JUDGMENT 1. - The petitioners who are 21 in number along with four other persons viz. Jagdish, Mahesh, Gopal, Krishna and Ratan Kumar jointly purchased four parcels of agricultural lands bearing arazi number 899, 900, 901 and 902 situated at Nimbahera, District Chittorgarh. The land was purchased after 20-8-81 from respective khatedars of the aforesaid khasra numbers. The entire land in question was agricultural land and situated within Municipal limits of town Nimbahera. 2. Though the petitioner had purchased the land jointly and each one of them had interest in the land, each one of them separately filed an application for permission to convert a part of aforesaid land from agricultural to abadi and to use the same for residential purpose. In each application, the area with reference to which permission for conversion was sought, was demarcated. Separate order was passed in the case of each of the petitioners on 5-10-89. The Sub Divisional Officer Nimbahera directed the recovery of amounts on the following counts - 1. Conversion charges. 2. Penalty purported to be under R. 13 (2) on the ground that purchases have been made by the applicant for conversion after 20-8-81. 3. The penalty was calculated @ 75% of the conversion charges which is indicative of the fact that no construction was made on the land in question. 4. Peripheral development charges @ 4/- per sq. yard. 5. Urban Development charges @ 15/- per sq. yard. Above facts are not disputed by the respondents. 3. The petitioners in this petition allege the levying of penalty amount purported to be charged under R. 13 (2) of the Rajasthan Land Revenue (Allotment, Conversion and Regularisation of Agricultural Land for Residential or Commercial Purpose in Urban Areas) Rules, 1981 (hereinafter to be referred as the Rules of 1981) and have also been challenged that the respondents are only entitled to charge either development charges or peripheral development charges depending upon the situation of the land within Municipal limit or within peripheral limit, but are not entitled to charge both. In the present case it is not disputed that the land is situated within Municipal limit and the petitioner does not dispute that the charges at the rate prescribed for Municipal area limit are chargeable. He contends that peripheral development charges are not leviable. 4. In the present case it is not disputed that the land is situated within Municipal limit and the petitioner does not dispute that the charges at the rate prescribed for Municipal area limit are chargeable. He contends that peripheral development charges are not leviable. 4. The petitioners No. 1 to 5, 14, 15 and 17 had deposited the penalty amount as well as peripheral charges and have obtained sale deed prior to filing of the writ petition. However, the remaining petitioners have not deposited the said amount. It has also been brought to the notice in the petition that in the first instance a Circular was issued by the Government dated April 9, 1987 (Annex. 1) clarifying the position that in respect of agricultural land which had been transferred after 20-8-81, the penalty will be chargeable only in the cases, the said land is unauthorisedly converted and used for residential or commercial purposes but the provisions regarding the levying of penalty is not to cover the cases where the land is being in converted and used for the purpose other than agricultural after it has been so authorised. 5. Another Circular was issued on July 23, 1987 (Annexure 2) modifying the earlier Circular dated April 9, 1987 (Annexure 1) that in case any person or housing society had purchased land after 20-8-81 and he/it has raised unauthorised construction on the said land, the rate of penalty under Rules of 1981 will be 100% equal to the conversion charges for such unauthorised use of the land. The circular went on to state that in case no construction has been raised on the land, the penalty will still be leviable though at 75% of the conversion charges. It is alleged that by pressing into service Circular Annexure 2 dated 23-7-87, the SDO had passed the order imposing penalty in respect of land in question even though no unauthorised use by way of construction or otherwise of the said agricultural land has been made by the petitioners. This amounts to levy of penalty merely in the event of transfer of land and not on the unauthorised use of agricultural land for other purposes. 6. Return has been filed on behalf of the State controverting the allegations made by the petitioners. This amounts to levy of penalty merely in the event of transfer of land and not on the unauthorised use of agricultural land for other purposes. 6. Return has been filed on behalf of the State controverting the allegations made by the petitioners. It has been stated in Para 9 of the return as under - "That in reply to Para No. 9 of the writ petition it is submitted that though the petitioners applied individually and separately for the conversion of land in question for non-agricultural purpose, but they started using this land unauthorisedly before their applications were decided. They sub-divided the land in question in various plots, demarcated them on the spot, got prepared site plans and then applied for conversion of that sub-divided plots individually. Thus, it is apparent that the petitioners unauthorisedly used and converted the agricultural and in question into residential one and they were liable to penalty under R. 13 (2) of the Rules of 1981. The petitioners were also liable to pay penalty under Section 90-A (5) of the Act of 1956." 7. The stand of the State Government is also that both the charges viz. peripheral development charges as well as Municipal development charges are to be levied in respect of such land. 8. I have considered the rival contentions raised before me and perused the record. 