1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R Prakash Kumar & Anr. Versus Municipal Board, Sheoganj & ors. S.B. Civil Writ Petition No. 246/2008 Date of Order: January 28, 2009 PRESENT HON'BLE MR. JUSTICE H.R. PANWAR Mr. Vivek Shrimali, for the petitioners. Mr. B.S. Charan, for the respondents. BY THE COURT: Reportable. Initially this writ petition was filed before a Division Bench of this Court challenging the constitutional validity of Section 173-A of the Rajasthan Municipalities Act, 1959 (for short, “the Act, 1959” hereinafter). Apart from challenging the constitutional validity of the said provision, the petitioners challenged the notices Annx.12 dated 21-8-2000, Annx.13 dated 07-6-2001, Annx.15 dated 22-01-2005, Annx.16 dated 27.9.2005 and Annx.17 dated 13-9-2007 and also seek a direction to the respondents to refund the amounts which have 2 been illegally realized by the respondent Municipal Board, Sheoganj, district Sirohi (for short, “the Municipal Board” hereinafter) from the petitioners as commercial/conversion charges. The provisions of Section 173-A of the Act, 1959 have already been up-held by a Division Bench of this Court in Mewa Ram Vs. State of Rajasthan & Anr., 2006 (3) DNJ (Raj.) 1660 and, therefore, by the order dated 8-1-2008 the Division Bench of this Court pleased to direct to place the matter before a Single Bench for consideration of other reliefs prayed by the petitioners in the writ petition. Briefly stated the facts, to the extent they are relevant and necessary for decision of this writ petition are that the petitioner No.1 purchased ½ portion of the building from one Om Prakash and Hari Prakash Agarwal by way of registered sale deed dated 04-11-1993 and petitioner No.2 purchased the remaining half portion of the building from Om Prakash and Hari Prakash Agarwal by way of registered sale deed dated 4.11.1993. Petitioner No.1 also purchased a plot from Moti Lal S/o Lal Chand Jain (H.U.F.) by a registered sale deed dated 20- 10-1997. Similarly, petitioner No.2 also purchased a plot from Kailash Chandra S/o Roopa Ram Rawal by registered sale deed dated 5-11-1997; the copies of which have been placed on record as Annx. 1 to Annx. 4. On the basis of the sale deeds, 3 the petitioners derived the title over the properties mentioned in Annx.1 to Annx.4. The said properties have been governed by Patta No.58 dated 17-10-1947; Patta No.397 dated 397 dated 16-7-1951 and Patta No.11 dated 18-12-1957, the copies of which have been placed on record as Annx.5, Annx.6 and Annx.7 respectively. Patta No. 58 makes reference of earlier Patta No.25 dated 26-5-1908 and Patta No. 397 makes a reference of Patta No.174 dated 11-7-1942. Thus, according to the petitioners, the land which is covered by various Pattas, as noticed above, was sold to the Patta-holders before coming into force of the Act, 1959. However, the petitioners filed an application before the respondent Municipal Board on 13-12- 1997 for granting permission to construct a commercial complex after demolishing of the existing old building, which was in use of carrying business vide Annx.8. The respondent Municipal Board, after following the due procedure, accorded the permission to the petitioners vide Permission Letter dated 11-2-1998 (Annx.9). According to the petitioners, the properties in question were being used for commercial purposes from the very beginning and before the said properties have been purchased by the petitioners, their predecessors-in-title i.e. the erstwhile owners, were also carrying on business on the said properties and thus, the properties, right from the very beginning, were put to commercial use as the building in question was recorded as 4 shops and were assessed for House Tax purposes as commercial building, i.e. the shops and the only change sought to be brought by the petitioners was that the old shops may be permitted to be demolished and new commercial complex be raised thereon, for which the petitioners approached the respondent Municipal Board for permission and the permission has been accorded, as noticed above. So far as the land covered by the document Annx.7 dated 18-12-1957 is concerned, a Patta was issued by the respondent Municipal Board being Patta No.11; the land measuring 61 ¼ square feet is a strip of land in favour of the predecessors-in-title of the petitioners, from whom the petitioners purchased the land by registered sale deeds. The said strip of land was sold to the predecessor-in-title of the petitioners by the respondent Municipal Board on 18-12-1957 vide Annx.7. Be that as it may, the said strip of land was sold by the respondent Municipal Board much prior to coming into force of the amendment in Section 173-A of the Act, 1959, which came into force with effect from 30-9-1999 by the Rajasthan Municipalities (Amendment) Act, 1999 published in the