Court No. - 39
Case :- WRIT - C No. - 54759 of 2008 Petitioner :- Sm. Saroj Misra And Others Respondent :- State Of U.P. And Others Counsel for Petitioner :-Bhanu Bhushan Jauhari Counsel for Respondent :- C.S.C.,B.N. Pathak,Q.H. Siddiqui
Hon'ble B. Amit Sthalekar,J. Hon'ble Piyush Agrawal,J.
Heard Sri Bhanu Bhushan Jauhari, learned counsel for the petitioners, learned Standing Counsel for the respondent nos, 1 and 2, no one appears for the respondent nos. 3 and 4.
The petitioners in the writ petition are seeking quashing of the demand note dated 27.08.2008 whereby certain charges have been demanded from them.
Learned counsel for the petitioners submits that a Division Bench of this Court in the case of Nisha Kumari vs. State of U.P. and others, 2014(3) UPLBEC 2130 along with bunch of cases wherein similar charges came to be challenged disposed of the writ petition and quashed the demand for sub-division charges/open area penalty fee, inspection charge, supervision charge e.t.c. and further issued directions that sub-division charges can be levied only when a development/construction is carried out by a person in violation of the bye-laws, Zonal Development Plan. However, the development charge fee was upheld.
It is informed that the respondents have given challenge to the judgement in the case of Nisha Kumari in Supreme Court and the Supreme Court has directed that in the meantime, operation of the impugned order shall remain stayed.
The judgement of Nisha Kumari as well as impact of the interim order of the Supreme Court came to be considered by another Division Bench headed by Hon'ble Chief Justice in Writ - C No. 61696 of 2017 (Smt. Sandhya vs. State of U.P. and 2 others) along with bunch of writ petitions. The Division Bench noticing the interim order of the Supreme Court with regard to sub-division charges disposed of the above writ petition vide judgement dated 8.5.2018 and directed that it would be open to the Development Authorities to levy/claim sub-division charges, pending hearing and final disposal of the aforementioned civil appeals pending in the Supreme Court. The petitioners shall deposit sub-division charges subject to outcome of civil appeals pending in the Supreme Court and without prejudice to their right to seek refund of the same along with interest, if the civil appeals are ultimately dismissed. The directions of the Division Bench read as under :
"It would be open to the Development Authorities to levy/claim sub-division charges, pending hearing and final disposal of the aforementioned civil appeals pending in the Supreme Court. The petitioners shall deposit sub-division charges subject to outcome of civil appeals pending in the Supreme Court and without prejudice to their right to seek refund of the same along with interest, if the civil appeals are ultimately dismissed and the judgments of the aforementioned Division Benches are affirmed.
The Development Authorities henceforth while demanding sub- division charges shall make it clear in the notice itself that they are demanding/collecting sub-division charges subject to outcome of the civil appeals pending in the Supreme Court and shall refund the same with 6% simple interest in the event appeals are ultimately dismissed.
At this stage, at the request of learned Senior Counsel/Counsel appearing for the petitioners to grant some breathing time to the petitioners to deposit sub-division charges, as demanded by impugned notices, we are inclined to grant time as prayed. The petitioners shall deposit the sub-division charges, if not deposited already, within a period of twelve weeks from today.
If there are any cases, in which the Development Authorities have charged or are charging sub-division charges, where layout plans are sanctioned, it would be open to all such persons/petitioners to challenge such demand in appeals under Section 15 (5) of the Act, 1973.
With these observations, all the petitions are disposed of."
In this view of the matter, we dispose of the writ petition with a direction that the petitioner shall deposit the sub-division charges as also the development charge and other charges which shall be subject to the outcome of the civil appeals pending in the Supreme Court. In case the civil appeals are dismissed, the petitioners shall be entitled to refund of the same with simple interest of 6% per annum.
Any amount which may have already been deposited by the petitioners shall be adjusted towards the amount to be deposited.
Order Date :- 30.11.2018/Rahul.