DEVENDRA KUMAR SHUKLA v. JABALPUR DEVELOPMENT AUTHORITY
2002-09-03
ARUN MISHRA
body2002
DigiLaw.ai
ORDER : Petitioners in M. P. No. 21056/1990 pray for a writ of Certiorari for quashing memo (P-4) dated 10-6-1987 and memo (P-11) dated 22-11-1989 as well as memo (P-12) dated 16-3-1990 demanding extension fee and transfer fee. Petitioners further seek relief of quashing the resolution dated 31-10-1986 and mandamus is sought to permit the petitioners to assign the lease without payment of transfer fee, penalty, extension fee etc. 2. In M. P. No. 1311/1990 Jhumaklal vs. Jabalpur Development Authority petitioner prays relief for exemption from transfer fee, extension fee, ground rent on the ground that he is not a purchaser of plot from Jabalpur Development Authority (hereinafter referred to as JDA). Further a writ is sought to grant permission to the petitioner to transfer of plot withot charging any transfer fee under Rule 37 of Nagar Tatha Gram Nivesh Vikasit Bhoomiyon, Gruhon, Bhavano Tatha Anya Sanrachnao Ka Vyayan Niyam, 1975. 3. The case of the petitioners in M. P. No. 2105/1990 is that their late father Dr. Y. N. Shukla was allotted plot No. 83. Lease deed was executed on 4-10-1968 but it could not be registered. It was not on standard format of lease. The documents were prepared in the year 1973 on standard lease form of the improvement trust and sent vide memo (P-1) dated 28-3-1973 for registration. However, the petitioners' father did not receive the documents or lost them somewhere, with the result the lease could not be registered. As a result of establishment of the Development Authority in the city of Jabalpur w.e.f. 11-1-1980, the Town Improvement Trust stood dissolved. Petitioners' father requested JDA to prepare fresh documents of lease and an affidavit was also filed by the petitioners' father that earlier documents had been lost and another set of lease deed (P-2) was executed and sent on 6-5-1983 which was registered on 1-8-1983. However, possession of the plot was never given to him nor any notice was given to him to obtain possession in respect of said plot. The petitioners decided to dispose of the plot. They applied for permission to transfer the plot. They were asked to make the payment of the amount as per resolution 31-10-1986 passed by the JDA.
However, possession of the plot was never given to him nor any notice was given to him to obtain possession in respect of said plot. The petitioners decided to dispose of the plot. They applied for permission to transfer the plot. They were asked to make the payment of the amount as per resolution 31-10-1986 passed by the JDA. The petitioners were required to give penalty (fee for extension of time for construction) at the rate of 1% of the present value of the plot for a period of three years amounting to Rs. 2495/- by 25-7-1987. Petitioners represented that since possession has not been handedover, hence no penalty could be imposed on the basis of present value of the plot. Transfer fee on the present value of the plot calculated on the amount of Rs. 83,160/- @ of 10% is Rs. 8,316/-. Penalty at 5% for non-commencement of construction is Rs. 4,158/-, fee for grant of extension for construction at 1% is Rs. 4,158/- and Ground Rent for 88-89 to 1989-90 is Rs. 110/-, total Rs. 16,742/- were demanded. The amount was subsequently revised with lapse of time and calculated on prevailing value of the plot, penalty was also enhanced. 4. Petitioners submit that they have been paying ground rent from time to time and ground rent upto 1988 has already been paid. No ground rent could be demanded as possession has not been handed over. The resolution dated 31-10-1986 imposing the penalty of 5% to the present value of the plot in case construction is not done within stipulated time as mentioned in the deed. There is no provision for charging 10% of present value of plot as transfer fee. The plot was allotted in the year 1968. Realiasation of 10% as premium is the price of the plot as per conditions of the lease and Rule 6 and 7 of the Rules. Rule 37 enable charging of a sum equal to 10% of the value of the plot. It is not mentioned that 10% has to be realized on the basis of "present market value of the plot". Hence the action is not authorised as per Rule 37. In the lease, the premium mentioned is only Rs. 11,025/-. Assuming any transfer fee payable, it would be 10% of this amount i.e. Rs.
