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2003 DIGILAW 105 (RAJ)

Suresh Kothari v. State of Rajasthan

2003-01-24

M.R.CALLA, PRAKASH TATIA

body2003
JUDGMENT 1. - Heard learned counsel for the parties. 2. The case of the petitioners before us is that they have a 'Pattasuda' ancestral house as it appears from document Annex. 1 dated 2.2.1939 and another document Annex. 2 dated 28.2.1941. According to petitioners this is the 5 final document of their title over the land in question. It is also the case of the petitioners that they have been running a Hotel in the name and style of Jyoti Hotel since 1971 on the aforesaid premises, but no permission had been obtained for running the Hotel by them in 1971. It is the further case of the petitioners that in the year 1981 while referring to the document Annex. 3 dated 10 7.8.1981 the Municipal Council, Udaipur had granted permission in form No. 2. It was clearly mentioned in this document Annex. 3 that the plan as was annexed with this application was sanctioned. The plan shows that it was a proposed construction of extension of Jyoti Hotel Outside Suratpur, Udaipur and plan of construction had been approved subject to the 15 condition that the construction was to be completed within a period of one year, failing which the petitioners will be under an obligation to get the permission afresh. It is the admitted position before us that within a period of one year, of sanction, i.e., 7.8.1981 the construction was not competed before or by 7.8.1982 and, therefore, the petitioners came under obligation 20 to get the permission afresh after 1982. Our attention has been invited to the document Annex. 4, which is a receipt dated 31.8.2001 issued by the Municipal Council, Udaipur by which a sum of Rs. 10507- has been deposited while seeking permission afresh. On 10.12.2001 a letter was sent to the Municipal Commissioner on behalf of the petitioners that despite the 25 expiry of three months from the date of application for permission, i.e.. 31.8.2001, the permission was not granted and no reply whatsoever has been sent. The construction had become necessary and, therefore, the Municipal Commissioner was put under a notice that he may either sanction the permission within a period of 15 days or else it will be taken to be a case 30 of deemed permission. After commencement of the construction a letter dated 13.12.2001 was sent by the Commissioner. The construction had become necessary and, therefore, the Municipal Commissioner was put under a notice that he may either sanction the permission within a period of 15 days or else it will be taken to be a case 30 of deemed permission. After commencement of the construction a letter dated 13.12.2001 was sent by the Commissioner. Municipal Council, Udaipur, copy of which has been placed on record as Annex. 6, informing the petitioners that the matter was continuously under consideration and the technical measurements were not available in the Council, and, therefore.the matter has been referred to the Sr. Town Planner for his opinion and as soon as the technical opinion from the Sr. Town Planner is received, the further action shall be possible and it was mentioned that therefore, the notice of deemed permission is not tenable. This notice dated 13.12.2001 was served on 27.12.2001 upon the petitioners. The petitioners have also as placed on record a document dated 17.1.2002 sent by Sr. Town Planner stated that in past the Municipal Council had granted the permission on 7.8.1981 even when set back in respect of the open land opposite existing hotel and the permission for Restaurant and Hotel had been granted for Ground Floor and First Floor. In the draft master plan, the land in question 45 was mentioned as commercial land. The Sr. Town Planner in his letter dated 3.1.2002 says that in view of the opinion of the Sr, Town Planner's office as has been given earlier and looking to the building line and the other constructions, which was in existence nearby, the permission be granted for basement two stories, new basement shall be used for the purpose of parking, there will be ramp of 20 feet and FSI shall not be for more than 1 5. The ownership of the land, its acquisition, the kind of land and all other aspects be enquired at the level of the Municipal Commissioner for further action. 3. Thereupon on 16 3.2002 the Municipal Commissioner sent a letter to the petitioners in the matter of conversion of user of the land mentioning therein that the opinion of the Sr. Town Planner had been taken and s according to the guidelines received from the Local-Self Government Department, the land in question be got converted to commercial use and such conversion be placed on record. Town Planner had been taken and s according to the guidelines received from the Local-Self Government Department, the land in question be got converted to commercial use and such conversion be placed on record. The petitioners have challenged this letter dated 16.3.2002 and submitted that there is no question of conversion now The land already stood converted to be used for commercial purposes to when the permission was granted earlier and even the Sr. Town Planner himself has mentioned in the contents of the letter dated 17.1.2002 and only the obligation of the petitioners, which was to be carried out now was to obtain the permission afresh from the Municipal Council, Udaipur because in past they failed to complete the construction despite such permission, within a 15 period of one year as was granted to them. 4. The reply to the petitioners' claim had been filed on behalf of the respondents No. 2 and 3 Municipal Council. Udaipur and Commissioner Development, Municipal Council, Udaipur denying the claim of the petitioners on the ground that the petitioners were still under an obligation to get the conversion and the earlier permission, which was granted was limited for the purpose of construction only and no permission had been granted for the change of user. Learned counsel for the respondent Mr. Kawadia made pointed reference to the amendment in Section 173-A, which was made on 30.9 1999 in the Rajasthan Municipalities Act, 1959 and submitted that the 25 requirement under this section was clear that the owner and holder of such land to use it for any purpose other than the purpose for which it was originally allotted or sold, on payment of such conversion charges as may be prescribed and such conversion charges as may be realised after to be created to the Consolidated Fund of the State. Learned counsel for the 30 respondent Mr. Kawadia was at pains to argue before us that merely because the permission had been granted earlier and merely because the change of use of land for commercial purpose is construed on the basis of the letter of the Sr. Town Planner to the Municipal Council and merely because the Municipal Council had earlier permitted to raise construction for the Jyoti Hotel as per the plan annexed with Annex. Town Planner to the Municipal Council and merely because the Municipal Council had earlier permitted to raise construction for the Jyoti Hotel as per the plan annexed with Annex. 3, the respondent was not estopped from asking for the conversion and the conversion fees in terms of the IF later dated 16.3.2002. In support of his aforesaid contention learned counsel for the respondent has cited the case of the Supreme Court delivered in the case of Dhiyan Singh & Anr. v. Jugal Kishore & Anr., AIR 1952 SC 145 , Gyarsi Bai & Ors. v. Mt. Anita Bala Dasi & Ors., AIR 1968 Patna 487 on the c Jestion of estoppel. 