THE MAYOR JAIPUR MUNICIPAL CORPORATION & ANR.V. THAKUR SHIV RAJ SINGH & ORS.versusTHAKUR SHIV RAJ SINGH & ORS.

                       [2019] 10 S.C.R. 1023                             1023


  THE MAYOR JAIPUR MUNICIPAL CORPORATION & ANR.                          A
                                  v.
               THAKUR SHIV RAJ SINGH & ORS.
                   (Civil Appeal No.6030 of 2019)
                         AUGUST 05, 2019                                 B
        [ASHOK BHUSHAN AND NAVIN SINHA, JJ.]
       Rajasthan Municipalities Act, 1959 – s.173-A – Predecessor-
in-interest of the respondents purchased the property in question –
After his death, respondents became the owner of the property –
                                                                         C
Respondents made application to the Corporation for conversion
of land use as condition precedent for sanction of building plan
for constructing commercial-cum-residential complex – Corporation
directed the respondents to deposit Rs.1,01,04,672/- towards the
conversion charges – Respondents reserving their rights, deposited
the amount –Conversion of the land use allowed– Respondents              D
issued notice to the Corporation claiming refund – Respondents
filed writ petition in the High Court – Dismissed – Special appeal
filed by the respondent before the Division Bench – Allowed–
Direction to the appellants to refund Rs.1,01,04,672/- with interest
– Held: s.173-A deals with the power of the State Government to
                                                                         E
allow the change of use of land – s.173-A was amended by
Amendment Act of 1999 – Prior to amendment, the power of the
State Government to allow the change in the use of land was confined
to a land allotted or sold by Municipality or the State Government–
Both sub-ss.1 & 2 of s.173-A now contain restriction on both the
categories of land, i.e. (i) originally allotted/sold by the State       F
Government/any Municipality/other local authority/body/legal
authority (ii) in the case of any land not allotted or sold and not
covered u/sub-sec.1 of s.173-A – Restriction is with regard to the
land use as provided in Master Plan –In the present case, even
though prior to amendment of s.173-A, the respondents were using
                                                                         G
the land for commercial purposes, that user is prohibited by virtue
of restriction brought by amended s.173-A(2) – Division Bench was
unduly led by the fact that land which was purchased in 1959 was
being used for commercial purpose – It did not advert to either sub-
sec.2 of s.173-A or to the land use in the Master Plan at the relevant
                                                                         H
                                  1023
1024            SUPREME COURT REPORTS                     [2019] 10 S.C.R.


 A     time, i.e., in 2002 when the respondents made application for
       sanction of building plan – Although, appellants brought on record
       the Land Use Plan 2011, which is in force w.e.f. 01.09.1998, the
       respondents contended that the said Plan does not conclusively
       establish that land use of the property in question was residential –
       Impugned judgment set aside – To meet the ends of justice,
 B
       respondents given liberty to submit representation to the
       Corporation, if there are any materials and grounds that in the
       Master Plan in operation in 2002, the land use of the property in
       question was not residential but commercial – Rajasthan
       Municipalities (Amendment) Act, 1999.
 C           Allowing the appeal, the Court
              HELD: 1.1 Section 173-A of Rajasthan Municipalities Act,
       1959 is provision dealing with the power of the State Government
       to allow the change of use of land. Section 173-A was amended by
       Rajasthan Municipalities (Amendment) Act, 1999. The demand
 D     for conversion charges having been raised in the present case in
       the year 2002, the provisions of Section 173-A as amended by
       Act 19 of 1999 are applicable in the present case. A perusal of
       unamended and amended Section 173-A indicates that there is
       substantial change in the statutory provision of Rajasthan
 E     Municipalities Act, 1959. Prior to amendment, the power of the
       State Government to allow the change in the use of land was
       confined to a land allotted or sold by Municipality or the State
       Government. The amended Section 173-A has not only changed
       heading of the Section but contents also. Section 173-A as
       amended contains restriction on use of land. Both sub-section
 F     (1) and sub-section (2) of Section 173-A now contain a restriction
       on both the categories of land, i.e., (i) originally allotted or sold
       by the State Government, any Municipality and other local
       authority or any other body or legal authority; (ii) in the case of
       any land not allotted or sold and not covered under sub-section
 G     (1). The restriction is that no person shall use or permit the use
       of any such land situated in a municipal area other than that for
       which such land use was or is permissible, in accordance with the
       Master Plan, wherever it is in operation. The amended provision
       of Section 173-A has been brought on the Statute book to ensure
       planned development of a municipal area. Master Plans are to be
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   MAYOR JAIPUR MUNICIPAL CORPORATION & ANR. v.                         1025
           THAKUR SHIV RAJ SINGH & ORS.