It is not mentioned that 10% has to be realized on the basis of "present market value of the plot". Hence the action is not authorised as per Rule 37. In the lease, the premium mentioned is only Rs. 11,025/-. Assuming any transfer fee payable, it would be 10% of this amount i.e. Rs. 1102/- and not 10% of present value of the plot which has been calculated by the respondent subsequently at Rs. 11,088/-. Demand of transfer fee of Rs. 11,088/- is absolutely illegal. This is also the case of the petitioners that there is no provisions in the rules to impose the penalty for non-commencement of construction. 5. JDA in return filed in M. P. No. 2105/1990 contends that due to delay on the part of lease holder, lease could not be executed earlier. It was executed in the year 1983. By letter dated 2-9-1983, lease holder was asked to take possession of the plot. Reliance has been placed on Rule 36 which provide that construction has to be commenced within two years and time can be extended by one more year. Rule 38 gives a right to JDA to re-enter in case construction has not been commenced within the period specified in Rule 36. Clause 5 of lease-deed also contains similar provision. JDA further contends that plots are allotted to the persons in lease hold rights for construction of houses. It is further contended that persons are used to get the plots allotted and kept them lying vacant for a long time and when prices go high, they sell the plots. To check this profiteering and encourage housing activities, resolution (R-1) dated 31-10-1986 has been passed. Under section 58 of the Adhiniyam, JDA is empowered to frame regulations to determine the procedure for the disposal of developed lands. In order to give effect to M.P. Housing Scheme, such a resolution was passed. The resolution amounts to regulation framed under section 86 of the Adhiniyam. The resolution enables JDA to realize; (i) payment of 10% of present value of the plot as transfer fee, (ii) payment of 5% of present value as penalty after a period of 2 years, and (iii) payment of 1% of the present value of the plot after the expiry of 3 years as extension fee.
The resolution enables JDA to realize; (i) payment of 10% of present value of the plot as transfer fee, (ii) payment of 5% of present value as penalty after a period of 2 years, and (iii) payment of 1% of the present value of the plot after the expiry of 3 years as extension fee. Lease holders are also to pay interest at the rate of 12% per annum on the arrears of Ground rent if not paid on due date. Reliance has also been placed on a decision of Division Bench of this Court in M.P. No. 3395/1986 Rajkumar Acharya and another vs. Jabalpur Development Authority decided on 1-4-1987 wherein this Court has upheld the resolution passed by the JDA and realisation of transfer fee, extension fee etc. As per Rule 37, lease is not a sale and the consideration of lease deed is only a premium which cannot be within market value as held by this Court in Rajkumar Acharya (supra). 6. In M.P. No. 1311/1990 the petitioner submits that he owned land in village Kachhpura, Garha, District Jabalpur. The Town Improvement Trust, Jabalpur acquired the land of the petitioner for its Scheme No. 6. Compromise (P-1) was entered into on 6-7-1977. Plots No. 804, 817, 818, 820, 821 and 802 were released in lieu of cash compensation without charging any premium. Petitioner was asked for registration of lease deed of said plots which petitioner accepted and got the lease deed registered in the prescribed form. However, petitioner submits that he not being the purchaser, could not be made a lessee. Land was owned and released to him. Petitioner applied for permission to transfer the plot No. 820. JDA asked to deposit a sum of Rs. 3240/- as transfer fee and further sum of Rs. 1512/- for extension of time for non-commencement of construction in stipulated time. Petitioner submits that Rules of 1975 are not applicable and they apply only in case of purchaser from JDA. No regulations have been framed under section 58 or 86 of Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam. Petitioner could not transfer the plot No. 820, hence he applied for refund of the amount. Trust did not return the said amount and only Rs. 1,080/- was refunded. Out of 10%, only 5% was refunded and 5% was forfeited. Petitioner requested the trust to handover possession by filing application dated 7-6-1989.
Petitioner could not transfer the plot No. 820, hence he applied for refund of the amount. Trust did not return the said amount and only Rs. 1,080/- was refunded. Out of 10%, only 5% was refunded and 5% was forfeited. Petitioner requested the trust to handover possession by filing application dated 7-6-1989. Petitioner was asked to deposit time extension fee. Time extension fee cannot be asked as the possession was not given. 7. In the return filed by respondent in M.P. No. 1311/1990, it is contended that the resolution dated 31-10-1986 is valid. As per terms and conditions of the agreement, the action is proper and lease deed was executed by JDA in favour of the petitioner. It was mentioned in the agreement that the terms and conditions would be binding on the petitioner. Action is in accordance with the rules. The forfeiture of 5% of transfer fee is in accordance with the resolution (R-4) of JDA passed in the meeting held on 10-12-1985. The status of the petitioner is of the lessee. 8. Shri Ravish Agrawal, learned Senior Counsel appearing for the petitioners in M.P. No. 2105/1990, submits that action of charging of transfer fee on the present value of the plot is not authorised under Rule 37. He placed reliance on section 105 of T. P. Act which contains a provision that in the case of transfer, the amount of premium has to be treated as price and lease in question is for perpetuity and as such premium has to be taken to be the value of the plot on which it has been transferred to petitioner. The demand of transfer fee on present value is bad in law. He further submitted that decision of this Court in Rajkumar Acharya (supra) has failed to take into consideration Rule 37 of the Rules and is contrary to the decision of the Apex Court in Commissioner of Income Tax vs. The Panbari Tea Co. Ltd., AIR 1965 SC 1871 in which it is laid down that premium can be a price. The Apex Court held that when the interest of the lessor is parted with for a price, the price paid is premium and is a capital income and periodical payments made for the continuous enjoyment of the benefits under the lease are in the nature of rent and is revenue receipt.
The Apex Court held that when the interest of the lessor is parted with for a price, the price paid is premium and is a capital income and periodical payments made for the continuous enjoyment of the benefits under the lease are in the nature of rent and is revenue receipt. He also placed reliance on decision of Apex Court to urge that it is not open to the Court to read the Rule 37 by adding the words "Present Value" relying on British India General Insurance Co. Ltd. vs. Captain Itbar Singh and others, AIR 1959 SC 1331 . Learned Counsel further submitted that realisation of extension fee is not authorised under the rules as possession was not handed over. Demand of extension fee and that of ground rent is bad in law. 9. Shri L. N. Namdeo, learned Counsel for the petitioner in M. P. No. 1311/1990, in addition to aforesaid submissions submits that the JDA has ignored and overlooked the material aspect of the case of petitioner Jhumaklal that he was the owner of the land and the land has been released by JDA to petitioner in lieu of compensation. Thus, he cannot be treated to be lessee of JDA. Thus, on this ground also the petitioner is entitled for relief prayed in the petition. 10. Shri Sanjay K. Agrawal appearing for JDA submitted that the action is in accordance with Rules 36, 37 and 38, the date on which the transfer is proposed to be made. The value prevailing on that date is material and relevant under Rule 37 and that is also the resolution passed by JDA on 31-10-1986 in which provision has been made for extension of time beyond 3 years which is a provision in favour of the petitioners. Petitioners were asked to take the possession. They failed to start construction in stipulated time as per conditions of lease and Rule 36. The purpose of allotment and housing scheme framed by JDA is implementation and encouraging housing activities which is the need of time and national requirement and JDA realize extension fee penalty to prevent the profiteering by transfer on later date on enhanced rates. There is no illegality in realization of the ground rent, extension fee or the transfer fee. 11.
The purpose of allotment and housing scheme framed by JDA is implementation and encouraging housing activities which is the need of time and national requirement and JDA realize extension fee penalty to prevent the profiteering by transfer on later date on enhanced rates. There is no illegality in realization of the ground rent, extension fee or the transfer fee. 11. The first submission of Shri Ravish Agrawal, learned Senior Counsel for the petitioners, that the "premium" is a "price" paid by the petitioners to JDA is acceptable in terms of the lease deed and Rules 6 and 7 of the Rules. Rule 6 and 7 are quoted below :- "6. (1) In the case of disposal of land by direct negotiations the Authority land shall be disposed off at a premium fixed by the Authority in accordance with the general or special sanction given by the State Government to the scale of premium to be fixed and all the Authority land transferred in accordance therewith, shall be liable to ground rent of two percent of the premium. (2) Where it is proposed to dispose of any Authority land by negotiation, due publicity of scale of plots shall be given in at least two newspapers of which one shall be a local Hindi Paper and in any other newspaper that has wide circulation in the State and by pasting notices in prominent places like offices of the Town and Country Development Authority, Municipal Corporation, Municipal Council, Commissioner, Collector and Tahsildar concerned. (3) Offers to acquire in lease hold rights of a plot of which premium has been fixed shall be accompanied with an amount not less than 1/5th of the premium of plot as earnest money. The acceptance of the earnest money shall not be deemed to impose any obligation on the Authority to grant a lease of plot to the person making the deposit. If the offer is accepted, a communication to that effect shall be given to the purchaser when the grant of lease is sanctioned by the Chairman. (4) If more than one person offer to take on lease the same plot the allotment shall be made by the Chairman after consideration of the circumstances and merits of each case and the decision of the Chairman shall be final.
