Rajasthan High Court - Jodhpur
Daulat Raj Bhandari vs State & Ors on 22 December, 2008
Author: Gopal Krishan Vyas
Bench: Gopal Krishan Vyas
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
:ORDER:
S.B. Civil Writ Petition No.1740/2008.
(Daulat Raj Bhandari Vs. State of Rajasthan & Others)
DATE OF ORDER : December 22nd, 2008
PRESENT
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
____________________________________
Mr. M.R. Singhvi for the petitioner.
Mr. N.M. Lodha, Addl. Advocate General.
Reportable : BY THE COURT :
In this writ petition, the petitioner has prayed for quashing impugned order/letter dated 04.03.2008 and further made prayer that the respondents may be directed to process and finalize the application of the petitioner for raising construction without insisting upon the payment of conversion charges in an expeditious manner, within fixed time limit. It is also prayed that a direction against the erring person and appropriate proceedings for committing contempt of Court's order may also be ordered with all 2 other consequential benefits with costs.
In this case, according to facts narrated by the petitioner, the petitioner owns a property at the main Chopasani Road and the said property is free-hold property. As per the existing master-plan for the Jodhpur city the said area where the petitioner's property is situated has been shown as commercial.
The petitioner applied for construction permission but instead of granting the permission a notice was issued to the petitioner asking him to apply for conversion of the land. In pursuance of the said notice, a reply was filed by the petitioner in which it was made clear by the petitioner that erstwhile princely State of Jodhpur issued a patta vide No.125 in misal No.361/35-36 in respect of plot No.781 in the name of Ramsukh, Radhamal, Shivkishan, Shivraj, Mohanlal and Bhojraj, all sons and grandsons of Karnidan, b/c Pushkarna Brahmin Vyas in respect of the said property. According to the petitioner, the said patta was issued under the Marwar Patta Ordinance and it was open to be used either for residential, commercial or any other purpose. Therefore, there was no restriction for the use of the land as per the patta issued. The said property was purchased by the petitioner from Bhanwar Lal s/o Mohan Lal by registered sale deed dated 31.12.1962. More 3 specifically, the petitioner purchased part of the aforesaid property from Bhanwar Lal and petitioner is in possession of the property since 1962.
The petitioner is also having a gift-deed in his favour with regard to other part of the aforesaid property; meaning thereby, the petitioner owns the property measuring 60' X 105'. Upon that plot the petitioner was desirous to raise construction, therefore, he applied for permission in accordance with law.
The respondent Commissioner, Municipal Corporation, Jodhpur gave the notice and informed the petitioner to first get conversion of the land from residential to commercial and, thereafter, application for granting construction permission will be considered. As per the petitioner the said notice was totally illegal and without jurisdiction because the aforesaid property situated on the main Chopasani Road has been shown as commercial in the current master-plan, therefore, there is no question of conversion of land from residential to commercial; so also, the patta is of free-hold use of the land. Besides, the petitioner also brought to the notice of the respondents the judgment of the Division Bench of this Court rendered in D.B. Civil Special Appeal No.2415/2006, decided on 04.10.2006, in which, the Division Bench of this 4 Court considered all aspects of the matter and while considering the ambit and scope of Section 173A of the Rajasthan Municipalities Act held that if any property is of free-hold, then, there is no question of asking any land- holder to get conversion of the land, therefore, a request was made that notice given on 14.02.2007 in pursuance to the application filed by the petitioner for grant of construction permission may be withdrawn in view of the fact that conversion of the land from residential to commercial is not necessary as per the judgment of the Division Bench of this Court; and, so also, on the ground that the original patta was of free-hold use and, at present, the land is situated in the area which is shown as commercial in the existing master-plan of the city.
When the petitioner's grievance was not redressed then a writ petition was filed by the petitioner before this Court being D.B. Civil Writ Petition No.3200/2007, Daulat Raj Bhandari Vs. State of Rajasthan & Others and the same was decided on 27.09.2007, in which, the Division Bench of this Court passed order that validity of Section 173A of the Rajasthan Municipalities Act 1959 has been upheld by the Division Bench of the High Court in the case of Mewa Lal, reported in 2006 (8) RDD 4199, therefore, the respondents are directed to decide the application of 5 the petitioner on merit in accordance with law within a period of two months from the date of the judgment and whatever decision is taken the same may be communicated to the petitioner. Further, it is ordered that in case the decision is taken against the petitioner, then, the petitioner will be at liberty to challenge the same before the appropriate forum in accordance with law. After the said decision a request was made by the petitioner for deciding his application in accordance with the order passed by the Court.
Respondent No.3 in pursuance to the direction issued by the Division Bench sent a communication dated 22.11.2007 to the petitioner's counsel that the client should get conversion of the land in accordance with Section 173A of the Act of 1959 and after conversion any proceedings can be taken by the respondents with regard to the construction permission. When such communication was received by the counsel for the petitioner, then, a notice for demand of justice was sent by the counsel for the petitioner on 21.12.2007 vide Annex.- 13 and a prayer was made that as per the judgments of the Supreme Court and High Court in the cases of Parasar Soni, Raj Kumar Bhandari and Ashok Kumar Bakliwal, now conversion is not necessary for free hold patta land, 6 therefore, after receiving the said notice for demand of justice the petitioner was directed by the Chief Executive Officer, Municipal Corporation vide communication dated 30.01.2008 that the petitioner may remain present in his office on 08.02.2008 in the morning at 11.00 A.M. along with all the relevant documents for hearing.