prepared according to the statutory Scheme keeping in view the          A
future developments of the city and the municipal area. A clear
distinction between the statutory Scheme under Section 173-A,
unamended and amended, is visible. Earlier the restriction was
there only with regard to land, which has been allotted or sold to
any person by a Municipality or the State that too restriction for
                                                                        B
land use for any other purpose other than the purpose for which
it was originally allotted or sold. After the amendment restriction
is with regard to the land use as provided in Master Plan. Even if
prior to amendment in Section 173-A, a person holding the land
which was neither allotted nor sold to it by Municipality or State
could have used the land for any purpose, the restriction has now       C
been placed by amended Section 173-A. In the facts of the present
case, even though prior to amendment of Section 173-A the
respondents were using the land for commercial purposes that
user is prohibited by virtue of restriction brought by amended
Section 173-A(2) for using the land for a purpose other than one
                                                                        D
which is permitted under Master Plan, permission of State or any
authority authorised by it, is required as provided by sub-section
(3) of Section 173-A. [Paras 8, 10] [1030--C;1033-B-H; 1034-A]
       1.2 In event, the appellants claim that land use of Plot No.21
in the Master Plan 2011 enforced w.e.f. 01.09.1998 is accepted
as residential, the restriction as imposed by sub-section 2 of          E
Section 173-A as amended by Act, 1999 shall come into force and
for change of land use as given in Master Plan 2011, the
respondents were obliged to seek permission under sub-section
(3) of Section 173-A and without payment of conversion charges,
they could not have obtained sanction map for commercial use of         F
the land. [Para 14] [1034-G-H; 1035-A]
      1.3 The pleading of the respondents only indicates that
when they intended to construct multi-storeyed building for
commercial-cum-residential complex they were told to deposit
conversion charges as condition precedent for sanction map.             G
Single Judge in its judgment had noted that the respondents
intended to deposit conversion charges for the land use as
commercial-cum-residential complex. The submission of the
counsel for the respondents that they were forced to apply for
conversion of land use from residential to commercial does not
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1026            SUPREME COURT REPORTS                    [2019] 10 S.C.R.


 A     commend. Whether the respondents were liable to deposit the
       conversion charges is to be determined in accordance with the
       statutory Scheme and statutory requirement. In the event, under
       the Statute they were obliged to obtain conversion of land use
       from residential to commercial, they were bound to do the same
       and the fact that they were asked by the Corporation to do the
 B
       same is inconsequential. The Division Bench in the impugned
       judgment has been unduly led by the fact that land which was
       purchased in the year 1959 is being used for commercial purpose.
       The Division Bench did not advert to sub-section (2) of Section
       173-A as amended by Act 19 of 1999 and its consequences. The
 C     Division Bench did not consider the issues raised in the appeal
       in the correct perspective and has not adverted to the effect and
       operation of the statutory Scheme as delineated by sub-section
       (2) of Section 173-A as amended by Act 19 of 1999. The Division
       Bench did not advert to either sub-section (2) of Section 173-A
       or to the land use in the Master Plan at the relevant time, i.e., in
 D
       the year 2002 when the respondents made an application for
       sanction of building plan. The appellants although have brought
       on record the Land Use Plan 2011, which is in force w.e.f.
       01.09.1998 along with their rejoinder-affidavit but since during
       the submission the counsel for the respondents has contended
 E     that the said Land Use Plan 2011 does not conclusively establish
       that land use of Plot No.21 was residential, ends of justice shall
       be served in giving liberty to the respondents to submit a
       representation before the Corporation, if there are any materials
       and grounds that in the Master Plan which was in operation in
       the year 2002, when respondents submitted an application that
 F
       land use of Plot No.21, Lal Niwas was not residential but
       commercial. The impugned judgment is set aside. [Paras 18-20
       and 24] [1038-C-F; 1039-B-C; 1040-B-D]
             Municipal Corporation, Rajasthan v. Sanjeev Sachdeva
             and Others (2013) 12 SCC 562 : [2013] 1 SCR 220 –
 G           held applicable.
                              Case Law Reference
             [2013] 1 SCR 220         held applicable        Para 14

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   MAYOR JAIPUR MUNICIPAL CORPORATION & ANR. v.                               1027
           THAKUR SHIV RAJ SINGH & ORS.