(4) If more than one person offer to take on lease the same plot the allotment shall be made by the Chairman after consideration of the circumstances and merits of each case and the decision of the Chairman shall be final. (5) If the offer to acquire a plot in lease hold rights is accepted by the Chairman in the case of Authority plots or by Government in the case of Government or Nazul the balance of premium shall be deposited with Authority within 30 days of the communication of the acceptance of the offer, except in the cases where payment of the balance of the premium is agreed to be made in installments as prescribed by any general or special order. In the latter case, the lessee shall pay interest at 7 per cent annum on the outstanding balance of the premium calculated from the date on which it fell due till the full payment is made, but the Authority or Government may in its discretion change such rate of interest as it may deem fit. (6) The annual instalment of the premium in such case shall be payable together with the interest due on the date prescribed for the payment of annual ground rent. (7) When the payment of premium is accepted in installments as provided in sub-rule (5) the plot shall be mortgaged by the lessee with the Authority or Government as the case may be. (8) Along with the balance of the premium to be deposited in accordance with sub-rule (5) the lessee shall also deposit the sum of the stamp duty, registration charges and cost of map and shall make good the deficiency, if any, at the time of registration. 7. For determining the premium to be fixed for the purpose of rule 6 above the Authority shall auction a few plots of each category in a layout and determine the premium to be fixed for each category of plot in the layout on the basis thereof and obtain the sanction of the State Government to the premium so fixed." The decision of the Apex Court in Commissioner of Income Tax (supra) in which the provision of section 105 of T.P. Act is considered by Their Lordships supports the submission raised by the learned Counsel.
The Apex Court held that :- "Under section 105 of the Transfer of Property Act, a lease of immovable property is a transfer of a right to enjoy the 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. The transferor is called the lessor, the transferee is called the lessee, the price is called the premium and the money, share, service or other thing to be so rendered is called the rent. The section, therefore, brings out the distinction between a price paid for a transfer of a right to enjoy the property and the rent to be paid periodically to the lessor. When the interest of the lessor is parted with for a price, the price paid is premium or salami. But the periodical payment made for the continuous enjoyment of the benefits under the lease are in the nature of rent. The former is a capital income and the latter a revenue receipt. There may be circumstances where the parties may camouflage the real nature of the transaction by using clever phraseology. In some cases, the so-called premium is in fact advance rent and in others rent is deferred price. It is not the form but the substance of the transaction that matters. The nomenclature used may not be decisive or conclusive but it helps the Court, having regard to the other circumstances, to ascertain the intention of the parties." However, matter does not rest at that. The question for consideration is what meaning is to given to the words "value of the plot" in Rule 37 of the Rules, whether it is in reference to the present value or to the value which was paid when JDA has granted the lease. It is necessary to construe Rule 37. It read as under :- "37. Unless sanction is obtained from the Authority or before a house as approved by the Authority is constructed on the plot, no purchaser who has purchased a plot from the Authority shall dispose of it by sale, mortgage, gift or otherwise to another person.
