Rajasthan High Court - Jodhpur

M/S Devendra Auto Repairs vs The State Of Rajasthan ... on 23 August, 2023

Bench: Pushpendra Singh Bhati

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 11558/2023

M/s Devendra Auto Repairs, Plot No. 34, Madhobagh, Harijan Basti, Jodhpur Jalori Gate Ward No. 56, Through Its Proprietor Devendra Sharma S/o Shri Pukhraj Sharma, Aged About 64 Years, R/o 104, Rajeev Nagar A Outside Mahamandir 3Rd Pole, Jodhpur.

----Petitioner Versus

1. The State Of Rajasthan, Through The Secretary, Local Self Government Of Rajasthan, Jaipur.

2. Jodhpur Municipal Corporation (South), Through Its Commissioner.

3. Revenue Offier / Inspector And Incharge, Illegal Construction Control Team, Municipal Corporation, Jodhpur (South), Jodhpur.

                                                                   ----Respondents


For Petitioner(s)           :    Mr. Anirudh Purohit
For Respondent(s)           :    Mr. Suniel Purohit

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

23/08/2023

1. This writ petition under Article 226 of the Constitution of

India has been preferred claiming the following reliefs:

"It is, therefore, most respectfully and humbly prayed that the record of the case may kindly be called for and by an appropriate writ, order or direction:-

i). The impugned notice dt. 05.07.2023 (Ann.-3) and the final notice dt. 03.08.2023 (Ann.-5) may kindly be quashed and set aside and the proceedings initiated in pursuance of these notices may kindly be dropped, and;

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ii) during the pendency of the writ petition if any order is passed with regard to seizure then the same may also be taken in record and the same may also be kindly quashed and set aside and;

iii). The respondents may further be restrained from interfering with the use, occupation and enjoyment of the property which has already been constructed by them or which may further construed by them in accordance with law and they should not insist for payment of any kind of conversion charges;

iv). The petitioners were awarded exemplary costs from the respondents which they estimate to the tune of Rs.50,000/-.

v). Any other appropriate writ, order or direction which this Hon'ble Court deems fit in the facts and circumstances of the case may be passed in favour of the humbly petitioners.

vi). Cost of the petition is awarded in favour of the humble petitioners."

2. Brief facts of the case, as placed before this Court by learned

counsel for the petitioner-Firm, are that a Commercial Property is

situated over two plots bearing nos. 34 and 35, Madhobagh,

Harijan Basti, Jalori Gate Ward No.56, Jodhpur; there are 4 shops

constructed over the said property, out of which, one shop was

given on lease by the proprietor of the petitioner-Firm on

10.09.1987; whereafter the petitioner-Firm applied for commercial

license, and the same was issued in its favour on 17.03.1989.

2.1 Thereafter, the respondents issued a notice dated

05.07.2023 under Sections 194, 245, and 236 of the Rajasthan

Municipalities Act, 2009 (hereinafter referred to as 'Act of 2009')

calling upon the petitioner to produce the original documents

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relating to the ownership as well as necessary permission in

respect of the property in question. The petitioner filed a reply to

the said notice.

2.2 The respondents again issued a notice dated 03.08.2023

under the Act of 2009 and the petitioner was directed to stop

commercial activity, which as per the respondents, was illegal, in

the residential area, within 3 days, failing which, immediately

seizure of the property in question shall be made under the Act of

2009.

2.3. Thus, being aggrieved by the impugned notices dated

05.07.2023 & 03.08.2023 issued by the respondents, the present

petition has been preferred claiming the afore-quoted reliefs.

3. Learned counsel for the petitioner submitted that the

petitioner has submitted a detailed reply on 17.07.2023 to the

impugned notice, but the same was not duly considered by the

respondents; therefore, the impugned action of the respondents

clearly shows arbitrariness on their part.

3.1. Learned counsel further submitted that the first notice

impugned herein was issued in relation to the illegal construction

in the premises in question; while the second notice impugned

herein was issued in respect of the illegal commercial use of the

premises in question.

3.2. Learned counsel also submitted that the impugned notices

were issued under the Act of 2009, despite the fact that the

petitioner has not violated any of the provisions of the said Act.

3.3. Learned counsel further submitted that the provision relevant

in the present case is Section 182 of the Act of 2009, which

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provides altogether a different procedure for dealing with the

situation of use of land, and therefore, the impugned action is an

outcome of malice in law, coupled with arbitrariness and

colourable exercise of the power.

3.4. In support of such submissions, learned counsel relied upon

the judgment rendered by the Hon'ble Apex Court in the case of

East Coast Railway & Ors. Vs Mahadev Appa Rao & Ors.

(2010) 7 SCC 678.

4. On the other hand, learned counsel appearing on behalf of

the respondents, while opposing the aforesaid submissions made

on behalf of the petitioners, submitted that the petitioner was

utilizing the premises for commercial use, and the respondents

issued the notices calling upon the petitioner to produce the

documents, and therefore, the impugned notices are sustainable

in the eye of law.

