# Raj Nagar Extension Developers(N.H.58) Association, Ghaziabad & Anr v. State of U.P. & Ors

- **Citation:** (2020) 6 ILRA 266
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020
- **Case number:** Writ-C No. 25643 of 2017
- **Bench:** Pankaj Mithal, Vipin Chandra Dixit
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-nagar-extension-developers-n-h-58-association-ghaziabad-anr-v-state-of-u-p-45810
- **Pages:** 6

## Headnote

A. Constitution of India - Article 265 -
fiscal principle - no tax shall be levied and
collected except by authority of law - State or its
instrumentalities can not raise any demand or
collect any amount from any individual without
statutory backing - the Societies Registration
Act, 1860 - Uttar Pradesh Urban Planning and
Development Act, 1973 - Section 15 - U.P.
Urban Planning and Development (Assessment,
Levy and Collection of Development Fee) Rules,
2014 - No estoppel against the Statute - if the
Statute does not provide for a thing, the same
can not be done and even if accepted, the
person is not debarred from disputing the
demand
subsequently
-
conferment
of
jurisdiction is a legislative function - no authority
under law can derive jurisdiction otherwise than
from the Statues - any order passed without
jurisdiction - would be a nullity and its validity
can be challenged at any stage - doctrine of
waiver or acquiescence - not allowed to prevail
as it would perpetuate and perpetrate defeat of
the legislative intent. (Para-13,28,29)

Petitioner - registered society - under the
Societies Registration Act, 1860 - having 25
Real Estate Developers as its members -
demand notices issued against the members of
the Society - certain demands raised by the
Ghaziabad Development Authority with regard
to external development fees - includes
development of elevated road and metro
station, as well as fee for additional Floor Area
Ratio (in short "F.A.R.") - security for rain water
harvesting while sanctioning the lay out plan of
each of the members of the Society - no
provision in respect of demands raised by the
Development Authority. (Para - 1,2,3,26)

HELD:- The demands of external development
fee under the head elevated road and metro
station; fee for the increased F.A.R from 1.5 to
2.5; and security for rain water harvesting are
held to be illegal and without jurisdiction -
demands are hereby quashed in so far as they
relate to the members of the petitioner Society.
(Para - 35)

Petition allowed.(E-7)

List of Cases Cited:-

1.Kishan LL Lal Vs St. of Raj. AIR (1990) SC
2269

2.Feroz Dotiwala Vs P.M. Wadhwani & ors.
(2003) 1 SCC 433

3.D.D.A Vs Ravindra Mohan Agarawal (1993) 3
SCC 172

4.M.I. Builders Pvt. Ltd. Vs Radhey Shyam Sahu
(1999) 6 SCC464

## Text

266 INDIAN LAW REPORTS ALLAHABAD SERIES
purported admission, the court should be
wary to accept such admissions until and
unless the counsel or the advocate is
authorised by his principal to make such
admissions. Furthermore, a client is not
bound by a statement or admission which
he or his lawyer was not authorised to
make. A lawyer generally has no implied or
apparent authority to make an admission or
statement which would directly surrender
or conclude the substantial legal rights of
the client unless such an admission or
statement is clearly a proper step in
accomplishing the purpose for which the
lawyer was employed. We hasten to add
neither the client nor the court is bound by
the lawyer's statements or admissions as to
matters of law or legal conclusions...."

(Emphasis supplied)

9....

10....

11. The concession given by the
learned State Counsel before the Tribunal
was a concession in law and contrary to
the statutory rules. Such concession is not
binding on the State for the reason that
there cannot be any estoppel against law.
The rules provide for a specific Grade of
Pay, therefore, the concession given by the
learned State Counsel before the Tribunal
is not binding on the appellant".

