THE MAYOR JAIPUR MUNICIPAL CORPORATION & ANR.V. THAKUR SHIV RAJ SINGH & ORS. versus THAKUR SHIV RAJ SINGH & ORS. on 5 August 2019

[2019] 10 S.C.R. 1023

THE MAYOR JAIPUR MUNICIPAL CORPORATION & ANR.

v.

THAKUR SHIV RAJ SINGH & ORS.

(Civil Appeal No.6030 of 2019)

AUGUST 05, 2019

[ASHOK BHUSHAN AND NAVIN SINHA, JJ.]

Rajasthan Municipalities Act, 1959 – s.173-A – Predecessor-in-interest of the respondents purchased the property in question –After his death, respondents became the owner of the property –Respondents made application to the Corporation for conversionof land use as condition precedent for sanction of building planfor constructing commercial-cum-residential complex – Corporationdirected the respondents to deposit Rs.1,01,04,672/- towards theconversion charges – Respondents reserving their rights, depositedthe amount –Conversion of the land use allowed– Respondentsissued notice to the Corporation claiming refund – Respondentsfiled writ petition in the High Court – Dismissed – Special appealfiled by the respondent before the Division Bench – Allowed–Direction to the appellants to refund Rs.1,01,04,672/- with interest– Held: s.173-A deals with the power of the State Government toallow the change of use of land – s.173-A was amended byAmendment Act of 1999 – Prior to amendment, the power of theState Government to allow the change in the use of land was confinedto a land allotted or sold by Municipality or the State Government–Both sub-ss.1 & 2 of s.173-A now contain restriction on both thecategories of land, i.e. (i) originally allotted/sold by the StateGovernment/any Municipality/other local authority/body/legalauthority (ii) in the case of any land not allotted or sold and notcovered u/sub-sec.1 of s.173-A – Restriction is with regard to theland use as provided in Master Plan –In the present case, eventhough prior to amendment of s.173-A, the respondents were usingthe land for commercial purposes, that user is prohibited by virtueof restriction brought by amended s.173-A(2) – Division Bench wasunduly led by the fact that land which was purchased in 1959 wasbeing used for commercial purpose – It did not advert to either sub-sec.2 of s.173-A or to the land use in the Master Plan at the relevant

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Atime, i.e., in 2002 when the respondents made application forsanction of building plan – Although, appellants brought on recordthe Land Use Plan 2011, which is in force w.e.f. 01.09.1998, therespondents contended that the said Plan does not conclusivelyestablish that land use of the property in question was residential –Impugned judgment set aside – To meet the ends of justice,Brespondents given liberty to submit representation to theCorporation, if there are any materials and grounds that in theMaster Plan in operation in 2002, the land use of the property inquestion was not residential but commercial – RajasthanMunicipalities (Amendment) Act, 1999.

CAllowing the appeal, the Court

Conclusion

CAllowing the appeal, the Court

HELD: 1.1 Section 173-A of Rajasthan Municipalities Act,1959 is provision dealing with the power of the State Governmentto allow the change of use of land. Section 173-A was amended byRajasthan Municipalities (Amendment) Act, 1999. The demandDfor conversion charges having been raised in the present case inthe year 2002, the provisions of Section 173-A as amended byAct 19 of 1999 are applicable in the present case. A perusal ofunamended and amended Section 173-A indicates that there issubstantial change in the statutory provision of RajasthanEMunicipalities Act, 1959. Prior to amendment, the power of theState Government to allow the change in the use of land wasconfined to a land allotted or sold by Municipality or the StateGovernment. The amended Section 173-A has not only changedheading of the Section but contents also. Section 173-A asamended contains restriction on use of land. Both sub-sectionF(1) and sub-section (2) of Section 173-A now contain a restrictionon both the categories of land, i.e., (i) originally allotted or soldby the State Government, any Municipality and other localauthority or any other body or legal authority; (ii) in the case ofany land not allotted or sold and not covered under sub-sectionG(1). The restriction is that no person shall use or permit the useof any such land situated in a municipal area other than that forwhich such land use was or is permissible, in accordance with theMaster Plan, wherever it is in operation. The amended provisionof Section 173-A has been brought on the Statute book to ensureplanned development of a municipal area. Master Plans are to beH

