# C/M v. Regional Dy. Director of Education (Basic) Meerut and others

- **Citation:** (2003) 3 ILRA 661
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-07-01
- **Case number:** Civil Misc. Writ Petition No. 47222 of 2002
- **Bench:** M. Katju, R.S. Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-v-regional-dy-director-of-education-basic-meerut-and-others-40153
- **Pages:** 17

## Headnote

Act, 1973- Sections 15 (2-A), 2 (ee), 2
(jj), 2 (kk), 33, 35, 36, 37 and 38-U.P.
Regulation of building operations Act,
1958- Ss 5 and 7 (2-(C)- U.P. Water
supply and sewerage Act, 1975- Power
under-Arbitrary
exercise of- IllegalApplication for sanction of map-Demand
notice demanding exorbitant amounts as
permit fee, water fee, stocking fee,
division
fee,
development
charges,
Inspection fee and open area penaltyheld arbitrary and illegal. Since no
development activity services rendered
by ADA- cannot charge development
charge.

Held- paras 62 and 63

In the present cases we find that the
demand
is
not
preceded
by
any
development work which might have
been done by the A.D.A. in relation to the
land in question.

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662 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
In view of the above discussion, we are
of
the
opinion
that
the
impugned
demands levied by the A.D.A. are ex facie
unauthorized and illegal and are hereby
quashed.

## Text

_Characters 0–39,837 of 54,904. This is a partial read: ask again with offset=39837 for what follows._

3 All] C/M V. Regional Dy. Director of Education (Basic) Meerut and others
661
Special Appeal is clearly devoid of merit
and is not at all sustainable.

17. Taking into consideration the
facts and circumstances as brought on
record, we are clearly of the opinion that
it will be appropriate that the impugned
orders, which are claimed to have been
passed without affording any reasonable
opportunity of hearing to the petitioner
deserve to be quashed with the liberty to
the present appellant as well as the
present respondent nos. 1 and 2 to hold an
inquiry into the aforesaid matter of fraud
and misrepresentation of facts and other
aspects going to the root of the matter
after proceeding in accordance with law
ensuring that the entire exercise is
completed within three months from
today.

18. This Special as well as the writ
petition
shall
stand
disposed
of
accordingly.

19. It is, however, provided that the
salary and other allowances to which the
petitioner is entitled on the basis of the
earlier approval of her appointment by the
Basis Shiksha Adhikari dated 06.02.1993
shall be paid to her henceforth subject to
her furnishing adequate security for the
amount to the satisfaction of the Basis
Shaiksha
Adhikari,
Ghaziabad.
The
security may included the amount lying
with the State to the credit of the
petitioner like provident Fund etc.

20. The petitioner-respondent shall
cooperate in the inquiry.

Ordered accordingly.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 1.7.2003

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE R.S. TRIPATHI, J.

Civil Misc. Writ Petition No. 47222 of 2002

Shaukat Ali

...Petitioner
Versus
Allahabad Development Authority and
another

 ...Respondents

Counsel for the Petitioner:
Sri Sudhir Kumar
Sri M.K. Khan

Counsel for the Respondents:
Sri B.B. Paul
Sri A.K. Misra

U.P. Urban Planning and Development
Act, 1973- Sections 15 (2-A), 2 (ee), 2
(jj), 2 (kk), 33, 35, 36, 37 and 38-U.P.
Regulation of building operations Act,
1958- Ss 5 and 7 (2-(C)- U.P. Water
supply and sewerage Act, 1975- Power
under-Arbitrary
exercise of- IllegalApplication for sanction of map-Demand
notice demanding exorbitant amounts as
permit fee, water fee, stocking fee,
division
fee,
development
charges,
Inspection fee and open area penaltyheld arbitrary and illegal. Since no
development activity services rendered
by ADA- cannot charge development
charge.

Held- paras 62 and 63

In the present cases we find that the
demand
is
not
preceded
by
any
development work which might have
been done by the A.D.A. in relation to the
land in question.

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662 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
In view of the above discussion, we are
of
the
opinion
that
the
impugned
demands levied by the A.D.A. are ex facie
unauthorized and illegal and are hereby
quashed.

(Delivered by Hon'ble M. Katju, J.)

1. These two writ petitions are being
disposed off by a common judgment.

Heard learned counsel for the parties.

2. These two writ petitions as well
as several similar writ petitions listed
today before us disclose how the local
authorities in the State are demanding and
realizing illegal amounts from the citizens
causing
immense
harassment
and
hardship to the common man.

