Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5645 OF 2015
Mathura Vrindavan Development Authority & Another
…Appellants
Versus
Rajesh Sharma and Others …Respondents
WITH
CIVIL APPEAL NO. 1976 OF 2023
CIVIL APPEAL NO. 1979 OF 2023
CIVIL APPEAL NO. 1984 OF 2023
CIVIL APPEAL NO. 5647 OF 2015
CIVIL APPEAL NO. 5646 OF 2015
CIVIL APPEAL NO. 6536 OF 2015
CIVIL APPEAL NO. 658 OF 2016
CIVIL APPEAL NO. 4438 OF 2014
CIVIL APPEAL NO. 4198 OF 2014
CIVIL APPEAL NO. 4489 OF 2014
CIVIL APPEAL NO. 3636 OF 2018
CIVIL APPEAL NO. 1977 OF 2023
CIVIL APPEAL NO. 1988 OF 2023
CIVIL APPEAL NO. 1983 OF 2023
CIVIL APPEAL NOS.5912-5915 OF 2014
CIVIL APPEAL NO. 4492 OF 2014
Signature Not Verified
Digitally signed by
Neetu Sachdeva
Date: 2023.04.28
16:27:29 IST
Reason:
Civil Appeal No. 5645/2015 Etc. Page 1 of 26
CIVIL APPEAL NO. 5910 OF 2014
CIVIL APPEAL NO. 2041 OF 2023
CIVIL APPEAL NO. 6247 OF 2014
CIVIL APPEAL NO. 6249 OF 2014
CIVIL APPEAL NO. 6250 OF 2014
CIVIL APPEAL NO. 6248 OF 2014
CIVIL APPEAL NO. 3176 OF 2015
CIVIL APPEAL NO. 3242 OF 2015
CIVIL APPEAL NO. 6537 OF 2015
CIVIL APPEAL NO. 6540 OF 2015
CIVIL APPEAL NO. 6541 OF 2015
CIVIL APPEAL NO. 6538 OF 2015
CIVIL APPEAL NO. 6539 OF 2015
CIVIL APPEAL NO. 1982 OF 2023
CIVIL APPEAL NO. 1978 OF 2023
CIVIL APPEAL NOS. 1980-1981 OF 2023
CIVIL APPEAL NO. 5918 OF 2014
CIVIL APPEAL NO. 5919 OF 2014
J U D G M E N T
M.R. SHAH, J.
1. As common question of law and facts arise in this
group of appeals, all these appeals are decided and
disposed of together, by this common judgment and
order.
Civil Appeal No. 5645/2015 Etc. Page 2 of 26
2. Feeling aggrieved and dissatisfied with the
impugned judgment(s) and order(s) passed by the High
Court of Judicature at Allahabad passed in the respective
writ petitions, by which the High Court has quashed and
set aside the various demand notices raised by the
respective Development Authorities and the State of UP,
the Development Authorities and the State of U.P. have
preferred the present appeals.
2.1 Some of the appeals have been preferred by the
original writ petitioners challenging the interim orders
passed by the High Court in the respective writ petitions
refusing to stay the demand notices, however, subject to
the outcome of the proceedings pending before this Court
which are being disposed of by this common judgment
and order and directing the respective Development
Authorities that in case the decision in the present
proceedings is against the Development Authorities/State
Civil Appeal No. 5645/2015 Etc. Page 3 of 26
of U.P., they shall refund the amount of various fees
collected with 6% interest per annum.
2.2 By the impugned judgment(s) and order(s), the High
Court has set aside the various demand notices except
the levy of development fees/charges. However, so far as
Civil Appeal No. 4489 of 2014 (State of U.P. v. Rekha
Rani & Others) is concerned, the High Court has even set
aside the levy/demand of development charges/fees also.