      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6030                    A
of 2019
       From the Judgment and Order dated 12.01.2018 of the Division
Bench of the High Court of Judicature for Rajasthan, Jaipur Bench, at
Jaipur in D.B. Special Appeal (Writ) No. 793 of 2006
      Harin P. Raval, Sr. Adv., Shiv Mangal Sharma, Saurabh Rajpal,           B
Kartikey Bhatt, M/s. Aura & Co., Advs. for the Appellants.
     Vivek Jain, Ms. Suchitra Kumbhat, Pancham Surana, Anshul
Sharma, Advs. for the Respondents.
      The Judgment of the Court was delivered by                              C
      ASHOK BHUSHAN, J.
       1. The Jaipur Municipal Corporation has filed this appeal
challenging the Division Bench judgment of Rajasthan High Court, Bench
at Jaipur dated 12.01.2018 by which the Special Appeal filed by the
respondents questioning the judgment of learned Single Judge has been         D
allowed and the appellants have been directed to refund the conversion
charges deposited by the respondents along with six percent interest.
      2. Brief facts of case giving rise to this appeal are:
       Lt. Col. Late Harnath Singh, the predecessor-in-interest of the
respondents by registered sale deed dated 16.04.1959 had purchased            E
the property in question known as ‘Lal Niwas’ from His Highness Sawai
Man Singh of Jaipur. Lt.Col. Late Harnath Singh died on 08.01.1997
after which the respondents became owner of the property. The
respondents, with intent to develop by constructing a multi-storeyed
building, commercial-cum-residential complex in the area of 8080.14           F
square meter, made an application to Corporation for conversion of land
use as condition precedent for sanction of building plan for constructing
commercial-cum-residential complex. The Corporation issued an order
dated 22.02.2003 directing the respondents to deposit an amount of
Rs.1,01,04,672/- towards the conversion charges. The respondents
reserving their rights deposited the amount through pay order dated           G
20.03.2003. An order dated 06.05.2003 was passed by the Corporation
allowing the conversion of the land use of the aforesaid land. The building
plan was thereafter approved by the Corporation on 08.01.2004. The
respondents issued notice dated 28.04.2004 to the Corporation calling
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1028            SUPREME COURT REPORTS                         [2019] 10 S.C.R.


 A     upon the appellants to pay a sum of Rs.1,13,86,703/- along with interest.
       The respondents filed a Writ Petition No.4783 of 2004 in the High Court
       of Rajasthan at Jaipur Bench praying for following reliefs:
             “(i) By an appropriate writ, order and direction impugned orders
                  dated 22.02.2003 (Annexure.2), order dated 01.04.1003
 B                (Annexure.4), 19.11.2003 & 20.12.2003 (Annexure.7) passed
                  by the respondents No.2 & 3 may kindly be quashed and set
                  aside.
             (ii) By an appropriate writ, order or direction the respondents
                  may be directed to refund the amount of Rupees
 C                1,01,04,672/- charged/ extracted by the respondents towards
                  conversion charges of the land in question and an amount of
                  Rupees 6,31,542/- and Rupees 6,59,961/- charged by the
                  respondents towards Shahari Jama Bandi & interest thereon,
                  thus totalling Rs. 1,13,96,175/- from the petitioners along with
                  interest @ 18% p.a. thereon as damages for unnecessarily
 D                withholding the aforesaid amount w.e.f. date of deposit to
                  the date of payment. The respondents may further be directed
                  to refund the total amount as prayed hereinabove to the
                  petitioners in the proportion viz. 30% to Thakur Shiv Raj Singh
                  (Petitioner No.1) and 1/3rd of the remaining to each of the
 E                Petitioners No.2 to 4.
             (iii) Cost of litigation be awarded to the petitioners.
             (iv) Any other order(s) as this Hon’ble High Court may deem fit
                  and proper in the facts and circumstances of the present writ
                  petition be also passed in favour of the humble petitioners
 F                and against the respondents.”
              3. In the writ petition, the Corporation filed its reply. The
       Corporation resisted the writ petition. A learned Single Judge of the High
       Court vide its judgment dated 04.07.2006 dismissed the writ petition.
       Aggrieved against the judgment of learned Single Judge, Special Appeal
 G     was filed by the respondent before the Division Bench. The Division
       Bench of the High Court vide its impugned judgment dated 12.01.2018
       allowed the Special Appeal and directed for refund of the amount of
       Rs.1,01,04,672/- with interest. The Corporation aggrieved by the judgment
       of the Division Bench has come up in this appeal.
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  MAYOR JAIPUR MUNICIPAL CORPORATION & ANR. v.                               1029
 THAKUR SHIV RAJ SINGH & ORS. [ASHOK BHUSHAN, J.]

