of Rajasthan & Anr Vs. H.V. Hotels Pvt. Ltd. & Anr  Insc 37 (12 January
Sema & P.K. Balasubramanyan (Arising out of Slp(C) No. 12611/2006) P.K.
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 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.
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
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 by the State.
1.2.2001, new Building bye-laws were promulgated by the Jaipur Development
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.
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.
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 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.
decision, thus, rendered is challenged by the State of Rajasthan and the Secretary (Estate) in this
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.
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.
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 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:
for the plots sold in the auction, parameters will remain the same as specified
at the time of auction."
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.
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.
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.
not very clear, what exactly is meant by the High Court by this observation.
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
behalf. The reasoning adopted by the High Court is, therefore, found to be
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.
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.
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.
not open to the purchaser to get out of the obligations incurred by him by
relying on a vague plea of estoppel.
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.
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.
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.
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
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 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.
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.
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.
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.
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.