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CASE NO.: Appeal (civil)  176 of 2007

PETITIONER: STATE OF RAJASTHAN & ANR.

RESPONDENT: H.V. HOTELS PVT. LTD. & ANR

DATE OF JUDGMENT: 12/01/2007

BENCH: H.K. SEMA & P.K. BALASUBRAMANYAN

JUDGMENT:

JUDGMENT (Arising out of SLP(C) No. 12611/2006)

 P.K. BALASUBRAMANYAN, J

1.              Leave granted.

2.              The Government of Rajasthan issued a public  notice advertising sale by auction of a plot of land  measuring 10,490 square metres. The purchaser was to  use the plot for construction of a hotel.  The auction took  place on 14.2.1996.   The first respondent, acting through  its Director, the second Respondent, entered the highest  bid.   The said bid was accepted.   The bid amount was  deposited by the respondent on 4.5.1996.  The State of  Rajasthan \026 the appellant herein, executed a sale deed in  favour of the second respondent in his capacity as the  Director of the first respondent on 26.3.1997.  The sale  deed stipulated that out of the total extent, an extent of  1,510 square metres will be surrendered by the purchaser  free of cost for widening of an existing road and that the  purchaser will be given the benefit of the floor area ratio  calculated on the basis of the original plot size of 10,490  square metres.  The parameters of construction were set  out and the floor area ratio was given as 1.0.  There was  also a stipulation that consequent upon any change in  Building bye-laws framed by the local authorities  including the Jaipur Development Authority, if the buyer  got additional floor area ratio or any relaxation, the State  would have no objection, so long as the same are  permitted by the bye-laws prevailing from time to time.  3.             Possession was delivered to the purchaser on  26.7.2000.   According to the purchaser, there was a  shortage of 263 square metres in the area.   The  purchaser, therefore, applied to the Government for  redressal of his grievance regarding the shortage in extent.   On 22.3.2000, the Government agreed to adjust the said  extent of 263 square metres as against 1,510 square  metres the purchaser had to surrender free of charge for  the widening of the road.   On 17.8.2001, the purchaser  sought permission to change the user of the land and for  permission to construct a multi purpose commercial  complex and multi complex instead of a hotel.   On  27.11.2001, permission for such changed user was given

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by the State.

4.              Meanwhile on 1.2.2001, new Building bye-laws  were promulgated by the Jaipur Development Authority.    The bye-laws of 2000 thus promulgated permitted a larger  floor area ratio than the one prevalent at the time of  auction in which the respondent bid.  The purchaser  applied on 27.4.2004 for increasing the floor area ratio so  as to enable him to have the floor area ratio of 1.75  instead of 1.0.   The purchaser relied upon the clause in  the sale deed that the seller would have no objection if the  buyer gets additional floor area ratio or any relaxation if so  permitted by bye-laws as prevailing from time to time and  the fact that as per the bye-laws of 2000 the permissible  floor area ratio was 1.75.   The State rejected the claim of  the purchaser relying upon by law 19.8 of the Jaipur  Development Authority (Jaipur Region) Building Bye-Laws  of 2000.  Feeling aggrieved, the purchaser approached the  High Court with a writ petition, CWP No.5617 of 2004.  In  that writ petition, the purchaser impleaded only the State  of Rajasthan and the Secretary (Estate), General  Administration Department of the Government of  Rajasthan.  The purchaser did not implead the Jaipur  Development Authority which was the sanctioning  authority, concerned with the sanctioning of the floor area  ratio.

5.              The State of Rajasthan and the Secretary  (Estate), opposed the writ petition.  It was pointed out that  the relief prayed for in the writ petition could not be  granted without the Jaipur Development Authority being  on the party array and that even otherwise, the claim of  the purchaser was unsustainable for the reason that in  the building bye-laws of 2000 there was a specific  provision confining all the parameters of construction  including the floor area ratio, to the one as specified at the  time of auction and the floor area ratio specified in the  case of the writ petitioner-purchaser, was only 1.0 and the  same could not be altered as claimed by the purchaser.    