      4. We have heard learned counsel for the appellants as well as         A
learned counsel appearing for the respondents.
       5. Learned counsel for the appellants submits that it is the
respondents who had submitted an application for paying conversion
charges to enable sanction of building plan of commercial-cum-residential
complex in the premises in question. The Corporation had directed for        B
deposit of conversion charges which were deposited by the respondents.
The respondents are not entitled to claim any refund. They have
themselves deposited the conversion charges. It is submitted that in view
of the land use of plot in the Master Plan, which was in force at the time
when the application was moved by the respondents, i.e., ‘residential’, it
was obligatory for the respondents to seek permission for using the land     C
for commercial purpose as required by Section 173-A of Rajasthan
Municipalities Act, 1959 as amended by Act 19 of 1999. It is submitted
that the respondents’ map for sanction of building plan for commercial-
cum-residential plot could not have been sanctioned unless the conversion
of land use was permitted and the amount demanded by the Corporation         D
from respondents was the amount of conversion charges of land use. It
is submitted that the Division Bench without considering the relevant
issues and provisions of Section 173-A allowed the appeal. The Division
Bench erred in directing for refund of the amount deposited by the
respondents.
                                                                             E
       6. Learned counsel for the respondents refuting the submissions
of the learned counsel for the appellants contends that the respondents
were forced to deposit the amount of Rs.1,01,04,672/- by the Corporation.
The respondents deposited the amount under protest. It is submitted that
from the date property was purchased in the year 1959, the property is
being used for commercial purposes. It is submitted that a Company           F
M/s. Hindustan Salts Limited was using the premises for commercial
purpose till M/s. Hindustan Salts Limited handed over the premises in
the year 1996 to Lt. Col. Late Harnath Singh. When the premises was
being used for commercial purpose since before the date when building
plan for constructing commercial-cum-residential complex was made,           G
there was no occasion for payment of any conversion charges. It is
submitted that in Master Plan the land use of plot in question as on date
as well as at the relevant time was commercial. It is submitted that the
respondents were not liable to pay any conversion charges and the

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1030             SUPREME COURT REPORTS                         [2019] 10 S.C.R.


 A     Corporation, having realised the conversion charges illegally and arbitrary
       from the respondents, is obliged to refund the amount. It is submitted
       that the learned Single Judge also has returned a finding that the land in
       question is being used for commercial purposes.
             7. We have considered the submissions of the learned counsel for
 B     the parties and have perused the records.
              8. Before we enter into the submissions made by the learned
       counsel for the appellants, it is relevant to notice the relevant provisions
       of Rajasthan Municipalities Act, 1959 pertaining to land user. Section
       173-A is provision dealing with the power of the State Government to
 C     allow the change of use of land. Section 173-A was amended by Rajasthan
       Municipalities (Amendment) Act, 1999. It is useful to notice the provisions
       of Section 173-A before the amendment and after the amendment which
       are as follows:
             “Section 173-A of the Act, prior to its amendment, reads as follows:
 D           “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 its use for a particular purpose, the State Government
 E           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
 F           for different areas and for different purposes.
             (2) The conversion charges so realized 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
 G           person liable in the land the use of which has been changed and
             shall be recoverable as arrears of land revenue.”
             Section 173-A of the Act as amended by the Amending Act No.
             19 of 1999 reads as follows:

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 MAYOR JAIPUR MUNICIPAL CORPORATION & ANR. v.                               1031
THAKUR SHIV RAJ SINGH & ORS. [ASHOK BHUSHAN, J.]

   “Section 173-A - Restriction on change of use of land and                A
   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, and other local authority or any
                                                                            B
   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         C
   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 authorised        D
   by it by notification in the Official Gazette, may allow the owner
   or holder of any such land to have change of use thereof, if 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:                            E
       (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:                 F
        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             G
   authorised by it under sub-section (3), within six months from the
   date of commencement of the Rajasthan Municipalities
   (Amendment) Act, 1999 (19 of 1999) for regularisation on said

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1032           SUPREME COURT REPORTS                          [2019] 10 S.C.R.


