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CASE NO.: Special Leave Petition (civil)  24912 of 2005

PETITIONER: State of Rajasthan & Ors

RESPONDENT: Pareshar  Soni

DATE OF JUDGMENT: 20/11/2007

BENCH: G.P.Mathur & Altamas Kabir

JUDGMENT: J U D G M E N T  

Altamas Kabir, J.

1       Since the issue to be decided in this special leave  petition is limited to the interpretation of Section  173-A of the Rajasthan Municipal Act, 1959 (hereinafter  referred to as \021the Act\022), it was decided to hear out  the special leave petition at the admission stage  itself. 2       The facts involved in the special leave petition,  in brief, are as follows: 3       The respondent herein, Pareshar Soni, purchased an  old house situated at Moti Chowk, Jodhpur, from one  Smt. Shanti Kumari Lodha by a registered sale deed  dated 15.5.1987. It appears from the judgment forming  the subject matter of the special leave petition that   Smt. Shanti Kumari acquired the ownership and  possession of the said property pursuant to a judgment  and decree passed by the Calcutta High Court on  6.6.1972 in Civil Suit No.867 of 1934.  After  purchasing the property the said respondent filed an  application before the Municipal Corporation, Jodhpur,  under Section 170(1) of the Act seeking permission to  construct a residential house and a few shops on the  said property.  Inasmuch as, the Municipal Corporation  did not take any step on the said application, a notice  was sent on behalf of the respondent herein to the  Corporation under Section 170(8) of the Act providing  for a response within 15 days of receipt of the notice.   It appears that the Corporation did not pay any heed  even to the said notice, and accordingly, by invoking  the deeming clause the respondent started construction  work on the said property. 4       On 24th May, 1997 the Municipal Corporation raised a  demand upon the respondent for a sum of Rs.1,66,874/-  by way of conversion charges and compounding fees.  The  respondent objected to the said demand and filed a  representation challenging its validity on the ground  that the property in question is nearly 200 years old  and reference thereto had been made in a Patta of the  year 1865 pertaining to a neighbouring house, showing  the property to be a free-hold property.  Consequently,  according to the respondent, no commercial charges  could be levied thereupon. The respondent, however,  deposited a sum of Rs.1,619 towards construction fees.   As the representation filed by the respondent did not

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yield any result, the respondent was compelled to file  a writ petition before the Jodhpur Bench of the  Rajasthan High Court, being SBC Writ Petition No.2159  of 1997.  The Municipal Corporation, Jodhpur, which is  the petitioner No.2 in the present special leave  petition filed its reply contending that Section 173-A  of the Act permits the State Government to allow any  person to use the land for the purposes other than for  which it was originally allotted. It was also contended  that the regulation of the areas, markets etc. were all  within the compass of the Act and the \021Patta\022 said to  have been issued by the earlier State would also remain  subject to the Act. One other stand which was taken  before the learned Single Judge was that the  respondent/writ petitioner had failed to produce a copy  of the Patta for the property in question to indicate  the rights and the conditions of usage of the land  provided therein. Upon hearing the parties the learned  Single Judge by his judgment and order dated 19th July,  1999 dismissed the writ petition solely on the ground  of non-production of the Patta by the respondent  herein. 5       The respondent thereupon filed a Special Appeal  before the Division Bench of the aforesaid High Court,  being DB (Civil) Special Appeal No.1109/1999.  Before  the Division Bench the main contention advanced on  behalf of the respondent herein was that the property  in dispute was a free-hold Hindu Undivided Family (HUF)  property which was nearly 2 centuries old and at the  relevant point of time the erstwhile State had allotted  the same on a free-hold basis. Consequently, the  provisions of Section 173-A of the Act would not apply  in the instant case. 6       It was also contended on behalf of the respondent  that the impugned demand notice was illegal and without  any legal validity because the said property had  neither been allotted nor sold to the respondent or her  predecessor-in-interest by the Municipal Corporation or  the State Government, as contemplated in Section 173-A  of the Act, and as such no conversion charges or  compounding fees could be levied and demanded by the  Municipal Authorities. 7       While deciding the appeal, the Division Bench on a  bare reading of Section 173-A of the Act observed that  in order that the said section should apply, two  conditions were necessary : (i) that the land has been  allotted or sold to any person by the Municipal  Corporation or the State Government, and (ii) that the  allotment or sale of the land by the Municipal  Corporation or the State Government was subject to the  condition of limiting its use for a particular purpose.   The Division Bench also observed that if either of the  two conditions were not fulfilled the provisions of  Section 173-A would not apply.  Basing its decision on  the contention advanced on behalf of the respondent  that the said property had never been sold or allotted  to them being a HUF property, the Division Bench  affirmed the view taken by the Single Judge and, after  going through the registered sale deed, came to the  conclusion that the property had neither been allotted  nor sold by the Municipal Corporation or the State  Government and that too for specific purpose.  The  Division bench also came to a finding that there was no  evidence on record to suggest that the land in question  had come into the hands of respondents herein with

