JUDGMENT 1. - Brief facts of the case are that the property in question was purchased by the petitioners vide registered sale deed dated 16.4.59 from His Highness Sawai Man Singh, Jaipur out of personal property. After purchasing the aforesaid land, the petitioners submitted maps for approval of building plans for constructing the commercial-cum-residential complex and the States vide order dated 22.2.2003 directed the petitioners to deposit an amount of Rs.1,01,04,6721- towards conversion charges and same has been deposited by the petitioners under protest. 2. The petitioners referred sub-section (3) of Section 173-A which though has done away the condition as regards levy conversion charges on the ground of purchasing the property from the State Government or Municipality. Meaning thereby the condition of source of the property does not survive for the purpose of levy i.e. irrespective of the fact that from whom property is purchased; the conversion charges are leviable as it can easily be gathered from bare reading of sub-section (3). But the legislature has allowed levy of conversion charges in respect of the following changes only:- (i) From residential to commercial or any other purpose; (ii) From commercial to any other purpose; (iii) From industrial to commercial or any other purpose; (iv) From Cinema to commercial or any other purpose. 3. After referring the provisions of Section 173-A the petitioners submitted that their case does not fall in any of the categories referred in sub-section (3) of Section 173-A and referred the sale deed dated 16.4.59 through which the property has been purchased by the petitioners from His Highness Jaipur and it was made clear in the deed itself that the rights were conveyed absolutely in the vendees (Petitioners) without there being any restriction on the user. 4. Thus, the property devolved upon vendees absolutely and free from all encumbrances and such transfer is not subject to any particular user by the vendees and the subject property was open/free to be used in any manner by not restricting the user for any particular purpose as indicated in the sale deed dated 16.4.59 itself. 5. After referring the sale deed the petitioners submitted that the petitioners have every right to use the property in whatever manner the petitioners wishes although according to the use prescribed in the Master Plan. 6. 5. After referring the sale deed the petitioners submitted that the petitioners have every right to use the property in whatever manner the petitioners wishes although according to the use prescribed in the Master Plan. 6. The petitioners further submitted that looking to the contents of Annexure-1 Sale Deed, there was no need for the petitioners to apply for change of the land use from residential to commercial. Thus, when the petitioners are not seeking change of the use, the States cannot charge conversion charges in the garb of such provision and in the garb of change in master plan same has no application in the case of the petitioners and the conversion charges which has been deposited by the petitioners under protest should be refunded back to them. 7. In support of his submission, learned counsel for the petitioners placed reliance on the judgment reported in "Municipal Corporation Jodhpur & Another Vs. Rajendra Bhandari & Another" 2002 (2) RLR 644 = WLC 2001 (4) 647 and submitted that the ratio decided by this Court in para 11 squarely covered the present controversy as in the judgment itself it is categorically held that to seek application of Section 173-A two conditions must be satisfied - (1) that the land has been allotted or sold to any person by the Municipality or the State Government and; (2) that the allotment or sale of land by the Municipality or the State Government was subject to the condition of restraining its use for a particular purpose. If either of these two conditions is not fulfilled, the provisions of Section 173-A will not apply. 8. After amendment though the condition of having been allotted or sold by Municipality or State Government has been eliminated as a condition for levy the conversion charges but it is clear from sub-section (3) of Section 173-A that change of user should have specifically been sought under any of the above categories of change of use. Petitioners simply asked for approval of their maps but the States refused to accept the same and advised to submit application for conversion. Consequently, the same was submitted with the conversion charges as well as lease rentals under protest vide Annexure-3, 5 and 8. 9. The petitioners also referred the provisions of Transfer of Property Act. More particularly Section 8 and Section 55(6)(a). Consequently, the same was submitted with the conversion charges as well as lease rentals under protest vide Annexure-3, 5 and 8. 9. The petitioners also referred the provisions of Transfer of Property Act. More particularly Section 8 and Section 55(6)(a). With the aid of these provisions of TP Act, it is submitted that the property passes onto the purchaser free from any condition, if there is no restriction on user in the sale deed. 10. It is further averred that the Division Bench in the case reported in WLC 2001 (4) 647 (supra) has also considered the provisions of Section 8 and 55(6)(a) of the Transfer of Property Act. 11. The petitioner also placed reliance on the judgment reported in (2) 1997 (5) SCC 536 with regard to maintainability of writ petition for seeking refund. 12. And also placed reliance on the judgment reported in (3) 2001 (2) SCC 549 wherein it has been held that mandamus directing refund of money illegally collected the High Court has power to issue such a writ. 13. Per contra, learned counsel for the States submitted that Section 173-A is wrongly interpreted by the petitioners. The amendment came into force on 30.9.99. By amendment sub-section (3) was added and as per sub-section (3), the power vested with the State Government for getting the land use changed. The authorities cited by the petitioners also distinguished by the States and placed reliance on the judgment reported in (4) 1991 (1) SCC 63 which deals with the cases relating to town planning which specifically states that the law applicable would be on the date of the application. In the present case, the permission was granted on the request made through letter dated 26.12.2002. Admittedly, after the amendment in Section 173-A, the amount of land use change has been calculated by the petitioner himself and has been deposited with the State and thus the amended provision is applicable to the petitioner and the State has rightly asked for conversion charges and has been deposited by the petitioners and as held by Hon'ble the Supreme Court in case reported in (5) 2003 (12) SCC 91, the law enforceable will be as on the date of application. 14. It was also contended on behalf of the State that the similar controversy has been decided by this Court in the case Kundan Mal Vs. 14. It was also contended on behalf of the State that the similar controversy has been decided by this Court in the case Kundan Mal Vs. District Collector, Pali" reported in 2000 (4) WLC 166 and considering the case reported in 1996 (1) WLC 300 , the writ petition was dismissed with cost of Rs.10,000/-. 