NISHA KUMARI vs STATE OF U. P. - 2014 Supreme(All) 926

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2014 Supreme(All) 926

ALLAHABAD HIGH COURT
BEFORE : ASHOK BHUSHAN AND MRS. RANJANA PANDYA, JJ.
Smt. NISHA KUMARI ....Petitioner
Versus
STATE OF U.P. AND OTHERS ....Respondents
(Civil Misc. Writ Petition Nos. 61669 of 2010, 2617 of 2007, 52472, 43264, 12341 of 2006, 175 of 2001, 48412, 48012 of 2007, 4468 of 2005, 28877, 619 of 2001, 42261 of 2008, 18050, 18051, 10606, 19750, 22046, 28060, 28062, 24156 of 2009, 13180, 12521 of 1998, 47529, 47825 of 2009, 23815 of 2001, 20500 of 1999, 21107 of 2000, 43822 of 1998, 3032, 7198, 14052, 15449, 14173, 14112, 14527, 4288 of 2003, 24530 of 2010, 18920, 6055, 11440, 25194, 13273, 6345 of 2003, 29968, 11689, 58743 of 2006, 53316, 66181, 66234, 28881, 28855 of 2008, 1422, 44948, 43014, 49564, 54530, 54448, 53940, 55631, 60897, 57100, 46784 of 2009, 246, 4601, 218, 4647, 4648 of 2010, 69326 of 2009, 471, 17096, 42527, 46816, 51918 of 2010, 78, 2843 of 2011, 24968 of 2003, 7747, 5718, 10937 of 2011, 73187, 71225, 73088 of 2010, 12713, 23556, 8915 of 2011, 9075 of 2003, 38513, 22070, 41694, 43084, 47589, 51892, 59658 of 2011, 52564 of 2002, 63622 of 2008, 64280, 64255, 13122, 73663, 70868, 75481 of 2011, 8311 of 2009, 732, 11237, 13246, 13479, 13689, 14623, 16395, 16995, 18207 of 2012, 5688 of 2002, 40675 of 2009, 17085, 493 of 2003, 31880, 53324, 54604, 55608, 61928, 63536, 63778 of 2012, 781, 1089 of 2013, 39252, 43327, 43579, 43581, 44238, 47782, 48834, 50376, 53185 of 2012, 12632, 14232, 14460, 14571, 17877, 20281, 25301, 25302, 26344, 26372, 26951, 27090, 29324, 29907, 32305 of 2013, 71226 of 2011, 36875 of 2013, 35454 of 2012, 37629, 36040, 42434, 44185 of 2013, 43078 of 2008, 9548 of 2009, 21245, 21246, 21631, 43776, 45906, 46744, 46843, 49606 of 2013, 421 of 2010, 17179, 17471, 61920, 62862 of 2009, 12804, 16791, 19382, 27512, 28522, 31212 of 2010, 50130 of 2011, 55204 of 2007, 3083, 3415, 3471, 7439, 15703, 15705, 15606 of 2013, 26001, 65770 of 2009, 13535 of 2010, 18577, 65051 of 2009, 34301, 41018, 32467, 35095, 35736 of 2003, 27594, 52863, 5187, 30946, 30947, 5190 of 2013, 44669 of 2011, 6389 of 2002, 1883 of 1998, 51404 and 30630 of 2006, decided on 23rd May, 2014)

Advocates:
Counsel :
R.K. Sharma, Ravi Kant, Lakshmi Kant Mishra, Ankur Goel, Inperson, P.C. Srivastava, Vivek Birla, Irshad Ali, B.D. Mandhyan, S. Mandhyan, A.C. Nigam, Haribans Singh, Rakesh Pandey, P.K. Singh, B.K. Tripathi, V.K. Shukla, Parmatma Rai, Rahul Chaturvedi, G.P. Singh, Umesh Chaturvedi, S.P. Saroj, Ved Mani Sharma, Shashi Nandan, M.M.D. Agrawal, Sanjeet Kumar Yadav, S.P. Singh Parmar, Rajendra Mishra, Kaushalendra Nath Singh, P.C. Shukla, B.P. Tripathi, Pradeep Upadhyay, Panaj Shukla and Sharique Ahmad for the Petitioner; C.S.C., Ajeet Kumar Singh, Amit Dubey, B.B. Paul, O.D. Malviya, P.K. Pandey, Q.H. Siddiqui, R.K. Pandey, Vivek Varma, N. Mishra, A.K. Misra, S.C., V.N. Srivastava, Ashok Jaiswal, Satish Chaturvadi, U.K. Uniyal, V.P. Awasthi, A.P. Srivastava, Dr. Abida Sayed, R.A., Ashok Mohiley, B.K. Ojha, R.M. Pandey and D.S. Chauhan for the Respondents.

