SBCWP NO.413/2005 –SMT. ABHILASHA RATHORE V/S HINDUSTRAN PETROLEUM AND ORS.: JUDGMENT DTD.29.4.2008 1/6 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. S.B. CIVIL WRIT PETITION NO.8509/2007 Dinesh Kumar and ors. versus State of Rajasthan and ors. PRESENT HON'BLE Dr.JUSTICE VINEET KOTHARI Mr.O.P. Mehta, for the petitioner. Mr.Ramit Mehta, for respondents DATE OF JUDGMENT : 29th April, 2008. JUDGMENT 1. The learned counsel for the petitioner submits that the controversy involved in this writ petition is covered by the series of judgments of this Court in various cases. 2. The controversy involved in the case is that whether conversion charges under Section 173A of the Rajasthan SBCWP NO.413/2005 –SMT. ABHILASHA RATHORE V/S HINDUSTRAN PETROLEUM AND ORS.: JUDGMENT DTD.29.4.2008 2/6 Municipalities Act can be demanded on the commercial use of the property, though there was no such restriction put by the State Government at the time of original allotment or sale of land in question to the petitioner. 3. The learned counsel for the petitioner submits that at the time of purchase of said property by the petitioner, no such restriction was put by the State Government in the patta issued to the petitioner nor in the sale-deed of the petitioner and therefore, the conversion charges demanded by the Municipal Council, Jodhpur is illegal and on account of same, refusal to grant permission for construction of petrol pump vide Annex.12 dtd.7.3.2006 has been challenged by the petitioner. 4. The learned counsel for the petitioner relies upon the following judgments: 1) State of Rajasthan V/s Pareshar Soni – 2007 DNJ (SC) 1063. SBCWP NO.413/2005 –SMT. ABHILASHA RATHORE V/S HINDUSTRAN PETROLEUM AND ORS.: JUDGMENT DTD.29.4.2008 3/6 2) Hilton Estate Pvt. Ltd. V/s State of Rajasthan and ors. - 2005(2) DNJ (Raj.) 744. In para 18 of the said judgment, this Court held as under: “18. Therefore, a complete reading of all the sub-sections of Sec.173-A further reveals that the land of which use has been changed, is at the most liable for conversion charges for the purpose of regularisation. None of the above provisions as framed u/s 173-A provides that the person, who purchased the property without having restriction for its use shall now after coming into force of the amended provisions of law shall have restriction for the use of the land as a condition in the title deed. The above provisions, particularly, sub-secs.(1) and(2) only provides that as mentioned above; (i) no person shall use or permit the use of any such land for the purpose other than that for which such land use was, or (ii) shall not use the land in violation to the use shown in the Master Plan. The use of land, which has been changed in violation of provisions of Rajasthan Municipalities Act, 1959 during the period when the Act SBCWP NO.413/2005 –SMT. ABHILASHA RATHORE V/S HINDUSTRAN PETROLEUM AND ORS.: JUDGMENT DTD.29.4.2008 4/6 of 1959 was/is in force requires to be got regularized by the person, who has changed the use of land and if he chooses not to apply for such conversion, the State Government or the authority authorized by the State may determine the conversion charges and recover it from that person. The question of demanding any conversion charges for change of land use cannot arise when a case is not falling in any of the provisions of sub-secs. (3), (4) and (5) of Sec.173-A of the Rajasthan Municipalities Act, 1959. 3) Lalit Kumar Bothra V/s Municipal Board, Sheoganj – 2001 DNJ (Raj.) 455. In the said case, this Court in para 5 held as under: “5. I am unable to agree inasmuchas there is nothing in the Notifiction which makes it retrospective in operation so as to validate the orders made under the then existing provisions before its amendment, nor any provision of the amended section makes any change so faras the SBCWP NO.413/2005 –SMT. ABHILASHA RATHORE V/S HINDUSTRAN PETROLEUM AND ORS.: JUDGMENT DTD.29.4.2008 5/6 principle of levying conversion charges only to a case when a person uses or permits the use of any land situated in municipal area for the purpose other than for which the land was originally allotted or sold by the State Government to any person. Undoubtedly, in this case, Sirohi State has allotted/sold the land in question to the petitioner's ancestors without any restriction on the user of the land. Therefore, the question of using the land for any purpose other than for which it is allotted so as to invite application of the provisions of Sec. 173 A whether amended or unamended does not arise. Change in permissible use can only occur when in the first instance, the land is sold with such condition about particular use to which land could be put. Else freedom to use the land for any purpose is uninhibited.” 4) Jawahar Sons Enterprises Pvt. Ltd. V/s State of Rajasthan and ors. - 2002 (1) DNJ (Raj.) 194. 5) Devendra Puri and anr. V/s Municipal Board and ors. - 2008(1) DNJ (Raj.) 430. SBCWP NO.413/2005 –SMT. ABHILASHA RATHORE V/S HINDUSTRAN PETROLEUM AND ORS.: JUDGMENT DTD.29.4.2008 6/6 6) Kanhaiya Lal Jain V/s The Urban Improvement Trust, Jodhpur and anr. - S.B. CWP No.2701/2000 decided on 27.2.2008. 5. Since consistent view of this Court is that the conversion charges cannot be demanded in such circumstances, this writ petition deserves to be allowed. Accordingly, this writ petition is allowed and impugned order Annex.12 dated 7.3.2006 is quashed. The respondent – Municipal Council shall consider the case of the petitioner for grant of permission to raise construction without insisting upon the payment of conversion charges within a period of two months from today. No order as to costs. (Dr.VINEET KOTHARI)J. Item No.61 Ss/-