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2008 DIGILAW 2642 (RAJ)

S. P. Bhargava v. The Municipal Counsel, Ajemr

2008-12-03

R.C.GANDHI

body2008
JUDGMENT 1. - By means of this writ petition, the petitioners seek to quash Notice dated 28.5.1997 demanding Rs. 9,75,242/-; Notice dated 4.7.1997 demanding Rs. 14,17,520/- as convertion charges issued by the respondent-Municipal Corporation, Ajmer. 2. The petitioner is owner in possession of the land hearing Plot No. 515/15 measuring 4,000 square yards situated at Srinagar Road, Ajmer described North-Private House; South-Main Srinagar Road; East feet wide lane and West-commercial buildings of others. A part of this property was leased out to M/s. A Automobiles Private Limited vide Agreement dated 30.9.1997 for a period of 15 years. The lease raised construction for accommodating his business of automobiles and repair of Maruti Cars. The Respondent-Municipal Corporation, Ajmer issued a Notice dated 28.5.1997 demanding Rs. 9,75,242/- towards conversion charges for commercial use of the property. Another Notice was served on 4.7.1997 by the respondent- Municipal Corporation raising revised demand of Rs. 14,17,520/- as conversion charges. 3. The leasee, apprehending the demolition, and the landlord agitating the matter and not making the payment of the conversion charges, filed a civil suit against the respondent-Municipal Corporation and obtained temporary injunction from the Civil Court, Ajmer. 4. The above mentioned notices issued by the respondent-Municipal Corporation have been challenged by the petitioner-owner by means of this writ petition on the ground that the Municipal Corporation has no jurisdiction to raise a demand of conversion charges in terms of Section 173-A of the Rajasthan Municipalities Act, 1959 (hereinafter referred to as 'the Act of 1959'), as the property has neither been allotted nor sold by the Municipal Corporation and on these premises the petitioner seeks to quash the notices issued by Municipal Corporation, without jurisdiction. 5. The respondent-Municipal Corporation, justifying their action, has filed reply and stated in the preliminary objections of the reply that the Municipal Corporation is justified in raising the demand in terms of Section 173 of the Act of 1959. 6. Heard learned counsel for the parties and perused the record. 7. Learned counsel for the petitioners in support of his plea has relied i upon the judgment of the Supreme Court delivered in case title State of Rajasthan & Others v. Pareshar Soni, reported in 2007 DNJ (SC) 1663 . 6. Heard learned counsel for the parties and perused the record. 7. Learned counsel for the petitioners in support of his plea has relied i upon the judgment of the Supreme Court delivered in case title State of Rajasthan & Others v. Pareshar Soni, reported in 2007 DNJ (SC) 1663 . The petitioner therein purchased an old property and submitted a site plan for approval before the Municipal Corporation, Jodhpur for construction of residential house and a few shops on the said property. The Municipal Corporation did not approve the site plan. The petitioner therein served a notice under Section 170(8) of the Act of 1959 upon the Municipal Corporation. There was no response by the Municipal Corporation within 15 days of the receipt of the notice as no heed was paid to the said notice. The petitioner therein by invoking the deemed clause started construction on the said property. The Municipal Corporation raised a demand of Rs. 1,66,874/- as conversion charges and compounding fees. The petitioner therein preferred a writ petition seeking to quash the notice of the Municipal Corporation raising demand of conversion charges and compounding fees. The litigation went up to the Supreme Court. The Apex Court while examining 5 the scope of Section 173-A of the Act of 1959 and amended provisions of Section 173-A of the Act observed as under: "18. We, therefore, have to accept the conclusion of the Division Bench that the property had neither been allotted by the Municipal Corporation or by the State Government or that any restriction had been placed on its user. Consequently, the question of demanding conversion charges for change of user would also not arise and the amended provisions of Sub-section (4) of Section 173-A would also have no application to the facts of the case, since it is controlled by the very opening words that no person shall use or permit the use of any 5 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. If the basis on which sub-section (4) of Section 173-A could be applied is not available to the petitioner the demand raised by it towards conversion charges also is not maintainable. 19. If the basis on which sub-section (4) of Section 173-A could be applied is not available to the petitioner the demand raised by it towards conversion charges also is not maintainable. 19. We, therefore, have no hesitation in holding that Section 173-A as amended in 1999 would not apply to the case of the respondent and the Division Bench of Rajasthan High Court at Jodhpur had correctly allowed the appeal by the respondent." 8. The case of the petitioner is squarely covered by the judgment 5 (supra) and the learned counsel for the respondents has also admitted this position and submitted that the writ petition of the petitioner be disposed of accordingly. 9. The writ petition is, accordingly, allowed. The Notices dated 28.5.1997, 4.7.1997 and 23.12.1997, whereby the demands of conversion o charges have been raised by the Municipal Corporation, Ajmer, are quashed. No order as to costs.Writ Petition Allowed. *******