1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR WRIT PETITION NO.183/2011 MITHIL HARISHCHANDRA KOLTE ..VS.. NAGPUR IMPROVEMENT TRUST & ANOR - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri S.M. Bhangde, adv for petitioner Shri S.K. Mishra, adv for R-1 & 2 CORAM : SMT. VASANTI A. NAIK & P.B. VARALE, JJ. DATE : AUGUST, 01 2011. By this petition, the petitioner seeks a writ, order or direction to quash the demand note issued by the Nagpur Improvement Trust on 17.2.210 and communication dated 13.7.2010 issued by the respondents claiming an amount of Rs.40,950/- in view of condition no.6 of the communication dated 24.12.2003. The father of the petitioner had purchased the plots in the year 1986. The father of the petitioner died in the year 1996 and after his death the petitioner, his mother and his sister became the owners thereof. In the year 2001 the Gunthewari Act came into force and since the plots fell within the purview of the said Act, the petitioner, his mother and his sister sought for the regularisation of the plots. In pursuance of the said application a communication was issued by the Nagpur Improvement Trust on 24.12.2003 stating therein that the plots could be regularised in the name of the three persons subject to payment of Rs.53,440/- 2 and subject to the other conditions stated in the communication. Condition no.6 in the communication dated 24.12.2003 clearly stipulated that the Nagpur Improvement Trust would charge @ Rs.16/- per square foot if the plots are later on transferred except by inheritance of the property. It is the case of the petitioner that after the plots were regularised in the name of the petitioner, his mother and his sister, the mother and the sister of the petitioner executed relinquishment deeds in favour of the petitioner. These relinquishment deeds were executed without any consideration and the share of the mother and sister in the said plot was relinquished in favour of the petitioner. The petitioner sought for the mutation of his name on the plots which were owned by the mother and the sister of the petitioner. After the petitioner sought the mutation of his name on the plots owned by his mother and his sister , the Nagpur Improvement Trust demanded an amount of Rs.40,000/- and odd from the petitioner in view of clause 6 of the terms and conditions which were incorporated in the communication issued by the Nagpur Improvement Trust, dated 24.12.2003 and in pursuance of which the plots were regularised in the name of the petitioner, his mother and sister. The petitioner has challenged this demand note issued by the Nagpur Improvement Trust on 17.2.2010. 3 It is the case of the petitioner that the relinquishment of the property by the mother and sister, in favour of the petitioner did not amount to a transfer as the relinquishment deeds were executed by his mother and his sister without any consideration. The learned counsel for the petitioner submitted that in such a case the Nagpur Improvement Trust was not justified in claiming the amount @ 16/- per square foot on the ground that there was transfer of the property from the mother and sister of the petitioner, to the petitioner. The learned counsel for the petitioner relied on the judgment reported in 2001 (2) Bombay Cases Reporter Page 629 to substantiate his submission that the transfer of the property by the mother and sister in favour of the petitioner in this case is not a transfer in the eye of law. Shri Mishra, the learned counsel for the Nagpur Improvement Trust on the other hand relied on condition no.6 in the communication dated 24.12.2003 to canvass that the petitioner had accepted the said condition before the plots were regularised in favour of his mother and his sister. The learned counsel for the Trust submitted that only when the property changes hands by inheritance the parties inheriting the property are not liable to pay the amount @ Rs.16/- per square foot and if the property changes hand by any other mode or means the parties are liable to pay charges @ Rs.16/- per square foot for the transfer. The 4 learned counsel for the Nagpur Improvement Trust submitted that having once accepted the aforesaid condition, before regularisation of the plots in the year 2003, the petitioner cannot now turn round and say that he is not liable to pay the additional charges though the property changed hands. On hearing the learned counsel for the parties and on perusal of the document dated 24.12.2003 and specially condition no.6 mentioned therein it appears that the Nagpur Improvement Trust was justified in seeking the charges @ Rs.16/- per square foot when the petitioner sought the mutation of his name on the plots which were regularised in the name of his mother and his sister. Condition no.6 in the communication dated 24.12.2003 clearly stipulates that when the property changes hands from one person to another except by way of inheritance the parties are liable to pay the additional charges @ Rs.16/- per square foot. The submission made on behalf of the petitioner that there was no transfer of the property from the sister and mother of the petitioner to the petitioner, is liable to be rejected. The judgment reported in 2001(2) Bombay C.R. Page 629 and relied on by the counsel for the petitioner cannot be made applicable to the facts of this case as in that case this court, on the facts of the case, found that the transaction in question did not assume the character of a conveyance. In 5 the instant case we find that clause 6 of the communication dated 24.12.2003 speaks of transfer of the property except by a transfer which is effected by inheritance. It is clear from clause 6 of the communication dated 24.12.2003 that the word 'transfer' is used also for a transfer which is effected by inheritance of the property and is not a 'transfer' within the meaning of the term in the provisions of the Transfer of Property Act. Hence, since the property was not inherited by the petitioner from his mother and sister and since the same came to the petitioner in view of the relinquishment deed executed by his mother and sister, the Nagpur Improvement Trust was justified in seeking charges @ Rs.16/- per square foot from the petitioner when the petitioner sought the mutation entries in his favour. In the result, the writ petition fails and is dismissed with no order as to costs. JUDGE JUDGE SMP