Court No. - 1 Case :- MISC. BENCH No. - 7419 of 2010 Petitioner :- Madhur Colonisers Pvt. Ltd.,Thru. Its Director, Respondent :- State Of U.P.,Thru. Secy.,Housing & Urban Planning & Others Petitioner Counsel :- Nandita Bharti Respondent Counsel :- C.S.C.,Mahesh Chandra Hon'ble Pradeep Kant,J.
Hon’ble Ritu Raj Awasthi,J.
Notice on behalf of respondent no.1 has been accepted by the
learned Chief Standing Counsel and on behalf of respondent nos. 2
and 3 notice has been accepted by Sri Mahesh Chandra.
Learned counsel for the petitioner Sri Prashant Chandra submits
that despite the order passed by this Court for determination of
betterment charges in accordance with the provisions of section 51 of
U.P. Awas Evam Vikas Parishad Adhiniyam, 1965, the impugned
order has been passed by the Housing Commissioner in pursuance of
the resolution passed by the Board reiterating that the determination
has been done in the year 2000 but again without the scheme being
even launched, what to say of being in advanced stage, as required in
section 51 of the aforesaid Act, even the possession of the land has yet
been taken..
Under the impugned order, only interim betterment charges
have been asked for, with the condition, that if any excess amount, on
determination being made, later on the same shall also be recovered,
submission is that in view of section 51 of the aforesaid Act, when it
appears to the Board that the scheme is sufficient advanced to enable
the amount of the betterment fee to be determined, the Board shall, by
resolution passed in this behalf, declare that for the purpose of
determining such fee, the execution of the scheme shall be deemed to
have been completed and shall thereupon give notice in writing to
every person on whom a notice has been served under section 51 or to
the successor-in-interest of such person, as the case may be, that the
Board proposes to assess the amount of betterment fee payable in
respect of such land. Section 50, gives the manner in which such
calculation is to be done.
The impugned order dated 24.06.2010 itself says that the
development work is yet to be undertaken and it does not say that any
development work has been done rather to the contrary the letter of
the Commissioner of the Division dated 30.10.2009 makes specific
recital that no development work has yet been started under ‘Jagrati
Vihar Scheme’ and that even possession has not been transferred till
date.
In support of his submission, the learned counsel for the
petitioner also placed reliance upon the order dated 27.04.2010 passed
in Civil Misc. Writ Petition No. 35372 of 1998 In re:- Dr. Umesh
Chandra Maheshwari vs Mathura/Vrindavan Development Authority
and another, at Allahabad.
It also could not be explained by the respondents under which
provision, any amount of betterment charges can be asked for as an
interim measure nor there is any provision which permits
determination of interim betterment charges.
We, under the circumstances, are prima-facie of the view that
the Housing Commissioner or the Board would have no authority to
either issue notice under section 51 of the aforesaid Act or to make
assessment of betterment charges unless the conditions specified
therein do exist stand fulfilled.
The learned counsel for the respondents prays for and is granted
three weeks time to file counter affidavit.
List this matter in the month of September, 2010.
Till then, the petitioner shall not be required to make payment
of the betterment charges, in pursuance of the impugned order dated
24.06.2010, contained in Annexure No.2 to the writ petition.
Order Date :- 4.8.2010
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