# G.D.A., Ghaziabad through Vice Chairman v. Lajja Ram

- **Citation:** (2001) 1 ILRA 12
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/g-d-a-ghaziabad-through-vice-chairman-v-lajja-ram-39572
- **Pages:** 9

## Text

12 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
parents and we hope and trust that if such
an application is made, the same shall be
taken up and appropriate orders will be
passed immediately.

14. This writ petition is disposed of
in terms aforementioned.

15. The Office is also directed to
hand over a copy of this order within 3
days to Shri Sudhir Agarwal, learned
counsel for the Court for its intimation to
Hon'ble The Chief Justice.

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By the Court

1. Though the appeals were admitted
by Hon'ble R.N. Ray, J (since retired)
vide order dated 10.12.97 no substantial
question
of
law
were
formulated.
However, Sri A.K. Mishra, learned
counsel for the appellant has pressed the
two appeals on following substantial
questions of law formulated by him in the
memos of appeal:-
1All] G.D.A., Ghaziabad through Vice Chairman V. Lajja Ram
13
"1. Whether the appellant was only
authorized to sanction the site plan for the
construction
of
1.5.
F.A.R.

The
respondent admitted a site plan of which
can only be passed after the Board of the
appellant in its meeting approves it and
sends its recommendation to the State
Government and the State Government
grants its permission, only then site plan
of 3.5 F.A.R. of multistories can be
passed. No request was made nor any
application
was
given
by
the
plaintiff/respondent that his case be
placed before the Board of the appellant
but view to the contrary taken by the
appellant court is wholly ilegal and
erroneous?

2. Whether as per the rules and
regulations
of
the
appellant
the
respondents are liable to pay development
charges, internal developments charges
and betterment charges to the appellant as
the land in dispute is situated within the
regulated area and as such before
permitting constructions on a free hold
land development charges etc. are charged
as per the rules and regulations of the
appellant but view to the contrary taken
by the appellant court is wholly illegal
and erroneous?"

2. In Second Appeal No 1139 of
1997 one more question raised is that the
trial Court decreed the suit for allotment
of
certain
lands
to
the
plaintiffsrespondents on payment of consideration
as directed by the Courts below. The
decree is in the nature of specific
performance of the contract. There was
no agreement. Hence the said decree is
without jurisdiction.

Since in both the appeals the
questions raised are identical it would be
convenient to decide both the appeals by a
common judgment.

3. In suit no. 417 of 1997 the
plaintiff alleged that he was owner in
possession of land Khasra no. 126
admeasuring 3-4-0 bigha pucca khasra no.
125 admeasuring area 1-10-6 pucca bigha
situated in village Makanpur Pargana
Loni, Telsil Dadri district Ghaziabad.
The name of the father of the plaintiff and
the name of the plaintiff were recorded in
the revenue records in various years. The
defendant is interfering without right or
title in the possession of the plaintiff and
threatened to demolish the constructions
made thereon. The plaintiff applied fir
sanction of plan of multistories building
but the defendant did not pass any order.
The relief claimed was that by a decree of
permanent injunction the defendant, its
officials and officers be restrained from
interfering in the peaceful possession of
the plaintiff over the suit land and they
also
be
restrained
from
illegally
demolishing the constructions in the suit
land. By a subsequent amendment a
further prayer added was that by a decree
of mandatory injunction they be directed
to sanction the construction plan of 3.5
F.A.R. multistories building.

4. In suit no 509 of 1997 was filed
by the plaintiffs-respondents in respect of
khasra plot no 233 area admeasuring 113-0 pucca bigha, khasra plot no. 232 area
admeasuring 0-13-0 pucca bigha, khasra
plotno. 232 area admeasuring 0-13-0 and
khasra plot no. 377/2 area admeasuring 113-0 pucca bigha with similar allegations
and for the same relief. However, by
subsequent amendment in the plaint
another relief added was that by passing a
mandatory
decree
the
defendant
be
directed to allot 1378.71 square meter
14 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
land after accepting consideration of
Rs.708/- per sq. meter and betterment
charges at the rate of 1% of the sale
consideration. The material allegations
on which the said relief was added were
that the defendant is developing the land
in Kaushambi scheme. According to the
development plan some of the roads,
drainage, sewer etc. pass through the land
of the plaintiffs. The defendant requires
447.22-sq. meter land of khasra no 377/2
and the defendant shall have to allot
1549.95-sq. land to straighten the land of
the
plaintiff.

