RAFIQ, J. - (1.) THESE two special appeals have been filed by the appellant Modern Educational and Cultural Society against the common judgment of the learned Single Judge dated 12. 4. 1993 passed in two writ petitions, one of which was filed at the instance of Nizam and Ors. and another by the appellant Modern Educational and Cultural Society. Dispute pertains to allotment of a piece of land admeasuring 4877 sq. yards (4077. 8 sq. mtrs.) by Jaipur Development Authority (in short `the JDA') in favour of the appellant by its order dated 6. 9. 89 in Nu- Lite Colony, adjoining the Tonk Road, Jaipur which has been developed by the Nu- Lite Housing Cooperative Society (in short- `the Housing Society' ). The writ petition filed by Nizam and Ors. was in fact a letter petition which was registered as a public interest litigation (Writ Petition No. 332/90) whereas the writ petition filed by the petitioner-appellant was an off-shoot of the first writ petition. While in the writ petition filed by Nizam and Ors. , challenge was made to the allotment of a land earmarked as an open space in the lay out plan of a housing colony proposed by the Housing Society. Second writ petition was filed by the appellant herein with the prayer that the JDA be directed to handover possession of the land alloted to them and be restrained from allotting such land to any other person. Since the dispute pertains to the common piece of land, both the writ petitions were disposed of by the common judgment impugned herein.
(2.) THE learned Single formulated a question of general importance for adjudication of the dispute which for the facility of the reference is reproduced hereunder:- " Whether an open space/spaces reserved as per approved scheme under Rajasthan Urban Areas (Sub-Division, Reconstruction and Improvement of Plots) Rules, 1975 could be allotted by Jaipur Development Authority to a private person / body for a school. " The learned Single Judge by the impugned order ultimately held that the allotment of the land in dispute made by the JDA in favour of the appellant for setting up a school was illegal being null and void and therefore the JDA was further restrained from making allotment of the land in question to any private person or body in future. Though originally the judgment passed by the learned Single Judge was challenged by both, the appellant Modern Educational and Cultural Society and the Jaipur Development Authority by filing separate appeals but the JDA later decided to accept the judgment passed by the learned Single Judge and therefore withdrew the appeal. We are called upon to decide these two appeals filed against such common judgment deciding the two writ petitions referred to above. We have heard Shri Kamlakar Sharma, learned counsel for the appellant and Shri Sanjay Pareek, learned counsel for the Jaipur Development Authority. Shri Kamlakar Sharma, learned counsel for the appellant has at the outset argued that the learned Single Judge committed an error of law in entertaining the writ petition on the basis of a postcard sent by a person whose whereabouts were not known and entertaining such letter petitions ultimately have the effect of adjudicating rights of a person. Unless the person sending the letter himself comes to the Court, such letter petition cannot be treated as public interest litigation. He argued that this petition was not bonafide because the Housing Society had made an application to the Minister of Housing and Urban Development Department for allotment of the very same land for the purpose of constructing a community hall and swimming pool and the Minister passed the order for making such allotment in favour of the Society without knowing about the fact that the land had already been allotted to the appellant. When however the Minister came to know about the allotment made in favour of the appellant, the aforementioned order was cancelled. It was for this reason that the aforesaid public interest litigation was filed at the instance of the Housing Society. He argued that no element of public interest was involved in the present matter because establishment of a school could not in any manner act contrary to the public interest. On the contrary, setting up a school by itself is a public purpose. The petition could not be therefore treated as public interest litigation.
