VERMA, J. - (1.) THE Jaipur Development Authority (hereinafter called as `the JDA') had decided to sell by way of auction, Khasra No. 102 situated at village Kukas, Tehsil Amer, District Jaipur measuring 2 Bighas 15 Biswas i. e. 1. 718 acres. On 8. 8. 1996 the intending bidders were required to deposit earnest money of Rs. 20,000/-and the highest bidder was required to deposit 5% of the bid amount on the site and 10% were required to be deposited within 24 hours. Remaining 85% was to be deposited within 30 days.
(2.) AS per Annexure 1 the site was reserved for hotel. The petitioner was the highest bidder of a bid of Rs. 17,21,000/-per Bigha. The total bid amount was Rs. 47,32,750/ -. The petitioner deposited Rs. 2,37,000/-at the spot, being 5% of the bid amount, and remaining amount of Rs. 4,73,000/-was deposited as per the requirement on 9. 8. 1996. A total amount of Rs. 7,10,000/-stood deposited. The bid was accepted and confirmed in favour of the petitioner and he was asked to deposit the balance amount of Rs. 40,44,250/ -. A site plan was asked for by the petitioner to know the approach at the site. It is stated that because of the reason that the plot in question was outside the sanctioned scheme and site was sold for a hotel purpose, it is necessary that the minimum development plan of the area should have been prepared to enable the petitioner to approach the site by way of road in addition to other development works like provisions of supply of water, electricity, sewerage etc. as to enable the petitioner to construct and complete the building within two years as per the terms and conditions. The petitioner made representations vide Annexures-7 & 8. It is stated that the assurance was given about providing the minimum amenities and at the asking of the department the petitioner was compelled to write Annexure-9 which was on the assurance to the effect that it was otherwise the duty of the JDA to provide required minimum amenities provided under the rules and, therefore, there was hardly any necessity to bring any controversy on the record, however, the petitioner was lateron informed vide order dated 28. 9. 1996 Annexure-10 to the effect that no assurance was ever given to the petitioner of providing any approach road and, therefore, the petitioner was not only asked to deposit the balance amount but also complete the construction as well as per the plan. It is the case of the petitioner that as per the map, the site is situated far away from any of the road or high way. For constructing Five Star Hotel or any hotel, it is not possible to undertake any construction until and unless there is a road provided to the site and that road must be provided by the JDA as per the plan with the minimum requirement of the width and the quality of the road which are to be completed by the JDA. It is alleged that not only approach road and other amenities have been denied, but the petitioner had been burdened with the further interest on un-paid amount. It is stated that admittedly the provisions of the Rajasthan Urban Improvement Trust (Disposal of Urban Land) Rules, 1974 (hereinafter called as `the Rules') were applicable and were to be adhered to and thus the plea of the respondent-JDA to the effect that the plot was sold on `as it was and where it was' basis, has no relevancy so far the amenities are concerned. The petitioner wants to invoke the provisions of R. 16 of the Rules. It is stated by the petitioner that in regard to the auction of other hotels, the JDA had been invariably providing the roads in the plan. It is the case of the petitioner that when the plots are sold, the prices are fixed after taking into consideration of the development of the area. The petitioner has challenged the action of the respondents in forfeiting the amount of Rs. 7,10,000/-with a direction that the JDA be directed to abide by the rules. Writ of mandamus be issued to the respondents to provide the development plan by showing the approach road and also the other amenities like water, electricity etc. and the impugned orders be quashed. Reply has been filed. It is stated that because of the reason that the remaining amount had not been deposited, therefore, the bid itself was cancelled as per the condition No. 3 of the terms and conditions of the auction and amount of 15% of the bid money deposited by the petitioner are to be forfeited. The facts as stated are admitted in regard to holding of the auction and depositing of the amount of 15% of the bid money. It is stated that the auction of the site in question was made for construction of a hotel of the height of 30 meters which was reserved for hotel site on the basis of the site being `as it was and where it was' as per Annexure-1. The liability to provide approach road or to give any other amenities is vehemently denied. It is further submitted that u/s. 54 of the JDA Act, the JDA is authorised to sell the property even under un-developed conditions. In regard to the discriminatory treatment as per the allegation in para 13-A of the amended writ petition. It has been stated that it is upto the JDA to provide approach road to the hotel or not and in regard to the case of providing amenities in other hotels, it is stated that it does not amount to any discrimination. Liability is not accepted by the respondents. This Court had directed the authorities of the JDA to file an affidavit in regard to road. One Shri Alok Mathur, an officer of the JDA had filed an affidavit to the effect that there was some Kaccha track leading upto Khasra Nos. 102 & 114 and was `l' shaped. In Khasra No. 114 there was a temple and in the revenue record Khasra No. 114 is shown as Gair Mumkin Mandir Sivai Chak Lagani. For the reasons according to said Shri Alok Mathur number of worshipers come to the temple, therefore, they use the track. It was stated that this land in dispute can be reached through this Kachha track upto the temple. The affidavit sworn on 15. 5. 