Smt. Meena Vasvani vs State And Ors
2022 Latest Caselaw 2168 Raj

(1 of 11) [CW-2109/2009]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 2109/2009

Suresh Kumar Mutha

----Petitioner Versus Municipal Corporation, Jodhpur And Anr

----Respondent Connected With S.B. Civil Writ Petition No. 4341/2005 Smt. Rani

----Petitioner Versus State And Ors.

----Respondent S.B. Civil Writ Petition No. 9253/2008 Sudhir Bhandari

----Petitioner Versus State And Ors

----Respondent S.B. Civil Writ Petition No. 9710/2008 Dilp Singh

----Petitioner Versus The Municipal Corporation Jodhpur

----Respondent S.B. Civil Writ Petition No. 9715/2008 Smt. Meena Vasvani

----Petitioner Versus State And Ors

----Respondent S.B. Civil Writ Petition No. 471/2009 Mohan Lal

(2 of 11) [CW-2109/2009]

----Petitioner Versus State Of Raj. And Ors

----Respondent S.B. Civil Writ Petition No. 1228/2009 Jan Kalyan Properties Pvt.ltd. And Anr

----Petitioner Versus Municipal Corporation, Jodhpur

----Respondent S.B. Civil Writ Petition No. 1434/2009 Jai Kumar Hemnani And Anr.

----Petitioner Versus Stat E And Ors

----Respondent S.B. Civil Writ Petition No. 1742/2009 Jitendra Singh

----Petitioner Versus State Of Raj. And Anr.

----Respondent S.B. Civil Writ Petition No. 2398/2009 Mohammed Umar

----Petitioner Versus State Of Raj. And Anr

----Respondent S.B. Civil Writ Petition No. 3088/2009 Surendra Mathur

----Petitioner Versus State Of Raj. And Anr

----Respondent

(3 of 11) [CW-2109/2009]

S.B. Civil Writ Petition No. 8885/2009 Mohammed Khan And Ors

----Petitioner Versus State Of Raj. And Anr

----Respondent S.B. Civil Writ Petition No. 169/2011 Rajendra Purohit

----Petitioner Versus State Of Raj. And Anr

----Respondent

S.B. Civil Writ Petition No. 456/2013

Bhanu Prasad Bhoot And Anr.

----Petitioner Versus State Of Raj. And Ors

----Respondent

For Petitioner(s) : Mr. Shanker Lal Sinwaria, on VC For Respondent(s) : Mr. R.S. Saluja, on VC

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

08/02/2022

1. In the wake of instant surge in COVID - 19 cases and spread

of its highly infectious Omicron variant, lawyers have been advised

to refrain from coming to Courts.

2. For the sake of brevity, the prayer clauses and the facts are

being taken from S.B. Civil Writ Petition No.2109/2009, while

treating the same as a lead case.

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The prayer clauses read as under:

"It is, therefore, most respectfully prayed on behalf on petitioner that the writ petition may kindly be allowed and: -

I. by an appropriate writ, order or direction, in the nature of mandamus or certiorari, the impugned notice dated 6.11.2008 (Annex-4) passed by the respondent Municipal Corporation may kindly be quashed and set- aside.

II. Further by an appropriate writ, order or direction, the respondent Corporation may be directed to sanction the building plan of the petitioner without imposing the condition of change of land use.

III. Pending the petition, if any order is passed or any action is taken against the petitioner prejudicial to his interest, the same may kindly be taken on record and may be quashed and set-aside."

3. Learned counsel for the petitioner submits that the

petitioner purchased a plot of land by way of registered sale

deed dated 01.07.1996, and that originally, a patta in respect

of the said land was issued in the year 1932 by the Ex-Ruler of

Jodhpur (Maharaja of Jodhpur, Shri Umaid Singh). Learned

counsel further submits that the petitioner applied for the

necessary construction permits before the respondent-Municipal

Corporation and deposited the requisite fees for the said

purposes.

4. Learned counsel for the petitioner however, submits that

the respondent-Municipal Corporation denied the said

permission on the ground that the petitioner had not applied for

the change of land use, and a notice dated 6.11.2008 to that

effect was issued to the petitioner.

