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Rajasthan High Court · body

2006 DIGILAW 2813 (RAJ)

Ashok Kumar Bakliwal v. Municipal Board, Abu Road

2006-10-04

GOPAL KRISHAN VYAS, RAJESH BALIA

body2006
Honble BALIA, J.–Heard learned counsel for the parties. (2). The petitio is directed to challenge the demand of conversion charges raised by the respondent Municipal Board, Abu Road vide communication dated 22.4.2003 and 16.2.2006 purporting to be in accordance with Section 173 A of the Rajasthan Municipalities Act, 1959 (for short `the Act of 1959) as amended vide Municipalities Amendment Act, 1999 w.e.f. 30.9.1999. In addition to challenging the demand on merit within the provisions of Section 173-A itself, the petitioners have also sought to challenge the constitutional validity of Section 173-A as amended vide aforesaid amending act and rules framed thereunder for giving effect to it. (3). The undisputed facts of the present case are that the petitioners are holding a land which is governed by a patta issued by the erstwhile Sirohi State. Under the grant, there was no restriction on the nature of use to which the land in question could be put. In other words, the holder of land has no restriction upon user of the land under the grant. According to the petitioners, they had purchased a building constructed on a plot ad-measuring 1809 Sq. fts. situated Near Azad Maidan Area, Abu Road from one Raghunath Prasad S/o Shri Ramji Lal and patta of erstwhile Sirohi State stood in favour of Shri Saju Ram, Heera Lal predecessor in title of Raghunath Prasad. The nature of patta is not in dispute. (4). The petitioners had submitted an application to the Municipal Board, Abu Road on 9.4.2003 for raising construction on the aforesaid property. The Municipal Board, Abu Road vide its letter dated 7.7.2003 sought directions in this regard from the Deputy Director, Local Bodies, Jodhpur. Prior to seeking this instruction, the Municipal Board, Abu Road had informed the petitioners that since permission is sought to raise building for commercial nature whereas the land is used for residential purpose unless the charges for conversion of land use is permitted in accordance with law, his case for grant of persmission cannot be considered. (5). By letter dated 16.2.2006 the petitioners were informed that since they have not sought conversion of the land use from residential to commercial and they started construction over the land in question, the same may be stopped and they must seek the conversion of land use by payment of charges. (6). (5). By letter dated 16.2.2006 the petitioners were informed that since they have not sought conversion of the land use from residential to commercial and they started construction over the land in question, the same may be stopped and they must seek the conversion of land use by payment of charges. (6). The respondent No. 3 Municipal Board had relied on sub- section 3 of Section 173-A of the Act of 1959 for sustaining their insistence on payment of conversion charges before use of land for commercial purpose. However, the fact that the original patta does not contain any restriction on type of use to which the land can be put has not been denied and is not in contention. The respondents No. 1 and 2 have filed reply principally resting their case upon Section 173-A of the Act of 1959. (7). So far as the constitutional validity of Section 173-A is concerned, the same has since been decided by the Division Bench of this Court in Mewa Ram vs. State of Rajasthan and Anr. reported in 2006(8) RDD 4199 . The Division Bench of this Court has sustained constitutional validity of the provisions and challenge to the constitutional valdiity of Section 173-A has been repelled. Hence, that question no more survives for consideration in this writ petition. (8). Learned counsel for the petitioners had urged that on merit of the case so far as Section 173-A is concerned, it is no more res integra so far as this Court is concerned. This Court has taken the view that where the land is held by the person with no restricted user under the grant of sub-section (1) of Section 173-A of the Act has no application. Therefore, for putting the land for any use according to the need and requirement of the holder, no conversion charges are required to be paid. So far as sub-section (2) of Section 173-A, as amended is concerned, it applies only where the holder proposes the contruction to be raised contrary to the provisions made in the master plan. Since there is no master plan approved for Abu Road nor it is a case of respondents that the petitioners are not raising construction according to the master plan, there is no restriction on the commercial use of the land by the holder in respect of land in question either under Sections 173-A (1) or (2). Since there is no master plan approved for Abu Road nor it is a case of respondents that the petitioners are not raising construction according to the master plan, there is no restriction on the commercial use of the land by the holder in respect of land in question either under Sections 173-A (1) or (2). Sub-section (3) of Section 173-A is only exception to sub-section (1) and (2) under which holder can be permitted to raise such constructions which are prohibited under Sections 173-A (1) or (2), provided he pays conversion charges in terms thereof. But where a person does not fall within sub-sections (1) and (2) of Section 173-A, the