27. In the aforesaid cases, the Apex
Court has held that if the act of advocate is
not in furtherance to accomplish the
purpose for which he has been engaged by
his client or against the statutory provisions
or rules, such an act of advocate would not
be binding upon the client. In the present
case, acceptance of cost by the advocate of
the respondent no.2 is not an act in
furtherance to accomplish the purpose for
which he was engaged and also in violation
of statutory provision as the application
under Order 9 Rule 13 of C.P.C. was
incompetent
in
absence
of
delay
condoantion application and any order
passed condoning the delay in filing the
aforesaid application. Thus, such an act of
respondent no.2 would not debar the
respondent no. 2 from challenging the order
of S.D.M., Fatehpur setting aside ex-parte
judgment and decree. Thus, the contention
of petitioners that the acceptance of cost by
the advocate would debar the respondents
from
challenging
the
order
dated
05.07.2005
is
misconceived
and
not
sustainable in law.

28. Thus, for the reasons given above,
this Court finds no merit in the submission
of the counsel for the petitioner. The writ
petition lacks merit and is, accordingly,
dismissed. There is no order as to cost.

----------
(2020)06ILR A266
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.02.2020

BEFORE

THE HON'BLE PANKAJ MITHAL, J.
THE HON'BLE VIPIN CHANDRA DIXIT, J.

Writ-C No. 25643 of 2017

Raj Nagar Extension Developers(N.H.58)
Association, Ghaziabad & Anr.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Shashi Nandan, Sri Pankaj Agarwal, Sri
Ram Bilas Yadav, Sri Mahesh Chandra
Chaturvedi, Sri Mahesh Narain Singh, Sri
Vrindawan Mishra

Counsel for the Respondents:
C.S.C., Sri Anoop Trivedi, Sri Ram Bilas
Yadav
6 All. Raj Nagar Extension Developers(N.H.58) Association, Ghaziabad & Anr. Vs. State of U.P.
& Ors.
267
A. Constitution of India - Article 265 -
fiscal principle - no tax shall be levied and
collected except by authority of law - State or its
instrumentalities can not raise any demand or
collect any amount from any individual without
statutory backing - the Societies Registration
Act, 1860 - Uttar Pradesh Urban Planning and
Development Act, 1973 - Section 15 - U.P.
Urban Planning and Development (Assessment,
Levy and Collection of Development Fee) Rules,
2014 - No estoppel against the Statute - if the
Statute does not provide for a thing, the same
can not be done and even if accepted, the
person is not debarred from disputing the
demand
subsequently
-
conferment
of
jurisdiction is a legislative function - no authority
under law can derive jurisdiction otherwise than
from the Statues - any order passed without
jurisdiction - would be a nullity and its validity
can be challenged at any stage - doctrine of
waiver or acquiescence - not allowed to prevail
as it would perpetuate and perpetrate defeat of
the legislative intent. (Para-13,28,29)

Petitioner - registered society - under the
Societies Registration Act, 1860 - having 25
Real Estate Developers as its members -
demand notices issued against the members of
the Society - certain demands raised by the
Ghaziabad Development Authority with regard
to external development fees - includes
development of elevated road and metro
station, as well as fee for additional Floor Area
Ratio (in short "F.A.R.") - security for rain water
harvesting while sanctioning the lay out plan of
each of the members of the Society - no
provision in respect of demands raised by the
Development Authority. (Para - 1,2,3,26)

HELD:- The demands of external development
fee under the head elevated road and metro
station; fee for the increased F.A.R from 1.5 to
2.5; and security for rain water harvesting are
held to be illegal and without jurisdiction -
demands are hereby quashed in so far as they
relate to the members of the petitioner Society.
(Para - 35)

Petition allowed.(E-7)

List of Cases Cited:-

1.Kishan LL Lal Vs St. of Raj. AIR (1990) SC
2269

2.Feroz Dotiwala Vs P.M. Wadhwani & ors.
(2003) 1 SCC 433

3.D.D.A Vs Ravindra Mohan Agarawal (1993) 3
SCC 172

4.M.I. Builders Pvt. Ltd. Vs Radhey Shyam Sahu
(1999) 6 SCC464

(Delivered by Hon'ble Pankaj Mithal, J.
The Hon'ble Vipin Chandra Dixit, J.)

