RAFIQ, J. - (1.) ALTHOUGH this matter came up for consideration of the application under Article 226 (3) of the Constitution of India filed by the respondent Nos. 4 to 9 seeking vacation of ad-interim stay order dated 6. 1. 2000, but since the arguments that were raised for deciding that application, would be sufficient for deciding the main case itself finally, therefore, the matter was taken up for final disposal with the consent of the parties.
(2.) BONE of contention between the parties is a piece of land admeasuring 881. 68 sq. yards which lies in front of plot Nos. 66, 67 and 68, Kanota Bagh, JLN Marg, Jaipur. While on the one hand, the petitioners claim that the said piece of land, described as strip of land, was offered to be sold to the petitioners by the then Urban Improvement Trust, Jaipur vide letter dated 29. 8. 1970, they are entitled to allotment of the same. On the other hand, the private respondents No. 4 to 8 claim that they having purchased the aforesaid plots Nos. 66, 67 and 68 vide registered sale deed dated 28. 1. 1998, the petitioners are now not entitled to allotment of the strip of land and it is they who are entitled to the allotment of the aforementioned strips of land which is actually adjacent to the aforesaid plots. The petitioners however relied upon various letters/communications addressed to them by UIT, especially the letter dated 29. 8. 1970, 19. 10. 1972, 10. 11. 1972, 30. 3. 1977 and 13. 4. 1977 in support of their contention. Lastly they relied on the letter of the Deputy Legal Remembrancer dated 28. 12. 98 which according to the petitioners was recommendation for regularization of their possession by charging double the reserve price in terms of Rule 23 of the Rajasthan Improvement Trust (Disposal of Urban Land) Rules, 1974 (for short-the Rules of 1974) and the letter dated 13. 8. 1998 addressed by Chief Executive Officer, Nagam Nigam, Jaipur to the Secretary, UDH, Rajasthan, Jaipur. It is in this background that issuance of a mandamus has been prayed for by the petitioners for (i) declaring that their possession stands regularized over the aforesaid strip of land, (ii) directing the respondents to allot the said strip of land to them and regularize their possession on receipt of the cost of land as per the decision taken by the UIT on 27. 4. 1977, (iii) declaring that the petitioners are allottees of the land and direction be given to JDA/municipal Corporation/state to issue demand notice for payment of the premium and (iv) restraining the respondents from dispossessing the petitioners from the aforesaid strips of land. I have heard Shri Paras Kuhad, the learned counsel for the petitioners and Shri Bharat Vyas, learned Additional Advocate General with Shri Sandeep Pathak for respondent Nos. 1 to 3 and Shri A. K. Sharma, the learned counsel for respondents No. 4 to 9. Shri Paras Kuhad, the learned counsel for the petitioners argued that the allotment of the aforesaid strips of land was made in favour of the petitioners way back in the year 1972 when the Secretary, UIT, Jaipur by his letter dated 19. 10. 1972 informed them that the said lands were proposed to be allotted to the petitioners as per the conditions enumerated in the letter of the Chief Town Planner dated 7. 9. 1972 and asked for the consent of the petitioners. It was argued that the petitioners immediately forwarded their consent by letter dated 10. 11. 1972 and the possession of the land being already with the petitioners, the only issue that now remained to be sorted out is regarding payment of the premium amount. The UIT in its meeting dated 19. 2. 1975 fixed the premium at the rate of 125 sq. yards and accordingly issued demand notice to the petitioners on 30. 3. 1977. The petitioners being aggrieved by the rate of premium of Rs. 125/- sq. yard, requested the respondents for reduction in the rate of premium by making representation dated 15. 6. 1977 followed by representations dated 2. 11. 1977, 6. 12. 1997, 17. 1. 1998. Shri Paras Kuhad argued that though the notice of demand dated 30. 3. 1977 was served on the petitioners for deposit of the amount of premium, but no further action was taken by the authorities to dispossess the petitioners and thus they continued in possession of the disputed land. While referring to the sale deed dated 28. 1. 1998, Shri Paras Kuhad argued that though the petitioners have sold the title and rights in the aforementioned plots No. 66, 67 and 68 to the private respondents No. 4 to 9, but a bare reading of the sale deed would indicate that the total land area which was sold to them was approximately 1882. 61 sq. meters (2251. 55 sq. yards) which is the area of the plots alone and not the strips of land. Therefore, not only by virtue of possession, but also on account of the allotment of the said strips of land having been made in favour of the petitioners by UIT, they are entitled to allotment of the strip of land and not the private respondents. It was argued that petitioners have merely transferred their title in the aforesaid plots No. 66, 67 & 68 but they have not transferred their possession, and title over strips of land which is distinct than the title of the plots themselves. The trial Court has completely misread the evidence of sale deed according to which it cannot be said that the petitioners have not sold/transferred their possession/title to the private respondents. Even if the respondent No. 4 has been impleaded as party respondent to the writ petition, on consideration of their argument, the scope of the writ petition cannot be allowed to be enlarged. Shri Paras Kuhad further argued that the JDA has now suddenly come out with the plea that it had in its meeting dated 28. 3. 1992 decided to cancel the allotment. Neither the petitioners were provided opportunity of hearing prior to passing of the said order, nor was any communication ever sent to them about the aforesaid decision, therefore, such an order cannot be allowed to defeat a legitimate claim of the petitioners. It was argued that the Rules of 1974 were notified on 7. 3. 1975 and allotment of the strip of land having already been made in favour of the petitioners vide order dated 19. 10. 1972, those rules cannot be retrospectively applied in the case of the petitioners so as to say that size of the land being more than 100 sq. yards, which is permitted by the said rules, cannot be considered as strips of land for the purpose of regularization of possession.
