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1996 DIGILAW 678 (ALL)

RANGJI SAHKARI AVAS SAMITI LTD v. STATE OF U P

1996-05-24

D.P.MOHAPATRA, S.N.AGARWAL

body1996
D. P. MOHAPATRA, CJ. The core ques tion, which falls for determination in this case, is whether the Agra Development Authority (Development Authority for short) is competent to demand and realise external development charges and supervision charges from the petitioner Rangji Sahkari Avas Samiti Limited, Agra, in ad vance before any agreement is entered and before any development work is done by the Development Authority on the land in question ? Demand raised on certain other counts is not disputed and therefore not relevant for the purpose of the case. 2. In the writ petition, the petitioner has prayed, inter alia, to quash the order dated 11-11996 of Vice Chairman of the Development Authority (respondent No. 2) confirming the demand of Rs. 59,89,484 as external development charges and Rs. 4,08,000. 67 as supervision charges (An-nexure 7 ). The petitioner has also prayed for a i direction to the respondents to sanction the lay out plan submitted by it forthwith and to refund the sum of Rs. 5,00,000 paid to the Development Authority as external development charges. 3. The factual matrix of the case relevant for the determination and over which no dispute has been raised before us may be stated thus: 4. The petitioner society submitted a lay out plan to the Development Authority for its approval. Though the said plan was approved vide order dated 24-7-1991 no agreement has yet been entered into be tween the parties. No external development work has also been done by the Development Authority on the land of the petitioner. Initially the Development Authority had demanded a sum of Rs. 5,59,300 as external development charges and Rs. 3,69,138 as supervision charges from the petitioner. Subequently the amounts were revised of Rs. 59,89,484 on the former count and Rs. 4,08,000. 67 on the latter count. The petitioner challenged the demands in Writ Petition No. 3813 of 1993. Initially the Development Authority had demanded a sum of Rs. 5,59,300 as external development charges and Rs. 3,69,138 as supervision charges from the petitioner. Subequently the amounts were revised of Rs. 59,89,484 on the former count and Rs. 4,08,000. 67 on the latter count. The petitioner challenged the demands in Writ Petition No. 3813 of 1993. This Court by its judgment rendered on 13-9-1995 ordered, inter alia, that if the petitioner makes a representation in regard to external development charges and super vision charges, the same shall be decided by a speaking order in regard to approval of the plan, submitted by the petitioner consistent with the decision given on the repre sentation, within three weeks from the date of production of the certified copy of the order before him and until decision of such representation further recovery from the petitioner on the two counts will remain stayed. 5. On an application filed by the petitioner for modification of the said order (Civil Misc. Modification Application No. 51650 of 1995) this Court by order dated 24-11-1995 modified the order dated 13-9- 1995 to the extent that if a representation is made by the petitioner pursuant to the said order then the same will be disposed of by the Development Authority specifying the work done by it within two weeks from the date of production of a certified copy of the order along with the representation before the Development Authority. In pursuance of the judgment/orders passed by this Court, the Vice Chairman of the Development Authority passed the impugned order vide Annexure 7 holding, inter alia, that the Development Authority is competent to realise in advance the amounts in question towards external development charges and supervision charges. Hence the grievance of the petitioner. 6. The thrust of the submissions of Sri V. K. Singh, learned counsel for the petitioner, is that no power is vested in the Development Authority under the U. P. (Regulation of Building Operations) Act, 1958, U. P. (Regulation of Building Opera tions) Regulations, 1960 as also U. P. Urban Planning and Development Act, 1973 to levy/realise any amount as external develop ment charges or supervision charges even before agreement is entered into between the parties. Elucidating the point, Sri Singh submitted that while granting permis sion to develop the area as a colony it is open to the Development Authority to attach conditions requiring the applicant to under take developments in the area and in case the applicant fails to abide by the condi tions/stipulations in the agreement then ac tion may be taken against it in the manner prescribed in Section 33 of the U. P. Urban Planning and Development Act, 1973. He, however, did not dispute the position that if the Development Authority undertakes certain development work which the person responsible for carrying out the develop ment has failed to do, then it is entitled to realise the amount spent for such develop ment work. According to Sri Singh, before an agreement has been entered into be tween the parties and before any develop ment work has been done, the Development Authority is not entitled to demand external development charges or supervision char ges. He placed reliance on the decision of the Apex Court in the case of Ahemdabad Urban Development Authority v. Sharad Kumar Jayantikumar Pasawalla and others AIR 1992 S. C. 2038 and the decision of this Court in the case of Smt. Malti Kaul and another v. Allahabad Development Authority, Allahabad and another (1995) 2 L. B. E. C. 974. 7. Sri Ranjeet Saxena, learned counsel appearing for the Development Authority supporting the impugned order passed by the Vice Chairman of the Development Authority submitted that despite permis sion having been granted in its favour by the Development Authority the petitioner had neither undertaken any development work on the land nor made any construction on it as a result of which the area is likely to develop into slum. He placed reliance main ly on the provisions m Section 33 of the Urban Planning and Development Act, 1973 in support of his contention that the demand raised against the petitioner on the two counts was permissible under the Statute, and, therefore, should not be inter fered with. To our query whether there is any specific provision under the U. P. (Regula tion of Building Operations) Act and the Regulations framed under it or the U. P. Urban Planning and Development Act, authorising the levy/demand of the charges in question, Sri Saxena was not able to draw our attention to any such provision. To our query whether there is any specific provision under the U. P. (Regula tion of Building Operations) Act and the Regulations framed under it or the U. P. Urban Planning and Development Act, authorising the levy/demand of the charges in question, Sri Saxena was not able to draw our attention to any such provision. Section 33, on which he placed reliance, makes provision regarding power of the Develop ment Authority to provide amenity or carry out development at cost of owner in the event of default and to levy cess in certain