Rajasthan Municipalities Act, 1959 – s.173-A – Predecessorin-interest of the respondents purchased the property in question – After his death, respondents became the owner of the property – Respondents made application to the Corporation for conversion of land use as condition precedent for sanction of building plan for constructing commercial-cum-residential complex – Corporation directed the respondents to deposit Rs.1,01,04,672/- towards the conversion charges – Respondents reserving their rights, deposited the amount –Conversion of the land use allowed– Respondents issued notice to the Corporation claiming refund – Respondents filed writ petition in the High Court – Dismissed – Special appeal filed by the respondent before the Division Bench – Allowed– Direction to the appellants to refund Rs.1,01,04,672/- with interest – Held: s.173-A deals with the power of the State Government to allow the change of use of land – s.173-A was amended by Amendment Act of 1999 – 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– Both sub-ss.1 & 2 of s.173-A now contain restriction on both the categories of land, i.e. (i) originally allotted/sold by the State Government/any Municipality/other local authority/body/legal authority (ii) in the case of any land not allotted or sold and not covered u/sub-sec.1 of s.173-A – Restriction is with regard to the land use as provided in Master Plan –In the present case, even though prior to amendment of s.173-A, the respondents were using the land for commercial purposes, that user is prohibited by virtue of restriction brought by amended s.173-A(2) – Division Bench was unduly led by the fact that land which was purchased in 1959 was being used for commercial purpose – It did not advert to either subsec.2 of s.173-A or to the land use in the Master Plan at the relevant time, i.e., in 2002 when the respondents made application for sanction of building plan – Although, appellants brought on record the Land Use Plan 2011, which is in force w.e.f. 01.09.1998, the respondents contended that the said Plan does not conclusively establish that land use of the property in question was residential – Impugned judgment set aside – To meet the ends of justice, respondents given liberty to submit representation to the Corporation, if there are any materials and grounds that in the Master Plan in operation in 2002, the land use of the property in question was not residential but commercial – Rajasthan Municipalities (Amendment) Act, 1999.
Allowing the appeal, the Court
HELD: 1.1 Section 173-A of Rajasthan Municipalities Act, 1959 is provision dealing with the power of the State Government to allow the change of use of land. Section 173-A was amended by Rajasthan Municipalities (Amendment) Act, 1999. 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-A has 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. [Paras 8, 10] [1030--C;1033-B-H; 1034-A]
1.2 In event, the appellants claim that land use of Plot No.21 in the Master Plan 2011 enforced w.e.f. 01.09.1998 is accepted as residential, the restriction as imposed by sub-section 2 of Section 173-A as amended by Act, 1999 shall come into force and for change of land use as given in Master Plan 2011, the respondents were obliged to seek permission under sub-section
(3) of Section 173-A and without payment of conversion charges, they could not have obtained sanction map for commercial use of the land. [Para 14] [1034-G-H; 1035-A]
1.3 The 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 condition precedent for sanction map. 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 counsel for the respondents that they were forced to apply for conversion of land use from residential to commercial does not commend. 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 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 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 the 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, 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. The impugned judgment is set aside. [Paras 18-20 and 24] [1038-C-F; 1039-B-C; 1040-B-D]
Municipal Corporation, Rajasthan v. Sanjeev Sachdeva and Others (2013) 12 SCC 562 : [2013] 1 SCR 220 – held applicable.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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