(3.) SHRI Paras Kuhad in support of his arguments, relied on the judgments of Constitutional Bench of Supreme Court in Bishan Das & Ors. vs. State of Punjab & Ors. (AIR 1961 SC 1570 and other judgments in Express Newspapers Pvt. Ltd. & Ors. vs. Union of India & Ors. (1986) 1 SCC 133, State of U. P. & Ors. vs. Maharaja Dharmander Prasad Singh & Ors. , (1989) 2 SCC 505 and the judgment of this Court in M/s. Chandra and Co. vs. State of Raj. & Ors. , AIR 1981 Raj. 217 and on their strength, argued that a person who is in peaceful possession of the property, cannot be deprived of possession of the same except with due process of law and therefore prayed that a writ should be issued for restraining the respondents from dispossessing the petitioners from the aforesaid strip of land, apart from other reliefs as mentioned above. Shri Bharat Vyas, the learned Additional Advocate General for respondents No. 1 to 3 opposed the writ petition and argued that the so called strips of land, of which allotment has been claimed, cannot at all be considered as strips of land. Though adjacent to the aforesaid three plots and its size is 881. 68 sq. yards which is more than 8 times than the permissible limit of the size under Rule 23, supra, such land cannot be described as a strip of land. Even on facts, dispute that has been raised cannot be examined in the scope of extraordinary remedy of writ jurisdiction. The petitioner is essentially in the nature of declaration and injunction suit and for which the only remedy available to the petitioners is to approach the Civil Court. It has been denied that the petitioners are in possession of the aforesaid land and argued that an attempt has been made by them to mislead the Court on the question of their possession. In fact the plots in the vicinity of which the so called strips of land are situated, have been sold out by the petitioners under registered sale deed dated 28. 1. 1998 to respondents No. 4 to 9. Even on that account, therefore, the petitioners cannot claim allotment of the alleged strips of land because such allotment can be claimed only by the owner of the adjacent plot. It was however contended that though on facts, the respondents are disputing that the aforesaid plots are a strip of land. It was denied that the allotment in favour of the petitioners have become final and the only issue that remained was with regard to payment of the premium amount. In fact the allotment was offered to be made to the petitioners way back in the year 1972 and as per the conditions of such allotment, the petitioners were required to pay premium for the aforesaid plots at the rate of 125 per sq. yard. When the demand notice was sent to the petitioner on 30. 3. 1977, it was categorically informed to the petitioners that if within seven days they failed to make payment of the demanded amount, their possession being encroachers shall be liable to be removed without any further notice. Similar notice was given on 31. 5. 1977 also. The petitioners however failed to deposit the required amount and the condition of allotment having not been fulfilled, the offer therefore elapsed. Even then, the JDA in its meeting of BPC at agenda item No. 2 reconsidered the entire matter on 23. 8. 1992 and finally rejected the claim of the petitioners with direction to remove the encroachments from the land. This decision was conveyed to the petitioner vide letter dated 16. 5. 1992. In the face of it, the petitioners cannot be allowed to say that the intimation about the same was not sent to them. None of the decisions were challenged by the petitioners at that time and now they are being challenged in the present proceedings. It was argued that as per Section 54 of the JDA Act the allotment of lands falling within the Jaipur region can be made only as per prescribed rules. It was argued that the petitioners having not fulfilled the condition of the offer made to them in 1972, the allotment never crystallized in their favour and therefore when the Rules of 1974 came into force, thereafter allotment of any land where the said Rules apply can be made only as per the mode of disposal prescribed therein. It is therefore prayed that the writ petition be dismissed. Shri A. K. Sharma, the learned counsel for the respondents No. 4 to 9 opposed the very maintainability of the writ petition and argued that the matter ought not to be examined on merits just because the petitioners have filed the writ petition. It was argued that the petitioners can in noway claim allotment of the strip of land because the private respondents have purchased the plots to which that strip of land was adjacent. It was argued that according to Rule 23 it is now respondents No. 4 to 9 who are entitled to allotment of the said land which is presently in their possession. That land lies between the plots No. 66, 67 and 68 at JLN Marg and the plots of the petitioners are having opening on such lands. The said strips of land are not capable of being put to any independent use either by the petitioners or even by J. D. A. It was argued that the right to allotment by way of regularization of possession over the strip of land vests in the owner of the plot to which it is adjacent. The title of the plots having now been transferred in favour of the respondents No. 4 to 9, the petitioners can no longer claim allotment of that land. Shri A. K. Sharma, learned counsel for the respondents No. 4 to 9 have filed an injunction suit in the Court of Civil Judge (Jr. Division), No. 2, Jaipur City, Jaipur to which the petitioners are also party. The petitioners did not at all disclose the fact there about the pendency of the present writ petition and the interim order passed by this Court in that suit. In that case, when the injunction application of the respondents No. 4 to 9 was examined by the said Court, a categorical finding has been recorded that possession of the said strips of land is with the private respondents. In fact, the lands of all three plots i. e. plots No. 66 to 68 is joined by a common wall which also include the aforesaid strip of land. The petitioners had sent written letter to the Chief Town Planner, Municipal Corporation, Jaipur that they have sold the plots No. 66 to 68 to the private respondents and put them in possession, therefore, now the private respondents would be entitled to allotment regularization of the strips of land. It was submitted that when confronting with those letters, the counsel of the petitioners before the civil court did not dispute the correctness of signatures of the petitioners. It was therefore submitted that in view of the finding of fact on the question of possession of the private respondents, this Court should dismiss the writ petition on this ground alone. In fact, the petitioners themselves filed application for temporary injunction in the aforesaid suit which was rejected by the trial Court. It was argued that even though the petitioners were party to the suit, they did not challenge the order of the trial Court dated 28. 2. 2001 and therefore the finding recorded therein has attained finality. ;