3. What is happening in Allahabad
and other cities of the State is that
whenever a citizen wants to make a
building on his own land he has to apply
for sanction of a map under section 15 of
the
U.P.
Urban
Planning
and
Development
Act,
1973
(hereinafter
referred to as the Act), and whenever such
application for sanction of a map is made
the Allahabad Development authority
immediately sends a bill to the applicant
demanding exorbitant amounts before
sanction of the map. These bills have been
challenged in these two writ petitions and
in several others connected writ petitions
and a perusal of the same shows that
almost all these demands are illegal (as
will be presently demonstrated). However
unless these amounts are paid the map is
not sanctioned or released, causing great
harassment to the applicant. Thus the
Allahabad Development Authority, as
well as other Development Authorities in
the State, which have been constituted
under the Act have become agencies of
harassment to the public instead of being
agencies of service to the people.
4. In writ petition no. 47222 of 2002
the petitioner Shaukat Ali has challenged
the impugned demand notice dated
23.10.2002 issued by the Allahabad
Development
Authority
(hereinafter
referred to as A.D.A.) copies of which are
Annexures 7 and 8 to the writ petition.

5. A perusal of Annexure 7 to the
writ petition shows that the A.D.A. has
demanded
from
the
petitioner
the
following amounts, permit fee, water fee,
stacking fee, division fee, development
charges, inspection fee, open area penalty
etc. The total amount comes to Rs.
1,03,281/-.
Approximately
the
same
amount has also been demanded by the
notice, copy of which is Annexure 8.

6. The facts in writ petition no.
47222 of 2002 are that the petitioner had
acquired a portion of property no.24/30
Thornhill Road, Allahabad from the
recorded owner vide sale deeds Annexure
1 to 4, to the petition. On 24.9.2002 and
23.10.2002 the petitioner had submitted
two separate applications with maps of
the constructions he wanted to make on
this property. Copies of the receipts of
deposit of permit fees are Annexures 5
and 6. In response to these applications,
the A.D.A. has issued the impugned
demand notices Annexure 7 and 8.

7. As regards the demand for permit
fees it is stated in para 7 of the petition
that the petitioners has already deposited
the permit fees vide receipts Annexure 5
and 6 to the petition. Hence further
demand of permit fee is clearly illegal.

8. It is stated in para 8 of the petition
that the A.D.A. itself does not supply any
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663
water for construction of the building.
Water supply is done by the Jal Sansthan.
Hence the demand of water fee/charges
by A.D.A. is also illegal.

9. As to the demand of stacking fee
(Malwa charge), it is alleged in para 9 of
the petition that the A.D.A. has not
rendered any assistance to the petitioner
for raising the constructions. Hence the
demand is illegal.

10. As regards the demand of
division charge it is alleged in paras 10 of
the petition that this is without any
statutory sanction and hence it is illegal.

11. Concerning the demand of
development charges, petitioners assert in
para 11 of the petition that the A.D.A.
does not provide any assistance, much
less development, and hence this demand
is also illegal.

12. As regards inspection charges
and open area penalty demanded by the
A.D.A., the petitioners contended that the
same have no sanction of law, and hence
are illegal.

13. The A.D.A. has filed counter
affidavit and it is alleged in para 7 of the
same that the demand raised by the
impugned notices is just and proper. In
para 11 it is stated that the demand of
water charges is referable to section 15
(2A) of the Act read with Section 2 (ii) of
the said Act. As regards the demand of
Malwa charges the same is referable to
Section 15 (2A) read with Section 2 (kk).
As regards division charges, inspection
charges and open space charge it is
alleged in para 13 that the same is
referable to Sections 5 and 7 (2C) of the
U.P. Regulation of Building Operations
Act, 1958.

14.
A
supplementary counter
affidavit has also been filed by the A.D.A.
in writ petition no. 47222 of 2002 and in
para 4 it is admitted that the A.D.A. does
not supply water. However it is alleged
that the A.D.A. is entitled to collect water
fee from the parties seeking sanction of
the proposed construction building, and
subsequently the same is transferred to the
concerned local authority, the A.D.A. has
given a list of the colonies allegedly
constructed by the A.D.A.

15. Writ petition no. 23281 of 2001
has been filed against the impugned
demand notices dated 28.5.2001 issued by
the A.D.A. (annexures 8 and 9 to the
petition) by which demand has been made
from the petitioners of various charges.

