# Smt. Radhika Devi v. Nagar Panchayat Varanasi & Ors - **Citation:** (2016) 4 ILRA 476 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-02-23 - **Bench:** Arun Tandon, Mohd. Tahir - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-radhika-devi-v-nagar-panchayat-varanasi-ors-43656 - **Pages:** 4 ## Headnote C.S.C., R.K. Pandey, S.K. Shukla Petitioner before this Court, who is residing within the territorial limits of Nagar Panchayat Chakia, District- Chandauli, is aggrieved by the bye-laws which have been framed by the Nagar Panchayat Chakia as enforced under notification published in the official gazette dated 26th October, 2002. It has been provided that any person desirous to transfer any immovable property within the limits of Municipality shall make an application seeking permission from the Adhyaksh/ Executive Officer, Nagar Panchayat, Chakia after on payment of 2 % of the total value of the sale consideration calculated at the circle rate. On such application being made, permission shall be granted by the Adhyaksh/ Executive Officer. We have no hesitation to hold that the bye-laws as framed by the Municipal Board requiring deposit 2 % to the value of the property covered by transfer deed with the Municipal Board is ultra vires to 128-A of the Municipality Act, 1916, and therefore illegal and inoperative in the eyes of law. Accordingly, the writ petition is allowed. All consequential action be taken accordingly. Held: Para- Case Law discussed: ## Text 476 INDIAN LAW REPORTS ALLAHABAD SERIES ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 23.2.2016 BEFORE THE HON'BLE ARUN TANDON, J. THE HON'BLE MOHD. TAHIR, J. Writ C No.- 15716 Of 2004 Smt. Radhika Devi ...Petitioner Versus Nagar Panchayat Varanasi & Ors. ...Respondents Counsel for the Petitioner: C.K. Parekh Counsel for the Respondents: C.S.C., R.K. Pandey, S.K. Shukla Petitioner before this Court, who is residing within the territorial limits of Nagar Panchayat Chakia, District- Chandauli, is aggrieved by the bye-laws which have been framed by the Nagar Panchayat Chakia as enforced under notification published in the official gazette dated 26th October, 2002. It has been provided that any person desirous to transfer any immovable property within the limits of Municipality shall make an application seeking permission from the Adhyaksh/ Executive Officer, Nagar Panchayat, Chakia after on payment of 2 % of the total value of the sale consideration calculated at the circle rate. On such application being made, permission shall be granted by the Adhyaksh/ Executive Officer. We have no hesitation to hold that the bye-laws as framed by the Municipal Board requiring deposit 2 % to the value of the property covered by transfer deed with the Municipal Board is ultra vires to 128-A of the Municipality Act, 1916, and therefore illegal and inoperative in the eyes of law. Accordingly, the writ petition is allowed. All consequential action be taken accordingly. Held: Para- Case Law discussed: (Delivered by Hon'ble Arun Tandon, J. & Hon'ble Mohd. Tahir, J.) 1. Heard Sri C.K. Parekh, learned counsel for the petitioner, learned Standing Counsel appearing on behalf of respondent no. 3. 2. Nobody is present on behalf of respondent nos. 1 and 2. 4 All. Smt. Radhika Devi Vs Nagar Panchayat Varanasi & Ors. 477 3. Petitioner before this Court, who is residing within the territorial limits of Nagar Panchayat Chakia, District- Chandauli, is aggrieved by the bye-laws which have been framed by the Nagar Panchayat Chakia as enforced under notification published in the official gazette dated 26th October, 2002. It has been provided that any person desirous to transfer any immovable property within the limits of Municipality shall make an application seeking permission from the Adhyaksh/ Executive Officer, Nagar Panchayat, Chakia after on payment of 2 % of the total value of the sale consideration calculated at the circle rate. On such application being made, permission shall be granted by the Adhyaksh/ Executive Officer. 4. The relevant clause of the notification is reproduced as follows: ''(ग) प्राप्त प्राथयिा पत्र पर अध्यक्ष/अचिशासी अचिकारी स्वयों अपिी एिेन्सी से िाोंच कराकर यह ररपयटय ली िायेगी चक उक्त सम्पचत का हस्ताोंतरण रेट सब रचिस्ट्रार के कायायलय में चििायररत रेट पर 2 प्रचतशत शुल्क िगर पोंचायत चिचि में िमा करा कर िमाकताय/क्रेता/चवक्रेता कय रसीद िारी करायेगा।'' 5. Learned counsel for the petitioner contended before us that Nagar Panchayat, Chakia has the power to impose tax on deeds of transfer of immovable property situated within the limits of the Municipality under Section 128 (1) sub-section (xiii-B) of the Municipalities Act. However he clarifies that Section 128-A of the same Act provides for the procedure in the matter of collection of such tax imposed under Section 12(1) Clause 13-A. According to Section 128-A, 2% is required to be deposited as additional stamp duty under Indian Stamp Act at the time of registration of the document. This additional 2 % stamp duty so collected is to be paid by the State Government to the Municipal Board. 6. According to the petitioner he has already deposited additional stamp duty of 2 % on the value of the consideration calculated for the purpose of the stamp duty at the time of registration of the document. The Nagar Panchayat directly cannot be permitted to raise any demand in that regard. It is provided that bye-laws are ultravires to Section 128-A of the U.P. Municipalities Act 1916. 7. For appreciating the controversy raised on behalf of the petitioner, it would be appropriate that we may refer to section 128 (1) (xiii-B) of the U.P. Municipalities Act, 1916 which reads as follows: "128 (1) Subject to any general rules or special order of the [State Government] in this behalf, the taxes which a [Municipality] may impose in the whole or part of a municipality are,- (i)............ ............. (xiii-B) a tax on deeds of transfer of immovable property situated within the limits of the municipality." 478 INDIAN LAW REPORTS ALLAHABAD SERIES 8. It is apparently evident that Section 128 (1) Sub-section (xiii-B) of the Municipalities Act confers a power upon the Municipality to impose tax on transfer deeds in respect of the immovable property situate within the limits of the Municipality. 9. But the mode and manner of collection of such tax imposed on deeds of transfer is regulated under Section 128-A of the Municipalities Act which reads as follows: 128-A. Tax on deeds of transfer of immovable property.- [(1) Where a [Municipality] has imposed a tax referred to in clause (xiii-B) of sub-section (1) of Section 128, the duty imposed by the Indian Stamp Act, 1899, on any deed of transfer of immovable property shall, in the case of immovable property situated within the limits of such municipality, be increased by two per cent, on the amount or value of the consideration with reference to which the duty is calculated under the said Act: Provided that the [Municipality] may, by a special resolution, with the prior approval of the State Government, raise the aforementioned percentage of the increase in stamp duty up to five.] (2) All collections resulting from the said increase shall, after the deduction of incidental expenses, if any, be paid to the [Municipality] concerned by the State Government in such manner as may be prescribed. (3) For the purpose of this sub-section, Section 27 of the Indian Stamp Act, 1899, shall be so read and construed as if it specifically requires the particulars referred to therein to be separately set forth in respect of,- (a) property situate within the limits of a municipality; and (b) property situate outside the limits of a municipality. (4) For the purposes of this section all references in Section 64 of the Indian Stamp Act, 1988, to the Government shall be deemed to include the [Municipality] as well. 10. From a simple reading of Section 128-A, it is apparent that mode and manner of collection of the tax imposed under Section 128 (1) (xiii-B) provided by the legislature is that the stamp duty to be imposed on transfer deeds would be increased by 2 % on the amount of value of the consideration with reference to which the stamp duty is calculated under the such Act. On deposit of this 2 %, the State Government would transfer the same to the Municipality in the manner as may be prescribed. 11. Necessary explanations to Section 27 and Section 64 of the Indian Stamp Act, 1899 have been added. 4 All. Uma Shanker Singh & Ors. Vs State Of U.P. & Ors. 479 12. The Municipality in garb of framing bye-laws under Section 298 of the Municipalities Act cannot override the legislative intent in the manner of collection of tax imposed under Section 128 (1) (xiii.B) on deeds of transfer. Subordinate legislation to be framed by the Municipality cannot override the provisions of the parent Act. 13. In the aforesaid background, we have no hesitation to hold that the bye-laws as framed by the Municipal Board requiring deposit 2 % to the value of the property covered by transfer deed with the Municipal Board is ultra vires to 128-A of the Municipality Act, 1916, and therefore illegal and inoperative in the eyes of law. 14. Accordingly, the writ petition is allowed. All consequential action be taken accordingly. ---------- ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 30.03.2016 BEFORE THE HON'BLE SUDHIR AGARWAL, J. THE HON'BLE SHAMSHER BAHADUR SINGH, J. Writ A No.- 19106 Of 2004 Uma Shanker Singh & Ors. ...Petitioners Versus State Of U.P. & Ors. ...Respondents Counsel for the Petitioners: V.K. Singh, A.K. Sharma, G.K. Singh, R.K. Singh Kaosik, R.P.S. Chauhan, Y.P. Singh Counsel for the Respondents: C.S.C. Petitioners, 25 in number, are working in educational institution, namely, Rashtriya Inter College, Sherpur, Mirzapur. It is said that College is situate at a place which is beyond eight kilometers from Municipal Board limits of Mirzapur but at a distance of less than eight kilometers from limits of Municipal Corporation, Varanasi. Petitioners are claiming house rent allowance at the rate applicable to employees who are working within the limits of Varanasi Municipal Limit. In view of above and considering the law laid down by Full Bench vide opinion dated 18.09.2015, we allow this writ petition and direct respondents to pay house rent allowance to petitioners at the rate applicable to similarly placed persons in Varanasi till the aforesaid Government Order dated 15.12.1981 holds the field. Held: Para- Case Law discussed: