Court No. - 10
Case :- WRIT - C No. - 41291 of 2009 Petitioner :- Shaifuddin And Others Respondent :- State Of U.P. And Others Counsel for Petitioner :- N.K. Chaturvedi,Shashi Nandan Counsel for Respondent :- C.S.C.,Madan Mohan,Vivek Singh Hon'ble Vikram Nath,J.
Hon'ble Abhai Kumar,J.
We have heard learned counsel for the petitioner, learned Standing Counsel for the State-respondent and Sri Madan Mohan, learned counsel for the respondent nos.2, 3 and 4 and have also perused the pleadings exchanged between the parties. Despite notices having been issued to respondent no.5 by registered post no one has put in appearance.
By means of this petition under Article 226 of the Constitution, the petitioner has prayed for quashing of the order dated 18th July, 2009 (Annexure-14 to the writ petition) issued by respondent no.4 as also the letters/orders/notices dated 22.09.2007, 17th January, 2008 and 8th July, 2008 (Annexure nos.9,10 and 11 to the writ petition). Further relief claimed is for restraining the respondents from realizing any amount from the petitioner towards development charges pursuant to the impugned orders/letters/notices.
In short the facts relevant to decide this petition are that, one Sri Ahmad Ali was the owner in possession of a Kothi situate over Khasra Plot No.131, Village, Shahpur, Tehsil-Sadar, District-Gorakhpur. The said plot was covered by acquisition proceedings under the Uttar Pradesh Avas Evam Vikas Parishad, Adhiniyam, 1965 (hereinafter referred to as the “1965, Act").
The erstwhile owner Sri Ahmad Ali represented that the said Khasra number along with constructions may be exempted from the acquisition proceedings. Under the existing policy at that time, it appears that the erstwhile owner Sri Ahmad Ali was required to deposit development charges whereupon his request could be considered. Annexure-1 to the writ petition is a communication dated 30.09.1983 issued by the Assistant Housing Commissioner, addressed to Sri Ahmad Ali stating that after taking the development charges and adjusting the same in the lay out, the constructions standing over the aforesaid khasra plot was exempted from the acquisition. Further Annexure-2 is a communication of even date, issued by the Housing Commissioner to the Special Land Acquisition Officer of U.P. Avas Evam Vikas Parishad, Lucknow informing him that the constructions standing over disputed plot/khasra number in question have been exempted from the acquisition as such no compensation may be paid to the owner of the land and the building.
The present petitioners are purchasers from the erstwhile owner Sri Ahmad Ali. It appears that at some stage after about 20 years, the U.P. Avas Evam Vikas Parishad was not able to trace out its records and initiated an exercise to collect relevant information regarding the deposit of the development charges. Annexure-8 is a communication from the Joint Housing Commissioner to the Executive Engineer at Gorakhpur of the U.P. Avas Evam Vikas Parishad to the effect that it could not be verified from the records that the development charges have been deposited. It further stated that upon a calculation being carried out, as the area of the said plot was 1397.87 sq. meter, the development charges would amount to Rs.17,51,880/- as such proceedings for recovery of the said amount may be initiated. It was in pursuance to the said communication that the Executive Engineer at Gorakhpur vide notice dated 22.09.2017 addressed to the petitioner no.1, required him to deposit Rs.17,51,880=60 (Annexure-9). Again a reminder was sent on 17.01.2008 requiring the petitioner to deposit the same amount or if the amount was already deposited to submit proof of the same (Annexure-10). Further Annexure-11 is a communication dated 08.07.2008 issued by Additional Housing Commissioner to the Executive Engineer requiring certain information so that recovery proceedings could be initiated.
At this stage, it appears that the petitioner approached this Court by way of Civil Misc. Writ Petition No.59747 of 2008 ( Rajendra Kumar Rishi and others Vs. State of U.P.). The said petition was finally disposed of by judgment and order dated 19.11.2008. The operative portion of the said judgment and order reads as follows:-
"In view of the stand taken by the learned counsel for the parties, we feel that interest of substantial justice would be served be provided as follows:
(a) petitioners may submit their reply to the second show cause notice dated 17th January, 2008 raising all such legal and factual pleas as they may be advised with regard to the payment of development charges withe two weeks from today along with a certified copy of this order.
(b) such objection shall be considered by the Executive Engineer of the Parishad by means of a reasoned speaking order, preferably within four weeks thereafter and a copy of the order to be passed shall be communicated to the petitioners.
(c) Initially for a period of six weeks from today, no recovery in respect of the development charges shall be effected against the petitioners and and shall thereafter abide the orders to be passed by the Executive Engineer as aforesaid.
With the aforesaid observation/directions the present writ petition is disposed of finally."
Pursuant to the aforesaid directions, the petitioners submitted a representation dated 29.11.2008 before the Executive Engineer (Annexure-13) along with a certified copy of the judgment and order. The petitioners also submitted the relevant material available with them which included the sanction of their lay out plan, sanction of the building plan and other documents/records available with them. The petitioners also stated in their representation that demand of proof of deposit after lapse of 20 years was unjustified and arbitrary. It was also stated that in the earlier letter dated 30.09.1983 (Annexure nos.1 and 2), it was clearly mentioned that the development charges have already been paid. The said representation submitted by the petitioners pursuant to the directions issued by this Court, were disposed of by the Executive Engineer vide communication dated 18th July, 2009 (Annexure-14) to the writ petition. The Executive Engineer rejected the representation of the petitioners apparently on the ground that no proof was submitted with regard to the deposit of development charges. The petitioner was again called to appear before the Executive Engineer on 24th July, 2009 and to further explain their stand otherwise it would be deemed that they have nothing to say and no further claim would be entertained. It is this communication dated 18th July, 2009 which is primarily under challenge along with the previous notices in the present writ petition.
At the time, when this petition was filed this Court vide order dated 12.08.2009 after granting time to the respondents to file counter affidavit and issuing notice to respondent no.5 stayed the effect of the orders impugned in the petition and also left it open to the petitioners to deposit the development fee within a month on the self assessed rates of development fee prescribed in the year 1983 under protest subject to the result of the writ petition. The said order is reproduced below:-
"Learned Standing Counsel appears for respondent No.1. Shri Vivek Singh has accepted notice on behalf of the respondent Nos.2 to 4.
Issue notice to respondent No.5. Steps in a week. The respondents are allowed three weeks' time to file counter affidavit. The petitioners will have one week, thereafter, to file rejoinder affidavit. List on 16th September, 2009.
It is stated by Shri Shashi Nandan, Sr. Advocate that the building (Kothi) situate on Plot No.131 in Shahpur Bhumi Vikas Yojana Sankhya-7, Gorakhpur was exempted from the lay out plan and was also released from the acquisition by the Asstt. Housing Commissioner on 30.9.1983 in pursuance to the letter of the Housing Commissioner. The Executive Officer, U.P. Awas Vikas Parishad has now on a complaint made by respondent No.5 raised a demand of development fees of Rs.17,51,880.60 on a calculation made without issuing notice or inviting objections from the petitioner. It is contended that the plot was exempted from the acquisition and therefore the respondents have no authority to levy any development fees.
Shri Shashi Nandan submits that in any case the development fee should be worked out on the rates prevalent in the year 1983, and that to that extent the decision of Executive Engineer, UPSIDC dated 18.7.2009 is arbitrary and unreasonable.
Until 16th September, 2009 the respondents shall not give effect to the orders/ letters dated 22.9.2007, 17.1.2008 and 8.7.2008 (Annex.9, 10 and 11 to the writ petition). It will be open to the petitioner to deposit the development fees within a month on the self assessed rates of development fee prescribed in the year 1983 under protest, subject to the result of the writ petition."
Counter affidavit has been filed on behalf of the respondent- U.P. Avas Evam Vikas Parishad, in which again the stand taken is the same that petitioners having failed to produce any evidence of deposit of the development charges before exemption of the land and building in question from acquisition, are liable to pay the same. In the counter affidavit, the term used is 'betterment fee' and not 'development charges' but it relates to the same demand as was made earlier wording it as 'development charges'. The counter affidavit also mentions that the betterment fee, if charged at the rate, when the land was exempted from execution then 16% interest would be payable or as per the 210th Meeting of the Parishad held on 24.09.2009, 20% of the prevalent market value of the land could be deposited as development charges. It is worthwhile to note that in the counter affidavit the correspondence referred to as Annexure-1 and 2 in the petition is neither denied nor said to be either forged, fabricated or manufactured. In effect the communications dated 30.09.1983 filed as Annexures-1 & 2 to the writ petition are admitted. Merely by stating in the counter affidavit that the exemption from acquisition was subject to payment of betterment charges/ development charges cannot extend any benefit to the respondents as the letter dated 30.09.1983 (Annexures-1 & 2 to the petition) clearly mention that after depositing development charges the land and constructions have been exempted.
The petitioners have filed the rejoinder-affidavit and in paragraph-3 of the same they have stated that in compliance to the order dated 12.08.2009 passed by this Court, they have deposited different amounts depending upon the size of the area purchased by them. Copy of the receipts of the deposit made has been collectively filed as Annexure-R.A.-1.
Having considered the submissions made by the learned counsel for the petitioners and after perusing the record and also the counter affidavit, what we find that once the communication dated Annexure-1 and 2 are not disputed by the respondent- U.P. Avas Evam Vikas Parishad, merely because U.P. Avas Evam Vikas Parishad could not trace out from their record and demanded proof of the deposit of development charges from the petitioners, who were subsequent purchasers, after 20 years and merely because the petitioners failed to produce the deposit receipts the liability demanding an exorbitant amount of betterment fee is being saddled on them is totally unjustified. The letters Annexure-1 and 2 to the writ petition dated 30th September, 1983 specifically stated the after taking the development charges and adjusting the same in the lay out of the scheme the land in question along with constructions was exempted from acquisition. This would amount to an admission of the U.P. Avas Evam Vikas Parishad with the erstwhile owners as also in their internal communication requiring Special Land Acquisition Officer not to make any payment of compensation to the land owners.
In view of the above, the respondent-U.P. Avas Evam Vikas Parishad would not be entitled to raise a demand after more than 20 years for their own loss of record and also in view of the fact that the same is admitted in Annexure-1 and 2 to the writ petition and also that in the counter affidavit the said two letters are not denied to be their own documents.
The petition accordingly succeeds and is allowed. The impugned demand raised by the respondents vide Annexure-9, 10, 11 and 14 to the writ petition dated 22.09.2007, 17.01.2008, 08.07.2008 and 18.07.2009 are hereby quashed.
As we have held that no demand could be raised, we further direct that the amount deposited by the petitioners pursuant to the interim order dated 12th August, 2009 be returned to the petitioners by the respondent-U.P. Avas Evam Vikas Parishad and its Officers within a period of six weeks from the date of production of certified copy of this order.
Order Date :-24.04.2018 Ashutosh (Abhai Kumar,J.) (Vikram Nath,J.)