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certain conditions limiting its use.  Noting that the  averments in the writ petition stood unrebutted the  Division Bench also concluded that it had been  established that the respondent herein acquired the  ownership and possession over the land by the  registered sale deed without any condition or restraint  on its use.  On the basis of its aforesaid finding, the  Division Bench allowed the appeal filed by the  respondent herein and set aside the order of the single  Judge.  Consequentially, the writ petition filed by the  respondent herein was allowed. 8       On behalf of the petitioners it was submitted that  the only point which required an answer in the instant  special leave petition was whether the provisions of  sub-section (4) of Section 173-A of the Act which had  been introduced by amendment in 1999 would apply to the  case of the respondent when admittedly she had acquired  title to the property on 15th May, 1987 long prior to  the said amendment.  It was submitted that since the  amendment had been effected, the Municipal Corporation   was entitled to raise a demand on the basis thereof on  account of the change of user of the land by the  respondent. 9       It was also submitted that the single Judge had not  committed any error in dismissing the writ application  on the ground  that the writ petitioner/respondent  herein had failed to produce the \021Patta\022 of the  property which would have clearly indicated the use to  which the said property could be applied.  In the  absence of any evidence to the contrary, produced by  the writ petitioner/respondent herein, the single Judge  had very rightly held that it was not possible to  accept the bald statement made on behalf of the writ  petitioner/respondent herein that the property had not  been allotted or sold to her predecessor-in-interest  either by the Municipal Corporation or the State  Government. 10       The submissions made on behalf of the appellant  were controverted on behalf of the respondent and it  was urged that the registered sale deed by which the  respondent herein had acquired the property had not  indicated any condition relating to specific user of  the property in question.  Apart from the above,  reference had been made to a \021Patta\022 of 1965 issued in  favour of the owner of the adjoining property which  indicated that the said property was free-hold on which  there could be no levy of commercial charges.  The said  statement of fact had not been rebutted by the  petitioner and the representation filed by the  respondent remained unattended to and unanswered by the  petitioner.  It was submitted on behalf of the  respondent that in the absence of any evidence produced  on behalf of the Municipal Corporation, the Division  Bench had not committed any error in coming to the  conclusion that the respondent had been able to  establish that she had acquired ownership and  possession over the property by a registered sale deed  without any condition placing any limitation on its  use. 11      On the question of application of Sub-section (4)  of Section 173-A, as introduced in the Act by the  amendment of 1999, it was submitted that, in any event,  the same could have no application since the respondent  by raising a residential house and shops had not  violated any of the provisions of the Act in force at

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the relevant time, since there was no restriction on  the user of the land when it was acquired by the  respondent. 12      In view of the difference in the unamended  provisions of Section 173-A and the amendments  introduced therein by the Rajasthan Municipalities  (Amendment) Act, 1999, it would be appropriate at this  stage to set out the unamended provisions of Section  173-A as well as the amendments effected therein by the  aforesaid Amending Act of 1999. 13      Section 173-A of the Act prior to its amendment was  as follows: \023173-A (Power of the State Government  to allow change in the use of land \026

(1)     Notwithstanding anything contained  in this Act, where any land has  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, if 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 rates of  conversion charges may be  different for different areas 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 the 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 of the Act as amended by the Amending  Act of 1999 reads as follows: \023173-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

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(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.\022

(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  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 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 said use and upon  regularisation  of the change of use  of land he shall deposit the amount  contemplated under sub-section (3).\024

14      From the submissions made on behalf of the  respective parties and the materials on record,  admittedly the respondent herein acquired title to the

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property in question by a registered sale deed dated  15.5.1987.  It is also not denied that her predecessor- in-interest acquired ownership and possession of the  property pursuant to a judgment and decree passed by  the Calcutta High Court on 6.6.1972 in Civil Suit  No.867 of 1934. 15      There is also no dispute that the respondent filed  an application under Section 170(1) of the Act on  5.1.1996 seeking permission to construct a residential  house and shops on the property in question and  not  having received any response thereto, a notice was  given on her behalf under Section 170(8) of the Act,  which was also not replied to and consequently on the  basis of the deeming provision the respondent started  construction invoking such deeming clause contained in  sub-section (8) of Section 170 itself. 16      While it is true that the respondent had not  produced a copy of the \021Patta\022 for the property in  question she had all along contended that the property  in question had never been allotted to her predecessor- in-interest either by the Municipal Corporation or by  the State Government, which stand stood unrebutted on  behalf of the petitioner. There is also no denial by  the petitioner that the property had been acquired by  the predecessor-in-interest of the respondent by virtue  of a decree passed by the Calcutta High Court in  respect of the ancestral properties of the parties to  the suit. 17      In such circumstances, we do not think it will be  proper for this Court in the special leave petition to  once again embark on an inquiry, without any evidence  on record, as to whether the property had been allotted  either by the Municipal Corporation or the State  Government.  In either case, some record would have  been maintained either by the Municipal Corporation or  the State Government, which was not produced either  before the Court in the writ proceedings or before us. 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 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      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 the  Rajasthan High Court at Jodhpur had correctly allowed  the appeal by the respondent.

20      In that view of the matter, the instant special  leave petition is dismissed, but there shall be no  order as to costs.