Court No. - 29
Case :- WRIT - C No. - 13338 of 2018 Petitioner :- M/S Uppal Chadha Hi-Tech Developers Pvt. Ltd. Through Auth. Signatory Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Amit Negi,Sr. Advocate Navin Sinha Counsel for Respondent :- C.S.C.,Anoop Trivedi
Hon'ble Govind Mathur,J. Hon'ble Jayant Banerji,J.
To facilitate the development and construction work in private and government sectors, the State of U.P. Introduced “Urban Housing Policy – 1995”. In pursuance to the Policy of 1995, the State Government declared a “Hi-Tech Township Policy – 2007” under a Government Order dated 17th September, 2007 with a purpose to develop a Hi-Tech Township through private developers. On being selected to develop a township a Memorandum of Understanding (MOU) was signed between the petitioner and the Ghaziabad Development Authority (hereinafter referred to as the GDA). As per contents of MOU, the petitioner being developer was to arrange at its own 75% of land needed by private negotiation and 25% of land was to be acquired by the State Government. According to the petitioner the construction work at the site in accordance with the sanctioned plan was completed and a completion certificate was also granted by the GDA.
A development agreement relating to hi-tech township was also entered between the petitioner and the GDA on 30th October, 2013. As per conditions of agreement and also in pursuance of certain government orders, the petitioner deposited a sum of Rs. 79,98,26,200/- with the GDA against “land use conversion charges”, but the GDA insisted upon the petitioner to deposit a sum of Rs.114,26,08,800/-. A sum of Rs.34,27,82,600/- was determined as remaining dues against conversion charges and a demand in this regard was made. The petitioner objected the demand being said to be in contravention of the Government Orders dated 21st August, 2001 and 23rd April, 2010 but of no consequence.
The State Government subsequently introduced the Uttar Pradesh Nagar Yojna Aur Vikas (Bhu-Upyog Parivartan Shulk Ka Nirdharan Udgrahan Evam Sangrahan) Niyamawali, 2014 (hereinafter referred to as the Niyamawali of 2014). A demand for the sum of Rs.34,27,82,600/- was reiterated with assertion that as per Niyamawali, 2014, the petitioner is required to deposit additional conversion charges. The petitioner reiterated the objections earlier taken with specific stand that the conversion charges could have not been determined as per Niyamawali of 2014 since the case of the petitioner relates to a period earlier to framing of the Niyamawali – 2014.
The petitioner being aggrieved by the demand aforesaid approached the State Government under a letter dated 10th November, 2017 for a direction to the GDA not to insist to realize the sum of Rs.34,27,82,600/-. The GDA too sought a clarification from the State Government about the applicability of the Niyamawali of 2014 for determination of conversion charges pertaining to the petitioner while executing hi-tech township project. The State Government under a communication dated 29th November, 2017 directed the GDA to send its comments in accordance with the applicable Rules with regard to the demand made relating to conversion charges. The GDA without awaiting for decision from the State Government, issued a recovery certificate on 22nd February, 2018 for recovery of a sum of Rs.73,60,54,221/-.
Being aggrieved by the demand aforesaid, the petitioner preferred a petition for writ before this Court being Writ C No.8957 of 2018, M/s Uppal Chadha Hi-Tech Developers Pvt. Ltd. vs. State of U.P. and 2 others. During pendency of the petition aforesaid, the GDA by invoking powers under Section 28-A (1) of the Act of 1973, sealed the premises of the petitioner namely Villa Sector-4 and 36 Villa Floor Flats in Sector-7 on 23rd March, 2018 and 24th March, 2018 respectively.
In the aforesaid writ petition, counter affidavit was filed on behalf of the Principal Secretary, Awas Evam Shahri Niyojan, State of U.P., stating therein that the State Government under an order dated 6th April, 2018 has considered the representation submitted by the petitioner on 10th November, 2017 and rejected the same. To challenge the order passed by the State Government on 6th April, 2018, this petition for writ is before us.
The argument advanced by learned counsel appearing on behalf of the petitioner is that the representation dated 10th November, 2017 submitted by the petitioner was nothing but a revision petition as per Section 41 of the Act of 1973 and that could not have been decided without affording a reasonable opportunity of hearing. It is asserted that under the Act of 1973, the State Government is having supervisory and revisional control and, as such, whatever power the State Government exercises is under this provision only and according to proviso to Sub-section (3) of Section 41 of the Act of 1973, the revision petition preferred by the petitioner could not have been rejected without extending reasonable opportunity of hearing.