16. The petitioners in writ petition
no. 23281 of 2001 purchased a portion of
house no. 130-A Civil Station Allahabad,
through
registered
sale
deeds.
The
property was initially lease property but in
1995 it was converted into free hold
property by the District Magistrate,
Allahabad.

17. The petitioners applied for
sanction of a plan to construct a
residential house on the land but no such
sanction was granted by the A.D.A.
Subsequently the petitioners raised some
construction over the land and also
applied on 14.5.99 for compounding the
constructions under the scheme framed by
the A.D.A. The petitioners no. 1 deposited
Rs. 1,18,000 on 11.3.2001 and Rs. 16,000
on 12.5.99 vide Annexure 1 and 2. The
petitioner no. 2 deposited Rs. 50,000 on
24.3.2001 and Rs,.16,000 on 12.5.1999
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664 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
vide Annexure 3 and 4. The petitioner no.
1 also deposited Rs. 6038 towards water
charges with Jal Sansthan Allahabad, on
17.10.2002
while
petitioner
no.
2
deposited Rs. 4704 and Rs. 1175 with Jal
Sansthan vide Annexures 6 and 7. In para
9 of the petition it is stated that the
A.D.A. has issued two separate demand
notices dated 28.5.2001 to the petitioners
for an amount of Rs. 2,42,457/- and Rs.
1,17,184/- respectively vide annexure 8
and 9.

18. A perusal of the demand notice
shows that it has demanded Rs. 14152/- as
water charges and Rs. 4544/- as malwa
charges. A further amount of Rs. 16929/-
has been demanded as sub division
charges while another amount of Rs.
96,189/- has been demanded towards
development charges and Rs. 84645/- has
been demanded towards open space
charges.

19. In para 12 of the petition it is
stated that the demand made by the
A.D.A. is wholly illegal. As regard the
water charges, it is alleged in para 14 of
the petition that the same was already
deposited by the petitioners with the Jal
Sansthan, Allahabad and hence no further
demand can be raised. As regard malwa
charges, the demand is illegal as no
property of the Nagar Nigam or A.D.A.
has been utilized by the petitioners for the
purpose of storage. It is alleged in para 16
of the petition that although Section 302
(1) (b) of the U.P. Nagar Mahapalika
Adhiniyam 1959 permits charge of fee for
the use of land or street vested in the
Mahapalika (now Nagar Nigam) for the
deposit of the building material, no
demand can be made in this respect from
the petitioners as they have not used any
property or street of the Mahapalika for
storing the building materials.

20. It is alleged in para 17 of the
petition that the U.P. Urban Planning and
Development Act, 1973 prescribes the
matter in which permission for raising
construction is to be granted by the
development authority, and the charge or
taxes which can be levied for this
purpose. It is alleged that the Act does not
provide
for
the
levying
of
any
development charges from a person who
raises constructions, and hence the
demand is illegal. Section 33 empowers
the authority to provide amenities or carry
out development at the cost of the owner
only in the event of his default. Section 33
has been quoted in para 20 of the writ
petition. In para 21 of the petition it is
alleged that the A.D.A. has not provided
any amenity nor has it carried out any
development activity in respect of the
plots over which the constructions have
been raised by the petitioners, and all the
development activities and the amenities
have been provided by the petitioners
themselves from their own resources.
Hence the development charges are
illegal. As regard the betterment charges
under section 35, the same can be
imposed only if the value of the property
has gone up due to the development
scheme of the authority. It is alleged that
no such development scheme has been
initiated by the A.D.A. and as such the
demand is illegal. It is alleged in para 23
of the petition that the sub division charge
is not justified as no levy can be imposed
by the A.D.A. under the Adhiniyam or
Regulations. As regard the open space
charges a perusal of the demand notice
would indicate that initially the word
'parking fee' was printed therein which
has subsequently scored out and the same
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has been substituted as open space
charges. It is alleged in para 25 of the
petition that neither any park has been
provided by the A.D.A. ;nor any space or
any other ground has been provided to the
petitioners or other residents and as such
this charge is illegal. It is alleged in para
26 that the petitioners have already
deposited a substantial amount with the
A.D.A. towards compounding charges but
no amount is payable as malwa charges,
water charges and sub division charges,
development charges or open space
charges.