 A          use and upon regularisation 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 authorised by it
            under sub-section (3) is satisfied that a person who ought to have
            applied for permission or regularisation under this Section, has not
 B          applied and that such permission can be granted or the use of land
            can be regularised, 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).
 C          (6) The conversion charges so realised 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
 D          recoverable as arrears of land revenue.””
             9. Statement of Objects and Reasons of the Amendment Act of
       1999 is also relevant to notice, which is to the following effect:
                 “The existing provisions contained in Section 173-A of the
            Rajasthan Municipalities Act, 1959 provide that where any land
 E          has been allotted or sold subject to the condition of restraining its
            use for a particular purpose, to any person by a Municipality or
            the State Government, the State Government may, if it is satisfied
            so to do in public interest, allow the owner or holder of the land, to
            use it for any other purpose other than the purpose for which it
 F          was originally allotted or sold, on payment of such conversion
            charge as may be prescribed.
                  With a view to ensure planned and regulated development
            of the urban areas it is necessary to restrict and bar the change of
            use in certain circumstances of those lands also which were not
            sold or allotted by Municipality or the State Government. However,
 G
            the power of the State Government or any other authority
            authorised by it, to allow change of use of land, on payment of
            conversion charges is sought to be retained.


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  MAYOR JAIPUR MUNICIPAL CORPORATION & ANR. v.                                   1033
 THAKUR SHIV RAJ SINGH & ORS. [ASHOK BHUSHAN, J.]

            With a view to achieve the aforesaid objective, the existing         A
       Section 173-A of the Rajasthan Municipalities Act, 1959 is proposed
       to be substituted.”
       10. The demand for conversion charges having been raised in the
present case in the year 2002, the provisions of Section 173-A as amended
by Act 19 of 1999 are applicable in the present case. A perusal of               B
unamended and amended Section 173-A indicates that there is substantial
change in the statutory provision of Rajasthan Municipalities Act, 1959.
Prior to amendment, the power of the State Government to allow the
change in the use of land was confined to a land allotted or sold by
Municipality or the State Government. The amended Section 173-A has
not only changed heading of the Section but contents also. Section 173-          C
A as amended contains restriction on use of land. Both sub-section (1)
and sub-section (2) of Section 173-A now contain a restriction on both
the categories of land, i.e., (i) originally allotted or sold by the State
Government, any Municipality and other local authority or any other
body or legal authority; (ii) in the case of any land not allotted or sold and   D
not covered under sub-section (1). The restriction is that no person shall
use or permit the use of any such land situated in a municipal area other
than that for which such land use was or is permissible, in accordance
with the Master Plan, wherever it is in operation. The amended provision
of Section 173-A has been brought on the Statute book to ensure planned
development of a municipal area. Master Plans are to be prepared                 E
according to the statutory Scheme keeping in view the future
developments of the city and the municipal area. A clear distinction
between the statutory Scheme under Section 173-A, unamended and
amended, is visible. Earlier the restriction was there only with regard to
land, which has been allotted or sold to any person by a Municipality or         F
the State that too restriction for land use for any other purpose other
than the purpose for which it was originally allotted or sold. After the
amendment restriction is with regard to the land use as provided in Master
Plan. Even if prior to amendment in Section 173-A, a person holding the
land which was neither allotted nor sold to it by Municipality or State
could have used the land for any purpose, the restriction has now been           G
placed by amended Section 173-A. In the facts of the present case,
even though prior to amendment of Section 173-A the respondents were
using the land for commercial purposes that user is prohibited by virtue

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1034             SUPREME COURT REPORTS                         [2019] 10 S.C.R.


