MUNICIPAL CORPORATION JODHPUR Vs. BANSHI LAL

JUDGEMENT

(1.) HEARD the learned counsel for the appellants and the respondents.

(2.) THIS appeal is directed against the order dated 5. 4. 1999 passed by the learned Single Judge in S. B. Civil Writ Petition No. 3927/98. By the aforesaid order, the writ petition filed by the respondent No. 1 Banshi Lal was allowed and the appellants as well as respondent No. 2 were directed not to insist for payment of conversion charges under Section 173-A of the Rajasthan Municipalities Act.

(3.) WE have carefully considered the submission made by the learned counsel for the parties. WE have carefully read the notification dated 16. 12. 1991 on which reliance has been placed by the learned counsel for the appellant. A bare perusal of this notification shows that several Municipal Boards/municipal Corporation sought guidance from the State Government as to the manner in which the land which had been converted for commercial purposes should be regularised and, as an interim measure, by this notification guidance was given by the State Government and it was ordered that conversion charges should be calculated at the rate of 20% of the difference between market value of the residential land and the market value of commercial land and if any person intends to pay conversion charges in installments then the conversion charges should be calculated at the rate of 25% and interest at the rate of 15% should be taken from him. The notification, on the face of it is confined to cases in which the use of land from residential to commercial was converted unlawfully. This notification, therefore, has no application to the cases in which the use of the land was changed in an lawful manner. Besides, no notification can be issued contrary to the provisions of the Rajasthan Municipality Act, 1959. Therefore, the notification dated 16. 12. 1991, cannot go beyond the scope of Section 173-A of the Rajasthan Municipalities Act so far as the right of the owner of a land to change its use from residential to commercial or commercial to residential purpose is concerned. WE deem it fit to clarify that so far as change in use of land is concerned, the Municipality have two rights; (1) the right to grant permission for change in use of land, if the land had been sold or allotted by the State Government or the Municipality for a specific purpose only and (2) the right to grant permission to construct plot in accordance with the plan approved by the Municipality. The former right is an incident of the property rights vested in the State Government or the Municipality and, therefore, this right can be availed of by the Municipality only in those cases where land had been allotted or sold by the State Government or the Municipality for a specific purpose only. The second right, namely, the right to insist that no construction shall be made except according to plan of construction approved by the Municipality, is not an incident of the property rights vested in the Municipality, it is an incident of the police power of the State delegated to the Municipality to exercise control on the right of the land in the matter of construction of building on the land belonging to them. The object behind the exercise of this power can only be to regulate the construction of plot in such a manner as to ensure that the development of land is in accordance with the approved land and is not injurious to any one. The object behind the use of police power is only to regulate the use and enjoyment of property rather than to deprive any persons of his right to property in any manner. If the exercise of the power to regulate construction of building is exercised in unreasonable manner, it would be open to challenge on the ground that it is unreasonable and interferes with the fundamental rights of the citizens. The police power of the State must be exercised in conformity with the fundamental rights as well as right to property conferred by Article 300a of the Constitution. In our opinion, it would be fallacious to assume, that the power to insist of construction according to the plan approved by the Municipality, includes the power to deprive any person of his right in the property.