# Dr. Umesh Chandra Maheshwari v. Mathura/Vrindavan Development Authority and another

- **Citation:** (2010) 1 ILRA 325
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-04-27
- **Case number:** Civil Misc. Writ Petition No. 35372 of 1998
- **Bench:** Amitava Laha
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-umesh-chandra-maheshwari-v-mathura-vrindavan-development-authority-and-41470
- **Pages:** 9

## Headnote

Act
1973-Sanction
of
map-claim
of
betterment
charges-without
such
betterment of locality as per section 35
and 36 of Act- no any regulation or by
laws framed to that extant-held-levy of
betterment charges-illegal.
Held: Para 11
Even under Section 57 of the Act the
authority has power to make bye-laws.
Therefore, it is crystal clear that either in
the case of development fees or in the
case of betterment charges the rules,
regulations and bye-laws have to be
framed to attract the same. A decision by
the Board without sanction of the
authority
to
claim
the
external
development charge is without any
sanction of law. More particularly, there
are no words available in the Act by the
name
of
"external
development
charges".
The
words
"external
development
charges"
are
either
synonyms
or
as
far
as
closer
to
'betterment fees' since it relates to the
area external to the building concerned,
which has been developed on the basis
of the sanctioned plan upon payment of
charges, being
development charges
amongst others. If such betterment
charge
is
being
claimed
then
the
authority has to satisfy that there is a
betterment of the locality in compliance
with Sections 35 and 36 of the Act. But if
no such development is done to claim
the betterment charges and no rules, no
regulations and no bye-laws are framed
to that extent, obviously the claim in the
name of external development happens
to be external to the law and a claim to
enrich the authority unjustly, therefore,
such claim can not be held to be
sustainable. Hence, the notices/orders
impugned in this writ petition are liable
to be quashed and are quashed. Thus,
the writ petition is allowed, however,
without imposing any cost.

## Text

1 All] Dr. U.C. Maheshwari V. Mathura/Virndavan Development Authority and another
325
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.04.2010

BEFORE
THE HON'BLE AMITAVA LAHA, J.

Civil Misc. Writ Petition No. 35372 of 1998
Dr. Umesh Chandra Maheshwari ...Petitioner
Versus
Mathura/Vrindavan
Development
Authority and another ...Respondents

Counsel for the Petitioner:
Sri J.J. Munir
Sri Amit Daga
Sri M.K. Gupta

Counsel for the respondents :
Smt. Sunita Agarwal,
Sri R.N. Pandey and
Standing Counsel.

Uttar Pradesh Planning of Development
Act
1973-Sanction
of
map-claim
of
betterment
charges-without
such
betterment of locality as per section 35
and 36 of Act- no any regulation or by
laws framed to that extant-held-levy of
betterment charges-illegal.
Held: Para 11
Even under Section 57 of the Act the
authority has power to make bye-laws.
Therefore, it is crystal clear that either in
the case of development fees or in the
case of betterment charges the rules,
regulations and bye-laws have to be
framed to attract the same. A decision by
the Board without sanction of the
authority
to
claim
the
external
development charge is without any
sanction of law. More particularly, there
are no words available in the Act by the
name
of
"external
development
charges".
The
words
"external
development
charges"
are
either
synonyms
or
as
far
as
closer
to
'betterment fees' since it relates to the
area external to the building concerned,
which has been developed on the basis
of the sanctioned plan upon payment of
charges, being
development charges
amongst others. If such betterment
charge
is
being
claimed
then
the
authority has to satisfy that there is a
betterment of the locality in compliance
with Sections 35 and 36 of the Act. But if
no such development is done to claim
the betterment charges and no rules, no
regulations and no bye-laws are framed
to that extent, obviously the claim in the
name of external development happens
to be external to the law and a claim to
enrich the authority unjustly, therefore,
such claim can not be held to be
sustainable. Hence, the notices/orders
impugned in this writ petition are liable
to be quashed and are quashed. Thus,
the writ petition is allowed, however,
without imposing any cost.

