BALIA, J. - (1.) HEARD learned counsel for the parties.
(2.) THE petitio is directed to challenge the demand of conversion charges raised by the respondent Municipal Board, Abu Road vide communication dated 22. 4. 2003 and 16. 2. 2006 purporting to be in accordance with Section 173 A of the Rajasthan Municipalities Act, 1959 (for short `the Act of 1959') as amended vide Municipalities Amendment Act, 1999 w. e. f. 30. 9. 1999. In addition to challenging the demand on merit within the provisions of Section 173-A itself, the petitioners have also sought to challenge the constitutional validity of Section 173-A as amended vide aforesaid amending act and rules framed thereunder for giving effect to it. The undisputed facts of the present case are that the petitioners are holding a land which is governed by a patta issued by the erstwhile Sirohi State. Under the grant, there was no restriction on the nature of use to which the land in question could be put. In other words, the holder of land has no restriction upon user of the land under the grant. According to the petitioners, they had purchased a building constructed on a plot ad-measuring 1809 Sq. fts. situated Near Azad Maidan Area, Abu Road from one Raghunath Prasad S/o Shri Ramji Lal and patta of erstwhile Sirohi State stood in favour of Shri Saju Ram, Heera Lal predecessor in title of Raghunath Prasad. The nature of patta is not in dispute. The petitioners had submitted an application to the Municipal Board, Abu Road on 9. 4. 2003 for raising construction on the aforesaid property. The Municipal Board, Abu Road vide its letter dated 7. 7. 2003 sought directions in this regard from the Deputy Director, Local Bodies, Jodhpur. Prior to seeking this instruction, the Municipal Board, Abu Road had informed the petitioners that since permission is sought to raise building for commercial nature whereas the land is used for residential purpose unless the charges for conversion of land use is permitted in accordance with law, his case for grant of persmission cannot be considered. By letter dated 16. 2. 2006 the petitioners were informed that since they have not sought conversion of the land use from residential to commercial and they started construction over the land in question, the same may be stopped and they must seek the conversion of land use by payment of charges. The respondent No. 3 Municipal Board had relied on sub- section 3 of Section 173-A of the Act of 1959 for sustaining their insistence on payment of conversion charges before use of land for commercial purpose. However, the fact that the original patta does not contain any restriction on type of use to which the land can be put has not been denied and is not in contention. The respondents No. 1 and 2 have filed reply principally resting their case upon Section 173-A of the Act of 1959.
(3.) SO far as the constitutional validity of Section 173-A is concerned, the same has since been decided by the Division Bench of this Court in Mewa Ram vs. State of Rajasthan and Anr. reported in 2006 (8) RDD 4199. The Division Bench of this Court has sustained constitutional validity of the provisions and challenge to the constitutional valdiity of Section 173-A has been repelled. Hence, that question no more survives for consideration in this writ petition. Learned counsel for the petitioners had urged that on merit of the case so far as Section 173-A is concerned, it is no more res integra so far as this Court is concerned. This Court has taken the view that where the land is held by the person with no restricted user under the grant of sub-section (1) of Section 173-A of the Act has no application. Therefore, for putting the land for any use according to the need and requirement of the holder, no conversion charges are required to be paid. So far as sub-section (2) of Section 173-A, as amended is concerned, it applies only where the holder proposes the contruction to be raised contrary to the provisions made in the master plan. Since there is no master plan approved for Abu Road nor it is a case of respondents that the petitioners are not raising construction according to the master plan, there is no restriction on the commercial use of the land by the holder in respect of land in question either under Sections 173-A (1) or (2) Sub-section (3) of Section 173-A is only exception to sub-section (1) and (2) under which holder can be permitted to raise such constructions which are prohibited under Sections 173-A (1) or (2), provided he pays conversion charges in terms thereof. But where a person does not fall within sub-sections (1) and (2) of Section 173-A, the question of paying conversion charges therefore, would not arise. On the factual aspect learned counsel for the respondents have not joined issues; namely about the scope of land use under patta as well as aspect of master plan of Abu Road. It would be apposite here to reproduce Section 173-A as it stands presently:- " 173-A : (Restriction on change of use of land and power of the State Government to allow change of use of land: (1) No person shall use or permit the use of any land situated in any municipal area, for the purpose other than that for which such land was originally allotted or sold to any person by the State Government, any municipality, any other local authority or any other body or authority in accordance with any law for the time being in force or, otherwise than as specified under a Master Plan, wherever it is in operation. (2) In the case of any land not allotted or sold as aforesaid and not covered under sub-section (1), no person shall use or permit the use of any such land situated in a municipal area for the purpose other than that for which such land use was or is permissible, in accordance with the Master Plan, wherever it is in operation or under any law for the time being in force. (3) Notwithstanding anything contained in sub-section (1) or sub-section (2), the State Government or any authority authorized by it by notification in the Official Gazette, may allow the owner or holder of any such land to have change of use thereof, it it is satisfied so to do in public interest, on payment of conversion charges at such rates and in such manner as may be prescribed with respect to the following changes in use: (i) from residential to commercial or any other purpose; or (ii) from commercial to any other purpose; or (iii) from industrial to commercial or any other purpose; or (iv) from cinema to commercial or any other purpose; Provided that rates of conversion charges may be different for different areas and for different purposes. (4) Any person who has already changed the use of land in violation of the provisions of this Act in force at the time of change of use, shall apply to the State Government or any authority authorized by it under sub-section (3), within six months from the date of commencement of the Rajasthan Municipalities (Amendment) Act, 1999 (Act No. 19 of 1999) for regularization of said use and upon regularization of the change of use of land he shall deposit the amount contemplated under sub-section (3) (5) Where the State Government or the authority authorized by it under sub-section (3), is satisfied that a person who ought to have applied for permission or regularization under this section, has not applied and that such permission can be granted or the use of land can be regularized, it may proceed to determine the conversion charges after due notice and hearing the party/parties and the charges so determined shall become due to the municipality and be recoverable under sub-section (7) The conversion charges so realized shall be credited to the fund of the municipality. (7) Charges under this section shall be the first charge on the interest of the person liable to pay such charges with respect to the land, the use of which has been changed and shall be recoverable as arrears of land revenue. " A persual of the aforesaid provision clearly goes to show that under sub-sections (1) and (2) on the presence of the codnition stated therein; holder of the land is not permitted to use the land other than the purpose for which it has been allotted to him or other than the purpose approved under the master plan. Sub-section (3) apparently has overriding effect to over come the restriction imposed under clauses (1) and (2) It is only where under clauses (1) and (2) the holder is not permitted to make use of the land contrary to what has been stated, under sub-section (3) if the State Government or any authority authorized by notification in this behalf allows the owner or holder to such land to use, otherwise, if he is satisfied so to do in a public interest, on payment of conversion charges at such rates as may be determined under rules from time to time. Therefore, the present case must first fall within the prohibition envisaged under sub-sections (1) and (2) before it can attract sub-section (3) ;