

 “PERIPHERAL CONTROL BELT: The Notified UrbanArea of Ajmer covers about 243 sq. Kms. It includes27 revenue villages. The development programmewithin the Notified Urban Area would be in twodistinct ways firstly the development of Ajmer City, second the development of rural settlements fallingwithin the peripheral belt.

Ajmer has assumed special importance for export ofeggs not only to other parts of Rajasthan but otherStates as well. More than one lakh eggs are beingexported every day and this activity is likely toincrease. Special consideration has therefore beengiven in the Plan for earmarking areas where theseactivities could be promoted and properlydeveloped. Dairies and large poultry farms nowlocated in or adjoining the developed area shall beultimately moved to the new sites, located on theperipheral control belt towards the south-east,south-west and west. These Dairies and Poultryfarms will form part of urbanisable area for 1991.

Selected villages lying within the Peripheral controlbelt but outside the urbanisable area shall have tobe developed to strengthen the rural economy.These proposals shall envisage some degree ofcontrol on the Use of land in the rural areas. In theabsence of any restrictions, people are likely to bebuild in the rural areas is an in-discriminate mannerwhich would not only spoil the rural country side butmay also lead to haphazard and sub-standard urbansprawl outside the urbanisable limits. This shalldefeat the whole objective of compact andorganised urban development. A few villages, lyingwithin the peripheral control belt shall be developedunder rural development programme to improve theeconomy of the rural settlements in the area.Permissible uses within the peripheral Control Beltmay be forestry, cultivation, nurseries, orchardsetc.”

                                                            (Ajmer Master Plan 1971-91 page 50 & 51)

Thereafter, Ajmer Master Development Plan 2001-2023 was notified under Section 7 of the UIT Act, videnotification dated 4.4.05, which also makes provisionregarding periphery control belt in the following terms:

However, during the operative period of AjmerMaster Development Plan, 2001-2023, in the year2013, Draft Master Development Plan 2013-2033 hasbeen prepared under the provisions of Act No.39 of2013, which does not provide for Periphery Control Belt as such but makes the provision for Green Area (G-1)& (G-2). Green Area (G-1) is the zone strictly reservedintended to conserve the natural features such as hills,river, nallah, water bodies, forests, flora and fauna andto be protected from any development. G-2 area is thearea abutting G-1 which is buffer zone to control thedevelopment in Green Area G-1. In the G-2 area,agriculture and other eco-sensitive activities such aseco-friendly residence, bio-park, resorts, vegetablegroup, mega food park etc. may be permitted. Thus,the provision incorporated in the Draft MasterDevelopment of Ajmer Region makes the provision forGreen Area in the line of the Jaipur MasterDevelopment Plan 2025, which provides for EcologicalZone (G-1 & G-2).

UDAIPUR MASTER DEVELOPMENT PLAN

96. Udaipur Master Plan 1997-2022 came into forcew.e.f. 23.1.03 wherein, the entire area within the urbanlimit outside the urbanizable area was declared asperipheral control belt wherein land use for thespecified purposes was allowed. Clauses 4.1 and 5.15whereof, dealing with Peripheral Control Belt readsas under:-

                                    (Udaipur Master Plan 1997-2022 clause 4.1 page 34, clause 5.15 page 61) 

During the operative period of Udaipur Master Plan1997-2022, the Plan has been revised and UdaipurMaster Plan 2011-2031 prepared under the provisionsof UIT Act has been notified vide notification dated24.9.2013. The Peripheral Control Belt as provided forunder the Plan 1997-2022 has been done away withand instead Green Area-1 and Green Area-2 have beenprovided for in the following terms: 

    (Udaipur Master Plan 2011-2031 page 65-66)

KOTA MASTER PLAN

97. Kota Master Plan 2001-2023, notified videnotification dated 15.4.05 while specifying the differentland uses to control the unwarranted developmentduring the operative of the Plan, provide for thePeripheral Control Belt, the relevant clause 5.8 thereof, reads as under: 

                                          (Kota Master Plan 2001-2023, page 102)

BIKANER MASTER PLAN

98. The Master Plan of Bikaner projecting the needs ofthe town for 25 years with the base year being 1971and horizon year as 1996 was notified by theGovernment of Rajasthan under Section 7 of the UITAct on 31.3.1980. The notified urban area of Bikanerunder the Master Plan, 1996 was about 386 kms. encompassing 17 revenue villages, towns ofGangashahar and Bhimasar and the city of Bikaner. Thedevelopment programme under the Plan was intendedto be in two distinct ways, firstly, the development ofBikaner Urbanisable Area and then the development ofRural Settlements within the peripheral belt. Theprovision with regard to peripheral control belt andrural settlements, as incorporated in the Master Plan,reads as under:

“The Notified Urban Area of Bikaner covers about386 sq. kms. It includes 17 revenue villages,Bikaner city and towns of Gangashahar andBhinasar.The development programme within theNotified Urban Area would be in two distinctways, firstly the development of BikanerUrbanisable Area and secondly the developmentof rural settlements falling within the peripheralbelt. The land within the peripheral belt shall beused for agriculture and allied activities likeafforestation, poultry, dairy etc. Dairies nowlocated in or adjoining the developed areas shallultimately be moved to new sites to be located inthe peripheral control belt. Intensive plantationwork shall be undertaken within this belt towardsthe south and south west. Such a shelter beltshall help to arrest sand storms.

Selected villages lying within the Peripheralcontrol belt but outside the Urbanisable Areashall have to be developed to strengthen ruraleconomy. These proposals shall envisage somedegree of control on the Use of land in this ruralbelt. In the absence of any restrictions, peopleare likely to build in the rural areas in anindiscriminate manner. This would not only spoil the rural country-side but may also lead tohaphazard and sub-standard urban sprawloutside the urbanisable limits. This shall defeatthe whole objective of compact and urbanisedurban development. A few villages, lying withinthe peripheral control programme to improve theeconomy of the rural settlements within thearea. Permissible uses within the PeripheralControl 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 baseyear 2001 and horizon year 2023. The clause 4.08whereof, which deals with the Peripheral Control Belt,reads as under: 

                                                (Bikaner Master Plan 2001-2023, clause 4.08,page 47)

99.A bare look at the plan proposal of ecologicalzone incorporated in the Master Plan 2011 of Jaipur Region, makes it abundantly clear that the land formingpart of ecological zone was permissible to be put to usefor the restrictive purposes inasmuch as, green zonedelineated was accepted to act as lung space aroundthe urban area and it was specifically provided that thedelineated green zone may continue to remain so evenafter plan period and ordinarily, was not intended to bealtered in subsequent revision/ modification orpreparation of new development plans. The provisionas aforesaid was incorporated noticing the fact that theurban area which requires certain green lung spacesaround it during the stipulated Master Plan period doesnot cease to be so after expiry of the Master Planperiod.

100. It is pertinent to note that the ecological zone inthe Master Plan 2011 was the area contiguous with theareas on both the sides of NH 11 leading to Agra uptoAgra Railway Line form one contiguous green zone inthe Region which has sensitive eco system andtherefore, it was specifically observed that anydegradation or deterioration in the eco system is likelyto effect quality of life of the Region. In the Jaipur MDP2025, the area of the ecological zone, which was shownto be 481 Sq. Kms. in Master Plan 2011, has been increased to 894 Sq. Kms. however, the urbanisablearea stands increased to 1596 Sq. Kms. as against 391Sq. Kms. covered under the Master Plan 2011. It ispertinent to note that percentage wise, the urbanisablearea stands increased from 19.94% of the total landutilization to 54.30%, but, the ecological area standsincreased from 24.55% to 30.40% only. That apart, asnoticed hereinabove, in the Master Development Plan2025, the ecological zone bifurcated in two zones i.e.G-1 & G-2. G-1 covers only 381 kms. which includesReserve Forest, Protected Forest, Hills, Drains, Rivers,Water Body. G-2 has been further bifurcated in twozones i.e. Buffer to G-1 and Ecological Area, whichcover 196 Sq. Kms. and 417 Kms. respectively. In anycase, the ecological zone as specified in the Master Plan2011 or the Master Development Plan 2025, clearlyindicates that the ecological zone, which includes allbio-diverse and incompatible use areas like reserveforest, protected forest, flora and fauna area, wetlands, flood prone areas, water recharges areas, waterbodies, heritage conservation areas, animal rescuecentres, water sheds, habitat of migratory birds,national parks, sanctuaries, significant local areas etc.is categorised as eco sensitive area to be kept open to protect environmentally sensitive land from urbandevelopment and sprawl. Even the land forming part ofEcological Zone (G2) is also not intended to be used forthe purpose other than low density restrictive purposesspecified. Similar is the position in respect of the GreenArea (G1 & G2) as provided under Udaipur Master Plan2011-2031. The position of the Green Area asprojected in the Draft Ajmer Master Development Plan2013-2033 is also not different. 

101. As noticed hereinabove, in the Writ PetitionNo.5645/08, the petitioner has questioned the action ofthe respondents in permitting the change of user of theland measuring 1222.93 hectares between Kho-Nagoriato Goner Road, covered by the Master DevelopmentPlan of Jaipur, 2011, from ecological zone to residentialand mixed land use, by way of zonal lay out plan ofSector 34 and Sector 35. Strangely enough, whiledefending the change of the land use permitted, therespondents have sought to take the stand that it is notpossible for the JDA to acquire such a huge private landfor maintaining it as green belt and therefore, keepingin view of the ground growing pressure on the land ofhousing and the fact that the land is private khatedariland and closed vicinity of Jaipur City, it would be difficult to ensure that housing colony do not developon this land. It is not understandable that if the land isearmarked as green belt, why the JDA is required toacquire the land so as to maintain it as green belt. Ifthe land is shown to be part of ecological zone, theprivate owners of the land shall not be permitted to usethe land for raising constructions but, they are notprecluded from using the land while maintaining thenature of the land use as specified under the MasterDevelopment Plan.

102. In Yashwant Sharma's case (supra), while dealinwith the issue regarding respondents' allowingindiscriminate urbanisation and exploitation of theecological zone, the court did not interfere with thechange of land use made by the State Government onJDA giving the undertaking to develop the ecologicalzone by setting apart 200 bighas of land for the saidpurpose in lieu of the land taken out from thedemarcated use for ecological zone in the Master Planto rehabilitate slum dwellers. But, at the same time,the court warned the JDA not to amend the Master Plancasually in future unless and until, it is necessarilywarranted to modify the Master Development Plan, thattoo, in the limited scope. Thus, ignoring the directions of this court, the change of the land use of such a hugearea forming part of ecological zone for residential andmixed user by the respondents, cannot becountenanced by this court.

103. As a matter of fact, the fundamental object ofproviding ecological zone or green belt is to preventurban sprawl by keeping the land permanently open soas to protect natural or semi natural environment;improve air quality within the urban area and to ensurethe lung spaces for the inhabitants of the urban area.In other words, the permanent openness is the mostimportant attribute of ecological zone/green belt andfor this reason, while designating the land use in sucharea, the care is taken that it remains largelyundeveloped and only eco friendly development notaffecting the natural and healthful environment comesup within the area. In the considered opinion of thiscourt, the green belt/ecological zone specified in theMaster Development Plan in furtherance of welfare ofthe inhabitants of the area forms basic feature of theMaster Development Plan, which once established, isnot permissible to be altered even while undertakingthe revision of the Plan or the preparation of the newPlan. Even the area which is shown in the various Master Plans as Green Zone/Area (G2) abutting G-1developed as buffer to promote a continuum to G-1 ispermissible to be used for the activities other thanthose specified only in exceptional circumstances in theinterest of the general public and not otherwise toserve an individual interest.

104. In the matter of “Essar Oil Limited vs. HalarUtkarsh Samiti ", (2004) 2 SCC 392, the Hon'bleSupreme Court while referring to Stockholm declarationlaying down the principle providing for the protection ofnatural resources of the earth including air, water, land,flora and fauna, observed:

“27. This, therefore, is the aim, namely, tobalance economic and social needs on the onehand with environmental consideration on theother. But in a sense all development is anenvironmental threat. Indeed, the very existenceof humanity and the rapid increase in thepopulation together with consequential demandsto sustain the population has resulted in theconcreting of open lands, cutting down of forests,the filling up lakes and pollution of waterresources and the very air which we breathe.However, there need not necessarily be adeadlock between development on the one handand the environment on the other. The objectiveof all laws on environment should be to createharmony between the two since neither one canbe sacrificed at the altar of the other.”

105. In Karnataka Industrial Areas DevelopmentBoard's case (supra), the Hon'ble Supreme Court while emphasising on state obligation to protect the naturalresources and environment invoking the concept ofpublic trusteeship, observed:

“83.The concept of public trusteeship may beaccepted as a basic principle for the protection ofnatural resources of the land and sea. The PublicTrust Doctrine (which, found its way in the ancientRoman Empire) primarily rests on the principlethat certain resources like air, sea, water and theforests have such a great importance to thepeople as a whole that it would be whollyunjustified to make them a subject of privateownership. The said resources being a gift ofnature should be made freely available toeveryone irrespective of their status in life. Thedoctrine enjoins upon the Government and itsinstrumentalities to protect the resources for theenjoyment of the general public

.....xxxxx....

87.The Public Trust Doctrine primarily rests onthe principle that certain resources like air, sea,waters and the forests have such a greatimportance to the people as a whole that it wouldbe wholly unjustified to make them a subject ofprivate ownership. The, said resources being a giftof nature, they should be made freely available toeveryone irrespective of the status in life. Thedoctrine enjoins upon the Government to protectthe resources for the enjoyment of the generalpublic rather than to permit their use for privateownership or commercial purposes. According to Professor Sax the Public Trust Doctrine imposesthe following restrictions on governmental authority:

“Three types of restrictions on governmentalauthority are often thought to be imposed bythe public trust: first; the property subject tothe trust must not only be used for a publicpurpose, but it must be held available for useby the general public; second, the propertymay not be sold, even for a fair cash equivalent; and their the property must bemaintained for particular types of uses.”                                     (emphasis added)

106. In Intellectuals Forum, Tirupathi's case (supra),the Hon'ble Supreme Court while examining thequestion regarding economic growth vis-a-vis theenvironmental protection with reference to Article 48A& 51A of the Constitution of India, observed:

“82. Article 48-A of the Constitution mandatesthat the State shall endeavour to protect andimprove the environment to safeguard the forestsand wildlife of the country. Article 51-A of theConstitution enjoins that it shall be the duty ofevery citizen of India, inter alia, to protect andimprove national environment including forests,lakes, rivers, wildlife and to have compassion forliving creatures. These two Articles are not onlyfundamental in the governance of the country butalso it shall be the duty of the State to applythese principles in making laws and further thesetwo articles are to be kept in mind inunderstanding the scope and purport of thefundamental rights guaranteed by the Constitution including Article 14, 19 and 21 of the Constitutionand also the various laws enacted by theParliament and the State Legislature.

83.On the other hand, we cannot also shut oureyes that shelter is one of the basic human needsjust next to food and clothing. Need for a nationalhousing and habitat policy emerges from thegrowing requirements of shelter and relatedinfrastructure. These requirements are growing inthe context of rapid pace of urbanization,increasing migration from rural to urban centres insearch of livelihood, mismatch between demandand supply of sites and services at affordable costand inability of most new and poorer urbansettlers to access formal land markets in urbanareas due to high costs and their own lowerincomes, leading to a non-sustainable situation.