9. In order to understand the true import of controversy of land, it will be useful to refer Sec. 90-A of the Rajasthan Land Revenue Act, 1956 as well a Rules 10 and 13 of the Rules of 1986.Sec. 90-A. Use of agricultural land for non-agricultural purposes - (1) No person holding any land for the purpose of agriculture and no transferee of such land or any part thereof, shall use the same or any part thereof, by the construction of buildings thereon or otherwise, for any other purpose except with the written permission of the State Government obtained in the manner hereinafter laid down and otherwise than in accordance with the terms and conditions of such permission. (2) Any such person desiring to use such land or any part thereof for any purpose other than that of agriculture shall apply for the requisite permission in the prescribed manner and to the prescribed officer or authority and every such application shall contain the prescribed particulars. (2) Any such person desiring to use such land or any part thereof for any purpose other than that of agriculture shall apply for the requisite permission in the prescribed manner and to the prescribed officer or authority and every such application shall contain the prescribed particulars. (3) The State Government shall, after making or causing to be made due inquiry in the prescribed manner, either refuse the permission applied for or grant the same subject to the prescribed terms and conditions. (4) When any such land or part thereof is permitted to be used for any purpose other than that of agriculture, the person to whom such permission is granted shall be liable to pay to the State Government in respect thereof - (a) an urban assessment levied at such rate and in accordance with such manner as may be laid down in rules to be made in this behalf by the State Government; or (b) such amount by way of premium as may be prescribed by the State Government; or (c) both (5) If any such land is so used - (a) without the written permission of the State Government being first obtained, or (b) otherwise than in accordance with the terms and conditions of such permission, or (c) after such permission having been refused under sub-section (3), or (d) without making any of the payments referred to in sub-section (4), the person originally holding the land as aforesaid for the purpose of agriculture as well as all subsequent transferees, if any, shall be deemed to be a trespasser or trespassers, as the case may be, and shall be liable to ejectment from such land in accordance with section 91 as if he or they had occupied or continued to occupy such land without lawful authority and to every such proceeding the provisions of section 212 of the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955) shall apply as if such land were in danger of being wasted, damaged or alienated : Provided that the State Government may, in lieu of having such person and the subsequent transferees so ejected from the land in question allow him or them, as the case may be, to retain such land, use the same for any purpose other than that of agriculture on payment to the State Govt. in addition to the urban assessment and premium payable under sub-section (4) or such fine by way of penalty as may be prescribed." Rule 10 of 1981 10. Conditions of conversion or regularisation - Conversion or regularisation of the use of agricultural land for residential or commercial purpose under these rules shall be made in accordance with the following conditions:- (1) The applicant shall pay to the Government such conversion charges and penalty as are prescribed under these rules, and shall also pay to the local body concerned the prescribed development charges, peripheral development charges, compounding fees and such other charges as maybe prescribed by law or by the local body concerned. (2) In all cases in which an applicant applies for conversion or regularisation of land, he shall be deemed to have surrendered his tenancy charges upon such conversion or regularisation, but with the stipulation that he shall have the right to revert to the original use of the land at any stage subsequently. On such reversion, his status shall be the same as he held before conversion or regularisation, but he will not be entitled to any refund of the amount paid by him for obtaining the conversion or regularisation. (3) Where Government agricultural land has been encroached upon and converted for a residential purpose prior to 20-8-1981 and the case is otherwise found fit for regularisation under these rules, the price of such agricultural land shall be deemed to be equivalent to the conversion charges prescribed, as the case may be, for the land used for the commercial purposes under sub-rule (4) of rule 11 or for the land used for the commercial purposes under sub-rule (5) of rule 11 of these rules and the price as aforesaid shall be chargeable in addition to the conversion charges and penalty prescribed under these rules. (4) In cases in which the applicant has not acquired a clear legal title to the land in his possession and has used the same for a residential or commercial purpose, but the applicant has entered into an agreement to sell with the rightful holder of the land and had also obtained possession of the land prior to 20th August, 1982, a provisional order of conversion and regularisation of the land may be passed by the Authorised Officer in accordance with these rules, with the proviso that the applicant shall, within a period of (888 days) from the date of publication of these rules - (provided that in case of a Mandi, the period shall be 180 days which shall be computed from the date of coming into force the Rajasthan