It is necessary to construe Rule 37. It read as under :- "37. Unless sanction is obtained from the Authority or before a house as approved by the Authority is constructed on the plot, no purchaser who has purchased a plot from the Authority shall dispose of it by sale, mortgage, gift or otherwise to another person. Sanction for the transfer of a plot on which a house has not been constructed shall not be given unless a transfer fee equal to 10 percent of the value of the plot is paid to the Authority. The transfer shall be bound by this rule and this clause shall also apply to such transfer in case he desires retransfer of the plot. Transfer fee will not be taken where transfer is desired in the course of natural devolution of heirship." The rules creates and embargo on transfer by sale, mortgage, gift or otherwise unless sanction of Authority is obtained and such sanction for transfer of plot on which house has not been constructed shall not be given unless transfer fee equal to 10% of value of plot is paid to the Authority. Bare reading of Rule 37 makes it clear that the present consideration/value which is made basis of payment of transfer fee10% of transfer fee on consideration which transfer is proposed to be made for which sanction is applied to the Authority. Rule 37 has no reference to the premium of lease. The State Government in its wisdom in exercise of the legislative power has used the words "transfer fee" that has reference to transfer by sale, mortgage, gift or otherwise on which date the value of plot is the relevant consideration. Thus, in my opinion the respondent JDA has acted within parameters of Rule 37 while passing the resolution dated 31-10-1986 with respect to charging transfer fee on the present value on which the transfer is proposed to be made. 12. Division Bench of this Court in Rajkumar Acharya (supra) in order dated 1-4-1987 held that :- "Jabalpur Development Authority has been constituted under section 38 of M. P. Nagar Tatha Gram Nivesh Adhiniyam, 1973. Under section 58 of the Adhiniyam, disposal of land, buildings and other development work will be subject to such rules as may be made by the State Government in this behalf and the regulations made by the Development Authority.
Under section 58 of the Adhiniyam, disposal of land, buildings and other development work will be subject to such rules as may be made by the State Government in this behalf and the regulations made by the Development Authority. By exercising powers under section 85 read with section 58 the State Government framed M. P. Nagar Tatha Gram Nivesh Vikasit Bhoomiyo, Griho, Bhavano Tatha Anya Sanrachnao Ka Vyayan Niyam, 1975. Rule 36 imposes an obligation on the lessee to commence construction of the building in accordance with the plan approved by the Development Authority within a period of two years with an extended period of one year. Under this rule, a right is reserved in the Development Authority to re-enter on the plot if the lessee fails to commence construction within 2 years. Under Rule 37, no transfer of a leased plot can be effected without the sanction of the Development Authority and after paying 10% of the value of the plot as transfer fee. Under section 86 the Development Authority has been empowered to make regulations including procedure for disposal of developed lands and such other matters as may be necessary. It was the experience of the Development Authority that inspite of leases, the lessees failed to make constructions and there was a tendency to make profit by later on selling the plot. Despite complete development in Scheme No. 5, a very few constructions were made, thereby frustrating the intention with which the schemes were framed to encourage persons to construct houses so that relief may be obtained from acute shortage of accommodation. After reviewing overall progress of the scheme, the Development Authority passed resolution that transfer of leased plot will be given subject to (a) payment of 10% of present value of the plot as transfer fee, (b) payment of 5% as penalty after a period of 2 years and (c) payment of one percent of the present value of the plot after the period of 3 years as extension fee. Under clause 2 of the lease deed, the lessee is bound to pay interest at the rate of 12% per annum on the arrears of ground rent if not paid on the due date.
Under clause 2 of the lease deed, the lessee is bound to pay interest at the rate of 12% per annum on the arrears of ground rent if not paid on the due date. Under rule 49, the lessee is bound by the terms and conditions of the lease deed which is in the standard form and the plot in question was transferred in favour of the petitioner No. 1 with the prevalent policy of the Development Authority. Under Rule 37, the transfer fee is equal to 10% of the present value of the plot, which means the present market value of the plot and not the consideration of the lease deed as contended by the petitioners. Lease not being a sale, consideration of the lease deed i.e. premium cannot be the present market value and so the petitioners are not correct in saying that 10% of the premium of Rs. 2400/- of the lease deed i.e. Rs. 240/- should be charged as transfer fee. The petitioners are bound to pay 10% of the present market value of the plot which has been determined to be Rs. 30,000/- which is not disputed i.e. Rs. 3,000/-, penalty equal to 5% that is Rs. 1,500/- for not making the construction within 2 years and extension fee of 1% for not making construction for another year Rs. 375/- i.e. Rs. 4,875/- is payable by the petitioners before sanction can be given for the transfer. The petitioner No. 1 is also liable to pay arrears of ground rent amounting to Rs. 1728/- together with interest of Rs. 388.80. So on payment of Rs. 6,991.80 the petitioner No. 1 can get the plot transferred in the name of petitioner No. 2." In my opinion, the decision of Division Bench of this Court cannot be said to be in contravention to the decision cited by the learned Counsel for the petitioners in Commissioner of Income Tax (supra) and British India General Insurance Co. Ltd. vs. Captain Itwar Singh (supra). There is no question of adding the word in the rules. Rule has to be given the plane meaning. In my opinion, there is no ambiguity in the rule and interpretation made by the Division Bench is not in derogation to law laid-down by the Apex Court in aforesaid decision.