21. A counter affidavit has been
filed by the A.D.A. and we have perused
the same. In para 3 of the same it is stated
that Nazul plot no. 130-A Civil Station
Allahabad originally belonged to one R.S.
David and others and their representative
who floated a residential colony thereon
without submitting a lay out plan before
the competent authority under the U.P.
Urban Planning and Development Act,
1973 and the Rules and Regulations
framed there under. This residential
colony did not contain any external and
internal development. It also lacked roads,
water supply, drainage and sewerage
system etc. The petitioners raised their
constructions without taking sanction and
also applied for compounding. The
respondents have relied on the decision
the Supreme Court in State of U.P. versus
Smt. Malti Kaul 1997 (1) UPLBEC 99. In
para 20 of the counter affidavit it is stated
that the water charges can be levied by the
development authority under the Act. It is
stated
that
charging
of
malwa
fees/stacking fee by the development
authority are referable to the Section 35 to
38 of the Act, and have rightly been
demanded. Sub Division charges and
open space charges are also permitted
under the Act and the Regulations.

22. We have also perused the
rejoinder affidavit, and have carefully
considered the submission of the learned
counsel for the parties.

We may deal with the various
demands made by the impugned notices
seriatim. These demands are :
(i) Water charges
(ii) Malwa charges
(iii) Sub Division Charges
(iv) Development charges
(v) Open space charges

23. As regard the water charges it
may be mentioned that clause (ii) of
Section 2 of the Act as amended by U.P.
Act no. 3 of 1997 defines water fees as
follows:

"Water fees' means the fees levied
under Section 15 upon a person or body
for using water supplied by the Authority
for building operation or construction of
building'.

Section 15 (2A) after its amendment
by U.P. Act no. 3 of 1997 states:
"The Authority shall be entitled to
levy development fees, mutation charges,
stacking fees and water fees in such
manner and as such rates as may be
prescribed."

Water charges are claimed by the
A.D.A. in accordance with the aforesaid
provision. The rate calculated is (a) 29 of
the construction cost of ground floor and
(b) of the construction cost of first floor
and above. In this connection G.O. dated
15.5.88 has been filed by the A.D.A. as
Annexure 2 to the Supplementary Counter
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666 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
Affidavit in Writ Petition No. 23244 of
2001 Smt. Rekha Bhargawa versus
A.D.A. and others.
24. Clause (ll) of Section 2 of the
Act was inserted by U.P. Act No. 3 of
1997 which came into effect from 1.5.97.
There was no mention of water fee earlier
in the Act. The demand of water fee
charges pertaining to any period before
1.5.97 is obviously illegal because clause
(ll) has not been inserted retrospectively.
The question, however, remains about the
prospective operation of clause (ll).

25. Clause (ll) defines 'water fee to
mean' fee levied under section 15 upon a
person or body for using water supplied
by the Authority for building operation or
construction of building."

26. It may be seen from the above
definition that water fee can only be
charges if water is supplied by the A.D.A.
It has been admitted in para 4 of the
supplementary affidavit of the A.D.D. in
writ no. 47222 of 2002 that the A.D.A.
does not supply water to any one. In fact
it
is
common
knowledge
that
in
Allahabad, as in other cities in U.P. water
is supplied by the Jal Sansthan constituted
under the U.P. Water Supply and
Sewerage Act, 1975. The A.D.A. has no
water works of its own. We can take
judicial cognizance of these facts. Hence
the demand of water charges is clearly
unauthorized and illegal, because section
2 (ll) states that water fee can be charged
when the water is supplied by the
Authority
and
not
by
some
other
authority. Moreover, no proof has been
furnished by the A.D.A. that it passes on
the water fee collected by it to the Jal
Sansthan. Also, the petitioners have
alleged in the writ petition that they have
paid water charges to the Jal Sansthan,
and this is not denied.

We now come to the second demand,
namely,
of
Malwa
charges.
The
petitioners in writ petition no. 23281 of
2001 in para 14 have alleged that no
property or street of the Nagar Nigam or
A.D.A.
has
been
utilized
by
the
petitioners for the purposes of storing the
building material and hence the demand is
illegal.

Staking fee is claimed by the A.D.A.
under Section 2 (kk) read with Section 15
(2A) of the Act as amended by U.P. Act
No. 3 of 1997. The rate calculated is
Rs.11/- per square meter of the proposed
construction plan vide G.O. dated 5.2.98
which is Annexure 4 to the supplementary
counter affidavit filed in writ petition no.
23244 of 2001.

Sub section (kk) of the section 2 as
inserted by U.P. Act No. 3 of 1997 states:

"(kk) 'stacking fees' means the fees
levied under section 15 upon the person
or body who keeps building materials on
the land of the Authority or on a public
street or public place.'

