Rajasthan High Court - Jodhpur
Sanjeev Sachdeva & Anr vs State & Ors on 5 May, 2016
Author: Arun Bhansali
Bench: Arun Bhansali
1 of 12
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
:ORDER:
S.B.CIVIL WRIT PETITION NO.13557/2013
Sanjeev Sachdeva & Anr.
vs.
State of Rajasthan & Ors.
DATE OF ORDER : 5th May, 2016
PRESENT
HON'BLE MR.JUSTICE ARUN BHANSALI
Mr. G.R.Punia, Sr.Advocate assisted by
Mr. Vinay Jain & Mr. Sheetal Kumbhat, for the petitioners.
Dr.Pratistha Dave, Dy. Govt. Counsel.
Mr. R.S.Saluja, for the respondent Municipal Corporation,
Jodhpur.
:::
BY THE COURT:
This writ petition has been filed by the petitioners aggrieved against the demand notice dated 27/9/2013 (Annex.12) issued by the respondents and has sought a further direction to decide the representation in terms of Section 173-A (2) of the Rajasthan Municipalities Act, 1959 (for short `the Act').
The petitioners are owner of property ad measuring about 175.12 sq.mtrs. situated at Beriyon-ka-Mohalla outside Sojati Gate, Jodhpur by virtue of sale deed dated 11/9/2002 executed by Suraj Prakash, Chandra Prakash and Anand Prakash. The land in question had originally formed part of Patta No. 92 issued under the Marwar Patta Ordinance in favour of one Daya Ram by the then Jodhpur State in the year 1902. The petitioners wanted to raise construction and, therefore, they submitted an application in May, 2003, which was referred to Senior Town 2 of 12 Planner, Jodhpur Zone, Jodhpur, who gave his technical consent for conversion from residential use to commercial use subject to the conditions mentioned therein, which pertain to the stipulations regarding raising of construction after approval of the map providing for parking etc. In view of the conditions imposed by the Municipal Authorities, it is claimed that the petitioners applied for conversion under the Rajasthan Municipalities (Conversion of Land Use), Rules, 2000 (`the Rules of 2000') on 16/7/2003, whereafter, the Municipal Corporation in its meeting dated 23/2/2004 granted approval for conversion of the land in question and based on the application made by the petitioners and conversion permitted by the Municipal Corporation, a demand notice dated 2/4/2004 (Annex.8) was issued demanding a sum of Rs.5,17,800/-.
Feeling aggrieved, the petitioners filed S.B.Civil Writ Petition No.1944/2004, which came to be allowed by this Court on 22/5/2008, whereby, the conversion charges demanded by the respondent vide Annex.8 was quashed against which the D.B.Civil Special Appeal (Writ) No.159/2009 was preferred, which also came to be dismissed vide judgment dated 2/2/2009 by the Division Bench of this Court. Against the Division Bench judgment, the respondent Municipal Corporation approached the Hon'ble Supreme Court & the Hon'ble Supreme Court by its order dated 8/1/2013, since reported as Municipal Corporation, Rajasthan vs. Sanjeev Sachdeva & Ors. : (2013) 12 SCC 562, came to the conclusion that the judgment of this Court was based on unamended provisions of Section 173-A of the Rajasthan Municipalities Act, 1959 (`the Act') and the judgment in the case of State of Rajasthan & Ors. vs. Pareshar Soni :
3 of 12 (2007 ) 14 SCC 144 had no application. However, on a further plea being raised on behalf of the petitioners, the Hon'ble Supreme Court made the following observations while allowing the appeal:
"Learned counsel appearing for the respondents, however, submitted that the area in question is notified as commercial area under the Master Plan and, therefore, there is no question of any conversion of the residential property to commercial. We notice that this point was not raised before the High Court and we are, therefore, not called upon to decide that question. However, the respondents, if so advised, may take up this issue before the Corporation and it is for the Corporation to consider that issue in accordance with law. Appeals are accordingly allowed and the judgments of the High Court are set aside. However, there will be no order as to costs."
Pursuant to the directions of the Hon'ble Supreme Court, the petitioners filed a representation dated 5/2/2013 (Annex.11) with the Municipal Corporation inter alia with the submission that as the land use in question has been indicated as `Commercial' in the Master Plan, the petitioners are not required to seek conversion. It was further claimed that in view of the Tourism Policy, 2007 and Rule 12 (iii) as inserted in the Rules of 2000, the petitioners having constructed a Hotel, no conversion charges can be recovered. However, the respondents without deciding the submissions made by the petitioners in their representation, again issued a demand notice dated 27/9/2013 (Annex.12) demanding a sum of Rs.5,17,800/- as conversion charges.
The petitioners have placed on record a communication issued by the Assistant Town Planner, Jodhpur Zone, Jodhpur addressed to the Chief Executive Officer, Municipal Corporation, Jodhpur, wherein, it has been indicated that the land use of the plot in question in terms of the approved Mater Plan has been 4 of 12 indicated as `Commercial'.