6.              The learned Single Judge brushed aside the  objection that in the absence of the Jaipur Development  Authority from the party array, the relief sought for could  not be granted, by stating that the Jaipur Development  Authority was not a necessary party because the order  impugned in the writ petition was one passed by the State  and not by the Jaipur Development Authority and since  no relief was being claimed against the Jaipur  Development Authority.   The learned judge further held  that the relevant date, in the light of the decisions of the  Supreme Court, for considering the parameters was the  date on which the construction plan was being sanctioned  by the sanctioning authority and consequently, the  Building bye-laws as on the date of the sanction, would  prevail and the purchaser was entitled to the floor area  ratio as per the bye-laws operative at that time.  The  learned Judge ended up by directing the State and the  Secretary (Estate) to grant the benefit of additional floor  area ratio of 1.75 to the purchaser forthwith, overlooking  that sanction has to be given by the Jaipur Development  Authority and the said authority was not on the array of  parties.  The State and the Secretary (Estate), filed an  appeal before the Division Bench.   It was pointed out that  the Single Judge had ignored the effect of bye-law 19.8 of  the bye-laws and had mis-directed himself in allowing the

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writ petition and in issuing a writ of mandamus even  without the Jaipur Development Authority being on the  array of parties.  The Division Bench, though it noticed  bye-law 19.8 of the bye-laws, proceeded to hold that the  State could not rely on the same for rejecting the claim of  the purchaser based on the new bye-laws.   It proceeded  to say that the Jaipur Development Authority was at best  a proper party and could not be held to be a necessary  party.  Thus, the Division Bench affirmed the decision of  the learned Single Judge and the dismissed the appeal.   The decision, thus, rendered is challenged by the State of  Rajasthan and the Secretary (Estate) in this appeal.

7.              Learned senior counsel for the appellants  contended that the learned Single Judge and the Division  Bench have completely misled themselves into an  erroneous line of reasoning and conclusion.   He  submitted that assuming that bye-laws of 2000 has to be  applied, the court could not ignore bye-law 19.8 of the  bye-laws, pinning down the parameters of construction in  cases of auction held, to the respective dates of auction  and issue a direction for permitting floor area ratio as per  the amended bye-laws.   Counsel also pointed out that  bye-law 19.5 relied on by the Division Bench was only a  provision permitting relaxation and the same could not  have been used to nullify the effect of bye-law 19.8.  He  also submitted that the reasoning of the High Court was  totally untenable.  He further submitted that the  mandamus issued had the effect of preventing the Jaipur  Development Authority from exercising its power of  sanctioning the plan adhering to the requisite parameters  and such a direction without the Jaipur Development  Authority on the array of parties, was clearly  unsustainable since it would amount to fettering the  powers of the authority to pass appropriate orders under  the Building bye-laws.  He further urged that the  judgment of the High Court calls for interference by this  Court.   The writ petition filed by the respondent was  liable to be dismissed.

8.              Learned counsel for the respondents, on the  other hand, contended that on the terms of the relevant  clause in the sale deed and the law laid down by this  Court that the relevant date is the date of sanctioning the  building plan, the High Court was justified in issuing a  direction as prayed for by the respondents.  He further  submitted that the order now passed was an equitable one  and there was no reason for this Court to interfere with  the same.  He emphasized that under bye-law 19.5 read  with the relevant clause in the sale deed, the State could  not take any objection to the fixation of the floor area ratio  as 1.75. 9.              It is clear that the auction took place on  14.2.1996.  The bye-laws of 2000 came into force only on  1.2.2001.   There is no case that the said bye-laws had  retrospective operation.   The sale deed stipulated the floor  area ratio as 1.0.  This was in terms of the bye-laws then  existing.   However, the sale deed further stated that if  consequent upon any changes in Building bye-laws  framed by local authorities including the Jaipur  Development Authority, if the buyer gets additional floor  area ratio or any relaxation, the State shall not have the  objection whatsoever so long as they are permitted by the  bye-laws as prevailing from time to time.  This, at best,  would mean that the bye-laws of 2000 which were in

