Urban Improvement Trust Act, 1974
Urban Areas (Sub-Division, Reconstruction and Improvement of Plots) Rules, 1975
Section 74 read with section 73-A
Open Space under Development Plan cannot be given to Private Person to open a School.
In this case two writ petitions were heard together as they relate to subject-matter and common questions of law and facts. The first petition is a PIL, filed by the residents of New-Lite housing Co-operative Society and second one by Moderan Educational and Cultural Society. The State of Rajasthan framed Rajasthan Urban Areas (Sub-Division, Reconstruction and Improvement of Plots) Rules, 1975 under Section 74 read with section 73-A of the Urban Improvement Trust Act. The Rules provides a complete procedure permission for sub-division, reconstruction and improvement of plots by a person, societies etc. New Lite Housing Co-operative Society Ltd. applied for sub-division of plots under the Rules in the year 1976. The Scheme was approved with some modifications by the Jaipur Development Authority (JDA). The approved plan reserved for a school and open space were earmarked. The Principal of Modern School also applied for the allotment for the Site for the school and JDA took a decision allot an open site for the school. When the residents of locality approached the concerned Minister and who is also Chairman of JDA for construction of a community hall and a swimming pool etc. He cancelled the proposed allotment site in favour of the school. The school filed the writ petition before the High Court and got the stay order.
The Court appointed amicus curie for the residents of the locality. He contended that the site could not allotted by JDA to a private person for a school as the site was reserved as an open space in the approved plan and it was intended to be used by the public for the public purpose. He also pleaded that the JDA was malafide and acted illegally without jurisdiction as the sale of the land deprives the residents of the locality from its benefits. He also brought to the knowledge of the Court that a site for school was already reserved in the approved plan where a public school is functioning.
The counsel for the Modern School argued that the allotment of the site to the school was an administrative action and not malafide one. The JDA has discretion to choose the use of a site for a school or for a park. The school also serves a public purpose. Moreover, the space has been described as ‘facility area’ and school is undoubtedly is a facility and action of the JDA cannot be subjected under judicial scrutiny.
The Court held that the JDA had no authority to allot, sale lease or otherwise transfer a site of open space reserved in the approved plan under the Rules of 1975, to a private person or a body. It is also held that the use of an open space cannot be changed or diverted for any other use by the Authority even the establishment of a school or any other facility. Therefore, the action of the respondent- JDA in allotting of a site reserved for a open space in favour of a school is against the legislative intent to safeguard healthy, safety and general welfare of the people of the locality and held illegal and void.
The Court also directions to the JDA to prepare a list of such open spaces used for the public for the approved schemes after conducting a proper survey.