# M/S Godwin Construction Pvt. Ltd v. State of U.P. & Ors. 444 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2020) 8 ILRA 443
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-08-07
- **Case number:** Misc. Bench No. 7787 of 2008
- **Bench:** Ved Prakash Vaish, Narendra Kumar Johari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-godwin-construction-pvt-ltd-v-state-of-u-p-ors-444-indian-law-reports-46053
- **Pages:** 27

## Headnote

A. Civil Law - U.P. Urban Planning and
Development Act (Act 11 of 1973) -
Section15(2A), Section 59(1)(c) -The U.P.
(Regulations of Building Operations) Act,
1958 - Development fees - Levy of -
Authority entitled to levy development
fees in such manner & at such rate as may
be prescribed - rules are required to frame
by
State
Government
u/s
55
as
contemplated u/s 15(2)(A) - however,
even without there being rules framed
development fee can be demanded by the
Development
Authority
as
per
the
directions issued under 1958 Act by virtue
of Section 59 (1) (c) of 1973 Act (Para 57)

B. Civil Law - U.P. Urban Planning and
Development Act - Section 15(2a),
Section 59(1)(c) - Constitution of India,
Art.226 - Development fees - Levy of -
Challenge in writ petition - a litigant,
who approaches Court is bound to state
all the relevant facts & produce all the
documents which are relevant to the
litigation without any reservation even
if they are against him - cannot be
allowed to play "hide and seek" or to
"pick and choose" the facts he likes to
disclose & to suppress or not to disclose
other facts (Para 62)

Petitioner
challenged
levy
of
external
development charges - on ground that that in
absence of any prescribed Rules, Regulations
- Authority cannot impose any development
fees & also no development carried out by
Development Authority - so Authority not
entitled to charge extra development charges
- Held - petitioner suppressed the fact that
Development Authority sent letter to the State
Government seeking approval of levy of
Rs.400/-
per
square
meter
towards
development charges & State Government
approved the same - petitioner guilty of
concealing the fact that he had already
deposited 40 % of the external development
charges at the enhanced rate - Writ petition,
dismissed (Para 58, 59, 61)

Dismissed. (E-5)

List of cases cited:-

## Text

_Characters 0–39,617 of 89,419. This is a partial read: ask again with offset=39617 for what follows._

8 All. M/S Godwin Construction Pvt. Ltd. Vs. State of U.P. & Ors.
443

"3. It would be noticed from a
perusal of the impugned order that the
court has not recorded any satisfaction
that the explanation for the delay was
either reasonable or satisfactory, which
is
an
essential
prerequisite
to
condonation of delay."
 (emphasis supplied)

11. In D. Gopinathan Pillai v. State
of Kerala, (2007) 2 SCC 322, the Apex
Court reiterated what was said in
Ramchandran's case. Paragraph 5 of the
said report is reproduced below:

"5.
We
are
unable
to
countenance the finding rendered by the
Sub-Judge and also the view taken by the
High Court. There is no dispute in regard
to the delay of 3320 days in filing the
petition for setting aside the award.
When a mandatory provision is not
complied with and when the delay is not
properly, satisfactorily and convincingly
explained, the court cannot condone the
delay, only on the sympathetic ground.
The orders passed by the learned SubJudge and also by the High Court are far
from satisfactory. No reason whatsoever
has been given to condone the inordinate
delay of 3320 days. It is well-considered
principle of law that the delay cannot be
condoned
without
assigning
any
reasonable, satisfactory, sufficient and
proper reason. Both the courts have
miserably failed to comply and follow
the principle laid down by this Court in a
catena of cases. We, therefore, have no
other option except to set aside the order
passed by the Sub-Judge and as affirmed
by the High Court. We accordingly set
aside both the orders and allow this
appeal."(emphasis supplied)

12. In the case at hand, the revision
filed by the respondent no. 1 was, on the
face of it, barred by limitation by more
than three and a half years. By the
impugned order, the Revisional Court has
condoned the inordinate delay by a
cryptic order without recording its
satisfaction that the delay was either
reasonable
or
satisfactory.
The
Revisional Court has, thus, committed a
serious error in condoning the delay and
admitting the revision. In this view of the
matter
alone,
the
impugned
order
condoning the delay cannot be sustained
and is liable to be set aside.

13. The petition is allowed. The
order condoning the delay is set aside
and the matter is remanded to the
Revisional Court to pass a fresh order in
accordance with law.

14. The petitioners are granted
liberty to file their objections with regard
to the maintainability of the revision
taking all the pleas available to them
including the plea of limitation before the
Revisional Court and the Revisional
Court while passing a fresh order shall
take into consideration the objections, if
any, filed by the petitioners.
----------
(2020)08ILR A443
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.08.2020

BEFORE

THE HON'BLE VED PRAKASH VAISH, J.
THE HON'BLE NARENDRA KUMAR
JOHARI, J.