question of paying conversion charges therefore, would not arise. On the factual aspect learned counsel for the respondents have not joined issues; namely about the scope of land use under patta as well as aspect of master plan of Abu Road. It would be apposite here to reproduce Section 173-A as it stands presently:- ``173-A : (Restriction on change of use of land and power of the State Government to allow change of use of land: (1) No person shall use or permit the use of any land situated in any municipal area, for the purpose other than that for which such land was originally allotted or sold to any person by the State Government, any municipality, any other local authority or any other body or authority in accordance with any law for the time being in force or, otherwise than as specified under a Master Plan, wherever it is in operation. (2) In the case of any land not allotted or sold as aforesaid and not covered under sub-section (1), no person shall use or permit the use of any such land situated in a municipal area for the purpose other than that for which such land use was or is permissible, in accordance with the Master Plan, wherever it is in operation or under any law for the time being in force. (3) Notwithstanding anything contained in sub-section (1) or sub-section (2), the State Government or any authority authorized by it by notification in the Official Gazette, may allow the owner or holder of any such land to have change of use thereof, it it is satisfied so to do in public interest, on payment of conversion charges at such rates and in such manner as may be prescribed with respect to the following changes in use: (i) from residential to commercial or any other purpose; or (ii) from commercial to any other purpose; or (iii) from industrial to commercial or any other purpose; or (iv) from cinema to commercial or any other purpose; Provided that rates of conversion charges may be different for different areas and for different purposes. (4) Any person who has already changed the use of land in violation of the provisions of this Act in force at the time of change of use, shall apply to the State Government or any authority authorized by it under sub-section (3), within six months from the date of commencement of the Rajasthan Municipalities (Amendment) Act, 1999 (Act No. 19 of 1999) for regularization of said use and upon regularization of the change of use of land he shall deposit the amount contemplated under sub-section (3). (5) Where the State Government or the authority authorized by it under sub-section (3), is satisfied that a person who ought to have applied for permission or regularization under this section, has not applied and that such permission can be granted or the use of land can be regularized, it may proceed to determine the conversion charges after due notice and hearing the party/parties and the charges so determined shall become due to the municipality and be recoverable under sub-section (7). (6). The conversion charges so realized shall be credited to the fund of the municipality. (7) Charges under 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. (9). (6). The conversion charges so realized 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. (9). A persual of the aforesaid provision clearly goes to show that under sub-sections (1) and (2) on the presence of the codnition stated therein; holder of the land is not permitted to use the land other than the purpose for which it has been allotted to him or other than the purpose approved under the master plan. Sub-section (3) apparently has overriding effect to over come the restriction imposed under clauses (1) and (2). It is only where under clauses (1) and (2) the holder is not permitted to make use of the land contrary to what has been stated, under sub-section (3) if the State Government or any authority authorized by notification in this behalf allows the owner or holder to such land to use, otherwise, if he is satisfied so to do in a public interest, on payment of conversion charges at such rates as may be determined under rules from time to time. Therefore, the present case must first fall within the prohibition envisaged under sub-sections (1) and (2) before it can attract sub-section (3). (10). Sub-section (3) is a non obstante clause which gives it an over-ridding effect over provisions mentioned therein viz. Sub- section (1) and Sub-section (2). (11). The non obstante clause is usually used as legislative device to modify the ambit of the provision or law mentioned in the non obstante clause or to override the same in any specified circumstance. It does not operate on its own by divorcing it from the provisions of law which is sought to be overridden or modified to the extent it is envisaged in non obstante clause. (12). The principle underlying Legislative device of enacting a non obstante clause is that it is equivalent to saying that in spiteof the provision or Act mentioned in the non obstante clause, the enactment mentioned in the non obstante clause will not be an impediment for the operation of the non-obstante clause. (13). (12). The principle underlying Legislative device of enacting a non obstante clause is that it is equivalent to saying that in spiteof the provision or Act mentioned in the non obstante clause, the enactment mentioned in the non obstante clause will not be an impediment for the operation of the non-obstante clause. (13). In AIR 1964 SC 207 , the