27. The above definition clearly
mentioned that the stacking fee can only
be charged for keeping material on the
land of the Authority or public place or
street, and it cannot be charged for
keeping building material elsewhere (e.g.
on one's own land).

28. It is alleged in para 14 of the
writ petition no. 23281 of 2001 that no
property of the Nagar Nigam or A.D.A.
has been utilized by the petitioners for
stacking the building material. In para 16
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667
it is alleged that no property or street of
the Mahapalika now (Nagar Nigam) has
been utilized by the petitioners for the
purposes of storing the building material.

29. The reply to paras 14 and 16 of
the writ petition is contained in paras 21
of the counter affidavit merely states:

"That contents of paragraph 14 of the
writ petition as stated are not correct and
denied. It is added that charging of Malwa
fees/stacking fee by the development
authority is specifically permitted under
U.P. Act No. 3 of 1997 amending U.P.
Urban Planning and Development Act,
1973".

Paragraph 22 of the counter affidavit
states:

"That contents of paragraph nos. 15,
16 and 17 of the writ petition as stated are
not correct and denied and in reply it is
reiterated that demand notice dated
28.5.2001
issued
by
respondent
development authority to the petitioners is
just and proper and the same is well
founded on law and facts involved in the
case."

30. A perusal of both the paras 21
and 22 of the counter affidavit shows that
the allegations of the petitioners in writ
no. 23281 of 2001 that they are not
stacking their building material on the
land of the authority or public street have
not been specifically denied by the
respondents. It is a well settled law of
pleadings that a specific averment must be
given a specific reply, otherwise it will be
deemed to be admitted. When the
petitioners have specifically denied that
they stacked their materials on the land of
the authority or public place then it was
incumbent on the A.D.A., if it wanted to
levy
staking
fee,
to
have
clearly
mentioned
where
exactly
did
the
petitioners stack their materials, but that
has not been done. Hence the allegations
in paras 14 and 16 of the writ petition
have to be treated as unrebutted and the
demand of stacking fee is thus wholly
illegal. Reference by the respondents to
sections 35 to 38 of the Act are wholly
misconceived, as these provisions deal
with betterment charges which, as a bare
perusal of section 35 indicates, can only
be levied if any development scheme has
been executed by the Authority in the area
in question due to which the value of the
property has increased or will increase.
No such development scheme has been
executed in the area in question, as stated
in paragraph 21 of the writ petition no.
23281 of 2001 and paragraph 11 of the
writ petition no. 47222 of 2002.

31. We now come to the third
demand i.e. of sub division charges. It is
alleged in para 23 of writ petition no.
23281 of 2001 that a demand of Rs.
16929/- from petitioner no. 1 and Rs.
7837/- from petitioner no. 2 towards sub
division charges is not justified as no such
levy can be imposed by the development
authority under the provision of the Act or
Regulations framed there under. It is also
alleged that the Development Authority
can only realize fee or taxes as provided
for under the Act and no levy can be
made which is not contemplated by the
Act.

32. The reply to paras 23 and 24 of
writ petition no. 23281 of 2001 is
contained in para 26 of the counter
affidavit of the A.D.A. It is stated therein
that the sub division charge and open
space charge are permissible under the
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668 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
Act and the rules and regulations framed
there under. However, in the counter
affidavit no specific mention of any
particular provision of the Act or rules or
Regulations has been made. In our
opinion the A.D.A. can only levy such
taxes, fees or charges as are contemplated
by the Act. We have not been shown any
provision of the Act, which permits the
levy of sub division charges or open space
charges. Even in the amendment to the
Act by U.P. Act no. 3 of 1997 there is no
mention of open space charges or sub
division charges.

33. It may be mentioned that section
15 (2A) of the Act refers only to
development
fees,
mutation
charges,
stacking fee and water charges. There is
no mention of open space charges or sub
division charges in section 15 of the Act.
No doubt para 4 of the supplementary
counter affidavit mentions that sub
division charge is referable to certain
G.Os., but in our opinion a G.O. is not a
statutory provision. Hence the charge is
illegal.