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operation when the purchaser applied for an approval of  the plan or fixation of parameters, might be applicable  notwithstanding the parameters specifically stipulated in  the sale deed executed in favour of the purchaser.  But  then, the court has necessarily to consider the effect of all  the relevant clauses in the new bye-laws.   It is not open to  it to ignore one clause and place undue reliance on  another clause.  It may be true that the Building Bye-Laws  of 2000 fixed a floor area ratio as 1.75 in general, but the  question is whether the same could be applied in the case  of the present purchaser ignoring bye-law 19.8 of the bye- laws.   Bye-law 19.8 reads: "\005.. for the plots sold in the auction,  parameters will remain the same as  specified at the time of auction."

10.             Here, obviously, the parameters at the time of  the auction, fixed the floor area ratio as 1.0.   This is also  emphasized by the sale deed in favour of the purchaser.    The effect of bye-law 19.8 is clearly that the relevant date  for fixing the parameters will be the date of auction,  notwithstanding that the new bye-laws might have  provided for a higher floor area ratio.    The effect of bye- law 19.8 cannot get obliterated by the principle recognized  by this Court that normally the relevant date is the date of  sanctioning of the plan.   Of course, going by that ratio,  the bye-laws applicable may be the bye-laws of 2000.   The  floor area ratio may be 1.75 but for the specific provision  in the very bye-laws relied on by the purchaser, that in  cases of plots sold by auction, the parameters will remain  the same as specified at the time of auction.   The  decisions of this Court have not laid down that such a  clause cannot have operation or that such a clause cannot  prevail against a general principle that the relevant date is  the date of grant of sanction.  Therefore, nothing turns on  the decisions of this Court relied on by the High Court.   The decisions do not enable the purchaser or the court to  ignore a relevant and vital clause of the bye-laws.   All that  the decisions indicate is that the bye-laws on the date of  sanction would apply.   If the bye-laws are so applied, bye- law 19.8 will have equal operation and on a plain  understanding of bye-law 19.8, it would have to be held  that the purchaser is entitled to the floor area ratio  prevalent only as at the time of the auction.  This is also  the effect of bye-law 19.5.  In fact, the Division Bench itself  has noticed that on a plain reading of the bye-laws this  was the position, but has proceeded to overrule the  contention of the State on the basis that the State cannot  rely on a part of the parameters and reject the other part.   It is not very clear, what exactly is meant by the High  Court by this observation.

11.             Bye-law 19.5 re-emphasizes that the permission  for construction of the plots sold in auction before the  application of the rules, will be under the conditions  specified at the time of the auction.  It further provides  that if necessary, the conditions will be relaxed in the  building to be constructed.  The sale deed recites that if  parameters are relaxed as per the then existing bye-laws,  the State will have no objection.  This does not enable the  High Court to ignore the effect of bye-law 19.8 or to nullify  the effect of the earlier part of bye-law 19.5 itself and to  say that since there is a power to relax, and the State  cannot have objection, the whole parameters could be  changed notwithstanding the relevant provisions in that

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behalf.  The reasoning adopted by the High Court is,  therefore, found to be unsustainable. 12.             The High Court could have interfered with the  order of the Government refusing the request of the  purchaser, only if that order was vitiated by an error of  law apparent on the face of the record.  As we see it, there  is no error in the impugned order of the Government.   Even going by the reasoning adopted by the Division  Bench, it could not be said that the Division Bench was  able to find a ground for the issue of a writ of certiorari to  demolish the order of the Government.   