Ltd. vs. Captain Itwar Singh (supra). There is no question of adding the word in the rules. Rule has to be given the plane meaning. In my opinion, there is no ambiguity in the rule and interpretation made by the Division Bench is not in derogation to law laid-down by the Apex Court in aforesaid decision. The decision of the Division Bench is based on sound reasonings and no case is made out to refer this matter to larger Bench on the ground urged that Division Bench has failed to consider Rule 37 in proper manner. Independent of said decision I am in agreement with the opinion expressed. Even otherwise, single Bench is bound by the decision of the Division Bench. 13. The second submission raised by the learned Counsel for the petitioners is that possession has not been handed over as such it is not open to the JDA to realize the extension fee and ground rent. It is clear that petitioners have failed to raise the construction within the stipulated time provided in Rule 36. Rule 36 of the Rules is quoted below :- "36. The purchaser shall commence construction of the building in accordance with the plan approved by the Authority within a period of two years provided that the Authority may for sufficient reasons estend the time where, owners submit application for extension assigning cogent reasons for extension. The extension period will however be limited to one year only." Rule 38 gives the right to re-enter to the Authority in case construction is not commenced within the period specified in Rule 36. Rule 38 is quoted below :- "38. If the owner of a plot fails to commence the construction within the period specified in rule 36 the Authority may after giving reasonable notice of its intention so to do re-enter upon the plot. If the Authority re-enters from the plot, it shall pay to owner of the plot an amount equal to the price for which the plot was sold by the Authority minus 20 percent thereof." Rule 40 makes it clear that once a lessee is informed to take over the possession of the plot, his liability commences to pay all the rates and taxes which are leviable on the owner or lessee on the date. It is irrespective of the fact that whether possession of the plot has been taken or not.
It is irrespective of the fact that whether possession of the plot has been taken or not. Rule 40 for ready reference is quoted below :- "40. The lessee may take possession of the plot on the date fixed or notified to him to taking over possession of the plot and the lease of the plot shall commence from the date irrespective of the fact whatever, possession of the plot has been taken or not and the lessee shall pay all rates and taxes where leviable on the owner or the lessee from the date." The facts in M.P. No. 2105/1990 indicates that petitioners have themselves come up with the plea that the lease deed was sent in the year 1973 but father of the petitioners could not get the lease deed executed as petitioners' father did not get the documents or lost them somewhere. Father of the petitioners had submitted an affidavit that he had lost the earlier documents, On 2-9-1983, Date was notified to take possession as per the return filed by JDA. That is enough to impose liability to pay the rates and taxes payable by owner or lessee to the JDA. 14. In M. P. No. 1311/1990 lease deed has been executed in favour of the petitioner and lease deed is subject to the rules. Petitioner also had failed to commence the construction. He was asked to deposit fee for extension of time to commence construction. JDA stand is that possession of the plot was given to the petitioner and he was bound to raise construction within 2 years from the date of possession. Though it was right available to Authority under Rule 38 of the rules to make re-entry on failure to start construction. Thus, the submission raised by learned Counsel for the petitioners that they are not liable to pay the ground rent and extension fee is not tenable. 15. There is another ground that resolution empowering JDA to realize 1% of extension fee beyond the period of 3 years is not authorised by the rules. As already mentioned above, rule 36 read with rule 38 authorize Authority to re-enter and rules aim at starting the activities for construction of houses for which land is transferred by development Authority and to advance the purpose. JDA has exercised the power of realisation of extension fee.
