The main legal point established in the judgment is that conversion charges for change in land use cannot be levied in the absence of a scheme restricting the land use, and the authority of the State Government under Section 73-B overrides the provisions of Section 72.

R. BALIA, J.

( 1 ) HEARD learned counsel for the parties.

( 2 ) THIS litigation has little chequered history. The petitioner which is a private limited company has purchased the land in question from Shri Balveer Kumar Jain, Smt. Manju Jain, Dr. Gautam Jain and Dr. Veena Jain, which originally formed a part of Patta No. 53 issued in Case No. 635/30-31 by the erstwhile Ruler of Jodhpur in favour of Sarva Shri Anand Swaroop, Niranjan Swaroop and Vishambar Swaroop. The Patta while entailed a condition that the land shall be used for the purposes of construction of a building, contained no condition as to the nature of the use for which the construction could be used. At the time when the petitioner had purchased the land, the constructed building was already there which was occupied by a privately run school viz. Lal Bahadur Shastri School. The petitioner, desirous of constructing a Hotel on the land in question, submitted a plan for approval and permission for construction on the land in question before the Urban Improvement Trust, Jodhpur. The Building Committee of the Urban Improvement Trust, Jodhpur, in its meeting held on 6-5-98, approved the plan of construction of Hotel on the land. Minutes of said meeting goes to show that it approved a plan for construction of hotel by noticing the existence of building at site, the amendment made in the rules regarding set- backs, and the permissible deviation vis-a- vis rules of building line existing prior to said amendment in 1997 and as existing at the time of approving the plan for construction of a Hotel. It also noticed that all lands abutting the road from Paota choraha to Mahamandir have already been approved for commercial use by earlier resolution dated 31-3-95. However, the demand was made on account of conversion charges for the use of land from residential to commercial purposes, for grant for permitting deviations in the setbacks and the penalty for reconstitution totalling Rs. 39,24,8882. 80 (sic) for which a demand was issued on 11-5-98. This demand included a sum of Rs. 34,89,416 by way of conversion charges for permitting change in user of land to some other purpose than permissible before such permission, which is subject-matter of the instant litigation.

( 3 ) IN the first instance, the petitioner filed Writ Petition No. 1738/98 challenging the legality of levying conversion charges in respect of lands which have not been allotted to the petitioner under the Municipal Act or by any local authority including the UIT and was not subject to any condition as to use of the land for particular purpose. The said Writ Petition No. 1738/98 was disposed of on 11-11-99 by directing the petitioner to file appeal within one month from the date of the decision of the writ petition before the appellate authority which in the present case is Addl. Collector and that if such appeal is filed then the appellate authority were to entertain and decide the same on merit in accordance with law. This was directed in view of request made by the petitioner that if the petitioner is now relegated to avail the alternative remedy, it would have become barred by time.

( 4 ) IN pursuance of the above order, the petitioner filed an appeal before the Addl. Collector, Jodhpur, who decided the appeal on 21/04/2000. The Addl. Collector referred to Circular issued by the Govt. in its Urban Development and Housing Department dated 9-11-89 by which it has authorised the Improvement Trusts to charge conversion charges whenever any residential land is being used for commercial purposes at the rate prescribed therein. It also envisaged that a person desirous of such conversion of the use of land may deposit such charges in four equal annual instalments. It held that in view of Circular dated 9-11-89 the UIT is entitled to demand conversion charges in the present case. It also held that there was no irregularity in the reconstitution of the plot in question by noticing that the land at the time of