Case: THE MAYOR JAIPUR MUNICIPAL CORPORATION &amp; ANR Vs. THAKUR SHIV RAJ SINGH &amp; ORS

2. Brief facts of case giving rise to this appeal are:Col. Late Harnath Singh, the predecessor-in-interest of the respondents by registered sale deed dated 16.04.1959 had purchased the property in question known as ‘Lal Niwas? from His Highness Sawai Man Singh of Jaipur. Lt.Col. Late Harnath Singh died on 08.01.1997 after which the respondents became owner of the property. The respondents, with intent to develop by constructing a multi-storeyed building, commercial-cum-residential complex in the area of 8080.14 square meter, made an application to Corporation for conversion of land use as condition precedent for sanction of building plan for constructing commercial-cum-residential complex. The Corporation issued an order dated 22.02.2003 directing the respondents to deposit an amount of Rs.1,01,04,672/- towards the conversion charges. The respondents reserving their rights deposited the amount through pay order dated 20.03.2003. An order dated 06.05.2003 was passed by the Corporation allowing the conversion of the land use of the aforesaid land. The building plan was thereafter approved by the Corporation on 08.01.2004. The respondents issued notice dated 28.04.2004 to the Corporation calling upon the appellants to pay a sum of Rs.1,13,86,703/- along with interest. The respondents filed a Writ Petition No.4783 of 2004 in the High Court of Rajasthan at Jaipur Bench praying for followingBy an appropriate writ, order and direction impugned orders dated 22.02.2003 (Annexure.2), order dated 01.04.1003 (Annexure.4), 19.11.2003 & 20.12.2003 (Annexure.7) passed by the respondents No.2 & 3 may kindly be quashed and setBy an appropriate writ, order or direction the respondents may be directed to refund the amount of Rupees 1,01,04,672/- charged/ extracted by the respondents towards conversion charges of the land in question and an amount of Rupees 6,31,542/- and Rupees 6,59,961/- charged by the respondents towards Shahari Jama Bandi & interest thereon, thus totalling Rs. 1,13,96,175/- from the petitioners along with interest @ 18% p.a. thereon as damages for unnecessarily withholding the aforesaid amount w.e.f. date of deposit to the date of payment. The respondents may further be directed to refund the total amount as prayed hereinabove to the petitioners in the proportion viz. 30% to Thakur Shiv Raj Singh (Petitioner No.1) and 1/3rd of the remaining to each of the Petitioners No.2 toCost of litigation be awarded to theAny other order(s) as this Hon?ble High Court may deem fit and proper in the facts and circumstances of the present writ petition be also passed in favour of the humble petitioners and against the respondents.In the writ petition, the Corporation filed its reply. The Corporation resisted the writ petition. A learned Single Judge of the High Court vide its judgment dated 04.07.2006 dismissed the writ petition. Aggrieved against the judgment of learned Single Judge, Special Appeal was filed by the respondent before the Division Bench. The Division Bench of the High Court vide its impugned judgment dated 12.01.2018 allowed the Special Appeal and directed for refund of the amount of Rs.1,01,04,672/- with interest. The Corporation aggrieved by the judgment of the Division Bench has come up in this appeal.

Reasoning:
10. The demand for conversion charges having been raised in the present case in the year 2002, the provisions of Section 173-A as amended by Act 19 of 1999 are applicable in the present case. A perusal of unamended and amended Section 173-A indicates that there is substantial change in the statutory provision of Rajasthan Municipalities Act, 1959. Prior to amendment, the power of the State Government to allow the change in the use of land was confined to a land allotted or sold by Municipality or the State Government. The amended Section 173-A has not only changed heading of the Section but contents also. Section 173-A as amended contains restriction on use of land. Both sub-section (1) and sub-section (2) of Section 173-A now contain a restriction on both the categories of land, i.e., (i) originally allotted or sold by the State Government, any Municipality and other local authority or any other body or legal authority; (ii) in the case of any land not allotted or sold and not covered under sub- section (1). The restriction is that no person shall use or permit the use of any such land situated in a municipal area other than that for which such land use was or is permissible, in accordance with the Master Plan, wherever it is in operation. The amended provision of Section 173-Ahas been brought on the Statute book to ensure planned development of a municipal area. Master Plans are to be prepared according to the statutory Scheme keeping in view the future developments of the city and the municipal area. A clear distinction between the statutory Scheme under Section 173-A, unamended and amended, is visible. Earlier the restriction was there only with regard to land, which has been allotted or sold to any person by a Municipality or the State that too restriction for land use for any other purpose other than the purpose for which it was originally allotted or sold. After the amendment restriction is with regard to the land use as provided in Master Plan. Even if prior to amendment in Section 173-A, a person holding the land which was neither allotted nor sold to it by Municipality or State could have used the land for any purpose, the restriction has now been placed by amended Section 173-A. In the facts of the present case, even though prior to amendment of Section 173-A the respondents were using the land for commercial purposes that user is prohibited by virtue of restriction brought by amended Section 173-A(2) for using the land for a purpose other than one which is permitted under Master Plan, permission of State or any authority authorised by it, is required as provided by sub-section (3) of Section 173-A.We need to notice the land use as permissible in the Master Plan, which was in operation at therelevant time when