Misc. Bench No. 7787 of 2008

M/S Godwin Construction Pvt. Ltd.
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
444 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Dipak Seth, I.P. Singh

Counsel for the Respondents:
C.S.C., Ram Raj

A. Civil Law - U.P. Urban Planning and
Development Act (Act 11 of 1973) -
Section15(2A), Section 59(1)(c) -The U.P.
(Regulations of Building Operations) Act,
1958 - Development fees - Levy of -
Authority entitled to levy development
fees in such manner & at such rate as may
be prescribed - rules are required to frame
by
State
Government
u/s
55
as
contemplated u/s 15(2)(A) - however,
even without there being rules framed
development fee can be demanded by the
Development
Authority
as
per
the
directions issued under 1958 Act by virtue
of Section 59 (1) (c) of 1973 Act (Para 57)

B. Civil Law - U.P. Urban Planning and
Development Act - Section 15(2a),
Section 59(1)(c) - Constitution of India,
Art.226 - Development fees - Levy of -
Challenge in writ petition - a litigant,
who approaches Court is bound to state
all the relevant facts & produce all the
documents which are relevant to the
litigation without any reservation even
if they are against him - cannot be
allowed to play "hide and seek" or to
"pick and choose" the facts he likes to
disclose & to suppress or not to disclose
other facts (Para 62)

Petitioner
challenged
levy
of
external
development charges - on ground that that in
absence of any prescribed Rules, Regulations
- Authority cannot impose any development
fees & also no development carried out by
Development Authority - so Authority not
entitled to charge extra development charges
- Held - petitioner suppressed the fact that
Development Authority sent letter to the State
Government seeking approval of levy of
Rs.400/-
per
square
meter
towards
development charges & State Government
approved the same - petitioner guilty of
concealing the fact that he had already
deposited 40 % of the external development
charges at the enhanced rate - Writ petition,
dismissed (Para 58, 59, 61)

Dismissed. (E-5)

List of cases cited:-

1. Virendra Kumar Tyagi Vs GDA (2006) 62
A.L.R. 106

2. Calcutta Municipal Corporation Vs Shrey
Mercantile (2005) 4 SCC 245

3. K.D. Sharma Vs Steel Authority of India &
ors. (2008) 12 SCC 481

4. St. of U.P. & ors. Vs Malti Kaul (Smt.) &
anr. (1996) 10 SCC 425

5. Smt. Nisha Kumari Vs St. of U.P. & ors.
2014 (6) ADJ 20 (DB)

6. Bhaskar Laxman Jadhav & ors. Vs
Karamveer
Kakasaheb
Wagh
Education
Society & ors. (2013) 11 SCC 531

(Delivered by Hon'ble Ved Prakash Vaish, J.)

1. By way of the present petition,
the petitioner seeks quashing of the
impugned order of recovery dated 19th
July, 2008 passed by respondent No.2,
whereby the respondent No.2 directed the
petitioner
to
deposit
external
development
charges
amounting
to
Rs.2,61,84,771.00/- till 31st July, 2008 at
the rate of Rs.400/- per square meter. The
petitioner also seeks quashing of the
order dated 30th September, 2007 and
Resolution dated 3rd June, 2006; and for
a direction to the respondents to approve
the
project
Talpat
Manchitra
of
Greenwood City ignoring the Resolution
dated 3rd June, 2006.

2. Briefly, the facts as stated in the
petition are that the petitioner preferred
an application under Section 14 of the
Uttar Pradesh Urban Planning and
8 All. M/S Godwin Construction Pvt. Ltd. Vs. State of U.P. & Ors.
445
Development Act, 1973 (hereinafter
referred to as 'the said Act') regarding
approval of their project, namely, Talpat
Manchitra of Greenwood City situated at
By-pass Chauraha, Bagpat Road, Meerut.
The respondent No.2 informed the
petitioner that Talpat Manchitra/ Maps
relating to the plots of Greenwood City
had
been
approved
with
certain
conditions as mentioned in their letter
dated 26th September, 2007.

3. It is stated that before 1997, there
was no provision under the said Act for
the imposition of any development fee
and only provision for collection and
levy cess under the said Act was Section
33, under which the Authority has to
provide an amenity and carry out
development, and thereafter to recover
the cost of the same from the owner. It is
also stated that Section 35 of the said Act
provides that if under the opinion of the
Authority as a consequence to any
development
scheme
having
been
executed by the Authority in any
development area, the value of any
property in that area, which has been
benefited
by
the
development
has
increased or will increase, the Authority
was entitled to levy upon the owner of
the property a betterment charge in
respect of increase of the value of the
property resulting from the execution of
the development.

4. It is further stated that in the year
1997 vide U.P. Act No.3 of 1997, the
said Act, was amended by inserting new
Section as 2 (ggg), 15 (2A) and proviso 3
to Section 15 (3). Section 2 (ggg) defines
the term 'Development fee'. While
referring to Section 15 (2A) of the said
Act which has been inserted by U.P. Act
No.3 of 1997, as Section 3, providing
that the Authority shall be entitled to levy
development fees, mutation charges,
staking fees, and water fees in such
manner and at such rates as may be
prescribed, it is stated that in the absence
of any prescribed Rules, Regulations or
bye laws the Authority cannot impose
any development fees. Since no Rules,
Regulations or bye laws have been
framed by the State Government or the
Meerut Development Authority, Meerut
(hereinafter referred to as 'MDA') till
date, therefore, the levy of development
fees is illegal.

5. It is further stated that the State
Government exercises the power of
supervision
and
control
over
the
Authority under the provisions of Section
41 of the said Act, 1973. Therefore, the
power to prescribe development fees can
only
be
exercised
by
the
State
Government through its rule making
power and not by the Development
Authority by its Regulation of bye laws
making
power
and
if
the
above
interpretation is not agreed to them it will
result in a serious abuse and misuse of
powers and perpetuation of fraud on
statute.

6. Relying on the decision of the
Division Bench of this Court in the case
of 'Virendra Kumar Tyagi vs. GDA',
reported in 2006 (62) A.L.R. 106,
wherein while interpreting the provisions
of Section 15 (2A), Section 41, Section
57 of the Uttar Pradesh Urban Planning
and Development Act read with Section
4 (33a) of the U.P. General Clauses Act,
1904, this Court has come to the
conclusion that the word 'Prescribed'
means prescribed by the rules under the
Act and if no such rules have been
framed no charge under Section 15(2A)
446 INDIAN LAW REPORTS ALLAHABAD SERIES
can be levied, learned counsel for the
petitioner contended that in the present
case also since no rules have been framed
for charging development fees; therefore,
any charge and development fees by
respondent No.2, i.e., the MDA is illegal.

7. It is also stated that Section
2(ggg) of the said Act, 1973 clearly
shows that the development fees can only
be imposed by the construction of five
things i.e., (i) road, (ii) drainage, (iii)
sewer line, (iv) electric supply and (v)
water supply lines. It is contended that
exercising the powers under Section
41(1) of the said Act, 1973, the State
Government vide Government Order
No.3157/9-Aa-1-1998
dated
19th
August,
1998
directed
all
the
Development
Authorities
that
fee
received from the lay out plan shall be
used for the development to be done in
the same colony for the services like
drainage, road, sewer line, electric and
water supply for the development area
outside the scheme of Development
Authority.

8. It is further stated that a perusal
of the aforesaid Government Order
No.3157/9-Aa-1-1998
dated
19th
August, 1998 clearly shows that the
development fees can be recovered only
for the purpose of the colony for which
the development fees has been recovered
and not for any other colony or any other
place.
It
is
contended
that
the
development charges can be claimed
only as a fees for the services rendered
and not as a tax, and therefore, for the
said
development
charges
the
Development Authority is bound to
provide services to the same colony or
the plot for which the development
charges are being taken and if the said
colony or the plot alone is not benefited
by the said development charges received
from them then it shall become a tax
which is not permissible under the eyes
of law.

9. It is also stated that up to the
month of June, 2006, the respondent
No.2, was charging development fees at a
flat rate of Rs.125/- per square meter of
the plotted area of a particular colony
which was also arbitrary in as much as
the fee cannot be charged on ad valorem
basis. On 03rd June, 2006, the Vice
Chairman of MDA wrote a note to the
Chairman, MDA/ Commissioner Meerut
Divison, Meerut informing him that the
development fees of Rs.125/- per square
meter for residential plots and Rs.150/-
per square meter for commercial plots,
which was fixed by the MDA in its
meeting dated 26th March, 2003 vide
Resolution No.7 was not sufficient.
According to the Vice Chairman in the
74th meeting of the MDA in item No.4 it
was proposed that the development fees
be taken at the rate of Rs.400/- per square
meter for whole area of the land, but the
proceedings of the said minutes are not
available and, therefore, sought approval
to impose Rs.400/- per square meter for
whole of the plan area as the external
development charges. On the same day,
the Chairman, MDA signed the proposal
and since then the MDA has illegally and
in an unauthorized manner started
claiming external development charges
on the whole land area of the colony at
the rate of Rs.400/- per square meter.