3. The dispute before the High Court by way of various
writ petitions was with respect to challenge to the various
demand notices by way of external/internal development
charges, inspection fee/supervision fee while granting of
sanction layout plan, development charges, sub-division
charges, stacking charges and impact fee etc. Except in
one case, namely, Rekha Rani (supra), in all other cases,
the Allahabad High Court as such has upheld the levy of
development charges/fees. However, the other
levies/demands are concerned, i.e., other than
Civil Appeal No. 5645/2015 Etc. Page 4 of 26
development fees/charges, more particularly the sub-
division charges etc., the High Court has set aside the
said levy and/or demand notices on the ground that U.P.
Urban Planning and Development Act, 1973 (hereinafter
referred to as the ‘Act, 1973’) does not permit the levy of
other charges other than provided under Section 15(2-A)
of the Act, 1973. The High Court has also observed and
held that such levy on the basis of the orders issued by
the State Government, issued in exercise of powers under
Section 41 of the Act, 1973, is illegal and bad in law. The
levy of other charges, other than development
fees/charges is held to be bad in law and in violation of
Article 265 of the Constitution of India.
3.1 Quashing and setting aside the levy/demand notices
with respect to external/internal development charges,
inspection fee/supervision fee while granting of sanction
layout plan, sub-division charges, stacking charges and
impact fee etc. is the subject matter of present appeals.
Civil Appeal No. 5645/2015 Etc. Page 5 of 26
The State of U.P. has also preferred appeal being Civil
Appeal No. 4489/2014 [Rekha Rani (supra)] challenging
the impugned judgment and order passed by the High
Court by which the High Court has set aside the
levy/demand with respect to development charges/fees
also.
4. Shri Rana Mukherjee, learned Senior Advocate
appearing on behalf of the State of U.P. has vehemently
submitted that the State of U.P. in exercise of powers
under Section 41 of the Act, 1973 issued orders permitting
the Development Authorities in the State to recover the
charges /fees with respect to external/internal
development charges, inspection fee/supervision fee
while granting of sanction layout plan, development
charges, sub-division charges, stacking charges and
impact fee etc. It is submitted that the said orders came
to be issued in exercise of powers under Section 41 of the
Act, 1973, which as such were in the larger public interest
Civil Appeal No. 5645/2015 Etc. Page 6 of 26
and for development of the area including the
development plan/scheme and for development of other
areas included within the limits of Development
Authorities.
4.1 It is further submitted by Shri Rana Mukherjee,
learned Senior Advocate appearing on behalf of the State
of U.P. that as such the levy towards the development
charges/fees has been upheld by this Court in the case of
State of U.P. & Others v. Malti Kaul (Smt.) & Another,
reported in (1996) 10 SCC 425 . It is submitted that
therefore the High Court in the case of Rekha Rani
(supra) (Civil Appeal No. 4489/2014) ought not to have
and could not have set aside the levy of development
charges/fees which as such came to be affirmed by this
Court.
4.2 Learned counsel appearing on behalf of the
respective Development Authorities, while adopting the
submissions made by Shri Rana Mukherjee, learned
Civil Appeal No. 5645/2015 Etc. Page 7 of 26
Senior Advocate appearing on behalf of the State of U.P.,
have further submitted that in fact they collected the
respective charges, other than development charges/fees,
under the orders issued by the State Government.
4.3 Learned counsel appearing on behalf of the
respective original writ petitioners , as such, are not in a
position to dispute that so far as the levy of development
charges/fees is concerned, the same is held to be legal in
view of the decision of this Court in the case of Malti Kaul
(supra) .
4.4 It is submitted that so far as the other charges are
concerned, the same are rightly held to be illegal and/or
not in accordance with law, in view of Section 15(2-A) of
the Act, 1973. It is submitted that only those charges
which are enumerated/mentioned in Section 15(2-A) of
the Act, 1973 can be recovered/levied. It is submitted that
as per Article 265 of the Constitution of India, there cannot
be any levy/charges except in accordance with law.