respondents submitted an application for sanction of building plan for commercial-cum-residential complex.We may also notice one of the submissions vehemently raised by the learned counsel for the respondents that the respondents were forced to deposit the conversion charges, which they deposited under the protest. The copy of the writ petition filed by the respondents has been brought on record as Annexure-P/12. In paragraph Nos. 5,6 and 7, following has been pleaded by theThat the petitioners intended to get the aforesaid plot of land admeasuring 10067.14 sq.yards which is equivalent to 8420.56 sq. meters, developed by constructing a multi-storeyed commercial-cum-residential complex. In this connection, on having been asked to apply with them for land use conversion as a condition precedent so that maps of building plans can be approved for constructing commercial- cum-residential complex.That the respondents No 2 & 3 vide order bearing No.F.13/At.Mu.N.Niyo./ dated 22.02.2003 directed to deposit an amount of 1,01,04,672/- towards conversion charges. The copy of the aforesaid order dated 22.02.2003 is being enclosed herewith and marked as Annexure.2.That in pursuance of the aforesaid order passed by the respondents No.2 & 3, the humble petitioners reserving their rights deposited the amount so demanded i.e. a sum of Rs.1,01,04,672/- through pay order dated 20.03.2003 drawn on City Bank, M.I.Road, Jaipur vide duly filled challan dated 16.1.2003/20.3.2003 under Covering Letter dated 20.3.2003. Consequently, receipt dated 20.3.2003 was issued from office of respondents No.2 & 3 in proof of said amount having been duly deposited. The photocopy of the Covering letter dated 20.3.2003 along with receipt dated 20.3.2003 and challan dated 16.1.2003/20.3.2003 are being enclosed herewith and collectively marked as Annexure-3.The above pleading of the respondents only indicates that when they intended to construct multi- storeyed building for commercial-cum-residential complex they were told to deposit conversion charges as a condition precedent for sanction map. Learned Single Judge in its judgment had noted that the respondents intended to deposit conversion charges for the land use as commercial-cum-residential complex. The submission of the learned counsel for the respondents that they were forced to apply for conversion of land use from residential to commercial does not commend us. Whether the respondents were liable to deposit the conversion charges is to be determined in accordance with the statutory Scheme and statutory requirement. In the event, under the Statute they were obliged to obtain conversion of land use from residential to commercial, they were bound to do the same and the fact that they were asked by the Corporation to do the same is inconsequential.The Division Bench in the impugned judgment has been unduly led by the fact that land which was purchased in the year 1959 is being used for commercial purpose. The Division Bench did not advert to sub-section (2) of Section 173-A as amended by Act 19 of 1999 and its consequences. The total consideration of the Division Bench on the entire case is in paragraph Nos.7, 8 and 9 which are to the followingWe have gone through the property document which shows that the land was purchased in the year 1959 and the same property was used by the company for commercial purposes. In our considered opinion, with a view to avoid any delay in their construction activities, the appellants have paid the amount under protest to the respondents.In that view of the matter, respondents are not entitled for conversion charges and the amount deposited by the appellants is required to be refunded with immediate effect.The respondents are directed to refund the said amount alongwith interest @ 6% within a period of three months from today. If the payment is not made within a period of three months, the appellants will be entitled for interest @ 9% and difference of 3% will be recovered from the officer who has made delay in making payment.We are of the view that the Division Bench did not consider the issues raised in the appeal in the correct perspective and has not adverted to the effect and operation of the statutory Scheme as delineated by sub-section (2) of Section 173-A as amended by Act 19 of 1999. The judgment of the Division Bench, thus, cannot be upheld.In the present case, learned Single Judge has made followingis also not disputed that in the Master Plan area in question is ear marked for commercial use and it is also not disputed the earlier the area in question is used for commercial purpose. Therefore, the petitioner moved application for conversion for approval of map for constructing a commercial building.Although learned Single Judge made the above observation, but the judgment does not indicate that said observations were made after looking into the Master Plan which was in force at the time of submission of application by the respondents.The Division Bench did not advert to either sub- section (2) of Section 173-A or to the land use in the Master Plan at the relevant time, i.e., in the year 2002 when the respondents made an application for sanction of building plan.The Division Bench did not advert to either sub- section (2) of Section 173-A or to the land use in the Master Plan at the relevant time, i.e., in the year 2002 when the respondents made an application for sanction of building plan.The appellants although have brought on record the Land Use Plan 2011, which is in force w.e.f. 01.09.1998 along with their rejoinder-affidavit but since during the submission learned counsel for the respondents has contended that the said Land Use Plan 2011 does not conclusively establish that land use of Plot No.21 was residential, we are, thus, of the view that ends of justice shall be served in giving liberty to the respondents to submit a representation before the Corporation, if there are any materials and grounds that in the Master Plan which was in operation in the year 2002, when respondents submitted an application that land use of Plot No.21, Lal Niwas was not residential but commercial.