V.K.BALI,J. - (1.) Nimbaheda Ramkrishan Grih Nirman Sahakari Samiti Ltd. Nimbaheda through its President Bhagwati Prasad Partani has filed this writ petition under Article 226 of the Constitution of India, seeking to quash the demand of penalty of Rs. 4,22,775/- made from the petitioner vide Annexure-7 dated 25.1.1990.
(2.) The brief facts of the case as projected in the writ petition reveal that the petitioner is a Housing Co-operative Society registered under the provisions of Rajasthan Co-operative Societies Act. It holds certain agricultural land in village Nimbaheda Distt. Chittorgarh comprised in Aaraji No. 1055 and 1056 measuring in all 28 bighas and 7 biswas. The Society was formed with a view to provide land and housing accommodation to its members at reasonable price. For the said purpose the petitioner sought to get the aforesaid land of Aarajis No. 1055 and 1056 converted into Abadi land under the provisions of Rajasthan Land Revenue (Allotment, Conversion and Regularisation of Agricultural Land for Residential and Commercial Purposes in Urban Areas) Rules, 1981 (hereinafter referred to as "The Rules of 1981". It made a initial payment of the charges for conversion amounting to Rs. 2,12,000/- on 29.10.1984. It then filed an application for conversion of the land before the Authorised Officer, the second respondent herein and prayed for conversion of entire land. The application was filed on 31.10.1994. It is the case of the petitioner that under Rule 8 of the Rules of 1981 the second respondent was required to process, scrutinise and enter into enquiry from the petitioner within seven days of the receipt of the application. The same was endorsed to the Town Planning Department or the Local Body for their views and recommendations. The Local Body and Town Planning Department were required to communicate the recommendations to the Authorised Officer within forty days and in case, the Authorised Officer could not give its views and recommendations within 60 days of the receipt of the application in his office, he was to convene a meeting of the Local Body and Town Planning Department and was further required to take a final decision in the matter within 90 days of the receipt of the application. It is further the case of the petitioner that provisions contained in Rule 8 of the Rules of 1981 were not at all complied with and the application of the petitioner was kept pending for a long time for no reason or justification. Constrained, the petitioner pressed for the disposal of his application and the second respondent vide order dated 7.3.1986 proceeded to dismiss the same on the ground that the land was situated near the factory of J.K. Cement Works and thus, the land is prone to air pollution. The petitioner then filed an appeal before the Revenue Appellate Authority and the same was allowed vide order dated 24.2.1988 and the matter was remanded to the second respondent for disposal of the application for conversion of the land used and after remand the matter was sent back to the Sr. Town Planner vide order dated 7.4.1988 who himself suggested the Town Planner that modification in the plan submitted by the petitioner was required. It is the case of the petitioner that the second respondent was creating unnecessary hurdles in the way of the petitioner for conversion of the land use. The Sr. Town Planner however, suggested certain changes in the land including reduction in number of plots. The second respondent sought concurrence of the petitioner for such reduction but the petitioner society did not agree as it had 259 members of the society and the conversion had been sought for providing plots to all the members of the society. After such refusal by the petitioner, the matter was sent back to the Sr. Town Planner who this time consented for 259 plots but suggested some modifications of the plan. The petitioner agreed to the modification as suggested vide letter dated 24.4.1989. Meanwhile on the direction of the II respondent, the Tehsildar inspected the site and specifically reported his concurrence for conversion of land and also stated that the land was open and vacant land. A copy of the letter is annexed with the petition as Annexure-3. After all objections were cleared and modification was accepted, the II respondent however, raised yet another objection with regard to payment which was to be made by the petitioner for the conversion of the land. Petitioner thus, received a letter dated 4.7.1989 and the second respondent asked him to deposit Rs. 7,74,476.65 as conversion charges. Break up in the charges so demanded would reveal that Rs. 5,63,700.95 were demanded as conversion charges, Rs. 4,22,775.70 were demanded as penalty, Rs. 1,71,517.32 as peripherial charges and Rs. 12,12,86,379.90 were demanded as development charges. It is the further case of the petitioner that the demand of penalty was wholly unjustified and illegal. The respondent thereafter, issued another letter dated 21.5.1990 again making demand of various charges as demanded vide letter dated 4.7.1989. However, the demand of development charges of Rs. 12,86,379.90 (sic?) was given up but penalty was demanded. The case of the petitioner is that even though, illegal demand of development charges has been withdrawn but the demand of penalty is illegal and unjustified. The demand of penalty at the rate of 75% is still being persisted with. A copy of letter dated 25.1.1990 Annexure-7 is annexed by which penalty to the extent of 75% has been demanded. It is this demand of penalty, which, as mentioned above, has seriously been objected by the petitioner.
(3.) Pursuant to notice issued by this Court, the respondent have filed reply and contested the cause of the petitioner only on the basis of Notification Annexure-8 dated 23.7.1987. The Addl. Govt. Advocate representing the respondent on the basis of the Notification Annexure-8 contends that even a person or a society which may not have changed the land use which is sought to be converted shall have to pay 75% penalty under the provisions of Rule 13(2) of the Rules of 1981 if he or the Society had purchased the land after 20.8.1981, Learned counsel representing the petitioner in considered view of this Court rightly contends that no notification which may run counter to a statute can have any effect. Rule 13 of the Rules of 1981 reads as follows :- "Penalty-Penalty shall be levied in all cases of unauthorised use and conversion of agricultural land for (Residential or Commercial or Public Utility) purposes and the rate of penalty shall be as follows :- (a) In cases in which the land has been so converted and used from prior to 20.8.1981, the penalty shall be equal to 5% of the conversion charges payable under these rules if no construction of any sort has been undertaken on the land, and 10% of the same, if any, construction has taken place. (b) In case in which land has been so converted and used by way of construction after 20.8.1981, the penalty shall be equal to 10% of the conversion charges payable under these rules if any construction has taken place (for residential purpose and 50% of the conversion charges payable under these rules if any construction has taken place for commercial purpose)." ;