Alok Sharma, J. - (1.) THE issue in the petition is as to whether certain constructions made by the petitioner -non -applicant (hereinafter "the non -applicant") over his plot No. S -11, C -Scheme, Bhawani Singh Road, Jaipur were at the relevant time in accordance with the extant building plans of the Urban Improvement Trust, Jaipur (hereinafter "UIT") and whether they were so compounded on an appropriate application being made and if not whether they are liable to be demolished being contrary to the Jaipur Development Authority's (hereinafter "JDA") building bye -laws.
(2.) THE facts of the case are that the respondent No. 2 -applicant (hereinafter "the applicant") one M/s. Adinath Enterprises moved a reference application before the JDA Tribunal (hereinafter "the Tribunal") under Section 83(8) of the Jaipur Development Authority Act, 1982 (hereinafter "the JDA Act, 1982") alleging that the non -applicant had made constructions over the plot in issue in a wholly unauthorized manner to the detriment of the applicant. The JDA was impleaded as a non -co -applicant. The non -applicant even though served in the reference for reason best known to him remained ex -parte before the Tribunal. In the circumstances, vide order dated 03.02.1997 the Tribunal even while dismissing the reference against the non -applicant, directed that JDA not compound the unauthorized constructions by the non -applicant and also not approve plans in respect thereof. Aggrieved this petition has been filed by the non -applicant in the year 1998 and continued to be pending for the last 17 years. Counsel for the non -applicant has submitted that the alleged unauthorized constructions over plot No. S -11, C -Scheme, Bhawani Singh Road, Jaipur were compounded by the erstwhile UIT, the predecessor in interest of JDA on 25.05.1979. JDA is bound and has to regularize the said constructions. Hence the impugned order of the Tribunal to the contrary is wholly arbitrary. On a query by the Court, he however fairly submits that the said letter dated 25.05.1979 by the UIT, Jaipur on which the argument is based was not filed before the Tribunal as the non -applicant despite service did not file a reply to the applicant's reference nor was present himself or through counsel before the Tribunal at the time of passing of the order dated 03.02.1997. It has been submitted that a subsequent review petition against the order dated 03.02.1997 was also dismissed by the Tribunal vide order dated 10.07.1998. Counsel submits that in this view of the matter, the non -applicant's defence of the allegedly offending construction over plot No. S -11, C -Scheme, Bhawani Singh Road, Jaipur having been compounded by the erstwhile UIT, the predecessor in interest of the JDA could not be put before Tribunal and now be considered in the interest of justice.
(3.) MR . R.N. Vijay, appearing for respondent -applicant submits that Annexure -2 dated 25.05.1979 does not at all pertain to the offending illegal constructions. There is no writing therein to so conclude. Further the argument is one of fact and ought to have been set up before the Tribunal where is was not. It cannot be set up first time before this Court in the exercise of its superintending jurisdiction under Article 227 of the Constitution of India. It has been further submitted that even otherwise the non -applicant having opened windows on part of the common wall facing the open plot of the applicant and also made projections thereon jutting upon the plot of the applicant, his unlawful constructions could not conceivably have been regularized under any provision of building bye -laws either by the erstwhile UIT or its successor in interest JDA.;