This policy intends to promote sustainabledevelopment of habitat in the country, with a viewto ensure equitable supply of land, shelter andservices at affordable prices.

84.The World has reached a level of growth inthe 21st Century as never before envisaged. Whilethe crisis of economic growth is still on, the keyquestion which often arises and the Courts areasked to adjudicate upon is whether economicgrowth can supersede the concern forenvironmental protection and whether sustainabledevelopment which can be achieved only by wayof protecting the environment and conserving thenatural resources for the benefit of the humanityand future generations could be ignored in thegarb of economic growth or compelling humannecessity. The growth and development processare terms without any content, without an inklingas to the substance of their end results. Thisinevitably leaves us to the conception of growthand development which sustains from onegeneration to the next in order to secure “ourcommon future”. In pursuit of development, focushas to be on sustainability of development andpolicies towards that end have to be earnestlyformulated and sincerely observed. As Prof. Weissputs it, “conservation, however, always takes aback seat in times of economic stress.” It is nowan accepted social principle that all human beingshave a fundamental right to a healthyenvironment, commensurate with their well being,coupled with a corresponding duty of ensuringthat resources are conserved and preserved insuch a way that present as well as the futuregenerations are aware of them equally.”

107. To sum up, whatever may be the compulsion forthe economical growth, the right of the citizens to ahealthy environment has to be protected and therefore,in the garb of the planned development, the land falling within the eco sensitive zone/ ecological zone/greenbelt cannot be permitted to be unscrupulously put touse 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 bycreating healthful environment for the present andfuture generations, shall stand frustrated. 

108. Coming to the peripheral control belt as providedunder Jodhpur Master Plan 2001-2023, Ajmer MasterPlans 1971-1991 and 2023, Kota Master Plan 2001-2023, Udaipur Master Plan 1997-2022 and BikanerMaster Plan-2001-2023, it is to be noticed thatperipheral control belt around the cities are providedso as to prevent and control unauthorised andunplanned development around the existingurbanisable area of the city and therefore, the landfalling within the peripheral control belt is permissibleto be used only for restrictive low density developmentpurposes specified. It is true that the peripheral controlbelt as defined under the different Master Plans doesnot indicate that it will continue to remain so even afterthe plan period but then, certainly, during the operativeperiod of the Plans, the land falling within theperipheral control belt is not permissible to be used for the purposes other than those specified and ordinarily,cannot be put to any other use.

109. To appreciate the purpose of providing peripheralcontrol belt around the urban area of the city and theissue with regard to non permissibility of the use of theland falling within the peripheral control belt for thepurposes other than those specified, during theoperative period of the plan or subsequent revisionthereof or preparation of the new plan, it would beappropriate to refer to the datas of the land useplanning projected under the Master Plans of differentcities notified from time to time. 

110. It is pertinent to note that at the time ofpreparation of the Jodhpur Master Plan 2001-2023,under the existing land use plan, the urbanised areawas shown to be 26,880 acres out of which 16,326acres land was covered by developed area and theremaining land was covered by defence area, openarea, forest, hills and water bodies. Further, the areacovered by the park and open space was only 1133acres which comes to 6.94% of the developed area. Itis pertinent to note that in the Jodhpur Master Plan2023, the total urbanised area included was 2,48,500 acres out of which, 69,300 acres land was proposed tobe covered by developed area and 9916 acres land wasshown to be covered by government reserved area,forest, hills and water bodies. Significantly, the openspace of 4120 acres shown in the Master Plan 1991 wasdeleted 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 peripheralcontrol belt. Suffice it to say that out of the total urbanarea covered by the Master Plan about 68.12% landwas proposed to be covered by peripheral control belt. 

111. Likewise, as per the land use as provided for inAjmer Master Plan 1971-1991, out of notified urbanarea 60,800 acre, the area of peripheral control beltwas provided as 44,570 acre which under sevenPlanning 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, 59,467acre area has been shown as peripheral control belt. 

112. In the Udaipur Master Plan 1997-2022, out of86,710 acre land notified as urban area, 59,530 acreland was shown as peripheral control belt.

113. In the Kota Master Plan 2001-2023, out of totalurban area 1,25,000 acre, the land measuring 86,491acre is shown to be within the peripheral control belt. 

114. In Bikaner Master Plan 2001-2023, the urbanarea was notified as 1,12,705 acre and out of that38,758 was shown as urbanisable area and theremaining 73,947 acre area has been projected asperipheral control belt. 

115. A bare look at the proportion of the area includedwithin the peripheral control belt vis-a-vis the totalurban area notified under the Master Plans of variouscities promulgated from time to time makes itabundantly clear that the area included within theperipheral control belt to be used for the restrictedpurposes during the operative period of the plan ismuch higher than the urbanisable area included withinthe land use plan. In the considered opinion of thiscourt, the ratio of the urbanised area and theperipheral control belt by itself is indicative of the factthat the peripheral control belt does not have attributeof openness for all time to come and thus, the learned AG was justified in contending that the peripheralcontrol belt as provided for in the Master Plan was never intended to be kept open and unaltered for alltimes to come. In this view of the matter, thecontention of learned amicus curiae that the restrictiveland use of the peripheral control belt in the MasterPlans of various cities must be ceased and should notbe permitted to be used for other developmentpurposes on the revision of the Master Plans, cannot becountenanced by this court.

116. Coming to the use of the land falling within theperipheral control belt for the purposes other thanthose specified, during the operative period of theMaster Plan of the city, as discussed hereinabove, thebasic purpose of the constitution of statutory authorityto undertake the urban development planning is topromote healthy growth and development of the city soas to achieve the ultimate object of promotion andenhancement of quality of life for the citizens.Undoubtedly, while notifying the urban area andundertaking the development in the urbanisable area,as per the land use plan depicted in the MasterDevelopment Plan, the peripheral control belt has beenprovided so as to control the development insurrounding areas inasmuch as, unplanned andunauthorised development in the peripheral control belt is bound to affect the quality of life of the inhabitants inthe urbanised and urbanisable area. In this view of thematter, this court is firmly of the opinion that duringthe operative period of the Master Plan, the land use inthe peripheral control belt for the purposes other thanthose specified generally should not be permitted. Butif the change of the land use in the peripheral controlbelt is considered to be inevitable, the subsequentalteration or modification of the plan must subserve thelegislative intent of planned development for promotionand enhancement of the quality of life of the citizensand therefore, any isolated change in the land use ofthe land falling within the peripheral control beltwithout inclusion thereof in the land use plan ofurbanisable area shown in the Master DevelopmentPlan, the development wherein has to be furtherregulated by Zonal Development Plans notified, inaccordance with the procedure laid down, should not bepermitted. That apart, any change in the land use planin the peripheral control belt during the operativeperiod of the plan must be in the larger public interestand not to serve the interest of individuals. 

117. There is yet another aspect of the matter, whichrequires consideration of this court. Indisputably, as the city grows, adequate open spaces, green spaces suchas parks, woodlands and rolling countrysides accessibleto all the inhabitants must be reserved and preservedwhich by all means would contribute in large measureto quality of life, the citizens are entitled for andtherefore, the population growth and migration to thecity may necessitate modification in the planning butthen, under the pressure of population growth andmigration, the land use plan cannot be permitted to bechanged in such a manner that it converts the city intojust a cluster of buildings frustrating the very object ofthe planned development undertaken under thestatutory scheme so as to ensure healthy and peacefulenvironment for the citizens. It needs to be emphasisedthat whenever modification of the Master Plan isundertaken so as to include the land forming part ofthe peripheral control belt within the scheme of urbandevelopment, the authorities entrusted with the duty toensure the quality of life for the citizen through planneddevelopment, are under an obligation to take intoconsideration the requirement of the lung spaces forthe existing population of the city and reserve theadequate land for that purpose in the close vicinityinasmuch as, if the urbanised area in the city go on expanding and the further inclusion of the surroundingvillages is made within the urbanisable area, the lungspaces required for existing population in the closevicinity cannot be done away with or shifted to aremote place and therefore, whenever the modification,alteration or revision of the Master Development Plan isundertaken, the green spaces required for the existingpopulation must be reserved by providing buffer zone.To put in other words, any development activity withinthe peripheral control belt for the purposes other thanthose specified under the peripheral control belt shouldnot be permitted without ensuring the fulfillment ofrequirement of open spaces/green spaces for theexisting 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 DevelopmentPlan is to set down long term perspective plan forguiding the sustainable planned development of thecity. One of the most important aspect of the planneddevelopment pertains to protection and preservation of environment by reservation of open spaces forventilation, recreation, parks and playground for thegeneral public so as to achieve the ultimate objective ofthe planned development i.e. a quality of life for thecitizens. As noticed hereinabove, the legislative intentto provide for clear policy regarding preservation andreservation of the open spaces, gardens, recreationcentres, zoological gardens, nature reserves, healthresorts etc. in the Master Development Plan and ZonalDevelopment Plan, is explicitly mandated under theprovisions of Sections 16, 21 and 22, which deal withthe functions of the Authority, the preparation of MasterDevelopment Plan and Zonal Development Planrespectively. As a matter of fact, keeping in view theincreasing level of pollution in the cities in order toensure adequate 'lung spaces' for the citizens, it is theneed of time that besides preservation of theopen/green spaces already available, more and moreopen/green spaces are created within the city. Thus,whatever may be compelling circumstances, theimmigration of the citizens from the rural area to thecities or the growth of population within the city, whileundertaking the development planning, the authoritiesare under an obligation to ensure the minimum requirement of the green space per city dweller.Obviously, the requirement of the green space has tobe taken into account by the authorities not only whilepreparing the Master Development Plan but also whileundertaking the implementation of the various schemesunder the Zonal Development Plan inasmuch as,besides the general requirement of the open/greenspaces for the inhabitants of the city, the availability ofadequate open/green spaces for the residents settled inthe different zones, has to be there within the schemeareas. 

119. It need to be emphasised that the city'srequirement for green space within the urban area andopportunities to provide it will continue to germinatewith the communities' development and redevelopmentand therefore, the lands for open space, green space,playground, recreational area etc. to fulfill the need ofthe communities must be clearly identified andcharacterised in the Master Development Plan andZonal Development Plan and must be protected duringthe operative period of the Plan and even thereafterwhile undertaking revision thereof and the same cannotbe permitted to be used for the purposes other thanthose identified. 

120. In Bangalore Medical Trust's case (supra), theHon'ble Supreme Court while examining the questionregarding diversion of the open space earmarked forpark for the purpose of construction of the hotel for atrust, observed :

“23.The scheme is meant for the reasonableaccomplishment of the statutory object is topromote the orderly development of the city ofBangalore and adjoining areas and to preserveopen spaces by reserving public parks andplaygrounds with a view to protecting theresidents from the ill-effects of urbanisation. Itmeans for the development of the city in a waythat maximum space is provided for the benefit ofthe public at large for recreation, enjoyment,'ventilation' and fresh air. This is clear from theAct itself as it originally stood. The amendmentsinserting Section 16(1)(d), 38-A and otherprovisions are clarificatory of this object. The verypurpose of BDA, as a statutory authority, is topromote the healthy growth and development ofthe city of Bangalore and the areas adjacentthereto. The legislative intent has always been thepromotion and enhancement of the quality of lifeby preservation of the character and desirableaesthetic features of the city. The subsequentamendments are not a deviation from oralteration of the original legislative intent, but onlyan elucidation or affirmation of the same.

24.Protection of the environment, open spacesfor recreation and fresh air, playgrounds forchildren, promenade for the residents, and otherconveniences or amenities are matters of greatpublic concern and of vital interest to be takencare of in a development scheme. It is that publicinterest which is sought to be promoted by the Actby establishing the BDA. The public interest in thereservation and preservation of open spaces forparks and playgrounds cannot be sacrificed byleasing or selling such sites to private persons forconversion to some other user. Any such act would be contrary to the legislative intent andinconsistent with the statutory requirements.Furthermore,it would be in direct conflict with theconstitutional mandate to ensure that any Stateaction is inspired by the basic values of individualfreedom and dignity and addressed to theattainment of a quality of the which makes theguaranteed rights a reality for all the citizens.

25.Reservation of open spaces for parks andplaygrounds is universally recognised as alegitimate exercise of statutory power rationallyrelated to the protection of the residents of thelocality from the ill-effects of urbanisation.”(emphasis added)

121. In Virendra Gaur's case (supra), the Hon'bleSupreme Court while emphasising the obligation of thelocal authority to maintain and protect environmentman made as well as natural with reference to theStockholm Declaration of United Nations on HumanEnvironment 1972 and Article 47, 48A and 51A(g) ofthe Constitution of India, observed:

“5. Envirnoment is a polycentric and multifacetedproblem affecting the human existence. Environmental pollution causes bodily disabilities,leading to non-functioning of the vital organs ofthe body. Noise and pollution are two of thegreatest offenders; the later affects air, water,natural growth and health of the people. Environmental pollution affects, thereby, thehealth of general public. The StockholmDeclaration of United Nations on HumanEnvironment, 1972, reads its Principle No.1, interalia, thus:

“Man has the fundamental right of freedom,equality and adequate conditions of life. Inan environment of equality that permits a lifeof dignity and well-being and he bears a solemn responsibility to protect and improvethe environment for present and futuregenerations.”

6.The Declaration, therefore, affirms bothaspects of environment, the natural and theman-made and the protection is essential to hiswell-being and to the enjoyment of basic humanrights, i.e. the right to life itself. The right to haveliving atmosphere congenial to human existenceis a right to life. The Declaration, therefore, saysthat “in the developing countries, most of theenvironmental problems are caused byunderdevelopment”. The Declaration suggestsrecourse to safe actions with prudent care forecological balance. “It is necessary to avoidmassive and irreversible harm to the earthlyenvironment and strive for achieving a better lifefor the present generation and posterity in anenvironment more in keeping with their needsand hopes.” The affirmative declaration inPrinciple No.1 (supra) enjoins the Municipal Statesto solve environmental problems in the broadesthuman context and not as mere problems toconserve 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 toprotect and improve the environment and tosafeguard the forests and wild life of the country”.Article 47 further imposes the duty on the Stateto improve public health as its primary duty.Article 51-A(g) imposes “a fundamental duty” onevery citizen of India to “protect and improve thenatural environment including forests, lakes,rivers and the wild life and to have compassion forliving creatures”. The word “environment” is ofbroad spectrum which brings within its ambit“hygienic atmosphere and ecological balance”. Itis, therefore, not only the duty of the State butalso the duty of every citizen to maintain hygienicenvironment. The State, in particular has duty inthat behalf and to shed its extravagant unbridledhygienic environment. Article 21 protects right tolife as a fundamental right. Enjoyment of life andits attainment including their right to life withhuman dignity encompasses within its ambit, the protection and preservation of environment,ecological balance free from pollution of air andwater, sanitation without which life cannot beenjoyed. Any contra acts or actions would causeenvironmentalpollution.Environmental,ecological, air, water, pollution, etc. should beregarded as amounting to violation of Article 21.Therefore, hygienic environment is an integralfacet of right to healthy life and it would beimpossible to live with human dignity without ahumane and healthy environment. Environmentalprotection, therefore, has now become a matterof grave concern for human existence. Promotingenvironmental protection implies maintenance ofthe environment as a whole comprising the man-made and the natural environment. Therefore,there is a constitutional imperative on the StateGovernment and the municipalities, not only toensure and safeguard proper environment butalso an imperative duty to take adequatemeasures to promote, protect and improve boththe man-made and the natural environment.”