10. It is further stated by the
petitioner that whenever a development
submits a lay out plan for approval of the
colony then almost 50 percent area of the
land on which he intends to develop a
8 All. M/S Godwin Construction Pvt. Ltd. Vs. State of U.P. & Ors.
447
colony, is utilized for the purpose of
road, parks, community service areas and
other amenities and only 50 percent of
the land area is used for the purpose of
plotting or construction of the houses. As
such the effect of the said noting of the
Vice Chairman and its approval by
respondent No.3 means to almost 61⁄2
time increase in the extra development
charges since the extra development
charges of the colony if calculated at the
rate of Rs.400/- per square meter for
whole area of the land shall come out to
be almost Rs.800/- per square meter of
the plotted area.

11. The petitioner further stated that
the aforesaid proposal was kept in the
board meeting dated 29th June, 2006 of
the MDA as item No.13 but the same
was
not
approved
by
the
MDA.
Therefore, the increase in the extra
development charges could not be given
effect in any manner. As per Section 2
(dd) of the said Act, the Chairman and
Vice Chairman of the Development
Authority are only the officers of the
Development
Authority,
while
the
Development Authority has been defined
under Section 4 of the said Act, 1973.
Section 4(1) of the said Act, 1973
provides that the State Government may,
by notification in the gazette, constitute
for the purposes of the said Act and
Authority to be called the 'Development
Authority' for any development area.
Section 4(2) of the said Act, 1973
provides that the said Development
Authority shall be body corporate by the
name having perpetual succession and
common seal with power to acquire, hold
and dispose of property, and to contract
and shall by the said name sue and sued.
As per Section 4(3) of the said Act, 1973
the Development Authority consists of
15 members including Chairman and
Vice Chairman of the Development
Authority concerned.

12. It is also stated on behalf of the
petitioner that Section 4 of the said Act,
1973 clearly shows that the Chairman and
Vice
Chairman
of
the
Development
Authority have no right or Authority to
impose any such fees, such as development
fees or to change the rate of development
fees
without
the
approval
of
the
Development Authority and that to on a
rational basis. The basis of said Rs.400/- per
square meter of the plotted area has been
taken from a letter dated 29th December,
2005 wherein the State Government has
informed all the Development Authorities
that for the purpose of issuing licences to the
developers, and allotment of land, after its
acquisition by the Development Authority
to the developers and for the development of
the said land by the Development Authority,
the development fees can be levied at the
rate of Rs.385/- per square meter of the land
area which has to be rounded as Rs.400/-
per square meter of the land area, which had
been calculated on the basis of data of
Lucknow and has to be amended by the
individual Development Authorities as per
then dates. The said letter dated 29th
December,
2005
applies
where
the
development of the roads, drainage, electric
supply and water supply is undertaken by
the Development Authority itself, after its
acquisition by the Development Authority
and not by the builder and the builder has
only to carve out the colony and to sell off
the plots or houses of the said colony to the
intending buyers..

13. The petitioner further stated that
in the case of the private developers who
are not taking any land from the
Development Authority and who have
448 INDIAN LAW REPORTS ALLAHABAD SERIES
their own land and/ or purchasing the
land from the existing land holders then
all the development in the colony,
including roads, drainage, electric supply
and water supply lines are undertaken by
the developers itself and not by the
Development Authority and only on this
condition that all these amenities and
development shall be provided by the
developer, the plan of the developer is
passed.

14.

Vide
letter
dated
22nd
September,
2007,
respondent
No.2
directed the petitioner to deposit an
amount
of
Rs.6,57,14,000.00/-
as
external development charge at the rate
of Rs.400/- per square meter for the
Talpat Area measuring 1,64,285/- square
meter. It is stated that respondent No.2,
has not provided the land after its
acquisition and development. Therefore,
no order based on letter dated 29th
December, 2005 could be passed by the
respondents.

15. The petitioner further stated that
at the earlier existing rates of the external
development charges i.e., Rs.125/- per
square meter, it has deposited an amount
of Rs.75,00,000.00/- on 31.01.2008.
However, vide impugned order dated
19th
July,
2008,
respondent
No.2
directed
to
deposit
the
external
development
charges
amounting
to
Rs.2,61,84,771.00/- till 31.07.2008 at the
rate of Rs.400/- per square meter
otherwise respondent No.2 will proceed
for further action.

16. It is argued on behalf of the
petitioner that as per Government Order
dated 19th August, 1998, no amount has
been spent for the development of said
colony from the external development
charges collected by the MDA and whole
of the said amount is surplus amount
with the MDA. The counsel for the
petitioner, therefore, submitted that the
external development fees of Rs.400/-
per
square
meter
as
imposed
by
respondent No.2 is absolutely illegal and
against the provisions of the said Act.
Therefore, the same is liable to be struck
down to meet the ends of justice.