Civil Appeal No. 5645/2015 Etc. Page 8 of 26
Meaning thereby, unless the law permits, there cannot be
any levy of tax/charges.
4.5 Insofar as reliance placed upon Section 41 of the
Act, 1973 on behalf of the State as well as Development
Authorities is concerned, it is submitted that in exercise of
powers under Section 41 of the Act, 1973, there cannot
be any levy and/or no charge/fee can be recovered, if
otherwise the same is not permissible under the Act. It is
submitted that the powers under Section 41 of the Act,
1973, as such, are supervisory in nature and the
directions can be issued by the State Government upon
the concerned Development Authorities to carry out the
functions under the Act. It is submitted that Section 41
does not permit the State to issue orders for levy of
charges other than mentioned in Section 15(2-A) of the
Act, 1973.
4.6 In one of the cases, learned counsel appearing on
behalf of the original writ petitioner has vehemently
Civil Appeal No. 5645/2015 Etc. Page 9 of 26
submitted that as such though the property in question
may be within the limits of the Development Authorities,
however, with respect to the land which is not covered by
the development plan, there cannot be any levy of even
development charges/fees.
5. We have heard learned counsel for the respective
parties at length.
At the outset, it is required to be noted that before
the High Court the dispute was with respect to various
demand notices by way of external/internal development
charges, inspection fee/supervision fee while granting of
sanction layout plan, development charges, sub-division
charges, stacking charges and impact fee etc.
6. Insofar as the levy of development fees/charges is
concerned, the issue is now not res integra , in view of the
direct decision of this Court in the case of Malti Kaul
(supra) . After taking into consideration the entire scheme
and the relevant provisions of the Act, 1973, more
Civil Appeal No. 5645/2015 Etc. Page 10 of 26
particularly Sections 14, 15(2-A), 41 & 59 of the Act, 1973,
this Court has upheld the levy of development
charges/fees. Therefore, the issue with respect to levy of
development charges/fees is concerned, the same is
concluded by this Court in the case of Malti Kaul (supra) .
Under the circumstances, as such the High Court has
rightly upheld the levy of development fees/charges
except in the case of Rekha Rani (supra) . The decision
of the High Court in the case of Rekha Rani (supra)
quashing and setting aside the levy of development
charges/fees thus is unsustainable and the same
deserves to be quashed and set aside and the levy of
development charges/fees, which otherwise is permissible
under section 15(2-A) of the Act, 1973 is to be upheld.
7. Insofar as the submission on behalf of one of the
counsel that as the area in one of the cases is not
included within the development plan, but the same is
within the area of Development Authorities and therefore
Civil Appeal No. 5645/2015 Etc. Page 11 of 26
there shall not be any levy of development charges/fees is
concerned, the same has no substance. It is required to
be noted that the levy of development fee/charges is for
the area where development has already taken place
and/or which is yet to be developed. The said aspect has
already been considered by this Court in the case of Malti
Kaul (supra) . In paragraph 5 of the said decision, it is
observed and held as under:
| “5. | Section 4 contemplates that the State Government | |||||
|---|---|---|---|---|---|---|
| may, by notification in the Gazette, constitute, for the | ||||||
| purpose of the Act, an authority called “Development | ||||||
| Authority” for any development area. ‘Development’ has | ||||||
| been defined in Section 2( | e | ) with its grammatical | ||||
| variations, to mean the carrying out of building, | ||||||
| engineering, mining or other operations in, on, over or | ||||||
| under land, or the making of any material change in any | ||||||
| building or land, and includes redevelopment. | ||||||
| “Development area” has been defined in Section 2( | f | ) to | ||||
| mean any area declared to be development area under | ||||||
| Section 3. It has been empowered, where the | ||||||
| Government in exercise of the power under Section 3 has | ||||||
| declared that any area within the State requires to be | ||||||