34. As regards section 33 of the Act,
in our opinion this provision does not
permit the A.D.A. to levy sub division
charges or open space charges, as a bare
perusal
of
the
provision
indicates.
Moreover it has been categorically
asserted in para 21 of writ petition no.
23281 of 2001 that the A.D.A. has not
provided any amenity nor has it has
carried out any development activity in
respect
of
the
plots
over
which
constructions have been raised by the
petitioners, and all the development
activities
and
amenities
have
been
provided by the petitioners themselves
from their own resources. This allegation
in para 21 of the petition has been replied
to in paragraph 25 of the counter affidavit.
Paragraph 25 of the counter affidavit
states :
"That contents of paragraph no. 21 of
the writ petition are denied. It is reiterated
that demand of development charge is
specifically allowed under U.P. Act no. 3
of 1997."

35. It is well settled that a bald
denial to a pleading will tantamount to an
admission vide Bagat and Co. vs. East
India Trading Co. AIR 1964 SC 538 (para
11). A specific plea has to be given a
specific reply, and a mere bald denial is
not sufficient. This is clearly provided for
in order 8 Rule 5 C.P.C., and even though
the C.P.C. is not in terms applicable to
writ jurisdiction many of its general
principles apply. In our opinion the
principle of order 8 Rule 5 C.P.C. applies
to writ petitions also. Hence we are of the
opinion that the averments of the
petitioners in para 21 of writ petition no.
23281 of 2001 that the A.D.A. has not
provided any amenity nor carried out any
development activity in respect of the
plots in question, and all amenities and
development have been provided and
done
by
the
petitioners
themselves
through their own resources, is correct.

36. We now come to the fourth
demand of the A.D.A. i.e. of development
charges. We have already mentioned that
in para 21 of writ petition no. 47222 of
2002 the petitioners have stated that the
A.D.A. has not done any development
work in respect of the plots in question
nor provided any amenity and this
allegation has not been specifically denied
by the A.D.A. in its counter affidavit.

37. Learned counsel for the A.D.A.
has however, relied on the decision of the
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3 All] Shaukat Ali V. Allahabad Development Authority and another
669
Supreme Court in State of U.P. versus
Smt. Malti Kaul 1996 (10) SCC 425.

We have carefully perused the above
decision.

38. It may be mentioned that this
Court in Smt. Malti Kaul vs. A.D.A. AIR
1995 All 397 had held that there is no
statutory
provision
for
realizing
development charges. This court had
relied on the decision of the Supreme
Court in A.D.A. vs. Sharad Kumar AIR
1992 SC 2038 in which it was held that
without an express statutory provision
authority cannot impose a tax or fee. This
court also referred to the decisions in
Hingir Rampur Coal Co. vs. State of
Orissa AIR 1961 SC 459, Jagannath
Ramanuj Das versus State of Orissa AIR
1554 SC 400 and Delhi Municipal
Corporation vs. Mohd. Yasin AIR 1983
SC 617 in which it was consistently held
by the Supreme Court that there should be
a specific statutory provision empowering
the authority to impose a levy, otherwise
the imposition will be illegal. The A.D.A.
had urged before this Court in Malti
Kaul's case that development fee can be
levied on the basis of the G.O. dated
12.8.1986, but this Court negatived this
contention holding that there must be a
statutory provision for imposing of the
development fee/ charge and since there
was none, the said charge/fee is illegal.

39. Against the decision of this
Court in Smt. Malti Kaul's case (supra)
the State Govt. filed an appeal before the
Supreme Court which was allowed vide
state of U.P. vs. Malti Kaul 1996 (10)
SCC 425. We have carefully examined
the decision of the Supreme Court in
Malti Kaul's case. In para 8 of the said
decision it has been observed that Section
33 of the Act give the power to the
development
authority
to
provide
amenities or carry out development at the
cost of the owner in the event of his
default and to levy chess in certain cases.
Under sub section 1 of section 33 if the
authority is satisfied after conducting an
enquiry that any amenity in relation to
any land in the development area has not
been provided in relation to that land,
which in the opinion of the authority,
ought to have been provided, then after
giving opportunity of hearing to the
owner it may impose the development
charges. Sub section 2 of section 33
contemplates that if any amenity is not
provided and development not carried out
within the time specified the authority
may itself provide the amenity or carry
out the development itself or through
some agency as it deems fit, and all
expenses incurred in this work can be
recovered from the owner in the manner
indicated in sub section 4.

40. Thus the Supreme Court has
held
that
the
power
to
impose
development charge/fee is contained in
section 33 of the Act.

