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Judgment
By way of this writ petition, the petitioner has questioned legality of the notices dated 2.9.15 and 21.9.15 issued by the Municipal Corporation, Jodhpur, whereby the petitioner is directed to deposit a sum of Rs.19,94,64,228/- as the price of the land measuring 8,829.17 sq.ft. in possession of the petitioner on the strength of the lease earlier granted which is intended to be given on lease for 99 years. The petitioner has also questioned the legality of the order dated 23.9.15 issued by the Commissioner, Municipal Corporation, Jodhpur, directing seizure of the petitioner's building on account of its failure to deposit the amount as specified vide notice dated 2.9.15.
The facts relevant are that a partnership firm M/s. Shree Automobiles Works, Jodhpur consisting of two partners namely;
Mr.B.V.Gandhi and Mr.Mohammed Umar was allotted land measuring 16,340 sq. ft. situated at Old Bhandelao, Chopasni Road, Jodhpur, on the lease for a period of 30 years on payment of monthly lease rent amounting to Rs.125/-. The lease deed was executed between the parties on 10.2.61. Later, the land allotted was partitioned between the partners Mr.B.V.Gandhi and Mr.Mohammed Umar, which was approved by the Municipal Council, Jodhpur vide communication dated 1.8.69. Out of 16,340
sq. ft. land available at the site, 7,265.87 sq. ft. land fell in the share of Mr.B.V.Gandhi and 8,829.17 sq. ft. land fell in the share of Mr.Mohammed Umar, the father of the petitioner herein and remaining 244.96 sq. ft. land was left for Samadhies. The demand for monthly lease rent raised by the Municipal Corporation were discharged by Mr. Mohammed Umar, the proprietor of the petitioner concern from time to time.
The Department of Local Self, Government of Rajasthan, took a decision vide order dated 10.8.83 under the provisions of Rajasthan Municipalities (Disposal of Urban Land) Rules, 1974 (for short "the Rules of 1974") directing that the short term lease granted may be converted into the lease for 99 years. Accordingly, the petitioner applied for the grant of 99 years lease vide application dated 16.7.97. The petitioner's application was considered by the Settlement Committee of the Municipal Corporation, Jodhpur in its meeting held on 29.4.03 wherein it was resolved to grant lease in favour of the petitioner of the land measuring 8.829.17 sq. ft. for 99 years, on payment of 30% of the reserved price of the land alongwith interest @ 15% to be charged after every three years.
Pursuant to the resolution adopted as aforesaid, the Municipal Corporation, Jodhpur raised a demand of notice Rs.58,92,229/- against the petitioner towards the execution of the lease for a period of 99 years in terms of the aforesaid resolution dated 29.4.03. The petitioner disputed the demand stating that while calculating the charges payable, the Municipal Corporation has adopted the reserved price of the land situated on Chopasni Road, Jodhpur whereas major portion of the land occupied by the petitioner is situated in Nawal Harijan Basti. The petitioner did not deposit the amount. Later, vide notice dated 22.1.04, the Municipal Corporation raised the demand for Rs.61,54,821/-. The petitioner made the representation for reducing the price, which was not acceded to by the Municipal Corporation. In the meantime, the petitioner's father Shri Mohammed Umar expired and therefore, the petitioner herein made a representation to Chief Executive Officer, Municipal Corporation Jodhpur to issue the fresh demand notice after calculating the amount due. Thereafter, the Municipal Corporation issued the demand notice dated 2.9.15 directing the petitioner to deposit a sum of Rs.19,95,04,228/-.
The details of the amount calculated as set out in the notice dated
2.9.15 are as under:
"VERNACULAR MATTER (Table)OMITTED"
The petitioner raised objections against the demand created vide representation dated 8.9.15 but to no avail. In the meantime, the petitioner deposited a cheque for Rs.40,000/- which according to the Municipal Corporation, Jodhpur was dishonoured. The Municipal Corporation served the petitioner with the final notice dated 21.9.15 directing him to deposit the amount within a period of 24 hours. On petitioner's failure to deposit the amount, vide order dated 23.9.15, his premises has been seized.
Aggrieved by the action of the Municipal Corporation in raising the huge demand, the petitioner preferred a petition before the Rent Tribunal under the provisions of Rent Control Act, 2001.
The Municipal Corporation preferred an application under Order VII Rule 11 CPC seeking rejection of the petition being barred by
law. The application was allowed by the Rent Tribunal vide order dated 19.9.15 and the petition was rejected being barred by law by virtue of Second proviso to Section 18 of the Act of 2001.
Aggrieved thereby, an appeal preferred by the petitioner stood dismissed by the Appellate Rent Tribunal vide order dated
22.12.16. Hence, this petition.
Learned counsel for the petitioner submitted that a bare perusal of the demand notice dated 2.9.15 issued by the Municipal Corporation, it is abundantly clear that the demand has been created by the Municipal Corporation in arbitrary manner ignoring the resolution adopted by the Municipal Corporation in its meeting held on 29.4.03. Learned counsel submitted that as per the resolution adopted for granting of 99 years lease of the land in question in favour of the petitioner, the Municipal Corporation was required to charge 30% of reserved price of the land alongwith interest @ 15% after every three years whereas, while issuing the demand notice, the Municipal Corporation has charged the reserved price of the land plus price of the land as per DLC rate, added 30% of the DLC rate as also 30% of the reserved price and thereafter, after adding the amount of lease fee, further addition of amount of interest for the period from 11.2.91 to 31.8.15 has been made and thus, the huge demand of Rs.19,94,64,228/- has been created. Learned counsel submitted that instead of charging 30% of the reserved price in conformity with the resolution adopted, the huge demand created by the Municipal Corporation as aforesaid, is ex facie illegal and arbitrary. Learned counsel submitted that the petitioner is absolutely justified in not depositing the amount demanded by the Municipal Corporation in perfunctory manner. Learned counsel submitted that the petitioner is ready and willing to deposit the amount in terms of the resolution adopted by the Municipal Corporation i.e. 30% of the reserved price alongwith interest @ 15%. Drawing the attention of this court to the various documents placed on record, learned counsel submitted that some other similarly situated persons namely, M/s. Marwar Automobiles and M/s. Nirmal Motors, have been granted lease for 99 years by charging 30% of the reserved price, arrear of lease rent, one time lease charges and interest @ 15% and thus, the action of the Municipal Corporation is absolutely illegal, unjustified, arbitrary and discriminatory so as to violative of Article 14 of the Constitution of India.