Rajasthan Gazette No. E.O. 4-A (ka) dated 30-9-1999 and, therefore, according to the learned counsel for the petitioners, even for the strip of land measuring 61 ¼ square feet, there was no 5 restriction imposed by the respondent Municipal Board at the time of selling the same by way of strip of land and, therefore, there being no restriction on the change of user of the said land, the respondents are not entitled to ask for the commercial/conversion charges. However, by the impugned notices Annx.12, Annx.13, Annx.15, Annx.16 and Annx.17 referred hereinabove, the respondent Municipal Board demanded the commercial charges for the land covered by building under registered sale deeds, as noticed above, from the petitioners; hence this writ petition. A reply to the writ petition has been filed by the respondent Municipal Board contending therein that the validity of the provisions of Section 173-A of the Act of 1959 has already been upheld by a Division Bench of this Court in Mewa Ram Vs. State of Rajasthan & Anr. (supra) and since the provisions of Section 173-A of the Act, 1959 is constitutionally valid, therefore, the respondent Municipal Board is empowered to demand and realize the commercial charges whenever the land has been put from residential use to commercial use. I have heard learned counsel for the parties. It is contended by the learned counsel for the 6 petitioners that the controversy raised in the instant writ petition is no more res integra in view of the Division Bench decision of this Court in Pareshar Soni Vs. State of Rajasthan, 2005 (3) Western Law Cases (Raj.) 468, which came to be challenged by the State of Rajasthan before the Hon'ble Supreme Court in State of Rajasthan Vs. Pareshar Soni, 2007 AIR SCW 7688, wherein the Hon'ble Apex Court up-held the decision of the Division Bench of this Court and, therefore, the controversy raised in the instant writ petition stands concluded by the decision of the Hon'ble Supreme Court. Learned counsel for the petitioners further submits that the respondents have illegally realized and recovered certain amount from the petitioners in the name of commercial charges, which the respondent Municipal Board is not entitled to realize and, therefore, the petitioners are entitled for refund of the amount illegally realized by the respondent Municipal Board from the petitioners. Learned counsel for the petitioners has relied on the decision of this Court in Kanhaiya Lal Jain Vs. The Urban Improvement Trust & Anr., S.B. Civil Writ Petition No.2701/2000 decided on 27-02-2008. The decision of the learned Single Judge in Kanhaiya Lal Jain Vs. U.I.T. & Anr. (supra) came to be challenged by the Urban Improvement Trust before a Division Bench of this Court by filing D.B. Civil Special Appeal (Writ) 7 No.128/2009, which came to be dismissed by the Division Bench by the Order dated 27-1-2009 and this fact has not been disputed by the learned counsel for the respondents. Learned counsel for the petitioners has also relied on two decisions of the Hon'ble Supreme Court in Salonah Tea Company Ltd. etc. Vs. The Superintendent of Taxes, Nowgong & ors. etc., AIR 1990 SC 772; and U.P. Pollution Control Board & ors. Vs. M/s. Kanoria Industrial Ltd. & Anr., AIR 2001 SC 787. In State of Rajasthan & ors. Vs. Pareshar Soni (supra), the Hon'ble Supreme Court, while considering the provisions of Section 173-A of the Act, 1959, held as under:- “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 the relevant time, since there was no restriction on the user of the land when it was acquired by the respondent.” Section 173-A of the Act, 1959, as amended by the Amending Act of 1999, reads as under:- “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 8 allotted or sold to any person by the State Government, any municipality, any other local 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 authorised by it by notification in the Official Gazette, may allow the owner or holder of any such land to have change the 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 9 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).” Thus, on a bare reading of Section 173-A of the Act, 1959, in order to attract the provision, two conditions are necessary to be satisfied: (i) that the land has been allotted or sold to any person by the Municipal Board or the State Government; and (ii) that allotment or sell is subject to the conditions limiting its use for a particular purpose. If either of these two conditions were not fulfilled, the provisions of Section 173-A of the Act, 1959 would not apply. In the instant case, as has been noticed above, the petitioners purchased the property which was covered by various Pattas, as noticed above, issued in the years 1947, 1951 and 1957, i.e. much before coming into force of the Act, 1959. There is absolutely no evidence on