Section 33 of the said Act states:

"(1) If the authority after holding a
local inquiry or upon report from any of
its officers or other information in its
possession, is satisfied that any amenity in
relation to any land in the development
area has not been provided in relation to
that land which, in the opinion of the
Authority ought to have been or ought to
be provided or that any development of
the land for which permission, approval
or sanction had been obtained under this
Act or under any law in force before the
coming into force of this Act has not been
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670 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
carried out, it may, after affording the
owner of the land or the person providing
or responsible for providing the amenity a
reasonable opportunity to show cause, by
order require him to provide the amenity
or carry out the development within such
time as may be specified in the order.

(2) If any amenity is not provided or any
such development is not carried out
within the time specified in the order, then
the Authority may itself provide the
amenity or carry out the development or
have it provided or carried out through
such agency as it deems fit.
Provided that before taking any action
under this sub section, the Authority shall
afford a reasonable opportunity to the
owner of the land or to the person
providing or responsible for providing the
amenity to show cause as to why such
action should not be taken.

(3) All expenses incurred by the Authority
or the agency employed by it in providing
the
amenity
or
carrying
out
the
development together with interest at such
rate as the State Government may be
order fix from the date when a demand for
the expenses is made until payment may
be recovered by the Authority from the
owner or the person providing or
responsible for providing the amenity as
arrears of land revenue, and no suit shall
lie in the civil court for recovery of such
expenses."

41. We have carefully perused the
said
section,
which
indicates
that
development charges under section 33 can
only be realized if, and only if, the
authority does some development work or
some amenity is provided by it. Also, a
perusal of Section 33 indicates that the
procedure mentioned in that provision has
to
be
strictly
followed
before
development charge can be levied.
According to that procedure, first the
development authority has to be satisfied
(after
an
enquiry
or
a
report
or
information) that some development has
not been done or amenity not provided by
the owner. The Authority must then, after
giving the owner opportunity of hearing,
order him to do so. If after such order the
owner does not comply with it then the
Authority, after giving the owner another
opportunity of hearing, may itself develop
the land or provide the amenity, and
realize the cost from the owner.

42. Thus an elaborate procedure has
been laid down in Section 33 which must
be complied with before development
charges can be realized. This procedure
has been given a complete go by the
A.D.A.,
and
instead
the
invariable
practice adopted by it is what whenever
an Application is filed for sanction of a
map (under section 15) a demand for
development charges (and also other
charges) is immediately issued. This is
clearly in violation of Section 33.

In para 21 of writ petition no. 23281
of 2001 it has been stated by the
petitioner:
"That the petitioners categorically
assert that the development authority has
not provided any amenity nor it has
carried out any development activity in
respect of the plots over which the
constructions have been raised by the
petitioners, and all the development
activities and the amenities have been
provided by the petitioners, themselves
from their own resources. Thus the
Development Authority has not incurred
any expenses towards the aforesaid head
and in view of which the demand made
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towards development charges is clearly
unjustified
in
law".
The
reply
to
paragraph 21 of the writ petition is
contained in para 25 of the counter
affidavit which states:

"That contents of paragraph no. 21 of
the writ petition are denied. It is reiterated
that demand of development charge is
specifically allowed under U.P. Act No. 3
of 1997".

43. A perusal of para 25 of the
counter affidavit shows that there is no
specific denial of the factual allegations of
the petitioners in para 21 of writ petition
No. 23281 of 2001 that no development
activity has been done by the A.D.A. nor
any amenity has been provided to the
petitioners by the A.D.A. It is well settled
that a bald denial will amount to an
admission. The averment in para 21 of the
writ petition no. 23281 of 2001 should
have been specifically replied to by the
A.D.A. in its counter affidavit. The
petitioner has categorically alleged in para
21
of
the
writ
petition
that
no
development work has been done by the
A.D.A. on the land in question nor has
any amenity been provided to the
petitioners. It was incumbent on the
respondents if it wished to deny the said
allegations to have specifically mentioned
what development activity has been done
by the A.D.A. and what amenity has been
provided by it to the petitioners in respect
of the petitioners' land, but that has not
been done. In the absence of any specific
pleadings in the counter affidavit we have
to accept the allegation in para 21 of writ
petition no. 47222 of 2002 that no
development activity in respect of the
plots in question was done by the A.D.A.
nor any amenity provided by it. The
houses in question are situated at
Thornhill Road, Allahabad which is a
road built during British times (as in well
known) and it is maintained by the
P.W.D. The A.D.A. has neither built the
Thornhill Road nor maintains it. In fact it
was not even in existence when Thornhill
Road was built. No doubt the A.D.A. has
power under section 33 to impose
development charges if it does some
development work, but in the case of the
petitioners no such development activity
has been done by the A.D.A.; nor amenity
provided by it to the petitioners, and the
procedure prescribed in section 33 was
clearly not followed. In fact all the
development work in the area was done
by the concerned authorities in Allahabad
in British days, as is of common
knowledge.
We
can
take
judicial
cognizance of this fact.

