PRAKASH KUMAR Vs. MUNICIPAL BOARD, SHEOGANJ

JUDGEMENT

(1.) - Initially this writ petition was filed before a Division Bench of this Court challenging the constitutional validity of Sec. 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 been illegally realised by the respondent Municipal Board, Sheoganj, district Sirohi (for short, "the Municipal Board" hereinafter) from the petitioners as commercial/conversion charges. The provisions of Sec. 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.

(2.) 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 1/2 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, 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 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.

(3.) 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 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 Sec. 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 square feet, there was no 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.