 A     of restriction brought by amended Section 173-A(2) for using the land
       for a purpose other than one which is permitted under Master Plan,
       permission of State or any authority authorised by it, is required as
       provided by sub-section (3) of Section 173-A.
             11. We need to notice the land use as permissible in the Master
 B     Plan, which was in operation at the relevant time when respondents
       submitted an application for sanction of building plan for commercial-
       cum-residential complex.
              12. The appellants have filed a rejoinder-affidavit dated 26.07.2019
       wherein Jaipur Development Authority Land Use Plan-2011 has been
 C     brought on record as Annexure-R/1, which indicates that Master
       Development Plan was prepared and approved, which Plan for Jaipur
       Region came into force with effect from 01.09.1998. In paragraph 6(c)
       of the rejoinder-affidavit, it has been pleaded that the Master Plan 2011
       has been notified on 01.09.1998. It was further pleaded that with a view
       to ensure planned and regulated development, the Master Plan 2011 for
 D     Jaipur Region was notified in which the present area where the property
       in question is situated was declared a ‘residential’ area. In the Land Use
       Plan 2011 of Master Plan 2011 as per Annexure-R/1 Plot No.21, Lal
       Niwas is mentioned as residential as submitted by the learned counsel
       for the appellants.
 E            13. Learned counsel appearing for the respondents has submitted
       that Annexure-R/1 filed by the appellants along with the rejoinder-affidavit
       is only a map which cannot be read to mean that land use of Plot No.21,
       Lal Niwas, has been shown as residential except that it has been marked
       as residential by officials of the Corporation. It has further been pleaded
 F     in the rejoinder-affidavit that in Master Plan 2025, which was brought
       into force on 01.09.2011, the property in question has now been earmarked
       as commercial.
              14. In event, the appellants claim that land use of Plot No.21 in
       the Master Plan 2011 enforced w.e.f. 01.09.1998 is accepted as
 G     residential, the restriction as imposed by sub-section 2 of Section 173-A
       as amended by Act, 1999 shall come into force and for change of land
       use as given in Master Plan 2011, the respondents were obliged to seek
       permission under sub-section (3) of Section 173-A and without payment
       of conversion charges, they could not have obtained sanction map for

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  MAYOR JAIPUR MUNICIPAL CORPORATION & ANR. v.                                1035
 THAKUR SHIV RAJ SINGH & ORS. [ASHOK BHUSHAN, J.]

commercial use of the land. This Court in Municipal Corporation,              A
Rajasthan vs. Sanjeev Sachdeva and others, (2013) 12 SCC 562,
had occasion to consider Section 173-A as amended by Act 19 of 1999.
       15. In the above case also, the respondents therein had purchased
a plot of land with a house on 09.09.2002, situated in a residential area
by way of a registered sale deed. On an application submitted for             B
conversion of land use from residential to commercial, certain amount
was deposited by the respondents. The respondents filed a writ petition
challenging the vires of the amended Section 173-A as well as the demand
notice. The writ petition after some litigation was allowed by the learned
Single Judge and demand notice was quashed. The Division Bench
dismissed the appeal of the Corporation against which judgment the            C
Municipal Corporation had come to this Court. This Court while
interpreting Section 173-A laid down following in paragraph Nos.11, 12
and 13:
           “11. A bare reading of unamended Section 173-A(1) of the
      Act would indicate that the conversion for change of land use           D
      charges could only be realised if the land was allotted by the
      Municipality or the State Government and there was a condition
      for restraining use for a particular purpose only. Therefore, in the
      absence of land being allotted by the State Government/
      Municipality and in absence of any specific stipulation regarding       E
      use of land, the conversion charges could not be claimed. This
      was the ratio laid down in Pareshar Soni case, (2007) 14 SCC
      144, interpreting the unamended Section 173-A of the Act. The
      Legislature, with a view to ensure planned and regulated
      development of the urban area felt it necessary to charge for the
      change of use in certain circumstances of those lands which were        F
      not sold or allotted by municipality or by the State Government,
      Further, it is also felt that such a change of user be permitted only
      “in public interest”. In this connection, we may refer to the
      Statement of Objects and Reasons of the Amendment Act, 1999,
      which reads as under:                                                   G
              “The existing provisions contained in Section 173-A of
         the Rajasthan Municipalities Act, 1959 provide that where any
         land has been allotted or sold subject to the condition of

                                                                              H
1036      SUPREME COURT REPORTS                         [2019] 10 S.C.R.