prepared according to the statutory Scheme keeping in view thefuture developments of the city and the municipal area. A cleardistinction between the statutory Scheme under Section 173-A,unamended and amended, is visible. Earlier the restriction wasthere only with regard to land, which has been allotted or sold toany person by a Municipality or the State that too restriction forland use for any other purpose other than the purpose for whichit was originally allotted or sold. After the amendment restrictionis with regard to the land use as provided in Master Plan. Even ifprior to amendment in Section 173-A, a person holding the landwhich was neither allotted nor sold to it by Municipality or Statecould have used the land for any purpose, the restriction has nowbeen placed by amended Section 173-A. In the facts of the presentcase, even though prior to amendment of Section 173-A therespondents were using the land for commercial purposes thatuser is prohibited by virtue of restriction brought by amendedSection 173-A(2) for using the land for a purpose other than onewhich is permitted under Master Plan, permission of State or anyauthority authorised by it, is required as provided by sub-section(3) of Section 173-A. [Paras 8, 10] [1030--C;1033-B-H; 1034-A]

1.2 In event, the appellants claim that land use of Plot No.21in the Master Plan 2011 enforced w.e.f. 01.09.1998 is acceptedas residential, the restriction as imposed by sub-section 2 ofSection 173-A as amended by Act, 1999 shall come into force andfor change of land use as given in Master Plan 2011, therespondents were obliged to seek permission under sub-section(3) of Section 173-A and without payment of conversion charges,they could not have obtained sanction map for commercial use ofthe land. [Para 14] [1034-G-H; 1035-A]

1.3 The pleading of the respondents only indicates thatwhen they intended to construct multi-storeyed building forcommercial-cum-residential complex they were told to depositconversion charges as condition precedent for sanction map.Single Judge in its judgment had noted that the respondentsintended to deposit conversion charges for the land use ascommercial-cum-residential complex. The submission of thecounsel for the respondents that they were forced to apply forconversion of land use from residential to commercial does not AB

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Acommend. Whether the respondents were liable to deposit theconversion charges is to be determined in accordance with thestatutory Scheme and statutory requirement. In the event, underthe Statute they were obliged to obtain conversion of land usefrom residential to commercial, they were bound to do the sameand the fact that they were asked by the Corporation to do theBsame is inconsequential. The Division Bench in the impugnedjudgment has been unduly led by the fact that land which waspurchased in the year 1959 is being used for commercial purpose.The Division Bench did not advert to sub-section (2) of Section173-A as amended by Act 19 of 1999 and its consequences. TheCDivision Bench did not consider the issues raised in the appealin the correct perspective and has not adverted to the effect andoperation of the statutory Scheme as delineated by sub-section(2) of Section 173-A as amended by Act 19 of 1999. The DivisionBench did not advert to either sub-section (2) of Section 173-Aor to the land use in the Master Plan at the relevant time, i.e., inDthe year 2002 when the respondents made an application forsanction of building plan. The appellants although have broughton record the Land Use Plan 2011, which is in force w.e.f.01.09.1998 along with their rejoinder-affidavit but since duringthe submission the counsel for the respondents has contended Ethat the said Land Use Plan 2011 does not conclusively establishthat land use of Plot No.21 was residential, ends of justice shallbe served in giving liberty to the respondents to submit arepresentation before the Corporation, if there are any materialsand grounds that in the Master Plan which was in operation inthe year 2002, when respondents submitted an application thatFland use of Plot No.21, Lal Niwas was not residential butcommercial. The impugned judgment is set aside. [Paras 18-20and 24] [1038-C-F; 1039-B-C; 1040-B-D]

Municipal Corporation, Rajasthan v. Sanjeev Sachdevaand Others(2013) 12 SCC 562 : [2013] 1 SCR 220 –Gheld applicable.

