AFR
Court No.3
Civil Misc. Writ Petition No. 48415 of 2007
Pradeep Kumar Garg ........... Petitioner
Versus
State of U.P. and others ............ Respondents
Present:
(Hon’ble Mr. Justice Amitava Lala and Hon’ble Mr. Justice S.N.H.Zaidi)
Appearance:
Counsel for the petitioner : Sri Anoop Trivedi
Counsel for the respondents : Sri Ved Byas Misra
and Standing Counsel
Amitava Lala,J.: This writ petition has been filed praying inter alia :
“(i) issue an appropriate writ, order or direction
quashing the order dt. 26.6.2007 passed by the
Assistant Engineer, GDA to the extent the same has
required the petitioners to deposit a sum of Rs.
54,57,946/0 towards the external development charge,
Rs. 38,312/- towards the inspection charges and bank
guarantee of Rs. 18,50,603/- towards the internal
development charges.
(ii) issue an appropriate writ, order or direction
commanding the respondent development authority to
charge the external development fee in strict
consonance with the Government order dt. 29.12.2005
i.e. at the rate of Rs. 400/- per squire meter.
(iii) issue any other and further, writ order a direction
which this Hon’ble Court may issue fit and proper in this
circumstances of the cases.
(iv) Award the cost of the petition to the petitioner.”
Mr. Anoop Trivedi, learned Counsel appearing for the petitioner, has
contended before us that the petitioner’s case is that the concerned Chairman or
Vice-Chairman of the Ghaziabad Development Authority (hereinafter called as the
GDA) has no jurisdiction to impose or levy the development charges in the manner
as it has been done. Secondly, there can not be any distinction between internal
and external charges. Thirdly, the amount of charges are exorbitant in nature.
Lastly, the principle of quid pro quo is applicable in this case. For an example, he
has shown before us a tariff schedule made by the State Government for the city of
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Lucknow. However, Mr. Ved Byas Misra joined the issue by saying that the
exceptional clause does not speak that the same is made for the entire State
based on tariff data of Lucknow city. He says that as per the exceptional clause
other development authority can charge differently.
In effect, the plinth of argument of Mr. Trivedi is based on the Constitution
Bench Judgment of the Supreme Court reported in (2006) 7 SCC 241 (Jindal
Stainless Ltd. (2) And Another Vs. State of Haryana And Others). He has
drawn our attention to various paragraphs of the judgment to establish before us
that the concept of compensatory tax is not there in the Constitution but is judicially
evolved in the case of Automobile Transport (Rajasthan) Ltd. Vs. State of
Rajsthan reported in (1963) 1 SCR 491: AIR 1962 SC 1406 as a part of regulatory
charge. Therefore, there is difference between payment of tax and fee or charge
leviable on the basis of the service. The fee or charge is based on the “principle of
equivalence”. The main basis of the fee or charge is quantifiable and measurable
benefit, which is based on quantifiable data. It has to be paid for the value.
Every benefit is measured in terms of cost, which has to be reimbursed in the form
of compensatory tax. In other words, compensatory tax is a recompense /
reimbursement. It is not for revenue but as reimbursement/recompense to the
service/facility provider. It is more closer to fees than to tax.
Mr. Misra has contended before us that the authority is not powerless in
imposing development fee, be it external or internal. He has drawn our attention to
Section 59 (1) (c) of the Uttar Pradesh Urban Planning And Development Act, 1973
(hereinafter called as Act, 1973) which provides that without prejudice to the
generality of the provisions of clauses (a) and (b), any bye-laws, directions or
regulations under the Uttar Pradesh Municipalities Act, 1916 or the Uttar Pradesh
(Regulation of Building Operations) Act, 1958 (hereinafter called as the Act, 1958)
or the Uttar Pradesh Municipal Corporations Act, 1959, as the case may be and in
force on the date immediately before the date of commencement of this Act, shall,
in so far as they are not inconsistent with the provisions of this Act, continue in
force until altered, repealed or amended by any Competent Authority under this
Act. He has also drawn our attention to the U.P. (Regulation of Building
Operations) Regulations, 1960 framed under the Act, 1958 to show us what is the
import and meaning of internal development. Regulation 5 (2) (i) speaks for
external and internal development, therefore, the same is set out hereunder:
“(2) An application for permission to develop an area of
land as a colony may be granted subject, as may be, to
3the following conditions–
(i) he enters into an agreement with the local body
concerned for such internal development of the land and
external development in connection therewith to the
satisfaction of the Prescribed Authority as the Controlling
Authority may require.
