Allowed

Kailash Singh Kushwaha and Anr. v. State of U.P. and Others

Allahabad HC24 May 2023WRIC/4182/2010

Case brief

AI extract

What is this about?

This single-judge bench allowed a writ petition challenging a demand notice for external development fees and other charges. Relying on a recent Supreme Court judgment, the court quashed demands for charges not specified in the Act, such as inspection fees and impact fees, while validating the External Development fee demand.

What did the court decide?

Demand notice for non-development fees quashed; notice for External Development fee upheld; refund of illegally levied deposits with 6% interest directed.

Kailash Singh Kushwaha and Anr. Vs State of U.P. and… — Property and Title | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:115942-DB

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Court No. - 39

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Case :- WRIT - C No. - 4182 of 2010

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Petitioner :- Kailash Singh Kushwaha And Anr. Respondent :- State of U.P. and Others Counsel for Petitioner :- Krishan Ji Khare Counsel for Respondent :- C.S.C.,Q.H. Siddiqui,Ram Raj Singh,S.K. Gupta,Umesh Dwivedi

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Hon'ble Salil Kumar Rai,J. Hon'ble Arun Kumar Singh Deshwal,J.

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List has been revised.

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No one appears either for the petitioners or the respondents. However, we have perused the records.

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The present petition has been filed challenging the demand notice dated 16.01.2010 issued by the Allahabad Development Authority to the petitioners.

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The aforesaid demand notice was issued after the petitioners submitted a building plan. In the demand notice, the petitioners were asked to deposit External Development fee and fees and charges under other categories.

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It has been argued by the counsel for the petitioners that in light of the Division Bench judgments of this Court in Shaukat Ali vs. Allahabad Development Authority, Allahabad & Anr. (2003) 2 UPLBEC 1573 and Smt. Nisha Kumari vs. State of U.P & Ors. 2014 6 ADJ 20 , the aforesaid demands except the demand for Extra Development fee are illegal and the petitioners cannot be asked to deposit the same. It has been argued that the Supreme Court in Mathura Vrindavan Development Authority & Anr. vs. Rajesh Sharma & Ors. 2023 SCC OnLine SC 530 has also held that, except Development Charges, the Development Authorities have no power to levy fees and charges for other purposes mentioned in the notice dated 16.01.2010.

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We have perused the demand notice and the judgments referred by the counsel for the petitioners and find force in the contention of the counsel for the petitioners that the Development Authority had no jurisdiction to demand charges, other than External Development fee. Paragraph nos. 23, 24 and 25 of the judgment of the Supreme Court in Mathura Vrindavan (supra) are reproduced

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below : -

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"23. Under the circumstances, in exercise of powers under Section 41 of the Act, 1973, the State could not have issued the orders permitting/allowing the Development Authorities to levy the charges/fees other than provided under Section 15(2-A) of the Act, 1973. At this stage, it is required to be noted that the levy of fees/charges provided under Section 15(2-A), all of them have been specifically defined under Section 2 of the Act, 1973. Therefore, the intention of the Act is to levy only those charges/fees provided/mentioned under Section 15(2-A) of the Act, 1973, otherwise the other charges also would have been defined under the Act, 1973. Levy of such other charges can be said to be hit by Article 265 of the Constitution of India. As per Article 265 of the Constitution of India, there shall not be any levy of tax/fees/charges except in accordance with law and/or as provided under the statute. Under the circumstances and in view of the above, the High Court has rightly set aside the various demand notices by way of levy of inspection fee/supervision fee while granting of sanction lay out plan, subdivision charges, impact fee etc.

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24. In view of the above and for the reasons stated above, the levy of development charges/fees by the various Development Authorities of the State of U.P. is hereby confirmed. The decision of the High Court in the case of Rekha Rani (supra) (Civil Appeal No. 4489/2014) quashing and setting aside the levy of development charges/fees is hereby quashed and set aside to that extent. The impugned judgments and orders passed by the High Court quashing and setting aside the demand notices/levy of other charges/fees, namely, inspection fee/supervision fee while granting of sanction layout plan, sub-division charges, impact fee etc. (other than development charges/fees) are hereby confirmed .

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25. It is observed and directed that any amount already paid by the respective original writ petitioners other than the development charges/fees and the charges provided under Section 15(2-A), now be refunded to the respective original writ petitioners with 6% interest per annum, within a period of twelve months from today, of course after adjusting development charges/fees . It is made clear that we have not expressed anything on the levy of betterment charges, which, as such, is otherwise permissible under section 35 of the Act, 1973. It is also made clear that the order of refund shall be applicable only with respect to those original writ petitioners/persons who have challenged the demand notices and who were before the High Court. It is also observed and it is made clear that if any individual/original writ petitioner has any other grievances, it will be open for them to approach the High Court by way of independent proceedings. "

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(emphasis added)

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In view of the aforesaid, the demand notice dated 16.01.2010 issued by the Allahabad Development Authority so far as it asks

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the petitioners to deposit fees and charges for purposes other than External Development fees is hereby quashed. The notice so far as it demands External Development fee is valid and the petitioners are liable to pay the same.

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Any deposits made by the petitioners under the heads for which the demand notice is quashed by this Court shall be returned to the petitioners by the Allahabad Development Authority with 6% simple interest per annum within six months from today.

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With the aforesaid observations, the writ petition is allowed .

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Order Date :- 24.5.2023 Vipasha

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Digitally signed by :- VIPASHA MUKHERJEE High Court of Judicature at Allahabad

Kailash Singh Kushwaha and Anr. v. State of U.P. and Others

Case brief

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Kailash Singh Kushwaha and Anr. v. State of U.P. and Others

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