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2011 DIGILAW 2886 (ALL)

HARJINDER SINGH v. STATE OF U. P.

2011-12-19

ARUN TANDON

body2011
JUDGMENT Hon’ble Arun Tandon, J.—Heard learned counsel for the parties. 2. No purpose would be served by keeping this writ petition pending and by calling for further affidavits specifically in view of the order proposed to be passed today by this Court. 3. Petitioner before this Court has raised certain constructions within the territorial jurisdiction of Muzaffarnagar Development Authority. These constructions, according to the Development Authority, were illegal and, therefore, proceedings were initiated under the U.P. Urban Planning and Development Act, 1973. The petitioner made an application for compounding. This compounding application was allowed and a demand of Rs. 22,16,640/- was raised. 4. According to the petitioner, the demand of the compounding fee to the extent indicated above was excessive. He was advised to file an appeal under Section 27(2) of U.P. Urban Planning and Development Act, 1973. The appeal was dismissed by the Commissioner, Saharanpur Division, Saharanpur who is the Chairman of the Development Authority vide order dated 25.8.2011 on the ground that an appeal under Section 27(2) of the Act is not maintainable against the demand of compounding fee. The petitioner thereafter approached the State Government under Section 41(3) of the Act. The State Government under the order impugned dated 12.12.2011 had dismissed the revision-petition on the ground that the same is not maintainable. 5. Learned counsel for the petitioner submits that although the appeal filed by the petitioner under Section 27(2) may not be strictly maintainable but the State Government is not justified in recording a finding that the revision-petition under Section 41(3) was not maintainable against the demand of excessing compounding fee. 6. It is contended that the language of Section 41(3) confers a power upon the State Government to satisfy itself either suo-moto or an application that the order passed by the Authority i.e. the Development Authority or its Chairman is legal and as per the statutory provisions and to issue such directions on application filed under Section 41(3) as the State Government may deem fit. It is contended that in view of the scope of Section 41(3), the order of the Development Authority raising an exorbitant demand of compounding fee, to the tune of Rs. 22,16,640/- could be examined by the State Government and appropriate directions could have been issued. It is contended that in view of the scope of Section 41(3), the order of the Development Authority raising an exorbitant demand of compounding fee, to the tune of Rs. 22,16,640/- could be examined by the State Government and appropriate directions could have been issued. The order passed by the Vice-Chairman of the Development Authority is to be treated to be an order of the Development Authority itself inasmuch as the Authority acts through its Vice-Chairman. 7. Learned Counsel for the Development Authority could not dispute the correctness of the contention raised nor the Standing Counsel could submit before the Court otherwise. 8. I have heard counsel for the parties and have examined the record. 9. It would be worthwhile to reproduce Section 41(3) of the Urban Planning and Development Act, 1973 which reads as follows: 41. Control by State Government.—(3) The State Government may, at any time, either on its own motion or on application made to it in this behalf, call for the records of any case disposed of or order passed by the [Authority, the Chairman or Vice-Chairman] for the purpose of satisfying itself as to the legality or propriety of any order passed or direction issued and may pass such order or issue such direction in relation thereto as it may think fit: Provided that the State Government shall not pass an order prejudicial to any person without affording such person a reasonable opportunity of being heard. From a simple reading of Section 41(3), it is apparently clear that a wide power has been conferred upon the State Government to act suo-moto or an application by a person and to call for the records for satisfying itself with regard to legality or propriety of any order passed or direction issued by the Development Authority or its Chairman. The State Government has been conferred a power to issue such directions in the matter under Section 41(3) as it may deem fit. 10. In the opinion of the Court, the power conferred upon the State Government under Section 41(3) is wide enough to entitle it to examine the propriety of the demand of Rs. 22,16,640/- as compounding fee on the plea raised by the present petitioner that it was exorbitant. 10. In the opinion of the Court, the power conferred upon the State Government under Section 41(3) is wide enough to entitle it to examine the propriety of the demand of Rs. 22,16,640/- as compounding fee on the plea raised by the present petitioner that it was exorbitant. It is for the State Government to satisfy itself whether in the fact of the case such demand of compounding fee is legal and proper or not and to issue such direction as it may deem fit. 11. Since the State Government has failed to exercise its powers vested in it under Section 41(3) of the Act 1973. The order impugned dated 12.12.2011 cannot legally be sustained. It is held that the State Government is not correct in holding that the revision-petition as filed against the order of the Vice-Chairman demanding the compounding fee, was not maintainable. The order is, therefore, set aside. The revision is restored to its original number. 12. The State Government is directed to consider the revision-petition on merits by means of a reasoned speaking order within four weeks from the date a certified copy of this order is filed before it. 13. The Court has been informed that the Development Authority has sealed the premises of the petitioner and has further notified the property for auction. It is in the interest of justice to restrain the Development Authority from doing so till the revision is decided by the State Government as aforesaid. Therefore, the Development Authority is directed to remove the seals from the premises immediately. The property shall not be auctioned till the mater is decided by the State Government. Parties will be at liberty to proceed in accordance with law in terms of the order to be passed by the State Government as indicated above. This order has been passed in the presence of the counsel for the State Government as well as learned counsel for the Development Authority. They are directed to communicate this order today to the respondents and no further complaints arise. Writ petition is disposed of ——————