Like
-
wise
for
constructions of road, boundary wall of
sub-stations the defendant needs 277.45sq. meter of land and the plaintiffs need
1656.16-sq.
meter
of
land
for
constructions of the building. After
adjustment the plaintiffs will be given
1378.71-sq. meter land. The agreement in
this respect was arrived at between the
parties and the defendant shall have to
pay Rs.708/- plus one percent betterment
charges to the plaintiffs.

5. The defendants contested both the
suits on various grounds. They had also
taken the plea that the disputed land does
not belong to the plaintiffs. In both the
suits the trial Court recorded findings of
fact that the land was not acquired by the
defendant-appellant and the plaintiffs
were owners and were recorded tenureholders of the suit land. On the evidence
of the parties the trial Court recorded a
finding of fact that the defendants agreed
to allot certain lands to the plaintiffs on
the terms and conditions as stated above
in the plaint in suit no. 509 if 1997 in lieu
of land acquired by the defendantappellant for the purposes of development
of its won land. The trial Court also held
that the plaintiffs were entitled to sanction
of 3.5 F.A.R. land for construction of
multistories building. The trial Court
therefore, decreed both the suits. The
lower
appellate
Court
affirmed
the
findings of fact recorded by the trial
Court. Aggrieved by the judgments and
decrees passed by the courts below the
appellant
Ghaziabad
Development
Authority has filed these two appeals.

Heard Sri A.K. Mishra, learned
counsel for the appellant and Sri Rajiv
Mishra,
learned
counsel
for
the
respondents in both the appeals.

Findings on Question No.1 :

6. The case of the plaintiffrespondents was that the plaintiff intended
to construct multistories building on his
land and he had applied for permission to
construct
3.5
F.A.R.
multi-stories
building. Such an application in the
prescribed form and complying with all
formalities was moved on 14.6.95. The
plaintiff's
further
case
is
that
the
development authority the appellant
neither refused the permission nor granted
permission. On consideration of the
evidence adduced by the authorities the
trial court recorded a finding of fact that
the
plaintiff-respondent
submitted
application for permission to construct
multi-stories building in 3.5 F.A.R. on
14.6.1995. The defendant did not grant
the permission even after expiry of six
months period. IT was also held that the
permission was also not refused by the
defendant-appellant.

The
defendantappellant's case appeared to be that for
grant of permission for construction of
multi-storied building in 3.5 F.A.R. the
sanction of Government was necessary. It
is admitted that around this land in
question
the
authority
has
granted
permission t various builders to construct
1All] G.D.A., Ghaziabad through Vice Chairman V. Lajja Ram
15
multi-storied building in 3.5 F.A.R. No
copy
of
sanction
from
the
State
Government in such cases has been filed.
The sole question, therefore, is whether
sanction of the state government for
construction of a building in 3.5 F.A.R.
was necessary or not and if so what was
its procedure.

7. Submission of Sri A.K. Mishra is
that it has been the practice of the
appellant to obtain sanction from the State
government
where
permission
to
construct multi-storied building in 3.5
F.A.R. is sought. On the other hand, Sri
Rajiv Mishra, learned counsel for the
respondent has vehemently submitted that
there is no rule or bye-law framed by the
authorities providing for such sanction
from the State government. Despite
sufficient opportunity being granted Sri
A.K. Mishra, learned counsel for the
appellant has not been able to refer to any
provision of law or bye-law or rules
framed under the U.P. Urban Planning
and Development Act whereby sanction
of the state government is necessary for
granting
permission
to
construct
a
building beyond the height of 1.5 F.A.R.

