D. L. MEHTA, J. - (1.) THIS revision petition has been preferred by the petitioner against the order passed by the learned Add!. Distt. Judge, Jaipur City, No. 3, Jaipur on 20th March, 1987, whereby the order passed by the learned Munsiff Magistrate (East), Jaipur City, Jaipur, dated 24th April, 1986, was set aside.
(2.) PLAINTIFF petitioner Central Academy Education Society, is occupying the premises as a tenant and some construction on the premises let-out was carried-out by the society in the year 1976. J. D. A. intended to demolish the construction so made PLAINTIFF petitioner moved to the State "government and obtained stay-order on 24th July, 1976 The State Government, directed that no demolition should be carried-out. It is further alleged by the J. D. A. that some additional construction was made in the year 1983 by the occupier tenant again. The stay order which was granted by the State Government on 24. 7. 1976, was vacated on 11th May, 1984. It is further alleged that the plaintiff petitioner addressed two letters to the landlord admitting the position of the new construction. Both these letters came into the possession of the J. D. A. and J. D. A. wants to rely on both these letters. Mr. Rastogi, learned counsel for the petitioner submits that the delivery of these letters to the J. D. A. is indicative of the fact that there is a collusion between the landlord and the J. D. A. It will not be out of place here to mention that the plaintiff petitioner instituted a suit on 18th July, 1983, obtained the exparte stay-order on 22. 7. 1983. On 26. 7. 1983, J. D. A. in exercise of the powers conferred under S. 32 of the J. D. A. Act, 1982, here-in-after referred to as The Act') issued a notice for the demolition of the unauthorised construction made. Landlord submitted a reply and agreed that the contention of the J. D. A. that unauthorised constructions were made without permission by the tenant occupier should be demolished. A pertinent question was asked by the court whether a notice to the occupier tenant under S. 32, of the Act, for the demolition of the construction so made was necessary or not. On the last day after asking at length both the parties prayed for adjournment to study on this point. Mr. Singhvi, learned counsel for the respondent has referred the provisions of S. 2e of the Act. S. 2e defines development and includes the carrying out of building, engineering, mining or other operations in or over, or under any land. The constructions carried-out by the occupier tenant definitely falls within the purview of the developments and there is no dispute between the parties on this point. Section 2-L defines occupier as under:- "an owner or any person who but for a contract express or implied, is paying or is liable to pay rent to the owner of any building or land. " Section 2-M defines owner as under:- S. 2-M. " Owner includes the person who, but for a contract, express or implied, for the time being is receiving or is entitled to receive whether on his own account or as agent, trustee, guardian, manager or receiver for another person or for any religious or charitable institution, the rent or profits of any building or land. " The definition of the word, 'owner' needs interpretation for the purpose of this Act, by the court. Different meaning and conotations can be given to the meaning of the word 'owner' for different purposes under different laws. Taking note of the context in which the word 'owner' has been used. The word 'owner' maybe absolute owner, sometimes a person in possession may be equivated with owner for a limited purpose. A person having a limited right may fail sometimes within the purview of word 'owner'. As far as clause (m) of S. 2 is concerned, it enumerates the persons who can be included as an owner. It provides that any person, but for a contract, express or implied, for the time being is receiving or is entitled to receive whether on his own account or as agent, trustee, guardian, manager or receiver of any other person. Thus, it is not necessary to be an absolute owner as far as the word 'owner' as defined in S. 2-M is concerned. A landlord may become the owner if he is receiving a rent though he is not an absolute owner. For illustration we can say that usufructuary mortgages can be said to be an owner under S. 2-M if he lets out the property or uses it for his own purpose. Sometimes a tresspasser who lets out the property though he is not having ownership right in it may become the owner for a limited purpose, because he has a right to realise the rent from a person to whom he has let-out. He has further right that he shall not be dispossessed without a due process of law. So the word 'owner' as used in S. 2-M of the Act, 1982, is not limited to the absolute owner but includes any person who may be absolute owner any person who is entitled to receive the rent or the agent or the trustee, of such person may be the owner. Tenant may become owner in case of having the right of sub-letting under S. 2-M of the Act. Mr. Singhvi, learned counsel for the respondent has further invited my attention to the provisions of S. 17 of Act, 1982, it provides that no person shall under-take any development without the permission of the J. D. A. It further provides that in case any person or authority does anything contrary to the decision or permission, the authority shall have power to pull-down, demolish or remove any development undertaken contrary to such decision. Mr. Singhvi, learned counsel for the respondent has further invited my attention to Chapter-V relating to master plan and some development plans. Section 27, of the Act, provides that any master plan or zonal plan prepared under the provisions of any other law in force prior to the