According to the petitioner, he appeared before the Chief Executive Officer and above judgments of the Hon'ble Supreme Court and Division Bench of this Court were produced in which it was decided finally by the apex Court that conversion for free-hold land is not necessary. The petitioner specifically pointed out that in the judgment of Parasar Soni's case, decided by the apex Court in SLP No.10630/2005, it has been held that the holder of free- hold patta land is not required to be got converted from residential to commercial and while holding the above proposition of law the apex Court also considered Section 173A of the Municipalities Act, 1959. In this view of the matter, it is submitted that all the judgments and documentary evidence was placed before the respondents but again vide communication dated 04.03.2008, the Commissioner, without considering any of the contentions raised by the petitioner informed that without conversion of land the petitioner's application for construction 7 permission will not be decided. The said communication is under challenge.
Learned counsel for the petitioner vehemently argued that the respondents have no regard for the adjudication made by the Division Bench of this Court as well as apex Court. For this purpose, the petitioner has cited 3 judgments of this Court and apex Court :
1. Mewa Ram Vs. State, 2006 (8) RDD 4199.
2. Ashok Kumar Bakliwal Vs. Municipal Board, Abu Road, D.B. Civil Writ Petition No.2415/2006, decided on 04.10.2006.
3. State of Rajasthan Vs. Parasar Soni, SLP No.10680/2005, decided on 28.11.2007.
It is contended by learned counsel for the petitioner that in the above judgments the controversy involved in this case was finally decided and it was held that no conversion of land from residential to commercial is required but without considering all these aspects of the matter only on the basis of the opinion given by the Law Officer of the Municipal Corporation the impugned communication dated 04.03.2008 was sent. Learned counsel for the petitioner while inviting attention of the Court towards relevant order-sheets of the petitioner's case-file of the Municipal Corporation, pointed out that the petitioner's case was not decided only on the basis of the 8 opinion given by the Law Officer of the Corporation while ignoring the adjudication made of the controversy upto the apex Court in Parashar Soni's case, therefore, the conduct of the respondents is highly objectionable and contemptuous because they are not having any regard to the adjudication and judgments of the Courts of law.
Learned counsel for the petitioner vehemently contended that all these facts were brought to the notice of the respondents but they did not care and, straight away, sent communication dated 04.03.2008 and the said communication was sent by the Commissioner, Municipal Corporation, Jodhpur whereas the matter was to be decided by the Chief Executive Officer because he is the competent authority to decide the matter and the petitioner was directed to remain present in the office of the Chief Executive Officer vide communication dated 30.01.2008 (Annex.-14); but, later the matter was decided by the Commissioner of the Municipal Corporation.
It is pointed out by learned counsel for the petitioner that this writ petition was listed in the Court on 19.03.2008. On that date, while taking into consideration the judgment rendered by the Division Bench of this Court in D.B. Civil Writ Petition No.3200/2007, filed by the petitioner on 27.09.2007, following order was passed : 9
"Considering the facts and circumstances of the case, we direct the respondent No.3 to decide the application of the petitioner on merits in accordance with law within a period of two months from today and whatever the decision is taken, the same may be communicated to the petitioner. In case, the decision is taken against the petitioner, the petitioner may challenge the same before the appropriate forum in accordance with law."
While inviting attention towards the above judgment, it is pointed out by learned counsel for the petitioner that the Chief Executive Officer, Municipal Corporation, Jodhpur was directed to decide the matter of the petitioner for the purpose of conversion of the land from residential to commercial. On 26.03.2008, a prayer was made by the learned Addl. Advocate General that some time may be granted to decide the matter by the Chief Executive Officer, Municipal Corporation, Jodhpur. Upon that prayer, time was granted and on 28.03.2008 the learned Addl. Advocate General placed on record the order passed by the Chief Executive Officer, Municipal Corporation, Jodhpur in compliance of the order passed by this Court, by which, while following the judgment of the Hon'ble Supreme Court rendered in SLP (C) No.24912/05, State of Rajasthan Vs. Parashar Soni, the Chief Executive Officer, Municipal Corporation, Jodhpur directed the building construction permission Committee to decide the application of the 10 petitioner without insisting upon payment of conversion charges from residential to commercial purpose. After perusing the said order, an order was made by this Court on 28.03.2008 and the Municipal Corporation, Jodhpur was directed to decide the application filed by the petitioner for the purpose of construction within a period of ten days. Thereafter, the matter was adjourned from time to time and the Commissioner sent a communication dated 10.04.2008 to the petitioner by which while pointing out certain deficiencies in the application of the petitioner rejected the petitioner prayer for construction.
After receiving the said communication by the petitioner, an application was filed by the petitioner on 11.04.2008 in the Court, in which, it is prayed by the petitioner that the respondents' action is gross contempt of the orders passed by this Court because up till now in the proceedings of the case no such stand was taken by the Municipal Corporation, Jodhpur with regard to deficiency in the map filed by the petitioner alongwith the application for permission of construction. It is also pointed out that this case was listed in the Court number of times and after considering the entire aspects of the matter, specific direction was issued by this Court that the application for granting construction permission may be decided without 11 insisting upon the petitioner for conversion of the land from residential to commercial as per the judgment of the Hon'ble Supreme Court rendered in Parashar Soni's case (supra); but, now another mechanism has been adopted by the respondents to refuse construction permission on the ground that the application of the petitioner fell short of the requirements of the building bylaws, 2001. Therefore, such an action of the respondents seems to be an action of disobedience of the orders passed by this Court, therefore, it is a gross contempt committed by the respondents. Learned counsel for the petitioner pointed out that so far as the building bylaws are concerned, under the Rajasthan Municipalities Act the same can be framed under Section 90 and under sub-section (1). Thereunder, it is provided that every Board, from time to time, shall make bylaws not inconsistent with this Act and, thereafter, steps have been enumerated with regard to which the bylaws can be framed. Further, under sub-section (2) of Section 90, it is provided that every Board shall, before making any bye-laws under this section, publish, in such manner as shall in its opinion be sufficient, for the information of persons likely to be affected thereby, a fraft of the proposed bye-laws, together with a notice specifying a date on or after which the draft will be taken into 12 consideration and shall, before making the bye-laws, receive and consider any objection or suggestion with respect to the draft which may be made in writing by any person before the date so specified.