Case Law Reference

[2013] 1 SCR 220held applicable

Para 14

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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6030of 2019

From the Judgment and Order dated 12.01.2018 of the DivisionBench of the High Court of Judicature for Rajasthan, Jaipur Bench, atJaipur in D.B. Special Appeal (Writ) No. 793 of 2006

Harin P. Raval, Sr. Adv., Shiv Mangal Sharma, Saurabh Rajpal,Kartikey Bhatt, M/s. Aura & Co., Advs. for the Appellants.

Vivek Jain, Ms. Suchitra Kumbhat, Pancham Surana, AnshulSharma, Advs. for the Respondents.

The Judgment of the Court was delivered by ASHOK BHUSHAN, J.

1. The Jaipur Municipal Corporation has filed this appealchallenging the Division Bench judgment of Rajasthan High Court, Benchat Jaipur dated 12.01.2018 by which the Special Appeal filed by therespondents questioning the judgment of learned Single Judge has beenallowed and the appellants have been directed to refund the conversioncharges deposited by the respondents along with six percent interest.

2. Brief facts of case giving rise to this appeal are:

Lt. Col. Late Harnath Singh, the predecessor-in-interest of therespondents by registered sale deed dated 16.04.1959 had purchasedthe property in question known as ‘Lal Niwas’ from His Highness SawaiMan Singh of Jaipur. Lt.Col. Late Harnath Singh died on 08.01.1997after which the respondents became owner of the property. Therespondents, with intent to develop by constructing a multi-storeyedbuilding, commercial-cum-residential complex in the area of 8080.14square meter, made an application to Corporation for conversion of landuse as condition precedent for sanction of building plan for constructingcommercial-cum-residential complex. The Corporation issued an orderdated 22.02.2003 directing the respondents to deposit an amount ofRs.1,01,04,672/- towards the conversion charges. The respondentsreserving their rights deposited the amount through pay order dated20.03.2003. An order dated 06.05.2003 was passed by the Corporationallowing the conversion of the land use of the aforesaid land. The buildingplan was thereafter approved by the Corporation on 08.01.2004. Therespondents issued notice dated 28.04.2004 to the Corporation calling A

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Aupon the appellants to pay a sum of Rs.1,13,86,703/- along with interest.The respondents filed a Writ Petition No.4783 of 2004 in the High Courtof Rajasthan at Jaipur Bench praying for following reliefs:

“(i) By an appropriate writ, order and direction impugned ordersdated 22.02.2003 (Annexure.2), order dated 01.04.1003B(Annexure.4), 19.11.2003 & 20.12.2003 (Annexure.7) passedby the respondents No.2 & 3 may kindly be quashed and setaside.

(ii) By an appropriate writ, order or direction the respondentsmay be directed to refund the amount of RupeesC1,01,04,672/- charged/ extracted by the respondents towardsconversion charges of the land in question and an amount ofRupees 6,31,542/- and Rupees 6,59,961/- charged by therespondents towards Shahari Jama Bandi & interest thereon,thus totalling Rs. 1,13,96,175/- from the petitioners along withinterest @ 18% p.a. thereon as damages for unnecessarilyDwithholding the aforesaid amount w.e.f. date of deposit tothe date of payment. The respondents may further be directedto refund the total amount as prayed hereinabove to thepetitioners in the proportion viz. 30% to Thakur Shiv Raj Singh(Petitioner No.1) and 1/3[rd] of the remaining to each of theEPetitioners No.2 to 4.

(iii) Cost of litigation be awarded to the petitioners.

(iv) Any other order(s) as this Hon’ble High Court may deem fitand proper in the facts and circumstances of the present writpetition be also passed in favour of the humble petitionersFand against the respondents.”

3. In the writ petition, the Corporation filed its reply. TheCorporation resisted the writ petition. A learned Single Judge of the HighCourt vide its judgment dated 04.07.2006 dismissed the writ petition.Aggrieved against the judgment of learned Single Judge, Special AppealGwas filed by the respondent before the Division Bench. The DivisionBench of the High Court vide its impugned judgment dated 12.01.2018allowed the Special Appeal and directed for refund of the amount ofRs.1,01,04,672/- with interest. The Corporation aggrieved by the judgmentof the Division Bench has come up in this appeal.

