SINGH, J. - (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. The only question which arises for decision is whether the State Government, can demand any conversion charges under Section 173-A of the Rajasthan Municipalities Act in respect of a land, which was neither allotted nor sold by the Municipality or the State Government. It is not disputed that the respondent No. 1 Banshi Lal, moved an application before the Municipal Corporation, Jodhpur for granting permission to raise construction on the plot of land, which had been purchased by him from Shri Man Mal Lodha by registered sale-deed. It is also not disputed that Shri Man Mal Lodha who was the former owner of the house, was a descendent of Smt. Jadav Kanwar in whose name a `patta' had been issued by the erstwhile Maharaja of Jodhpur. Further admitted facts are that on the application filed by the petitioner for granting the permission for construction, a notice demanding a sum of Rs. 91,540/-was issued by the Municipal Corporation on 7. 10. 1998 under the signatures of the Commissioner. The reason for demanding the sum of Rs. 91,540/-was the conversion of residential house into commercial premises. The petitioner challenged the notice of demand on the ground that Section 173-A of the Rajasthan Municipalities Act, does not apply to land which has neither been sold nor allotted by the Municipality or the State Government. A show cause notice was issued to the non-petitioners and a reply was filed on behalf of the non-petitioners No. 2 and 3. In the reply, the non-petitioners No. 2 and 3 stated that the land on which the petitioner proposed to construct the commercial premises was situated in density populated area and the petitioner was liable to pay conversion charges because he proposed to covert the residential house into a commercial premises. It was further stated in the reply that the `patta' which was issued in the name of the former owner of the plot of land did not create any free hold rights and the Municipal Corporation, Jodhpur was entitled to recover the conversion charges. The learned Single Judge, held that reading of `patta' does not show that any specific purpose was enumerated in it at the time when the land was given to the petitioner. The petitioner is successor in title to the original allottee vide Annexure 3 and since original allotment was not limited only to the residential use, it cannot be said that provisions of Section 173-A are attracted in the matter. The learned Single Judge, therefore, allowed the writ petition and restrained the non-petitioners on the payment of conversion charges under Sec. 173-A of the Rajasthan Municipalities Act. The learned counsel for the appellants has submitted that the view taken by the learned Single Judge is not correct and that the provisions of Section 173-A of the Rajasthan Municipalities Act, 1959, apply to all lands, use thereof is sought to be changed by the owner irrespective of the fact whether the land had been allotted or sold to them by the State Government or the Municipality or they had purchased the land from any private person. It is further submitted by the learned counsel for the appellants that the notification No. F. 16 (46) Stha. Ni. /91/422004411 dated 16. 12. 1991 expressly empowers the Municipal Board and the Municipal Corporation to demand conversion charges from those persons who have converted the residential land into commercial land and no distinction has been made in the notification between the land sold or allotted by the State Government or the Municipality and the lands which have not been allotted or sold by the Municipality or the State Government. The learned counsel for respondent No. 1 has supported that the impugned order passed by the learned Single Judge.
(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. We now propose to consider the provisions of Section 173-A of the Rajasthan Municipality Act, in detail. Section 173-A of the Rajasthan Municipalities Act reads: " 173-A. Power of the State Government to allow change in the use of land.- (1) Notwithstanding anything contained in this Act, where any land has been allotted or sold to any person by a Municipality or the State Government subject to the condition of restraining the use for a particular purpose, the State Government may, if it is satisfied so to do in public interest, allow the owner or holder of such land to use it for any other purpose other than the purpose for which it was originally allotted or sold, on payment of such conversion charges as may be prescribed: Provided that the rates of conversion charges may be different for different areas and for different purposes. (2) The conversion charges so realised shall be credited to the Consolidated Fund of the State or to the fund of the Municipality as may be determined by the State Government. (3) Such charges shall be the first charge on the interest of the person liable in the land the use of which has been changed and shall be recovered as arrears of land revenue. " ;