Explanation 1.–The internal development of the
land includes–
(a) levelling of land,
(b) roads,
(c) stream water drains,
(d) street lighting,
(e) water supply,
(f) provision of open spaces for parks, playgrounds and
the like,
(g) sewerage;
(h) earmarking and leaving out open site for schools
dispensaries, community centres and other public utility
services.
Explanation II. –The external development means
the works, within or beyond the limits of the colony,
required to be done for the satisfactory completion and
functioning of any of the items of internal development of
the colony.”
According to him, if the Act, 1973 is silent on that score, the authority
concerned can impose fees or charges under such regulation irrespective of the
factum that the same is product of the Act, 1958.
However,we have gone through the definition of the “development fee” as
defined under Section 2(ggg) of the Act, 1973, which has been inserted by Section
2 of the U.P. Act 3 of 1997. The definition is as follows:
“2(ggg) “development fee” means the fee levied upon a
person or body under Section 15 for construction of road,
drain,sewer line, electric supply and water-supply lines in
the development area by the Development Authority.”
Therefore, we find that the nature of the development fee inserted therein is
more or less similar to the internal development as made under the Regulation in
the Act, 1958. Hence, it is crystal clear that the form of development fee has been
consolidated making it one under the definition of Section 2(ggg) of the Act, 1973.
We also find from Section 24 of the Uttar Pradesh General Clauses Act, 1904 that
where any enactment is repealed and re-enacted by an Uttar Pradesh Act, with or
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without modification, then, unless it is otherwise expressly provided, any
appointment, or statutory instrument or form made or issued under the repealed
enactment, shall, so far as it is not inconsistent with the provisions re-enacted,
continue in force, and be deemed to have been made or issued under the
provisions so re-enacted, unless and until it is superseded by any appointment or
statutory instrument or form made or issued under the provisions so re-enacted.
Mr. Trivedi upon joining the issue has contended that the word inconsistent
itself is damaging to the respondents because the definition of internal
development as given in Regulation 5 (2) (1) of the Uttar Pradesh (Regulation of
Building Operations) Regulations, 1960 is inconsistent with the Act, 1973. Apart
from this issue, the other important feature, which we have found out from Section
15, specially sub-section (2-A) of Act, 1973, which has been inserted by Section 3
of U.P. Act 3 of 1997, it appears to us that the Authority can levy development fee
in such manner and at such rate as prescribed by rules. Part of the Section 15 sub-
section (2-A) is inserted hereunder:
“(2-A) The Authority shall be entitled to levy
development fees, mutation charges, stacking fees and
water fees in such manner and at such rates as may
be prescribed.”
Since under clause (33-A) of Section 4 of the Uttar Pradesh General
Clauses Act, 1904 “prescribed” means prescribed by rules made under the Act in
which the word occurs, therefore, we have called upon Mr. Misra to give answer
whether or not any such rule has been framed by the State under Act, 1973
because in the absence of such rules, it will be the domain of the administration to
put their thumb in respect of any claim against any of the people which will create a
lot of discrimination in respect of anybody and it will be floodgate of litigation before
the Court. We cannot encourage the same. Therefore, when there is no such rule,
the authorities concerned are not debarred from insisting the State to make the
rules and in case the same has not been made out, the tariff schedule which has
been forwarded by the State may be followed as far as practicable. Therefore, if we
strictly go by sub-section (2-A) of Section 15 of Act, 1973, the levy of fees can only
be levied in such manner and at such rate, as may be permitted by rules not
otherwise and in absence of such rule, no power is vested with the authorities
concerned to impose external development charges or may give direction for filing
Bank guarantee towards the internal development charges and making the
distinction between internal and external development charges. Having so, we can
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not justifiably allow the impugned order dated 26th June, 2007 passed by the
Assistant Engineer of the G.D.A. to go on, which is quashed and the
consequences will be followed. We send the matter to the Principal Secretary,
Urban Planning and Development Department, Civil Secretariat, Lucknow for the
purpose of due consideration of the cause within a period of two months from the
date of communication of this order.
Accordingly, the writ petition is disposed of.
No order is passed as to costs.
(Justice Amitava Lala)
I agree.
(Justice S.N.H.Zaidi)
Dt./- 04.02.2010
MAA/-
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Hon’ble Amitava Lala,J.
Hon’ble S.N.H.Zaidi,J.
The writ petition is disposed of
without imposing any cost.
Dt.04.02.2010
MAA/-
For orders, see order of date passed
on separate sheets (five pages).
Dt. 04.02.2010
MAA/-