| developed according to the plan, to declare such area to | ||||||
| be a development area. Section 7 envisages the objects | ||||||
| of the authority and gives power to the developing | ||||||
| authority to acquire, hold, manage or dispose of a land | ||||||
| and any other property, to carry out building, engineering, | ||||||
| mining and other operations, to execute works in | ||||||
| connection with the supply of water and electricity, to | ||||||
| dispose of sewage and to provide and maintain other | ||||||
| services and amenities and generally to do anything | ||||||
| necessary or expedient for purposes of such |
Civil Appeal No. 5645/2015 Etc. Page 12 of 26
| development and for purposes incidental thereto. | ||||
|---|---|---|---|---|
| ‘Amenity’ has been so defined in Section 2( | a | ) as to | ||
| include road, water supply, street lighting, drainage, | ||||
| sewerage, public works and such other convenience as | ||||
| the State Government may, by notification in the Gazette | ||||
| specify to be an amenity for the purposes of the Act. The | ||||
| expression “engineering operations” has been defined | ||||
| under Section 2( | h) and includes the formation or laying | |||
| out means of access to a road or the laying out of means | ||||
| of water supply. “Means of access” has been defined | ||||
| under Section 2(i | ) and includes any means of access, | |||
| whether private or public, for vehicles or for foot | ||||
| passengers and includes a road.” |
8. Insofar as the levy of other charges by way of
inspection fee/supervision fee while granting of sanction
layout plan, sub-division charges, stacking charges and
impact fee etc., except levy of development charges/fees,
is concerned, while considering the legality of the levy of
such charges, the relevant provisions of the Act, 1973
are required to be considered, which are as under:
| “S. 2. Definitions - In this Act unless the context otherwise<br>requires— | ||
|---|---|---|
| (e) ‘development’ with its grammatical variations, means<br>the carrying out of building, engineering, mining or<br>other operations in, on, over or under land, or the<br>making of any material change in any building or<br>land, and includes re-development: |
Civil Appeal No. 5645/2015 Etc. Page 13 of 26
| (f) ‘Development Area’ means any area declared,<br>development area under Section 3: | ||
|---|---|---|
| (g) ‘the Development Authority’ or ‘the Authority’, in<br>relation to any development area, means the<br>Development Authority constituted under Section 4<br>for that area: | ||
| (ggg) ‘development fee’ means the fee levied upon a<br>person or body under Section 15 for construction of<br>road, drain, sewer line, electric supply and water<br>supply lines in the development area by the<br>Development Authority):] | ||
| (h) ‘engineering operation’ includes the formation or<br>laying out means of access to a road or the laying<br>out of means of water supply: | ||
| (hh) ‘Land use conversion charge’ means the charge<br>levied on a person or body under section 38-A for<br>the change of land use in the Master Plan or Zonal<br>Plan;] | ||
| (ii) ‘mutation charges’ means the charges, levied under<br>Section 15 upon the person seeking mutation in his<br>name of a property allotted by the Authority to<br>another person:] | ||
| (kk) ‘Stacking fees’ means the fees levied under Section<br>15 upon the person or body who keeps building<br>materials on the land of the Authority or on a public<br>street or public places:] | ||
| (ll) ‘water fees’ means the fees levied under Section 15<br>upon a person or body for using water supplied by<br>the Authority for building operation or construction of<br>buildings.] | ||
| xxx xxx xxx |
Civil Appeal No. 5645/2015 Etc. Page 14 of 26
| S. 14. Development of the land in the developed area -<br>(1) After the declaration of any area as development area<br>under Section 3, no development of land shall be<br>undertaken or carried out or continued in that area by any<br>person or body (including a department of Government)-<br>unless permission for such development has been<br>obtained in writing from the [Vice-Chairman) in<br>accordance with the provision of this Act. | ||