8.Section 203 of the Act enjoins theMunicipality to frame the Scheme providingenvironment and sanitary amenities and obtainsanction from the competent authority to provide,preserve and protect parks, open lands,sanitation, roads, sewage, etc. to maintainecological balance with hygienic atmosphere notonly to the present residents in the locality butalso in the future generation. The lands vested inSection 61(c) of the Act should be used for thepurposes envisaged therein. We do not agree withthe appellants that for non-user of open land bythe Municipality for more than two decades, theland stood divested from the Municipality andvested in them. Yet the Municipality has to usethe land for the purposes envisaged in theScheme read with those found in Section 61unless avoidable compelling public purposerequire change of user. Take a case where in thezonal plan certain land is marked out andreserved for park or recreational purpose. Itcannot be acquired or allotted for buildingpurpose though housing, it is a public purpose.

11.It is seen that the open lands, vested in theMunicipality, were meant for the public amenity tothe residents of the locality to maintain ecology,sanitation, recreation, playground and ventilationpurposes. The buildings directed to be constructednecessarily affect the health and the environmentadversely, sanitation and other effects on theresidents in the locality. Therefore, the orderpassed by the Government and the action takenpursuant thereto by the Municipality would clearlydefeat the purpose of the scheme. Shri D.V.Sehgal, learned Senior Counsel, again contendedthat two decades have passed by and that,therefore, the Municipality is entitled to use theland for any purpose. We are unable to accept theself-destructive argument to put a premium oninaction. The land having been taken from thecitizens for a public purpose, the Municipality isrequired to use the land for the protection orpreservation of hygienic conditions of the localresidents in particular and the people in generaland not for any other purpose. Equally acceptanceof the argument of Shri V.C.Mahajan encouragespre-emptive action and conduct, deliberatelychartered out to frustrate the proceedings and tomake the result fait accompli on the touchstone ofprospective operation of our order.”(emphasis added)

122. In Balinder Bachan Singh's case (supra), theHon'ble Supreme Court emphasised that the greenspaces and green belts have to be provided in everylocality to provide the lung space to the residents of thelocality. The court observed:

“17.For every locality green spaces and greenbelts have to be provided to provide lung space tothe residents of the locality. A provision for greenpark was made by the Municipal Corporationkeeping in view the minimum requirement toprovide open/green space to the residents of the locality. Rajinder Kaur, mother of the plaintiff-respondents herself had submitted a layout planwhich comprised the present suit land. She hadherself agreed to leave 25 per cent of the areaunder the Scheme to be used by the inhabitantsof the locality for common purposes including theopen space area which is in dispute. Thedocumentary evidence which has come on recordin the form of the original Scheme as well asdocuments Exts. D-1 to D-38 and the reportsubmitted by the Deputy Commissionerconclusively shows that the suit land measuring3.16 kanals was left in the Scheme to be used asopen space for the use of the residents of thelocality.”(emphasis added)

123. In Machavarapu Srinivasa Rao's case (supra),while considering the legality of the permission grantedby the Urban Development Authority for construction ofthe temple at the site of which land use was shown asrecreational in Zonal Development Plan approved bythe State Government, the Hon'ble Supreme Courtheld:

“14. An analysis of the above-noted provisionsshows that once the Master Plan or the ZonalDevelopment Plan is approved by the StateGovernment, no one including the StateGovernment/Development Authority can useland for any purpose other than the onespecified therein. There is no provision in theAct under which the Development Authority cansanction construction of a building etc. or use ofland for a purpose other than the one specifiedin the Master Plan/Zonal Development Plan. Thepower vested in the Development Authority tomake modification in the development plan isalso not unlimited. It cannot make important alterations in the character of the plan. Such modification can be made only by the StateGovernment and that too after following theprocedure prescribed under Section 12(3).” 

124. In Manohar Joshi's case (supra), the Hon'bleSupreme Court while emphasising the reservation ofthe space for public amenities including playgroundsand parks, observed:

“208. As we have seen, the MRTP Act give aplace of prominence to the spaces meant forpublic amenities. An appropriately planned cityrequires good roads, parks, playgrounds,markets, primary and secondary schools, clinics,dispensaries and hospitals and seweragefacilities amongst other public amenities whichare essential for a good civic life. If all thespaces in the cities are covered only by theconstruction for residential houses, the cities willbecome concrete jungles which is what theyhave started becoming. That is how there isneed to protect the spaces meant for publicamenities which cannot be sacrificed for thegreed of a few landowners and builders to makemore money on the ground of creating largenumber of houses. The MRTP Act does giveimportance to the spaces reserved for publicamenities, and makes the deletion thereofdifficult after the planning process is gonethrough, and the plan is finalised. Similar arethe provisions in different State Acts.” (emphasis added)

125. In Sushanta Tagore's case (supra), the Hon'bleSupreme Court while dealing with the issue relating toprotection and preservation of environmental ambienceof Visva-Bharti University, Shanti Niketan, observed:

“33.It may be true that the development ofa town is the job of the Town Planning Authoritybut the same should conform to therequirements of law. Development must besustainable in nature. A land use plan should beprepared not only having regard to theprovisions contained in the 1979 Act and theRules and Regulations framed thereunder butalso the provisions of other statutes enactedtherefor and in particular those for protectionand preservation of ecology and environment.”

126. Keeping in view the authoritative pronouncementsof the Apex Court as aforesaid, the issue that the landspecifically earmarked as open spaces, commonfacilities, parks, playgrounds and recreation groundsetc. in the Master Development Plan or ZonalDevelopment Plan, cannot be diverted to the use otherthan those specified, does not require further dilation.In the considered opinion of this court, besides eco-sensitive zone/ecological zone/green area, thereservation and preservation of the land as green coveri.e. parks, open spaces, playgrounds etc. provided forprotecting the residents of the city from ill-effects ofurbanisation and to ensure healthful environmentcertainly forms part of basic character of the MasterDevelopment Plan and Zonal Development Plan andtherefore, the land use specified for the said purposecannot be permitted to be altered to subserve an individual interest as against the community interest inpreserving the same.

127. Coming to the facts brought on record in thesePILs regarding diversion of the lands earmarked in theMaster Development Plan as open space, playground,parks, recreation area etc. by the various authorities toother uses, it is to be noticed that the factum ofdiversion of the land earmarked for the publicamenities to other use is not even disputed on behalf ofthe respondents. As a matter of fact, the onlycontention of the respondents defending the change ofuser of the land for the purposes other than thosespecified, is that the diversion permitted is negligible,which keeping in view the increase in population andthe change in the pattern of urban development, tomeet the need of the time, could not have beenavoided. The factum of diversion of the user of the landearmarked as open spaces, parks, playgrounds,recreation area, plantation belt etc. in the Master Plansof the major cities, on the applications made by theindividuals for other purposes i.e. residential,commercial and industrial etc. stands fortified from thewritten submissions made by the respondents pursuant to the directions issued by this court vide order dated25.4.06 and thereafter. 

128. It is to be noticed that in Writ PetitionNo.5907/08, filed by a voluntary organisation, thedetails of as many as 268 conversion permittedincluding the conversion of the land earmarked for thepurposes of green belt, park, ecological zone,playgrounds, recreational areas to residential,commercial, industrial and institutional purposes havebeen set out in the Schedule A annexed with the writpetition. The factum of conversion of the land asalleged is not disputed by the respondent, however, thesame is sought to be defended taking the stand thatthe modification has been permitted by the StateGovernment in accordance with the provisions ofSection 25 of the Act. 

129. As discussed in the earlier part of the order, thepower conferred under the statute permittingmodification/alteration of the land use during theoperative period of the Plan and thereafter, at the timeof revision thereof, is not absolute and it is directlylinked with the basic objective of the enactment i.e. theplanned development of the city covered by the Master Development Plan. Thus, the authority in the garb ofthe exercise of the power conferred under the statute,cannot modify the land use earmarked for the specifiedpurposes as aforesaid at its whims and fancy rather,the power conferred has to be exercised in fair andreasonable manner, in furtherance of the basic object ofthe enactment i.e. planned development in mostefficient manner and thus, obviously, to protect theright of the residents to have healthful environmentand to save them from ill-effect of urbanisation. To putit strictly, unless the diversion of user of suchearmarked land under the Master Development Plan orZonal Development Plan as sought for, is so compellingthat it even outweighs the right of the citizens to havethe healthful environment and enjoy the quality of lifeassured, no such diversion should be permitted.

130. Coming to the land earmarked for commonfacilities, parks, open spaces, recreational area etc. inthe colonies development by local authority or byprivate developers with the prior approval of the localauthority, it cannot be disputed that whenever a colonyis developed taking into consideration all the relevantaspects i.e. including the population density, therequirement of open spaces, parks etc. so as to ensure the comfort and the quality of life for the inhabitants tobe settled in the colony. Once a colony is developed, aperson settling there after purchasing the land acquiresright to live in an atmosphere congenial to humanexistence as projected under the lay out plan approvedand therefore, when the land is earmarked in a colonydeveloped by the local authority or the private coloniseras open space, playground, park or for recreationalpurpose, cannot be put to any other use and certainlyeven a private coloniser cannot claim any right to usesuch land for any other purpose. As a matter of fact, itis the duty of the State to take all appropriatemeasures to maintain healthful environment in thecolony developed and therefore, the land useearmarked in the lay out plan of the colony for thepurpose of open spaces, parks etc. cannot be permittedto be used even for other public purposes. 

131. As noticed hereinabove, in Balinder BachhanSingh's case (supra), the Hon'ble Supreme Court hasemphasised that for every locality, green spaces andgreen belts have to be provided to provide lung spaceto the residents of the locality. The Court furtherspecifically held therein:

“18....xxx.... It is well known and judicialnotice can be taken of the fact that residentialplots sell at a much higher price than theagriculture land. To sell the land as plots, a partof the land has to be left to provide for commonpurposes such as roads, community centre,schools and parks. Having taken advantage ofselling the plots in a developed colony andcharging a higher price, which were purchasedby the inhabitants with the understanding thatcivic amenities including the park were well-provided-for, the plaintiff-respondents cannot bepermitted to turn around to claim the land left inthe Scheme for being used as a park as theirpersonal property.” (emphasis added)

132. Thus, the illegality in permitting the change ofthe land use of the land earmarked for playgrounds,parks and other public amenities cannot be permittedto be perpetuated and the appropriate steps deservesto be taken by the State to restore the user of suchland 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 andZonal Development Plan are prepared taking intoconsideration all the relevant aspects at the initial stageincluding the present requirement and future growth the development and preservation of the character andresources of the city, the specific areas of concern andoverall interest of the community. A MasterDevelopment Plan finally approved needs to be acomprehensive and self explanatory document. 

134. It goes without saying that land uses in theMaster Development Plan and Zonal Development Planare specified inasmuch as, different land uses havetheir own requirement and inter mingling thereof isbound to lead to a chaos adversely affecting the qualityof life assured to the citizens by way of planneddevelopment projected under the plans. For example,when a particular area is earmarked in the MasterDevelopment Plan and Zonal Development Plan asresidential area and accordingly, a residential colony isdeveloped therein, there is no reason why acommercial activity should be permitted in theresidential colony developed by changing the land useto subserve the individual interest sacrificing theinterest of the community, who had chosen to settle inexclusive residential colony with the hope that afterhectic activities of the day, they will be able to steal afew moments of solace at their abode of joy. 

135. It is not that in the residential colony, therecannot be any commercial area, mini markets or otherfacilities area but then, while undertaking thedevelopment and preparing the plan forimplementation, all such areas are required to bedistinctly marked in the plan of the colony to come upand thereafter, the land use within the colonydeveloped needs to be ceased. As observed by theHon'ble Supreme Court in Manohar Joshi's case(supra), that once the plan is formulated, one has toimplement it adhering to it strictly and it is only in ararest of the rare case, the departure therefrom ispermissible. 

136. There is yet another aspect of the matter. Whythe change of land use in a particular area earmarkedshould not be generally permitted. Whenever a plan isprepared, all the infrastructure facilities such asprovision for drainage, electricity, lay out of the roadsetc., required according to the population density to besettled within the area, are also worked out andplanned accordingly. To say the least, by permittingmixed use in exclusive residential colony at the laterstage in deviation of the Plan, the residents of the areawho have acted upon an assurance for a definite quality of life projected under the housing scheme in theMaster Development Plan or Zonal Development Plancannot be made to suffer the life of discomfort as aconsequence of unplanned development for no fault ontheir part.

137. In R.K.Mittal's case (supra), where the questionwith regard to ambit and scope of the power of theNoida Development Authority to permit users otherthan residential, in the sector specifically marked forresidential use in the Master Plan of New OkhlaIndustrial Development Area, the Hon'ble SupremeCourt while considering the various aspects of the townplanning with reference to the relevant statute,emphasised that when a Master Plan is to be amended,the entire prescribed procedure must be followed andthe exercise of the power should be only in consonancewith settled norms without going beyond the originalpower of the development authority to make such planin accordance with the provisions of the Act. The courtobserved that where the requisite prescribed procedureis followed, still the discretion should be exercisedsparingly for achieving the object and not to completelyvary or destruct the purpose for which the sector hasbeen earmarked. The Hon'ble Supreme Court while discussing the regulatory functions being discharged bythe Development Authority regarding the exercise ofthe discretion to change designate user of a site underthe Master Plan, observed:

“47. All the above judgments clearly show that itis not merely at the discretion of the DevelopmentAuthority concerned to designate of a site and thenalter the same without following due process oflaw. Even where such an exercise is required to beundertaken by the Development Authority, therealso it is expected of the Development Authority toact for the betterment of the public and strictly inaccordance with the plans and the statutoryprovisions. It cannot take recourse to its powersand use its discretion contrary to such provisionsand that too, to frustrate the very object of the Act.Exercise of power ought not to be destructive ofthe provisions of the Act and the plans having theforce of law. We would hasten to add that evenwhere the requisite prescribed procedure isfollowed, still the discretion should be exercisedsparingly for achieving the object of the statuteand not to completely vary or destruct the purposefor which the sector has been earmarked

......xxxxxx.....

49.The Development Authority is inter aliaperforming regulatory functions. There has beenimposition of statutory duties on the power of thisregulatory exercising specified regulatoryfunctions. Such duties and activities should becarried out in a way which is transparent,accountable, proportionate and consistent. Itshould target those cases in which action is calledfor and the same be exercised free of arbitrariness.The Development Authority is vested with drasticregulatory powers to investigate, makeregulations, impute fault and even to imposepenalties of a grave nature to an extent ofcancelling the lease. The principles ofadministrative justice squarely apply to suchfunctioning and are subject to judicial review. The Development Authority, therefore, cannottransgress its power as stipulated in law and act ina discriminatory manner. The DevelopmentAuthority should always be reluctant to mould thestatutory provisions for individuals, or even thepublic convenience as this would bring an inbuiltelement of arbitrariness into the action of theauthorities. Permitting mixed user, where theMaster Plan does not so provide, would be glaringexample of this kind

.....xxxx.....

