This single-judge writ petition was dismissed. The Court held that the imposition of infrastructure surcharge and corner charges by GDA is valid under Chapter VI of the Act of 1973. The Court relied on a previous judgment and distinguished the instant case from Virendra Kumar Tyagi on settlement of mutation fees.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Court No. - 21
Case :- WRIT - C No. - 26584 of 2020
Petitioner :- M/S Arihant Buildcon Private Limited Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Akshay Mohiley Counsel for Respondent :- C.S.C.,Mahesh Narain Singh,Ravi Prakash Pandey
Hon'ble Mahesh Chandra Tripathi,J. Hon'ble Sanjay Kumar Pachori,J.
List has been revised. Inspite of notice learned counsel for the petitioner is not present in revised call. Shri M.N. Singh appears for Ghaziabad Development Authority.
Present writ petition has been preferred assailing the validity of the impugned demand dated 08.10.2020, whereby infrastructure surcharge has been levelled against the petitioner.
At the very outset, Shri M.N. Singh, learned counsel for the Ghaziabad Development Authority (GDA) has submitted that the controversy in hand has already been settled by this Court in bunch of writ petitions with Leading Writ-C No.34 of 2020 ( M/s Panchsheel Buildtech Pvt. Ltd. v. State of U.P. & Ors. ) vide order dated 17.12.2020, wherein imposition of infrastructure surcharge by GDA has been approved and as such it is submitted that in view of the aforesaid judgment the writ petition is liable to be dismissed. For ready reference, the operative portion of the order dated 17.12.2020 passed in WritC No.34 of 2020 is quoted as under:-
"...........Now, on to consider the Second Government Order in the light of the rule of contemporanea expositio. The words in Hindi used in the Second Government Order are translated as 'modification' of the First Government Order and 'degrading/devolving' it and issuing the directions mentioned in the Second Government Order. It is in this light that clause 4 of the Second Government Order would have to be read with says that the aforesaid order shall be applied with immediate effect. As such, the intention of the Second Government Order is clear that it seeks to modify and degrade the First Government Order in terms explicit in the Second Government Order. Waiver of infrastructure surcharge for reason of responsibility of internal development of the plot in question by the petitioner, cannot be claimed as a right by the petitioner just because the GDA has recommended reconsideration of its imposition. The Second Government Order, which has not been challenged by the petitioner, has to be viewed as a conscious decision by the government to modify and degrade/ devolve the First Government Order by removing the clause for imposition of infrastructure surcharge post issuance of the Second Government Order. Neither the express words of the Second Government Order nor the intention thereof are to rescind or abrogate the First Government Order. The direction of the Principal Secretary in the meeting dated 27.05.2019 is reflected in the inter-departmental letter of the GDA dated 11.07.2019 directing issuance of notices regarding recovery of infrastructure surcharge for the period between 15.01.1998 and 26.07.2018. This direction stems from a correct reading of the Second Government Order and calls for no interference from this Court. The language of the Second Government Order is clear and unambiguous. No different interpretation is called for and neither are any words to be added or subtracted in the Second Government Order.
With regard to imposition of corner charges, the learned counsel for the petitioner has
referred to the brochure/recommendations made by the Committee of the GDA in its meeting of 04.10.2014 and the letter dated 09.10.2014 issued by the Vice-Chairman of the GDA to the State Government in support of his contention regarding nonchargeability of corner charges. However, payment of corner charge is governed not by such recommendations or letters but by the relevant rules regarding registration and allotment of plots / buildings of the GDA which provide for the same. There is no specific denial by the petitioner that the plot in question is a corner plot. Moreover, the petitioner has, in the agreement to sell dated 10.02.2015, agreed to and accepted his liability to pay charges and assessment of every description in respect of apportioned plot/building whether assessed, charged or imposed on that plot or on the building construction. It is not the contention of the petitioner that the imposition of corner charges is contrary to any legal provision or that the GDA is not otherwise entitled to charge the same in terms of the relevant rules relating to allotment of land under the provisions of Chapter VI of the Act of 1973.
Therefore, the imposition of 10% infrastructure surcharge and 10% corner charge alongwith the corresponding incidence of 12% lease rent and freehold charges demanded by the GDA in the impugned notice dated 10.10.2019 cannot be faulted.
The reliance by the learned counsel for the petitioner on the judgement of this Court in Virendra Kumar Tyagi is misplaced. The challenge in that case was the imposition of mutation fee at the rate of 1% of the sale consideration which rate was not prescribed by Rules even though Section 15(2A) of the Act of 1973 provided for levy of mutation fee in such manner and at such rates as may be prescribed. This court held that the word 'prescribed' means prescribed by Rules under the Act of 1973 in view of the provisions of sub-section (33A) of Section 4 of the General Clauses Act, 1904 and the Rules to be framed by the State Government under Section 55 of the Act of 1973 had to be notified in the Gazette which was admittedly not done. Therefore the demand for mutation charges was held to be illegal and without the authority of law.
However, in the instant case, as elaborated above, authority on the State Government and the GDA is conferred by Chapter VI of the Act of 1973. The rules pertaining to allotment of land and the First and Second Government orders are apparently framed / issued in exercise of the authority conferred by Chapter VI of the Act of 1973.
Thus the challenge to the impugned demand notice dated 10.10.2019 imposing infrastructure surcharge falls and the writ petition is, accordingly, dismissed."
The Court has proceeded to examine the record in question and find substance in the contention of learned counsel for GDA. Consequently, the writ petition is dismissed.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the petitioner alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 12.1.2021 SP/
3 issues framed by the court
Whether the imposition of infrastructure surcharge and corner charges by GDA is valid under the Act of 1973.
Whether the plea that the challenge was already settled in a previous writ petition merits dismissal.
Whether the First and Second Government Orders confer authority on GDA to levy the demand.
Colour shows how this judgement treated each authority
M/s Panchsheel Buildtech Pvt. Ltd. v. State of U.P. & Ors.Followed¶7
Leading Writ-C No.34 of 2020 (M/s Panchsheel Buildtech Pvt. Ltd. v. State of U.P. & Ors.)
Virendra Kumar TyagiDistinguished¶12
Virendra Kumar Tyagi
1 provisions across 1 enactments
M/S Arihant Buildcon Private Limited
State Of U.P.
Ghaziabad Development Authority
Hon'ble Mahesh Chandra Tripathi
Hon'ble Sanjay Kumar Pachori
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