17. It is further argued on behalf of
the petitioner that respondents No.2 and 3,
in an illegal, arbitrary, irrational and
whimsical manner passed the impugned
Resolution dated 03rd June, 2006, whereby
they raised the amount of external
development fees from Rs.125/- per square
meter to Rs.400/- per square meter against
the provisions of law, which is based on
extraneous considerations, and bereft of the
material
on
record.
Moreover,
said
Resolution dated 03rd June, 2006 had not
been approved by the Development
Authority itself, but they are adamant to
impose an amount of amount of Rs.400/-
per square meter as external development
fees against petitioner. Therefore, the said
Resolution dated 03rd June, 2006 passed
by respondents No.2 and 3 is liable to be
set aside.

18. Learned counsel for the
petitioner contended that the act of the
opposite parties are out rightly illegal,
arbitrary and unlawful and same is not
tenable in the eye of law and justice. The
impugned action of the respondents fails
the test of judiciousness and does not
avoid arbitrary and capricious actions
and the impugned acts of the opposite
parties cannot be allowed to operate.

19. It is further argued that the
action on the part of opposite parties are
8 All. M/S Godwin Construction Pvt. Ltd. Vs. State of U.P. & Ors.
449
hitting the statutory provisions, arbitrary,
unreasonable and illegal, and in violation
of Articles 14 and 19(1)(g) of the
Constitution
of
India,
hence
the
impugned Resolution dated 03.06.2006,
and order dated 19th July, 2008 passed
by respondents No.2 and 3 are liable to
be set aside.

20. Learned counsel for the
petitioner argued that a fee is levied
essentially for services rendered and as
such there is an element of quid-pro-quo
between a person to pay fee and the
public authority which imposes it.
However, in the instant case, the MDA,
in fact, provided no services. There is no
bye laws, rule and regulation or law
under the provision of the said Act, 1973
for
imposition
or
realizing
any
development fee/betterment fee on ad
valorem basis. It is further contended that
the
imposition
of
development
fee/betterment fee amounts to tax for
which no rules or regulations have been
framed so far.

21. Learned counsel for the
petitioner further contended that while
prescribing fee the respondents have
levied fees on ad valorem basis which is
a
circumstance
to
show
that
the
impugned levy is in the nature of tax and
not in the nature of fee. Moreover, the
quantum of levy indicates that it is is a
tax and not a fee. Further, the quantum of
fee is disproportionate to the so called
services which is one more circumstance
showing arbitrariness in the levy of such
imposition. Hence, the levy of fee is
irrational, arbitrary, and discriminatory as
the classification is not based on
intelligible differentia and the differentia
has no reasonable nexus with the object
of legislation.

22. It is argued on behalf of the
petitioner that the respondents were
charging development charges at the rate
of Rs.125/- prior to 30.09.2007 which
has
not
been
denied
by
the
respondent/MDA. However, through the
impugned order dated 19.07.2008 the
respondent/MDA is trying to charge
Rs.400/-
per
square
meter
as
development
fee
whereas
the
Government Order dated 30.09.2007
prescribes the external development fee
of
Rs.288/-
per
square
meter
is
chargeable. It is further contended that
the MDA has tried to impress that the
rate of external development charges is
Rs.400/- where as the said Government
Order dated 29.12.2005 is for integrated
township wherein the minimum area of
the land should not be less than 50 acres
i.e., 2,02,343/- square meters. Whereas
the land of the petitioner for development
is only 1,64,285/- square meter.

23. It is further argued on behalf of
the petitioner that the Government Order
dated
30.09.2007
prescribing
development fee of Rs.288/- came almost
two
years
after
Government
Order/integrated township policy dated
29.12.2005, hence even if rate of
Rs.125/- is unacceptable, it cannot be
more
than
Rs.288/-
as
external
development charge and there arises no
question of Rs.400/- as the external
development charge.

24. Learned counsel further stated
that the concept of quid-pro-quo is fully
acceptable in the present case which
means that the fee paid by the petitioner
should only be utilized against the
services
rendered
by
the
respondent/MDA and once the fee was
deposited it was MDA's obligation to
450 INDIAN LAW REPORTS ALLAHABAD SERIES
have developed the external area for the
purpose of the petitioner colony as
prescribed under Section 2(ggg) of the
said Act. Reliance is placed by the
petitioner heavily on the judgment in the
case
of
'Calcutta
Municipal
Corporation vs. Shrey Mercantile',
(2005) 4 SCC 245.