| (2) After the coming into operation of any of the plans in<br>any development area no development shall be<br>undertaken or carried out or continued in that area unless<br>such development is also in accordance, with such plans. | ||
| (3) Notwithstanding anything contained In Sub-sections<br>(1) and (2), the following provisions shall apply in relation<br>to development of land by any department of any State<br>Government or the Central Government or any local<br>authority— | ||
| (a) When any such department or local authority intends<br>to carry out any development of land it shall inform<br>the (Vice Chairman) in writing of its intention to do so<br>giving full, particulars thereof, including any plans and<br>documents, at least 30 days before undertaking such<br>development; | ||
| (b) In the case of a department of any State Government<br>or the Central Government, if the (Vice-Chairman) has no<br>objections, it should inform such department of the same<br>within three weeks from the date of receipt by it under<br>Clause (a) of the department's intention, and if the Vice-<br>Chairman does ‘not make any objection within the said<br>period, the department shall be free to carry out the<br>proposed development; |
Civil Appeal No. 5645/2015 Etc. Page 15 of 26
( c ) Where the (Vice-Chairman) raises any objection to the
proposed development on the ground that the
development is not conformity with any Master Plan or
Zonal Development Plan prepared or intended to be
prepared by it, or on any other ground, such department
or the local authority, as the case be, shall—
( i ) either make necessary modifications in the proposal
development to meet the objections raised by the [Vice-
Chairman] or
( ii ) submit the proposals for development together with
the objections raised by the [Vice-Chairman] to the State
Government for decision under Clause (d)
( d ) The State Government, on receipt of proposals for
development together with the objections of the (Vice-
Chairman) may either approve the proposals with or
without modifications or direct the department or the local
authority, as the case may be, to make such modification
as proposed by the Government and the decision of the
State Government shall be final:
the development of any land begun by any such
department or subject to the provisions of Section 59 by
any such local authority before the declaration referred to
in Sub-section (1) may be completed by that department
or local authority with compliance with the requirement of
Sub-sections (1) and (2).
S. 15. Application for permission—(1) Every person or
body (other than any department of Government or any
local authority) desiring to obtain the permission referred
to in Section 14 shall make an application in writing to
the [Vice-Chairman] in such form and containing such
particulars in respect of the development to which the
Application relates as may be prescribed by [bye-laws].
Civil Appeal No. 5645/2015 Etc. Page 16 of 26
(2) Every application under Sub-section (1) shall be
accompanied by such fee as may be prescribed by rules.
[(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.]
Provided that the amount of stacking fees levied in
respect of an area which is not being developed or has
not been developed, by the Authority, shall be transferred
to the local authority within whose local limits such area is
situated.]
xxx xxx xxx
S. 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:
Civil Appeal No. 5645/2015 Etc. Page 17 of 26
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.]
xxx xxx xxx
S. 59. Repeal etc. and Savings - (1)(a) The operation of
Clause (c) of Section 5, Sections 54, 55 and 56, Clause
(xxxiii) of Section 114, Sub-section (3) of Section 117,
Clause (c) of Sub-section (1) of Section 119, Section 191,
Sections 316, 317, 318, 319, 320, 321, 322, 323, 324,
325, 326, 327, 328, 329 and 333, Clauses (a) and (b) of
Sub-section (1) of Section 334, Sections 335, 336,
Chapter XIV of the Uttar Pradesh [U.P. Municipal
Corporation Act, 1959] Sections 178, 179, 180, 180-A,
181, 182, 183, 184, 185, 186, 203, 204, 205, 206, 207,
208, 209, 210 and 222 of the [U.P. Municipalities Act,
1916] (or the said sections as extended under Section
338 thereof or under Section 38 of the [United Provinces
Town Areas Act, 1914], or as the, case may be, of
Sections 162 to 171 of the [U.P. Kshetra Panchayat Zila