8. Section 14 (1) of the U.P. Urban
Planning and Development Act, 1973,
(hereinafter called the Act) provided that
after the declaration of any area as
development area under Section 3, no
development of land shall be undertaken
or carried out or continued in that area by
any
person
or
body
(including
a
department
of
Government)
unless
permission for such development has
been obtained in writing from the Vice
Chairman
in
accordance
with
the
provisions of this Act. The term
development has been defined in Section
2 (e) of the Act which provided that
'development'
with
its
grammatical
variations, means the carrying out of
building, engineering, mining or other
operations in, over or under land, or the
making of any material change in any
building
or
land, and includes redevelopment. Therefore, the carrying out
of building operations over any land
within development area amounts to
development, Section 14 (1) specifically
provided that permission to make such
development by carrying out building
operations over the land shall be granted
in writing by the Vice Chairman. This
provision
does
not
admit
of
any
exception. It does not limit the powers of
the Vice Chairman and does not provides
as upto what height the permission
development can be granted by the Vice
Chairman and beyond that the sanction of
the state government was necessary.
There is of-course Section 10 of the Act
which provided that every plan shall be
submitted by the authority to the state
government for approval and the State
government may either approve the plan
without
modification
or
with
such
modifications
as
it
may
consider
necessary
or
reject
the
plan
with
directions to the authority to prepare a
fresh plan according to such directions.
However, this provision applies only to
master plan and the zonal development
plans only and not to the plans for
constructing
a
building
in
the
development area. Sub Section (1) of
Section 10 specifically provided that in
this Section and in Sections 11,12,14 and
16 the word 'plan' means the master plan
as well as the zonal development plan for
a zone. Sub Section 14 does not speak of
any plan; it only speaks of permission for
development when such development is
undertaken, carried out or continued in
the development area by any person or
16 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
body of persons. This Sub-section (2) of
Section 14 which speaks of plans and
provided that after coming into operation
of any of the plans in the development
area no development shall be undertaken
or carried out or continued in that area
unless such development is also in
accordance with such plan which means
that the developments carried should be in
accordance with the master plan or zonal
development plan. No plan or permission
for development by carrying out building
activities could be permitted by the Vice
Chairman if same is in contravention of
the master plan or the zonal development
plan. Before the lower appellate court, an
argument was advanced on behalf of the
appellant that the defendant appellant is
not authorised to sanction the site plan 3.5
F.A.R. multi-storied building and such
power vests in the Board/the Government.
The lower appellate court rejected this
contention and held that the plaintiff was
not required to obtain any sanction from
the Board or State Government. The
learned counsel for the appellant has not
been able to point out or show any
provision of law, bye-law or regulation
framed under the Act whereby the
defendant-appellant was bound to refer
the matter to State Government where the
sanction for constructing a building
beyond 1.5 F.A.R. was required. The
appellant has also failed to establish any
such practice adopted by the appellant. As
already pointed out above, it is not
disputed that around the land of the
plaintiff
some
builders
have
been
permitted to raise constructions in 3.5
F.A.R. It is nowhere pleaded nor any
evidence is produced by the defendantappellant to show that such practice as
suggested by Sri Mishra was adhered to
and sanction of the State Government was
obtained by the authority. As a matter of
fact, in my opinion no substantial
question of law is involved in this regard
and the provisions of the Act are very
much clear.

Findings on question No.2:

9. In the plaint in Suit No.509 of
1997 it was pleaded by the plaintiff in
para No.4 that the plaintiff has deposited
the required fee with the defendant for
grant of permission to construct building
in 3.5 F.A.R. but the defendants are
illegally demanding development charges
to which they are not legally entitled since
the plaintiff is himself intending to carry
out development of his own land. The
defendant in para No.11 of the written
statement in Suit No.509 of 1997 took a
plea that the construction plan cannot be
sanctioned
without
deposit
of
development charges since the land in
question is situated in regulated area. No
such plea was taken either in the plaint or
in the written statement in Suit No.417 of
1997, therefore, the question raised herein
is raised only in Second Appeal No.1139
of 1997. Such question cannot be raised in
Second Appeal No. 1138 of 1997 for want
of pleading by the parties and if the courts
below have dealt with it, while deciding
suit No. 417 of 1997 it is decided beyond
jurisdiction. So far as Suit No. 509 of
1997 is concerned, this question appears
to have been dealt by the trial court while
deciding issue no.2. The trial court has
held that the attention of the court was
drawn by the plaintiff towards Section 35
of
the
U.P.
Urban
Planning
and
Development Act, 1973, which provided
for payment of betterment charges only
where the development is carried out by
the development authority. The court,
however, observed that since the plaintiff
has expressed his intention to develop his
1All] G.D.A., Ghaziabad through Vice Chairman V. Lajja Ram
17
land himself he was not bound to pay
development charges; he was simply
bound to pay betterment charges. This
question does not appear to have been
dealt with by the lower appellate court
even though in ground No. 6 the appellant
has specifically challenged the finding of
the trial court in this regard.

10. Sri A.K. Mishra, learned counsel
for the appellant has referred to SubSection (2-A) of Section 15 of the Act
which provided as follows:

11. The authority shall be entitled to
levy development fees, mutation charges,
stacking fee 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.