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5. Learned counsel for the petitioner also submits that the

permission were denied on improper grounds as the property in

question (purchased through a registered sale deed) was in fact

a 'freehold property', and therefore, the petitioner was not

required to apply for the change of land use, and states that the

same position has been clearly laid down by the Hon'ble Apex

Court in the case of State of Rajasthan & Ors. Vs. Pareshar

Soni, 2007 DNJ (SC) 1063, and the prescription to that

effecdt has also been made in the statutory provision i.e.

Section 173-A of the Rajasthan Municipalities Act, 1959.

6. On the other hand, learned counsel for the respondent-

Municipal Corporation submits that the contention made on

behalf of the petitioner that the property in question is a 'free

hold property', and therefore, the same does not require any

change of land use, does not hold good, for the simple reason

that the provision of Section 173-A of the Act of 1959 was

amended in September 1999.

7. Learned counsel for the respondent-Municipal Corporation

further submits that the provision of Section 173-A of the Act of

1959 (post amendment in September 1999), clearly states that

even if the land (alike the one involved herein) is a 'free hold

property', conversion charges for land use are required to be

deposited. In this regard, learned counsel relied upon the

judgment rendered by the Hon'ble Apex Court in Municipal

Corporation Rajasthan Vs. Sanjeev Sachdeva and Others

(2013) 12 SCC 562, relevant portion whereof (Page 5

onwards), reads as under:

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" We may, at the very outset, point out that this Court in Pareshar Soni's case (supra) was dealing with the un- amended Section 173-A of the Act. For a proper consideration of the question raised, it would be profitable to refer to the un-amended Section 173-A as well as the amended Section 173-A of the Act. Section 173-A of the Act, prior to its amendment, reads as follows:

173-A (Power of the State Government to allow change in the use of land) (1) Notwithstanding anything contained in this Act, where any land has been allotted or sold to any person by a municipality or the State Government subject to the condition of restraining its use for a particular purpose, the State Government may, if it is satisfied so to do in public interest, allow the owner or holder of such land to use it for any other purpose other than the purpose for which it was originally allotted or sold, on payment of such conversion charges as may be prescribed. Provided that the rates of conversion charges may be different for different areas and for different purposes.

(2) The conversion charges so realized shall be credited to the Consolidated Fund of the State or to the fund of the Municipality as may be determined by the State Government.

(3) Such charges shall be the first charge on the interest of the person liable in the land the use of which has been changed and shall be recoverable as arrears of land revenue.

Section 173-A of the Act as amended by the Amending Act No. 19 of 1999 reads as follows:

Section 173-A - Restriction on change of use of land and power of the State Government to allow change of use of land:

(1) No person shall use or permit the use of any land situated in any municipal area, for the purpose other than

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that for which such land was originally allotted or sold to any person by the State Government, any municipality, and other local authority or any other body of authority in accordance with any law for the time being in force or, otherwise than as specified under a Master Plan, wherever it is in operation.

(2) In the case of any land not allotted or sold as aforesaid and not covered under Sub-section (1), no person shall use or permit the use of any such land situated in a municipal, area for the purpose other than that for which such land-use was or is permissible, in accordance with the Master Plan, wherever it is in operation, or under any law for the time being in force.

(3) Notwithstanding anything contained in Sub- section (1) of Sub-section (2), the State Government or any authority authorized by it by notification in the Official Gazette, may allow the owner or holder of any such land to have change of use thereof, if it is satisfied so to do in public interest, on payment of conversion charges at such rates and in such manner as may be prescribed with respect to the following changes in use:

(i) From residential to commercial or any other purpose; or

(ii) From commercial to any other purpose; or

(iii) From industrial to commercial or any other purpose; or

(iv) From cinema to commercial or any other purpose; Provided that rates of conversion charges may be different for different areas and for different purpose.

(4) Any person who has already changed the use of land in violation of the provisions of this Act in force at the time of change of use, shall apply to the State Government or any authority authorized by it under Sub-section (3), within six months from the date of commencement of the Rajasthan Municipalities (Amendment) Act, 1999 (Act No. 19 of 1999) for regularization of said use and upon

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regularization of the change of use of land he shall deposit the amount contemplated under Sub-section (3).

(5) Where the State Government or the authority authorized by it under Sub-section (3) is satisfied that a person who ought to have applied for permission or regularisation under this Section, has not applied and that such permission can be granted or the use of land can be regularized, it may proceed to determine the conversion charges after due notice and hearing the party/parties and the charges so determined shall become due to the municipality and be recoverable under Sub-section (7).

(6) The conversion charges so realized shall be credited to the fund of the municipality.

(7) Charges under section shall be the first charge on the interest of the person liable to pay such charges with respect to the land, the use of which has been changed and shall be recoverable as arrears of land revenue.

Amended Section 173-A not only restricts the change of use of land, as the same has been allotted by the municipality or the State Government, but also put restrictions if the land has been allotted by any other local authority. Section 173-A(2) covers the cases which are not even covered by Section 173-A(1) and brings in its fold even the change of use of land which is not in consonance with the Master Plan. Further Section 173-A(1)(2) and (3) also contemplates a situation wherein the State Government is entitled to levy conversion charges if the change in use from one purpose to other purpose. Amendment was necessitated since the State Legislature thought the provision of Section 173-A (un-amended) stood as an impediment for proper planning of urban areas. In other words, with a view to ensure planned and regulated development of urban areas, it was felt that some restrictions have to be imposed and it was for that purpose that Section 173-A was amended.

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We may, in this respect, also indicate that, in exercise of powers conferred under Section 297 read with Section 173-A of the 1959 Act, 2000 Rules were promulgated. It is under the above-mentioned Rules that the Respondents filed an application on 16.7.2003 for change of land use from residential to commercial. Following those Rules, the Corporation issued public notice inviting objections. Later, the Land Use Committee met and approved the conversion for which a demand notice of Rs. 5,70,300/- was raised by the Corporation on 2.4.2004. We are of the view that the demand is legal and valid and in accordance with the provisions of Section 173-A , as inserted by Amendment Act 19 of 1999 read with 2000 Rules. We are also of the view that the Rajasthan High Court has committed an error in applying the judgment of this Court in Pareshar Soni's case (supra) which was dealing with the unamended provision of Section 173-A .

Learned counsel also relied upon the judgment rendered by a

Coordinate Bench of this Hon'ble Court in Kishan Lal

Pungaliya Vs. Municipal Corporation, Jodhpur and Anr.

S.B. Civil Writ Petition No. 4197/2002 (decided on

17.12.2002).

8. Learned counsel for the respondent-Municipal Corporation

further submits that per the sub-section (2) of Section 173-A of

the Act of 1959, the conversion of the land has to be in

conformity with the master plan, and that in case, according to

master plan, if in a concerned area the land is not earmarked

for commercial purpose, then residential land could not be put

to commercial use in that area, and therefore, the permission so

sought for construction over the land can only be granted after

the land in question is duly converted, after depositing the

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necessary fees, as contemplated under Section 173-A of the Act

of 1959 read with the Rajasthan Municipalities (Change of Land

Use) Rules, 2000.

9. Heard learned counsel for the parties as well as perused

the record of the case, alongwith the judgments cited above.

10. This Court observes that the short controversy at hand is

whether the land in question needs to be converted (change of

land use), upon deposition of requisite fees, for the purpose of

the construction permission, as sought by the petitioner.

11. This Court further observes that as per the amended

provision of Section 173-A of the Act of 1959, the land in

question does in fact needs to be converted, after deposition of

the requisite fees, with the concerned authority for obtaining the

permission so sought by the petitioner to construct roads on the

land in question.

12. This Court also observes the judgment rendered in

Municipal Corporation Rajasthan Vs. Sanjeev

Sachdeva(supra) wherein the Hon'ble Apex Court has held

that the judgment rendered in State of Rajasthan & Ors. Vs.

Pareshar Soni (supra) is a bad law, and the provision of law

as laid down in Section 173-A as amended in September 1999

would apply to 'free hold' property, and therefore, the land so

classified would also require the necessary conversion, after

deposition of the requisite conversion fees, if sought to be used

for a commercial purposes.

13. This Court further observes that the law on the issue raised

in the present petitions has already been crystallized in the

provision of law i.e. Section 173-A of the Act of 1959 as

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amended in September 1999, and the same has also been dealt

with by the Hon'ble Apex Court in Municipal Corporation

Rajasthan Vs. Sanjeev Sachdeva (supra). This Court thus,

finds that the impugned notice issued by the respondent-

Municipal Corporation suffers from no legal infirmity and was in

fact issued in accordance with law, and hence, the same does

not require any interference by this Court under the writ

jurisdiction.

14. In light of the aforesaid observations, the present petitions

are dismissed. All pending applications stand disposed of.

(DR.PUSHPENDRA SINGH BHATI), J.

59-71 & 32-skant/-

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