Panchayat Adhiniyam, 1961] and of the Uttar Pradesh
(Regulation of Building Operations) Act, 1958 and the
Uttar Pradesh Avas-Evam Vikas Parishad Adhinlyam,
1965, [except in relation to those housing or Improvement
schemes which have either been notified under Section
32 of Uttar Pradesh Avas Evam Vikas Parishad
Adhiniyam, 1965 before the declaration of the area
comprised therein as development area or which having
been notified under Section 28 of the said Adhiniyam
before the said declarations are bye-thereafter approved
Civil Appeal No. 5645/2015 Etc. Page 18 of 26
| by the State Government for continuance under the said<br>Adhiniyam or which are initiated after such declaration<br>with the approval of the State Government, hereinafter in<br>this section referred to as Special Avas Parishad<br>Schemes] shall in respect of a development area remain<br>suspended and Sub-section (3) of Section 139 of the<br>Uttar Pradesh [Municipal Corporation Act, 1959) shall<br>have effect as if the requirement as to constitution of a<br>Development Fund were suspended with effect from the<br>date of constitution of the Authority for that area and until<br>the dissolution of such Authority and the provisions of<br>[Sections 6 and 24 of the United Provinces General<br>Clauses Act, 1904) shall apply, in relation to such<br>suspension as if the suspension amounted to repeal of<br>the said enactment by this Act, and in particular, all<br>proceedings relating to acquisition of land and interest in<br>land for Improvement schemes under the said enactment<br>pending immediately before such suspension before any<br>court, tribunal or authority may be continued and<br>concluded in accordance with the provisions of the said<br>enactment (which shall mutatis mutandis apply) as if<br>those provisions were not suspended and the powers, for<br>doing anything which could but for such suspension of<br>the Uttar Pradesh (Regulation of Building not Operations)<br>Act, 1958, be done by the Prescribed Authority and<br>controlling authority and which can, after such<br>suspension be done by virtue of the application of<br>Section 6 of the Uttar Pradesh General Clause Act, 1904,<br>shall vest in the Vice-Chairman and the Chairman<br>respectively). | |
|---|---|
| (b) The operation of the provisions suspended by<br>virtue of Clause (a) shall revive upon the dissolution of<br>the Authority under Section 58, the provisions |
Civil Appeal No. 5645/2015 Etc. Page 19 of 26
| of [Sections 6 and 24 of the United Provinces General<br>Clauses Act, 1904] shall apply in relation to the cesser<br>of application of the corresponding provisions of this<br>Act as if such cesser amounted to a repeal of these<br>provisions of this Act by an Uttar Pradesh Act.<br>(c) Without prejudice to the generality of the provisions<br>of Clauses (a) and (b), and bye-laws, directions or<br>regulations under the [U.P. Municipalities Act, 1916] or<br>the Uttar Pradesh (Regulation of Building Operations)<br>Act, 1958 or the [U.P. Municipal Corporation Act,<br>1959) as the case may be, and in force on the date<br>immediately before the date of commencement of this<br>Act, shall, insofar as they are not inconsistent with the<br>provisions of this Act, continue in force, until altered,<br>repealed or amended by any competent authority<br>under this Act).<br>(6) Notwithstanding the provisions of Sub-sections (1)<br>and (2)<br>(a) anything done or any action taken (including any<br>notification issued or order or scheme made or<br>permission granted) under any of the enactments<br>referred to in Sub-sections (1) and shall, so far as it is not<br>inconsistent with the provisions of the Act continue in<br>force and be deemed to have been done or take under<br>the provisions of this Act unless and until it is superseded<br>by anything done or any action taken under the<br>provisions this Act; | of [Sections 6 and 24 of the United Provinces General<br>Clauses Act, 1904] shall apply in relation to the cesser<br>of application of the corresponding provisions of this<br>Act as if such cesser amounted to a repeal of these<br>provisions of this Act by an Uttar Pradesh Act. | ||
|---|---|---|---|
