Point of Law: Lease defined.-A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.

JUDGMENT :

Jayant Banerji, J.

1. 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, Ghaziabad[GDA]. 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)

2. 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.

3. 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.”

4. 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

5. 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 15.01.1998[First Government Order] 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.

6. 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.

7. 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 d