55.It is settled position of law that no authoritycan exercise the power vested in it, contrary tolaw. In the present case, there appears to be noproper data collected or study carried out by theDevelopment Authority even for mooting such aproposal, much less amending the Plan or theRegulations. It is a mater of regret that theDevelopment Authority is dealing with such seriousmatters in such a casual manner. Either way, thiscertainly affected the rights of the partiesadversely. It is not only the rights of individualswhich are to be examined by the authoritiesconcerned, but also the effect of such amendmenton the residential sector as a whole which is one ofthe relevant factors to be considered. 

....xxxxx...

59.All the cases where banks, nursing homes orany commercial activity is being carried on,particularly like the appellants' case, where a bankand company are running their offices in theresidential sectors would amount to change ofuser and thus be impermissible. The officers ofthe Development Authority should refrain fromcarving out exceptions to the implementation ofthe Master Plan and the Regulations in force, thattoo without the authority of law. For taking up anyexercise for change of user or such similarconditions, amendment to the relevantRegulations, Master Plan and if needed, theprovisions of the Act, is a condition precedent. Itshould be ensured that such exercise wouldfurther the cause and object of the Act and wouldnot be destructive to the scheme of thedevelopment. We have no hesitation in our minds in holding that no such jurisdiction or authorityvests in the officers of the Development Authorityto permit change of users in its discretion and inviolation of the law in force

......xxx.....xxxxxx.

68.The Master Plan and the zonal plan specifythe user as residential and therefore these plotscannot be used for any other purpose. The planshave a binding effect in law. If the scheme/masterplan is being nullified by arbitrary acts and inexcess in derogation of the power of theDevelopment Authority under law, the Court willintervene and would direct such authorities to takeappropriate action and wherever necessary evenquash the orders of the public authorities

......xxxxx.......

72.From the above dictum of this Court, it isclear that environmental impact, convenience ofthe residents and ecological impact are relevantconsiderations for the courts while deciding suchan issue. The law imposes an obligation upon theDevelopment Authority to strictly adhere to theplan, regulations and the provisions of the Act.Thus, it cannot ignore its fundamental duty bydoing acts impermissible in law. There is not evenan iota of reason stated in the affidavits filed onbehalf of the Development Authority as to why thepublic notice had been issued without amendingthe relevant provisions that too without followingthe procedure prescribed under the law.

73.The concept of public accountability andperformance of public duties in accordance withlaw and for the larger public good are applicableto the statutory bodies as well as to theauthorities functioning therein. We find nojustification, whatsoever,for the respondents toact arbitrarily in treating equals who are similarlyplaced as unequals. This is also no justification forthe Development Authority to issue a publicnotice in the fashion in which it has done. A fewofficers of the Development Authority cannotcollectively act in violation of the law andfrustrate the very object and purpose of the Master Plan in force, the Regulations andprovisions of the Act.”(emphasis added)

138. In view of the discussion above, we are firmly ofthe opinion that the defined land uses in the MasterDevelopment Plan form part of basic character of theplan and cannot be permitted to be altered at thewhims and fancy of the JDA or other local authorities soas to serve the individual interest and thus, frustratingthe legislative intent of planned development, sought tobe materialized by implementation of MasterDevelopment Plan and Zonal Development Plan, thestatutory documents creating hope in the minds of thecitizen that it will be strictly implemented so as toachieve the goal of a quality life for them. Thediscretion vested with the authority of the StateGovernment to effect the change of land use cannot beexercised arbitrarily. The change of the land use in theresidential colony developed in conformity with theMaster Development Plan or Zonal Development Plancannot be permitted from residential to commercial orany other uses in casual manner so as to serve theindividual interest adversely affecting rights of theresidents already settled in the exclusive residentialarea. As laid down by the Hon’ble Supreme Court in R.K.Mittal’s case (supra), permitting mixed user, wherethe Master Development Plan does not so providewould 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 ofunplanned development in local authorities permittingthe construction of multi-storey buildings in the existingresidential colonies with the infrastructure developed,keeping in view the individual family units to be settledin the houses to be constructed is aptly expressed bytwo lines written by a legendary poet Shri JavedAkhtar: 

The urban development planning could be seenwith three level hierarchy namely, Master DevelopmentPlan, Zonal Development Plans and plans for specificscheme. Obviously, when a scheme for developing aresidential colony is framed and approved, the provision for requirement of infrastructure facilitiesincluding open spaces, parks, major roads and subroads, traffic movement, the water supply, sewerageetc. is determined with the reference to number offamily units/inhabitants to be settled in the houses tobe constructed on the plots allotted. It goes withoutsaying that the norms for infrastructure facilities formulti-storey building where the number of family unitsto be settled is much higher shall be different than theinfrastructure facilities required for number of individualfamily units to be settled in the individual houses to beconstructed as proposed in the scheme and therefore,if muti-storey buildings are permitted to be constructedin a residential colony developed with the infrastructurekeeping in view the individual family units to be settledin the houses constructed, such unplanneddevelopment is bound to slide towards chaos,jeopardising the quality of life assured to the citizensdeciding to settle in the residential colony to come upunder the approved scheme. It cannot be disputed thatthe population growth and migration to the cities maynecessitate vertical development i.e. construction ofmulti storey buildings but then, such development mustconform to the basic objective of the planned development i.e. to ensure quality of life to theresidents by preserving/creating the healthfulenvironment. As a matter of fact, the citizens whowhile spending their hard earn money purchase a plotand decide to settle in a residential colony withprojected infrastructure facilities as per the lay out planduly approved, obviously acquire a right to avail thefacilities assured and therefore, if the same ispermitted to be interfered with by indiscriminate,unplanned and uncontrolled development, they will feelcheated. 

140. In this view of the matter, we are of theconsidered opinion that in the existing residentialcolonies which are developed with the infrastructurefacilities keeping in view, the number of family units tobe settled in such colonies, no multi storey buildingsshould be permitted to come up adversely affecting therights of the citizens to live the quality of life assured tothem. 

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)

141. The object underlying the relevant statutes insetting up of the Development Authorities andImprovement Trusts is to ensure orderly, planned andrapid development of the towns/cities as also to checkunplanned and haphazard growth and to do all suchother acts and things which are necessary to achievethe object of planned development. The planneddevelopment pre-supposes that whenever anyresidential scheme is approved, the authoritiesconcerned shall ensure that adequate provision is madetherein for open spaces, parks, playgrounds, civicamenities, roads, sewerage, adequate water andelectricity supply and the colony developed is properlyconnected to the main roads and the surroundingareas. Thus, any residential area to be developed orapproved by the town planning or local authoritiesmust conform to the norms laid down under MasterDevelopment Plan/Zonal Development Plan and thetownship policy. Obviously, if the colonies are permittedto be developed in the small areas, it would beimpossible for the local authority or private colonizer toprovide for the requisite facilities noticed hereinaboveand therefore, it is quint essential that whenever thelayout plan for development of any area as residential area is prepared, the authority concerned must firstundertake the exercise for environment impactassessment and no layout plan of the development tobe undertaken should be approved without there beingthe adequate provisions for requisite infrastructurefacilities and amenities contemplated under the MasterDevelopment Plan and Zonal Development Plan for thedevelopment of the area for the purpose specified withreference to the population density.

142. In Bondu Ramaswamy's case (supra), theHon'ble Apex Court while dealing with the issue ofunauthorised and illegal development and thedevelopment of the colonies by the private developersin the small area ranging from 2 to 15 acres,emphasised that the small unauthorised layoutswithout any basic amenities must be discouraged. Thecourt observed: 

“129. The object of establishing a DevelopmentAuthority like BDA is to provide for orderly andplanned development so that the haphazardgrowth of a city is checked. The disastrous effectsof unauthorised and illegal development by someunscrupulous colonisers/developers are wellknown. In a planned and authorised standardresidential development, about 30% to 35% ofthe total area is used to provide broad andadequate roads and footpaths, drains, etc., and atleast another 10% to 15% of the land isearmarked for parks, playgrounds and community development or civic amenities (schools,hospitals, police stations, post offices, mini-markets, community halls, etc.). Further, thelayout will have adequate provision for drainageof rainwater as well as sewerage water, adequatesupply and electricity, well-laid metalled roadswhich properly connect the layout to main roadsand other surrounding areas, by providingapproaches and linkages.

130.But in an unauthorised or illegaldevelopment, the roads are narrow and minimal,virtually no open spaces for parks andplaygrounds, and no area earmarked for civicamenities. There will be no proper water supply ordrainage; and there be a mixed use of the area forresidential, commercial and industrial purposesconverting the entire are into a polluting concretejungle. The entries and exists from the layouts willbe bottlenecks leading to traffic jams. Once suchillegal colonies come up with poor infrastructureand amenities, it will not be possible to eitherrectify and connect the mistakes in planning norprovide any amenities even in future. Residents ofsuch unauthorised layouts are forever condemnedto a life of misery and discomfort. It is to avoidsuch haphazard, unhealthy development activitiesby greedy illegal colonisers and ignorantlandowners, the State Legislatures provided forcity improvement trusts and DevelopmentAuthorities so that they could develop wellplanned citizens-friendly layouts with all amenitiesand facilities.

131.In this background large tracts of landsrunning into hundreds of acres are acquired tohave integrated layouts. Only when a layout isformed on a large scale, adequate provision canbe made for good-size parks, playgrounds andcommunity/civic amenities. For example, if alayout is made in 1000 acres of land, thedeveloper can provide a good-sized park of twentyacres and one or two small parks of 2 to 5 acres,have playgrounds of 5 to 10 acres. Instead of suchan integrated large layout, if 200 small individuallayouts are made in areas ranging from 2 to 10acres, there will obviously be no provision for apark or a playground nor any space for civic amenities. Further, small private colonies/layoutswill not have well aligned uniform roads andaccesses. While it is true that municipal and townplanning authorities can be strict monitoring andlicensing procedures arrest haphazarddevelopment, it is seldom done. That is whyformation of small layouts by developers isdiscourages and Development Authorities take uplarge-scale developments.

132.If 200 acres of land on the outskirts of a cityhas to be developed, and if 30 to 50 privatedevelopers proceed to develop areas ranging from2 to 15 acres, it will be impossible for them toprovide for parks or any playgrounds ofreasonable size or make provision for plannedcivic amenities. Further, there will be no alignmentin regard to roads. Each layout will have roads tosuit their own convenience and this will lead tomisalignment and bottlenecks leading to trafficsnarls. The width of the roads also will differ fromlayout to layout depending upon the “greed” ofeach private developer, resulting in the size, shapeand alignment of roads varying for every stretchof 200 to 500 metres. There will be no properdrainage of rainwater or sewerage water leadingto constant flooding or stagnation. Therefore largeintegrated layouts were found to be the answer fororderly development. No small developer candevelop a good township in a few acres of land. Itwas also though that developers will be mainlyprofit motivated and will try to minimise the roads,open spaces and community areas. It is thereforethat legislature constituted statutory DevelopmentAuthorities to undertake large-scale developmentswithout any profit motive.

133.If authorities like BDA notify 3000 acres ofland for development and then delete from theproposed acquisition several pockets whichaggregate to about 1000 to 1500 acres, then theresult is obvious. There will be no integrateddevelopment at all. What was intended to be auniform, contiguous and continuous layout of 3000acres will get split into small pockets which are notconnected with the other pockets or will beintersected by own illegal pockets of privatecolonies thereby perpetuating what was intended to be prevented, that is, haphazard growthwithout proper infrastructure. It will then not bepossible to provide proper road connections anddrainage and impossible to provide appropriateparks, playgrounds and civic amenities ofappropriate and adequate size and situation.When a Development Authority starts developingpockets of lands measuring 2 acres to 5 acres,obviously it also cannot provide open spaces andcivic amenities and may end up with one pockethaving plots, another far away pocket having aplayground and another far away pocket having apark and their being no uniformity or continuity ofroads. As noticed above, a large layout enablesformation of long and straight roads for easymovement of traffic. On the other hand, short anddisjointed roads affects smooth movement oftraffic.

134. Therefore, if a Development Authority,having acquired a large tract of land withdraws ordeletes huge chunks, the development by theDevelopment Authority will resemble haphazarddevelopments by unscrupulous private developersrather than being a planned and orderlydevelopment expected from a DevelopmentAuthority. Therefore when a large layout is beingplanned, the Development Authorities shouldexercise care and caution in deleting largenumber of pocket/chunks of land in the middle ofthe proposed layout. There is no point inproposing a planned layout but then deletingvarious portions of land in the middle merely onthe ground that there is a small structure of 100sq ft or 200 sq ft which may be authorised orunauthorised. Such deletions make a mockery ofdevelopment. Further, such deletions/exclusionsencourage corruption and favouritism and bringdiscontent among those who are not favourablytreated.”(emphasis added)

143. In the considered opinion of this court, onaccount of the population growth and migration to thecities, the basic object of the enactment i.e. planned development cannot be set at naught by permittingsmall colonies to come up with no infrastructurefacilities and the civic amenities and precipitate asituation where the residents are condemned to live amiserable life in unhealthy environment. In this view ofthe matter, it is need of the time that as observed bythe Hon'ble Supreme Court in Bondu Ramaswamy'scase (supra), instead of permitting the small coloniescoming up in small area with no infrastructure facilities,the authorities should undertake the exercise forapproval of integrated layouts of the residential andother schemes either by acquisition of the land or byundertaking the exercise of the land pooling. But, inany case, the development of number of colonies insmall area without integrated layout plan for theinfrastructure facilities and civic amenities necessary forthe residents to be settled in conformity with theMaster Development Plan and Zonal Development Planfor various zones of the city leading to haphazardgrowth, has to be discouraged.

The shifting of industrial areas located in the close vicinity of the city settlements to outside the urbanisable area shown in the MasterDevelopment Plan (Question No.8)

144. Indisputably, the setting up of industries shouldbe permitted only in conforming areas i.e. the industrialareas earmarked for the purpose in the MasterDevelopment Plan and functioning of any unauthorisedindustrial activity in residential area cannot bepermitted. But then, the issue raised by the learnedAmicus Curiae is not with regard to the unauthorisedactivities being carried out in the residential arearather, the issue raised is with regard to the shifting ofthe industrial area already developed, which are locatedin close vicinity of the residential area. There is nospecific details regarding such industrial areas whichare located close to the residential colonies in any ofthe major cities and need to be shifted are available onrecord and therefore, at this stage, this court is notinclined to issue any general directions for shifting ofthe industrial areas as prayed for. It would beappropriate that the matter with regard to shifting ofthe hazardous industries/industrial areas in closevicinity of the residential colonies, is appropriately dealtwith by the State Government by framing Relocation Scheme, after conducting a survey in all the majorcities 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 incorporatedin the Master Development Plans of the major citiesthat the land in the width of 100 ft. abutting thehighways after right to way shall be left open as greenbelt for dense plantation and the development work aspermissible shall be undertaken only on the land afterthe green belt. As a matter of fact, the violation of thenorms laid down as also the necessity to takeappropriate measures to implement the norms laiddown strictly and to undo the violation made is noteven disputed before this court. To the contrary,learned AAG has taken the specific stand that thenorms laid down for providing green belt on both thesides of the highways have to be followed andtherefore, appropriate steps shall be taken to ensurethe implementation of the norms and for removal of theconstructions, if any raised, in violation of the norms.In this view of the matter, this court is not required todilate on the issue any further.