13.             The purchaser bid the property in auction  knowing fully well, the conditions of the auction with a  view to commercially exploit the site. He was aware of the  parameters.  He was a businessman, an adept in his field.    It is not open to the purchaser to get out of the obligations  incurred by him by relying on a vague plea of estoppel.   The recital in the sale deed does not estop the State from  pointing to bye-law 19.8 and taking up the position that  going thereby, the purchaser has to fulfill the parameters  available at the time of the auction.  No principle of  estoppel can prevent the State from adopting that stand.   We find no merit in the plea of estoppel sought to be  raised.  There is also no representation in the sale deed  acted upon to his detriment by the purchaser on which a  plea of estoppel can be founded.   14.             The High Court has failed to remember that the  power of exemption is not to be exercised freely.   The  power to relax a Building Rule, Regulation or requirement  is an exception to the rule and it is to be used with  caution and to justify or condone minimum bona fide  violations or deviations.   The purchaser bid at the auction  with eyes open and with the knowledge that the floor area  ratio, as one of the parameters applicable, was 1.0 at the  relevant time.  The purchaser in fact was able to get the  land user changed, notwithstanding the original  stipulation.  It is not necessary now to consider whether it  was proper to permit such change of user.  But, merely  because subsequently the bye-laws have been amended, it  does not mean that the parameters should be relaxed in  favour of the purchaser.   That would be clearly an  erroneous approach to the question of relaxation and  assumption of such a power would mean the nullification  of Building rules themselves and the object sought to be  achieved by the Building rules and the need to have  planned development of cities and towns in the interests  of posterity.  Therefore, in our view, there is no merit in  the plea based on the power to relax contained in the  amended bye-laws. 15.             We do not see anything inequitable in the  purchaser being pinned down to his obligation under the  sale by auction.  Building Regulations are in public  interest.  Courts have a duty to protect public interest  particularly when they do not interfere with any of the  fundamental rights of the purchaser.  The plea based on  alleged equity cannot be accepted.  16.             The High Court was in error in holding that in  the nature of the reliefs claimed by the writ petitioner, the  Jaipur Development Authority was not a necessary party  but was only a proper party.   It failed to notice that the  effect of the direction issued by it, is to fetter the statutory  power granted to the Jaipur Development Authority and to  compel it to sanction a particular floor area ratio, without  enabling it to examine whether such a claim of the

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purchaser should be permitted or not in the light of the  bye-laws of 2000 and the relevant clauses in the sale deed  in favour of the writ petitioner.   But, in the view we have  taken on the merits of the claim of the respondents, it is  not necessary to further pursue this aspect of non-joinder. 17.             After we have reserved judgment, the learned  counsel for the respondents submitted, what he called,  short submissions in writing in which an attempt is seen  to be made to raise contentions based on Section 54 of the  Jaipur Development Authority Act and Section 102A of the  Rajasthan Land Revenue Act.  We must say that these  were contentions that were never put forward either in the  Writ Petition or before us at the time of arguments.   Moreover, the respondents, who are the Writ Petitioners,  have not produced the materials with the Writ Petition or  here, to establish that the provisions relied on by them in  the short submissions are really attracted to the case.  What is the nature of the land and what are the terms of  the auction have not been disclosed by the respondents  either in the Writ Petition or before us.  The recital in the  sale deed relied on, does not enable us to uphold this plea  or to find any substance in it.  The new plea sought to be  put forward in the written submissions is a plea which  has to be established on the facts to be proved and in the  absence of relevant pleadings cannot be upheld.  This  question cannot also be decided in the absence of the  Jaipur Development Authority. We therefore do not find  any merit in the new contention sought to be put forward  after the hearing was concluded.  We overrule the said  contention.  18.             For the reasons stated above, we allow this  appeal and setting aside the decisions of the Division  Bench and that of the Single Judge, dismiss the writ  petition filed by the respondents.   However, in the  circumstances, we direct the parties to suffer their  respective costs through out.