It is submitted by the learned counsel for the petitioners that the demand raised by the respondents is ex facie baseless and against the express provisions of Section 173-A (2) and (3) of the Act inasmuch as the land use in question as indicated in the Master Plan is admittedly `Commercial' and the petitioners are seeking to put the land in question to commercial use only and, therefore, there is no question of demanding conversion charges. The provisions of Section 173-A only require conversion charges in case the land is sought to be put to use other than the land use indicated in the Master Plan and not otherwise. Reliance was placed on Hilton Estate Pvt. Ltd. vs. State of Rajasthan & Ors. : 2005 (2) DNJ (Raj.) 744. Though further submissions were made regarding the applicability of Tourism Policy and the amendment made in Rule 12 of the Rules of 2000, however, the said aspect, on account of apparent lack of retrospectivity in the said Policy and Rule, was not pressed.
Learned counsel for the respondents duly supported the demand raised. It was submitted that the amended provisions of Section 173-A authorizes the respondents to levy conversion charges in case the land in question is put to a different use in terms of Section 173-A (3) of the Act. It was claimed that under the amended provisions, permission for conversion of land use has to be taken even in regard to an area situated in the Master Plan and such permission could be granted only when such conversion is in accordance with the Master Plan i.e. in a residential colony, as per the Master Plan, conversion of land use to commercial cannot be granted but such a permission could be granted for conversion of residential plot for the purpose of 5 of 12 construction for commercial use only in the event if in the Master Plan the area is notified as `Commercial'. Reliance was placed on Kishan Lal Pungalia vs. Municipal Corporation, Jodhpur & anr. :
S.B.Civil Writ Petition No. 4197/2002 decided on 17/12/2002.
I have considered the submissions made by the learned counsel for the parties and have perused the material available on record.
The provisions of Section 173-A of the Act reads as under:-
"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 that for which such land was originally allotted or sold to any person by the State Government, any municipality, any other local authority or any other body or 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 purposes. (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 6 of 12 commencement of the Rajasthan Municipalities (Amendment) Act, 1999 (Act No.19 of 1999) for regularization of said use and upon 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." At the outset, it may be noticed that in terms of Annex.13, it is not in dispute that the land use of the plot in question in the Master Plan has been indicated as `Commercial'.
A bare reading of the above provisions reveals that the Section is in two parts; while sub-sections (1) and (2) deals with the restriction on change of use of land, sub-sections (3) to (7) deals with the power of the State Government to allow change of use of land. While sub-section (1) provides that where a land was originally allotted or sold to any person by the State Government, any Municipality, any other local authority or any other body or authority in accordance with the law for the time being in force, no person shall use or permit the use of any land situated in any municipal area for the purpose other than that for which such land was originally allotted or sold or otherwise than as specified under a Master Plan, wherever it is in operation. The said provision is confined to land originally allotted or sold by the State Government or local authority and the restriction imposed 7 of 12 is that the same cannot be used contrary to the purpose for which it was originally allotted or other than as specified under a Master Plan.
Sub-section (2) deals with the land other than which is covered by sub-section (1) i.e. land not allotted or sold by the State Government or any local authority for which a restriction has been imposed that no person would use or permit the use of any 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. The stipulation under sub-section (2) is that the land other than covered by sub-section (1) cannot be used for the purpose other than for which the land use is permissible in the Master Plan, wherever it is in operation. The further stipulation `or under any law for the time being in force', apparently applies where no Master Plan is in force.
Sub-section (3), which starts with a non obstante clause and as already noticed deals with the power of the State Government to allow change of use of land, provides that where the land cannot be put to desired use on account of restrictions as contained in sub-section (1) and sub-section (2), the State Government or any authority authorized by it 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 and it further provides for the change in use which are permissible. Sub-section (3) necessarily provides that the restrictions as imposed under sub-section (1) and sub-section (2) can be relaxed in public interest on payment of conversion 8 of 12 charges and the restrictions have to be read only as stipulated under sub-section (1), which in case of land allotted by the State Government or local authority is regarding the purpose for which the land was originally allotted or contrary to the use indicated in the Master Plan and under sub-section (2) is regarding land use permissible in accordance with the Master Plan and no other stipulation can be read into the said provisions.
In the present case, admittedly, the land in question has not been allotted by the State Government, municipality or any local authority and is part of a Patta issued in the year 1902, therefore, sub-section (1) has no application and it is only if the intended use falls foul of the Master Plan that sub-section (2) could be invoked for the purpose of demanding conversion charges under sub-section (3) read with sub-section (5) of the Act and not otherwise.
As already noticed more than once that the land use as indicated in the Master Plan is `Commercial' and the petitioners are seeking to use the land in question for commercial purpose, apparently, the provisions of sub-section (2), which provides for restriction does not come into picture at all and consequently, there is no question of invoking sub-section (3) for the purpose of demanding conversion charges.