1. The petitioner no. 1 Raj Nagar
Extension (NH-58) Developers Association
is a registered society under the Societies
Registration Act, 1860 having 25 Real
Estate Developers as its members.

2. The aforesaid Society and its
General Manager have preferred this writ
petition aggrieved by the certain demands
raised by the Ghaziabad Development
Authority
with
regard
to
external
development
fees
which
includes
development of elevated road and metro
station, as well as fee for additional Floor
Area Ratio (in short "F.A.R.") and security
for rain water harvesting while sanctioning
the lay out plan of each of the members of
the Society.

3. The petitioners accordingly have
prayed for quashing of some of the demand
notices issued against the members of the
Society and at the same time for deciding
its representation disputing the aforesaid
demands.

4. The parties have exchanged
pleadings and have agreed for disposal of
the petition at the stage of admission itself.
268 INDIAN LAW REPORTS ALLAHABAD SERIES

5. We have heard Sri Shashi Nandan,
Senior Counsel assisted by Sri Pankaj
Agrawal
for
the
petitioners,
learned
Standing counsel and Sri M.C. Chaturvedi,
Senior counsel assisted by Sri Mahesh
Narain Singh, learned counsel appearing
for respondents no. 2, 3 and 4 i.e.
Ghaziabad
Development
Authority
(hereinafter "G.D.A.").

6. Sri Shashi Nandan argued that the
demand of additional external development
charges under the head elevated road cess
& metro cess as also demand of fee for
additional F.A.R. and security for the rain
water harvesting system is completely alien
to the provisions of the Uttar Pradesh
Urban Planning and Development Act,
1973 (for short the Act) and the Rules
framed thereunder and as such are illegal
and without jurisdiction. He submits that
the individual developers/builders or the
members of the Society are not concerned
with the construction of any elevated road
or metro station and therefore no fee on
account of the same can be demanded
under the head external development
charges. The F.A.R. for the group housing
is admissible to the extent of 2.5 and
therefore the demand of fee for the
additional F.A.R. from 1.5 to 2.5 is illegal.
Similarly, there is no provision for
demanding security of Rs. 2 lakhs for the
rain harvesting system.

7. Sri M.C. Chaturvedi, Senior
counsel rebuts the above arguments; first,
on the ground that the demand of the above
charges
are
against
the
individual
Developers and not against the petitioner
Society. Therefore, the petitioner Society
has no locus to espouse the cause of
individuals which is independent to each
one of them. He submits that all the
members of the petitioner Society were
sanctioned their lay out plan on different
dates and all of them have accepted the
conditions of the sanction which includes
the aforesaid demands without any let or
hindrance and they even started paying the
amounts as demanded.

8. In short, he contends that the
members of the petitioner Society by
paying part of the aforesaid demands have
accepted the same and are estopped in law
from disputing the said demands at this
juncture.

9. The petitioner no. 1 as stated earlier
is a Society of the Real Estate Developers
which is duly registered. The petitioners
have given the list of its members also and
have even enclosed the resolution of the
Society dated 24.5.2017 authorizing it to
file the present writ petition on behalf of its
members.

10. In view of the aforesaid even
though all the members of the Society may
be having a separate cause of action for
challenging the demands raised against
them but since the demands are of common
nature, the Society is not denuded of the
power to espouse the cause of its members
and to file consolidated petition on behalf
of all its members.

11. Accordingly, objections raised by
Sri M.C. Chaturvedi in this regard are of no
avail and stands overruled.

12. Now the primary question which
is for our adjudication is whether the GDA
can
demand
additional
external
development charges in connection with
elevated road and metro station, fees on the
increased additional F.A.R. other than
which
has
been
purchased
by
the
Developers over and above the increased
6 All. Raj Nagar Extension Developers(N.H.58) Association, Ghaziabad & Anr. Vs. State of U.P.
& Ors.
269
F.A.R and security for rain harvesting
system.