Headnote:U.P. Urban Planning and Development Act, 1973—Sections 15(2-A), 55, 41, 2(ggg) and 2(e)—U.P. (Regulation of Building Operation) Act, 1958—Section 59(1)(c)—Development fee—Levy of—Power of Development Authorities—Rules are required to be framed by State Government under Section 55 as envisaged by Section 15(2-A)—However even without there being rules framed the development fee can be demanded by Development Authority as per directions issued under 1958 Act by virtue of Section 59 (1) (c)—When a person carries out any development or carries out any construction on a plot with regard to which there is no lay out plan approved and construction is on a sub-divided plot, the compounding fee can be charged under the compounding bye-laws 2009—Mere sub-division of a plot of land by submitting an application under Section 15 for seeking permission for carrying out development, without carrying out any development or making any construction is not covered within the definition of “development” prescribed under Section 2 (e)—Sub-division of a plot has not been declared an offence under 1973 Act—In view of Article 265 of Constitution, no fee or tax can be imposed except by an authority of law—Impugned demand notices as issued by various Development Authorities quashed—Directions issued. [Paras 34 to 102]

JUDGMENT

Hon’ble Ashok Bhushan, J.—By this bunch of writ petitions, the petitioners have challenged various fees imposed by the different development authorities constituted under the U.P. Urban Planning and Development Act, 1973 (hereinafter referred to as ‘1973 Act’) in the State of U.P. On an application filed by the petitioners seeking permission for carrying out development in the land/building operations, memo of demand has been issued by the Development Authorities imposing different fees/charges subject to which application seeking permission for carrying out development was to be granted. Aggrieved by the various fees and charges raised by different Development Authorities, the petitioners have come up in this Court by means of these writ petitions. Earlier also different fees and charges imposed by the Development Authorities were challenged by means of writ petitions in this Court, which writ petitions have been decided by this Court from time to time, details of which shall be noted hereinafter. Writ petition No. 23281 of 2001 Sabia Khan and others v. Allahabad Development Authority and others, was filed in this Court questioning the legality/validity of water charges/Malba charges/development charges, sub-division charges and open area charges. The writ petition was allowed by this Court by its judgment and order dated 1.7.2003. Against the order dated 1.7.2003, Allahabad Development Authority and others filed Special Leave Petition and the Apex Court vide its judgment and order dated 11.7.2006 in Civil Appeal No. 4351 of 2004 connected with other appeals, set aside the order of the High Court and matters were remitted to the High Court for consideration of the matter afresh. The judgment of the Apex Court is in Allahabad Development Authority v. Sabia Khan and others, (2006) 6 SCC 699. Some of the writ petitions in this bunch of cases are the writ petitions which have come up for hearing consequent to the order of the Apex Court dated 11.7.2006.

2. The writ petitions included in this bunch challenge the action of the Allahabad Development Authority, Agra Development Authority, Gorakhpur Development Authority, Moradabad Development Authority, Meerut Development Authority and Mathura Vrindavan Development Authority. The writ petitions relating to one Development Authority have been included in one group. For example in Group-A cases pertaining to Allahabad Development Authority have been included.

3. In writ petition No. 61669 of 2010, counter-affidavit, supplementary counter-affidavit have been filed by the Allahabad Development Authority. The Division Bench hearing the writ petition passed various orders directing the Allahabad Development Authority to give various details, in compliance of which affidavits have been filed. The State of U.P. has also filed detailed counter-affidavit in the writ petition. Rejoinder-affidavit has also been filed by the petitioners in the writ petition. The writ petition No. 61669 of 2010 is being treated as the leading writ petition. The facts of writ petition No. 61669 of 2010 Smt. Nisha Kumari v. State of U.P., are to be noted in detail. Facts of some other writ petitions in which learned Counsel appearing for the petitioners have pointed out some additional facts and raised certain additional arguments have also to be noted for appreciating all the issues which have arisen in this bunch of writ petitions. This bunch of writ petitions were earlier heard in the year 2011. Various orders have been passed directing the State Government and Development Authority to file affidavits. Adjournments were sought by the Allahabad Development Authority on several occasions due to which the writ petitions could not be earlier decided. From 13.5.2014 in this bunch of writ petitions hearing began. On 14.5.2014, Sri A.P. Paul, learned Counsel appearing for the Allahabad Development Authority made a request for postponing the hearing of the bunch of writ petitions on the ground that a writ petitio

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2014 Supreme(All) 926

Cases Referred (6)