Per contra, as per the counter affidavit filed on behalf of the State of U.P., the petitioner never assailed any order passed by the GDA and as such there was no revision petition preferred under Section 41 of the Act of 1973. The power exercised by the State Government, while rejecting the petitioner's representation, is purely administrative and without having any essence of quasi- judicial functioning.
Heard learned counsels for the parties and scanned the record.
Precisely, the issue under consideration is that whether the representation / letter / petition submitted by the petitioner is an application as per provisions of Section 41 of the Act of 1973 or simply a representation. Section 41 of the Act of 1973 reads as follows :
41. Control by State Government.-
(1) The Authority,the Chairman or the Vice-Chairman shall carry out such directions as may be issued to it from time to time by the State Government for the efficient administration of this Act.
(2) If in, or in connection with, the exercise of its powers and discharge of its functions by the Authority, the Chairman or the Vice-Chairman under this Act any dispute arises between the Authority, the Chairman or the Vice-Chairman and the State Government the decision of the State Government on such dispute shall be final.
(3) The State Government may, at any time, either on its own motion or on application made to it in this behalf, call for the records of any case disposed of or order passed by the Authority or the Chairman for the purpose of satisfying itself as to the legality or propriety of any order passed or direction issued and may pass such order or issue such direction in relation thereto as it may think fit:
Provided that the State Government shall not pass an order prejudicial to any person without affording such person a reasonable opportunity of being heard.
(4) Every order of the State Government made in exercise of the powers conferred by this Act shall be final and shall not be called in question in any Court.
In the Act of 1973, the State Government is having no authority to control or supervise the Development Authorities for efficient administration relating to urban planning and development except the power given under Section 41. Under this provision the Authority, the Chairman or the Vice-Chairman is abide to adhere the directions issued by the State Government from time to time. The State Government as per Sub-section (3) of Section 41 of the Act of 1973 is having authority either on its own motion or on application made to call for records of any case by the Authority or the Chairman to satisfy itself about legality or propriety of any order as a consequence to the record under consideration. While exercising powers under Sub-section (3) of Section 41 of the Act of 1973, the State Government is required to afford an opportunity of being heard to the person prejudicially affected. In the entire Act of 1973, no other supervisory or revisional control is available to the State Government.
In the case in hand, the petitioner being aggrieved by the demand made by the GDA, submitted a representation with specific prayer that the demand made by the Authority determining conversion charges is illegal as the case of the petitioner pertains to the period prior to the application of the Niyamawali – 2014.
A bare reading of the contents of the petition submitted by the petitioner to the State of U.P. on 10th November, 2017 makes it clear that the petitioner sought intervention of the State Government under Section 41 of the Act of 1973. Suffice is to mention that the GDA too sought guidelines from the State Government in the matter and under the Act of 1973 such guidelines could have been asked as per Section 41 only as no power is available under the Act of 1973 to the State to control or supervise efficiency of the administration of the Authority.
In this background, we are having no doubt in arriving at a conclusion that the State Government ought to have invoked the powers under Section 41 of the Act of 1973 only while considering and deciding the representation submitted by the petitioner. It is not in dispute that while considering and deciding the representation aforesaid, no reasonable opportunity of hearing was afforded to the petitioner. Disposal of the representation without providing such opportunity is in contravention of a valuable right accorded to the person aggrieved as per proviso to Sub-section (3) of Section 41 of the Act of 1973.
In view of what has been stated above, this petition for writ deserves acceptance, accordingly the same allowed. The order impugned dated 6th April, 2018 passed by the State Government, respondent no.1 is set aside. The State shall consider the petition preferred by the petitioner afresh by providing a reasonable opportunity of hearing to the petitioner on or before 5th May, 2018.
The State Government after providing such opportunity shall consider and decide the petition preferred by the petitioner by a speaking and reasoned order on or before 12th May, 2018. While affording such opportunity of hearing, the parties to the dispute shall be at liberty to submit written arguments.
No order as to cost.
Order Date :- 24.4.2018 pk (Jayant Banerji,J.) (Govind Mathur,J.)