13. Article 265 of the Constitution of
India in relation to imposition of tax and its
collection mandates that no tax shall be
levied and collected except by authority of
law. Therefore, it has been well settled as a
fiscal principle that no demand shall be
raised and amount be collected except by
an authority of law. On this very principle
the State or its instrumentalities can not
raise any demand or collect any amount
from any individual without statutory
backing.

14. The GDA is an authority
constituted under the Act as a body
corporate to administer the development of
the area of the authority in accordance with
the provisions of the said Act and the Rules
framed
thereunder.
Therefore,
all
development plans, lay out plans, building
maps, etc. have to be sanctioned by the
Development Authority in accordance with
the
aforesaid
Act
subject
to
demand/payment of fees, cess and other
charges as may be permitted under the Act
and the Rules.

15. The "development fee" has been
defined under Section 2 (ggg) of the said
Act to mean a fee levied upon a person
under Section 15 of the Act for construction
of roads, drains, sewer lines, electric and
water
supplies
by
the
development
authority.

16. Section 15 of the Act provides for
sanction of the plans in accordance with the
bye laws and the Development Authority
has been empowered to levy development
fees, mutation charges, staking fees and
water fees at such rate as may be
prescribed, for sanctioning the plans.

17. A simple reading of the aforesaid
two provisions of the Act would reveal that
the authority can inter alia demand
development fee which is primarily on
account of construction of roads, drains,
sewer lines and water and electric supply
lines.

18. In this context it may pertinent to
mention here that whenever the definition
of any word begins with the word 'means' it
is clearly indicative of the fact that the
meaning of the said word has to be
restricted to the meaning assigned therein
and it would not mean anything else.1 In
other words, development fee as defined
under Section 2 (ggg) of the Act since it
means fee for certain specific purposes, it
would be confined to those charges alone
and would not include within its fold any
other
charge
or
thing.
Thus,
the
construction of elevated road or of the
metro station would not be covered within
the definition of development fee whether
it happens to be internal or external so as to
authorize the Development Authority to
demand and collect the same.

19. Sri Shashi Nandan has also placed
before us the U.P. Urban Planning and
Development
(Assessment,
Levy
and
Collection of Development Fee) Rules,
2014 which have been framed under
section 55 of the Act and notified on 17th
November 2014.

20. A perusal of the aforesaid Rules
would also reveal that there is no provision
for
demanding
or
collecting
any
development fee in context with elevated
road or metro station.

21. There is no dispute to the fact that
initially the GDA has permitted F.A.R. of
1.5 for group housing but subsequently the
270 INDIAN LAW REPORTS ALLAHABAD SERIES
State of U.P., vide notification dated
25.9.2008 inter alia provided additional
F.A.R. for group housing and increased it
from 1.5 to 2.5.

22. Since all the Developers who are
members of the petitioners Society are
engaged in group housing activity, they
were entitle to F.A.R of 2.5 according to
the above notification but the GDA has
demanded fee on this increased F.A.R. also.

23. In this regard Sri Chaturvedi,
Senior Counsel submitted that the aforesaid
increased F.A.R. was again reduced to 1.5
and later on it was permitted to be
increased
to
2.5
and
each
of
the
development authority was left free to
adopt the said increase, if necessary. The
GDA has not adopted the aforesaid increase
and therefore all these Developers are
liable for the payment of fees in respect of
the aforesaid increased F.A.R., also.

24. It is not in dispute that the order
by which increase in F.A.R. was left to be
adopted by each of the developers ie., the
Government Order dated 4.8.2011 was not
accepted by the Division Bench of this
Court and it was held that when the
permissible F.A.R. is 2.5 as per the
notification dated 25.9.2008, then reliance
on the Government Order dated 4.8.2011 is
impermissible. Accordingly, the demand of
fee on the aforesaid increase of F.A.R. was
held to be illegal but observed that in case
the Developers or Builders purchases
additional F.A.R in excess of 2.5 then
definitely they have to pay for the same.