record to show that the land covered by such Pattas was either sold by the Municipal Board or the State Government; rather it is not the case of the respondent Municipal Board or the State Government that the said land was sold either by the State Government or the Municipal Board. On perusal of the sale deeds and the Pattas, it 10 is also clear that there had been no restriction on the change or user of the land. At the time of purchasing the land by various registered sale deeds by the petitioners, the property was being used for commercial purposes. Even in the sale deed, the recital therein shows that the petitioners purchased the shops from their erst-while owners of the properties, who acquired the property by way of various Pattas; except the land measuring 61 ¼ square feet, which was sold by the respondent Municipal Board as the strip of land to the predecessors-in-title of the petitioners, but even from that sale deed Annx.7, it no where appears that there had been any restriction put on the change or user of the land sold by way of strip of land and in absence of any such restriction on change of user, even for that strip of land measuring 61 ¼ square feet, in my view, the respondents are not entitled to demand commercial charges. It is not in dispute that the petitioners approached the respondent Municipal Board seeking permission to construct commercial complex after demolishing the old shops covered by various sale deeds in favour of the petitioners. The respondent Municipal Board granted permission in favour of the petitioners under Section 170 of the Act, 1959. In State of Rajasthan & ors. Vs. Pareshar Soni 11 (supra), the Hon'ble Supreme Court observed as under:- “While it is true that the respondent had not produced a copy of the “Patta” 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. 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. 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.” On the above premises, the Hon'ble Supreme Court 12 held that Section 173-A, as amended in 1999, would not apply to the case of the respondent therein. The facts of Pareshar Soni's case and those of the instant writ petition are almost identical and, therefore, in my view, even the amended provisions of Section 173-A of the Amended Act of 1999, have no application in respect of the land sold by the respondent Municipal Board way back in the year 1957 as the strip of land to the predecessor-in-title of the petitioners. The respondent Municipal Board has realised a sum of Rs.1,38,752/- vide Annx.10 and Rs.1,38,751/- vide Annx.11 from the petitioners for the properties in question. In view of the fact that the respondent Municipal Board is not entitled to charge any commercial charges and, therefore, the initial demands raised by the respondents demanding the amount for payment on the ground of commercial use, was illegal and, therefore, any amount realised by the respondents from the petitioners by raising illegal demands and also without jurisdiction, is liable to be refunded to the petitioners and at any rate, the respondents have no right to retain the said amounts realised by them from the petitioners by issuing illegal notices, rather the notices issued were without jurisdiction. Therefore, 13 the amount so realised by the respondents from the petitioners vide Annx.10 and Annx.11, are liable to be refunded to the petitioners. In Kanhaiya Lal Jain Vs. The Urban Improvement Trust & Anr. (supra), the question came up for consideration before this Court was regarding levy of conversion charges by the respondent U.I.T. Therein; the amount of Rs.2,65,200/- which was deposited by the petitioner therein vide receipt dated 30-11-1995 in respect of Plot No.228, Sardarpura, Jodhpur, was put to commercial use, came to be considered and while considering the provisions of Section 72 of the Contract Act, this Court held that any such amount cannot be retained by any person, much less the State Authority or public body, if the recovery is illegal. In that case, the contention was raised on behalf of the Urban Improvement Trust that since the petitioner therein voluntarily paid the said charges, therefore, he is not entitled for refund thereof and this Court held that such a contention is hardly of any avail to the U.I.T. , if the conversion charges would not have been levied as per the law. It was the money paid under the mistake of law and under Section 72 of the Contract Act, the said money cannot be retained by any person or authority. An appeal preferred against the decision of this Court in Kanhaiya Lal Jain's case (supra), came to be 14 dismissed by the Division Bench of this Court on 27-1-2009, as noticed above. In Salonah Tea Company Ltd. etc. Vs. The Superintendent of Taxes, Nowgong & ors. (supra), the Hon'ble Supreme Court observed as under:- “The only question that falls