JUDGMENT :

PUSHPENDRA SINGH BHATI, J.

1. In the wake of instant surge in COVID-19 cases and spread of its highly infectious Omicron variant, lawyers have been advised to refrain from coming to Courts.

2. For the sake of brevity, the prayer clauses and the facts are being taken from S.B. Civil Writ Petition No. 2109/2009, while treating the same as a lead case.

3. The prayer clauses read as under:

“It is, therefore, most respectfully prayed on behalf on petitioner that the writ petition may kindly be allowed:

(I) by an appropriate writ, order or direction, in the nature of mandamus or certiorari, the impugned notice dated 6.11.2008 (Annex-4) passed by the respondent Municipal Corporation may kindly be quashed and set-aside.

(II) Further by an appropriate writ, order or direction, the respondent Corporation may be directed to sanction the building plan of the petitioner without imposing the condition of change of land use.

(III) Pending the petition, if any order is passed or any action is taken against the petitioner prejudicial to his interest, the same may kindly be taken on record and may be quashed and set-aside.”

4. Learned counsel for the petitioner submits that the petitioner purchased a plot of land by way of registered sale deed dated 01.07.1996, and that originally, a patta in respect of the said land was issued in the year 1932 by the Ex-Ruler of Jodhpur (Maharaja of Jodhpur, Shri Umaid Singh). Learned counsel further submits that the petitioner applied for the necessary construction permits before the respondent-Municipal Corporation and deposited the requisite fees for the said purposes.

5. Learned counsel for the petitioner however, submits that the respondent-Municipal Corporation denied the said permission on the ground that the petitioner had not applied for the change of land use and a notice dated 6.11.2008 to that effect was issued to the petitioner.

6. Learned counsel for the petitioner also submits that the permission were denied on improper grounds as the property in question (purchased through a registered sale deed) was in fact a ‘freehold property’ and therefore, the petitioner was not required to apply for the change of land use, and states that the same position has been clearly laid down by the Hon'ble Apex Court in the case of State of Rajasthan and Others vs. Pareshar Soni, 2007 DNJ (SC) 1063 and the prescription to that effect has also been made in the statutory provision i.e. Section 173-A of the Rajasthan Municipalities Act, 1959.

7. On the other hand, learned counsel for the respondent-Municipal Corporation submits that the contention made on behalf of the petitioner that the property in question is a ‘free hold property’ and therefore, the same does not require any change of land use, does not hold good, for the simple reason that the provision of Section 173-A of the Act of 1959 was amended in September 1999.

8. Learned counsel for the respondent-Municipal Corporation further submits that the provision of Section 173-A of the Act of 1959 (post amendment in September 1999), clearly states that even if the land (alike the one involved herein) is a ‘free hold property’ conversion charges for land use are required to be deposited. In this regard, learned counsel relied upon the judgment rendered by the Hon'ble Apex Court in Municipal Corporation Rajasthan vs. Sanjeev Sachdeva and Others, (2013) 12 SCC 562, relevant portion whereof (Page 5 onwards), reads as under:

“We may, at the very outset, point out that this Court in Pareshar Soni's case (supra) was dealing with the un-amended Section 173-A of the Act. For a proper consideration of the question raised, it would be profitable to refer to the un-amended Section 173-A as well as the amended Section 173-A of the Act. Section 173-A of the Act, prior to its amendment, reads as follows:

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