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4. We have heard learned counsel for the appellants as well aslearned counsel appearing for the respondents.

5. Learned counsel for the appellants submits that it is therespondents who had submitted an application for paying conversioncharges to enable sanction of building plan of commercial-cum-residentialcomplex in the premises in question. The Corporation had directed fordeposit of conversion charges which were deposited by the respondents.The respondents are not entitled to claim any refund. They havethemselves deposited the conversion charges. It is submitted that in viewof the land use of plot in the Master Plan, which was in force at the timewhen the application was moved by the respondents, i.e., ‘residential’, itwas obligatory for the respondents to seek permission for using the landfor commercial purpose as required by Section 173-A of RajasthanMunicipalities Act, 1959 as amended by Act 19 of 1999. It is submittedthat the respondents’ map for sanction of building plan for commercial-cum-residential plot could not have been sanctioned unless the conversionof land use was permitted and the amount demanded by the Corporationfrom respondents was the amount of conversion charges of land use. Itis submitted that the Division Bench without considering the relevantissues and provisions of Section 173-A allowed the appeal. The DivisionBench erred in directing for refund of the amount deposited by therespondents.

6. Learned counsel for the respondents refuting the submissionsof the learned counsel for the appellants contends that the respondentswere forced to deposit the amount of Rs.1,01,04,672/- by the Corporation.The respondents deposited the amount under protest. It is submitted thatfrom the date property was purchased in the year 1959, the property isbeing used for commercial purposes. It is submitted that a CompanyM/s. Hindustan Salts Limited was using the premises for commercialpurpose till M/s. Hindustan Salts Limited handed over the premises inthe year 1996 to Lt. Col. Late Harnath Singh. When the premises wasbeing used for commercial purpose since before the date when buildingplan for constructing commercial-cum-residential complex was made,there was no occasion for payment of any conversion charges. It issubmitted that in Master Plan the land use of plot in question as on dateas well as at the relevant time was commercial. It is submitted that therespondents were not liable to pay any conversion charges and the A

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ACorporation, having realised the conversion charges illegally and arbitraryfrom the respondents, is obliged to refund the amount. It is submittedthat the learned Single Judge also has returned a finding that the land inquestion is being used for commercial purposes.

7. We have considered the submissions of the learned counsel forBthe parties and have perused the records.

8. Before we enter into the submissions made by the learnedcounsel for the appellants, it is relevant to notice the relevant provisionsof Rajasthan Municipalities Act, 1959 pertaining to land user. Section173-A is provision dealing with the power of the State Government toCallow the change of use of land. Section 173-A was amended by RajasthanMunicipalities (Amendment) Act, 1999. It is useful to notice the provisionsof Section 173-A before the amendment and after the amendment whichare as follows:

“Section 173-A of the Act, prior to its amendment, reads as follows:

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“173-A.Power of the State Government to allow change inthe use of land.-(1) Notwithstanding anything contained in thisAct, where any land has been allotted or sold to any person by amunicipality or the State Government subject to the condition ofrestraining its use for a particular purpose, the State GovernmentEmay, if it is satisfied so to do in public interest, allow the owner orholder of such land to use it for any other purpose other than thepurpose for which it was originally allotted or sold, on payment ofsuch conversion charges as may be prescribed:

Provided that the rates of conversion charges may be differentfor different areas and for different purposes.

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

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

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

MAYOR JAIPUR MUNICIPAL CORPORATION & ANR. v.THAKUR SHIV RAJ SINGH & ORS. [ASHOK BHUSHAN, J.]

“Section 173-A - Restriction on change of use of land andpower of the State Government to allow change of use ofland.-(1) No person shall use or permit the use of any land situatedin any municipal area, for the purpose other than that for whichsuch land was originally allotted or sold to any person by the StateGovernment, any municipality, and other local authority or anyother body or authority in accordance with any law for the timebeing in force or, otherwise than as specified under a MasterPlan, wherever it is in operation.