Land Revenue (Allotment, Conversion, and Regularisation of Agricultural Land for Residential and Commercial Purposes in Urban Areas) (Fifth Amendment) Rules, 1982) (provided that if the applicant fails to fulfil any of the conditions at clauses (i) or (ii) above within the stipulated period, he may, on application presented by him to the Authorised Officer, be allowed further time up to 15-9-84 to fulfil these conditions : Provided further that, if 'an agreement to sell' as aforesaid has been presented before the Authorised Officer within 156 days of the commencement of these Rules but conversion charges have been paid only in respect of a part of the area included in the 'agreement to sell' submitted with the application for conversion of land on or before 31-5-1982 to the Authorised Officer, then the balance amount of the prescribed conversion charges, penalties and other charges may be deposited in the Government Treasury at the concessional rates prescribed in the proviso to sub-rule (4) of rule 11 of these rules, on the counter foil of the Treasury challah together with an application indicating the manner in which these dues have been calculated and deposited, shall be presented to the Authorised Officer by 31st Oct., 1984) (i) obtain a clear title to the land, or (ii) have his name mutated in the revenue records, or (iii) submit an attested copy of a plaint filed by him before a competent court in a suit for specific performance under section 10 of the Specific Relief Act, 1963 (Central Act 47 of 1963) in pursuance of the terms and conditions incorporated in the 'agreement to sell'. If the applicant fulfils the conditions at either (i) or (ii) above within the stipulated period of 180 days, the Authorised Officer may conform the provisional conversion and regularisation order. In case governed by clause (iii) above, the authorised officer shall await the outcome of the suit before confirming or cancelling the provisional order of conversion and regularisation. Rule 13 of 1981 Rules. 13. Penalty - Penalty shall be levied in all cases of unauthorised use and conversion of agricultural land for residential or commercial purposes and the rate of penalty shall be as follows:- (a) In cases in which the land has been so converted and used from prior to 20-8-1981, the penalty shall be equal to 5% of the conversion charges payable under these rules if no construction of any sort has been undertaken on the land, and 10% of the same if any construction has been taken place. (b) In cases in which land has been so converted and used after 20-8-1981, the penalty shall be equal to 75% of the conversion charges payable under these rules in respect of the land concerned if no construction of any sort has been undertaken on the land and 100% of the same if any construction has taken place. 10. A careful reading of the proviso of Rule 90-A makes it clear that no person holding any agriculture land or transferor of such land is entitled to use the same or any part thereof by the construction of the building thereon or otherwise for any other purpose except with the written permission of the State Government obtained in the manner prescribed. 11. There is an embargo on the use of agricultural land for the purpose of construction of building or otherwise and that embargo is lifted only after permission for the use of such land for other purposes is granted in favour of the applicant. In that view of the matter it must be held that until the land has been actually used for construction of the budding or has been put for actual use otherwise than for the agricultural purpose, there is no violation of Sec. 90-A merely for the reason that holder of such land intends to make use of such agricultural land for different purpose after obtaining permission under law from competent authority. Unless there is a violation of Sec. 90-A, there cannot be any penalty for regularisation. The rules as are framed under the Act for giving effect to the provisions of the Act must be read to that effect. 12. Rules provide for procedure for grant of permission as required u/s 90-A as well as regularisation of breaches that have been committed by holders of agricultural land in putting such land for other use without obtaining prior permission. 13. R. 13 provides for levy of penalty for unauthorised use and conversion of agricultural land in later contingency. It is operative only in cases where land has already been converted or used for other purposes than agriculture purposes, without approval of State Government. The word 'unauthorised' used in Rules qualifies both the contingencies of 'conversion' as well as 'use'. If an application for conversion of agricultural land has been moved and such land has not been put to any use other than agriculture, it cannot be said that any breach of provision of Sec. 90-A has taken place. There cannot be any charges for 'unauthorised use' of land in case land has been used, for other purposes after approval has been granted. Obviously, in such cases Rule 13 cannot be invoked. Rule 13 can thus appropriately be invoked to regularise a breach already committed. That will be in consonance with the substantive provisions of the Act. State Govt. had no power to issue executive instructions contrary to it. 14. As it appears from the narration of facts that no actual act of unauthorised construction of house or use of agriculture land for non-agriculture purpose has taken place. Only allegation against the petitioner is that while making application for conversion they have submitted a plan of the entire land showing the demarcation of that parcel of land for which the applicant sought permission for conversion and use of such land for other purpose as required by the statutory provisions. 