It is further pointed out by learned counsel for the petitioner that as per sub-section (3) of Section 90 it is provided that no bye-law made by a board shall take effect unless it is sanctioned by the State Government.
It is further provided under sub-section (4) of Section 90 that when any bye-law made by a board is submitted to the State Government for sanction, a copy of the notice published under sub-section (2) and of every objection or suggestion made there to shall be submitted for the information of the State Government along with the said bye-law.
While inviting attention towards the above provisions, it is submitted that the respondent Municipal Corporation never framed any bye-laws, therefore, there exist no bye-laws in the eye of law yet the application of the petitioner has been rejected on the anvil of the alleged violation of the bye-laws of 2001 of the Urban Improvement Trust. Therefore, the rejection of the petitioner's application is totally illegal.
When this application is filed by the petitioner, then, 13 a reply was filed by the respondents, in which, it is replied that the matter of the petitioner was considered by the Building Committee of the respondent Municipal Corporation and it was found that the permission sought by the petitioner was not in conformity with the Resolutions of 2001 and as such a resolution was passed by the Building Committee that the applicant may be informed about the infirmities/defects pointed out in his application and on removal of defects, the application may be again placed before the Building Committee. The respondents have placed on record the minutes of the Building Committee for the perusal of the Court.
In reply to the application, it is pointed out by the respondent Corporation that the petitioner has very vaguely and baldly stated that the application of the petitioner has been rejected on totally baseless ground as if the application of the petitioner is falling short of the alleged bye-laws of the respondent Municipal Corporation and, in this respect, legal position has been sought to be explained but, without going into such controversy, at the cost of repetition, it is submitted that the respondent municipality is following the Resolutions of the Urban Improvement Trust as these regulations have been adopted by the Municipal Corporation and the same are 14 being followed for the last so many years. Further, these regulations are applicable in the present case, therefore, in view of the fact that these regulations were adopted by the Municipal Corporation and the Building Committee has rightly arrived at the finding that due to deficiency/defects in the application, the petitioner is required to remove all the defects and, thereafter, the matter may be placed again before the Committee.
On 25.05.2008, an application was filed by Mr. N.M. Lodha, Addl. Advocate General on behalf of the Corporation for correction in the reply to the application and, in para 4 of the said application, it is contended that at present no separate rules or bye-laws for giving construction permission has been framed, however, the Urban Improve Trust Regulations, 2001 are followed for last so many years and this position was also referred to in the judgment reported in 2007 (2) WLC 666 which is as follows :
"Specific provision of Urban Improvement Trust, Jodhpur (Urban Area, Building) Regulation, 2001 are in force for Jodhpur Urban Area. The same are being followed by Nagar Nigam also as per their agreement dated 17.07.2000 with U.I.T., the same should continue. However, Nagar Nigam, should take necessary action for approval of 15 the above rules by State Govt.
expeditiously."
While inviting attention of this Court to the fact that certain modifications were proposed but still they are under consideration, therefore, for the purpose of grant of permission for construction under Section 117 of the Act, the regulations have also been framed by the Corporation but they have not yet come into force as final approval has not been given by the State Government; meaning thereby, as per the petitioner's counsel, it is admitted by the respondent Corporation that regulations have been framed by the Municipal Corporation, Jodhpur but the same have not yet come into force for want of the approval by the State Government. Upon filing the correction application, as above, it is pointed out by the petitioner that as per the respondents themselves no bye- laws of the Municipal Corporation, Jodhpur are in existence. But, this stand taken by the respondents is contrary to law and this position has been accepted by the Mayor in her press-note which has been published in the news-paper and the same has not so far been controverted. Thus, without any bye-laws framed by the Corporation, the Municipal Corporation is deciding the application for permission of construction on the basis of so 16 called Regulations of 2001 of the Urban Improvement Jodhpur known as Urban Area Building Regulations 2001, which is not permissible under the law.
When the petitioner filed the above application before this Court in this writ petition, additional submissions were made on behalf of the Municipal Corporation, Jodhpur, in which, it is pointed out that the application for grant of permission in relation to the construction has been considered by the Building Committee of the Municipal Corporation, Jodhpur in its meeting dated 24.06.2008 and, after considering the matter, the Committee came to the conclusion that as per the prevailing practice and rules the applicant is required to keep parking but the same has not been shown in the site-lan submitted by the petitioner and he has been informed to file a fresh map while leaving space for parking and, so also, leaving space for set-back.
When the above submission was filed on 30.07.2008, then, again the petitioner moved an application and apprised this Court that minutes of the aforesaid meeting are not only illegal but contrary to its previous stand and contrary to the provisions of the statute, so also, it is nothing but deception. Further, with regard to the aforesaid minutes, the petitioner has submitted 17 comprehensive reply and copy of the same has been placed on record. After filing the said reply to the application, when the case was listed in the Court for final argument, a reply was filed on behalf of the respondent Municipal Corporation that the application of the petitioner has been considered in the meeting of the Building Committee held on 04.09.2008 and the decision of the meeting has already been sent to the petitioner by which permission has been granted to the petitioner for raising construction. The minutes of the Building Committee dated 22.09.2008 have been placed on record whereby 40 applications were decided by the Committee in the meeting held on 04.09.2008 and consideration of the application of the petitioner is at S.No.40 which is as follows :
"पस व स० 40 :-पत वल स० IBT (B) 269/2006-07 श द ल र ज भड र S/o र चनद, पल ट न० 781 च प सन र ड ज धपर क! पत वल प"श हई । पत वल क अवल कन ककय गय ।
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पकरण पर क फ! गभभर पव
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पररप"कय म" एक ररवय5 वपटटशन र जसर न र जय 3न म प र" शर स न म"
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अभभय ओ व उपनगर रनय जक द र पत वल क" पIर स.