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

(3) Notwithstanding anything contained in sub-section (1) orsub-section (2), the State Government or any authority authorisedby it by notification in the Official Gazette, may allow the owneror holder of any such land to have change of use thereof, if it issatisfied so to do in public interest, on payment of conversioncharges at such rates and in such manner as may be prescribedwith 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 differentfor different areas and for different purposes.

(4) Any person who has already changed the use of land inviolation of the provisions of this Act in force at the time of changeof use, shall apply to the State Government or any authorityauthorised by it under sub-section (3), within six months from thedate of commencement of the Rajasthan Municipalities(Amendment) Act, 1999 (19 of 1999) for regularisation on said

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use and upon regularisation of the change of use of land he shalldeposit the amount contemplated under sub-section (3).

(5) Where the State Government or the authority authorised by itunder sub-section (3) is satisfied that a person who ought to haveapplied for permission or regularisation under this Section, has notapplied and that such permission can be granted or the use of landcan be regularised, it may proceed to determine the conversioncharges after due notice and hearing the party/parties and thecharges so determined shall become due to the municipality andbe recoverable under sub-section (7).

(6) The conversion charges so realised shall be credited to thefund of the municipality.

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

9. Statement of Objects and Reasons of the Amendment Act of1999 is also relevant to notice, which is to the following effect:

“The existing provisions contained in Section 173-A of theRajasthan Municipalities Act, 1959 provide that where any landhas been allotted or sold subject to the condition of restraining itsuse for a particular purpose, to any person by a Municipality orthe State Government, the State Government may, if it is satisfiedso to do in public interest, allow the owner or holder of the land, touse it for any other purpose other than the purpose for which itwas originally allotted or sold, on payment of such conversioncharge as may be prescribed.

With a view to ensure planned and regulated developmentof the urban areas it is necessary to restrict and bar the change ofuse in certain circumstances of those lands also which were notsold or allotted by Municipality or the State Government. However,the power of the State Government or any other authorityauthorised by it, to allow change of use of land, on payment ofconversion charges is sought to be retained.

With a view to achieve the aforesaid objective, the existingSection 173-A of the Rajasthan Municipalities Act, 1959 is proposedto be substituted.”

10. The demand for conversion charges having been raised in thepresent case in the year 2002, the provisions of Section 173-A as amendedby Act 19 of 1999 are applicable in the present case. A perusal ofunamended and amended Section 173-A indicates that there is substantialchange in the statutory provision of Rajasthan Municipalities Act, 1959.Prior to amendment, the power of the State Government to allow thechange in the use of land was confined to a land allotted or sold byMunicipality or the State Government. The amended Section 173-A hasnot only changed heading of the Section but contents also. Section 173-A as amended contains restriction on use of land. Both sub-section (1)and sub-section (2) of Section 173-A now contain a restriction on boththe categories of land, i.e., (i) originally allotted or sold by the StateGovernment, any Municipality and other local authority or any otherbody or legal authority; (ii) in the case of any land not allotted or sold andnot covered under sub-section (1). The restriction is that no person shalluse or permit the use of any such land situated in a municipal area otherthan that for which such land use was or is permissible, in accordancewith the Master Plan, wherever it is in operation. The amended provisionof Section 173-A has been brought on the Statute book to ensure planneddevelopment of a municipal area. Master Plans are to be preparedaccording to the statutory Scheme keeping in view the futuredevelopments of the city and the municipal area. A clear distinctionbetween the statutory Scheme under Section 173-A, unamended andamended, is visible. Earlier the restriction was there only with regard toland, which has been allotted or sold to any person by a Municipality orthe State that too restriction for land use for any other purpose otherthan the purpose for which it was originally allotted or sold. After theamendment restriction is with regard to the land use as provided in MasterPlan. Even if prior to amendment in Section 173-A, a person holding theland which was neither allotted nor sold to it by Municipality or Statecould have used the land for any purpose, the restriction has now beenplaced by amended Section 173-A. In the facts of the present case,even though prior to amendment of Section 173-A the respondents wereusing the land for commercial purposes that user is prohibited by virtue A

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11. We need to notice the land use as permissible in the MasterBPlan, which was in operation at the relevant time when respondentssubmitted an application for sanction of building plan for commercial-cum-residential complex.

