Alok Sharma, J.The issue in the petition is as to whether certain constructions made by the petitioner-non-applicant (hereinafter "the non-applicant") over his plot No. S-11, C-Scheme, Bhawani Singh Road, Jaipur were at the relevant time in accordance with the extant building plans of the Urban Improvement Trust, Jaipur (hereinafter "UIT") and whether they were so compounded on an appropriate application being made and if not whether they are liable to be demolished being contrary to the Jaipur Development Authoritys (hereinafter "JDA") building bye-laws.

2. The facts of the case are that the respondent No. 2-applicant (hereinafter "the applicant") one M/s. Adinath Enterprises moved a reference application before the JDA Tribunal (hereinafter "the Tribunal") under Section 83(8) of the Jaipur Development Authority Act, 1982 (hereinafter "the JDA Act, 1982") alleging that the non-applicant had made constructions over the plot in issue in a wholly unauthorized manner to the detriment of the applicant. The JDA was impleaded as a non-co-applicant. The non-applicant even though served in the reference for reason best known to him remained ex-parte before the Tribunal. In the circumstances, vide order dated 03.02.1997 the Tribunal even while dismissing the reference against the non-applicant, directed that JDA not compound the unauthorized constructions by the non-applicant and also not approve plans in respect thereof. Aggrieved this petition has been filed by the non-applicant in the year 1998 and continued to be pending for the last 17 years.

3. Counsel for the non-applicant has submitted that the alleged unauthorized constructions over plot No. S-11, C-Scheme, Bhawani Singh Road, Jaipur were compounded by the erstwhile UIT, the predecessor in interest of JDA on 25.05.1979. JDA is bound and has to regularize the said constructions. Hence the impugned order of the Tribunal to the contrary is wholly arbitrary. On a query by the Court, he however fairly submits that the said letter dated 25.05.1979 by the UIT, Jaipur on which the argument is based was not filed before the Tribunal as the non-applicant despite service did not file a reply to the applicants reference nor was present himself or through counsel before the Tribunal at the time of passing of the order dated 03.02.1997. It has been submitted that a subsequent review petition against the order dated 03.02.1997 was also dismissed by the Tribunal vide order dated 10.07.1998. Counsel submits that in this view of the matter, the non-applicants defence of the allegedly offending construction over plot No. S-11, C-Scheme, Bhawani Singh Road, Jaipur having been compounded by the erstwhile UIT, the predecessor in interest of the JDA could not be put before Tribunal and now be considered in the interest of justice.

4. Mr. R.N. Vijay, appearing for respondent-applicant submits that Annexure-2 dated 25.05.1979 does not at all pertain to the offending illegal constructions. There is no writing therein to so conclude. Further the argument is one of fact and ought to have been set up before the Tribunal where is was not. It cannot be set up first time before this Court in the exercise of its superintending jurisdiction under Article 227 of the Constitution of India. It has been further submitted that even otherwise the non-applicant having opened windows on part of the common wall facing the open plot of the applicant and also made projections thereon jutting upon the plot of the applicant, his unlawful constructions could not conceivably have been regularized under any provision of building bye-laws either by the erstwhile UIT or its successor in interest JDA.

5. Mr. Amti Kuri, appearing for the respondents-JDA would submit that the JDA can compound unauthorized construction only as per the obtaining bye-laws and not de hors them. It was submitted that the Tribunal vide its impugned order dated 03.02.1997 does not direct that construction of the non-applicant compoundable in law not be regularized. He however hastens to add that where the offending unauthorized constructions are not compoundable under the JDA building bye-laws or have not been regularized earlier, they have to be demolished under Section 17(5) of the JDA Act, 1982. Counsel submits that this petition in fact is completely misdirected as the impugned order 03.02.1997 passed by the JDA Tribunal is innocuous in nature and only directs the upholding of law and nothing more.

6. Heard. Considered.

7. The reliance placed by the counsel for the non-applicant on the purported letter dated 25.05.1979 allegedly issued by the erstwhile UIT purportedly compounding the non-applicants construction over the plot in issue and requiring it to deposit a sum of Rs. 1,500/- was not produced before the Tribunal. Even otherwise a bare look at the letter does not unquestionably indicate that it relates to the illegal construction in issue. It was for the non-applicant to set up the case on facts before the Tribunal in the reference filed by the applicant, but he failed to do so in not filing reply to the reference and further remaining absent himself and even through his advocate on 03.02.1997 when the final order was passed by the Tribunal. This Court in the exercise of its powers under Article 227 of the Constitution of India exercises only superintending jurisdiction and considers the question as to whether the Tribunal/court below on the material before it acted without jurisdiction or arrived at perverse conclusions. Fresh evidence which was not before the Tribunal cannot be taken into consideration in such proceedings-lest superintending jurisdiction morphs into original jurisdiction.

8. Be as it may, I am of the considered view that the order dated 03.02.1997 passed by the Tribunal is an innocuous order and merely states that compounding contrary to law not be done by the JDA. The impugned order does not state that the JDA should overlook compounding of the offending constructions by the non-applicant if allowed by the UIT in the exercise of its powers. That would be a matter for the non-applicant to satisfy the JDA.

9. In the circumstances, I would dispose of this petition directing that the non-applicant make a representation to the JDA setting out details as to when and in what manner the offending construction on the common wall between the non-applicant and the applicants plots by way of opening a window and construction of projection over the applicants plot is permissible in law or compounded by UIT or otherwise compoundable by JDA under its building bye-laws. The representation be made within a period of fifteen days from today and not be accepted by the JDA, if not made within the stipulated period. On receipt of representation as directed, the jurisdictional Dy. Commissioner JDA shall, on a proper inquiry made, decide it by a reasoned order within six weeks thereafter. In the event of the offending construction of the non-applicant is found to have been compounded by the erstwhile UIT Jaipur on the basis of material of probative worth or otherwise by the JDA compoundable under its building bye-laws, appropriate orders be passed by the JDA. If not, the offending construction be pulled down in accordance with law (Section 17(5) of the Act of 1982) by the JDA within one months from its decision as to its unauthorized nature.

10. The writ petition is disposed of accordingly.