N/5' व 53 म. पदभश7 म क एव करनक! अभय व"दन अनस र रनJन
श R क भववषय म. प लन करन" क" स र पस पस वव म नधचत
अनम टद ककय ज हI ।
1- शहर क! 3ढ आ3 द एव य य क धय न म. रख " हए
रनभम7 भवन म. सम5धच प कक7ग एव स"ट 3Iकस क रनयम नस र
वयवसर रखन अनव य7 ह ग ।
2- भवन ववरनमय 2001 म. रनटह प वध नO क" अनस र भवन
क! ऊच ई एव आचछ टद क"त (F.A.R) क! प लन करन आवशयक
ह ग जजसक" भलए भ5सव म 3 धय रह" ग ।
3- रनभम7 भवन म. अजZनशमन सयतण क! सर पन करन
आवशयक ह ग ।
4- ज धपर शहर म. 3ढ " भ5जल स र क धय न म. रख " हए
जल गह
L (Under Ground) क" रनम 7ण क! सव कLर टदय ज न सभव
नह हI ।
5- म नन य सवRचच नय य लय म. ररवय5 वपट शन र जसर न र जय
3न म प र" शवर स न म. टदन क (रनण7य) 20.11.07 क" ववरद द यर ककय हआ हI ज व म 7 न म. लजJ3 हI इस ररवय5 वपटटशन म. ह न"
व ल" रनण7य क! प लन करन" क" भलए भ5सव म 3 धय रह" ग ।
6- म नन य सवRचच नय य लय द र भ5 उपय ग पररव न
7 क"
स3ध म. रनगम क" पक म. रनण7य प रर करन" क! जसरर म.
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पररव न
7 क! र भश जम करव न" क" भलए 3 धय रह" ग ।
7- भवन ववरनमय 2001 क" प वध नO म. रनटह रनयमO क"
ववपर वयवस रयक भवन रनम 7ण करन" क! जसरर म. उक रनभम7
भवन क रनयम नस र क न5न पक\य अपन ई ज कर धवस ककय
ज न" क अधधक र रनगम क रह" ग ।
19
8- म नन य उचच नय य लय म. ववच र ध न जनटह य धचक ओ
म. टदए ज न" व ल" आद" शO क! प लन करन" क" भलए भ5 सव म 3 धय रह" ग ।
9- भववषय म. उक भ5खणड क" सव भमतव क" सJ3ध म. ककस
पक र क व द ववव द अरव उजर/ ए र ज प प ह न" पर उक
सव कLर अवIध रनक ह ग जजसक! सJपण
5 7 जव 3द" ह भ5 स व म क!
हग।
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पस वव म नधचत व सव कLर आद" श ज र ह ।
11- शहर म. 3ढ " य य क मधय नजर रख " हए रनभम7
भवन म. पदव5 ष इक ई वयवस य नह कर. ग"।
अ : सव7 सहमर स" पस व प रर कर वयवस रयक
पय जन र7 ह" सव कLर पद न क! ज हI । रनयम नस र सJप5ण7
जम य Zय र भश पर ह सव कLर पत व अनम टद म नधचत ज र
ककय ज ए।"
Upon perusal of the above decision of the Committee it is abundantly clear that certain conditions have been imposed while granting the construction permission according to which a condition has been incorporated that the petitioner shall leave space for parking and set-back also and will follow the other terms and conditions.
After filing the said reply to the application, learned counsel for the petitioner on the same day on 26.09.2008 filed additional affidavit of the petitioner, in which, it is stated that a commercial complex is under construction which, according to the petitioner, belongs to Shri Jethu Singh s/o Shri Kana Ramji and, in that respect, he has 20 affixed photographs of the said commercial complex and pointed out that the said complex are in Soorsagar area in which the land of the petitioner is also situated but they were not directed to leave any area for set-back and, in the same manner, another building which is almost complete situated just opposite Kohinoor Cinema, for which also, there is no set-back and construction is almost complete. The petitioner has also placed on record photographs of that building also; meaning thereby, the petitioner apprised this Court that for the aforesaid buildings, construction permission was granted by the Municipal Corporation and the same may be directed to be produced alongwith maps, if any, approved by the Corporation.
Upon the said additional affidavit filed by the petitioner, certain documents including construction permission of the building of Jethu Singh which was under
construction alongwith the map so approved by the Municipal Corporation has been placed on record by the Municipal Corporation, which are as follows : i. Application of Jethu Singh for grant of construction permission dated 18.07.2006.