12. The appellants have filed a rejoinder-affidavit dated 26.07.2019wherein Jaipur Development Authority Land Use Plan-2011 has beenCbrought on record as Annexure-R/1, which indicates that MasterDevelopment Plan was prepared and approved, which Plan for JaipurRegion came into force with effect from 01.09.1998. In paragraph 6(c)of the rejoinder-affidavit, it has been pleaded that the Master Plan 2011has been notified on 01.09.1998. It was further pleaded that with a viewto ensure planned and regulated development, the Master Plan 2011 forDJaipur Region was notified in which the present area where the propertyin question is situated was declared a ‘residential’ area. In the Land UsePlan 2011 of Master Plan 2011 as per Annexure-R/1 Plot No.21, LalNiwas is mentioned as residential as submitted by the learned counselfor the appellants.

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13. Learned counsel appearing for the respondents has submittedthat Annexure-R/1 filed by the appellants along with the rejoinder-affidavitis only a map which cannot be read to mean that land use of Plot No.21,Lal Niwas, has been shown as residential except that it has been markedas residential by officials of the Corporation. It has further been pleadedFin the rejoinder-affidavit that in Master Plan 2025, which was broughtinto force on 01.09.2011, the property in question has now been earmarkedas commercial.

14. In event, the appellants claim that land use of Plot No.21 inthe Master Plan 2011 enforced w.e.f. 01.09.1998 is accepted asGresidential, the restriction as imposed by sub-section 2 of Section 173-Aas amended by Act, 1999 shall come into force and for change of landuse as given in Master Plan 2011, the respondents were obliged to seekpermission under sub-section (3) of Section 173-A and without paymentof conversion charges, they could not have obtained sanction map for H

MAYOR JAIPUR MUNICIPAL CORPORATION & ANR. v.THAKUR SHIV RAJ SINGH & ORS. [ASHOK BHUSHAN, J.]

commercial use of the land. This Court in Municipal Corporation,Rajasthan vs. Sanjeev Sachdeva and others, (2013) 12 SCC 562,had occasion to consider Section 173-A as amended by Act 19 of 1999.

15. In the above case also, the respondents therein had purchaseda plot of land with a house on 09.09.2002, situated in a residential areaby way of a registered sale deed. On an application submitted forconversion of land use from residential to commercial, certain amountwas deposited by the respondents. The respondents filed a writ petitionchallenging the vires of the amended Section 173-A as well as the demandnotice. The writ petition after some litigation was allowed by the learnedSingle Judge and demand notice was quashed. The Division Benchdismissed the appeal of the Corporation against which judgment theMunicipal Corporation had come to this Court. This Court whileinterpreting Section 173-A laid down following in paragraph Nos.11, 12and 13:

“11. A bare reading of unamended Section 173-A(1) of theAct would indicate that the conversion for change of land usecharges could only be realised if the land was allotted by theMunicipality or the State Government and there was a conditionfor restraining use for a particular purpose only. Therefore, in theabsence of land being allotted by the State Government/Municipality and in absence of any specific stipulation regardinguse of land, the conversion charges could not be claimed. Thiswas the ratio laid down in Pareshar Soni case, (2007) 14 SCC144, interpreting the unamended Section 173-A of the Act. TheLegislature, with a view to ensure planned and regulateddevelopment of the urban area felt it necessary to charge for thechange of use in certain circumstances of those lands which werenot sold or allotted by municipality or by the State Government,Further, it is also felt that such a change of user be permitted only“in public interest”. In this connection, we may refer to theStatement of Objects and Reasons of the Amendment Act, 1999,which reads as under:

“The existing provisions contained in Section 173-A ofthe Rajasthan Municipalities Act, 1959 provide that where anyland has been allotted or sold subject to the condition of

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restraining its use for a particular purpose, to any person by aMunicipality or the State Government, the State Governmentmay, if it is satisfied so to do in public interest, allow the owneror holder of the land, to use it for any other purpose other thanthe purpose for which it was originally allotted or sold, onpayment of such conversion charge as may be prescribed.