44. The land on which the buildings
in question were built was not developed
by the A.D.A. but by some other agency
or authority (probably the P.W.D.). Hence
in our opinion no development fee/charge
can be levied in this connection.

45. However, there are some
colonies in Allahabad which have been
built by the A.D.A. whose list is given in
Annexure SCA to the supplementary
counter affidavit in writ petition no.
47222 of 2002. The A.D.A. can charge
development charges in respect of these
colonies which it developed (though even
here the levy of development charge/fee
must have some co-relation to the
expenses incurred by the A.D.A. for the
development work it has done, and it
should not be arbitrary or exorbitant). It
can also levy development charge in
respect of other land in relation to which
it has done some development work.
However, even in such cases it must
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672 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
comply with the procedure laid down in
Section 33.

46. We are therefore, of the opinion
that
A.D.A.
can
levy
development
fee/charge only where some development
work has been done by the A.D.A. in
relation to the land in question, and there
too, the charge must have some corelation with the expenses incurred by the
A.D.A. in this connection, and the
procedure of section 33 must be followed.

47. There are certain colonies in
Allahabad which have been developed by
bodies other than the A.D.A. e.g. the
Awas Evam Vikas Parishad constituted
under the U.P. Awas Evam Vikas
Parishad Act, which is a statutory body.
One fails to understand how the A.D.A.
can charge development charges from the
owners of the building in such colonies
which were not developed by the A.D.A.
and no amenity has been provided to them
by it. Hence we make it clear that only
where some development work was done
by the A.D.A. can it charge development
charges, and there too the levy should
have some co relation to the expenses
incurred in the development work, and the
procedure laid down in section 33 must be
followed.

48. In Smt. Malti Kaul's case
(supra) the Supreme Court has referred (in
para 10 of the judgement) to Section 59
(1) (c) of the Act which states that any
directions or regulations made under the
U.P. (Regulation of building operations)
Act,
1958
in
force
on
the
date
immediately
before
the
date
of
commencement of the Act, shall in so far
as they are not inconsistent with the
provisions of this Act, continue in force
until altered, repealed or amended by any
competent authority under the Act.

49. The Supreme Court in Malti
Kaul's case (supra) has referred to clause
8 (vii) of the U.P. ( Regulations of
building
operation)
Directions
1960
which states :

"(vii) The applicant has entered into
an agreement with the local body
concerned for the land and for provision
of
other
amenities
and
has
either
deposited the full estimated cost of the
development and provision of other
amenities with that local body in advance
or has given to it a bank guarantee
equivalent to such cost, or has entered
into an agreement with that local body,
providing that the full cost thereof may be
realized by it out of the sale proceeds of
the plots that may be sold by the
applicant;

Provided that any such agreement
between the applicant and the local body
may provide for any part of the
development and provision of other
amenities being carried out by the
applicant himself, however that in respect
of any such part he shall give adequate
security to the local body to secure that he
shall
carry
out
such
part
of
the
development and provide other amenities
in
accordance
with
the
approved
standards
and
specifications
to
the
satisfaction of the Controlling Authority."

A careful perusal of clause (vii)
shows that this clause is applicable where
the
applicant
has
entered
into
an
agreement with the local body concerned
for development of the land and for
provisions of their amenities. Hence
obviously it has not application where
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3 All] Shaukat Ali V. Allahabad Development Authority and another
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there is no such agreement between the
applicant and the local body for the
development of the land and for the
provision of other amenities. It is not
alleged by the respondents in this case
that there was any; such agreement
between the petitioners and the local body
concerned for development of the land
and for provision of amenities.

50. In para 21 of the writ petition no.
23281 of 2001 it has been categorically
asserted that the development authority
has not provided any amenity nor has it
carried out any development activities in
respect of the plots over which the
constructions have been raised by the
petitioners, and the development activities
and amenities have been provided by the
petitioners themselves from their own
resources.

51. We, therefore, clarify that clause
(vii) of the said Directions will only apply
where there is an agreement between the
applicant and the local body for the
development of the land and for providing
of other amenities.

52.