cases. The section provides, inter alia, that if the authority, after holding a local inquiry or upon report from any of its officers or other information in its possession, is satis fied that any amenity in relation to any land in development area has not been provided in relation to that land which, in the opinion of the Authority, ought to have been or ought to be provided or that any develop ment of the land for which permission, ap proval or sanction had been obtained under this Act had not been carried out, it may, after affording the owner of the land or the person providing or responsible for provid ing the amenity a reasonable opportunity to show cause, by order require him to provide the amenity or carry out the development within such time as may be specified in the order. It is further provided in the said sec tion that if any amenity is not provided or any such development is not carried out within the time specified in the order, then the Authority may itself provide the amenity or carry out the development or have it provided or carried out through such agency as it deems fit; provided that before taking any action under sub-section (2), the Authority shall afford a reasonable oppor tunity to the owner of the land or to the person providing or responsible for provid ing the amenity to show cause as to why such action should not be taken. Sub-section (3) of this section makes provision that all ex penses incurred by the Authority or the agency employed by it in providing the amenity or carrying out the development together with interest at such rate as the State Government may by order fix from the date when a demand for the expenses is made until payment may be recovered by the Authority from the owner or the person providing or responsible for providing the amenity as arrears of land revenue etc. Similarly, Sub-section (4) of this Section makes provision entitling the Authority to realise the amounts spent and expenses in curred for carrying out development in the area which the owner has failed to carry out. Concededly, it was not disputed before us that no such procedure as prescribed in Sec tion 33 has been followed and no order levying the amount in question has been passed by the Authority. Indeed, as per statutory provisions no such action could have been taken since no development work has been undertaken by the Development Authority which the owner (petitioner) was legally bound to undertake, as has been done by the Development Authority. 8. The Supreme Court in Ahmedabad Urban Development Authority (supra) ruled that in a fiscal matter it will not be proper to hold that even in the absence of express provision, a delegated authority can impose tax or fee; such power of imposition of tax and/or fee by delegated authority must be very specific and there is no scope of implied authority for imposition of such tax or fee; delegated authority must act strictly within the parameters of the authority delegated to it under the Act and it will not be proper to bring the theory of implied intent or the concept of incidental ancillary power in the matter of exercise of fiscal power. The Court, referring to the decisions in Sri Jagannath Ramanuj Das v. State of Orissa AIR 1954 SC 400 , Hingir Rampur Coal Co. The Court, referring to the decisions in Sri Jagannath Ramanuj Das v. State of Orissa AIR 1954 SC 400 , Hingir Rampur Coal Co. Ltd. v. State of Orissa AIR 1961 SC 459 and Delhi Municipal Corporation v. Mohd Yasin, AIR 1983 SC 617 , observed that it has been consistently held that whenever there is compulsory exaction of any money, there should be specific provision for the same and there is no room for intendment; noth ing is to be read and nothing is to be implied and one should look fairly to the language used. 9. 9. In Smt. Malti Kaul and another (supra) this Court construing the provisions of Sections 14, 15, 20, 35 to 38, 39-A and 41 of the U. P. Urban Planning and Develop ment Act, 1973 held, inter alia, that Sections 14 and 15 of the Act, which provide for development of land with the permission of the Vice Chairman, do not provide for levy of development fee on those, who had ap plied for permission; only provisions, which deal with fee are Sections 20, 33, 35 and 39-A; but these sections do not provide for development fee; they provide for different kinds of levy; Section 20 lays down that the Authority shall have and maintain its own fund to which shall be credited all fees, tolls and charges, received by it under the Act; Section 33 empowers the Authority to pro vide amenity or carry out development at the cost of the owner of the land, in the event of his default and recover all expenses in curred by it in providing the amenity or carrying out the development together with interest; Section 35 empowers the Develop ment Authority to levy betterment charges as a consequence of any development scheme executed by it in any development area resulting in increase in value of any property in that area; the effect of this sec tion is that if the value of any property has gone up due to the development scheme of the Authority, it is entitled to share the increase in value of that property by levying betterment charges in respect of the in crease in value of the property resulting from the execution of the development; but before imposing betterment charges the Authority has to make assessment order after giving reasonable opportunity of being heard to the person concerned and if thereafter these charges are not paid, the Authority is free to recover them as arrears of land revenue. 10. From the principles of law elucidated in the aforementioned cases the position is that in the absence of any clear and specific provision in the Act or the Regulations, the Development Authority is not competent to raise a demand or realise development charges and supervision char ges in advance as has been done in the present case. 10. From the principles of law elucidated in the aforementioned cases the position is that in the absence of any clear and specific provision in the Act or the Regulations, the Development Authority is not competent to raise a demand or realise development charges and supervision char ges in advance as has been done in the present case. It is relevant to point out here that as noted earlier no development work has been done/undertaken by the Develop ment Authority and, therefore, the question of demanding charges on that score is premature, regarding supervision charges, indisputably neither any work has been un dertaken by the owner of the land nor by the Development Authority. Therefore, a charge on this count is also premature. Fur ther, the procedure for raising such demand, assessment etc. as provided in the statute, has not been followed. Consequently, the position that emerges is that the demand of external development charges and super vision charges raised by the respondent Development Authority against the petitioner society is to be quashed as invalid. 11. Accordingly, the writ petition suc ceeds and it is allowed. The order dated 11-1-1996 (Annexure 7) of the Vice Chair man, Agra Development Authority, is quashed. No costs. Petition allowed. .