VIRENDRA KUMAR TYAGI Vs. GHAZIABAD DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) By means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner Virendra Kumar Tyagi seeks the following reliefs :

(2.) According to the petitioner the Ghaziabad Improvement Trust, a body corporate under the provisions of the Town Improvement Act, 1897 leased out Plot No. K/H-10, situated in Kavi Nagar, Ghaziabad to Smt. Rekha Kapoor, w/o Sri Prakash Kapoor vide registered lease dated 3rd January, 1967. After the enactment of the U. P. Urban Planning and Development Act, 1973 (hereinafter referred to as the Act), the Ghaziabad Improvement Trust became known as Ghaziabad Development Authority (hereinafter referred to as the Authority). Smt. Rekha Kapoor after obtaining permission from the Authority for sale of her leasehold interest in the aforesaid plot transferred it by way of registered sale deed dated 7th July, 1980 to Sri Sita Ram Jaipuria son of Sri Mangtu Ram Jaipuria. The name of Sri Sita Ram Jaipuria was mutated by the Authority and upon his death the name of Sri Ambrish Jaipuria was mutated by the said Authority. It is alleged that Sri Ambrish Jaipuria obtained permission for raising construction and also built a house on the said plot. He after obtaining permission from the Authority sold the leasehold rights in the plot including the constructions standing thereon in favour of the petitioner vide sale deed dated 19th August, 1997. The petitioner applied for mutation of his name by making an application on 19th March, 1998. The Officer on Special Duty-respondent No. 3 vide letter dated 15th May, 1998, demanded a sum of Rs. 24,850 as mutation fee calculated at the rate of 1% on sale consideration. The petitioner protested and also made inquiries from the office of the Authority as to on what basis the mutation fee is being demanded when he was informed that there is an office order dated 1st April, 1998, issued by the Vice Chairman of the Authority prescribing 1% of the sale consideration to be charged as mutation fee. The demand of mutation fee was reiterated by the respondent vide letter dated 20th August, 1999. The demand of mutation fee Is under challenge in the present writ petition on the ground that even though under Section 15(2A) which was inserted by Act No. 3 of 1997 in the Act, mutation fee could be levied but in the absence of the same having been prescribed by Rules, the demand cannot be made.

(3.) In the counter-affidavit affirmed by Sri U. N. Thakur, Secretary in the Office of the Authority filed on behalf of all the respondents it has been stated that the Act permits imposition of mutation fee which has been fixed at 1% and, therefore, the demand of Rs. 24,850 as mutation fee is legally valid and does not require interference. The demand is in accordance with the provisions of the Act, Rules, Government orders etc. and the matter has also been placed before the Board or the Authority which has been approved and in terms of the said approval the demand of mutation charges has been made. As the counter-affidavit, referred to above, did not meet the various averments made in the writ petition and it was also very sketchy and vague, this Court vide order dated 4th March, 2004, directed the respondents to produce the record as also to file a detailed counter-affidavit. The order dated 4th March, 2004, is reproduced below : Hon'ble V. M. Sahai, J. Hon'ble Krishna Murari, J. In the counter-affidavit filed by Ghaziabad Development Authority it has been stated that under the Act mutation fee has been filed at 1% but no material has been filed along with the counter-affidavit. The respondents are directed to produce the entire record including the decision of the Board by which the mutation fee has been fixed at 1%, the provisions under which the mutation fee can be fixed and file a detailed counter-affidavit within three weeks from today. List on 5.4.2004. In case the records are not produced and a detailed counter-affidavit is not filed within the time allowed aforesaid, in that case respondent No. 3 shall personally appear before, this Court on 5.4.2004 and explain as to why a detailed counter-affidavit has not been filed.