ii. Office note of the file of construction permission. iii. Minutes of the meeting dated 20.07.2006 and permission dated 30.05.2007.21
Learned counsel for the petitioner vehemently argued that admittedly there are no bye-laws framed by the Municipal Corporation in accordance with the Municipalities Act. It is also admitted position of the respondents that they are following the regulations of Urban Improvement Trust Building Regulations 2001 and granting the construction permission on the basis of the adopted regulations. Therefore, the conditions incorporated in the permission granted to the petitioner, during the pendency of this writ petition, are in consonance with the Regulations of 2001 and the petitioner is under obligation to comply with those conditions. Learned counsel for the petitioner invited attention of this Court that in the meeting for grant of construction permission the elected Municipal Corporation Member Shri Jethu Singh alongwith other Members was present and, in the application for the same area for construction, filed by Jethu Singh for his building, was also considered by the Committee presided over by Shri Jethu Singh himself as Chairman of the Building Construction Permission Committee by which permission was granted. As per the permission so granted no such conditions for leaving the land for set-back as well as parking was incorporated; meaning thereby, the Chairman of the Committee while 22 considering his case at item No.76 did not insist for leaving set-back and space for parking and, so also, no opinion was sought from the Legal Officer nor any assertion has been made that these construction permissions are hereby granted in consonance with the Urban Improvement Trust Regulations 2001; but, in the case of the petitioner only to harass him, the conditions were incorporated. Before that, opinion of the Legal Officer was also taken for consideration; meaning thereby, as per counsel for the petitioner, the Chairman of the Building Committee discriminated against the petitioner while not incorporating such conditions in his own case and incorporating these conditions in the case of the petitioner. This action itself shows that the respondent Corporation is harassing the petitioner like anything, therefore, the conditions imposed in the construction permission for leaving set-back and space for parking may be quashed and set aside and the respondent Corporation may be directed to grant construction permission to the petitioner on the same terms and conditions as granted to the Chairman of the Building Committee Jethu Singh for construction of his own building. It is also obvious from the order of construction permission that it is nowhere observed either in the meeting or in the permission that this permission is 23 granted under the Urban Improvement Trust Regulations 2001 and the writ petition filed by the petitioner may be allowed.
I have considered the arguments advanced by both the parties as well as entire pleadings of the case.
In this case, admittedly, the petitioner is holding land with clear title and for the same a free-hold patta was issued by the Government of the erstwhile State of Jodhpur; meaning thereby, the fact with regard to free- hold patta is not in dispute in this case. The petitioner applied for construction permission upon the said land but the permission was denied while saying that first the petitioner should get change of the land use from residential to commercial and, thereafter, construction permission will be granted. Against the said action, after sending notice for demand of justice, the petitioner preferred writ petition before the Division Bench of this Court challenging the validity of Section 173A of the Rajasthan Municipalities Act, 1959 and the said writ petition was disposed of with a direction to the respondents. During the course of hearing on 27.09.2007 it was brought to the notice of the Division Bench that the validity of Section 173A of the Act of 1959 has been upheld by the Division Bench of this Court in the case of Mewa 24 Ram Vs. State of Rajasthan, reported in 2006 (8) RDD 4199. Respondents were therefore directed by the Division Bench to decide the application of the petitioner on merit for construction permission in accordance with law within a period of two months and whatever decision is taken, the same may be communicated to the petitioner. Further it was observed that if the decision is taken against the petitioner, the petitioner may challenge the same before the appropriate forum in accordance with law.
After the above order of the Division Bench, admittedly, a notice was given by the petitioner to the Commissioner, Municipal Corporation, Jodhpur and while inviting attention towards the judgment of the Division Bench in the case of Ashok Kumar Bakliwal's case (D.B. Civil Writ Petition No.2415/2006), decided on 04.10.2006, a prayer was made by the petitioner that in view of the said judgment, he is not required to apply for conversion because by way of raising construction of commercial nature he is not deviating from the master-plan; and, rather, he is proceeding ahead in accordance with the master-plan, therefore, Section 173A comes into pay only when one intends to deviate from the master-plan. Learned counsel for the petitioner requested that as per the order dated 27.09.2007, passed in D.B. Civil Writ 25 Petition No.3200/2007, construction permission may be granted without insisting for payment of conversion charge; but, vide communication dated 22.11.2007, the petitioner was again informed that without conversion from residential to commercial, his application for construction permission cannot be considered. When this communication was received by the petitioner, then, again, the petitioner sent a notice on 21.12.2007 whereby he has specifically made the prayer that as per the judgments in Parashar Soni's case, Rajkumar Bhandari's case and Ashok Kumar Bakliwal's case, his application for grant of construction permission may be allowed without insisting upon payment of conversion charges. Upon aforesaid notice, the petitioner was directed to appear before the Chief Executive Officer for hearing, but, somehow, the matter was not decided by the CEO and the Commissioner passed order on 04.03.2008 which is impugned in this case.
During the course of hearing repeatedly it was brought to the notice of this Court by the petitioner that the respondents have no regard for the adjudication made by this Court which attained finality up to the Hon'ble Supreme Court in Parashar Soni's case and while ignoring the final verdict in Parashar Soni's case, decided by the 26 Hon'ble Supreme Court, the Commissioner, Municipal Corporation has rejected the application of the petitioner for construction permission for the reason of not obtaining the conversion of the land from residential to commercial vide the impugned order dated 04.03.2008. When the fact of the decision of the case of Parashar Soni was ignored and, on the basis of contrary opinion given by the DLR of the Corporation, the impugned order was passed by the Commissioner, then, on 17.03.2008, the Chief Executive Officer, Municipal Corporation, Jodhpur and DLR, Municipal Corporation, Jodhpur were directed to remain present in the Court. On 19.03.2008, the Commissioner of the Municipal Corporation along with the DLR was present in the Court and a prayer was made that the impugned order was passed by the Commissioner, therefore, the Commissioner and DLR are present in the Court instead of CEO. On that date, a prayer was made by learned counsel appearing on behalf of the respondents that the Corporation is going to withdraw the order dated 04.03.2008 and will pass appropriate order in accordance with law, therefore, an opportunity may be granted to the Corporation to pass fresh order.
