M/s Shree Automobiles Works, II Chopasani Road vs The State of Rajasthan

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.