 A       restraining its use for a particular purpose, to any person by a
         Municipality or the State Government, the State Government
         may, if it is satisfied so to do in public interest, allow the owner
         or holder of the 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 charge as may be prescribed.
 B
             With a view to ensure planned and regulated development
         of the urban areas it is necessary to restrict and bar the change
         of use in certain circumstances of those lands also which were
         not sold or allotted by Municipality or the State Government.
         However, the power of the State Government or any other
 C       authority authorized by it, to allow change of use of land, on
         payment of conversion charges is sought to be retained.
            With a view to achieve the aforesaid objective, the existing
         Section 173-A of the Rajasthan Municipalities Act, 1959 is
         proposed to be substituted.”
 D
              12. Amended Section 173-A not only restricts the change
       of use of land, as the same has been allotted by the municipality
       or the State Government, but also put restrictions if the land has
       been allotted by any other local authority. Section 173-A(2) covers
       the cases which are not even covered by Section 173-A(1) and
 E     brings in its fold even the change of use of land which is not in
       consonance with the Master Plan. Further Sections 173-A(1)(2)
       and (3) also contemplate a situation wherein the State Government
       is entitled to levy conversion charges if the change in use from
       one purpose to other purpose. The amendment was necessitated
 F     since the State Legislature thought the provision of Section 173-A
       (unamended) stood as an impediment for proper planning of urban
       areas. In other words, with a view to ensure planned and regulated
       development of urban areas, it was felt that some restrictions
       have to be imposed and it was for that purpose that Section 173-
       A was amended.
 G
              13. We may, in this respect, also indicate that, in exercise
       of powers conferred under Section 297 read with Section 173-A
       of the 1959 Act, 2000 Rules were promulgated. It is under the
       abovementioned Rules that the Respondents filed an application
       on 16.7.2003 for change of land use from residential to
 H
  MAYOR JAIPUR MUNICIPAL CORPORATION & ANR. v.                              1037
 THAKUR SHIV RAJ SINGH & ORS. [ASHOK BHUSHAN, J.]

      commercial. Following those Rules, the Corporation issued public      A
      notice inviting objections. Later, the Land Use Committee met
      and approved the conversion for which a demand notice of Rs.
      5,70,300/- was raised by the Corporation on 2.4.2004. We are of
      the view that the demand is legal and valid and in accordance
      with the provisions of Section 173-A, as inserted by Amendment
                                                                            B
      Act 19 of 1999 read with the 2000 Rules. We are also of the view
      that the Rajasthan High Court has committed an error in applying
      the judgment of this Court in Pareshar Soni case which was dealing
      with the unamended provision of Section 173-A.”
      16. The law laid down by this Court in the above case is fully
applicable in the facts of the present case. The present case is also       C
where sub-section (2) of Section 173-A covers the case.
      17. We may also notice one of the submissions vehemently raised
by the learned counsel for the respondents that the respondents were
forced to deposit the conversion charges, which they deposited under
the protest. The copy of the writ petition filed by the respondents has     D
been brought on record as Annexure-P/12. In paragraph Nos. 5,6 and 7,
following has been pleaded by the respondents:
      “5. That the petitioners intended to get the aforesaid plot of land
          admeasuring 10067.14 sq.yards which is equivalent to
          8420.56 sq. meters, developed by constructing a multi-            E
          storeyed commercial-cum-residential complex. In this
          connection, on having been approached the respondents No.2
          & 3 asked to apply with them for land use conversion as a
          condition precedent so that maps of building plans can be
          approved for constructing commercial-cum-residential              F
          complex.
      6.   That the respondents No 2 & 3 vide order bearing No.F.13/
           At.Mu.N.Niyo./ dated 22.02.2003 directed to deposit an
           amount of 1,01,04,672/- towards conversion charges. The
           copy of the aforesaid order dated 22.02.2003 is being            G
           enclosed herewith and marked as Annexure.2.
      7.   That in pursuance of the aforesaid order passed by the
           respondents No.2 & 3, the humble petitioners reserving their
           rights deposited the amount so demanded i.e. a sum of
           Rs.1,01,04,672/- through pay order dated 20.03.2003 drawn
                                                                            H
1038            SUPREME COURT REPORTS                          [2019] 10 S.C.R.