(Delivered by Hon'ble Amitava Lala, ACJ)

1. The petitioner has filed this writ
petition with the following prayers to
issue:

"(i) a writ, order or direction, including a
writ in the nature of certiorari, quashing
the impugned order dated 8.9.1998 passed
by the respondent no. 1 (annexure -4) and
the order dated 23.9.1998 passed by the
respondent No. 1 (annexure-7);
(ii) a writ, order or direction in the nature
of mandamus, restraining the respondents
from demanding from the petitioner an
amount of Rs.4,71,995/- as development
charge and the amount of Rs.2,35,997.50
as interest on the said amount, in any
manner, whatsoever;
(iii) any other writ, order or direction as
this Hon'ble Court may deem fit and
proper in the circumstances of the case;
and
(iv) award costs of the petition to the
petitioner."
326 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
2. The fact remains that the
petitioner made an application in the
prescribed proforma to the respondent
Authority for sanction of a building plan
for proposed nursing home at Mathura
which the petitioner aspired to establish,
being a medical doctor of eminence in his
field. The petitioner, for the proposed
nursing home, for which he applied on
15th October, 1994 under the scheme
name and style of Maheshwari Hospital,
held a site located at Delhi Byepass Road
at village Jaisindhpura Dangar, Mathura
and the land at the site consisted of
agricultural land originally belonging to
the petitioner. Although the area fell
within the development area of the
respondent authority, no development of
any kind as per plan etc. has been
undertaken in the area which lies outside
the city limits. The petitioner's application
for sanction of building plan was
registered as application no. 172-N under
Section 15(1) of the Uttar Pradesh Urban
Planning and Development Act, 1973
(hereinafter referred to as the 'Act') and a
demand was raised against the petitioner
for levy of betterment charge to the tune
of Rs.1,36,609/- plus stacking charge to
the tune of Rs.16,916/-, thus totalling to
an amount of Rs.1,53,525/-. In response
to the aforesaid demand of betterment
charges
plus
stacking
charges
as
conditions precedent to sanction of
petitioner's building plan, the petitioner
deposited an amount of Rs.1,53,525/-
with
the
respondent-Development
Authority. After deposit of the necessary
betterment charges plus stacking charges
as demanded, the respondent authority
vide its memo dated 10th May, 1995
granted
sanction
to
the
petitioner's
building plan and a memo to that effect
was issued by the secretary of the
respondent
Development
Authority
approving the building plan submitted by
the petitioner. After obtaining the sanction
from the respondent Authority, the
petitioner proceeded to construct the
proposed nursing home at the proposed
site strictly in accordance with the
building
plan
sanctioned
by
the
Development
Authority
and
the
construction was completed in the month
of April, 1997. Thereafter the hospital
was inaugurated on 6th September, 1997.
It has been specifically stated that the
hospital in question is situated on the
petitioner's ancestral agricultural land,
which is now banjar land and that in the
dire
vicinity
of
the
hospital,
no
development work or provisions of any
facilities
for
improvement
of
the
surrounding areas has been carried out by
the respondent Development Authority in
any manner, whatsoever. However, the
petitioner received a memo dated 8th
September, 1998, exactly one year after
the inauguration, in which it was
mentioned that the respondent Authority
has found upon scrutiny of the said
application that the petitioner had not paid
betterment
charge
to
the
tune
of
Rs.4,71,995/- and that on the said unpaid
amount, he was further held liable to pay
an interest of Rs.2,35,997.50, thus,
totalling to an amount of Rs.7,07,992.50.

3. The petitioner has further stated
that the impugned memo dated 08th
September, 1998 has been issued by the
Development
Authority
unilaterally
without affording any opportunity of
hearing under show cause against the
proposed levy or assessment.

4. Against this background, the
petitioner filed various representations
inclusive of the representation dated 23rd
September, 1998 and 26th September,1998
1 All] Dr. U.C. Maheshwari V. Mathura/Virndavan Development Authority and another
327
addressed
to
the
Vice-Chairman,
Mathura/Vrindavan
Development
Authority raising various objections about
the levy. The petitioner received a cryptic
reply on 23rd September, 1998 with
reference to an earlier representation
dated 17th September, 1998 filed by the
petitioner on the same ground, reiterating
the demand raised by means of the
impugned memo dated 08th September,
1998. The petitioner sought allusion at
this juncture to the provisions of Sections
35 and 36 of the Act, which refer to the
levy and assessment of betterment charge.
Such sections are quoted hereunder:

"35. Power of Authority to levy
betterment charges.--(1) Where in the
opinion
of
the
Authority,
as
a
consequence of any development scheme
having been executed by the Authority in
any development area, the value of any
property in that area which has benefited
by the development, has increased or will
increase, the Authority shall be entitled to
levy upon the owner of the property or
any person having an interest therein a
betterment charge in respect of the
increase in value of the property resulting
from the execution of the development;

Provided that no betterment charge
shall be levied in respect of lands owned
by Government:

Provided further that where any land
belonging to Government has been
granted by way of lease or licence by
Government to any person, then that land
and any building situate thereon shall be
subject to a betterment charge under this
section.
(2) Such betterment charge shall be an
amount-
(i) in respect of any property situate in
the township or colony, if any, developed
or in other area developed or redeveloped
equal to one-third of the amount; and
(ii) in respect of property situated
outside such township, colony or other
areas, as aforesaid, not exceeding onethird of the amount, by which the value of
the property on the completion of the
execution of the development scheme,
estimated as if the property were clear of
buildings, exceeds the value of the
property
prior
to
such
execution,
estimated in like manner.
36.
Assessment
of
betterment
charge by Authority.--(1) When it
appears to the [Vice-Chairman] that any
particular
development
scheme
is
sufficiently advanced to enable the
amount of the betterment charge to be
determined, the [Vice-Chairman] may, by
an order made in that behalf, declare that
for the purpose of determining the
betterment charge the execution of the
scheme shall be deemed to have been
completed and shall thereupon give notice
in writing to the owner of the property or
any person having an interest therein that
the [Vice-Chairman] proposes to assess
the amount of the betterment charge in
respect of the property under Section 34.
(2) The [Vice-Chairman] shall then
assess the amount of betterment charge
payable by the person concerned after
giving such person an opportunity to be
heard and such person shall, within three
months from the date of receipt of the
notice in writing of such assessment from
the [Vice-Chairman] inform the [ViceChairman] by a declaration in writing that
he accepts the assessment or dissents from
it.
(3) When the assessment proposed
by the [Vice-Chairman] is accepted by the
person concerned within the period
328 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
specified
in
sub-section
(2)
such
assessment shall be final.
(4) If the person concerned dissents
from the assessment or fails to give the
[Vice-Chairman] the information required
by sub-section (2) within the period
specified therein the matter shall be
determined by the [Chairman] [and such
determination shall not be questioned in
any Court]."
5. The petitioner has submitted that
a perusal of the aforesaid provisions
indicates that a betterment charge can
only be levied by the Development
Authority as a consequence of any
development having been executed by the
Authority in an area, as a result of which
any property in the area is benefited by
the development, and has been increased
or will increase in value. It is further
submitted by the petitioner that the
assessment of betterment charge by the
Authority is a sine quo non with the
scheme which has sufficiently advanced
and assessed the amount of charges from
the persons concerned after giving them
opportunity of hearing within a period of
three months from the receipt of such
notice, which is required to be served
mandatorily. It is further provided vide
sub-section 4 of Section 36 of the Act that
if the assessee dissents from the proposed
assessment, the matter shall be finally
determined by the Chairman of the
Development Authority. According to the
petitioner, a bare perusal of the statutory
scheme of Sections 35 and 36 of the Act
patently reveals that the respondent
Authority has violated the terms of the
above provisions and has levied the
charges in complete violation of the
provisions and the period stipulated by the
aforesaid statutory provisions. Moreover,
the respondent Authority once demanded
and accepted the betterment charges from
the petitioner is not entitled to raise fresh
demand for the betterment charges once
again with higher value and the interest
upon the said charge without ever
demanding the said charges in the past.

To resolve the dispute, we have
firstly gone through the appropriate Act in
this respect i.e. the Uttar Pradesh Urban
Planning and Development Act, 1973.
From the preface of the Act, we find that
the Act is made to provide for the
development of certain areas of Uttar
Pradesh according to plan and for matters
ancillary thereto. Section 2(ggg) of the
Act, as introduced by 1997 amendment,
prescribes development fee, which is as
follows:

"2 (ggg) "development fee" means
the fee levied upon a person or body
under Section 15 for construction of road,
drain, sewer line, electric supply and
water-supply lines in the development
area by the Development Authority."

