STATE Vs. SURANA ENTERPRISES

JUDGEMENT

(1.) THE instant civil regular first appeal under Section 96 C.P.C. is directed against the judgment and decree of the learned District &Sessions Judge, Jaipur City, Jaipur dated 22.9.1982.

(2.) THE relevant facts, in brief, are that the plaintiff- respondent filed a suit against the defendant-appellant for declaration and recovery of Rs. 1,47,400/- with the averments that the respondent-firm as a registered firm. It was granted permission for construction of a cinema hall on a residential plot situated in C-Scheme. THE letter was written informing that His Excellancy, the Governor had been pleased to grant permission to construct the cinema hall on Plot No. C-16 situated in C- Scheme which was meant for residential use to be used as commercial plot. THE said plot was owned by Smt. Jatan Kanwar W/o Mehtab Chand Golecha. THE District Magistrate who was earlier licensing authority in this regard has also issued no objection certificate. It transpired that Golecha Properties Pvt. Ltd. went into liquidation. THE Rajasthan High Court in exercise of the powers under the Companies Act, appointed Official Liquidator for the disposal of whole of the property of Smt. Golecha, who disposed of the plot in favour of the plaintiff-respondent. THE plaintiff-respondent took possession of the said plot vide order dated 26.12.1974 passed by lower court from the official liquidator on 6.2.1975 when the cinema hall was completely constructed but, the plaintiff-respondent applied to the licensing authority for grant of licence to exhibit the movies in the said cinema hall whereupon, it was informed that plot was a residential plot and for its commercial use, Rs. 1 lac will have to be deposited as conversation charges in cash along with an unconditional undertaking that the plaintiff-respondent would pay the land conversion charges settled by the State as per law. THE plaintiff-respondent agreed to deposit Rs. 1,00,000/- and furnished unconditional undertaking upon fulfilling the said conditions by the plaintiff-respondent the licensing authority granted permission to exhibit the movies in the said cinema hall. THE case of the plaintiff-respondent is that the aforesaid amount was deposited and the required unconditional undertaking was furnished under duress and coercion. THE appellant was not authorised to get the said amount deposited nor could demand required undertaking. THE plaintiff respondent after serving notice under Section 80 C.P.C. filed a civil suit in this behalf. THE defendant-appellant denied all the averments in the plaint and pleaded that the plot in question was a residential plot and permission for its conversion from residential to commercial use was granted on plaintiff-respondent's voluntarily depositing Rs. 1 lac and unconditional undertaking. On the basis of the pleadings of the parties, following issues were framed: - (i) Whether the plaintiff is entitled to receive back the amount of Rs. 1,00,000/- deposited by him? (On plaintiff). (ii) Whether the plaintiff is entitled to interest? If so, how much? (On plaintiff). (iii) Whether the undertaking given by the plaintiff on 29.5.1976 deserves to be cancelled? (On plaintiff). (iv) What should be the relief?

(3.) SO far as the findings of the learned Trial Court with regard to Issues No. 1 and 3 are concerned, no fault can be found that in view of the evidence on record. It is not in dispute that the plot in question was initially a residential plot which was converted for commercial use for the construction of cinema hall. Pursuant to the letter addressed to the plaintiff-respondent. At the time when the conversion order was passed and conveyed to the plaintiff-respondent, there was no provision in the Urban Improvement Trust Act, 1959 (in short, the "Act of 1959") or any other law or rules that the same could be done by any other authority than the State Government and that too after charging the conversion charges. The provisions of Section 75 were inserted in the Act of 1959 w.e.f. 24.7.1959. The Rajasthan Urban Improvement (Change of Use of Residential Land For Premises For Commercial Purposes) Rules, 1974 (in short, "the Rules of 1974") came into force w.e.f. October 10, 1974 i.e., long after the conversion of land use order/permission was passed in this case.