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2008 DIGILAW 538 (RAJ)

A. J. Consultants Pvt. Ltd. v. State of Rajasthan

2008-02-20

VINEET KOTHARI

body2008
JUDGMENT 1. - Heard learned counsels. 2. This writ petition has been filed by the petitioners against the Annex. 10 dated 15.1.2005 issued by the Commissioner, Municipal Council, Udaipur to the petitioner demanding a sum of Rs. 15,04,173.20 on account of alleged construction of property without proper sanction obtained by the petitioner. 3. Mr. J.P. Joshi, learned counsel for the petitioner submitted that when the construction of the said property was initiated by the petitioner they applied to the Urban Improvement Trust, Udaipur on 19.5.2003 as the said area fall within the jurisdiction of UIT, Udaipur prior to 1.1.2004. The respondent UIT, however did not issue any sanction or approval of the said map for undertaking said construction and, therefore, according to the provisions of Section 73(8) of the Urban Improvement Trust Act, 1959, on account of deemed permission envisaged under the said provision of Section 73(8) of the Act the petitioner started raising construction. Thereafter when annex.10 impugned notice/order was issued by the Commissioner, Municipal Council, Udaipur, demanding the aforesaid sum of Rs. 15 lacs and odd the petitioner approached this Court and by the interim order dated 10.5.2005 the petitioner was allowed to make all finishing work without altering the building itself. He submits that when the jurisdiction or the area in question was transferred to the Municipal Council w.e.f. 1.1.2004, the petitioner approached the respondent Municipal Council also by way of representations Annex.4 dated 11.6.2004 and thereafter again by Annex.6 dated 4.7.2004. In the meanwhile, the Commissioner, Municipal Council, Udaipur vide Annex.5 dated 26.3.2004 asked the petitioner to appear before him along with the requisite documents and to obtain the proper sanction for construction and in the meanwhile not to undertake any further construction. 4. According to the petitioner, he also applied in the prescribed form for sanction of necessary permission vide Annex.7 application form dated 7.7.2004 in which also the petitioner made it clear that the construction was in progress under the deemed permission as per the provisions of Section 73(8) of the UIT Act, 1959. Thereafter when the petitioner again approached the Municipal Council by way of letters dated 15.9.2004 Annex.8 and dated 12.1.2005 Annex.9, the Commissioner, Municipal Council, Udaiur issued impugned notice/order dated 15.1.2005 rejecting the said request letter of the petitioner dated 12.1.2005 and demanding the said sum of Rs. 15,04,173.20 as regularisation charges. 5. Thereafter when the petitioner again approached the Municipal Council by way of letters dated 15.9.2004 Annex.8 and dated 12.1.2005 Annex.9, the Commissioner, Municipal Council, Udaiur issued impugned notice/order dated 15.1.2005 rejecting the said request letter of the petitioner dated 12.1.2005 and demanding the said sum of Rs. 15,04,173.20 as regularisation charges. 5. Being aggrieved by the same, the petitioner approached this Court by way of present writ petition. 6. Mr. Bhushan, learned counsel appearing for the Municipal Council has urged that the petitioner could not have raised construction under the provisions of deemed permission as per the provisions of Section 73(8) of the UIT Act and moreover since the petitioner himself applied and approached to the Municipal Council for regularisation, the Municipal Council was justified in demanding the said regularisation charges to the tune of Rs. 15,04,173.20. He has further submitted that there were deviation in the plan submitted for approval and the construction raised by the petitioner as well as two maps produced by the petitioner before the UIT, Udaipur and Municipal Council, Udaipur. 7. I have heard learned counsel and perused the record. 8. The provisions of UIT Act, 1959 Section 73(8) contains a provision for raising construction after application for permission to raise construction is made and the Trust neglects or omits for one month or to grant or to reject the application for the reasons to be recorded by which the applicant may, by a written communication, call the attention of the Trust to omission or neglect and if such omission or neglect continues for a further period of 15 days from the date of such communication, the Trust shall be deemed to have permitted the proposed work absolutely and such work may proceed with the manner specified in the rules. The said deemed permission however confers no right on the applicant as to authorise him to act in contravention of any other provisions of the said UIT Act or Rules and regulation made thereunder relating to any matter other than the requirement of obtaining permission of the Trust before undertaking or carrying out improvement under this Act. 9. Therefore, it cannot be contended that there is no provision for deemed permission to raise construction. 10. The petitioner applied in year 2003 to the UIT, Udaipur when it admittedly fell within the jurisdiction of UIT, Udaipur. 9. Therefore, it cannot be contended that there is no provision for deemed permission to raise construction. 10. The petitioner applied in year 2003 to the UIT, Udaipur when it admittedly fell within the jurisdiction of UIT, Udaipur. Merely because after the transfer of area from UIT, Udaipur to Municipal Council, Udaipur, the petitioner again applied to Municipal Council to regularise the said deemed permission and grant ex-post facto permission for the said construction, the respondent Municipal Council could not have straight way demanded the said regularisation charges or composition amount as is envisaged under the provisions of Rajasthan Municipalities Act (Compounding and Compromising of Offence) Rules, 1966 which Rules provides for levy of compensation up to 25% of the cost of unauthorised construction. The petitioner was first required to be heard in the matter. Since no details of alleged unauthorised construction is given in the impugned notice annex.10 which is more in the tenor of an order rather than a notice though it is titled as 'Suchana Patra' (Notice), the same cannot be sustained as a demand notice or an order of the Commissioner, Municipal Council, Udaipur. The Municipal Council being a public body, the authority functioning in public bodies are expected in law to act fairly and not arbitrarily and also before. raising a demand against any person, they are expected to give an opportunity of hearing to such person concerned. This is the minimum compliance with the principles of natural justice which has to be observed by all public authorities. The impugned notice/order Annex.10 dated 18.1.2005 does not meet these basic requirements of law. If the Municipal Council, Udaipur finds any irregularity or unauthorised construction in the present case as well, it is needless to say that it is free to proceed in accordance with aforesaid Rules and after giving a proper notice to the petitioner pointing out the alleged unauthorised construction for which, it can even demand such compounding charges in accordance with the aforesaid Rules of the 1966 but without undertaking that procedure for determination of such compounding charges, it is felt that the demand straight way raised by the respondent Municipal Council, Udaipur cannot be sustained in law. The grievance of the petitioner, therefore, appears to be justified. 11. Accordingly, this writ petition is allowed and the impugned notice/ order Annex.10 dated 18.1.2005 of the Commissioner of Municipal Council is quashed and set aside. The grievance of the petitioner, therefore, appears to be justified. 11. Accordingly, this writ petition is allowed and the impugned notice/ order Annex.10 dated 18.1.2005 of the Commissioner of Municipal Council is quashed and set aside. The Commissioner, Municipal Council and UIT shall, however, be free to undertake fresh proceedings under the aforesaid Rules in accordance with law and in compliance of the principles of natural justice as aforesaid. No order as to costs.Writ petition allowed. *******