25. The petition is strongly opposed
by the respondents. It is stated that the
petitioner has concealed material facts
and played a fraud in approaching this
Court; consequently, the petitioner is not
entitled for grant of any equitable relief
under Article 226 of the Constitution of
India.

26. It is stated by the respondents
that it is a fundamental principle of law
that a person invoking the extraordinary
jurisdiction of this Court must come with
clean hands and must make a full and
complete disclosure of facts to this Court.
The
petitioner
has
suppressed
the
foundational facts from this Court which
are required to be pleaded enabling this
Court to scrutinize the nature and the
content of the right alleged to have been
violated by the respondents.

27. It is further stated that the
petitioner with mala fide intentions and
with ulterior motives, suppressed the
material facts from this Court that prior
to filing of the aforesaid with petition, the
petitioner had agreed to pay development
charges at the rate of Rs.400/- per square
meter. A material fact of execution of the
agreement deed dated 25.09.2007 has
also been suppressed from this Hon'ble
Court. The petitioner also suppressed the
material fact that on 26.09.2007 at the
time of issuing the sanctioned plan
submitted by the petitioner under Section
15of the said Act, the petitioner had paid
40 percent of the total development
charges, at the rate of Rs.400/- per square
meter, to the answering respondents.

28. The petitioner further did not
disclose the fact that after it had
deposited Rs.2,62,85,600.00/-, that is, 40
percent of the development charges at the
rate of Rs.400/- per square meter, the rest
60 percent of the development charges
were required to be deposited by the
petitioner
as
per
the
letter
dated
31.10.2007 that too in three installments.
However, the petitioner did not comply
the
aforementioned
letter
dated
31.10.2007 and did not deposit the
agreed
and
admitted
development
charges at the rate of Rs.400/- per square
meter. It is stated that on 31.01.2008 the
petitioner
deposited
only
Rs.75,00,000.00/- (Rupees Seventy Five
Lacs only), and thereafter, did not deposit
any amount and has approached this
Court by filing the aforesaid writ
petition, suppressing the material facts
which are imperative fr the purposes of
the aforesaid writ petition. The writ
jurisdiction has been invoked by the
petitioner after it had committed default.
The petitioner in order to overcome his
own shortcoming has filed the aforesaid
writ
petition,
in
effect
seeking
amendment of a concluded contract.

29. While relying on the judgment
of the Supreme Court in the case of 'K.D.
Sharma vs. Steel Authority of India
and others', reported in (2008) 12 SCC
481 wherein it was held that if there is no
candid
disclosure
of
relevant
and
material facts or the petitioner is guilty of
misleading the court, his petition may be
dismissed at the threshold without
considering the merits of the claim,
8 All. M/S Godwin Construction Pvt. Ltd. Vs. State of U.P. & Ors.
451
learned counsel for the respondents
contended that the petitioner has not only
played fraud upon this Hon'ble Court by
suppressing material facts from the Court
but has also tried to mislead this Court.

30. It is further stated that
'Development Fee' means the fee levied
upon a person or body under Section 15
of the Act for construction of road, drain,
sewer line, electric supply and water
supply lines in the development area by
the
Development
Authority.
The
'Development Area' means any area
declared to be development area under
Section 3 of the Act. It is therefore, clear
that the development of the area is not
confined to the particular place or area
but development as a whole of the
development area.

31. It is pointed out by learned
counsel for the respondents that the Vice
Chairman, MDA had sent a letter dated
30.06.2006 to the State Government
requesting therein that levy of Rs.400/-
per square meter towards development
charges may be approved. In fact
Rs.434/- per square meter was calculated
on the basis of Meerut database. The
State Government vide its order dated
17.07.2006
had
approved
the
development charges, as requested. It is
further stated that the Government Order
dated 19.08.1998 is nothing but a
clarification of para-5 Kha of the office
order
dated
15.01.1998.
The
said
Government Order is applicable to the
urban area outside the scheme area of the
development area. The said Government
Order is, therefore, not applicable and
available to the case of the petitioner.

32. Learned counsel for the
respondents contended that the proposal
to increase development charges from
Rs.125/- per square meter to Rs.400/- per
square meter was made in accordance
with said Act and the same was kept in
the
MDA
Board's
meeting
dated
04.08.2007.
The
Board
had
taken
decision to increase the development
charges and the same was accordingly
resolved as per Resolution No.11.

33.