As already mentioned above, rule 36 read with rule 38 authorize Authority to re-enter and rules aim at starting the activities for construction of houses for which land is transferred by development Authority and to advance the purpose. JDA has exercised the power of realisation of extension fee. It is not the case of the petitioners that only right of re-entry as per Rule 37 should have been exercised by the JDA, hence that aspect is not being gone into. 16. In M. P. No. 1311/1990 the main ground is that the imposition of transfer fee, time extension fee and ground rent is unauthorized as the petitioner was the owner of the land. Land of petitioner was acquired and released to the petitioner in lieu of compensation in terms of agreement (P-1). As such petitioner cannot be treated to be a lessee. There was no option open except to get lease deed executed which is an outcome of act of superior bargaining of JDA and is a linconsionable bargain. A close scrutiny of agreement (P-1) indicates that this agreement was entered into on 6th July, 1977 between Jabalpur Improvement Trust and the petitioner and others in order to avoid the delay in settling the dispute as the Trust was obliged to pay the compensation to the claimant in accordance with the award under Town Improvement Trust Act, 1960. It is provided in Clause 3 of the agreement that in view of foregoing right of getting compensation by the claimants and that on taking the responsibility of the development by the Trust 90,911 Sq.Ft. of land acquired as shown green in the map shall remain the property of the Trust free from all encumbrances while 29,750 Sq.Ft. land has developed plots along with existing building thereon, shown in red shall be released to the claimants without any premium in the names of the family members. Clause 3(iv) provides that the said 29,750 Sq.Ft. land shall be demarcated and developed by the Trust Officials as per their program and will be "deemed" to be "approved" "layout" of the Trust.
Clause 3(iv) provides that the said 29,750 Sq.Ft. land shall be demarcated and developed by the Trust Officials as per their program and will be "deemed" to be "approved" "layout" of the Trust. The claimants will have no right to change the size of plots allotted by the Trust and they also agreed to remove such portion of the existing buildings which come in conflict with the layout in the event of repairs, additions, alteration or reconstruction of the building on these plots to maintain the prescribed set back a per "building regulations" of the Trust. As per Clause 3(viii), it was agreed that the lease holders detailed in para 4 shall pay lease rent at the rate of 1/2% per annum on the value of the plots. The terms and conditions detailed in prescribed form of lease deed are acceptable to the claimants and their nominees. The "lease deed" was executed in which petitioner is a lessee. The transfer fee realization is detailed in clause 8 of the lease deed. This is in tune with rule 38 both provide that transfer fee of 10% equal to "present value" of the plot is to be paid to the Development Authority. The petitioner had entered into an agreement in lease deed providing for extension of time, transfer fee on present value of the plot and even otherwise the agreement (P-1) contemplates that petitioner has to be treated as lease holder which fact is mentioned in clause 3(viii) of agreement (P-1), petitioners are bound by the terms and conditions of lease deed and agreement in lieu of compensation, lease hold rights have been given to the petitioners. Nature of the possession of the petitioner as lessee does not change. They are given right of lessee only in lieu of compensation. They have accepted their status to be that of lease holder in lieu of payment of compensation, the fact that they were earlier owners and have not claimed the compensation in my opinion has no adverse effect on terms of agreement (P-1) in which only lease hold rights is transferred in lieu of compensation. 17. Thus, in my opinion, petitioner is bound by the provisions of lease deed rules and is to be treated as lessee of JDA.
17. Thus, in my opinion, petitioner is bound by the provisions of lease deed rules and is to be treated as lessee of JDA. Thus, the action cannot be impugned by the petitioner Jhumaklal on the ground that he was owner and land had been released to him in lieu of compensation and thus he could not be treated to be a lessee. Submission fails. 18. In case petitioners accept the offer made in the impugned demands and transfer the plots on same rates, it would be open to them to make the payment as per demand. That has to be considered by the JDA. 19. Resultantly, the Misc. Petitions are devoid of merits and dismissed. However, in the facts and circumstances of the case, no orders as to costs.