With a view to ensure planned and regulated developmentof the urban areas it is necessary to restrict and bar the changeof use in certain circumstances of those lands also which werenot sold or allotted by Municipality or the State Government.However, the power of the State Government or any otherauthority authorized by it, to allow change of use of land, onpayment of conversion charges is sought to be retained.

With a view to achieve the aforesaid objective, the existingSection 173-A of the Rajasthan Municipalities Act, 1959 isproposed to be substituted.”

12. Amended Section 173-A not only restricts the changeof use of land, as the same has been allotted by the municipalityor the State Government, but also put restrictions if the land hasbeen allotted by any other local authority. Section 173-A(2) coversthe cases which are not even covered by Section 173-A(1) andbrings in its fold even the change of use of land which is not inconsonance with the Master Plan. Further Sections 173-A(1)(2)and (3) also contemplate a situation wherein the State Governmentis entitled to levy conversion charges if the change in use fromone purpose to other purpose. The amendment was necessitatedsince the State Legislature thought the provision of Section 173-A(unamended) stood as an impediment for proper planning of urbanareas. In other words, with a view to ensure planned and regulateddevelopment of urban areas, it was felt that some restrictionshave to be imposed and it was for that purpose that Section 173-A was amended.

13. We may, in this respect, also indicate that, in exerciseof powers conferred under Section 297 read with Section 173-Aof the 1959 Act, 2000 Rules were promulgated. It is under theabovementioned Rules that the Respondents filed an applicationon 16.7.2003 for change of land use from residential to

commercial. Following those Rules, the Corporation issued publicnotice inviting objections. Later, the Land Use Committee metand approved the conversion for which a demand notice of Rs.5,70,300/- was raised by the Corporation on 2.4.2004. We are ofthe view that the demand is legal and valid and in accordancewith the provisions of Section 173-A, as inserted by AmendmentAct 19 of 1999 read with the 2000 Rules. We are also of the viewthat the Rajasthan High Court has committed an error in applyingthe judgment of this Court in Pareshar Soni case which was dealingwith the unamended provision of Section 173-A.”

16. The law laid down by this Court in the above case is fullyapplicable in the facts of the present case. The present case is alsowhere sub-section (2) of Section 173-A covers the case.

17. We may also notice one of the submissions vehemently raisedby the learned counsel for the respondents that the respondents wereforced to deposit the conversion charges, which they deposited underthe protest. The copy of the writ petition filed by the respondents hasbeen brought on record as Annexure-P/12. In paragraph Nos. 5,6 and 7,following has been pleaded by the respondents:

“5. That the petitioners intended to get the aforesaid plot of landadmeasuring 10067.14 sq.yards which is equivalent to8420.56 sq. meters, developed by constructing a multi-storeyed commercial-cum-residential complex. In thisconnection, on having been approached the respondents No.2& 3 asked to apply with them for land use conversion as acondition precedent so that maps of building plans can beapproved for constructing commercial-cum-residentialcomplex.

6. That the respondents No 2 & 3 vide order bearing No.F.13/At.Mu.N.Niyo./ dated 22.02.2003 directed to deposit anamount of 1,01,04,672/- towards conversion charges. Thecopy of the aforesaid order dated 22.02.2003 is beingenclosed herewith and marked as Annexure.2.

7. That in pursuance of the aforesaid order passed by therespondents No.2 & 3, the humble petitioners reserving theirrights deposited the amount so demanded i.e. a sum ofRs.1,01,04,672/- through pay order dated 20.03.2003 drawn A

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Aon City Bank, M.I.Road, Jaipur vide duly filled challan dated16.1.2003/20.3.2003 under Covering Letter dated 20.3.2003.Consequently, receipt dated 20.3.2003 was issued from officeof respondents No.2 & 3 in proof of said amount havingbeen duly deposited. The photocopy of the Covering letterdated 20.3.2003 along with receipt dated 20.3.2003 andBchallan dated 16.1.2003/20.3.2003 are being enclosedherewith and collectively marked as Annexure-3.”