Section 2 (ii) of the Act has been
inserted by way of 1997 amendment
which speaks for mutation charges, as
follows:

"2(ii) "mutation charges" means the
charges levied under Section 15 upon the
person seeking mutation in his name of a
property allotted by the Authority to
another person."

Section 2 (kk) of the Act was also
included by amendment of 1997, which
speaks about stacking fees, as follows:
"2(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."
1 All] Dr. U.C. Maheshwari V. Mathura/Virndavan Development Authority and another
329
Section 2(II) of the Act speaks for
water fees. This Section was also inserted
by way of amendment in the year 1997,
which is as follows:
"2(ll) "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."

Therefore, all the clauses were
inserted by 1997 amendment for the
purpose of recovery of appropriate fees or
charges as per Section 15 of the Act.
Section 15 of the Act is quoted hereunder:

"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.

(2) Every application under sub-section
(1) shall be accompanied by such fees 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.
(3) On the receipt of an application for
permission under sub-section (1), the
Vice-Chairman after making such inquiry
as it considers necessary in relation to any
matter specified in clause (d) of sub-
section (2) of Section 9 or in relation to
any other matter, shall, by order in writing
either grant the permission, subject to
such conditions, if any, as may be
specified in the order or refuse to grant
such permission:
Provided that before making an order
refusing such permission, the applicant
shall be given a reasonable opportunity to
show cause why the permission should
not be refused:
Provided further that the ViceChairman may before passing any order
of such application give an opportunity to
the applicant to make any correction
therein or to supply any further particulars
of documents or to make good any
deficiency in the requisite fee with a view
to bringing it in conformity with the
relevant rules or regulations:
Provided also that before granting
permission, referred to in Section 14, the
Vice-Chairman may get the fees and the
charges levied under sub-section (2-A)
deposited;

(4) Where permission is refused, the
grounds of such refusal shall be recorded
in writing and communicated to the
applicant.
(5) Any person aggrieved by an order
under sub-section (4) may appeal to the
Chairman against that order within thirty
days from the communication thereof and
may after giving an opportunity of
hearing to the appellant, and if necessary
also to the representative of the ViceChairman either dismiss the appeal or
direct
the
Chairman
to
grant
the
permission
applied
for
with
such
modifications,
or
subject
to
such
conditions, if any, as may be specified.
330 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
(6) The Vice-Chairman shall keep in
such form as may be prescribed by
regulations a register of applications for
permission under this section.
(7) The said register shall contain such
particulars, including information as to
the manner in which applications for
permission have been dealt with, as may
be prescribed by regulations, and shall be
available for inspection by any member of
the public at all reasonable hours on
payment of such fee not exceeding rupees
five as may be prescribed by regulations.
(8) Where permission is refused under
this section, the applicant or any person
claiming through him shall not be entitled
to get refund of the fee paid on the
application for permission but the ViceChairman may, on an application for
refund being made within three months of
the communication of the grounds of the
refusal under sub-section (4) direct refund
of such portion of the fee as it may deem
proper in the circumstances of the case.
(9) If at any time after the permission
has been granted under sub-section (3),
the Vice-Chairman is satisfied that such
permission was granted in consequence of
any material misrepresentation made or
any fraudulent statement or information
furnished, he may cancel such permission,
for reasons to be recorded in writing and
any work done thereunder shall be
deemed to have been done without such
permission:
Provided that a permission shall not
be cancelled without affording to the
person or body concerned a reasonable
opportunity of being heard."

6. We also find from such section
that sub-section (2-A) has also been
inserted by selfsame amendment of the
year 1997. It has provided only the
aforesaid four charges.
7. From the paragraph 13 of the
counter affidavit, we find that the
respondent-development
authority
has
relied upon a judgment reported in (1996)
10 SCC 425 (State of U.P. and others
Vs. Malti Kaul (Smt.) And Another),
which has also been referred by the
petitioner. The said judgment requires a
discussion with the facts of the present
case. The specific case of the respondent
authority is as follows:

"In this connection it may be
pertinent to state here that under the
provisions of the Act and the Regulations
the petitioner was in law required to
deposit the external development charges
prior to the sanction of the plan and even
though the Development Authority vide
its letter dated 22nd October, 1994 had
intimated the petitioner about this fact, yet
at the time of sanction of the plan this fact
escaped attention of the Development
Authority as a result of which the external
development charges were not demanded
from the petitioner at the time of sanction
of the plan. This mistake could always be
rectified and when it came to the
knowledge of the Development Authority
that the petitioner had not deposited the
external
development
charges,
it
immediately called upon the petitioner by
means of the notice dated 8th September,
1998
to
deposit
the
same.
The
Development Authority, as stated above,
had clearly resolved in its meeting held on
3rd September, 1993 to levy the external
development charges at the rate of Rs.90/-
per square metre and, as such, the
petitioner was required to deposit a sum
of 6762x90 = Rs.608598.00 towards
external development charges. It may be
mentioned that 6762.20 sq. metres is the
total area of the plot of the petitioner.
However, as the petitioner had already
1 All] Dr. U.C. Maheshwari V. Mathura/Virndavan Development Authority and another
331
deposited an amount of Rs.1,36,603/-
towards betterment charges at the time of
sanction of the plan, this amount was
deducted
from
the
amount
of
Rs.608598.00. Thus, the petitioner was
required to deposit only an amount of
Rs.4,71,995.00 plus interest."

8. In support of the respondents'
contention,
a
supplementary
counter
affidavit has been filed showing the
resolution of the Board of development
authority in this regard being dated 03rd
September, 1993.

9. According to us, the development
fees under Section 15 (2-A) of the Act, as
inserted by U.P. Act 3 of 1997, is
different from betterment charges as
under Section 35 and/or Section 36 of the
Act. Both belong to different chapters.
When development belongs to Chapter V
of the Act, betterment charges under
Sections 35 and 36 belong to Chapter
VIII. Hence, when the charges were
levied by the respondent authority for
giving sanction of plan of development of
the building in question within the
developed area, it is obviously called as
development fees but not the betterment
charge, which is a mistaken approach on
the part of the authority. In other words,
betterment charge as indicated by the
authority in the real sense is the
development fees. On acceptance of such
development fees amongst others, the
plan for development of the building was
sanctioned and following the same the
construction was made by the petitioner.
So
far
as
betterment
charges
are
concerned, that can be assessed by the
authority, provided the State Government
by notification in the gazette makes rule
for carrying out the purposes of the Act.
Section 55 of the Act gives such rule
making power to the State Government.
Section 55 of the Act is quoted hereunder:

"55. Power to make rules.--(1) The
State Government may by notification in
the Gazette, make rules for carrying out
the purposes of this Act.
(2)
In
particular
and
without
prejudice to the generality of the
foregoing power, such rules may provide
for all or any of the following matters,
namely-
(a) the levy of fee on a memorandum of
appeal under sub-section (5) of
Section 15 or under sub-section (3)
of Section 27;
(b) the procedure to be followed by the
Chairman in the determination of
betterment charge, and the powers
that it shall have for that purpose;
(c) any other matter which has to be or
may be, prescribed by rules.

(3) All rules made under this Act
shall, as soon as may be after they are
made, be laid before each House of the
State Legislature, while it is in session for
a total period of not less than thirty days,
extending in its one session or more than
one successive session, and shall, unless
some later date is appointed, take effect
from the date of their publication in the
Gazette subject to such modifications or
annulments as the two Houses of the
Legislature may, during the said period,
agree to make, so however, that any such
modification or annulment shall be
without prejudice to the validity of
anything previously done thereunder."

10. So far as power to make
regulations under Section 56 of the Act is
concerned, under its sub-section 2 (g), as
added by U.P. Act 13 of 1975, the
authority can make the regulations for the
332 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
fee to be paid on an application for
permission under sub-section (1) of
Section 15. Section 15 (1) of the Act
relates to development of the land in the
development area, thereby development
fees can be charged for the purpose of
construction of the building and sanction
of the plan. Section 56 of the Act being
relevant is also quoted hereunder:

"56. Power to make regulations.--
(1) An 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 of the affairs of the
Authority.