(3.) WHILE referring to the lay out plan as originally proposed by the Housing Society to the JDA as also the plan which was finally approved by the JDA, Shri Kamlakar Sharma argued that a perusal of the later plan would reveal that different five patches of the land were earmarked therein as facility areas without any specifications being made whether they shall be used as parks, gardens, lawns or children's play grounds etc. The land which was allotted to the appellant was also indicated only as a facility area. The impugned judgment however proceeds on the assumption that the land allotted to the appellant which was reserved as facility area was meant only for park, garden, lawn and children's play ground although there was no basis for such an assumption. In fact, four shops and thirteen plots were proposed over part of the land allotted to the appellant in the original lay out plan proposed by the Housing Society which is also indicative of the fact that the land was never meant to be reserved for public park, garden, lawn or play ground etc. Shri Kamlakar Sharma argued that the Jaipur Development Authority Act, 1982 (for short `the Act') nowhere specifically provides for the definition of facility area though open space and public park have been included in the definition of `amenities' as given in Section 2 (2) of the JDA Act, 1982. But the word `facility' has been used in the master plan which provides for the community facilities like educational, medical, recreational facilities etc. to be made available in various planning areas so as to achieve the object of the plan keeping in view the residential density, local character and future expansion. Educational facility being one of the facilities envisaged in the master plan of the Jaipur City, no restricted meaning can be given to the word `facility area'. In other words, Shri Kamlakar Sharma sought to argue that facility area does not necessarily always mean public park or children's play ground but it can also include schools as educational facility. Shri Kamlakar Sharma further argued that learned Single Judge has erred in holding that allotment of the disputed land in favour of the appellant had the effect of deviation from the plan and therefore such allotment could not be made unless the plan was revised under Rule 32 of the Rajasthan Urban Areas (Subdivision, Reconstitution and Improvements of Plots) Rules, 1975 (for short `the Rules of 1975' ). He argued that there was no question of revision of the approved plan for the simple reason that there was no deviation from the plan. While referring to Rule 13, 14 and 15 of the Rules of 1975, Shri Kamlakar Sharma argued that Rule 13 has provided for creating open spaces which are, as far as possible, to be uniformly located and provided but Rule 14 of the same Rules also provides for educational facilities such as nursery schools, primary schools and higher secondary schools. According to this rule, an area of approximately 180-240 sq. meters was required to be provided for setting up a nursery school to serve the population of 1500 person and an area of 360-480 sq. meters was to be provided for setting up a primary school to serve the population of 4000 persons. Size of a Secondary / Higher Secondary School for the population of around ten to twelve thousand persons has been indicated in the said rule as approximately 750 sq. meters. Rule 15 further provides that any other facility that may be deemed necessary in an area shall be adequately provided as may be directed by the Trust from time to time. Shri Kamlakar Sharma further argued that the learned Single Judge has erred in law in holding that area reserved for educational facility or any other facilities remains in the ownership of the developer. Once the lay out plan of the Housing Society is approved, the scheme has been formulated and the plots are subdivided, the areas of roads and facilities cease to be in the ownership of the developer and the development of such facility areas or roads then can be made only by the Jaipur Development Authority. He in this connection cited Rule 30 (2) of the Rules 1975 which inter alia provides that as soon the date of approval of the sub-division by the trust, ownership of roads, parks and open spaces vests in the Trust. It should be noted that the Rules of 1975 were framed when Urban Improvement Trust was responsible for planned and integrated development of Jaipur City which has now been replaced by the Jaipur Development Authority with the State Legislature enacting and enforcing Jaipur Development Authority Act, 1982. The Jaipur Development Authority has adopted the Rules of 1975 to be applied for its purposes. It is submitted that when the JDA has made the allotment and charged premium / price of the land from the public, there was no basis for the learned Single Judge concluding that the land was vested in the Housing Society. This finding of the learned Single Judge is contrary to the finding recorded by him elsewhere in the same impugned judgment where he held that after approval of the sub- division, the open lands and spaces vest in the JDA. The learned Single Judge further committed an error in distinguishing the lands reserved for Educational Facilities which were allotable and the lands which are dedicated to the public in general. According to Shri Kamlakar Sharma, no such distinction was permissible on true of interpretation of the Rules 1975 or the provisions of the Act. He further argued that the findings recorded by learned Single Judge that since there was already a school in the name of Prem Shanti Public School just opposite the land in question, therefore the allotment of the subject land to the appellant was not required to be made, amounted to taking an erroneous view of the matter. He argued that existence of a very small school, such as Prem Shanti Public School, would hardly be just and responsible cause for cancellation of the allotment of the land made in favour of the appellant. Once when it was held that due to sub-division of the land, the open space stood vested in the JDA, it had all the legal competence to make the allotment. The learned Single Judge has further committed an error of law by holding that the allotment of the land to the appellant is contrary to Article 14 of the Constitution of India. Allotment of the land to the appellant was purely an administrative action and no malafides were alleged. In most of the developed colonies of the City which have been either developed by the private housing societies or the JDA, the land for the schools have been allotted only in the facility areas. Instances of some such schools have been given to substantiate this. Learned Single Judge was not justified in holding that before making allotment of the disputed land to the appellant, an opportunity of hearing was required to be provided to the residents of the area and the developers of the colony. When the learned Single Judge himself held that the land upon subdivision stood vested in the JDA, there was no occasion for issuing any public notice and there was therefore also no question of violation of any of the principles of natural justice. The learned Single Judge was also not correct when he held that the allotment of the disputed plot to the appellant would be contrary to intention of the legislature to safeguard health, safety and general welfare of the people of the locality. Setting up an educational institution can hardly be hazardous to public health or safety. Lastly but alternatively, Shri Kamlakar Sharma argued that when the appellant was allotted the land in dispute it had deposited a sum of Rs. 4. 