for consideration here is whether in an application under Article 226 of the Constitution the Court should have directed refund. It is the case of the appellant that it was after the judgment in the case of Loong Soong Tea Estate the cause of action arose. That judgment was passed in July 1973. It appears thus that the High Court was in error in coming to the conclusion that it was possible for the appellant to know about the legality of the tax sought to be imposed as early as 1963, when the Act in question was declared ultra vires as mentioned hereinbefore. Thereafter the taxes were paid in 1968. Therefore, the claim in November 1973 was belated. We are unable to agree with this conclusion. As mentioned hereinbefore the question that arises, in this case is whether the Court should direct refund of the amount in question. Courts have made a distinction between those cases where a claimant approaches a High Court seeking relief of obtaining refund only and those refund were sought as a consequential relief after striking down of the order of assessment etc. Normally speaking in a society governed by rule of law taxes should be paid by citizens as soon as they are due in accordance with law. Equally, as a corollary of the said statement of law it follows that taxes collected without the authority of law as in this case from a citizen should be refunded because no State has the right to receive or to retain taxes or monies realised from citizens without the authority of a law.” The Apex Court held that the tax collected without authority of law from the citizens should be refunded because no 15 State has right to retain tax and money realised from the citizen without authority of law. This view has been reiterated by the Hon'ble Supreme Court in U.P. Pollution Control Board & ors. Vs. M/s. Kanoria Industrial Ltd. & ors. (supra). While considering the question of maintainability of a writ petition under Article 226 of the Constitution of India for refund of money paid, upon declaration of the law, the Hon'ble Supreme Court observed as under:- “Another reason to defeat the claim for refund put forth is that the respondents have filed writ petitions challenging unsuccessful the validity of levy in question and those orders have become final inasmuch as no appeal against the same has been filed. The contention is put forth either on the basis of res judicata or estoppel. It is no doubt true that these principles would be applicable when a decision of a Court has become final. But in matters arising under public law when the validity of a particular provision of levy is under challenge, this Court has explained the legal position in M/s. Shenoy and Co. Vs. Commercial Tax Officer, Circle II, Bangalore, (1985) 2 SCC 512 (AIR 1985 SC 621) that when the Supreme Court declares a law and hold either a particular levy as valid or invalid it is idle to contend that the law laid down by this Court in that judgment would bind only those parties who are before the Court and not others in respect of whom appeal had not been filed. To do so is to ignore the binding nature of a judgment of this Court under Article 141 of the Constitution. To contend that the conclusion as to the validity of a levy would apply only to the parties before the Court is to destroy the efficacy and integrity of the judgment and to make the mandate of Article 141 illusory. When the main judgment of the High Court has been rendered ineffective, it would be applicable even in other cases, for exercise to bring those decisions in conformity with the decisions of the Supreme Court will be absolutely necessary. Viewed from that angle, we find this 16 contention to be futile and deserves to be rejected.” Keeping in view the decisions of the Hon'ble Supreme Court and a decision of this Court in Kanhaiya Lal Jain's case (supra), in my view, the amounts illegally realised by the respondent Municipal Board from the petitioners vide Annx. 10 and Annx.11, cannot be allowed to be retained by the respondent Municipal Board, as the respondent Municipal Board has no right to retain such amounts which have been wrongly realised by them from the petitioners and, therefore, the petitioners are entitled for refund of those amounts. In view of the aforesaid discussion, the writ petition is allowed; the notices Annx.12 dated 21-8-2000, Annx.13 dated 7-6-2001, Annx.15 dated 22-1-2005, Annx.16 dated 27-9-2005 and Annx.17 dated 13-9-2007 are quashed and the respondent Municipal Board is directed to refund the amounts realised from the petitioners vide Annx.10 and Annx.11 within a period of two months from the date of production of a certified copy of this Order; however, the respondent Municipal Board shall not be liable to pay interest thereon. There shall be no order as to costs. The stay petition also stands disposed of. (H.R. PANWAR), J. mcs