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 publicroads are meant for convenience of public at large andno private person can be allowed to make unauthoriseduse of the same for personal use. As a matter of fact,every citizen has right to pass over the footpaths andpublic ways and custody thereof with the State and theLocal Authorities is in realm of public trust andtherefore, what to say of private individuals even, theState Government and Local Authorities are yokedunder an inhibition not to put any structure onfootpaths and public ways, which is not necessary forregulating and maintaining the user thereof. Every inchof the land forming part of footpaths and public wayshas to be preserved and maintained meticulously andtherefore, the State Government and the LocalAuthorities, who are under an obligation to checkgrowth of unauthorised encroachment made byunscrupulous persons on footpaths and public ways andremove the same, cannot shirk from their responsibilityto take the appropriate measures in this regard.

147. This Court takes judicial notice of the fact thatthe tendency to occupy unauthorisedly the land formingpart of footpaths and public ways, is rampant in variouscities of the State and one hardly finds enough spaceon the footpaths and public ways which is creatingnumerous traffic hazards and the pedestrians arecompelled to move in the midst of vehicular trafficendangering their life. We are constraint to observethat this tendency to encroach upon the footpaths andpublic ways amongst the unscrupulous citizens isflourishing because of deleterious inaction and tacitsupport of the persons at the helm of affairs in the localauthorities. 

148. To conclude, it is high time that the menace ofencroachment and unauthorised construction over thefootpath and public way is viewed seriously and dealtwith strictly. 

149. As noticed herein above, during the course ofhearing, learned AAG has assured that theencroachment made on footpaths and public way byputting stairs, ramps, hoardings or fencing in variouscities and towns of the State by the unscrupulouspersons shall be removed and therefore, no furtherdilation on the issue is considered necessary.

Restoration of parking spaces in the buildingsconstructed put to other use (Question No.11)

150. Undoubtedly, with the growing high number ofvehicle ownerships in the major cities, parking hasbecome a conflicting and confusing situation for thepublic at large. Each development must provideadequate parking spaces to meet the parking needs ofthe occupiers, tenants and visitors/customers. Thatapart, the developer must ensure the provision of asafe and functional parking place layout to facilitatesmooth and convenient passage for the vehicles.Parking provisions serving a development must bemade concurrent or prior to the completion within thesite of development use. Deletion or conversion ofexisting parking spaces for other use needs to beviewed seriously. 

151. It is really unfortunate that at the time ofsanction of the plan, the provision is made for adequateparking spaces as prescribed by the State Governmentor the Local Authority concerned under the Building By-laws, but over the years, a tendency is developingamong the developers to delete or reduce the parkingspaces while undertaking constructions or the parkingspaces provided are being diverted to other uses. It is really strange that ignoring stringent statutoryprovisions providing for compulsory parking space inevery building constructed, the unscrupulousdevelopers with the connivance of the officials of localauthorities are violating the parking space norms withimpunity, which is creating a great traffic congestion inall major cities of the State. 

152. It is to be noticed that by way of RajasthanMunicipalities (Amendment) Act, 2010, for ensuring theprovision of parking spaces in all the buildingsconstructed within the municipal area, the StateLegislature has inserted Section 238-A in the Act No.18of 2009, which reads as under:

“238-A. Provision of parking space.-(1) In everybuilding constructed in a municipal area after thecommencement of the Rajasthan Municipalities(Amendment) Act, 2010 (Act No.19 of 2010), itshall be compulsory to provide such parking spaceas may be prescribed by the State Government:Provided that the State Government may, havingregard to the area of land and situation and use ofbuilding, exempt, by notification in the OfficialGazette, any building or class of buildings from theprovisions of this section.

(2)The Municipality shall not grant anypermission under Sec. 194 unless the personseeking permission makes provision for parkingspace as prescribed under sub-sec. (1) in the mapsand required under that section and undertakes toprovide such parking space and furnishes securityfor the same to the satisfaction of the Municipality.

(3)Notwithstanding anything contained in Sec.194 or any other provision of this Act, every ownerof the building, for which provision of parking spaceis compulsory under the provisions of this section,shall, after completion of such building, obtain acompletion certificate in the prescribed manner andno such building shall be occupied unless and untilsuch certificate has been obtained.

(4)The officer or authority authorized to issuecompletion certificate certificate under sub-section(3) shall not issue such certificate unless he issatisfied that parking space as prescribed undersub-sec.(1) has been provided in the building.

(5)Any development of land in a municipal areamade or continued in contravention of theprovisions of this section shall be deemed to be anunauthorized development for the purpose of thisAct.

(6)No permanent water connection from anypublic water supply system shall be permitted in abuilding, for which provision of parking space iscompulsory under the provisions of this section,unless the owner or occupier thereof produces acompletion certificate issued under sub-sec.(3).

(7)Any person who contravenes any provision ofthis section shall, on conviction and withoutprejudice to any other action that may be takenagainst him under any other provision of this Act orany other law for the time being in force, bepunishable with imprisonment which may extent toseven days or with fine which shall not be less thanrupees twenty five thousand but which may extendto rupees one lakh or with both.”

153. Similarly, by way of Jaipur DevelopmentAuthority (Amendment) Act, 2010, by inserting Section37B in the Act No.25 of 1982, the similar provision ismade regarding compulsory parking in every buildingconstructed. 

154. That apart, in exercise of the power conferredby Section 95 read with Section 37B of the Act No.25 of1982, the State Government has framed JaipurDevelopment Authority (Provision of Parking Space) Rules, 2011, which while specifying the parking spacerequirement in commercial buildings and other thancommercial buildings, specifically mandates that afterconstruction of the building, the owner shall make anapplication to the authority for issuance of CompletionCertificate and after inspection of the building and onbeing satisfied that the provisions of Section 37B of theAct No.25 of 1982, has been complied with, the officeris authorised by JDA in this behalf, shall issue suchcertificate. 

155. Further, as per sub-section (5) of Section 37B ofthe Act No.25 of 1982, any development land in JaipurRegion made or continued in contravention of theprovisions of the said section shall be deemed to be anunauthorised development for the purposes of the Actand the JDA is empowered to seal the unauthoriseddevelopment by virtue of provisions of Section 34A ofthe Act No.25 of 1982 and JDA (Sealing ofUnauthorised Development) Rules, 2011.

156. We are constrained to observe that though thelegislature has enacted the law for ensuring theprovisions for adequate parking space in every buildingconstructed within the municipal area, the enforcementthereof has been extremely poor and the norms laiddown are being violated by the developers withimpunity, which is resulting in chaotic situationinasmuch as, major area of roads in the major citiesare taken up just for parking of the vehicles andtherefore, it is high time that the law enacted in thisregard is strictly enforced and besides the stern actionagainst the violators, the responsibility of the erringofficials of local authorities who permit such buildingsto come up without adequate provision for parkingspaces, is also properly fixed. Needless to say thatwhile enforcing the provisions incorporated as aforesaidto ensure adequate parking spaces in the buildingsalready constructed, the local authorities are under anobligation to take all appropriate measures inaccordance with law to restore the position of theparking spaces as per the plan sanctioned, put to anyother use. 

Permissibility of compounding of unauthorised construction raised in deviation of the Mater Plan, Zonal Development Plan, sanctioned plan of the building without approval of the building planand/or in violation of the Building Bye Laws(Question No.12)

157. Undoubtedly, the menace of unauthorised pell-mell construction in deviation of the MasterDevelopment Plan, Zonal Development Plan and thebuilding plans duly sanctioned by the local authority inconformity with the Building By-laws, by theunscrupulous persons with the tacit support of officialsof local authority concerned is playing havoc with thelife of a common man. It is really unfortunate that thelocal authorities which are under the legal obligation toat once remove the unauthorised constructions inconformity with the provisions of the law made in thisregard and the state authorities, who are lawfullybound to watch law and order, do not strive in thisdirection, which besides creating numerous hazards forthe health and safety of general public, are pollutingthe environment and ruining the beauty of the cities toan irredeemable degree. 

158. As observed by the Hon'ble Supreme Court inPadma's case (supra), the planned development is thecrucial zone that strikes a balance between the needs of large scale urbanization and individual buildings. It isthe science and aesthetics of urbanization as it savesthe development from chaos and uglification.

159. Coming to the statutory provisions, theconstruction of the buildings in the municipal areas isgoverned by Section 194 of the Act No.18 of 2009. Asper mandate of sub-section (1) of Section 194, anyperson intending to erect a new building or to re-erector make material addition in any building or anyprojecting portion of a building or any tower or anysimilar structure on any land or building is under anobligation to seek permission of the Municipality beforestarting the construction. As per the Explanationattached to sub-section (1) of Section 194, anychanges in existing setbacks, coverage, height, landuse and parking area wherever parking areas aremandatory under the law, shall fall within the definitionof 'material addition'. Sub-section (7) of Section 194,mandates that no person shall commence any type ofconstruction without written permission of the Municipality. The plan for erection/re-erection of thebuilding or for material addition has to be in conformitywith the Building By-laws of the Municipality and noplan in deviation of the Building By-laws is permissible to be sanctioned by the Municipality and for thisreason, even where a person becomes entitled to raiseconstruction under the deemed permission of theMunicipality, it is specifically provided under the clause(c) of sub-section (7) of Section 194 that he shall notviolate any provision of the Act, rules or by-laws madethereunder. The commencement, continuance orcompletion of any kind of erection, re-erection ormaterial alteration in a building or part thereof orerection or re-erection of any projecting of a building inrespect of which Municipality is empowered underSection 192 to enforce removal of the projecting partor restoration to regular line of setback in violation ofprovisions of sub-section (1) of Section 194, areoffences punishable under clause (a) to (d) of sub-section (10) of Section 194. As per clause (g) of sub-section (10) of Section 194, an employee of theMunicipality who has been assigned duties for aparticular area and made responsible for reporting thematter of violation of the provisions of the said section,is under an obligation to ensure that such violations arereported properly without delay and the same areentered in the register kept for the purpose and takenecessary action to stop unauthorised construction and if it is proved that he willfully or knowingly ignored tostop such unauthorised construction and to make areport shall be liable to be punished in accordance withthe provisions of sub-section (18) of Section 245 of the Act No.18 of 2009. Under sub-section (18) of Section245, a person on conviction, is liable to be punished fora term which shall not be less than three months whichmay extend to three years or with fine which mayextent 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 workcommenced without permission or violating the normsof sanctioned map or without submitting an applicationand further under clause (i) thereof, in addition toprosecution of defaulter, the Municipality is empoweredto demolish whole or part of the construction which hascome up without permission or violating the permissionor where permission was sought by fraud etc. asmentioned in the said section. 

160. It is relevant to mention here that beside theprovisions regarding regulation of construction ascontained in Section 194, the Act No.18 of 2009incorporates various provisions regulating thedevelopment of the city/town including prescribing a line on either side or both sides of the street within themunicipal area, compulsory provisions for footpaths,setbacks and projection of the buildings and parkingplaces etc.

161. It goes without saying that once the plan forerection/re-erection of the building or to make amaterial addition in building or the erection/re-erectionof the projecting portion of the building is sanctionedby the Municipality in conformity with the provisions ofthe Act, rules and the by-laws made thereunder, itmust be executed strictly and any deviation therefromcould be permitted only in the rarest of rare case afterfollowing the procedure laid down under the law. 

162. Learned AAG has emphasised that the statutespermits compounding of unauthorised construction andtherefore, the local authorities cannot be restrainedfrom regularising the illegal construction raised inaccordance with law and therefore, at this stage, itwould be appropriate to refer to the provisions of theAct No.25 of 1982, Act No.2 of 2009, Act No.39 of2013, the UIT Act, Act No.18 of 2009 and the Rulesmade thereunder, dealing with the unauthoriseddevelopment/constructions. 

163. Section 33A of the Act No.25 of 1982, Section34 of the Act No.2 of 2009 and Section 34 of Act No.39of 2013 and Section 73B of UIT Act, which permitscomposition of unauthorised development withoutpermission or which is not in accordance with anypermissions granted or is in contravention of anycondition subject to which permission has beengranted, have already been dealt with by us whiledealing with the issue relating to themodification/revision of Master Development Plan andZonal Development Plan and therefore, it is notnecessary to enter into the discussion on the said issueall over again. 

164. So far as Act No.18 of 2009 is concerned, thecompounding/compromise of any offence committedunder the Act or any By-law made thereunder, is dealtwith 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 theopinion of the Municipality has committed anoffence punishable under this Act or any bye-lawthereunder and on such compromise noproceedings shall be taken against such person inrespect of such offence;

(b) withdraw prosecutions under this Act or underany bye-law made thereunder;

(c) compound any offence against this Act oragainst any bye-law made thereunder which may,by rules made by the State Government, bedeclared compoundable;

Provided that the State Government may makerules to regulate the proceedings of personsempowered to compromise offences under thissection.”

165. It is to be noticed that the State Government inexercise of power conferred under Section 297 readwith Section 266 of Rajasthan Municipalities Act, 1959,(the Act No.38 of 1959), which stands repealed byvirtue of the provisions of Sub-section (1) of Section344 of the Act No.18 of 2009, had framed 'RajasthanMunicipalities (Compounding and Compromising ofOffences) Rules, 1966' ('the Rules of 1966'). 

166. The provisions of Section 266 of the Act No.38of 1959 and Rules 4 & 5 of the Rules of 1966,germane to the determination of the issue raised, arequoted hereunder: 

Section 266 of the Act No.38 of 1959

“Section 266. Power to compound offences: A boardmay;

(a) compromise with any person who in the opinionof the board has committed an offence punishableunder this Act or any bye-law thereunder and onsuch compromise no proceeding shall be takenagainst such person in respect of such offence;

(b) withdraw from prosecutions instituted under thisAct or under any bye-law made thereunder;

(c) compound any offence against this Act oragainst any bye-law made thereunder which may,by rule made by the State Government, be declaredcompoundable:Provided that the State Government may makerules to regulate the proceedings of personsempowered to compromise offences under thissection.” 

Rules 4 & 5 of the Rules of 1966

“4. Offences which may be compounded orcompromised.- (1) Offence punishable under theprovision of the Act and/or any rules or bye-lawsmade thereunder except under sections 165(4) and203 shall be compoundable or compromisable.

(2) The offences under section 170 may becompounded or compromised by the Board on thefollowing basis:-

(i)In the case of constructions putup after obtaining sanction butin which minor deviations havebeen made from the sanctionedplan and such deviations do notcontravene any bye-law rule,policy or resolution of the board.

No compensation should be chargedif the party concerned makes anapplication along with sanctionedplans, within one month requestingthat such deviations should besanctionedandregularised.Corrections in the sanctioned planmay be made departmentally at hiscost. 

(ii)In cases of unauthorisedconstructions which do notoffend against bye laws in whichno application for sanction hadbeen made.

May be condoned on payment of5% of the cost of unauthorizedconstructions as compensationsubject to the minimum of Rs.5/-.

(iii)In cases of unauthorizedconstructions which do notoffend against bye-laws butwhich were continued inspite ofprohibitory notice to stopconstructions.

May be condoned on payment of7.5% of the cost on unauthorizedconstructions as compensationsubject minimum of Rs.5/-.

(iv)The unauthorised constructionswhich offend against by-laws.

Should not, as a rule, be allowed tostand, but if however, it isconsidered desirable to condonesuch constructions on payment ofcompensation on the request of theparty may be considered, and thecompensation in such cases shallnot be less than 25% of the cost ofthe unauthorized construction asmay be considered on merits ofeach such case.

(v)The unauthorized constructionswhich offend against bye-lawsand which were continued inspite of prohibitory notice tostop construction.

Should also not, as a rule, beallowed to stand, but if however, itis considered desirable to condoneon payment of compensation suchconstructions at the request of theparty, may be considered and thecompensation in such cases shallnot be less than 33-1.3% of thecost of unauthorized constructionsas may be considered on merits ofeach such case.

5.Power to compound or compromise offences.-(1) Subject to the provisions of Rule 4, a Board mayaccept from any person in respect of whom there isreasonable ground to believe that he has committedact or omission made punishable under the Act orbye-laws made thereunder a sum of money by wayof compensation therefore.

(2) On payment of such sum no further proceedingsshall be taken against the offender in respect of theoffence so compounded or compromised.

(3) Sums paid by way of compensation under theserules shall be credited to the Municipal Fund.”

167. A bare perusal of the provisions of Section 299of the Act No.18 of 2009, makes it abundantly clearthat same are pari materia to the provisions of Section266 of the Act No.38 of 1959 and therefore by virtue ofclause (a) of sub-section (2) of Section 344 to theextent they are not inconsistent with the provisions ofthe Act No.18 of 2009 stand saved. 

168. The question remains for consideration of thiscourt is to what extent the unauthorised constructionraised in deviation of the sanctioned plan or theBuilding By-laws of the municipality concerned ispermissible to be compounded under the provisions ofthe Act and the Rules of 1966.

169. A bare look at the provisions of Section 194 ofthe Act No.18 of 2009, makes it abundantly clear thatstatutory mandate is that the erection, re-erection ofthe building, material addition therein or erection re-erection of any projecting building etc. is not permittedunless the plan thereof is duly sanctioned by the Municipality concerned in accordance with theprocedure laid down. Obviously, the Municipalityconcerned is not empowered to sanction any plan indeviation of the Building By-laws of the Municipality, ifany framed and further, any construction which fallswithin the purview of sub-section (5) of Section 194i.e. a multi storied building (above height of 15 meters)or any institutional complex or commercial complex inan area more than 500 sq. meters cannot be permittedby the municipality without obtaining advice ofRegional Town Planner of the State Government andthe Municipality is under an obligation to ensure thatthe proposed plan and construction is not inconsistentwith the Rules, By-laws and public convenience. Sufficeit to say that while permitting the construction, theMunicipality concerned is under a statutory obligationnot to sanction any construction proposed to be raisedwhich is in violation of the provisions of the Act, rules,by-laws made thereunder or public convenience. 

170. Coming to the compounding power of theMunicipality, it is pertinent to note that by virtue ofclause (a) of Section 299 of the Act No.18 of 2009, theMunicipality is empowered to enter into compromisewith any person who has committed an offence punishable under the Act or any By-law thereunder andby virtue of clause (c), it may compound any offenceagainst the Act or By-laws made thereunder which byRules made by the State Government, be declaredcompoundable and further that on the Municipalityentering into a compromise or compounding, noproceedings shall be taken against such person inrespect of such offence. 

171. At this stage, it is essential to notice that Section337 of the Act No.18 of 2009, empowers the StateGovernment to make Rules or orders generally for thepurpose of carrying into effect the provisions of the Act.Obviously, the provisions of Section 194 regulating theconstructions to be raised within the municipal areahave been incorporated to ensure planned developmentfor the convenience of the public at large. It cannot bedisputed that the Building By-laws framed by theMunicipality, taking into consideration all the relevantaspects for planned development, duly approved by the State Government, are required to be strictly followedand neither the Municipality is empowered to approvethe building plans in deviation of the Master Plan norany person can claim as a matter of right to raiseconstruction beyond the para meters and norms laid down under the Building By-laws. Thus, the StateGovernment while framing the Rules in exercise of therule making power under Section 299 of the Act No.18of 2009, is certainly empowered to frame the Rules forcarrying out the object underlying the provisions ofSection 194 of the Act i.e. the regulation of theconstruction within the municipal area strictly inaccordance with the para meters laid down by theconcerned Municipality regarding the building line inthe street, projections, parking places etc. in exerciseof the statutory power or the regulation of constructionof the building in accordance with the norms laid downunder the Building By-laws framed in exercise of thepower conferred under the statute and not to frustratethe same. 

172. As noticed hereinabove, the commencement ofthe construction, continuance or completion thereofwithout sanction of the plan, in contravention of thesanctioned plan or violating norms, conditions andrestriction imposed under the Act or rules or the by-laws framed thereunder, are the offences punishableunder the provisions of sub-section (10) of Section194. Since, clause (a) of Section 299 empowers theMunicipality to enter into compromise with the person who has committed offence punishable under the Actor any By-law thereunder, and by virtue of clause (c) ofSection 299, the State Government is empowered todeclare any offence under the Act or By-laws to becompoundable, the act of the State Government inframing the Rules of 1966 to regulate the compoundingof the offences, which are punishable under theprovisions of sub-section (10) of Section 194 and thus,absolving the person from any proceedings under theAct in respect of the offence committed, cannot befaulted with. But, the power to compound the offencesand consequently, not to take any proceedings againstthe person who has indulged in commission ofoffences, does not empower the State Government toframe the Rules permitting compounding of the illegalconstructions raised, ignoring the mandate of theprovisions of Section 194 incorporated for regulatingthe planned development and constructions within themunicipal area and to ensure the convenience of thepublic at large. Suffice it to say that the Rules of 1966framed by the State Government in exercise of its rulemaking power are permissible to be operated forcarrying out the object underlying Section 194 of theAct and not to frustrate the same. In other words, the unauthorised constructions raised, which cannot beotherwise permitted by the Municipality by virtue of theprovisions of Section 194 and other ancillary provisionsreferred to hereinbove and the Building By-laws framedin this regard, cannot be permitted to be compounded. 

173. As a matter of fact, in the garb of the Rules of1966, the local authorities having constitutional status,constituted in the country so as to ensure the interestof general public and enable the local inhabitants tohave a say for solving the immediate problem at thelocal level, due to their indifferent attitudes anddeleterious inaction, are making the inhabitants of thelocal area to suffer immeasurably and the very objectof constituting local authorities, is being defeated. 

174. Looking to the gravity of the problem, evenlearned AAG fairly conceded that the enforcement cellof local bodies needs to be strengthened and timebound effective action on violation must be ensured. 

175. It is true that the Rules of 1966 enables theMunicipalities to compound the unauthorisedconstructions but the discretion vested in this regard ispermissible to be exercised only in furtherance to theultimate object of planned development sought to be achieved by effective and strict enforcement of theMaster Development Plan, Zonal Development Plan, theSchemes framed thereunder and the Building By-lawsof the Municipality concerned regulating constructionswithin the local area. 

176. The Hon'ble Supreme Court has pronounced onthe issues relating to menace of unauthorisedconstructions and permissibility of compoundingthereof time and again and therefore, reference of afew decisions cited at the bar would be appropriate atthis stage. 

177. In Pratibha Cooperative Housing Societies' case(supra), where the petitioner, a cooperative housingsociety had raised construction of eight floors of thebuilding violating the permissible Floor Space Index(FSI) upholding the action of the Bombay MunicipalCorporation in proposing demolition thereof, theHon'ble Supreme Court held:

“6.It is an admitted position that six floors havebeen completely demolished and a part of seventhfloor has also been demolished. It was pointed outby Mr.K.K.Singhvi, learned counsel for theCorporation that the tendency of raising unlawfulconstructions by the builders in violations of therules and regulations of the Corporation wasrampant in the city of Bombay and the MunicipalCorporation with its limited sources was finding it difficult to curb such activities. We are also of theview that the tendency of raising unlawfulconstructions and unauthorised encroachments isincreasing in the entire country and such activitiesare required to be dealt with by firm hands. Suchunlawful constructions are against public interestand hazardous to the safety of occupiers andresidents of multistoreyed buildings. The violationof F.S.I. in the present case was not a minor onebut was to an extent of more than 24,000 sq. ft.Such unlawful construction was made by theHousing Society in clear and flagrant violation anddisregard of F.S.I. and the order for demolition ofeight floors had attained finality right upto thisCourt. The order for demolition of eight floors hasbeen substantially carried out and we find nojurisdiction to interfere in the order passed by theHigh Court as well as in the order passed by theMunicipal Commissioner dated 13th November,1990.”(emphasis added)

178. In the matter of M.I.Builders' case (supra),where Lucknow Nagar Mahapalika had entered into anagreement with the builder for construction of anunderground shopping complex in a park situated atAmina Bag Market, Lucknow pursuant to the resolutionadopted by Mahapalika, the Hon'ble Supreme Courtwhile upholding a Bench decision of High Court ofAllahabad holding construction of undergroundshopping complex illegal, arbitrary andunconstitutional, observed:

“73.The High Court has directed dismantling ofthe whole project and for restoration of the parkto its original condition. This Court in numerousdecisions has held that no consideration should beshown to the builder or any other person whereconstruction is unauthorised. This dicta is now almost bordering the rule of law. Stress was laidby the appellant and the prospective allottees ofthe shops to exercise judicial discretion inmoulding the relief. Such a discretion cannot beexercised which encourages illegality orperpetuates an illegality. Unauthorisedconstruction, if it is illegal and cannot becompounded, has to be demolished. There is noway out. Judicial discretion cannot be guided byexpediency. Courts are not free from statutoryfetters. Justice is to be rendered in accordancewith law. Judges are not entitled to exercisediscretion wearing the robes of judicial discretionand pass orders based solely on their personalpredilections and peculiar dispositions. Judicialdiscretion wherever it is required to be exercisedhas to be in accordance with law and set legalprinciples. As will be seen in moulding the relief inthe present case and allowing one of the blocksmeant for parking to stand we have been guidedby the obligatory duties of the Mahapalika toconstruct and maintain parking lots.” (emphasisadded)

179. In the matter of 'Friends Colony DevelopmentCommittee vs. State of Orissa & Ors.',(2004) 8 SCC733, the Hon’ble Supreme Court held:

“25. Though the municipal laws permit deviationsfrom sanctioned constructions being regularisedby compounding but that is by way of exception.Unfortunately, the exception, with the lapse oftime and frequent exercise of the discretionarypower conferred by such exemption, has becomethe rule. Only such deviations deserve to becondoned as are bona fide or are attributable tosome misunderstanding or are such deviations aswhere the benefit gained by demolition would befar less than the disadvantages suffered. Otherthan these, deliberate deviations do not deserveto be condoned and compounded. Compoundingof deviations ought to be kept at a bare minimum.The cases of professional builders stand on adifferent footing from an individual constructing his own building. A professional builder issupposed to understand the laws better anddeviations by such builders can safely be assumedto be deliberate and done with the intention ofearning profits and hence deserve to be dealt withsternly so as to act as a deterrent for future. It iscommon knowledge that the builders enter intounderhand dealings. Be that as it may, the StateGovernments should think of levying heavypenalties on such builders and therefrom developa welfare fund which can be utilised forcompensating and rehabilitating such innocent orunwary buyers who are displaced on account ofdemolition of illegal constructions.” (emphasisadded)

180. In Shanti Sports Club's case (supra), whiledealing with an issue of illegal construction of acommercial complex raised over the acquired landwithout even making an application to the competentauthority for sanction of the building plan, the Hon'bleSupreme Court observed:

“74.In the last four decades, almost all cities, bigor small, have been seen unplanned growth. In the21st century, the menace of illegal and unauthorisedconstructions and encroachments has acquired monstrous proportions and everyone has beenpaying heavy price for the same. Economically affluent people and those having support of thepolitical and executive apparatus of the State have constructed buildings, commercial complexes,multiplexes, malls, etc. in blatant violation of themunicipal and town planning laws, master plans,zonal development plans and even the sanctionedbuilding plans. In most of the cases of illegal orunauthorised constructions, the officers of themunicipal and other regulatory bodies turn blindeye either due to the influence of the higherfunctionaries of the State or other extraneousreasons. Those who construct buildings in violationof the relevant statutory provisions, master plan, etc. and those who directly or indirectly abet suchviolations are totally unmindful of the graveconsequences of their actions and/or omissions onthe present as well as future generations of thecountry which will be forced to live in unplannedcities and urban areas. The people belonging to thisclass do not realise that the constructions made inviolation of the relevant laws, master plan or zonaldevelopment plan or sanctioned building plan or thebuilding is used for a purpose other than the onespecified in the relevant statute or the master plan,etc, such constructions put unbearable burden onthe public facilities/amenities like water, electricity,sewerage, etc. apart from creating chaos on theroads. The pollution caused due to trafficcongestion affects the health of the road users. Thepedestrians and people belonging to weakersections of the society, who cannot afford theluxury of air-conditioned cars, are the worst victimsof pollution. They suffer from skin diseases ofdifferent types, asthma, allergies and even moredreaded diseases like cancer. It can only be amatter of imagination how much the Governmenthas to spend on the treatment of such persons andalso for controlling pollution and adverse impact onthe environment due to traffic congest on the roadsand chaotic conditions created due to illegal andunauthorised constructions. This Court has, fromtime to time, taken cognizance of buildingsconstructed in violation of municipal and other lawsand emphasised that no compromise should bemade with the town planning scheme and no reliefshould be given to the violator of the town planningscheme, etc. on the ground that he has spentsubstantial 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 ColonyDevelopment Committee v. State of Orissa, M.C.Mehta v. Union of India and SNChandrashekar v.State of Karnataka.

75.Unfortunately, despite repeated judgments ofthis Court and the High Courts, the builders andother affluent people engaged in the constructionactivities, who have, over the years shown scantrespect for regulatory mechanism envisaged in themunicipal and other similar laws, as also the master plans, zonal development plans, sanctioned plans,etc., have received encouragement and supportfrom the State apparatus. As and when the Courtshave passed orders or the officers of local and otherbodies have taken action for ensuring rigorouscompliance with laws relating to planneddevelopment of the cities and urban areas andissued directions for demolition of theillegal/unauthorised constructions, those in powerhave come forward to protect the wrongdoerseither by issuing administrative orders or enactinglaws for regularisation of illegal and unauthorisedconstructions in the name of compassion andhardship. Such actions have done irreparable harmto the concept of planned development of the citiesand urban areas. It is high time that the executiveand political apparatus of the State take seriousview of the menace of illegal and unauthorisedconstructions and stop their support to the lobbiesof affluent class of builders and others, else eventhe rural areas of the country will soon witnesssimilar chaotic conditions.” (emphasis added)

181. In Dipak Kumar Mukherjee's case (supra), theHon'ble Supreme Court set aside a Bench decision ofthe Calcutta High Court reversing the judgment of thelearned Single Judge directing the demolition of illegalconstructions and while referring to various earlierdecisions of the Court, observed:

“8.What needs to be emphasised is that illegaland unauthorised constructions of buildings andother structure not only violate the municipal lawsand the concept of planned development of theparticular area but also affect variousfundamental and constitutional rights of otherpersons. The common man feels cheated when hefinds that those making illegal and unauthorisedconstructions are supported by the people entrusted with the duty of preparing andexecuting master plan/development plan/zonalplan. The reports of demolition of hutments andjhuggi jhopris belonging to poor anddisadvantaged section of the society frequentlyappear in the print media but one seldom gets toread about demolition of illegally/unauthorisedlyconstructed multi-stories structure raised byeconomically affluent people. The failure of theState apparatus to take prompt action todemolish such illegal constructions has convincedthe citizens that planning laws ar enforced onlyagainst poor and all compromises are made bythe State machinery when it is required to dealwith those who have money power or unholynexus with the power corridors

.......xxxxx..........xxxx...