5 lacs in the year 1988 and even if the allotment of the subject land was held to be questionable, instead of directing the JDA to refund the amount, the learned Single Judge ought to have directed for allotment of alternate piece of land on the price prevalent in the year 1988. He therefore prayed that the special appeals be allowed and the impugned judgment passed by the learned Single Judge be set aside and the writ petition filed by the appellant be allowed in terms of the prayers contained therein and by restoring the allotment made in favour of the appellant, the JDA be directed to handover vacant possession of the land in dispute to the appellant. Although no one has appeared on behalf of the respondents Nizam and residents of Nu-Lite Colony who were original petitioners before the learned Single Judge, but Shri Sanjay Pareek, appearing on behalf of the Jaipur Development Authority which has now decided not to challenge the judgment of the learned Single Judge and therefore withdraw the appeal filed against that judgment, has in substance supported the judgment of learned Single Judge. Shri Sanjay Pareek has produced before us the relevant records of the JDA relating to the approval of the lay out plan submitted by the Housing Colony and allotment of the subject land in favour of the appellant. Shri Sanjay Pareek argued that the open space is defined in Rule 4 (4) of the Rules 1975 to mean a park, garden, lawn or any other form of open space which is intended to be used by the public. Shri Sanjay Pareek submitted that though the allotment of the subject land was originally made to the appellant by the JDA but in view of the fact that allotment of land was made in favour of the Prem Shanti School which was situated just in front of the land in dispute and keeping in view the large size of the plot, the JDA has now decided to accept the direction contained in the judgment of learned Single Judge that the land in dispute should now be retained only as open space meant for public park or garden. Shri Sanjay Pareek cited the judgment of this Court in Vaishali Nagar Vikas Samiti Vs. Superintendent of Police, Jaipur City & Ors. , S. B. Civil Writ Petition No. 6227/1992 decided on 9. 11. 1995 in which it was held that the purpose which is useful to public or any class or section of public is a public purpose and therefore setting up of a police station is also a public purpose because it works for maintenance of law and order and safety of the people which is so very essential in public interest. Referring to the records of the relevant time, Shri Sanjay Pareek submits that the lay out plan originally submitted by the Society was approved with certain modifications. The originally proposed facility area in the plan was not considered adequate and therefore the Building Plan Committee upon hearing the members of the Housing Society and all concerned did not consider the open land admeasuring 2500 sq. yards which forms part of the disputed land as sufficient for park and therefore the adjoining land on which certain shops and residential plots were proposed to be set up was also included to be made part of open space / facility area and it was with this and few other modifications that the plan was approved. Shri Sanjay Pareek argued that another piece of land has since been allotted to the appellant in Padmavati Colony on the basis of undertaking given by its Secretary that the appellant does not have any other allotment in its name on concessional price being charged from them and that the allotment of the disputed land made in its favour had been set aside by this Court by the impugned judgment. According to Shri Sanjay Pareek, when another piece of land has been allotted to the appellant on account of quashment of the allotment of the disputed land, the present appeal should be dismissed as having become infructuous because the purpose of appellant has already been sub-served with allotment of another land in lieu of the disputed land. He therefore prayed that the appeal be dismissed. Since this was a public interest litigation on the basis of a letter petition and the learned Single Judge had the benefit of hearing arguments of amicus curiae appointed by the Court for residents of the locality, it would be to our advantage if we notice those arguments in our judgment too because we do not have the advantage of hearing any one on behalf of residents of that locality who perhaps might have by now lost interest in the matter because almost fourteen years have gone by since the impugned judgment was passed and seventeen years when the said public interest litigation was entertained. On perusal of the impugned judgment, we find that the case which was set up on behalf of the writ petitioners before the learned Single Judge was that the subject land could not be allotted by the JDA to a private person or a private body for setting up a school. It was argued that already towards the north of the disputed land their exist a public school in the name of Prem Shanti Public School which caters to the needs of the children of that area. The land in question was left as an open space meant only for a park or to be used for the purpose of national festivals and religious functions held by residents of the locality. Action of the JDA in making the impugned allotment to the appellant was malafide besides being without jurisdiction. This amounted to depriving the residents of the locality from the benefits of an open space. It was also contended that this Court had on 1. 6. 89 passed the stay order restraining the JDA from making the allotment of the disputed land, yet the JDA proceeded to make such allotment to the appellant without seeking either vacation or modification of the said stay order. It was argued that when the open space was intended to be used for public at large, it vests in the public and not in the JDA, which was acting only as a custodian of such land on behalf of the pubic to look after and maintain the same. Such open land was meant for being used by the public as a park, garden or play ground by children of the area. The JDA committed illegality in changing the use of the land by making its allotment to a private person / body for construction of a school. Residents of the locality had right to use, protect and preserve an open space meant for public park, garden and lawn for ventilation and recreation activities. Allotment of the subject land to the school was made against wishes and requirements of the residents of the locality. Such allotment was made even without asserting the wishes of the Housing Society. ;