Court No. - 39
Case :- WRIT - C No. - 5910 of 2018 Petitioner :- Khaitan Public School Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Syed Fahim Ahmed,Anurag Khanna Counsel for Respondent :- C.S.C.,Amit Manohar,Anoop Trivedi
Hon'ble Dilip Gupta,J. Hon'ble Jayant Banerji,J.
This petition has been filed by Khaitan Public School, Ghaziabad for quashing the notices dated 8 January 2018, 23 January 2018 and 25 January 2018 issued by the Ghaziabad Development Authority, Ghaziabad (hereinafter referred to as the 'Development Authority') to the extent that they direct the petitioner to deposit Rs.2,70,80,523/- as metro cess for compounding of the map submitted by the petitioner.
It is stated that the petitioner had entered into a lease agreement with the Development Authority for allotment of a plot in Sector-5, Rajendra Nagar. A School was constructed and in view of the objections raised by the Development Authority, a compounding application was submitted by the petitioner. A demand notice dated 8 January 2018 was then issued requiring the petitioner to deposit the compounding fees, labour cess and metro cess. The petitioner is aggrieved by levy of metro cess.
Learned Senior Counsel for the petitioner has submitted that the Development Authority cannot demand metro cess.
A short counter affidavit has been filed on behalf of the Development Authority. Paragraphs 9, 10 and 11 of the short counter affidavit are reproduced below :
"9. Vice Chairmna, Ghaziabad Development Authority had directed that the Metro Betterment Charge shall be applicable for compounding matters also as compounding is as such sanctioned of map with penalty and accordingly levy of betterment charges would also be covered for maps sanctioned under Section 32 of the U.P. Urban Planning and Development Act, 1973 i.e. the maps which are submitted for compounding and as such the betterment charges would be levied on such maps. ...........
10. That is is specifically stated here that various compounding maps have already been sanctioned and applicant of such maps also deposited betterment charges. It is specifically stated here that as many maps have been sanctioned under Section 32 of the U.P. Urban Planning and Development Act, 1973 and applicant has already deposited the betterment charges.
11. The plan of applicant was sanctioned by G.D.A. The applicant made certain deviation from the sanctioned plan while constructing. Therefore, he applied for compounding under section 32 of the U.P. Urban Planning and Development Act, 1973. As per the averment made in the earlier para, the applicant was bound to deposit Metro Betterment Charge but he deposited only compounding charges alongwith labour cess. There are specific provision in the the U.P. Urban Planning and Development Act, 1973, which empower G.D.A. to impose betterment charges for improvement for infrastructure, hence the answering development authority has rightly charged the betterment charges."
The short counter affidavit does not refer to any provision of the U.P. Urban Planning and Development Act, 1973 under which metro cess can be levied nor has learned counsel appearing for the Development Authority placed before the Court any provision for levy of metro cess.
In this view of the matter when the learned counsel for the Development Authority has not been able to place any provision under which metro cess could be levied, the Court is left with no option but to quash the impugned notices.
The notice dated 8 January 2018 and the consequential notices dated 23 January 2018 and 25 January 2018 are, accordingly, quashed and the writ petition is allowed.
Order Date :- 27.2.2018 SK (Jayant Banerji, J.) (Dilip Gupta, J.)