Parameters
for
charging
development fee have been laid down by the
State Government and the various heads
under which the amount is calculated has
also
been
determined
by
the
Sate
Government. In general, costing of the
development charges, the State Government
had after adding the expenditure incurred in
laying of roads, sewer, electricity, flyovers
and other amenities, laid down Rs.400/- per
square meter as development charges even
while the respondents under the same
headings incur expenditure of Rs.434/- per
square meter, sanction of the same was not
given by the State Government and the
answering respondents have been directed
to charge Rs.400/- only per square meter
which not only the petitioner be it an
individual body or firm is paying to the
Development Authority. The decision taken
by the State Government to charge Rs.400/-
per square meter towards development
charges and adopted by the answering
respondents is a policy decision and is not
amenable to writ jurisdiction under Article
226 of the Constitution of India. It is further
stated that the estimated project cost of the
development
area
which
was
duly
advertised
at
the
time
of
inviting
applications for development of lands and
which includes flyovers, bus terminal, metro
rail and the like.

34. The respondents further stated
that they are required to develop entire
452 INDIAN LAW REPORTS ALLAHABAD SERIES
development area as covered under
Section 3 of the Act and the insistence of
he petitioner to develop around and
adjoining the petitioner's land is per se,
untenable
and
does
not
merit
consideration. By filing of the writ
petition under Article 226 of the
Constitution of India the petitioner
cannot seek amendment in the terms of
the agreement entered into between the
petitioner and the answering respondents.

35. It was also pointed out by the
respondents that Ghaziabad Development
Authority,
Ghaziabad
is
charging
Rs.1,947/- per square meter towards
development
charges.
Similarly,
Lucknow
Development
Authority,
Lucknow is charging Rs.830/- per square
meter towards development charges.
Moradabad
Development
Authority,
Moradabad is charging Rs.400/- per
square
meter
towards
development
charges. Kanpur Development Authority,
Kanpur is charging Rs.746/- per square
meter towards development charges. It is
further stated that none of the ground
taken by the petitioner are tenable in the
eyes of law and the writ petition deserves
dismissal.

36. We have heard Sri Dipak Seth,
learned counsel for the petitioner along
with Sri Ratnesh Chandra, Advocate and
Sri V.P. Nag, learned Standing Counsel
for respondent No.1 as well as Sri Ram
Raj, learned counsel for respondent No.3
and perused the pleadings and the
documents on record.

37. The grievance of the petitioner
is with regard to the charging of external
development charges at the enhanced rate
of Rs.400/- per square meter by the
Meerut Development Authority without
there being any rules framed with the
approval of the State Government. The
petitioner
has
challenged
the
said
external charges as unlawful, arbitrary
being contrary to the Government Order
dated 19th August, 1998 as well as the
Uttar Pradesh Urban Planning and
Development Act, 1973.

38. The Meerut Development
Authority (MDA) has been constituted
by the State Government under Section 4
of the said Act. It has been enjoined to
undertake
the
development
of
the
development area including providing
amenities or carrying out engineering
operations or providing means of access
as envisaged under the Act or other
amenities that may be specified by a
notification
issued
by
the
State
Government as part of development
plans undertaking under the Act.

39. Before we proceed to deal with
the matter, it is appropriate to refer to and
extract some of the relevant provisions of
the
Uttar
Pradesh
Planning
and
Development Act, 1973. Section 2(ggg)
of the said Act talks about development
fee. The said Section reads as under:-

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

40. Section 15(2A) of the said Act
provides for levy of development fee etc.
by the Authority. The said Section is
reproduced as under:-

"15 (2A) The Authority shall be
entitled
to
levy
development
fees,
8 All. M/S Godwin Construction Pvt. Ltd. Vs. State of U.P. & Ors.
453
mutation charges, stacking fees, and
water fees in such manner and at such
rates as may be prescribed."

41. The proviso 3 to the Section
15(3) of the Act provides that before
granting permission, referred to in
Section 14, the Vice Chairman may get
the fees and charges levied under SubSection 2A deposited.

42. Under the provisions of Section
35 of the Act, the State Government is
empowered to make rules for carrying
out the purposes of the aforesaid Act, for
all or any of the following matters:-

(a) The levy of fee on a
memorandum of appeal under SubSection (5) of Section 15 or under SubSection (2) of Section 27.

(b)
The
procedure
to
be
followed
by
the
Chairman
in
determination of betterment charges, and
the powers that it shall have for the
purpose.

(c) Any other matter which has
to be or may be prescribed by the rules.

43. Sections 56 and 57 of the Act
empower an Authority to make regulation
and bye-laws for the administration of the
affairs of the authority, with the previous
approval of the State Government. The
general power is available under Section 56
for the Authority to make regulations for the
administration of the affairs of the
Authority.

44. The word 'Prescribed' under
Section 15 (2A) of the Act only refers to
prescribe by rules. This is also clear from
Section 4 (33A) of the U.P. General
Clauses Act, 1904, which states as
under:-

"'Prescribed'
shall
mean
prescribed by rules under the Act in
which the work occur."