A submission was sought to be made by learned counsel for the respondent Municipal Corporation that even where the Master Plan indicates a particular land use and the land in question is already in use other than what is indicated in the Master Plan, a person seeking to use the land as indicated in the Master Plan would have to seek conversion as in the present case, though the land use indicated in the Master Plan is 9 of 12 `commercial', as the land was being used for residential purpose, the petitioners are required to seek conversion for putting the land to commercial use. A plain reading of the provision of sub-section (2) and (3) of the Act does not warrant any such interpretation, which is sought to be put by the learned counsel for the respondents.
As noticed hereinabove, it is only and only if the intended land use falls foul to the use indicated in the Master Plan that the restrictions contained in sub-section (2) would come into play and would result in demand of conversion charges under sub-section (3) or (5) and not otherwise. The golden rule of interpretation provides that the plain reading of the provision has to be employed unless the context requires otherwise and the plea sought to be raised by the learned counsel for the respondents is reading beyond what is contained in the provisions.
Learned counsel for the respondents with reference to the Statement of Object and Reasons of the Amendment Act, 1999 by which the present Section 173-A came to be inserted sought to support the demand for conversion charges. The Statement of Objects & Reasons reads as under:-
"The existing provisions contained in Section 173- A of the Rajasthan Municipalities Act, 1959 provide that where any land has been allotted or sold subject to the condition of restraining its use for a particular purpose, to any person by a Municipality or the State Government, the State Government may, if it is satisfied so to do in public interest, allow the owner or holder of the land, to use it for any other person other than the purpose for which it was originally allotted or sold, on payment of such conversion charge as may be prescribed.
With a view to ensure planned and regulated development of the urban areas it is necessary to restrict and bar the change of use in certain circumstances of those lands also which were not sold or allotted by Municipality or the State Government. However, the
10 of 12 power of the State Government or any other authority authorized by it, to allow change of use of land, on payment of conversion charges is sought to be retained.
With a view to achieve the aforesaid objective, the existing section 173-A of the Rajasthan Municipalities Act, 1959 is proposed to be substituted"
A bare perusal of the Objects & Reasons reveals that the object indicated is to ensure planned and regulated development of the urban areas to restrict and bar the change of use in certain circumstances of those lands also which were not sold or allotted by Municipality or the State Government and to give power to the State Government to allow change of use of land on payment of conversion charges.
The source for ensuring planned and regulated development is the Master Plan which provides for the designated land use of particular area and once the land use of the area has been marked as `Commercial', it cannot be said that if within that area a residential building or a vacant plot is put to commercial use, the same would be against the planned and regulated development of the said urban area and, therefore, the plea raised in this regard has no substance.
A feeble attempt was made to rely on the Rules of 2000 and the definition contained in Rule 2 (vi) of the Rules, which deals with `change of land use'. However, it would be seen that the said Rules have been framed under Section 297 read with Section 173-A of the Act and the stipulations contained in the Rules have to be read only in context of the provision i.e. Section 173-A of the Act and cannot be termed as an independent stipulation imposing/requiring payment of conversion charges de hors the provision i.e. Section 173-A of the Act.
So far as the judgment in the case of Kishan Lal Pungalia (supra) relied upon by the learned counsel for the respondents is
11 of 12 concerned, a perusal of the said judgment reveals that reliance was placed on the law as laid down by this Court which pertain to unamended Section 173-A of the Act and this Court after referring to the amended provisions of Section 173-A of the Act held against the petitioner therein. The judgment no where deals with the aspect as to whether for putting a land to a use as stipulated in the Master Plan, any conversion at all can be demanded under Section 173-A of the Act and, therefore, the said judgment also has no application.
The applicability of Section 173-A (2) can also be examined with reference to Section 182 of the Rajasthan Municipalities Act, 2009, which Act has replaced the Act of 1959, wherein, sub- section (2) only has been replaced, which now reads as under:-
"182. Restriction on change of use of land and power of the State Government to allow change of use of land.-
(1).......
(2) In 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 was being used on or before the commencement of this Act."
A bare look at the above provision would reveal that same is poles apart from what was stipulated under Section 173-A (2) of the Act and the very fact that the provision contained in the old Act has been drastically amended, which appears to be in tune with the submissions sought to be made by the learned counsel for the respondents, necessarily means that the provisions of Section 173-A (2) of the Act do not envisage a situation as sought to be projected by the learned counsel for the respondents.
Consequently, the demand raised by the respondents vide demand notice dated 2/4/2004 (Anne.8) and reiterated vide 12 of 12 demand notice dated 27/9/2013 (Annex.12) cannot be sustained being contrary to the provisions of Section 173-A (2) & (3) of the Act.
In view of the above discussion, the writ petition filed by the petitioners is allowed, the demand notice dated 2/4/2004 (Annex.8) and 27/9/2013 (Annex.12) are quashed and set aside. No orders as to costs.
(ARUN BHANSALI), J.
baweja/-