Mutation of Entries in revenue records - partition deed is not included in Section 120 of the Act, respondent No.2 has no power or authority to demand any duty or surcharge.=Clause (b) of Section 120 of the Act, which is relevant in this context, reads as under: -- 120. Method of assessments of duty on transfers of property:- The duty on transfers of property shall be levied: (a) (b) at such rate as may be fixed by the Government, not exceeding five per centum on the amount specified below against such instrument; Description of instrument Amount on which duty shall be levied (i) Sale of immovable property (ii) Exchange of immovable property (iii) Gift of immovable property (iv) Mortgage with possession of immovable property (v) Lease for a term exceeding one hundred years or in perpetuity of immovable property The amount or value of the consideration for the sale, as set- forth in the instrument or the market value of the property which is the subject matter of the sale whichever is higher. The market value of the property of greater value, which is the subject matter of exchange. The market value of the property which is the subject matter of the gift. The amount secured by the mortgage, as set forth in the instrument. An amount equal to one-sixth of the whole amount or value of the rents which would be paid or delivered in respect of the first fifty years of the lease as set forth in the instrument. A careful perusal of the above reproduced provision would reveal that as many as five kinds of documents have been envisaged for collection of duty/surcharge. These documents do not include partition deeds. The learned standing counsel for the Municipalities (TS) appearing for respondent No.2 has fairly conceded that no provision other than Section 120 of the Act deals with levy of duty/surcharge on the instruments pertaining to immovable property. As the partition deed is not included in Section 120 of the Act, respondent No.2 has no power or authority to demand any duty or surcharge. Therefore, it follows that the impugned notice, by which the petitioners applications were returned for nonpayment of fee of Rs.15,48,078/- is liable to be declared as illegal and arbitrary and accordingly, it is declared as such. The petitioners are permitted to re-submit their applications for mutation. On receipt thereof, respondent No.2 shall consider the same, without insisting on payment of any fee, take an appropriate decision, in accordance with law, and communicate the same to the petitioners, within a period of one month from the date of receipt of a copy of this order.

THE HON'BLE SRI JUSTICE C.V.NAGARJUNA REDDY          

WRIT PETITION No.38121 of 2015  

19-01-2016

Shyamsundar Agarwal and others  .. Petitioners    

The State of Telangana,  represented by its Principal Secretary, Municipal
Administration and Urban Development Department, Hyderabad and another ..
Respondent s

Counsel for the petitioners: Mr.P.Lakshma Reddy

Counsel for respondent No.1: Assistant Government Pleader for
                              Municipal Administration and Urban Development
(TS)
Counsel for respondent No.2: --

<Gist :

>Head Note:

? Cases referred:


THE HONBLE SRI JUSTICE C.V.NAGARJUNA REDDY          
               
WRIT PETITION No.38121 of 2015  

19.01.2016


The Court made the following:

ORDER:                                                
        This writ petition is filed for a mandamus to set aside notice in File
No.A1/728/2015, dated 22.09.2015, of respondent No.2.

        The petitioners pleaded that petitioner No.1 and his brothers and
sisters along with their parents have acquired various properties with the
joint family funds in the name of different members of the joint family.
That on 08.06.1995, the father of petitioner No.1 died intestate and on
09.10.2011, his mother also died intestate, that on 11.05.2015, the
petitioners along with other family members have partitioned the joint family
properties under a registered partition deed, bearing document No.5590 of
2015, and that on 15.07.2015, the petitioners have made applications to
respondent No.2 seeking mutation of their names in the property register in
respect of the properties, which have fallen to their respective shares. That
under the impugned notice, dated 22.09.2015, the Commissioner of
respondent No.2 has returned the said applications by informing that if the
petitioners pay fee in respect of each of the items of the properties, for
which mutation is sought, totalling Rs.15,49,078/-, their request will be
reconsidered.  Feeling aggrieved by this action on the part of respondent
No.2, the petitioners filed this writ petition.

        Mr.P.Lakshma Reddy, learned counsel for the petitioners, submitted
that none of the provisions of the Andhra Pradesh Municipalities Act, 1965
(for short the Act), authorizes respondent No.2 to collect any fee for
mutation of the names of the owners of the properties based on the deed of
partition and that therefore, the action of respondent No.2 in returning the
applications of the petitioners for nonpayment of fee and demanding the
aforesaid sum as purported fee for mutation is wholly illegal and arbitrary.

      This Court has adjourned the case on 24.11.2015 for filing
counter-affidavit.  Today, at the hearing, Mr.N.Praveen Kumar, learned
standing counsel for the Municipalities (TS) appearing for respondent No.2,
submitted that as respondent No.2 has not furnished instructions,
counter-affidavit is not prepared.

        I have carefully examined the case with reference to the pleadings
and the provisions of the Act.  The relevant provision, which deals with levy
of duty by way of surcharge on transfer of property, is Section 120 of the
Act.  The said provision envisages description of instrument and the amount
on which duty shall be levied.  Clause (b) of Section 120 of the Act, which is
relevant in this context, reads as under: --
        120. Method of assessments of duty on transfers of
property:- The duty on transfers of property shall be levied:
       (a) 
       (b) at such rate as may be fixed by the Government, not
exceeding five per centum on the amount specified below against
such instrument;
Description of instrument
Amount on which duty shall be 
levied
(i) Sale of immovable
property





(ii) Exchange of immovable
property


(iii) Gift of immovable
property


(iv) Mortgage with
possession of immovable 
property


(v) Lease for a term
exceeding one hundred 
years or in perpetuity of
immovable property 
The amount or value of the
consideration for the sale, as set-
forth in the instrument or the
market value of the property
which is the subject matter of the
sale whichever is higher.

The market value of the property
of greater value, which is the
subject matter of exchange.

The market value of the property
which is the subject matter of the
gift.

The amount secured by the 
mortgage, as set forth in the
instrument.

An amount equal to one-sixth of
the whole amount or value of the
rents which would be paid or
delivered in respect of the first
fifty years of the lease as set forth
in the instrument.
        A careful perusal of the above reproduced provision would reveal that
as many as five kinds of documents have been envisaged for collection of
duty/surcharge.  These documents do not include partition deeds.
The learned standing counsel for the Municipalities (TS) appearing for
respondent No.2 has fairly conceded that no provision other than Section
120 of the Act deals with levy of duty/surcharge on the instruments
pertaining to immovable property.  As the partition deed is not included in
Section 120 of the Act, respondent No.2 has no power or authority to
demand any duty or surcharge.  Therefore, it follows that the impugned
notice, by which the petitioners applications were returned for nonpayment
of fee of Rs.15,48,078/- is liable to be declared as illegal and arbitrary and
accordingly, it is declared as such.  The petitioners are permitted to
re-submit their applications for mutation.  On receipt thereof, respondent
No.2 shall consider the same, without insisting on payment of any fee, take
an appropriate decision, in accordance with law, and communicate the same 
to the petitioners, within a period of one month from the date of receipt of a
copy of this order.

        The Writ Petition is accordingly allowed.

        As a sequel to allowing the writ petition, W.P.M.P.No.49065 of 2015
filed by the petitioners for interim relief shall stand disposed of as
infructuous.
_____________________________    
C.V.NAGARJUNA REDDY, J    
19th January, 2016