The word 'Prescribed' under
Section 15 (2A) of the Act only refers to
prescribe by rules. It is also clear from
the interpretation of Section 55 (2) of the
Act which prescribes that even the fee to
be levied on the memorandum of appeal,
as well as procedure to be followed by
the
Chairman
in
determination
of
betterment charges, and the powers that it
shall have for the purpose shall be
prescribed by rules only, which will be
framed by the State Government.

45. In terms of Section 14 of the
Act, after the declaration of any area as
development area under Section 3, no
development of land shall be undertaken
or carried out constituted in the area by
any person or body unless permission for
such development has been obtained in
writing from the concerned Development
Authority
in
accordance
with
the
provisions of the Act. Therefore, before
any person or a body undertakes
development in accordance with the plan,
he is enjoined to obtain in writing from
the
Vice
Chairman
sanction
for
development in accordance with the
provisions of the Act.

46. Section 15 of the Act provides
provision for application for permission
to develop the area. Sub-Section 2-A of
Section 15 of the Act provides that the
Development Authority shall be entitled
to levy development fees, mutation
charges, staking fees and water fees in
such manner and at such rate as may be
prescribed. The proviso to Sub-Section 3
of Section 15 of the Act provides that
before granting permission to develop,
referred in Section 14 of the Act, the
454 INDIAN LAW REPORTS ALLAHABAD SERIES
Vice Chairman may get the fees and the
charges levied under Sub-Section 2-A
deposited.

47. Section 41 of the Act provides
control by State Government and the said
Section is reproduced hereunder:-

"41.
Control
by
State
Government:-

(1) The (Authority), the Chairman
or the (Vice Chairman) shall carry out such
directions as may be issued to it from time to
time by the Sate Government for the efficient
administration of this Act..........."

48. The petitioner duly accepted the
terms sent by the Authority vide letter
dated 22.09.2007 thereafter the Authority
sanctioned the Talpat Manchitra project
of the petitioner on 26.09.2007.

49. Section 38-A of the Act
provides for levy of development charges
on private developer. The said Section
reads as under:-

"38-A. Power of Authority to
levy and use conversion charges and
city development charge:-

(1) .....

(2) Where in any development
area a licence has been granted to private
developer for assembly and development of
land, the Authority shall be entitled to levy
city development charge on the private
developer of such land and in such manner
and at such rates as may be prescribed."

50. The State Government on
21.05.2005
directed
the
development
authorities to follow the Government Order
dated 29.12.2005 in respect of realization of
development charges wherein policy of
realization of development charge/fee was
categorically mentioned as Rs.400/- per
square meter. A letter dated 30.06.2006 was
sent by the Authority to the State
Government seeking direction for realizing
external development charges at the rate of
Rs.400/- per square meter. The said letter was
replied to the Authority by the State
Government on 17.07.2006 informing that
the development charges be realized as per
Government Policy dated 29.12.2005. It is
further noticed that a large number of
developers/institutions
situated
in
the
petitioner's vicinity were paying regularly
development charges at the rate of Rs.400/-
per square meter.

51. It is also not disputed by the
petitioner that it has deposited 40 percent
of the total external development charges
with the MDA at the rate of Rs.400/- per
square meter. The petitioner thereafter
questioned the rate of development
charges and also the power of the
Authority to charge such development
charges.

52. The Supreme Court in the
matter of 'State of U.P. and others vs.
Malti
Kaul
(Smt.) and
another',
reported as (1996) 10 SCC 425 has held
that
Development
Authority
as
a
condition for sanction of plan for a
development area can levy development
charges/fee. The Supreme Court in this
case while considering the various
provisions of the Act has held as under:-

"11.
A
reading
of
these
provisions would clearly indicate that in
a development area when an owner or
body or a department of the government
undertakes to develop the land, two
options are open to the development
authority, namely, either it may itself
undertake to provide amenities or other
8 All. M/S Godwin Construction Pvt. Ltd. Vs. State of U.P. & Ors.
455
means
of
access,
engineering
corporations as provided under the Act
or as a condition to grant sanction, it can
call upon the person who undertakes
development
or
the
body
of
the
developers who undertake development
to deposit the amount required for such
development or providing amenities etc.

12. In the light of direction (vii)
of the directions issued in the regulations
the owner or the body or the developer is
enjoined either to deposit the amount
demanded or give bank guarantee or
mortgage the property in favour of the
development authority so that it could
secure sufficient security in advance for
overseeing the development including
providing amenities as a scheme of the
development as per the sanction. It is
settled law that levy of fee is a
compulsory
exaction
for
services
rendered as quid Pro quo.