4.1. It was further submitted that the petitioner was engaged in a

commercial activity in a residential area without any lawful

permission for the said purpose, and therefore, the entire action of

the respondents was in accordance with the provisions of the Act

of 2009.

4.2. In support of such submissions, learned counsel relied upon

the judgment rendered by this Hon'ble Court in the case of Anil

Bhandari Vs. State of Rajasthna & Ors. (S.B. Civil Writ

Petition No. 4111/2017, decided on 06.05.2019)

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

record of the case alongwith the judgments cited at the Bar.

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6. This Court observes that the petitioner has taken the shop in

question at the aforementioned location on lease on 10.08.1987,

whereafter, the utilization of the said premises for commercial

purpose, and thus, the respondents vide impugned notices to the

petitioner called upon him to produce the original documents

relating to the ownership as well as the necessary permission for

the purpose in question.

7. At this juncture, this Court considers it appropriate to

reproduce the relevant portion of the judgment rendered in the

cases of Anil Bhandari (Supra), as hereunder:

"24. Learned counsel for the respondents further submitted that the Hon'ble Court has held in Gayatri Tiwari Vs. State of Rajasthan & Ors. (supra) that in Sanjeev Sachdeva (supra) the demand notice for conversion charges was given prior to the Act of 2009 and it was also of case of remand by Hon'ble Apex Court and the present controversy is governed by Section 182 of the Act of 2009. Thus, as per learned counsel for the respondents, the judgment in Sanjeev Sachdeva's case (supra) was distinguished by this Hon'ble Court, while rendering the judgment in Gayatri Tiwari Vs. State of Rajasthan & Ors. (supra).

25. After hearing learned counsel for the parties as well as perusing the record of the case, alongwith the precedent laws cited at the Bar, this Court finds that the petitioners have not been able to show any record to substantiate that their land was allotted for commercial purposes. The mere use of land for commercial purposes cannot substitute the purpose for which the land has been allotted.

26. This Court also finds, on a bare reading of Section 182 sub-

section (2) of the Act of 2009, that any allotment or sale of the property needs to be conformed to the use, for which it has been made. Any change in the allotment or sale of property would not entitle a person to the purpose, otherwise than what the

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property in question is meant for. The use of the property before the commencement of the Act of 2009 is clearly stipulated. The Act of 2009 also does not wish to demarcate the law as prospective or retrospective, and on a bare reading, it does not wish to permit the land use, as was prior to the commencement of the Act of 2009.

27. This Court further finds that the precedent law of Gayatri Tiwari Vs. State of Rajasthan & Ors. (supra) is the judgment which has been followed by another Hon'ble Single Bench of this Court in Narayan Swaroop Srivastava Vs. State & Ors. (S.B. Civil Writ Petition No. 7387/2016 decided on 01.10.2018). The judgment in the case of Narayan Swaroop Srivastava (supra) reads as under:

"By way of this writ petition, the petitioner Narayan Swaroop has approached this Court for assailing the notices dated 31.03.2016 and 02.06.2016 issued by the Deputy Commissioner, Nagar Nigam, Jodhpur to the petitioner's brother Bhagwan Swaroop and to restrain the respondents from interfering in the commercial use of the property in question.

I have heard and considered the arguments advanced by learned counsel for the parties and have gone through material available on record.

Admittedly, the petitioner and his family members are using the residential premises in question for commercial use without getting the same converted as per law. This Court in the case of Smt. Gyatri Tiwari Vs. State of Rajasthan reported in 2017 (3) WLC (Raj.) 562 has held that even for putting free hold plots to commercial use, the land holder would have to pay the commercial conversion charges in accordance with Sections 182 and 344 of the Rajasthan Municipalities Act, 2009. In this background I find no illegality or infirmity in the impugned notices so as to for interfere therein while exercising this Court's extra ordinary writ jurisdiction. Furthermore, the petitioner, if so advised, can always challenge these notices by filing revision

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petition under Section 327 of the Rajasthan Municipalities Act, 2009.

In view of the above discussion made herein above, the writ petition fails and is hereby dismissed."

28. This Court also finds that since the petitioners are using the premises in question for commercial purposes without getting the same converted as per law, the precedent law of Gayatri Tiwari Vs. State of Rajasthan & Ors. (supra) is completely in application and the land holder would require to pay commercial conversion charges in accordance with Section 182 and Section 344 of the Act of 2009. Thus, this Court does not find any illegality or infirmity in the impugned notice so as to make any interference while invoking the extraordinary writ jurisdiction.

29. This Court also finds that the precedent law cited on behalf of the petitioners are not applicable to the facts of the present case.

30. For the foregoing reasons, the present writ petition is dismissed. Stay Application No. 3878/2017 also stands dismissed accordingly.

8. This Court further observes that the petitioner did not

produce any document relevant for consideration of the

petitioner's case, as to whether carrying out of the commercial

activity in the premises in question by the petitioner at the

aforementioned location, is permissible under the law. This Court

also observes that the conversion of the residential property into

commercial property is mandatory under the law, prior to putting

the same to any commercial use. Therefore, the impugned notices

issued by the respondents are justified in law.

9. The judgment cited on behalf of the petitioner also does not