# M/s Panchsheel Buildtech Pvt. Ltd v. State Of U.P. & Ors

- **Citation:** (2022) 2 ILRA 761
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-17
- **Case number:** Writ C No. 34 of 2020
- **Bench:** Mrs. Sunita Agarwal, Jayant Banerji
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-panchsheel-buildtech-pvt-ltd-v-state-of-u-p-ors-46177
- **Pages:** 35

## Headnote

A. Civil Law - UP Urban Planning and
Development Act, 1973 - Ch. VI - Sections
15 and 18 - Imposition of infrastructure
surcharge
and
corner
charge
by
Development
Authority
-
Validity
challenged - Provision for 10% additional
infrastructure charge as envisaged in the
First Government Order does not find
place in the Second Government Order -
Benefit claimed - First Government Order
stood amended and degraded/devolved to
the
extent
provided
by
the
Second
Government Order - Held, 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
762 INDIAN LAW REPORTS ALLAHABAD SERIES
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 - Authority on the State
Government and the GDA to impose
infrastructure
surcharge
and
corner
charge is conferred by Chapter VI of the
Act of 1973. (Para 22, 24, 28 and 32)
B. Interpretation of Statute - Rule of
contemporanea
exposition
-
First
Government
Order
vis-à-vis
Second
Government Order - Effect - Held, 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. (Para 28)
C. Transfer of Property Act, 1882 - Section
105 - Document transferring the property
in favour of society is a lease-deed, not
sale-deed
-
However,
demand
of
infrastructure surcharge was made by the
Development
Authority
-
Validity
challenged - First Government Order
governing the demand of infrastructure
surcharge, its applicability - Held, Leasedeed leave no room for doubt that the
transfer of the property in question is not
one of transfer of ownership but is a
transfer of a right to enjoy such property
made for a period of 90 years on payment
of premium and rent - Held further,
Government Order applies only to such
plots of land sold by the Development
Authorities - The claim of the GDA of
infrastructure surcharge on the property
in
question
pursuant
to
the
First
Government
Order
is
dehors
the
entitlement of the GDA under the First
Government
Order.
The
demand
for
infrastructure
surcharge
from
the
petitioner Society does not have the
mandate of law and as such is illegal.
(Para 69, 70 and 71).
D. Interpretation of statute - Estoppel
rule - Application - Principle of law
discussed - No estoppel would operate
against a statute - Private interest

## Text

_Characters 0–39,938 of 111,460. This is a partial read: ask again with offset=39938 for what follows._

2 All. M/s Panchsheel Buildtech Pvt. Ltd. Vs. State of U.P. & Ors.
761
without its own fallacies. Recovery of
possession from a tenant in default, or for
whatever reason can be made by a landlord,
even if it is the Nagar Palika or the State, in
accordance with the procedure established
by law and not by employing the
administrative authority or the force of
State available at their command. Also, the
remarks of the Collector that there is
nothing to show that the petitioner holds a
99 years' lease, may not be a well
considered finding at all, because it is
ultimately
acknowledged
that
the
petitioner's predecessor, and thereafter, the
petitioner in the leading case, and the
petitioners in the other cases as well are
tenants who owe rent to the Nagar Palika. It
is for the said reason that the respondentNagar Palika seeks to recover rent from the
petitioners. Thus, this Court thinks that so
far as recovery of possession from the
petitioner is concerned, the Nagar Palika
would be free to take steps in accordance
with law, by approaching a forum of
competent jurisdiction, and so far as the
petitioner is concerned, he would have
liberty to establish his case of tenancy on
whatever terms he pleads, also in a suit
instituted before a Court of competent
jurisdiction. It is not for this Court to go
into those questions, as these involve
disputed questions of fact about the terms
of the lease/ tenancy, the right to recovery
of possession etc. Thus, these questions are
left open to be examined in a suit that may
be instituted by one party or the other, for
the purpose of relief, to which the
concerned
party
thinks
himself/itself
entitled.

24. So far as the recovery certificate
that has led to this writ petition is
concerned, and the impugned order made
by the Collector, insofar as it relates to
recovery, though for reasons very different
than those that have weighed with the
Collector, must be upheld. As such, subject
to the liberty given above to both parties,
these petitions fail and are dismissed.

25. No costs.
----------
(2022)02ILR A761
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.12.2020

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE JAYANT BANERJI, J.

Writ C No. 34 of 2020
with other cases

M/s Panchsheel Buildtech Pvt. Ltd.
 ...Petitioner
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sanjay Kumar Mishra, Sri Nikhil Agarwal

Counsel for the Respondents:
C.S.C., Sri Mahesh Chandra Chaturvedi
(Senior Adv.), Sri Mahesh Narain Singh, Sri
Ravi Prakash Pandey

A. Civil Law - UP Urban Planning and
Development Act, 1973 - Ch. VI - Sections
15 and 18 - Imposition of infrastructure
surcharge
and
corner
charge
by
Development
Authority
-
Validity
challenged - Provision for 10% additional
infrastructure charge as envisaged in the
First Government Order does not find
place in the Second Government Order -
Benefit claimed - First Government Order
stood amended and degraded/devolved to
the
extent
provided
by
the
Second
Government Order - Held, 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
762 INDIAN LAW REPORTS ALLAHABAD SERIES
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 - Authority on the State
Government and the GDA to impose
infrastructure
surcharge
and
corner
charge is conferred by Chapter VI of the
Act of 1973. (Para 22, 24, 28 and 32)
B. Interpretation of Statute - Rule of
contemporanea
exposition
-
First
Government
Order
vis-à-vis
Second
Government Order - Effect - Held, 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. (Para 28)
C. Transfer of Property Act, 1882 - Section
105 - Document transferring the property
in favour of society is a lease-deed, not
sale-deed
-
However,
demand
of
infrastructure surcharge was made by the
Development
Authority
-
Validity
challenged - First Government Order
governing the demand of infrastructure
surcharge, its applicability - Held, Leasedeed leave no room for doubt that the
transfer of the property in question is not
one of transfer of ownership but is a
transfer of a right to enjoy such property
made for a period of 90 years on payment
of premium and rent - Held further,
Government Order applies only to such
plots of land sold by the Development
Authorities - The claim of the GDA of
infrastructure surcharge on the property
in
question
pursuant
to
the
First
Government
Order
is
dehors
the
entitlement of the GDA under the First
Government
Order.
The
demand
for
infrastructure
surcharge
from
the
petitioner Society does not have the
mandate of law and as such is illegal.
(Para 69, 70 and 71).
D. Interpretation of statute - Estoppel
rule - Application - Principle of law
discussed - No estoppel would operate
against a statute - Private interest would
have to give way to public interest. (Para
88)
E. Interpretation of statute - Word
'Vendee' used in the sale-deed - Definition
- Original allottee/vendee of development
authority executed sale-deed in favour of
the petitioner/subsequent purchaser -
Claimed that the GDA is stopped from
raising any demand for additional charge
and it would be deemed that they have
waived their right to recover any charge
other than what has been paid - Held, the
vendees mentioned in the sale deed
includes
their
heirs
and
successors,
executors, administrators and permitted
assignees - Petitioners, therefore, would
be bound under the terms and conditions
of the sale deed dated 01.05.2015. (Para
92 and 96)
Eight writ petitions dismissed; one writ
petition allowed. (E-1)
List of Cases cited:
1.
Virendra
Kumar
Tyagi
Vs
Ghaziabad
Development Authority; 2006 (1) AWC 834
2. Rohitash Kumar Vs Om Prakash Sharma;
(2013) 11 SCC 451
3. Vasantkumar Radhakisan Vora Vs Board of
Trustees of the Port of Bombay; (1991) 1 SCC
761
(Delivered by Hon'ble Jayant Banerji, J.)

The aforesaid bunch of writ petitions
have been filed before this Court on issue
of imposition of infrastructure surcharge,
and, in some cases, imposition of corner
charge by way of demand notices issued by
the Ghaziabad Development Authority,
2 All. M/s Panchsheel Buildtech Pvt. Ltd. Vs. State of U.P. & Ors.
763
Ghaziabad1. Since detailed submissions on
facts and law were advanced in the
aforesaid Writ-C No.34 of 2020, that case
is made the leading petition and is being
adjudicated first.

WRIT - C No. - 34 of 2020

(M/S Panchsheel Buildtech Pvt. Ltd.
Vs. State Of U P And 3 Others)

1. Heard Shri Nikhil Agarwal, learned
counsel for the petitioner and the learned
Standing Counsel appearing for the respondent
no.1-State of U.P. as well as Shri M.C.
Chaturvedi, learned Senior Advocate assisted
by Shri M.N. Singh, learned counsel appearing
for the remaining respondent nos.2, 3 and 4
representing GDA.

2. This writ petition has been filed
seeking the following reliefs:-

"I issue a suitable writ or direction
in the nature of certiorari quashing the
impugned demand notice dated 10.10.2019
(contained as Annexure no.11 to the writ
petition);

II issue a suitable writ or direction in
the nature of certiorari quashing the Condition
no.4 of the Government Order dated
26.07.2019 (contained as Annexure no.14 to
the writ petition) so far it makes the
Government Order applicable with immediate
effect;

III issue a suitable writ or direction
in the nature of mandamus commanding the
Ghaziabad
Development
Authority,
Ghaziabad to forthwith execute sale deed of
the land in favour of the petitioner; so that the
petitioner would be able to execute sale deeds
in favour of their flat buyers;

IV issue a suitable writ or direction
in the nature of mandamus commanding the
Ghaziabad
Development
Authority,
Ghaziabad to grant permission to mortgage to
avail loan facility from the Bank concerned."

3. Pursuant to an order of this Court on
11.2.2020, another relief was added, which is
as follows:-

"(ia) issue a suitable writ, order or
direction in the nature of certiorari quashing
the office order dated 11.7.2019 issued by the
Finance Controller and 15.7.2019 issued by
Secretary, Ghaziabad Development Authority,
Ghaziabad (contained as Annexure no. 12 &
13 to the writ petition)."

SUBMISSIONS

4. It is stated that the GDA invited
tenders for allotment/sale of plots having an
area 2000 sq. mts. or more for the
development of Group Housing, etc. The
terms and conditions were mentioned in the
brochure issued by the GDA giving the
complete
details
of
the
scheme.
A
Government
Order
dated
15.01.19982
provided, inter alia, for charging 10%
surcharge by the Development Authorities on
properties
sold
by
them
towards
infrastructure development of the urban area.
The condition providing for realisation of
infrastructure surcharge led to increase in cost
of big plots which were to be sold for purpose
of Group Housing resulting in creation of
imbalance and lack of interest on part of
interested persons to purchase plots due to
heavy cost involved. Accordingly, a proposal
was submitted before the Board of the GDA
that the First Government Order requires
reconsideration
and
no
infrastructure
surcharge or corner charge be levied on the
sale of properties by GDA having area in
excess of 2000 square meters.
764 INDIAN LAW REPORTS ALLAHABAD SERIES

5. It is contended that the Board of the
GDA approved the proposal on 17.10.2014.
Meanwhile by a letter dated 09.10.2014,
the
Vice-Chairman
forwarded
the
recommendation to the State Government
for taking a decision regarding imposition
of infrastructure surcharge and corner
charge.

6. The GDA published a brochure for
auction of plots of land in the developed
schemes for purpose of group housing and
other commercial purposes. It was clearly
mentioned in that brochure that the matter
with regard to the infrastructure surcharge
was referred to the State Government and
in case the State Government decided to
realize the same, then it would be payable
by the allotees. There was no clause for
realising corner charge from the allottees.
The petitioner bid successfully for Group
Housing
No.
GH-01(18A),
Vaishali
Scheme, Sector-3, Ghaziabad for an area of
7768 sq. mts. and a letter of acceptance was
issued to the petitioner on 27.12.2014. An
agreement to sell was executed between the
petitioner and the GDA which was
registered on 10.02.2015. The petitioner
constructed flats as per the norms and
sanctioned
map
and
a
completion
certificate was issued by the GDA on
22.08.2019. The petitioner paid the entire
installments and there is nothing due to the
GDA from the petitioner. It is stated that
the
petitioner,
after
completion
of
construction, has sold more than 80% of
the flats to the allottees but, since no saledeed has yet been executed by the GDA in
favour of the petitioner, the petitioner is not
in a position to execute sale-deeds in favour
of the flat buyers, who all have made full
and final payment to the petitioner. By
means
of
a
demand
notice
dated
10.10.2019, the petitioner has been asked to
deposit a sum of Rs.14,06,81,588/- towards
corner charge, infrastructure surcharge,
lease rent and freehold charge. The
petitioner, thereafter, learnt that an audit
objection
was
raised
regarding
the
infrastructure surcharge and as such the
demand notice was raised by the GDA.

7. It is further stated that in 2014,
after
the
GDA
requested
the
State
Government for amending the provisions of
the First Government Order, the State
Government issued another Government
Order dated 26.07.20183 by which the
clauses for imposition of infrastructure
surcharge and corner charge were removed
by the Government. It is contended that
once the First Government Order was
rescinded
by
means
of
the
Second
Government Order, there was no occasion
for the GDA to realise infrastructure
surcharge and corner charge from the
petitioner. It is stated that the petitioner has
already paid the lease rent and freehold
charges and, hence, demanding additional
lease rent and freehold charges is illegal.
Learned counsel for the petitioner has
referred to the judgment of this Court in the
matter of Virendra Kumar Tyagi vs.
Ghaziabad Development Authority4 to
contend that in a similar matter with regard
to payment of mutation charges imposed
under the provisions of sub-section (2A) of
Section 15 of the Uttar Pradesh Urban
Planning and Development Act, 19735, this
Court held that the demand for mutation
charges pursuant to a Government Order is
illegal and without authority of law and the
demand was quashed. It is further stated
that the judgment in Virendra Kumar Tyagi
(supra) was relied upon by the coordinate
Bench of this Court in Writ-C No.46967 of
2015 Mahesh Chandra Agarwal vs. State of
U.P. & Ors.) and a similar demand issued
by a Development Authority with regard to
mutation charges was set aside. Challenge
2 All. M/s Panchsheel Buildtech Pvt. Ltd. Vs. State of U.P. & Ors.
765
to these judgments before the Supreme
Court was negated by dismissal.

8. It is stated that it was on the basis
of assurance of the GDA as appearing in
the brochure, did the petitioner agree to bid
for and purchase the plot in question and
the agreement to sell (Annexure-7 to the
writ petition) was executed. It is stated that
the
impugned
demand
notice
dated
10.10.2019
is
for
a
sum
of
Rs.14,06,81,588/- which includes 10%
corner charge, 10% infrastructure surcharge
and 12% lease rent and freehold charge.
This demand clubs all the alleged dues
together and no breakup of the charges has
been given. Learned counsel urged that the
Court apply the rule of contemporanea
expositio in the interpretation of the Second
Government Order and interpret it as
rescinding the First Government Order in
light of the resolution and recommendation
of the GDA and thus no infrastructure
surcharge and corner charge be levied after
the issuance of the Second Government
Order. In this regard, the learned counsel
for the petitioner relied upon a judgment of
the Supreme Court in the case of Rohitash
Kumar
v.
Om
Prakash
Sharma6
(paragraphs 12, 14 and 19).

9. No counter affidavit has been filed
by the respondent no.1-State Government.

10. A counter affidavit has been filed
on behalf of the respondent nos.2 to 4
(GDA and its authorities). It is admitted
that the petitioner being the highest bidder
has paid the total amount towards the plots
in question which was Rs.59,79,82,000/-.
Apart from the aforesaid, 12% lease rent
and
freehold
charges
amounting
to
Rs.7,17,57,870/- was also deposited by the
petitioner. It has been stated that the
allotment letter also indicated the fact that
if the State Government directs charging of
the infrastructure surcharge then the
allottees would be liable to pay the same. It
is stated that when a local audit was
conducted by the GDA in the year 2013-14,
objections were raised in two matters
regarding non-charging of infrastructure
surcharge in view of the First Government
Order. Though objections raised by the
Audit Department were duly replied, but
the Audit Department was not satisfied
with the reply. Thereafter, a review
meeting
was
conducted
under
the
chairmanship of the Principal Secretary,
Housing, Government of U.P., wherein
directions were issued to the effect that in
respect of those properties/plots, which
have been allotted during the period from
15.01.1998 to 26.07.2018, notice should be
issued to the allottees concerned for
recovery of infrastructure surcharge. It is
stated that the notice dated 10.10.2019 is in
consonance with the First Government
Order. As per the terms of the brochure
itself, since the Government has taken a
decision, the infrastructure surcharge is
liable to be paid by the petitioner. Since the
allotment of the plots were made on 'AS IS
WHERE IS'' basis and as such the corner
charge is levied only on those plots which
were situated on a corner. The plot of the
petitioner is situated on a corner, hence, the
petitioner is required to pay the corner
charges also. It is stated that under the
direction of the Government, on the amount
of the infrastructure surcharge and the
corner charge, additional 12% towards
lease rent and freehold charge are also
payable and as such the demand was
incorporated in the letter dated 10.10.2019.

11. In the rejoinder affidavit, the
allegations contrary to the interest of the
petitioner in the counter affidavit have been
denied. It has been specifically stated that
766 INDIAN LAW REPORTS ALLAHABAD SERIES
there was no provision of corner charge in
the brochure, allotment letter and registered
agreement to sell issued/ executed by the
GDA and, therefore, the demand for
payment of corner charge is arbitrary,
unreasonable and illegal.

DISCUSSIONS AND ANALYSIS

12. Chapter VI of the Act of 1973
provides for acquisition and disposal of
land. Section 17 provides for compulsory
acquisition of land where land is required
for the purpose of development or for any
other purpose, under the Act. The land so
acquired by the State Government may be
transferred to the authority or any local
authority for the purpose for which the land
was acquired after its possession has been
taken, on payment by authority or the local
authority of the compensation awarded
under that Act and of the charges incurred
by the Government in connection with the
acquisition. Section 18 of the Act of 1973
reads as follows:-

"18. Disposal of land by the
Authority
or
the
local
authority
concerned.-

(1) Subject to any directions
given by the State Government in this
behalf, the Authority or, as the case may
be, the local authority concerned may
dispose of-

(a) any land acquired by the State
Government and transferred to it, without
undertaking
or
carrying
out
any
development thereon; or

(b)
any
such
land
after
undertaking
or
carrying
out
such
development as it thinks fit.

to such persons, in such manner
and subject to such terms and conditions as
it considers expedient for securing the
development of the development area
according to plan.

(2) Nothing in this Act shall be
construed as enabling the Authority or the
local authority concerned to dispose of land
by way of gift, but subject thereto,
references in this Act, to the disposal of
land shall be construed as references to the
disposal thereof in any manner, whether by
way of sale, exchange or lease or by the
creation of any easement, right or privilege
or otherwise.

..................................

.................................."

13. Section 18, therefore, provides for
disposal of the land by the authority,
subject to any directions given by the State
Government in this behalf in such manner
and subject to such terms and conditions as
it considers expedient for securing the
development of the development area
according to plan.

14. There is no dispute that the GDA
has dealt with the land in question in
accordance with the Section 18 of the Act
of 1973. The terms and conditions and the
manner of disposal of the land in question
by the GDA appears in its brochure, which
is enclosed as Annexure-1 to the writ
petition. The First Government Order that
is issued under the authority of the
Governor of the State contains directions
given to the development authorities for
infrastructural development of cities and
specifies specific portions of the various
sources of income of the development
authorities to be deposited in a separate
2 All. M/s Panchsheel Buildtech Pvt. Ltd. Vs. State of U.P. & Ors.
767
bank account. The First Government Order
is being quoted in its entirety :-

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vkKk ls]

vrqy dqekj xqIrk

lfpo"

15. In its meeting held on 4.10.2014,
a committee of officials constituted by the
GDA noted that for bulk sale for Group
Housing and other large plots of land for
30-35% of additional area of land, the
value of the same is received by the GDA
and moreover for the internal development
of such large plot of land, the GDA does
not have to make internal development. For
sale of large plots of land, 1.5 - 2 time of
the value is fixed and, thus, imposition of
10% infrastructure charge and 10% corner
charge ought to be reconsidered. It was
noted that several other Development
Authorities are not exacting infrastructure
surcharge. Due to the extra imposition of
the infrastructure surcharge, the price of the
plots of land increase resulting in lack of
interest
in
purchasing
them.
The
Committee noted that plots of land having
an area in excess of 2000 sq. mts. are
identified in advance and the purchasers,
after seeing the site and location, place
their bids for the plots of land; and the plots
768 INDIAN LAW REPORTS ALLAHABAD SERIES
of land having better location receive
higher bids than plots at ordinary location
and as such there is no rationale for
imposition of corner charge. Thus, it was
proposed that with regard to the First
Government Order, the Government be
requested not to impose infrastructure
surcharge over such plots of land and in the
brochure it be provided that in case the
Government again directs imposition of
infrastructure surcharge then the purchasers
would have to pay the same. The
recommendations of the Committee were
approved at the meeting of the Board on
17.10.2014. The Vice-Chairman of the
GDA had, in the meantime, written a letter
dated 09.10.2014 to the Principal Secretary
of
the
respondent
no.1
making his
recommendation in accordance with the
views/proposals expressed by the aforesaid
Committee in its meeting dated 04.10.2014.
The brochure of the GDA includes the
terms and conditions for allotment of
Group Housing and non-residential plots of
2000 sq. mts. or above, through a two bid
system in various schemes of the GDA.
Certain clauses of the said brochure are
quoted below:-

"7.8 Regarding imposition of
10%
infrastructure
surcharge
as
per
Government Order No.-152/9-Aa-1-1998
Avas
anubhag-1
Lucknow
dated
15.01.1998,
matter
is
referred
to
Government with recommendation of not
to impose it extra. The decision of
Government
in
this
regard
will
be
applicable and binding.

7.9 The plots are to be allotted on
a free hold basis. Lease rent and free hold
charge @ 12% of total bid amount will be
payable extra at the time of agreement/sale
deed registered, as the case may be.

........

7.16 Applicants are advised to
inspect the site and get the information
about any process regarding tender before
submitting the tender in the tender box.
After submitting the tender no objection
will be entertained.

.........

8.5 If allottee adopts the pay
plan-A, possession will be given after
depositing full payment, 12% lease rent and
freehold charge on total bid amount and
registered sale deed executed in his favor.
If the allottee adopts in the pay plan-B, then
possession of plot will be given to the
allottee of payment of 25% of the bid
amount with 12% lease rent and freehold
charge on total bid amount and registered
sale agreement of full stamp value executed
between
GDA
and
the
allottee.
Accordingly, after possession, the allottee
can plan a scheme for construction on the
entire land within the prescribed bye-laws
of GDA/as per FAR/ground coverage and
land
use
published
in
newspapers/mentioned in Table-1 and can
get the approval by GDA, the allottee will
be entitled to have plan sanctioned by the
GDA and start construction. The allottee
shall be free to advertise the scheme at this
own cost and risk, but in case of plan-B,
allottee will not transfer any property
(shop/flat as the case may be) to any body
before sale deed is executed in their favor
from GDA.

.............

9.7 Any money due to the GDA
from the seller in respect of the plots shall be
recoverable as arrears of the land revenue
2 All. M/s Panchsheel Buildtech Pvt. Ltd. Vs. State of U.P. & Ors.
769
from the buyer besides other modes and
rights of recovery.

..............

9.9 The water supply, sewerage,
drainage
and
electricity
lines
as
per
specification and standard shall be provided
up to the the boundary of the property by
GDA. The internal work shall be completed
by the allottee.

9.10 Plots will be allotted on "AS
is-Where is" basis and possession of plot will
be given to allottee on "As is-where is" basis
also. No objection will be entertained later.

............

10.00 Stamp Duties and Other
Charges:

The cost and expenses regarding
stamp duty, registration charges of agreement
to sale/sale deed or any other such documents
required in this behalf including all incidental
expenses shall be borne by the allottee. The
allottee shall be bound to pay the duty of
transfer of immovable property by State
Government, Municipal Corporation or any
other duty or charge that may be levied by
any other authorities."

15. The plot in question found place in
an agreement to sell executed between the
GDA and the petitioner, which was registered
on 10.02.2015.

16. In this agreement to sell, receipt of
25% of the total premium and 12% lease rent
and freehold charge was acknowledged by
the GDA and balance of 75% of the total
premium, payable in four half yearly
installments alongwith interest, was payable.
One of the clauses in the agreement to sell is
as follows:-

"8. The Second Party shall be liable
to pay rates, taxes, 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."

17. Having entered into a contract, in
this case an agreement to sell, executed
subsequent to the issuance of the brochure by
the GDA, the petitioner stood bound by the
terms of the conveyance. Thenceforth, the
terms of the brochure were subject to the
terms of the conveyance and the petitioner
became liable thereunder. The petitioner
committed itself to pay the rates, charges,
taxes and assessments as envisaged in Clause
8 of the agreement to sell dated 10.02.2015.

18. On 22.08.2019 the GDA issued a
completion certificate in favour of the
petitioner under the provisions of Section
15A(2) of the Act of 1973. By another letter
dated
22.08.2019,
the
petitioner
was
informed that the payment of the entire
installments pertaining to the plot in question
had been made. It was specified that if in the
future any amount of the GDA is found due,
that would have to be deposited.

19. By means of the letter dated
10.10.2019 the petitioner was informed that
against the plot in question, 10% corner
charge and 10% infrastructure surcharge
and 12% of the lease rent and free hold
charge amounting to Rs. 14,06,81,588.00/-
is to be deposited within a month.
Annexure No. 12 to the petition is a letter
dated 11.07.2019 addressed by the Finance
Controller to the Vice-Chairman of the
GDA
referring
to
a
meeting
dated
27.05.2019
chaired
by
the
Principal
770 INDIAN LAW REPORTS ALLAHABAD SERIES
Secretary in which it was directed that
between the period of First Government
Order and the Second Government Order,
the infrastructure surcharge be recovered
and notice be issued in this regard. There is
yet another inter-departmental letter issued
by the Additional Secretary of the GDA on
15.07.2019 (Annexure No. 13 to the writ
petition) directing that all those properties
that were auctioned or sold in bulk with the
permission
of
the
Board
between
15.01.1998 and 26.07.2018 on which
infrastructure surcharge has not been
imposed then, as sequel to the objections
raised by the CAG, steps for recovering of
infrastructure surcharge are required to be
taken.

20. At this stage it is pertinent to refer
to the Second Government order dated
26.07.2018 which has been enclosed as
Annexure No. 14 to the writ petition. The
Second Government Order is as follows:

^*mRrj izns'k 'kklu^*
vkokl ,oa 'kgjh fu;kstu vuqHkkx&1
la[;k% 9481⁄411⁄2@vkB&1&18&44fofo/k@18
y[kuÅ% fnukad 26 tqykbZ] 2018

dk;kZy; Kki

fodkl izkf/kdj.kksa }kjk uxj ds
bUQzkLVaDpj fodkl ds izfr ;ksxnku lqfuf'pr
djus ds mn~ns'; ls vkokl ,oa 'kgjh fu;kstu
vuqHkkx&1] mRrj izns'k 'kklu ds dk;kZy; Kki
la[;k&152@9&vk&1&1998] fnukad 15-01-1998 ds
v/khu fodkl izkf/kdkj.kksa dh dqN lzksrksa ls vk; ds
fu/kkZfjr va'k dks ,d vyx cSad [kkrs tks vkolh;
bUQzkLVaDpj gsrq fufgr gS] esa tek fd, tkus dh
O;oLFkk gSA ijUrq ml [kkrs esa ftl {ks=@dkyksuh
ls 'kqYd 1⁄4fo'ks"k dj fodkl 'kqYd1⁄2 tek fd;k tk
jgk gS mldk mlh {ks=@ dkyksuh fo'ks"k esa mi;ksx
lqfuf'pr fd;s tkus gsrq O;oLFkk ugha gSA blds
vfrfjDr
dk;kZy;
Kki
la[;k&152@9&vk&1&1998 fnukad 15-01-1998 ds
tkjh gksus ds i'pkr 'kklu }kjk dz;&;ksX; ,Q-,-
vkj- 'kqYd dk fu/kkZj.k fd;k x;k gS rFkk fodkl
'kqYd] uxjh; fodkl izHkkj ,oa Hkw&mi;ksx ifjorZu
izHkkj fu;ekofy;kW iz[;kfir dh xbZ gSa] ftuds
izkfo/kkuksa ds n`f"Vxr mi;qZDr dk;kZy; Kki fnukad
15-01-1998 esa la'kks/ku fd;k tkuk vko';d gSA

2& mijksDr ds n`f"Vxr dk;kZy;&Kki
la[;k&152@9&vk&1&1998] fnukad 15-01-1998 dks
vodzfer djrs gq, Jh jkT;iky egksn; mRrj
izns'k uxj ;kstuk vkSj fodkl vf/kfu;e] 1973 dh
/kkjk&41 dh mi/kkjk&1⁄411⁄2 }kjk iznRr vf/kdkjksa ds
v/khu fuEu funsZ'k nsrs gS%&

2-1& fodkl izkf/kdj.k dh fuEufyf[kr
lzksrksa ls izkIr gksus okyh vk; dks izkf/kdj.k ds
lkeU; iwy esa u Mkydj fuEukuqlkj nks
vyx&vyx cSad [kkrksa esa tek fd;k tk,xk%&

1⁄4d1⁄2 uxj Lrjh; vkoLFkkiuk fodkl
[kkrk

1⁄411⁄2 mRrj izns'k uxj ;kstuk vkSj
fodkl 1⁄4uxjh; fodkl izHkkj dk fu/kkZj.k] mn~xzg.k
vkSj laxzg.k1⁄2 fu;ekoyh] 2014 ds v/khu uxjh;
fodkl izHkkj ds :i esa izkIr gksus okyh /kujkf'k dk
'kr& izfr'kr va'kA

1⁄421⁄2 mRrj izns'k uxj ;kstuk vkSj fodkl
1⁄4Hkw&mi;ksx ifjorZu 'kqYd dk fu/kkZj.k] mnxzg.k ,oa
laxzg.k1⁄2 fu;ekoyh] 2014 ds v/khu Hkw&mi;ksx
ifjorZu 'kqYd ds :i esa izkIr gksus okyh /kujkf'k dk
'kr&izfr'kr va'kA

1⁄431⁄2 mRrj izns'k uxj ;kstuk vkSj fodkl
vf/kfu;e] 1973 dh /kkjk&32 ds v/khu vukf/kd`r
fuekZ.k ds 'keu ls 'keu 'kqYd ds :i esa izkIr gksus
okyh /kujkf'k dk 50 izfr'kr va'k rFkk 'ks"k 50 izfr'kr
fodkl izkf/kdj.k dk va'kA

1⁄441⁄2 fodkl izkf/kdkj.k }kjk viuh
lEifRr;ksa dks Qzh&gksYM fd, tkus ls izkIr gksus okyh
vk; dk 90 izfr'kr va'k rFkk 'ks"k 10 izfr'kr fodkl
izkf/kdj.k dk va'kA

1⁄451⁄2
fodkl
izkf/kdj.k
}kjk
fodflr@l`ftr lEifRr;ksa ds fodz;&foys[k ds
fucU/ku ls izkIr gksus okyh vk; dk 90 izfr'kr va'k
rFkk 'ks"k 10 izfr'kr fodkl izkf/kdj.k dk va'kA

1⁄4[k1⁄2 {ks=h; voLFkkiuk fodkl [kkrk
2 All. M/s Panchsheel Buildtech Pvt. Ltd. Vs. State of U.P. & Ors.
771

1⁄411⁄2 mRrj izns'k uxj ;kstuk vkSj
fodkl 1⁄4fodkl 'kqYd dk fu/kkZj.k] mn~xzg.k ,oa
laxzg.k1⁄2 fu;ekoyh] 2014 ds v/khu fodkl 'kqYd ds
:i esa izkIr gksus okyh /kujkf/k dk 'kr&izfr'kr va'kA

1⁄421⁄2 vukf/kd`r dkyksfu;ksa ds fu;ferhdj.k
dh dk;Zokgh ds vUrxZr izkIr gksus okyh /kujkf/k dk
90 izfr'kr va'k rFkk 'ks"k 10 izfr'kr fodkl izkf/kdj.k
dk va'kA

1⁄431⁄2 dz;&;ksX; ,Q0,0vkj0 'kqYd ls izkIr
gksus okyh /kujkf'k dk 90 izfr'kr va'k rFkk 'ks"k 10
izfr'kr fodkl izkf/kdj.k dk va'kA

2.2 uxj Lrjh; ,oa {ks=h; voLFkkiuk
fodkl [kkrs esa ls izR;sd o"kZ 80 izfr'kr iwWthxr rFkk
vf/kdre 20 izfr'kr jktLo O;; fd;k tk ldsxkA
mDr [kkrkas esa ls iwWthxr O;; fuEu lfefr;ksa ds
vuqeksnu ls fd;k tk,xk%&

1⁄411⁄2 uxj Lrjh; voLFkkiuk fodkl [kkrs
esa ls uxj dh lkekU; voLFkkiuk lqfo/kkvksa ds
lEc)Zu@foLrkj gsrq lEcfU/kr e.Myk;qDr dh
v/;{krk esa xfBr ,d lfefr ftlesa ftykf/kdkjh]
mik/;{k fodkl izkf/kdj.k] uxj vk;qDr@vf/k'kklh
vf/kdkjh rFkk ty fuxe ds izfrfuf/k lnL; gksaxs ds
vuqeksnu ls O;; fd;k tk,xkA

1⁄4[k1⁄2 {ks=h; voLFkkiuk fodkl [kkrs esa
ld lEcfU/kr {ks=@ dkyksuh ds fodkl dk;ksZsa gsrq
mik/;{k] fodkl izkf/kdj.k dh v/;{krk esa xfBr ,d
lfefr] ftlesa uxj vk;qDr@ vf/k'kklh vf/kdkjh]
izkf/kdj.k ds eq[; vfHk;Urk@ izHkkjh vfHk;a=.k rFkk
ty fuxe ds izfrfuf/k lnL; gksaxs] ds vuqeksnu ls
O;; fd;k tk,xkA izkf/kdj.k }kjk vukf/kd`r
dkyksfu;ksa ds fu;ferhdj.k dh dk;Zokgh ds vUrxZr
izkIr gksus okyh /kujkf'k dk C;kSjk vyx ls j[kk
tk,xk vkSj bl en esa izkIr gksus okyh vk; dks mlh
dkyksuh esa O;; fd;k tk,xk] ftlls og vk; izkIr gks
jgh gSA

3& bl lEcU/k esa iwoZ esa tkjh lqlaxr
'kklukns'k rRlhek rd la'kksf/kr le>s tk,axsA

4& mijksDr vkns'k rRdky izHkko ls ykxw
gksaxsA

g0v0

fufru jes'k xksd.kZ

izeq[k lfpo

la[;k ,oa fnukad rnSoA

izfrfyfi%& fuEufyf[kr dks lwpukFkZ ,oa
vko';d dk;Zokgh gsrq izsf"kr%&

1- leLr vij eq[; lfpo@izeq[k
lfpo@lfpo] m0iz0 'kkluA

2- jktLo ,oa lfpo] jktLo ifj"kn] mRrj
izns'kA

3- mifujh{k.k] fucU/ku] mRrj izns'kA

4- leLr e.Myk;qDr] mRrj izns'kA

5- vkokl vk;qDr] m0iz0 vkokl ,oa
fodkl ifj"kn] y[kuÅA

6- leLr ftykf/kdkjh] mRrj izns'kA

7- mik/;{k] leLr fodkl izkf/kdj.kA

8- v/;{k] leLr fo'ks"k {ks= fodkl
izkf/kdj.kA

9- fu;r izkf/kdkjh] leLr fofu;fer {ks=]
mRrj izns'kA

10- funs'kd1⁄4iz'kklu1⁄2 vkokl cU/kq] m0iz0]
y[kuÅA

11- eq[; uxj ,oa xzke fu;kstd] mRrj
izns'kA

12- funs'kd] vkokl cU/kq dks bl vk'k;
ls izsf"kr fd bl dk;kZy; Kki dks vkokl ,oa 'kgjh
fu;kstu foHkkx dh osclkbV ij viyksM djkuk
lqfuf'pr djsaA

13- xkMZ QkbyA

vkKk ls]

g0 vLi"V

26@07@18

1⁄4jkts'k dqekj ik.Ms1⁄2

fo'ks"k lfpo

21. The point to be determined is
whether the GDA is entitled to recover an
amount of 10% as infrastructure surcharge
and 10% corner charge from the petitioner
with respect to the plot in question.

22. It is not in dispute that imposition
of 10% infrastructure surcharge on plots of
land being sold by the Development
772 INDIAN LAW REPORTS ALLAHABAD SERIES
Authorities was required to be made
pursuant to the First Government Order.
Section 18 of the Act of 1973 permits the
disposal of the land by the GDA subject to
any
directions
given
by
the
State
Government and in such manner and
subject to such terms and conditions as the
GDA considers expedient for securing the
development
of
the
developing
area
according to the plan. It is nobody's case
that the property in question is outside the
developmental area of the GDA. It appears
from the record that the GDA had voiced
its concerns to the government for the first
time in its letter dated 09.10.2014 regarding
the imposition of 10% infrastructure
surcharge and 10% corner charge on the
large plots of land sold by it exceeding
2000 square metres in area. It can,
therefore, be presumed that prior to that,
the GDA was imposing and recovering
10% infrastructure surcharge (as provided
in the First Government Order) and 10%
corner
charge
(depending
on
corner
location) on all plots of land being disposed
of by it under the provisions of Chapter VI
of the Act of 1973. In view of the concerns
reflected by the Committee constituted by
the GDA in its meeting dated 04.10.2014,
the matter was sent for consideration of the
Government. The Second Government
Order was issued for modifying the First
Government Order. As such, by means of
the Second Government Order the First
Government Order was modified and
downgraded. The Second Government
Order provided for allocation of the
charges
and
fees
recovered
by
the
Development Authorities under various
heads of account whereafter it was
provided
that
the
previous
related
Government Orders would be considered as
amended to the extent provided in the
Second Government Order and the Second
Government Order would come into effect
immediately. The provision for 10%
additional
infrastructure
charge
as
envisaged in the First Government Order
does not find place in the Second
Government
Order.
The
Second
Government
Order
was
issued
on
26.07.2018.

23. The contention of the learned
counsel for the petitioner that the word
'vodzfer'
appearing
in
the
Second
Government Order, which is used in
reference to the First Government Order,
means 'rescinded', thereby implying that the
First Government Order seized to operate
ab initio, cannot be accepted. The word
'vodzfer' has been translated to English in
Rajpal Advanced Learner's Hindi-English
Dictionary authored by Dr. Hardev Bahri
(2013 Edition) as follows:-

vodzfer (avkramit) a. degraded,
devolved.

24. Therefore, the First Government
Order
stood
amended
and
degraded/devolved to the extent provided
by the Second Government Order. The
Second Government Order came into effect
on the date of its issue which is 26.07.2018
and would have effect since that day. The
inter-departmental letter dated 11.07.2019
written by the Finance Controller to the
Vice-Chairman of the GDA reflects the
decision taken by the Principal Secretary in
the meeting held under his Chairmanship
on 27.05.2019 pursuant to the audit
objection raised by the CAG. That decision
affirms the situation arising out of the
issuance of the Second Government Order,
that is to say, that infrastructure surcharge
would be liable to be paid from the date of
the First Government Order to the date of
the Second Government Order and notices
be issued accordingly. The decision taken
by the Principal Secretary in the meeting
2 All. M/s Panchsheel Buildtech Pvt. Ltd. Vs. State of U.P. & Ors.
773
dated 27.05.2019 cannot be faulted as it is
merely reflects the consequence of the
Second Government Order.

25. The concerns voiced by the GDA
regarding
payment
of
infrastructure
surcharge raised in the letter of ViceChairman of the GDA to the State
Government on 09.10.2014 have, for all
facts and purposes, been addressed by the
issuance of the Second Government Order.

26. The GDA in its brochure
(Annexure No. 1 to the writ petition) has
categorically specified the imposition of
10% infrastructure surcharge as per the
First Government Order with the condition
that decision of the Government in this
regard would be applicable and binding.