Proviso (3) to sub section (3) of
Section 15 also further provides that
before granting permission referred to in
Section 14, the Vice Chairman may get
the fees and charges levied under Sub
section (2-A) deposited. In view of the
proviso quoted herein before it is clear
that before grant of permission under
Section 14 (1) the Vice Chairman of the
development authority is well authorized
to get the fees and charges levied under
Sub-section (2-A) deposited, Sri Rajiv
Mishra has, however, pointed out that the
plaintiff
had
applied
for
grant
of
permission in the year 1995 whereas
provisions
of
Sub-section
(2-A)
of
Section 15 and proviso (3) to Sub-Section
(3) of Section 15 were introduced in the
Act by U.P. Act No.3 of 1997.

12. The U.P. Urban Planning and
Development Act was amended by U.P.
Act 3 of 1997 by which Sub Section (2-A)
of Section 15 and proviso to Sub-Section
(3) as pointed out above were introduced.
The amending Act received the assent of
the Governor on May 1, 1997 and was
published in U.P. Gazette extra ordinary
on 2nd May, 1997. The amending Act
does
not
provide
for
retrospective
operation of the amended provision of the
Act, However, admittedly the sanction
has not been granted by the appellant till
today. Since now there is a provision
under Section 15 of the U.P. Urban
Planning and Development Act with
regard to the authority of the appellant to
levy development charges and to compel
the plaintiff-respondent to deposit the
same before sanction for carrying out
development by building activities is
granted, the plaintiff-respondent is bound
to deposit such development fee as may
be imposed. It may not be out of place to
point out here that in Section 2 of the Act
clause (ggg) was introduced by the
amending
Act
which
defined
the
development fee. This clause provided
that the "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."

13. In view of the above definition
of development fee, the same can be
levied by the appellant only when
development
is
carried
out
in
the
development area by construction of road,
drain, sewer line, electric supply and
water supply lines. In the instant case
18 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
there is no evidence on record that such
development has been made by the
appellant. However, during arguments it
is conceded by the respondent that they
are ready to pay the development fee
probably for the reason that they have not
pleaded in the plaint that no such
development was carried out by the
appellant in the area in question. Sri
Rajiv Mishra, has however, pointed out
that the appellant is charging development
fee at the of Rs. 100/- per sq. yard which
fact was conceded by the appellant. In
the case of Ghaziabad Shiromani Sahakari
Avas Samiti Ltd. and others Vs. State of
U.P. and others (1990-1) Supreme Court
Cases 583. He has referred para 9 of the
judgment which reads as follows:

"It
has
been
agreed
that
the
development charges for the sewerage,
electricity, road connections and the like
shall be provided by the development
authority at the rate of Rs. 100/- per sq.
yard and internal development shall be
done by the societies themselves in
raising the construction, the bye-laws and
regulations of the development authority
shall be strictly followed. We hope and
trust that the development authority shall
extend its cooperation in every manner to
the societies to effectuate the directions
made by us........."

It has been submitted by Sri Mishra
that from a number of builders the
development fee has been charged at the
above rate. Sri A.K. Mishra has,
however, pointed out that there is no
material on record to substantiate the
argument of the learned counsel for the
respondent. It may be observed here that
the appellant being a body of the
government constituted to carry out the
purpose of enacting of the Act would
maintain
uniformity
in
charging
development
charges
from
various
persons/bodies carrying out development
activities by constructing buildings. In
case from other builders/developers of the
land the development fee has been
charged at the rate of Rs. 100/- per sq.
yard, there is no reason why the appellant
should charge higher development fee
from the plaintiffs-respondent especially
when
the
plaintiff-respondent
has
categorically pleaded that it intends to
carry
out
internal
development
by
himself.

14. In view of the discussions made
above, it is held that the appellant is
entitled to charge development fee before
sanctioning the development plan by
permitting to construct the building.
However, such fee shall be charged
uniformly as pointed out above.

15. The findings of the courts below
that the authority is entitled only to levy
betterment charges is set aside for the
reason that the betterment charges are
levied by the authority only when as a
consequence of any development scheme
executed
by
the
authority
in
any
development area, the value of any
property in that area has increased due to
the benefits of the development. In the
instant case there is no evidence to the
effect that the value of the land due to the
activity of the development in the area has
increases. Besides this, the authority
under Section 15(2-A) is a entitled to levy
development fee, staking charges, water
fee and mutation charges only before
grant
of
permission
to
carry
out
development activities by constructions.
Further
in
the
instant
case
the
development charges are being claimed
by the appellant, therefore, the betterment
1All] G.D.A., Ghaziabad through Vice Chairman V. Lajja Ram
19
charges cannot be directed to paid by the
plaintiff-respondent.