 A                 on City Bank, M.I.Road, Jaipur vide duly filled challan dated
                   16.1.2003/20.3.2003 under Covering Letter dated 20.3.2003.
                   Consequently, receipt dated 20.3.2003 was issued from office
                   of respondents No.2 & 3 in proof of said amount having
                   been duly deposited. The photocopy of the Covering letter
                   dated 20.3.2003 along with receipt dated 20.3.2003 and
 B
                   challan dated 16.1.2003/20.3.2003 are being enclosed
                   herewith and collectively marked as Annexure-3.”
              18. The above pleading of the respondents only indicates that
       when they intended to construct multi-storeyed building for commercial-
       cum-residential complex they were told to deposit conversion charges
 C     as a condition precedent for sanction map. Learned Single Judge in its
       judgment had noted that the respondents intended to deposit conversion
       charges for the land use as commercial-cum-residential complex. The
       submission of the learned counsel for the respondents that they were
       forced to apply for conversion of land use from residential to commercial
 D     does not commend us. Whether the respondents were liable to deposit
       the conversion charges is to be determined in accordance with the
       statutory Scheme and statutory requirement. In the event, under the
       Statute they were obliged to obtain conversion of land use from residential
       to commercial, they were bound to do the same and the fact that they
       were asked by the Corporation to do the same is inconsequential.
 E
              19. The Division Bench in the impugned judgment has been unduly
       led by the fact that land which was purchased in the year 1959 is being
       used for commercial purpose. The Division Bench did not advert to sub-
       section (2) of Section 173-A as amended by Act 19 of 1999 and its
       consequences. The total consideration of the Division Bench on the entire
 F     case is in paragraph Nos.7, 8 and 9 which are to the following effect:
             “7. We have gone through the property document which shows
                 that the land was purchased in the year 1959 and the same
                 property was used by the company for commercial purposes.
                 In our considered opinion, with a view to avoid any delay in
 G               their construction activities, the appellants have paid the amount
                 under protest to the respondents.
             8. In that view of the matter, respondents are not entitled for
                 conversion charges and the amount deposited by the appellants
                 is required to be refunded with immediate effect.
 H
  MAYOR JAIPUR MUNICIPAL CORPORATION & ANR. v.                               1039
 THAKUR SHIV RAJ SINGH & ORS. [ASHOK BHUSHAN, J.]

      9. The respondents are directed to refund the said amount              A
          alongwith interest @ 6% within a period of three months from
          today. If the payment is not made within a period of three
          months, the appellants will be entitled for interest @ 9% and
          difference of 3% will be recovered from the officer who has
          made delay in making payment.”
                                                                             B
       20. We are of the view that the Division Bench did not consider
the issues raised in the appeal in the correct perspective and has not
adverted to the effect and operation of the statutory Scheme as delineated
by sub-section (2) of Section 173-A as amended by Act 19 of 1999. The
judgment of the Division Bench, thus, cannot be upheld.
                                                                             C
       21. We may also notice that this Court in Municipal Corporation,
Rajasthan (supra)although had allowed the appeal but gave liberty to
the respondents to take up the issue before the Corporation regarding
land use in the Master Plan which was in operation at the relevant time.
In paragraph No.14 of the judgment, following has been observed:
                                                                             D
          “14. The learned Counsel appearing for the respondents,
      however, submitted that the area in question is notified as
      commercial area under the Master Plan and, therefore, there is
      no question of any conversion of the residential property to
      commercial. We notice that this point was not raised before the
      High Court and we are, therefore, not called upon to decide that       E
      question. However, the Respondents, if so advised, may take up
      this issue before the Corporation and it is for the Corporation to
      consider that issue in accordance with law. Appeals are accordingly
      allowed and the judgments of the High Court are set aside.
      However, there will be no order as to costs.”                          F
      22. In the present case, learned Single Judge has made following
observation:
      “It is also not disputed that in the Master Plan area in question is
      ear marked for commercial use and it is also not disputed the
      earlier the area in question is used for commercial purpose.           G
      Therefore, the petitioner moved application for conversion for
      approval of map for constructing a commercial building.”
      23. Although learned Single Judge made the above observation,
but the judgment does not indicate that said observations were made
                                                                             H
1040             SUPREME COURT REPORTS                         [2019] 10 S.C.R.


 A     after looking into the Master Plan which was in force at the time of
       submission of application by the respondents.
               24. The Division Bench did not advert to either sub-section (2) of
       Section 173-A or to the land use in the Master Plan at the relevant time,
       i.e., in the year 2002 when the respondents made an application for
 B     sanction of building plan. The appellants although have brought on record
       the Land Use Plan 2011, which is in force w.e.f. 01.09.1998 along with
       their rejoinder-affidavit but since during the submission learned counsel
       for the respondents has contended that the said Land Use Plan 2011
       does not conclusively establish that land use of Plot No.21 was residential,
       we are, thus, of the view that ends of justice shall be served in giving
 C     liberty to the respondents to submit a representation before the
       Corporation, if there are any materials and grounds that in the Master
       Plan which was in operation in the year 2002, when respondents
       submitted an application that land use of Plot No.21, Lal Niwas was not
       residential but commercial. Subject to the above liberty, the appeal is
 D     allowed and the impugned judgment is set aside. Parties shall bear their
       own costs.


       Divya Pandey                                                  Appeal allowed.

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