commencement of this Act, shall be deemed to have been prepared under the provisions of this Act. Mr. Singhvi, wants to make out a case that the master plan prepared under the U. I. T. Act, should be deemed to have been prepared under the provision of S. 27 of the Act. As far as this argument is concerned, there may not be two opinions on this point. Mr. Singhvi, learned counsel for the respondent has further invited my attention to S. 29. Clause (3) of S. 29 provides that no person shall institute or change the use of any land or carry out any development of land without the permission in writing of the Authority. He has further invited my attention at the provisions of S. 31 clause (1) which reads as under :- S. 31 (1) : Penalty for unauthorised development or for use otherwise there is conformity with the plan:- "any person who whether at his own instance or at the instance of any other person commences, undertakes or carries out development or institutes, or change the use of any land; (a) without permission required under this Act, or (b) which is not in accordance with any permission granted in contravention of any condition subject to which such permission has been granted or; (a) after the permission for development has been duly revoked; or (b) in contravention of any permission which has been duly modified; shall on commission, he punished with fine which may extend to five thousand rupees, and in the case of a continuing offence with a further fine which may extend to one hundred rupees for every day during which the offence continues after conviction for the first commission of the offence. " Under S. 31 of the Act, the word 'any person' has been used, it includes the owner, occupier or sometimes also a person who is a tress-passer. It fur her provides that any person who carries-out or undertakes development or institutes or change the use of any land without permission required under the Act, shall be punished in accordance with the provisions of S. 31 of the Act, Mr. Singhvi, further emphasises on the 3 words distinctively used in S. 31 namely, (i) development (ii) institutes (iii) change of the use of any land.
(3.) SECTION 32 of the Act, provides about the removal of unauthorised development which reads as under:- S. 32: Power to require removal of unauthorised development:- (1) Where any development of land has been carried out as indicated in subsection (1) of S. 31, the authority may, subject to the provisions of this section within three years of such development, serve on the owner a notice requiring him, within such period, being not exceeding one month, as may be specified therein after the service of the notice, to take such steps as may be specified in the notice:- (a) in cases specified in clause (a) or (c) of sub-section 31 to restore the land its condition existing before the said development took-place; (b) in cases specified in clause (b) or (d) of sub-section (1) of SECTION 31 to secure compliance with the conditions or with the permission as modified; Provided that, where the notice requires the discontinuance of any use of land the Authority shall serve a notice on the occupier also. " Under the proviso it provides that incase of dis-continuance of any use of land, the Authority shall serve a notice to the occupier also, Mr. Singhvi, learned counsel for the non-petitioner submits that notice to the owner is sufficient and notice to the occupier is not necessary at all. He emphasis on the word 'development or institutes or changes' used of any land as used in S. 31 of the Act. He submits that the word 'change' as used only the means that if the land is used for any other purpose other than the purpose prescribed under the master-plan then the word 'change' in use of land is attracted. He submits that the construction without permission is a development and does not fall within the purview of the word 'change' of any use of land. He submits that under S. 32 clause (1), only the word 'development' has been used. Sec. which provides that in case of such developments, the J. D. A. shall serve a notice only to the owner. It does not require that the notice should be served on the occupier. He further submits that in the proviso only it has been provided that the notice shall be served on the occupier also. Thus, he distinguished S. 32 (1) with a proviso and submits that this is a case of development and not a case of change of use of land as such it is not necessary to serve of use of land as such. After the case of Menka Gandhi, the law is well settled that the principles of natural justice shall be followed. It further provides that if the law does not prohibit either directly or implicates then every authority including the tribunal will follow the principles of natural justice. S. 32 of the Act, does not prohibit directly or by implication the following principles of natural justice. In the instant case, the part of construction was constructed in the year 1976. In such circumstances, an occupier who has constructed in the year 1976 cannot be thrown out and should not be thrown-out without being heard. It is the simple requirement of the law that the principle of natural justice should be followed. Even according to the provisions of law, the J. D. A. should have followed the principle of natural justice and should have issued a notice to the occupier in the instant case. The occupier was an aggrieved party against the demolition. He obtained the stay-order in the year 1976 under the U. I. T. Act, from the State Govt. The J. D. A. was not at all in-existence at that time. The stay-order was vacated in the year 1984. Thus, the occupier was the main contestant and a notice under S. 32 of the Act, was necessary even under ordinary circumstances. ;