Mohammad Rafiq, J. - (1.) THIS writ petition has been filed by the petitioner Jagdish Prasad Sharma challenging order dated 16.10.2014 passed by Jaipur Development Authority Appellate Tribunal, Jaipur(hereinafter referred to as 'the Tribunal') granting injunction against the petitioner.
(2.) AS per averments of the writ petition, the petitioner has submitted that the petitioner is owner of Plot No. 5 in the Scheme Piramid Kunj of Mitra Grah Nirman Sahkari Samiti(for short 'the Society') situated near by Kamla Nehru Nagar, Ajmer Road, Jaipur. As per the scheme of the Society, width of the road in between the Plot No. 1 to 3 and 4 to 9 is 20 ft. only. Plot No. 1 and 2 are owned by Respondent No. 3, Smt. Krishna Sharma and the size of the aforesaid plots is 200 and 180 sq. yards respectively. The petitioner has alleged that Respondent No. 3, in connivance with the officers of Jaipur Development Authority(for short 'JDA'), having joined both the plots No. 1 an 2 started to raise construction of flats on zero setback on all four sides. The petitioner made complaint to JDA, but no action was taken. Thereafter, the petitioner filed reference petition before the Tribunal. The Tribunal vide order dated 18.09.2014 proceed ex -parte against Respondent No. 3 and granted injunction to maintain status -quo and even appointed a Commissioner to submit the report as to width of the road. Shri Abhishek Sharma, Commissioner appointed by JDA visited on spot and prepared a report in which width of the front road was found as 19'3" ft. and construction of Respondent No. 3 was found at zero setback in all respect. Mr. L.L. Gupta, learned counsel for the petitioner has submitted that the Respondent No. 3 raised construction by joining aforesaid Plot No. 1 and 2 without getting appropriate order of reconstitution of such plots as per the relevant rules. In fact, Respondent No. 3 was watching the Court proceedings outside the Court and when the Tribunal vide order dated 18.09.2014 proceeded ex -parte against her, she filed an application for setting aside ex -parte order on the same day. The matter was adjourned for 13.10.2014. However, surprisingly the matter was taken up by the Tribunal on 23.09.2014, on which date notice of the application for early hearing the matter was issued and the matter was posted on 26.09.2014. Counsel for the petitioner appeared before the Tribunal on 26.09.2014 and sought time to file reply to the application filed by Respondent No. 3 for setting ex -parte order and the matter was posted to 13.10.2014, on which day, Presiding Officer was on leave and the matter was adjourned to 16.10.2014. However, on 16.10.2014, Respondent No. 3 fled a reply and counter claim. The Tribunal, without any opportunity to the petitioner to file reply to the counter claim, decided the reference petition vide impugned order dated 16.10.2014.
(3.) MR . L.L. Gupta, learned counsel for the petitioner has further argued that the Tribunal has erred in passing impugned order by not considering the fact that Respondent No. 3 was raising illegal construction of flats on zero set back on all four sides. Width of road in front of Plot No. 1 and 2 is only 20 ft. and as per the building bye laws of JDA, no flat or unit more than one at one floor is permissible whereas the Respondent No. 3 is raising construction of four flats on one plot. The Tribunal, ought to, therefore, have restrained Respondent No. 3 from raising construction of the flats so that she would not have proceeded in making further illegal construction. It is argued that the order passed by the Tribunal to the extent of issuing direction to the petitioner is also liable to be quashed and set aside and the same deserves to be modified. It is also argued that the Tribunal should not have left the matter to the discretion of JDA so far as removal of illegal construction raised by Respondent No. 3 is concerned, the Tribunal should have passed positive order directing removal of her illegal construction. Therefore, the order passed by the Tribunal deserves to be set aside.;