29.It must be remembered that while preparingmaster plans/zonal plans, the Planning Authoritytakes into consideration the prospectus of futuredevelopment and accordingly provides for basicamenities like water and electricity lines, drainage,sewerage, etc. Unauthorized construction ofbuildings not only destroys the concept of planneddevelopment which is beneficial to the public butalso places unbearable which is beneficial to thepublic but also places unbearable burden on thebasic amenities and facilities provided by thepublic authorities. At times, construction of suchbuildings becomes hazardous for the public andcreates congestion. Therefore, it is imperative forthe concerned public authorities not only todemolish such construction but also imposeadequate penalty on the wrongdoer.” (emphasisadded)

182. In Esha Ekta Apartments Cooperative HousingSocieties's case (supra), where the builder had raisedconstruction of additional floors in the residentialbuildings despite rejection of the revised building plansand issuance of the stop-work notice, the Hon'ble Supreme Court while relying upon its earlier decisionin Royal Paradise Hotel (P) Ltd. vs. State of Haryana, (2006) 7 SCC 597 held:

“3.In Royal Paradise Hotel (P) Ltd. vs. State ofHaryana, this Court noted that the constructionhad been made in the teeth of notices issued forstopping the unauthorised construction and heldthat no authority administering municipal laws canregularise the constructions made in violation ofthe Act. Some of the observations made in thatjudgment are extracted below:(SCC pp.601-02, paras 7 & 8)

“7....... Whatever it be, the fact remains thatthe construction was made in the teeth of thenotices and the directions to stop theunauthorised construction. Thus, thepredecessor of the appellant put up theoffending construction in a controlled area indefiance of the provisions of law preventingsuch a construction and in spite of notices andorders to stop the construction activity. Theconstruction put up are thus illegal andunauthorised and put up in defiance of law. Theappellant is only an assignee from the personwho put up such a construction and his presentattempt is to defeat the statute and thestatutory scheme of protecting the sides ofhighways in the interest of the general publicand moving traffic on such highways.Therefore, this is a fit case for refusal ofinterference by this Court against the decisiondeclining the regularisation sought for by theappellant. Such violations cannot becompounded and the prayer of the appellantwas rightly rejected by the authorities and theHigh Court was correct in dismissing the writpetition filed by the appellant. It is time thatthe message goes abroad that those who defythe law would not be permitted to reap thebenefit of their defiance of law and it is the dutyof the High Courts to ensure that such defiersof law are not rewarded. The High Court was therefore fully justified in refusing to interferein the matter. The High Court was rightlyconscious of its duty to ensure that violators oflaw do not get away with it.

8.We also find no merit in the argument thatregularisation of the acts of violation of theprovisions of the Act ought to have beenpermitted. No authority administering municipallaws and others laws like the Act involvedtherein, can encourage such violations. Evenotherwise, compounding is not to be done whenthe violations are deliberate, designed, recklessor motivated. Marginal or insignificantaccidental violations consciously made aftertrying to comply with all the requirements ofthe law can alone qualify for regularisationwhich is not the rule, but a rare exception. Theauthorities and the High Court were hence rightin refusing the request of the appellant.”

....xxxxx.....xxxxx....

8.At the outset, we would like to observe thatby rejecting the prayer for regularisation of thefloors constructed in wanton violation of thesanctioned plan, the Deputy Chief Engineer andthe appellate authority have demonstrated theirdetermination to ensure planned development ofthe commercial capital of the country and theorders passed by them have given a hope to thelaw-abiding citizens that someone in the hierarchyof administration will not allow unscrupulousdevelopers/builders to take law in their hands andget away with it............xxxxx...............xxxx

56.In view of the above discussion, we hold thatthe petitioners in the transferred case have failedto make out a case for directing the respondentsto regularise the construction made in violation ofthe sanctioned plan. Rather, the ratio of theabovenoted judgments and, in particular, RoyalParadise Hotel (P) Ltd. vs. State of Haryana isclearly attracted in the present case. We wouldlike to reiterate that no authority administeringmunicipal laws and other similar laws canencourage violation of the sanctioned plan. The courts are also expected to refrain from exercisingequitable jurisdiction for regularisation of illegaland unauthorised constructions else it wouldencourage violators of the planning laws anddestroy the very idea and concept of planneddevelopment of urban as well as rural areas.”(emphasis added)

183. The Hon'ble Supreme Court while dealing withthe issue regarding the officers of the statutory bodywho permits unauthorised constructions coming upunabatedly, in Dr.G.N.Khajuria's case (supra) observed:

“10.Before parting, we have an observation tomake. The same is that a feeling is gatheringground that where unauthorised constructions aredemolished on the force of the order of course,the illegality is not taken care of fully inasmuch asthe officers of the statutory body who had allowedthe unauthorised construction to be made or makeillegal allotments go scot free. This should not,however, have happened for two reasons. First, itis the illegal action/order of the officer which liesat the root of the unlawful act of the citizenconcerned, because of which the officer is more tobe blamed than the recipient of the illegal benefit.It is thus imperative, according to us, that whileundoing the mischief which would require thedemolition of the unauthorised construction, thedelinquent officer has also to be punished inaccordance with law. This, however, seldomhappens. Secondly, to take care of the injusticecompletely, the officer who had misused his powerhas also to be properly punished. Otherwise, whathappens is that the officer, who made the haywhen the sun shined, retains the hay, whichtempts others to do the same. This really givesfillip to the commission of tainted acts, whereasthe aim should be opposite.” (emphasis added)

184. Similarly, in Friends Colony case's case (supra),the Court observed:

“26. The application for compounding thedeviations made by the builders should always bedealt with at a higher level by a multi-memberedHigh Powered Committee so that the builderscannot manipulate. The officials who haveconnived at unauthorised or illegal constructionsshould not be spared. In developing cities thestrength of staff which is supposed to keep awatch on building activities should be suitablyincreased in the interest of constant and vigilantwatch on illegal or unauthorised constructions.”(emphasis added)

185. To conclude, it is imperative that the State andthe local authorities keep a vigil eye over theunauthorised constructions being raised byunscrupulous persons and any unauthorisedconstruction which destroys the concept of planneddevelopment is not permitted to be come up and if anysuch construction has been raised in deviation of theMaster Development Plan, Zonal Development Plan andthe Building By-laws, is not permitted to be regularisedor compounded rather, the same needs to be dealt withstrictly. Further, it needs to be ensured that the officialsof the local authorities with whose connivance or tacitsupport, such unauthorised construction is raised, ispunished adequately.

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 courtwhile interpreting the provisions of Section 33A of theAct No.25 of 1982 and pari-materia provisions ascontained in Section 34 of Act No. 2 of 2009 andSection 34 of Act No.39 of 2013 that the compoundingpermissible in terms of the said provisions mustconform to the land use plan under the Master Development Plan and Zonal Development Plan andtherefore, unless and until, the unauthoriseddevelopment sought to be compounded falls within thepara meters of permissible modification of the plan ascontemplated under sub-section (1) and (2) of Section25 and such modification to the plan is actually effectedby following the procedure laid down, no unauthoriseddevelopment in terms of Section 33A is permissible tobe compounded, we are of the opinion that the issuewith regard to constitutional validity of the saidprovisions 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 purposes, regularisation thereof and the measures to be adopted for removal of unauthorised occupation over the pasture land (Question No.14)

187. 'Pasture land' as defined by Section 5(28) of theAct of 1955, means land used for grazing of the cattleof a village or villages or recorded in settlement recordsas such at the commencement of the Act or thereafterreserved as such in accordance with the Rules framedby the State Government. 

188. As per provisions of Section 92 of the RajasthanLand Revenue Act, 1956( for short “the Act of 1956”), subject to general or special orders of the StateGovernment, the Collector may set apart land for anyspecial purpose such as for free pasturage of cattle, forforest reserve, for development of abadi or for anyother public or municipal purpose and such land shallnot be used otherwise than for the purpose without theprevious sanction of the Collector. 

189. Section 16 of the Act of 1955 prohibits accrual ofkhatedari rights in pasture land. Rule 4 of RajasthanLand Revenue (Allotment of Land for AgriculturePurposes) Rules, 1970 which specifies the categories ofthe land not available for allotment for agriculture purposes includes the lands mentioned in Section 16 ofthe Act of 1955 which includes the pasture land asaforesaid. 

190. Section 93 of Act of 1956 mandates that theright of grazing on pasturage land shall extend only tothe cattle of the village or villages for which such landhas been set apart and shall be regulated by the Rulesmade by the State Government. 

191. To give effect to inter-alia the provisions ofClause 28 of Section 5 of the Act of 1955 and regulatethe user of the pasture land in exercise of the powerconferred under Section 257 of the Act of 1955, theState 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 classificationof any pasture land as defined u/s 5(28) or any pastureland set apart u/s 92 of the Act of 1956 as unoccupiedculturable government land (Siwai Chak), for allotmentfor agriculture or any non agricultural purposes.However, as per first proviso to Rule 7, in case whereland sought to be allotted or set apart exceeds 4hectares, the Collector is under an obligation to obtain prior permission of the State Government. As persecond proviso to Rule 7(1) of the Rules of 1955, thepasture land falling within the boundary limits of theJaipur Region as defined under the Act No.25 of 1982or within the periphery of 2 kms. of the municipalityshall not be allotted except for the purpose of publicutility institution or for expansion of abadi. Further,sub-rule (2) of Rule 7 mandates that whereclassification of any pasture land is changed under sub-Rule (1), the Collector may set apart an equal area ofunculturable government land if available as pastureland in the same village.

193. That apart, Section 53 of Rajasthan PanchayatiRaj Act, 1994, empowers the Government to make overthe management of pasture lands belonging to theGovernment situated within the panchayat area to theGram Panchayat. Further, Rule 169 of the RajasthanPanchayati Raj Rules, 1996 ('Panchayat Rules, 1996'), incase, the common grazing ground in any village has notbeen placed at the disposal of any Panchayat, castsobligations upon the Gram Panchayat to send proposalfor the taking over or establishing a new grazingground to the Tehsildar and on the receipt of theproposal, the Tehsildar is required to take action forthwith and intimate to the Panchayat about thedecision taken within a period of three months from thedate of receipt of proposal from the Panchayat. Tocheck the possible inaction on the part of the Tehsildar,it is further provided that if the sanction is not receivedby the Panchayat within a period of three months of thesubmission of the proposal, it may move the VikasAdhikari, who shall take steps for allotment of grazinggrounds. Sub-rule (6) of Rule 169, empowers thePanchayat to extend the area of grazing ground in caseof increase of cattle heads by adopting the procedureprovided in case of establishing a new grazing ground.As per sub-rule (8) of Rule 169, if the pasture land hasbeen occupied unlawfully by a person on the basis ofthe survey conducted under Rule 165 of the PanchayatRules, 1996, the Panchayat is mandated to make anapplication in this regard to the concerned Tehsildar.Thus, besides the provisions being incorporated forpreservation of pasture land, the provisions areincorporated for extension of the area of pasturage soas to ensure vegetation in abundance to feed thelivestock. 

194. Thus, to sum up, the pasture land is meant forgrazing of the cattles of the village or villages and once the land is categorized as pasture land, it cannot bedivested to use for any other purposes, unless and untilon existence of special circumstances, its classificationas pasture land is changed by the competent authorityin accordance with the procedure laid down asaforesaid. Further, it is statutory obligation of the stateauthorities to ensure that the land set apart forpasturage is not divested to be used for any otherpurpose unauthorisedly. 

195. In the matter of “Jetha Ram & Ors. vs. State ofRajasthan & Ors.” [D.B.Civil Writ Petition (PIL)No.8816/11, decided on 16.5.12], a Bench of this courtwhile dealing with the issue of mining operation inpasture land, emphasised the need of preservation anddevelopment of pasture land, as under:

“Suffice it to say that the pasture land is meantfor grazing of cattles of the village or villagesand once the land is categorised as pastureland, it cannot be divested to use for any otherpurposes including the mining operation unlessand until in the special circumstances, itsclassification as pasture land is changed by thecompetent authority in accordance with theprocedure laid down under the relevantStatutes. Further, it is statutory obligation of thestate authorities to ensure that the land setapart for pasturage is not divested to be usedfor any other purpose unauthorisedly. Thelivelihood of large number of villagers isdependent on the livestock and therefore, it isthe bounden duty of the state authorities to preserve, develop and manage the pasture landin a manner which ensures therein thevegetation in abundance to feed the livestock.Needless to say that if illegal mining and othersuch activity in the pasture land is not viewedseriously and dealt with sternly by takingappropriate measures, pasture land will befragmented and deteriorated and ultimately, willbe destroyed, frustrating the very purpose ofsetting apart the land as pasturage.” (emphasissupplied)

196. In Jagpal Singh's case (supra), the Hon'bleSupreme Court while dealing with the issue regardingcommon lands inhering in the village including the landused as grazing ground for cattle, observed:

“2.Since time immemorial there have beencommon lands inhering in the villagecommunities in India, variously called GramSabha land, Gram Panchayat land ( in may NorthIndian States), shamlat deh ( in Punjab, etc.),mandaveli and poramboke land (in South India),kalam, maidan, etc., depending on the nature ofuser. These public utility lands in the villageswere for centuries used for the common benefitof the villagers of the village such as ponds forvarious purposes e.g. for their cattle to drink andbathe, for storing their harvested grain, asgrazing 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 inthe State, which handed over their managementto Gram Sabhas/Gram Panchayats. They weregenerally treated as inalienable in order thattheir status as community land be preserved.There were no doubt some exceptions to thisrule which permitted the Gram Sabha/GramPanchayat to lease out some of this land tolandless labourers and members of theScheduled Castes/Tribes, but this was only to bedone in exceptional cases.

....xxxxx.......xxxx

4.What we have witnesses since Independence, however, is that in large parts of the country thiscommon village land has been grabbed byunscrupulous persons using muscle power,money power or political clout, and in manyStates now there is not an inch of such land leftfor the common use of the people of the village,though it may exist on paper. People with powerand pelf operating in villages all over Indiasystematically encroached upon communal landsand put them to uses totally inconsistent withtheir original character, for personalaggrandisement at the cost of the villagecommunity. This was done with activeconnivance of the State authorities and localpowerful vested interests and goondas. Thisappeal is a glaring example of this lamentablestate of affairs

......xxx......xxxxx.....

23.Before parting with this case we givedirections to all the State Governments in thecountry that they should prepare schemes foreviction of illegal/unauthorised occupants of theGram Sabha / Gram Panchayat / poramboke/shamlat land and these must be restored to theGram Sabha/Gram Panchayat for the commonuse of villagers of the village. For this purposethe Chief Secretaries of all StateGovernments /Union Territories in India aredirected to do the needful, taking the help ofother senior officers of the Governments. Thesaid scheme should provide for the speedyeviction of such illegal occupant, after giving hima show-cause notice and a brief hearing. Longduration of such illegal occupation or hugeexpenditure in making constructions thereon orpolitical connections must not be treated as ajustification possession. Regularisation shouldonly be permitted in exceptional cases e.g.where lease has been granted under somegovernment notification to landless labourers ormembers of the Scheduled Castes/ScheduledTribes, or where there is already a school, dispensary or other public utility on the land.”(emphasis supplied)

197. We are of the considered opinion that keeping inview the mandate of the provisions of the Act of 1955and the Rules made thereunder, the preservation anddevelopment of the pasture land by the StateAuthorities is the rule and diversion of user thereof isan exception and therefore, the power conferred uponthe Collector under Rule 7 of the Rules of 1955, tochange the classification of the pasture land should beexercised sparingly only in the larger public interest andnot so as to subserve the interest of any individual. 

198. At this stage, it is to be noticed that in the WritPetition No.5907/08, the petitioner has given thedetails of some of the orders passed by the JDAconverting the land set apart as pasture land in therural areas of Jaipur Region but there is no detailsavailable in respect of the rural areas falling within theJodhpur Region, Ajmer Region and various districts ofthe State and therefore, before further dilation of theissue, it would be appropriate that the directions areissued to the State to furnish the complete detailsregarding the availability of the pasture land in variousdistricts of the State of Rajasthan as on the date of commencement of the Act of 1955, the diversion of theuser of the pasture land permitted after thecommencement of the Act of 1955, and the land setapart as pasture land after the commencement of theAct of 1955. The State should also furnish the thedistrict-wise details of unauthorised occupation over thepasture land. 

199. But in any case, pending consideration of theissue, 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 andcatchment area etc.? (Question No.15)

200. As laid down by the Hon'ble Apex Court in Karnataka Industrial Areas Development Board's case (supra), thenatural resources like air, sea, water and forest have such agreat importance to the people as a whole that it would bewholly unjustified to make them a subject of privateownership. The court laid down that the Doctrine of PublicTrust enjoins upon the Government to protect the resources for the enjoinment of the general public rather than to usefor 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 AAGhave fairly conceded before this court that the naturalresources such as hills, notified area, forest, river, lake etc.cannot be disturbed while preparing the MasterDevelopment 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 issueddirection to the State Government to remove encroachmentin the catchment area of the water bodies. That apart, in“Suo Motu vs. State of Rajasthan“ (S.B.C.Writ PetitionNo.11153/11), disposed of by Jaipur Bench of this courtvide order dated 29.5.12, specific directions are issuedrestraining allotment of the land falling in catchment areasof water reservoirs like Johar, Nala, Tank, River, Pond etc.and it is further directed that the appropriate action shall betaken for cancellation of the allotment made in defiance ofSection 16 of the Act of 1955. 

204. But the fact remains that no effective steps havebeen taken so far for conservation and preservation of the natural resources i.e. hills, forest, river, lake, other waterbodies and the encroachment thereon by unscrupulouspersons continues unabated. We earnestly feel that theState Authorities should take a drive to remove allencroachments made over the natural resources noticedhereinabove and the unauthorised activities operatingthereon, with utmost expedition. 

205. In the result, having regard to the aforesaidconclusions arrived at, we issue the followingdirections:

(i)The Development Authorities and the StateGovernment shall ensure that Master DevelopmentPlan of a city or town prepared under the relevantstatutes is a comprehensive and self explanatorydocument providing for preservation, conservationand development of eco-sensitive zone/ecologicalzone/green area, peripheral control belt, naturalscenery, city forest, wildlife, natural resources andlandscaping as also allocation of land for differentuses such as residential, commercial, industrial,institutional, cultural complexes, tourist complexes,open spaces, garden, recreation centres, amusementparks, zoological gardens, animal sanctuaries, dairiesand health resorts etc. 

(ii)Simultaneously with the preparation of MasterDevelopment Plan or immediately thereafter ascontemplated by Section 4 of the UIT Act and Section22 of the Act No.25 of 1982 and other relevantstatutes, the authority concerned shall proceed withthe preparation of Zonal Development Plan for eachzone clearly specifying the location and extent of theland uses proposed in the zone for such thing aspublic 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 theZonal Development Plan finally sanctioned shall bemaintained and all development schemes of thevarious zones and the development work to beundertaken by the local authorities or privateentrepreneurs or anybody else during the operativeperiod thereof, shall conform to the land uses asspecified under the Master Development Plan orZonal Development Plan, as the case may be. 

(iv)Once the Master Development Plan is broughtinto being, vigilant implementation thereof shall bethe rule and any deviation therefrom an exception and therefore, the power vested with the authority orthe State Government for modification thereof duringits operative period shall be exercised sparingly inlarger public interest, to achieve the basic objectthereof i.e. planned development of the concernedregion, city or town and not to sub-serve interest ofan individual.

(v)The eco-sensitive zone/ecological zone/greenarea specified in the Master Development Plan onceestablished shall not be altered or put to other usesduring the operative period of the Plan and evenwhile undertaking the revision of the Plan orpreparation of the new Plan. 

(vi)Even the area which is shown in the variousMaster Development Plans as Green Zone/Green Areamarked as G-2 abutting G-1 developed as buffer topromote a continuum to G-1 shall not be permitted tobe used for the activities other than those specified,unless and until, the State Government afterobjective consideration arrives at a categoricalconclusion that the public interest involved indiversion of the land for other use outweighs theobject sought to be achieved in permitting its restrictive use specified. In any case, change of theland use of the Green Zone/Green Area (G2) shall beas an exception to serve the larger public interest, toachieve the basic object thereof i.e. planneddevelopment of the concerned region, city or townand not to subserve the interest of an individual.

(vii)During the operative period of the MasterDevelopment Plan, the land use in the peripheralcontrol belt for the purposes other than thosespecified shall not be generally permitted. But if thechange of the land use in the peripheral control beltis considered inevitable in the larger public interestand not to serve the interest of an individual, thechange of the land use for the activities other thanthose specified, should only be permitted to sub-serve the legislative intent of planned developmentfor promotion and enhancement of the quality of lifeof the citizens and not otherwise.

(viii)No isolated change in the land use of the landfalling within the peripheral control belt shall bepermitted without inclusion thereof in accordancewith the procedure laid down, in the land use plan ofurbanisable area shown in the Master Development Plan, the development wherein has to be furtherregulated by Zonal Development Plans notified.

(ix)Further, the development activity within theperipheral control belt for the purposes aforesaid,shall not be permitted without assessment ofenvironment impact and ensuring the fulfillment ofrequirement of the open spaces/green spaces for theexisting population settled in the different zones ofthe city. The authorities shall be under an obligationto provide for buffer zone to ensure the availability ofminimum requirement of green space/open space percity dweller.

(x)The State Government while permitting thechange of the land use in the peripheral control beltor the Green Zone (G-2)/Green Area(G-2) shallmaintain complete transparency, the applicationsmade for the change of land use as also the orderspassed thereon, shall be uploaded on the website ofDepartment of Urban Development & Housing so alsoon the website of the concerned local authority. Theorder permitting the change of land use shall be anspeaking order reflecting the fulfillment of theparameters laid down as aforesaid.

(xi)The open spaces, green spaces, commonfacilities, playgrounds, gardens, parks, recreationalareas specified in the Master Development Plan orZonal Development Plan shall be protected during theoperative period of the Plans and even thereafter,while undertaking revision thereof or preparing a newPlan and the same shall not be diverted to the useother than those specified. 

(xii)The local authorities and the State Governmentare directed to take appropriate steps in accordancewith law, for restoration of the user of the openspaces, green spaces, common facilities,playgrounds, gardens, parks, recreational areasspecified in the Master Development Plan or ZonalDevelopment Plan or the Layout Plan of the coloniesdeveloped by the local authorities or the privatecolonisers in all the six major cities and other townsof the State, which stand diverted to otherunauthorised use.

(xiii)The different land uses as specified in the MasterDevelopment Plan or Zonal Development Plan, as thecase may be, form basic character of the Plan andthe land use as specified shall not be permitted to be changed without alteration/modification of the Planafter following the procedure laid down under therelevant statute. The change of the land use to bepermitted by way of modification of the Plans mustbe in furtherance of the planned development of thecity or town in the larger public interest and not tosub-serve the interest of an individual.

(xiv)In the residential colonies developed as per thelayout plan approved, where the plan does notprovide for mixed user, no residential land in suchcolonies shall be permitted to be used for commercialor any other uses. 

(xv)The Development Authorities and the StateGovernment shall take appropriate steps forspecifying the locations in the Master DevelopmentPlan and the Zonal Development Plan fordevelopment of multistorey buildings. 

(xvi)In the existing residential colonies which aredeveloped with the infrastructure facilities keeping inview the number of family units to be settled in thehouses to be constructed in such colonies, nomultistorey buildings shall be permitted to come up adversely affecting the rights of the residents settledtherein. 

(xvii)The local authorities and the State shallframe the township policy ensuring that no smallcolony comes up in small area with no infrastructurefacilities precipitating a situation wherein theresidents are condemned to live a miserable life. Aslaid down by the Hon'ble Supreme Court in BonduRamaswamy's case (supra), instead of permittingsmall colonies coming up in small areas, the localauthorities and the State Government shall makesincere efforts to undertake the exercise for approvalof integrated layout of residential and other schemeseither by acquisition of the land or undertaking theexercise of land pooling. 

(xviii)The local authorities and the StateGovernment shall ensure that the norms laid downfor providing green belt on both the sides of thehighways in the width of 100 ft. after the right to wayis strictly followed. Further, the appropriate stepsshall be taken for removal of the unauthorisedconstruction raised, if any, in violation of the normslaid down.

(xix)The local authorities and the State Governmentshall take immediate steps to check theencroachment and unauthorised constructions overthe public ways and footpaths. The encroachmentmade on the footpath and public way by way ofputting stairs, ramps, hoardings or fencing etc. invarious cities and towns of the State shall beremoved in accordance with law, expeditiously. 

(xx)The local authorities shall enforce the building by-laws strictly and no construction shall be permitted indeviation of the approved plan. The construction ofthe building shall be regulated by the concernedofficials of the local authorities at all stages and if anydeviation is found, the immediate measures shall betaken to stop the construction and undo thedeviation.

(xxi)No deviation from the norms laid down under thebuilding by-laws shall be permitted. The unauthorisedconstruction raised violating the building line and theset backs norms laid down under the Building By-laws or otherwise by the concerned local authority,shall not be permitted to be compounded in anycircumstances.

(xxii)The suggestions made by the AAG forstrengthening the enforcement of Building By-laws inthe municipal areas and to check the unauthorisedconstructions as reproduced in para no.42 of thisorder, shall be enforced by all the local authorities ofthe State.

(xxiii)The norms prescribed for compulsory parkingin the commercial buildings and other thancommercial buildings constructed within themunicipal area of the various cities shall be enforcedstrictly and the buildings shall not be permitted tocommence its functioning unless the completioncertificate is issued by the authority concerned afterbeing satisfied about compliance of the provisionsincorporated under the relevant statutes forcompulsory parking. In the existing buildings wherethe parking spaces have not been provided as per thesanctioned plan or which have been converted toother use, shall be restored within the time frame tobe notified by the local authority, failing which suchbuildings shall be sealed and appropriate penal actionshall be taken against the defaulters in accordancewith law.

(xxiv)Unauthorised development or change of landuse shall not be compounded in exercise of the powerconferred under Section 33A of the Act No.25 of1982, Section 34 of the Act No.2 of 2009 and Section34 of the Act No.39 of 2013, as the case may be,unless and until such unauthorised development orchange of land use sought to be compounded fallswithin the parameters of permissible modification ofthe plan as contemplated under sub-sections (1) &(2) of Section 25 of the Act No.25 of 1982 and otherrelevant statutes and such modification to the Plansis actually carried out by following the procedure laiddown. 

(xxv)No change of land use in terms of sub-section(2) of Section 73B of UIT Act or regularisation ofunauthorised change of land use in terms of sub-section (3) of Section 73B of UIT Act, shall bepermitted without modification of the MasterDevelopment Plan or Zonal Development Plan, as thecase may be, in accordance with the procedure laiddown. Further, no modification of the Plans for thesaid purpose shall be permitted by the Stateauthorities unless such modification is expedient in the larger public interest to achieve the basic objectof planned development.

(xxvi)The Development Authorities and the StateAuthorities shall take appropriate steps to ensurethat the industrial area is located away from theresidential area and shall provide for green areasbetween the industrial area and the residential areato buffer the residential areas. 

(xxvii)The State shall constitute a high powercommittee consisting of inter alia the experts of thefield, to frame the Relocation Scheme with regard toshifting of hazardous industries/industrial areaslocated in close vicinity of the residential colonies,after conducting survey in all the major cities of theState. The report of the committee with therecommendations to take the appropriate measuresfor shifting of industries so as to save the citizensfrom ill-effects of industrial activities, shall be placedbefore this court.

(xxviii)The State is directed to furnish completedetails regarding availability of the pasture land invarious districts of the State of Rajasthan as on thedate of commencement of the Act of 1955; the diversion of the user of the pasture land permittedafter commencement of the Act of 1955 and the landset apart as pasture land after commencement of theAct of 1955. The State shall also furnish the districtwise details of unauthorised occupation over thepasture land.

(xxix)Pending consideration of the issue withregard to the diversion of the pasture land for otheruses by this court, the State Government is directedto take appropriate steps to check and removeunauthorised occupation over the pasture land byunscrupulous persons in various villages of the Stateforthwith.

(xxx)The State Government is directed to producethe original record of the proceedings taken forpermitting the change of the user of the landmeasuring 1222.93 hectares situated between Kho-Nagoria to Goner Road, covered by the MasterDevelopment Plan of Jaipur, 2011 from ecologicalzone to residential and mixed land use, by way ofzonal layout plan of Sector 34 and Sector 35 forperusal of this court on the next date of hearing. Nopermission for raising construction on the aforesaid land shall be granted by the concerned local authorityand the status quo as it exists today shall bemaintained qua the open land in the aforesaid areatill further orders. 

(xxxi)The State Authorities shall take effectivesteps for conservation and preservation of naturalresources i.e. hills, forests, rivers, other water bodiesand catchment area. Further, the State Authoritiesshall undertake a drive to remove all encroachmentsmade over the natural resources noticed hereinaboveand the unauthorised activities operating thereon andshall restore such natural resources by takingappropriate action including the cancellation ofallotment made in defiance of provisions of Section16 of the Act of 1955.

(xxxii)The respondents local authorities and theState Government shall comply with the directionsissued as aforesaid within a period of four months. 

(xxxiii)The compliance report shall be filed by therespective local authorities and the State Governmentbefore the next date of hearing.

(xxxiv)The Chief Secretary, Government ofRajasthan, the Principal Secretary, Urban Development & Housing Department, Government ofRajasthan and the Secretary, Department of LocalSelf Government, Government of Rajasthan shallensure the compliance of the directions issued by thiscourt as aforesaid. 

(xxxv)The interim order dated 9.12.10 passed bythis court shall stand modified in terms of thedirections issued as aforesaid.

206. The applications preferred by various applicantsfor change of the land use of the land forming part ofecological zone/green belt/peripheral control belt shallbe open to be considered by the State Governmentstrictly in terms of directions issued as aforesaid.Consequently, all the applications preferred by theapplicants before this court seeking permission for thechange of land use shall stand disposed of. 

The matters shall be listed for perusal of thecompliance report and further orders on 22.5.2017.

                (ARUN BHANSALI), J.                                   (SANGEET LODHA), J.