25. In view of the above decision, the
GDA can not demand any fee for increased
F.A.R. upto 2.5. The Developers who are
members of the petitioners Society are not
disputing the fee/charges for the additional
F.A.R. that they may have purchased
beyond 2.5 upto the permissible limit of 4
as per the notification dated 25.9.2008.

26. No provision whatsoever was placed
before us which empowers the Development
Authority to demand development fee in
reference to construction of elevated road and
metro station and for the increased F.A.R.
other than the F.A.R. purchased by the
Developers/Builders. No provision permitting
demand of any security for the purposes of
rain harvesting system has also been brought
to our notice. At the same time we ourselves
are unable to find any provision in respect to
any of the above demands raised by the
Development Authority.

27. No doubt the above demands
are part of the conditions of the
sanction granted to the lay out plans of
each of the Developers/Builders and
they have started depositing the amount
as
demanded,
Sri
Shashi
Nandan
contended that the aforesaid amount
was
deposited
by
the
Developers/Builders under duress as
they have no other option as otherwise
their lay out/map could not have been
sanctioned
jeopardizing
the
entire
development
work. This has
been
denied from the the side of the GDA
and it is alleged that there is no material
to show that any pressure was exerted
upon the Developers or the Builders to
deposit
the
amount.
They
have
voluntarily accepted the demand and
started depositing the amount and as
such are estopped in law to challenge
the said demands.

28. It is a cardinal principle of law
that there is no estopple against the
Statute. The necessary corollary of it is
that if the Statute does not provide for a
6 All. Snehil Singh Vs. Union of India & Ors.
271
thing, the same can not be done and
even if accepted, the person is not
debarred from disputing the demand
subsequently.

29. It is settled legal proposition that
conferment of jurisdiction is a legislative
function and no authority under law can
derive jurisdiction otherwise than from the
Statues. It can neither be conferred with the
consent of the parties or by any order of the
Court, may be a superior Court. Thus, if
any order is passed without jurisdiction it
would be a nullity and its validity can be
challenged at any stage. In such a situation,
the doctrine of waiver or acquiescence are
at times not allowed to prevail as it would
perpetuate and perpetrate defeat of the
legislative intent.

30. As stated earlier that any order
which is patently without jurisdiction is a
nullity in the eyes of law and its validity
can be challenged at any stage. Thus, as the
demands aforesaid are ex-facie without
jurisdiction, the petitioners or the members
of the petitioner Society are not precluded
from challenging the same even if they may
have acquiesced to the said demand earlier.

31. Moreover, waiver is in the nature
of an agreement where the party accepts
not to assert his rights. The waiver,
therefore, is an intentional relinquishment
of a right and involves a conscience
decision to forgo a legal right, benefit or
privilege and, as such, can not be
ascertained by mere conduct of the party
unless the intention to abandon the right is
proved.

32. It is also tirite to mention that
inaction in every case does not lead to an
inference
or
implicate
consent
or
acquiescence. It is also well recognized in
law, when consideration of public interest
are involved, there may be no estopple.

33. The doctrine of estopple by
acquiescence is not permissible to be invoked to
render a transaction valid even if it is otherwise
not valid under the Statutes.2

34. In view of the aforesaid facts and
circumstances, we find no force in the
submission of Sri Chaturvedi in regard to
estopple by acquiescence.

35. Accordingly, the demands of external
development fee under the head elevated road
and metro station; fee for the increased F.A.R
from 1.5 to 2.5; and security for rain water
harvesting are held to be illegal and without
jurisdiction. The said demands are hereby
quashed in so far as they relate to the members
of the petitioner Society.

36. The writ petition stands allowed to the
above extent with no order as to costs.
----------

(2020)06ILR A271
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.05.2020

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.

Writ-C No. 26939 of 2017
&
Writ-C No. 26808 of 2017

Snehil Singh ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Seemant Singh

Counsel for the Respondents: