ORDER

1. This petition has been filed by the petitioner under Article 226 of the Constitution of India against the order dated 11.9.2023 passed by the respondent- Indore Development Authority (hereinafter to be referred to as “(IDA)”); whereby, the petitioner company has been directed by the IDA to pay in all 6% transfer fee for mutation, as according to the respondent the petitioner Company was initially known as Ubiquity Digital Card Systems Ltd (hereinafter to be referred to as “UDCS”) and its name was changed to Brilliant Spaces Ltd., and thereafter this company has also been amalgamated into Brilliant Estates Ltd. Thus, on these two counts of transfer, 6% fees has been charged.

2. In brief, the facts of the case are that Plot No.9 situated at Scheme No.78 Indore admeasuring 6678 Sq. meters was allotted to the petitioner by the auction process by the respondent. Initially, it was allotted to “UDCS” and after payment of requisite dues including the rent and premium amount of Rs.4,20,71,400/-, registered lease deed was executed by the IDA in favour of UDCS on 28.3.2012, for a period of 30 years. Subsequently, on 26.5.2016, the name of the aforesaid company UDCS was changed to Brilliant Spaces Ltd, and subsequent to that on 10.4.2023, Brilliant Spaces Ltd was amalgamated into Brilliant Estates Ltd., which was the parent company. On account of the aforesaid change in the name of the company, an application for mutation was filed on 2.8.2023 which has led the respondent to pass the impugned order dated 11.9.2023, directing the petitioner to pay the total fee of 6% of the existent guideline plus 18% GST and additional charges.

3. Counsel for the petitioner has submitted that the respondent have relied upon a resolution No.74 dated 28.5.2016; whereby, it has been resolved that in respect of change in the name of company, for any lease deed executed in favour of the said company 3% charges on the applicable guideline value shall be charged.

4. Counsel for the petitioner has submitted that the aforesaid resolution itself has been passed without any authority of law and specially when the Rules framed under M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 known as Madhya Pradesh Vikas Pradhikaranou ki Sampatiyou Ka Prabhadhan Thatha Vyayan Niyam, 2018 (hereinafter to be referred to as “Niyam, 2018”) were already in force. The aforesaid resolution could not have been passed. Counsel for the petitioner has also drawn attention of this Court to Rule 19 of the aforesaid Rules which provides for transfer of lease and that it shall not exceed Rs.5000. It is also submitted that otherwise also it is not a transfer of property but merely change in the name of the company.

5. Counsel for the petitioner has also submitted that amalgamation took place as per Rule 232 and Rule 233 of the Companies Act, 2013 and section 2(1B) of the Income Tax Act, 1961 which defines the term amalgamation as the merger of one or more companies with another company or the merger of two or more companies to form a new company. Thus, it is submitted that after merger of Brilliant Spaces Ltd. to Brilliant Estate Ltd., it was not a transfer but only a merger for which a proper stamp duty as per section 233(11) and s.232(3)(i) of the Companies Act, 2013 has been paid which comes Rs.55836663/-.

6. Counsel for the respondent on the other hand has opposed the prayer, and it is submitted that no illegality has been committed by the IDA while passing the impugned order as the same has been passed on the basis of resolution dated 4.2.2016, as also on 28.5.2016, as well as resolution No.9 dated 21.2.2019, in which it is clearly provided that transfer fees shall be charged in respect of transfer of lease. Thus, it is submitted that, no case for interference is made out. Shri Shreya Raj Saxena, learned counsel for the respondent has also referred to Rule 3(2) of Niyam, 2018 which provides the power of authority to amend rules.

7. In rebuttal, counsel for the petitioner has submitted that