In the interest of justice, while observing in the order dated 19.03.2008 that the matter shall be decided by the 27 CEO because he has sent the notice to the petitioner for hearing, the matter was adjourned to 26.03.2008.
On 26.03.2008, a prayer was made for listing the matter on 28.03.2008 and it was assured that the matter shall be decided till then by the CEO.
On 28.03.2008, when the case was listed in the Court, it was brought to the notice of this Court that the CEO has passed order after considering the judgment rendered by the Division Bench of this Court in D.B. Civil Writ Petition No.2145/2006, Ashok Kumar Bakliwal Vs. Municipal Board, Mt. Abu and so also the judgment dated 20.11.2007 passed by the Hon'ble Supreme Court in Parashar Soni's case, reported in 2007 (13) Scale 370, passed order that looking to the facts and circumstances of the case and after thoughtful consideration of the referred judgments and in view of the fact that the review is being filed against order dated 20.11.2007 by the State, the Building Permission Committee is requested to consider the application of the petitioner urgently and pass appropriate order even subject to the condition of the decision of the review petition, to be filed today in the Hon'ble Supreme Court of India and the decision of this writ petition. Thereby meaning, the Chief Executive Officer directed the Building Permission Committee to decide the 28 petitioner's application as per the judgment in Parashar Soni's case.
Thereafter, repeatedly, the petitioner made prayer to the respondents to decide his application for grant of construction permission; but, for one or the other reason, the permission for construction was not granted to the petitioner. Now, finally it is brought to the notice of this Court by the respondents that construction permission has been granted to the petitioner with certain conditions without insisting upon the petitioner to get conversion from residential to commercial purpose. As per the petitioner, the respondent are again imposing illegal conditions while allowing the application of the petitioner for permission of construction upon the land in question.
I have perused the minutes of the meeting of the Building Committee dated 22.09.2008 in which, at item No.40, the following decision for grant of construction permission has been taken by the said Committee :
"पस व स० 40 :-पत वल स० IBT (B) 269/2006-07 श द ल र ज भड र S/o र चनद, पल ट न० 781 च प सन र ड ज धपर क! पत वल प"श हई । पत वल क अवल कन ककय गय ।
उक म मल" म. प र0 स" कछ ब3नदओ पर कम प5र 7 करन" ह"
न टटस टदय गय । जजसक ज3 व टदन क 18.08.08 क प प हआ
पकरण पर क फ! गभभर प5व7 ववच र ककय गय । ववधधकर य क"
29
पररप"कय म" एक ररवय5 वपटटशन र जसर न र जय 3न म प र" शर स न म"
टदन क (रनण7य) 20.11.07 क" ववरद द यर ककय हआ हI । ज व म 7 न म" लजJ3 हI । र एस.3 .स . ररट य धचक स० 1740/08 द ल र ज भड र 3न म सट" ट व अनय प रर आद" श टदन क 28.03.08 क" मधय नजर भवन क! सव कLर पद न क! ज हI । यह सव कLर म नन य उचच म नय य लय नई टदलल व र जसर न उचच नय य लय म" लजJ3 य धचक ओ क" प रर आद" शO क" अधय धधन ह ग ।
अभभय ओ व उपनगर रनय जक द र पत वल क" पIर स.
N/5' व 53 म. पदभश7 म क एव करनक! अभय व"दन अनस र रनJन
श R क भववषय म. प लन करन" क" स र पस पस वव म नधचत
अनम टद ककय ज हI ।
1- शहर क! 3ढ आ3 द एव य य क धय न म. रख " हए
रनभम7 भवन म. सम5धच प कक7ग एव स"ट 3Iकस क रनयम नस र
वयवसर रखन अनव य7 ह ग ।
2- भवन ववरनमय 2001 म. रनटह प वध नO क" अनस र भवन
क! ऊच ई एव आचछ टद क"त (F.A.R) क! प लन करन आवशयक
ह ग जजसक" भलए भ5सव म 3 धय रह" ग ।
3- रनभम7 भवन म. अजZनशमन सयतण क! सर पन करन
आवशयक ह ग ।
4- ज धपर शहर म. 3ढ " भ5जल स र क धय न म. रख " हए
जल गह
L (Under Ground) क" रनम 7ण क! सव कLर टदय ज न सभव
नह हI ।
5- म नन य सवRचच नय य लय म. ररवय5 वपट शन र जसर न र जय
3न म प र" शवर स न म. टदन क (रनण7य) 20.11.07 क" ववरद द यर ककय हआ हI ज व म 7 न म. लजJ3 हI इस ररवय5 वपटटशन म. ह न"
व ल" रनण7य क! प लन करन" क" भलए भ5सव म 3 धय रह" ग ।
6- म नन य सवRचच नय य लय द र भ5 उपय ग पररव न
7 क"
स3ध म. रनगम क" पक म. रनण7य प रर करन" क! जसरर म.
भ5 स व म दर रनयम नस र आव"दन पत पस कर भ5 उपय ग
30
पररव न
7 क! र भश जम करव न" क" भलए 3 धय रह" ग ।
7- भवन ववरनमय 2001 क" प वध नO म. रनटह रनयमO क"
ववपर वयवस रयक भवन रनम 7ण करन" क! जसरर म. उक रनभम7
भवन क रनयम नस र क नन
5 पक\य अपन ई ज कर धवस ककय
ज न" क अधधक र रनगम क रह" ग ।
8- म नन य उचच नय य लय म. ववच र ध न जनटह य धचक ओ
म. टदए ज न" व ल" आद" शO क! प लन करन" क" भलए भ5 सव म 3 धय रह" ग ।
9- भववषय म. उक भ5खणड क" सव भमतव क" सJ3ध म. ककस
पक र क व द ववव द अरव उजर/ ए र ज प प ह न" पर उक
सव कLर अवIध रनक ह ग जजसक! सJपण
5 7 जव 3द" ह भ5 स व म क!