5. We have considered the submissions made on behalf of both the sides. It may be straightway observed that there is no question of estoppel involved in this case. The question is as to whether there was any authority in the Municipal Council to call upon the petitioners and insist upon them to get the change of user. Once it is construed on the basis of the documents placed on record by the petitioners. the correctness of which have not been disputed by the respondents, who are demanding the conversion charge merely because of the amendment in the Act in the year 1999, which requires so payment of the conversion charges as may be prescribed, how the conversion charges could be recovered even with regard to those lands which already stood converted and in respect of which, the change of user had already been permitted in past much prior to 1999. It is admitted that the submission for construction which was granted by the Municipal Council itself has not been challenged before us and, therefore, all that could be contended by the Municipal Council was that as soon as the petitioners failed to complete the construction work within a period of one year from the date on which such permission was granted to them, they come under obligation to apply for permission afresh. In the facts of this case, when the petitioners were already done and asked for permission that permission now could not be refused or withheld on the ground that they already stood converted earlier and was treated as converted earlier while granting the permission. In the facts of this case, when the petitioners were already done and asked for permission that permission now could not be refused or withheld on the ground that they already stood converted earlier and was treated as converted earlier while granting the permission. The lapse of time for completing construction entails the consequence to take permission afresh but not to seek the conversion or change of user afresh. Although the petitioners have challenged the validity and vires of amendment in Section 173-A, we find that so for as the challenge to validity of Section 173-A is concerned, the petitioner se have no case. We do not find the provisions of amended Section 173-A to be unreasonable or irrational or discriminatory in any manner and no cogent basis has been painted out to render amended Section 173-A to be invalid or ultra vires. The only question is as to whether this amendment could be used so as to recover the conversion charges from the petitioner has this amendment been given the retrospective effect Admittedly, it has not been given the retrospective effect and in view of the fact that the petitioners had been permitted to raise construction of a Hotel as per the plan and the change of use had already been permitted, how it could be said to be open for the Municipal Council now to recover the conversion charges by invoking Section 173-A and to call upon the petitioners to deposit the conversion charges as has been sought to be done by the letter dated 16.3.2002. 6. Section 173-A as it stood prior to 30.9.1999 was as under "173-A Power of the State Government to allow the change in the use of land. (1) Notwithstanding anything contained in this Act, where any land had been allotted or sold to any person by a municipality or the State Government subject to the condition of restraining its use for a particular purpose. the State Government may, it is satisfied so to do in public interest, allow the owner or holder of such land to use it for any other purpose other than the purpose for which it was originally allotted or sold, on payment of such conversion charges as may be prescribed : Provided that the rate of conversion charges may be different for different area and for different purposes. (2) The conversion charges so realised shall be credited to the Consolidated Fund of the State or to the Fund of municipality as may be determined by the State Government. (3) Such charges shall be the first charge on the interest of the person liable in the land the use of which has been changed and shall be recoverable as arrears of land revenue.- Section 173-A as it was amended on 30.9.1999 is as under : "173-A. Restriction of change of use of land and power of the State Government to allow change of use. (1) No person shall use or permit the use of any land situated in any municipal area, for the purpose other than that is which such, land was originally allotted or sold to any person by the State Government, any municipality, and 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 Master Plan, wherever it is in operation. (2) In the case of any land not allotted or sold as aforesaid land 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) or sub-section (2), 10 the State Government or any authority authorised by it by notification in the Official Gazette, may allow the owner or holder or any such land to have change of use thereof, if it is not 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 15 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 purpose. (4) Any person who has already changed the use of land in violation of the provisions of this Act in force at time of change of use, shall apply to the State Government or any authority authorised by it 25 under sub-section (3), within six months from the date of commencement of the Rajasthan Municipalities (Amendment) Act, 1999 (Act No. 10 of 1999) for regularisation on said use and upon regularisation 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 authorised by it under sub-section (3) is satisfied that a person who ought to have applied for permission of regularisation under this section, has set applied and that such permission can be granted or the use of land can be regularised, 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 realised shall be credited to the fund of the municipality. (7) Charges under this 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." In our opinion the amendment which has been brought into force on 3..1.9.1999 does not cast the obligation as has been pleaded before us on behalf of Municipal Council in the present case. The reading of unamended and amended section would reveal that there was no such restriction with regard to change of use prior to 30.9.1999 and the land in question as claimed to be Pattasud ancestral property of the petitioners and, therefore, it cannot be said that it was the land allotted or sold to the petitioners by the State Government for any particular purpose. 7. 7. Therefore, the petition fails on the question of challenge to the validity and vires of Section 173-A, but it is partly allowed and the letter dated 16.3.2002 sent by the Municipal Council, Udaipur is hereby quashed and set aside and the Municipal Council, Udaipur is directed to consider the question of according the permission afresh to the petitioners without insisting for the conversion afresh or any conversion charges and the question may be decided within a period of three months from the date of service of the certified copy of this order on the respondents by the petitioners. No order as to costsWrit Petition Partly Allowed. *******