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Allahabad High Court · body

2012 DIGILAW 2976 (ALL)

PRAKASH CHANDRA GOENKA v. STATE OF U. P.

2012-12-20

S.U.KHAN

body2012
Sibghat Ullah Khan, J. Heard learned counsel for the petitioners, learned standing counsel for State of U.P. and Commissioner respondents nos. 1 and 2 and learned counsel for respondent no.3 Kanpur Development Authority. The matter relates to the quantum of betterment/development charges. The three petitioners purchased land admeasuring 980 sq. Meter each ( total 2967.63 sq. Meter) through separate registered sale deeds dated 26.3.2002 from its previous owner Munshi Lal. Thereafter on 18.10.2002 petitioners deposited Rs.4 lacs as development/betterment charges leviable under section 35 of U.P. Urban Planning and Development Act 1973) as according to their own estimate this was the amount payable as such. Respondent no.3 Kanpur Development Authority ( K.D.A. in short) issued a notice to the petitioners on 24.7.2004 copy of which is Annexure-2 to the writ petition mentioning therein that the betterment charges were payable at the rate of Rs.680/- per sq. meter hence total amount payable as such by the petitioners was Rs.20,17,989/- and after deducting Rs.4 lacs already paid by the petitioners on 18.10.2012, they were required to deposit further amount of Rs.16,17,989/- as betterment charges. Petitioners were permitted to deposit the amount in six equal six monthly instalments of Rs.3,29,039/- each starting from 22.8.2004 and ending on 22.2.2007. The basis of determination of rate ( Rs.680/- per sq. meter) was not mentioned in the notice. Petitioners filed objections before K.D.A. on 31.7.2004 copy of which is Annexure-3 to the writ petition. Thereafter petitioners filed appeal against the demand notice on 25.8.2004 as provided under Section 27 of U.P. Urban Planning and Development Act 1973 ( in the notice Annexure-2 to the writ petition it had been mentioned that the map would be passed only after payment of the amount and in case of failure to pay the amount constructions would be demolished). In the appeal K.D.A. filed objections copy of which is Annexure-5 to the writ petition mentioning therein the basis of determination of the rate. Commissioner Kanpur Division, Kanpur in his capacity as Chairman, K.D.A. dismissed the appeal through judgment and order dated 13.3.2006 copy of which is Annexure-7 to the writ petition. Through this writ petition prayer for quashing the order of the Commissioner and demand notice dated 24.7.2004 has been made. Commissioner Kanpur Division, Kanpur in his capacity as Chairman, K.D.A. dismissed the appeal through judgment and order dated 13.3.2006 copy of which is Annexure-7 to the writ petition. Through this writ petition prayer for quashing the order of the Commissioner and demand notice dated 24.7.2004 has been made. That K.D.A. in its objection filed before the Commissioner ( Annexure-5) stated in para-2 sub para ( 2) that on 21.8.2002 when petitioners deposited Rs.4 lacs, betterment/development charges were payable at the rate of Rs.590/- per sq. meter hence total amount came to Rs.17,50,902/- and as per relevant provision the petitioners were required to deposit 1/4th of the same i.e. Rs.4,37,725/- however, they deposited only Rs.4 lac hence deposit was short by Rs.37,725/-. It was further stated that as the matter was decided by the K.D.A. on 17.7.2004 hence petitioners were required to pay the betterment/development charges at the rate prevalent at that time i.e. Rs.680/- per sq. meter. The learned Commissioner accepted the contention of the K.D.A. and dismissed the appeal. Learned counsel for the petitioners has argued that firstly the deposit was short by a negligible percentage ( hardly 8.5%) and secondly in case instead of waiting for about two years, the K.D.A. had promptly indicated the exact amount payable, the deficiency of Rs.37,725/- would have been made good then and there by the petitioners. Learned counsel for the K.D.A. argued that as the deposit was short hence petitioners were liable to pay the amount payable in July, 2004. I fully agree with the contentions of learned counsel for the petitioners. In my opinion by maximum some penalty could be imposed upon the petitioners on the ground that deposit was short by about 8.5% which is quantified at Rs.5000/-. Under interim order granted in this wirt petition petitioners have already deposited Rs.6 lacs ( in addition to Rs.4 lacs deposited on 21.8.2002). In this manner total Rs.10 lacs stand paid out of Rs.17,50,902/-. Petitioners are also at fault in the sense that after receiving the notice atleast they should have deposited the amount of Rs.13,50,902/- which according to them was payable. Accordingly, it is directed that the balance amount of Rs.7,50,902/- and Rs.5000/- as penalty ( supra) shall be deposited by the petitioners within three months from today. Petitioners are also at fault in the sense that after receiving the notice atleast they should have deposited the amount of Rs.13,50,902/- which according to them was payable. Accordingly, it is directed that the balance amount of Rs.7,50,902/- and Rs.5000/- as penalty ( supra) shall be deposited by the petitioners within three months from today. On the total payable amount ( Rs.13,55,902/-) interest at the rate of 6% per annum shall be payable since 18.10.2002 until the date on which Rs.6 lacs were deposited under interim order passed by this court on 24.5.2006. Thereafter interest at the rate of 6% per annum shall be payable on remaining amount of Rs.7,55,902/-. If deposit is not made within three months then since after three months till actual payment interest at the rate of 2% per month shall be payable since after three months till actual payment/deposit/realisation of this amount of Rs.7,55,902/-. Impugned order and the notice are set aside and substituted by the above direction. Writ petition is accordingly allowed.