हग।
10- सJप5ण7 जम य Zय र भश रनगम क ष म. जम ह न" पर
पस वव म नधचत व सव कLर आद" श ज र ह ।
11- शहर म. 3ढ " य य क मधय नजर रख " हए रनभम7
भवन म. पदव5 ष इक ई वयवस य नह कर. ग"।
अ : सव7 सहमर स" पस व प रर कर वयवस रयक
पय जन र7 ह" सव कLर पद न क! ज हI । रनयम नस र सJपण
5 7
जम य Zय र भश पर ह सव कLर पत व अनम टद म नधचत ज र
ककय ज ए।"
Further, I have perused the conditions mentioned in the decision of the Building Construction Committee. In my opinion, after the judgment in Parashar Soni's case, no conversion is required for the use of the land of free-hold patta so issued initially. Therefore, the insistence of the respondent Corporation upon the petitioner to get the conversion of the land from residential to commercial is totally unfounded in view of the judgment of the apex 31 Court in Parashar Soni's case because, in that case, the Hon'ble Apex Court has held that in respect of the land bearing a free-hold patta issued by the State, no conversion is required, therefore, the denial of permission on the ground of conversion is totally illegal and has no foundation in the eye of law, therefore, the petitioner is very much entitled to get the construction permission without there being any necessity of conversion from residential to commercial use. But, here in this case, on the basis of illegal opinion of the DLR, the Corporation has unnecessarily harassed the petitioner knowing it well that the matter has been finally adjudicated upon up to the Hon'ble Apex Court with regard to land of free-hold patta and it is held that no conversion of land is required if the applicant holds a free-hold patta. Therefore, the action of the Municipal Corporation while insisting upon the petitioner to get the conversion from residential to commercial on the basis of illegal opinion of the DLR is totally unfounded and deprecated on account of its being an arbitrary and illegal insistence.
Secondly, I am in full agreement with the petitioner's counsel that till today no bye-laws have been framed by the Municipal Corporation, Jodhpur for the grant of construction permission. This fact is also admitted by the 32 respondents in this matter and it is prayed that they are following the Regulations of 2001 of the Urban Improvement Trust. It is very strange that since the establishment of the Municipality and inception of the Corporation thereafter, due to inaction on the part of the respondents, till today, no bye-laws of the Municipal Corporation, Jodhpur are in vogue having never been framed and approved by the State Government. It is indeed a deplorable state of affairs on the part of a local body of the stature of the respondent Corporation. Very surprisingly a deviant plea has been taken by the respondents in this case that although there is a provision in the Rajasthan Municipalities Act for framing the bye-laws for the grant of construction permission; but, bye-laws have not been framed and the Corporation is following the Urban Improvement Trust (Urban Area Building) Regulations 2001 because the same have been adopted and follows for last so many years and, so also, these regulations are applicable in the present case. There is neither any resolution for adoption of the Regulations of 2001 placed on record nor any approval has been taken by the Corporation from the State Government in this behalf.
In another application filed in the proceedings on 25.05.2008, in para 4, it is stated that no separate rules or 33 bye-laws for giving permission for construction of building has been framed but the Urban Improvement Trust (Urban Area Building) Regulations 2001 have been followed for last so many years and this position was also placed before thisd Hon'ble Court in the case of Mahendra Lodha Vs. State of Rajasthan & Others, reported in 2007 (2) WLC 666, in which, assertion was made that, "Specific provision of Urban Improvement Trust, Jodhpur (Urban Area, Building) Regulation, 2001 are in force for Jodhpur Urban Area. The same are being followed by Nagar Nigam also as per their agreement dated 17.07.2000 with U.I.T., the same should continue. However, Nagar Nigam, should take necessary action for approval of the above rules by State Govt. expeditiously." (Emphasis supplied) It is further stated in para 5 in the said application that certain modification were proposed but still they are under consideration and for the purpose of grant of permission for construction under Section 170 of the Act, Regulation has also been framed by the Municipal Corporation, Jodhpur but the same has not come into force as final approval has not been accorded by the State Government. Thereby meaning that admittedly as per admission of the respondents no bye-laws have been framed for grant of permission for construction and the 34 respondent Corporation is following the Regulations of 2001 of the Urban Improvement Trust. I am unable to understand that how without framing any rules for construction permission and without taking any approval from the State Government, under which authority of law the Corporation can adopt or borrow the Regulations of 2001 while specifically and expressly submission has been advanced before the Court that no rules or bye-laws have been framed till today and the Corporation is following the Regulations of 2001 prevailing in the Urban Improvement Trust. This action of the Municipal Corporation is also totally unconstitutional and contrary to the mandatory statutory provisions. On the one hand, the Corporation is using the borrowed regulations of the Urban Improvement Trust and harassing the citizens like anything and, on the other hand, not only approval has not been taken from the State Government to make applicable these regulations in the Corporation, so also, the State Government is not approving the bye-laws framed by the Corporation for grant of construction permission. Now, the respondents have taken shelter of the observations made in Mahendra Lodha's case in a public interest litigation and submitted that the stand of the Corporation was accepted that as per agreement the Nagar Nigam is following the Regulations of 35 2001 prevailing in the Urban Improvement Trust, Jodhpur; and, further, the Corporation is accepting that the Division Bench of this Court, in Mahendra Lodha's case, observed that the Nagar Nigam should take necessary action for approval of the rules by the State Government expeditiously; but, till today, no approval from the State Government has been sought nor the bye-laws framed by the Corporation are finally approved by the State Government.