15. In view of the aforesaid discussion, the levy of penalty merely on the ground that the land has been transferred after 20-8-81 as instructed in Annexure-2 and merely on the ground that application for conversion a part of the entire land has been made by demarcating the land, levy of such a penalty is not sustainable and is therefore, quashed. 16. 16. This brings me to consider second question whether the person desiring permission to convert the agricultural land to other purposes is required to pay development charges on both counts viz. peripheral development charges as well as municipal development charges. 17. The conversion charges for residential purposes is to be charged in terms of R. 11 read with Schedule II. R. 11. Categorisation of towns and rates of conversion charges. (1) X X X (2) X X X (3) X X X (4) The rate of conversion for residential purposes for each zone in a municipal town shall be as shown in column No. 4 of Schedule II : Explanation:- If the amount has been deposited in the Treasury within the period of 156 days and the application is presented to the Authorised Officer within 30 days of the commencement of the Rajasthan Land Revenue (Allotment, Conversion and Regularisation of Agricultural Land for Residential and Commercial Purposes in Urban Areas) (Amendment) Rules, 1984, the application may be deemed to have been validly presented under condition (ii) and (iii) of the proviso to sub-rule (4) of R. 11 and shall be dealt with accordingly. (5) X X X (6) X X X (7) X X X (8) X X X 18. R. 11 provides for classifying Municipal town of State into various categories for levying conversion charges of the land situated therein. This rate of conversion charges for residential purposes in each zone of Municipal town is prescribed under Schedule II. Explanation to Schedule II provides for lower conversion charges in respect of land which are not situated in Municipal limit but are away from Municipal limits on the basis of its distance from the Municipal limits. 19. In R. 2 (i) "Periphery Villages" has been defined to mean as village situated within the distances indicated in the Rule from the Municipal limits. In the case of a land situated not within Municipal limit but within the distance prescribed in Rule 2, the rate of conversion charges is 50% of the conversion charges applicable to the land situated in the Municipal town of which it is periphery village. That is to say the conversion charges of the land situated beyond the zone prescribed in the main category as per Rule 11 is at a reduced rate from what is applicable to the must category. That is to say the conversion charges of the land situated beyond the zone prescribed in the main category as per Rule 11 is at a reduced rate from what is applicable to the must category. Development charges are leviable in addition to conversion charges. Nexus of development charges is with the area in which land is situated. 20. The provision of Rule 10 read with Rule 11 and Schedule II leaves no room of doubt that rules do not prescribe levy of development charges on both counts viz. Municipal development charges and peripheral development charges. Rule envisages only one set of conversion charges and consequently two sets of development charges, cannot be charged for development of different areas. In this connection reference may also be made to Sub. S. (4) of Sec. 90-A transferred to above which authorises the State Government to charge such amount of urban assessment at such rate in accordance with procedure laid down in Rules made in this respect by the State Government or such amount by way of premium as may be prescribed by the State Government or both. However, it does not authorise charging of any other amount. 21. No provision in the form of Rules or otherwise has been pointed out either under which the State Government has been authorised to recover development charges, both relating to land situated within Municipal limit or peripheral irrespective of the fact where the land in question is situated. Apparently, the development charge is directly related to the development of area in which the land is situated and it cannot be related to some other area. 22. Thus, there is force in the argument of the learned counsel for the petitioner that development charges, both for Municipal area as well as for peripheral area cannot be charged simultaneously. Only such charges for development of that area can only be charged from the petitioner, where the land is situated. Admittedly, the land of the petitioner is situated within the Municipal limit of Nimbahera and it is not situated in the peripheral area. Therefore only Municipal Land Development charges could be levied and not peripheral area development charges. 23. Accordingly, the petition is allowed. Circular Annexure 2 dated 23.7.87 is quashed and charge of penalty amount with reference to R. 13 (2) in the case of the petitioners are quashed. Therefore only Municipal Land Development charges could be levied and not peripheral area development charges. 23. Accordingly, the petition is allowed. Circular Annexure 2 dated 23.7.87 is quashed and charge of penalty amount with reference to R. 13 (2) in the case of the petitioners are quashed. It is also held that petitioners are only liable to pay Municipal development charges. The respondents are not entitled to recover the amount charged under the head Peripheral development charges as well as penalty under R. 13 (2) in the case of the petitioners. The petitioners are liable to pay remaining amount as discussed above. Out of the disputed amount, charged on the ground of peripheral charges or penalty under R. 13 (2) will be refunded to the respective applicant, if already recovered.There shall be no order as to costs.Petition allowed. *******