18. The above pleading of the respondents only indicates thatwhen they intended to construct multi-storeyed building for commercial-cum-residential complex they were told to deposit conversion chargesCas a condition precedent for sanction map. Learned Single Judge in itsjudgment had noted that the respondents intended to deposit conversioncharges for the land use as commercial-cum-residential complex. Thesubmission of the learned counsel for the respondents that they wereforced to apply for conversion of land use from residential to commercial Ddoes not commend us. Whether the respondents were liable to depositthe conversion charges is to be determined in accordance with thestatutory Scheme and statutory requirement. In the event, under theStatute they were obliged to obtain conversion of land use from residentialto commercial, they were bound to do the same and the fact that theywere asked by the Corporation to do the same is inconsequential.E

19. The Division Bench in the impugned judgment has been undulyled by the fact that land which was purchased in the year 1959 is beingused for commercial purpose. The Division Bench did not advert to sub-section (2) of Section 173-A as amended by Act 19 of 1999 and itsconsequences. The total consideration of the Division Bench on the entireFcase is in paragraph Nos.7, 8 and 9 which are to the following effect:

“7. We have gone through the property document which showsthat the land was purchased in the year 1959 and the sameproperty was used by the company for commercial purposes.In our considered opinion, with a view to avoid any delay inGtheir construction activities, the appellants have paid the amountunder protest to the respondents.

8. In that view of the matter, respondents are not entitled forconversion charges and the amount deposited by the appellantsis required to be refunded with immediate effect.H

9. The respondents are directed to refund the said amountalongwith interest @ 6% within a period of three months fromtoday. If the payment is not made within a period of threemonths, the appellants will be entitled for interest @ 9% anddifference of 3% will be recovered from the officer who hasmade delay in making payment.”

20. We are of the view that the Division Bench did not considerthe issues raised in the appeal in the correct perspective and has notadverted to the effect and operation of the statutory Scheme as delineatedby sub-section (2) of Section 173-A as amended by Act 19 of 1999. Thejudgment of the Division Bench, thus, cannot be upheld.

21. We may also notice that this Court in Municipal Corporation,Rajasthan (supra)although had allowed the appeal but gave liberty tothe respondents to take up the issue before the Corporation regardingland use in the Master Plan which was in operation at the relevant time.In paragraph No.14 of the judgment, following has been observed:

“14. The learned Counsel appearing for the respondents,however, submitted that the area in question is notified ascommercial area under the Master Plan and, therefore, there isno question of any conversion of the residential property tocommercial. We notice that this point was not raised before theHigh Court and we are, therefore, not called upon to decide thatquestion. However, the Respondents, if so advised, may take upthis issue before the Corporation and it is for the Corporation toconsider that issue in accordance with law. Appeals are accordinglyallowed and the judgments of the High Court are set aside.However, there will be no order as to costs.”

22. In the present case, learned Single Judge has made followingobservation:

“It is also not disputed that in the Master Plan area in question isear marked for commercial use and it is also not disputed theearlier the area in question is used for commercial purpose.Therefore, the petitioner moved application for conversion forapproval of map for constructing a commercial building.”

23. Although learned Single Judge made the above observation,but the judgment does not indicate that said observations were made A

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Aafter looking into the Master Plan which was in force at the time ofsubmission of application by the respondents.

24. The Division Bench did not advert to either sub-section (2) ofSection 173-A or to the land use in the Master Plan at the relevant time,i.e., in the year 2002 when the respondents made an application forBsanction of building plan. The appellants although have brought on recordthe Land Use Plan 2011, which is in force w.e.f. 01.09.1998 along withtheir rejoinder-affidavit but since during the submission learned counselfor the respondents has contended that the said Land Use Plan 2011does not conclusively establish that land use of Plot No.21 was residential,we are, thus, of the view that ends of justice shall be served in givingCliberty to the respondents to submit a representation before theCorporation, if there are any materials and grounds that in the MasterPlan which was in operation in the year 2002, when respondentssubmitted an application that land use of Plot No.21, Lal Niwas was notresidential but commercial. Subject to the above liberty, the appeal is Dallowed and the impugned judgment is set aside. Parties shall bear theirown costs.

Divya Pandey

Appeal allowed.

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