(2)
In
particular,
and
without
prejudice to the generality of the
foregoing power, such regulations may
provide for all or any of the following
matters, namely-

(a) the summoning and holding of
meetings of the Authority, the time
and place where such meetings are to
be held, the conduct of business at
such meetings and the number of
members
necessary
to
form
a
quorum thereat;
(b) the powers and duties of the
Secretary
and
Chief
Accounts
Officer of the Authority;
(c) the
salaries,
allowance
and
conditions
of
service
of
the
Secretary, Chief Accounts Officer
and other officers and employees;
(d) the procedure for carrying out the
functions of the Authority under
Chapters III and IV;
(e) the form of register of application for
permission and the particulars to be
contained in such register;
(f) the management of the properties of
the Authority;
(g) the fee to be paid on an application
for permission under sub-section (1)
of Section 15;
(h) the fee to be paid for inspection or
obtaining copies of documents and
maps;
(i) any other matter which has to be or
may be prescribed by regulations.
(3) Until an Authority is established
for an area under this Act any regulation
which may be made under sub-section (1)
may be made by the State Government
and any regulation so made may be
altered or rescinded by the Authority
concerned in exercise of its powers under
sub-section (1)."

11. Even under Section 57 of the
Act the authority has power to make byelaws. Therefore, it is crystal clear that
either in the case of development fees or
in the case of betterment charges the
rules, regulations and bye-laws have to be
framed to attract the same. A decision by
the Board without sanction of the
authority
to
claim
the
external
development charge is without any
sanction of law. More particularly, there
are no words available in the Act by the
name of "external development charges".
The
words
"external
development
charges" are either synonyms or as far as
closer to 'betterment fees' since it relates
to the area external to the building
concerned, which has been developed on
the basis of the sanctioned plan upon
payment of charges, being development
charges
amongst
others.
If
such
betterment charge is being claimed then
the authority has to satisfy that there is a
betterment of the locality in compliance
with Sections 35 and 36 of the Act. But if
no such development is done to claim the
1 All] Dr. Ali Ahmad V. State of U.P. and others
333
betterment charges and no rules, no
regulations and no bye-laws are framed to
that extent, obviously the claim in the
name of external development happens to
be external to the law and a claim to
enrich the authority unjustly, therefore,
such claim can not be held to be
sustainable. Hence, the notices/orders
impugned in this writ petition are liable to
be quashed and are quashed. Thus, the
writ petition is allowed, however, without
imposing any cost.

12. In any event, passing of this
order will not affect the right of the
respondent
authority
from
claiming
betterment charges if the area is really
improved to attract so and appropriate
rules and/or regulations and/or bye-laws
are framed in connection thereto.
---------
ORIGINAL JURISDCITION
CIVIL SIDE
DATED: ALLAHABAD 14.04.2010

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No.14773 of 2010

Dr. Ali Ahmad

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Kashif Zaidi
Sri S.M.A. Abdy

Counsel for the Respondents:
Sri R.C. Dwivedi
Sri R.N. Yadav
C.S.C.

Intermediate
Education
Act-1921,
Section 9-Sanction of two additional post
for class 4 and 5th primary sectionattached with Inter Section-instead of
competent authority the Joint Regional
Director-no authority to create new postin the circumstances the action of Joint
Director against the verdict of full Bench
decision of Gopal Dubey case-not properdirection issued to pay salary from his
own fund by the joint director-govt. to
take action against erring officer.

Held: Para 5

Since the Joint Director is insisting upon
payment of salary of such appointees
even in absence of sanctioned posts, the
Court directs that the salary of the
appointees i.e. respondents no. 8 and 9
shall be paid by Regional Director of
Education from his own salary. For this
purpose he shall transmit the necessary
amount through Bank Draft from his own
salary account, by 7th of each month for
payment to respondents no. 8 & 9.
Case law discussed:
[(1999) 1 UPLBEC.

(Delivered by Hon'ble Arun Tandon, J.)

1. On record it is an order of the
Regional Inspectorix of Girls School,
Varanasi Region, Varanasi dated 1.5.1989
sanctioning two additional sections for
classes 4 and 5 (primary section attached
to Sajida Girls Inter College). There is no
order
of
the
competent
authority
sanctioning any additional posts of
teachers
for
the
new
sections
so
permitted.

2. Counsel for the petitioner submits
that in view of the Full Bench of this
Court in the case of Gopal Dubey Vs.
District
Inspector
of
Schools,
Maharajganj and another reported in
[(1999) 1 UPLBEC and in absence of any
order of the competent authority i.e.
Director under the provisions of Section 9
of Act no. 24/1971 creating any new posts
after permission to start of new section