In this view of the matter, it is obvious from the above discussion that the conditions imposed by the Building Construction Committee is totally arbitrary resting upon no rules or bye-laws. As per the respondents, the bye-laws framed by the Municipal Corporation have been sent to the State Government but, till today, no approval has been accorded by the State Government. In this view of the matter, specific direction is hereby given to the Municipal Corporation and State Government to finally frame the bye-laws or regulations for the grant of construction permission by the Municipal Corporation, Jodhpur and finalize the same by 15th of March, 2009.
I have perused the condition for leaving set-back and parking space. In my opinion, now, the construction permission has been granted to the petitioner by the 36 Building Committee of the Corporation which is hereby accepted except conditions No.1 and 2 and, for the same, the petitioner is raising voice that Chairman of the Committee Shri Jethu Singh is also having land in Soorsagar area in Jodhpur city and for grant of construction permission upon his land which is situated in Soorsagar area, an application was filed by the Chairman of the Building Construction Committee Shri Jethu Singh and he himself granted the construction permission upon his application in the meeting held on 26.07.2006 and resolution No.76 dated 20.07.2006 was passed upon which the construction permission was granted by the Commissioner, Nagar Nigam, Jodhpur, in which, no such conditions for leaving set-back and parking space have been incorporated. Further, it is revealed from the documents placed on record with regard to the construction permission accorded to the Chairman of the Building Construction Committee Shri Jethu Singh that on 30.05.2007 a construction permission was granted to him on the basis of so called decision taken by the Building Construction Committee headed by Jethu Singh himself (elected Member) and he himself granted the construction permission, in which, no such conditions were incorporated. The petitioner by way of filing an 37 application, during the course of arguments placed on record photographs that a commercial building has been constructed by Shri Jethu Singh in the garb of above permission although, as per the construction permission, the permission was granted for residential purpose but he has raised construction of commercial complex without leaving set-back and parking space which is evident from the photographs placed on record.
In my opinion, the Municipal Corporation cannot discriminate the case of the petitioner; more so, the Corporation will not allow even elected Members or President of the Committee to raise construction contrary to the permission granted by the Municipal Corporation. Therefore, if any permission has been granted to the Chairman of the Building Construction Committee without incorporating any conditions to leave set-back and parking space then obviously no such conditions can be imposed in the case of the petitioner also, therefore, for the purpose of conditions No.1 and 2, the matter shall be placed before the Chief Executive Officer and the Chief Executive Officer is hereby directed to enquire and examine the construction permission granted in respect of the building of the Chairman Jethu Singh who has granted construction permission upon his application as well as in the case of 38 the petitioner and did not incorporate the conditions to leave set-back and parking space in his own case while imposing the conditions in the case of the petitioner. The Chief Executive Officer while examining both the permissions and likewise other permissions, shall take final decision with regard to imposition of the conditions No.1 and 2 in the resolution dated 04.09.2008 and take final decision within a period of 15 days from the date of receipt of certified copy of this order.
Something is also required to be observed here that the application for construction was considered by the Committee headed by Jethu Singh Kachhawaha in the case of the petitioner on 22.09.2008 and, upon his application, the matter was considered in the meeting held on 26.07.2006. Admittedly, both these meetings were held after the year 2001 and, if the Regulations of 2001 were in existence, then, how the condition to leave set back and space for parking were not incorporated in the permission granted to the Chairman of the Committee himself while issuing the construction permission to him on 30.05.2007 and why it is incorporated in the case of the petitioner. It appears from this fact that the respondents have flagrantly violated the provisions of Article 14 of the Constitution of India and incorporated conditions No.1 and 2. It is also 39 very strange that in the photographs placed on record with regard to the building so constructed by the Chairman of the Building Construction Committee, it appears that five floor building is under construction which appears to be commercial in nature on the basis of so called permission dated 30.05.2007 granted by the Commissioner of the Corporation in favour of Jethu Singh Kachhawaha on the basis of the map placed on record. Both these photographs and map approved by the Corporation are contrary to each other; meaning thereby, it appears from the photographs and construction permission that the Chairman of the Construction Committee, in the garb of construction permission dated 30.05.2007, illegally raised huge construction for commercial purpose which is required to be enquired into by the C.E.O. It is made clear that the Chief Executive Officer shall examine whether Jethu Singh is having free-hold patta or not, and, if not so, then, he is required to get conversion of the land from residential to commercial in view of the provisions of Section 173A of the Act of 1959.
Therefore, the C.E.O., Municipal Corporation, Jodhpur shall also make an enquiry with regard to construction of building of Chairman of the Building Construction Committee Shri Jethu Singh Kachhawaha situated in 40 Soorsagar area and pass appropriate order if any construction raised by him is contrary to the permission granted vide permission dated 30.05.2007 and submit the report before this Court on 01.03.2009. Before that, the matter of imposing conditions No.1 and 2 by the Building Construction Committee shall also be decided afresh within the stipulated time and order shall be passed within the stipulated time.
With the above directions/observations, it is held that after the judgment of Parashar Soni's case, the petitioner is not required to get conversion of land and he is free to enjoy the utility of the land in question in any manner because initially the patta was free-hold patta issued by the erstwhile State of Jodhpur. Secondly, the decision upon the application for construction permission by the Building Construction Committee is hereby approved except conditions No.1 and 2 therein and till the decision of the Chief Executive Officer, as aforesaid, these conditions shall remain suspended.
In terms indicated above, this writ petition is allowed with cost.
(Gopal Krishan Vyas) J.
Ojha, a.