1997 which is on record, was very vague and, therefore, this Court had thought it fit to call for the report from the Tehsildar vide its order dated 8. 1. 1998 on the exact position of the situation of the site and whether any Kaccha or Pacca track was connecting the site. The following points were referred to the Tehsildar:- " (i) Is there any Kaccha path connecting Khasra No. 102 situated in village Kukas Tehsil Amer? (ii) If there is any such Kaccha path, whether Kaccha path is a public path or private path? (iii) Whether there is any other public path meant for public connecting from National High Way to Khasra No. 102? (iv) If there is any such path, the width, length and the exact situation of the path. If there is any path, a map right from the National High Way to such Khasra Number of such path will also be attached. " The Tehsildar has sent his inspection report with forwarding letter dated 31. 1. 1998 along with the map which has been placed on record and it had been specifically stated by the Tehsildar that there is no road or Kaccha path provided or ear-marked in the revenue record. However, there are two Kaccha mud paths connecting the boundaries of the site of the Khasra number in question which is at the height of 20 ft. and goes to the boundary, but it is not a public path. However, it has been stated in the report that to approach the boundary of Khasra No. 102 at the site there is no public path at all. The revenue map of Khasra number in question 102 had also been attached. From the National High Way No. 8 there is no road whatsoever to that Khasra number. From the map it is clear that the Khasra number is not connected with any kaccha or pacca road or any Public path. In the auction conditions attached with the writ petition and condition No. 4, it is mentioned that the site in question shall be used only for hotel purposes and shall not be used for any other purposes. It is also mentioned in condition No. 9 that the site shall be sold on the basis `as it was and where it was' on the lease for 99 years. Condition No. 10 prescribes the parameters of the building. The covered area is mentioned at 35%, the maximum height has been mentioned as 30 meters. FAR is Rs. 2/ -. In condition No. 11 the urban Jamabandi annual fee has been fixed as Rs. 6. 8 annually per meter, with a condition that after 15 years this can be enhanced or changed, however, the maximum enhancement could be upto 25% of the above mentioned amount. Under Condition Nos. 13 and 14 hotel is to be constructed as per map approved by the JDA. As per condition No. 15 the hotel is to be constructed within two years of the delivery of the possession failing which whole of the amount deposited shall stand forfeited. Condition No. 16 prescribes that the construction is to be made as per the rules and regulations of the JDA and the rules and regulations shall be binding. Condition No. 17 prescribes the binding nature of the Rajasthan Urban Improvement Trust (Disposal of Urban Land) Rules, 1974 as amended from time to time.
(3.) AS per Annexure-1 the auction notice, it has been stated that the conditions of the auction shall be announced at the spot, meaning thereby that the authorities concerned might have announced the conditions of auction not by way of any advance notice, but at the spot. From the above statement of facts, it is clear that; (1) Khasra No. 102 situated at village Kukas is sold at the rate of 17,21,000/-per bigha. (2) The site is reserved only for hotel. (3) The covered area permissible is 35% i. e. the bidder is bound to leave 65% of the area open for parking, parks, swimming pools etc. . (4) The height of the hotel has been mentioned as 30 meters to the maximum. (5) 15% amount i. e. Rs. 7,10,000/-was to be deposited within 24 hours, the remaining amount was to be deposited within one month. (6) The construction was to be made within two years and if not made, the amount deposited stood forfeited. (7) The parties are governed by the rules and regulations of the JDA as amended from time to time. (8) The land is situated in village Kukas which falls under the JDA regional plan as per Schedule-I at entry No. 289. (9) There is no road available to approach the site nor there is any approach road. (10) There is no provision of electricity or water or the amenities -nor there is any sewerage system provided. (11) The JDA refused to accept the liability of providing the road, water, sewerage, electricity etc. or to assist in this matter in any manner for the reason that the hotel site was sold on the basis `as it was and where it was'. From the above points raised, Court is to determine whether it is possible to undertake any construction whatsoever in the circumstances narrated above. It cannot be denied that the construction, that too, of Five Star Hotel shall involve carrying of huge construction material including the Earth, stone, marble, iron, machinery and other misc. articles. How they are to be carried on the plot is only left to imaginations. It can also not be denied that for the purpose of construction, there is requirement of electricity and heavy quantity of water. It is not denied that the establishment of the hotels and providing of sites for such hotels is one of the functions of the JDA under the disposal rules or under the JDA Act or the regulations. It is also not denied that the JDA before auctioning any site for hotel in Jaipur, makes arrangements for the basic amenities and only then the site is sold as is clear from the averments made in para 13-A (map) of another hotel in Jaipur attaching Annexure-10-A. Can it be said that in the circumstances as created or existing, could any bidder really undertake the construction of a Five Star Hotel; obviously not. No development plan has been made available as according to the JDA, the site which was auctioned as it was and therefore there was no question of any development having been prepared for the area as per sanction of the JDA. ;