Supreme Court while considering the non obstante clause, expression ``notwithstanding anything contained in the Constitution and ``subject to, pointed out the distinction between expression ``subject to and ``non obstante clause as under:- ``The expression ``subject to conveys the idea of a provision yielding place to another provision or other provisions to which it is made subject... The phrase ``notwithstanding anything in the Constitution is equivalent to saying that in spite of the other articles of the Constitution.... (14). Apparently, non obstante clause had mentioned the over riding effect over other provisions of the Constitution. The other provisions of the Constitution became subject to it. (15). Simiarly, in Union of India & Another vs. G.M. Kokil & Ors. reported in 1984 (Suppl.) SCC 196, the Supreme Court observed as under:- ``It is well known that a non obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment, that is to say, to void the operation and effect of all contrary provisions. Thus, the non obstante clause in Section 70, namely, ``notwithstanding anything contained in that Act must mean notwithstanding anything to the contrary contained in that Act. (16). Likewise, in Chandavarkar Sita Ratna Rao vs. Ashalata S. Guram reported in AIR 1987 SC 117 , the following observations clearly fortifies the view which we have expressed above:- ``A clause beginning with the expression ``notwithstanting anything contained in this Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force, or in any contract is more often than not appended to a section in the beginning with a view to give the enacting part of the section in case of conflict and overriding effect over the provision of the Act or the contract mentioned in the non obstante clause. It is equivalent to saying that in spite of the provisions of the Act or any other Act mentioned in the non obstante clause or any contract or document mentioned the enactment following it will have its full operation or that the provisions embraced in the non obstante clause would not be an impediment for an operation of the enactment. (17). The impact of above principle is that sub-section (3) of Section 173 A opening with ``notwithstanding anything contained in sub-section (1) and (2) of this Section, which is a non obstante clause in given circumstance overrides the provisions of sub-sections (1) and (2) of Section 173 A mentioned in sub- section (3). In other words, this clause operates in spite of prohibition contained in sub-section (1) and (2) by enabling State Government or authority authorised in this behalf to allow use of land for the purpose prohibited under sub-sections (1) and (2) of Section 173 A on payment of conversion charges, provided lifting of such prohibition is considered in public interest. Quantum of conversion charges depends on to what use the land is allowed to be put to use by allowing such user inspite of prohibition. Where there is no restraint about the user of land in terms of sub-sections (1) and (2). Question of operating non obstante clause in an alien territory would not arise. In such event the permission to use land for other purpose inspite of prohibition which operate is not required to be sought. (18). On admitted case, the petitioner case neither falls under sub-sections (1) or (2). Hence, no restriction is otherwise operates against nature of construction to be raised by the holder of land under patta. Hence, he did not require any permission for change of user from permissible to non-permissible use. (19). So far as clauses (1) and (2) as they stood prior to amendment, the Division Bench of this Court in Municipal Corporation, Jaipur & anr. vs. Raj Kumar & Anr. reported in 2000 DNJ 485 = (RLW 2000(3) Raj. 1682) has held that the power to levy conversion charges under Section 173-A is not applicable where the grant is not conditioned by restricting the right of the grantee about the user of the land in particular manner. vs. Raj Kumar & Anr. reported in 2000 DNJ 485 = (RLW 2000(3) Raj. 1682) has held that the power to levy conversion charges under Section 173-A is not applicable where the grant is not conditioned by restricting the right of the grantee about the user of the land in particular manner. Apparently, if the petitioners grant of land is not conditioned by such restriction, the right of the grantee about the user of land in any particular manner, the restriction imposed has no application. Consequently for putting the land to any use as per requirement of holder and no charges are required to be paid by him under sub-section (3) for effecting the change of use. (20). So far as Clause (2) and prohibitions contained therein are concerned, they apply to use in contravention of existing master plan for the area. Since there is no master plan admittedly exist for Abu Road township, sub-section (2) also does not come in operation. None of restrictive clauses have any application. Thus, no demand can be raised in reference to sub-section (3) of Section 73-A. It does not exist independent of sub-sections (1) and (2). (21). Accordingly, the petition is allowed. The respondents are restrained from invoking sub-section (3) in the admitted facts and circumstances of the case. The security given in pursuance of the interim order passed on 10.5.2006 shall stand discharged. No order as to costs. (22). Writ petitions No. 2102/2006 and 1688/2000 may be detached from this writ petition.