15. Learned counsel for the State drawn my attention towards the letter dated 26.11.02 written by the petitioner addressed to the Additional Chief Town Planner, Municipal Corporation in pursuant to the letter dated 4.7.2002 by which the petitioner himself has calculated the conversion amount. 16. Having considered the rival submissions of the respective parties and perused the provisions of amended provision of Section 173-A, provisions of Transfer of Properties Act and the judgments referred by the respective parties, it is necessary to deal with Section 173-A of the Act of 1959 to decide the present controversy and same is reproduced as under:- 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 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 of permit the use of any such land situated in a municipal area for the purpose other than that for which such lands 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) the State Government or any authority authorised 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 changes may be, 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 authorised by it under sub-section (3) within six months from the date of commencement of the Rajasthan Municipalities (Amendment) Act, 1999 (Act No. 19 of 1999) for regularisation of the change of use of land he shall deposit the amount contemplated under 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 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 the 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 charge with respect to the land, the use of which has been changed and shall be recoverable as arrears of land revenue." 17. (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 charge with respect to the land, the use of which has been changed and shall be recoverable as arrears of land revenue." 17. Upon bare reading of clause (1) and (2) of sub-section (3) of Section 173-A, the State Government or any authority authorised 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 change from residential to commercial or any other purpose. The present case fall under the category of sub-section (3)(i). As the petitioner has applied for conversion from residential to commercial and for that purpose the petitioner have to make payment of conversion charges. 18. It is also not disputed that in the Master Plan area in question is ear- marked for commercial use and it is also not disputed that earlier the area in question is used for commercial purpose. Therefore, the petitioner moved application for conversion for approval of map for constructing a commercial building. I am not convinced with the analogy drawn by the petitioner that the case of the petitioner do not fall in this category and the petitioner is not liable to make the payment of conversion. In para 2 of the sale deed it was mentioned as under:- "Whereas the Vendor is the full and absolute owner of the premises properly known as LAL NIWAS (Bungalow No. 21), Sawai Ram Singh Road, Jaipur) containing by measurements 24096/1/4 sq.yds. of land including the area of the main gate of the premises conveyed with Pucca building on it situated at the Sawai Ram Singh Road, Jaipur described by marks A, B, C & D delineated-in-the schedule and plan attached hereto and which premises is more fully described in the schedule hereunder." 19. of land including the area of the main gate of the premises conveyed with Pucca building on it situated at the Sawai Ram Singh Road, Jaipur described by marks A, B, C & D delineated-in-the schedule and plan attached hereto and which premises is more fully described in the schedule hereunder." 19. It is not doubt that the seller has given full and absolute ownership in favour of the petitioner and the petitioner can use the land but this does not mean that merely the full and absolute ownership vest with the petitioner entails (sic) him to get the refund of the conversion charges which has been deposited by the petitioner may be under protest. 20. In the judgment passed by the Division Bench which was heavily relied by the petitioner the case of Rajendra Bhandari (supra), the land was sold by the Municipal Corporation and while selling the land by the Municipal Corporation without condition of its use for specific purpose. 21. But the ratio decided by the Division Bench is not applicable in the instant case as the Division Bench while deciding the special appeal has considered Section 8 and 55(6)(a) of the Transfer of Property Act, 1882. 22. Section 8 of the Transfer of Property Act deals with the operation of transfer only which stipulates that unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof. 23. Taking advantage of this Section learned counsel for the petitioner referred para 2 of the sale deed which gives the full and absolute ownership to the petitioner by seller, it does not mean that the provisions of Municipality Act and the effect of the master plan will not apply. So far ownership is concerned, the petitioner has absolute right over the property in question but for change of use the petitioner have to make the payment of the conversion. 24. Section 55 deals with the rights and liabilities of buyer and seller. Section 55(6)(a) provides that the buyer is entitled "where the ownership of the property has passed to him, to the benefit of any improvement in, or increase in value of the property, and to the rents and profit thereof." 25. 24. Section 55 deals with the rights and liabilities of buyer and seller. Section 55(6)(a) provides that the buyer is entitled "where the ownership of the property has passed to him, to the benefit of any improvement in, or increase in value of the property, and to the rents and profit thereof." 25. So far as the ownership of property is concerned, it is not disputed that the 'ownership lies with the petitioner and the petitioner has every right to avail the benefit of any improvement or increase in value of the property and rents and profits even by asking for conversion of the land use but it does not mean that by virtue of the sale deed itself even if the full right of ownership is given to the petitioner to utilise the land in whatever manner he wants, the provisions of law at the time of making of the application for seeking conversion will not applicable. 26. As this is not disputed that the petitioner made the application and deposited the conversion amount on 26.12.02 admittedly after amendment in Section 173-A and the provisions of amendment provisions are applicable to the instant case also and the petitioner has calculated the conversion charges and deposited the same and after considering the same conversion order dated 6.5.2003 also been passed. 27. Having considered the ratio decided by Hon'ble the Supreme Court and the High Court I find no merit in the writ petition and the petitioner is not entitled to get the refund of the conversion charges which has been deposited by the petitioner under protest as it is essentially required to be deposited by the petitioner for the change of user of the property in accordance with the amended provisions of Section 173-A and also in accordance with the master plan. 28. Consequently, the writ petition fails and is hereby dismissed with no orders as to costs.Petition dismissed. *******