On the other hand, learned counsel appearing for the respondents submitted that the lease deed of the land in question executed in favour of the petitioner for 30 years in the year 1961 has come to an end in the year 1991 and thus, the petitioner is in unauthorised occupation of the land in question. It is not disputed by the learned counsel that the Settlement Committee of Municipal Corporation in its meeting held on 13.5.03 resolved to give the land in question to the petitioner on lease for 99 years, however, despite demand being raised, the petitioner did not deposit the amount and now when the premises of the petitioner stands seized for non payment of the charges as per the demand, the present writ petition filed deserves to be dismissed. Learned counsel submitted that the petitioner never intended to deposit the lease amount nor it ever offered any amount pursuant to the resolution adopted in the year 2003 and therefore, is not entitled to any indulgence by this court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India. Learned counsel submitted that the petitioner's lease has not been further extended and therefore, being an unauthorised occupant, the action taken by the Municipal Corporation in directing seizure of the premises cannot be faulted with. However, on being asked by the court how the demand raised vide impugned demand notice is in conformity with the resolution adopted by the Municipal Corporation, learned counsel appearing for the Municipal Corporation fairly submitted that the demand raised does not appear to have been created in conformity with the resolution adopted by the Settlement Committee of the Municipal Corporation.
I have considered the rival submissions and perused the
material on record.
Indisputably, the land in question measuring 16,340 sq. ft. was allotted in favour of a partnership firm M/s. Shree Automobile Works, Jodhpur consisting of two partners namely, Mr.B.V.Gandhi and Mr.Mohd. Umar. It is also not in dispute that the land allotted was partitioned between the two partners of the firm, which was approved by the Municipal Corporation vide communication dated 1.8.89 and consequently, Mr. Mohd. Umar, the father of the petitioner acquired exclusive possession of the land measuring 8829.17 sq. ft. It is true that the lease granted in favour of the lessee Mr. Mohd. Umar was not further extended but the fact remains that he remained in continuous possession thereof even after the expiry of the lease period. Admittedly, pursuant to the decision taken by the Department of Local Self, Government of Rajasthan, vide order dated 10.8.83 issued under the provisions of the Rules of 1974, the short term lease granted were directed to be converted into the lease for 99 years. Accordingly, on the application being made by the petitioner, the Settlement Committee of the Municipal Corporation in its meeting held on 29.4.03, resolved to grant lease of the land in question in favour of the petitioner on payment of 30% of the reserved price of the land alongwith interest @ 15% to be calculated after every three
years. According to the petitioner, the amount claimed by the Municipal Corporation pursuant to the resolution adopted as aforesaid, vide notice dated 14.8.03, was not deposited inasmuch as, the reserved price adopted while calculating the regularisation charges was not correct. However, the dispute raised in this regard by the petitioner was not determined and later, vide impugned demand notice, the huge demand has been created against the petitioner as aforesaid.
A bare perusal of the demand notice makes it abundantly clear that while calculating the amount payable by the petitioner in terms of the resolution adopted by the Settlement Committee approving the grant of lease for 99 years in favour of the petitioner, the respondent Municipal Corporation has acted in most perfunctory manner. It is pertinent to note that as per the resolution adopted, 30% of the reserved price of the land in question plus interest @ 15% with three years rest, was to be charged, whereas, by way of impugned notice, the respondent Municipal Corporation not only demanded complete price of the land at the reserved rate plus the price of the land arrived at by adopting DLC rate, further addition of 30% of the price calculated at the reserved rate as also at DLC rate, has been made. To say the least, the demand created by the Municipal Authorities without application of mind is absolutely illegal, unreasonable and unjustified and thus, the same deserves to be quashed.
Further, it is not disputed before this court that the persons similarly situated qua the petitioner have been granted lease for 99 years on depositing the amount pursuant to the resolution adopted in their favour and thus, the petitioner cannot be picked up for a different treatment being given. But at the same time, the petitioner cannot be permitted to defer the payment of the amount payable pursuant to the resolution adopted by the Settlement Committee for an indefinite period and continue with the unauthorised occupation over the municipal land. The issue with regard to the grant of 99 years lease in favour of the petitioner on payment of the amount pursuant to the resolution adopted, needs to be settled expeditiously.
In the result, the petition is allowed. The impugned demand created by the petitioner vide demand notice dated 2.9.15 reiterated vide demand notice dated 21.9.15 is quashed and consequently, the seizure of the premises vide order dated 23.9.15 issued by the Commissioner, Municipal Corporation, Jodhpur on account of non payment of the amount by the petitioner in terms of the demand notice dated 2.9.15 are quashed. The respondent Municipal Corporation shall determine the amount payable by the petitioner in terms of the resolution adopted by the Settlement Committee dated 29.4.03 and issue a demand notice to the petitioner within a period of two weeks from the date of receipt of certified copy of the order. The petitioner shall discharge the demand within the time to be specified by the Municipal Corporation, failing which the Municipal Corporation shall be at liberty to take appropriate action against the petitioner in accordance with law. No order as to costs.