Findings on Question NO.3 in
Second Appeal No. 1139 of 1997:

16. The trial court in Suit No. 509 of
1997 recorded a finding of fact on
consideration of the evidence of the
parties
that
the
defendant-appellant
requires 447.22 Sq. meters in plot No.
377/2 of the plaintiff for construction of
road. Similarly in Khasra Nos. 232 and
233
the
defendant-appellant
requires
277.45 sq. meters of land belonging to the
plaintiff-respondent
for
purposes
of
construction of road and boundary wall of
sub-station. On perusal of the proceedings
of the authority which were produced by
D.W. 1 appearing o behalf of the
defendant-appellant
the
court
also
recorded a finding of fact that an
agreement was arrived at between the
parties to transfer the aforesaid land by
the plaintiff to the defendant and in lieu
thereof
the
defendant
agreed
to
compensate the plaintiff by providing
some land in the development area at the
rate of Rs.708/- pert sq. meters. This
finding of fact has been affirmed by the
lower appellate court and both the courts
have passed the decree in this regard. The
argument of Sri A.K. Mishra, learned
counsel for the appellant is that specific
performance of the contract cannot be
granted by the trial court in the absence of
any such agreement. In the written
statement, it has been pleaded that there
was no legal agreement between the
parties in this regard. However, it is not
specifically denied that the defendant
wanted part of the land from plot nos.
377/2, 232 and 233 belonging to the
plaintiff. In the written statement the
ownership of the plaintiff of the aforesaid
plots was denied. The finding of the
courts below is against the defendantappellant, which is not challenged in this
appeal, D.W.1 Ashok Kumar on the other
hand, admitted during cross examination
that the development authority needs
447.22 sq. meters of land of Khasra plot
No. 377/2 for purposes of construction of
road and similarly the defendant requires
277.45 Sq. meters of land of plot nos. 232
and 233 for purposes of construction of
road and boundary wall of sub-station.
Admittedly, such land has not been
acquired by the development authority
viz. the appellant. Considering the
evidence of the defendant which was in
the form of statement of D.W.1 and which
is
based
upon
the
entries
in
the
proceedings book, courts below held that
there to an agreement between the parties
for transfer of land. There are findings of
fact and in my view no substantial
question of law involved. The concurrent
findings of fact arrived at by the courts
below cannot be assailed in Second
Appeal.

17. In view of the discussions made
above, both the appeals are partly allowed
and decree passed by the courts below is
modified to the extent that the appellant is
entitled to levy development charges
before sanctioning the development plan
by building activities by the plaintiff. The
defendant, therefore, shall serve a notice
within 15 days from today upon the
plaintiff-respondent
to
deposit
the
development
fee
within
the
period
provided in the notice, which the plaintiffrespondent
shall
deposit
within
the
stipulated
period
and
thereafter
the
defendant shall grant permission and
sanction the development plan as decreed
by the courts below.
20 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
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By the Court

1. Heard Sri Bharatji Agarwal
learned counsel for the petitioner and the
learned Standing Counsel.

2. The petitioner no. 1 is a registered
partnership firm of which petitioner no. 2
is one of the partners. The petitioner no. 1
is a registered under both U.P. and
Central Sales Tax Act. The petitioner firm
is carrying on the business of manufacture
and sale of R.C.C. Spun Pipes and Collars
etc. These goods are manufactured and
sold
by
the
petitioner
to
various
government departments including the
Public Works Department, Sharda Nahar
Samadesh, Lucknow and also to the Chief
Development
Officer
Bareilly/
Lakhimpur-Kheri/
Shahjahanpur/
Moradabad.

3. For the relevant assessment years
1990-91 to 1993-94 the petitioner sold the
R.C.C.
Spun
Pipes
and
collars
manufactured
by
them
to
various
government
departments.
In
all
the
invoices/bills raised by the petitioner
against these government departments it
is mentioned that the sales are against
form III-D. Since the petitioner made
sales to Government Departments it
charged concessional rate of tax at the
rate of 4% plus surcharge. In paragraph 7
of the petition it has been held that the
petitioners have been writing regularly to
all these government departments to
which
it
made sales including the
departments of respondents 3 to 5 to issue
form III-D but in spite of the best efforts
forms III-D were not given by the
Departments of respondents 3 to 5. A
summary list of sales made by the
petitioner in the State of U.P. for the
relevant assessment years against form III
D has been annexed as Annexure1 to the
writ petition. The petitioner sent several
reminders
to
the
Departments
of
respondents 3 to 5 but despite that form
III D were not issued to the petition.