| (c) Without prejudice to the generality of the provisions<br>of Clauses (a) and (b), and bye-laws, directions or<br>regulations under the [U.P. Municipalities Act, 1916] or<br>the Uttar Pradesh (Regulation of Building Operations)<br>Act, 1958 or the [U.P. Municipal Corporation Act,<br>1959) as the case may be, and in force on the date<br>immediately before the date of commencement of this<br>Act, shall, insofar as they are not inconsistent with the<br>provisions of this Act, continue in force, until altered,<br>repealed or amended by any competent authority<br>under this Act). | |||
| (6) Notwithstanding the provisions of Sub-sections (1)<br>and (2) | |||
| (a) anything done or any action taken (including any<br>notification issued or order or scheme made or<br>permission granted) under any of the enactments<br>referred to in Sub-sections (1) and shall, so far as it is not<br>inconsistent with the provisions of the Act continue in<br>force and be deemed to have been done or take under<br>the provisions of this Act unless and until it is superseded<br>by anything done or any action taken under the<br>provisions this Act; | |||
| Therefore, as per Section 15(2-A) of the Act, 1973,<br>the Development Authority can levy only those charges,<br>namely, development fees, mutation charges, stacking |
Civil Appeal No. 5645/2015 Etc. Page 20 of 26
| fees and water fees. The Act, 1973 does not permit levy<br>of other charges other than provided under Section 15(2-<br>A) of the Act, 1973. | ||||
|---|---|---|---|---|
| 9. Insofar as the reliance placed upon Section 41 of the<br>Act, 1973 by the State as well as the Development<br>Authorities is concerned, at the outset, it is required to be<br>noted that the power exercisable under Section 41 by the<br>State, as such, are supervisory in nature and under the<br>said provision, the State Government can issue various<br>directions to the Development Authorities for<br>implementation of the provisions of the said Act. In para 9<br>in the case of Malti Kaul (supra), it is observed and held<br>as under: | ||||
| “9. | Section 41 envisages control by the State | |||
| Government in implementation of the provisions of the | ||||
| Act. Under sub-section (1) thereof, the authority, the | ||||
| Chairman or the Vice-Chairman shall carry out such | ||||
| directions as may be issued to it/him from time to time by | ||||
| the State Government for the efficient administration of | ||||
| this Act. Section 56 gives power to make regulations | ||||
| under the Act. Sub-section (1) thereof provides that any | ||||
| authority may, with the previous approval of the State | ||||
| Government, make regulations, not inconsistent with this | ||||
| Act and the rules made thereunder, for the administration |
Civil Appeal No. 5645/2015 Etc. Page 21 of 26
| of the affairs of the authority. Therefore, the general | ||
|---|---|---|
| power is available under Section 56 for the authority to | ||
| make regulations for the administration of the affairs of | ||
| the authority. In particular sub-section (2) thereof | ||
| provides that despite the generality of the power given in | ||
| sub-section (1) specific power has been given by way of | ||
| regulations as enumerated thereunder. Clause ( | i) which | |
| is a residuary clause provides for any other matter which | ||
| has to be or may be prescribed by the regulations.” | ||
10. An identical question came to be considered by this
Court in the case of K.K. Bhalla v. State of M.P.,
reported in (2006) 3 SCC 581 . While dealing with the
powers of the State Government under the Madhya
Pradesh Act, which is pari materia to Section 41 of the
Act, 1973, in paragraph 62, it is observed and held as
under:
| “62. | Furthermore, in terms of Section 73 of the 1973 Act, | ||
|---|---|---|---|
| the power of the State Government to issue direction to | |||
| the officers appointed under Section 3 and the authorities | |||
| constituted under the Act is confined only to matters of | |||
| policy and not any other. Such matters of policy yet again | |||
| must be in relation to discharge of duties by the officers | |||
| of the authority and not in derogation thereof.” |
11. In the case of Poonam Verma v. Delhi
Development Authority, (2007) 13 SCC 154 , while
dealing with the pari materia provision under the Delhi
Civil Appeal No. 5645/2015 Etc. Page 22 of 26
Development Authority Act (Section 41 of the DDA Act),
this Court has observed and held in para 13 as under:
| “13. | Having failed to establish any legal right in | ||
|---|---|---|---|
| themselves as also purported deficiency in services on | |||
| the part of the respondent before competent legal forums, | |||
| they took recourse to remedies on administrative side | |||
| which stricto sensu were not available. It has not been | |||
| shown as to on what premise the Central Government | |||
| can interfere with the day-to-day affairs of the | |||
| respondent. Section 41 of the Act, only envisages that | |||
| the respondent would carry out such directions that may | |||
| be issued by the Central Government from time to time | |||
| for the efficient administration of the Act. The same does | |||
| not take within its fold an order which can be passed by | |||
| the Central Government in the matter of allotment of flats | |||
| by the Authority. Section 41 speaks about policy decision. | |||
| Any direction issued must have a nexus with the efficient | |||
| administration of the Act. It has nothing to do with | |||
| carrying out of the plans of the authority in respect of a | |||
| particular scheme.” |
12. Under the circumstances, in exercise of powers
under Section 41 of the Act, 1973, the State could not
have issued the orders permitting/allowing the
Development Authorities to levy the charges/fees other
than provided under Section 15(2-A) of the Act, 1973. At
this stage, it is required to be noted that the levy of
fees/charges provided under Section 15(2-A), all of them
Civil Appeal No. 5645/2015 Etc. Page 23 of 26
have been specifically defined under Section 2 of the Act,
1973. Therefore, the intention of the Act is to levy only
those charges/fees provided/mentioned under Section
15(2-A) of the Act, 1973, otherwise the other charges
also would have been defined under the Act, 1973. Levy
of such other charges can be said to be hit by Article 265
of the Constitution of India. As per Article 265 of the
Constitution of India, there shall not be any levy of
tax/fees/charges except in accordance with law and/or as
provided under the statute. Under the circumstances and
in view of the above, the High Court has rightly set aside
the various demand notices by way of levy of inspection
fee/supervision fee while granting of sanction lay out
plan, sub-division charges, impact fee etc.
13. In view of the above and for the reasons stated
above, the levy of development charges/fees by the
various Development Authorities of the State of U.P. is
hereby confirmed. The decision of the High Court in the
Civil Appeal No. 5645/2015 Etc. Page 24 of 26
case of Rekha Rani (supra) (Civil Appeal No.
4489/2014) quashing and setting aside the levy of
development charges/fees is hereby quashed and set
aside to that extent. The impugned judgments and
orders passed by the High Court quashing and setting
aside the demand notices/levy of other charges/fees,
namely, inspection fee/supervision fee while granting of
sanction layout plan, sub-division charges, impact fee
etc. (other than development charges/fees) are hereby
confirmed.
14. It is observed and directed that any amount already
paid by the respective original writ petitioners other than
the development charges/fees and the charges provided
under Section 15(2-A), now be refunded to the
respective original writ petitioners with 6% interest per
annum, within a period of twelve months from today, of
course after adjusting development charges/fees. It is
made clear that we have not expressed anything on the
Civil Appeal No. 5645/2015 Etc. Page 25 of 26
levy of betterment charges, which, as such, is otherwise
permissible under section 35 of the Act, 1973. It is also
made clear that the order of refund shall be applicable
only with respect to those original writ petitioners/persons
who have challenged the demand notices and who were
before the High Court. It is also observed and it is made
clear that if any individual/original writ petitioner has any
other grievances, it will be open for them to approach the
High Court by way of independent proceedings.
15. The present appeals stand disposed of in terms of
the above. In the facts and circumstances of the case,
there shall be no order as to costs.
………………………………J.
[M.R. SHAH]
NEW DELHI; ……………………………….J.
APRIL 28, 2023. [C.T. RAVIKUMAR]
Civil Appeal No. 5645/2015 Etc. Page 26 of 26