Allahabad High Court
Madhur Colonisers Pvt. Ltd.,Thru. Its ... vs State Of U.P.,Thru. Secy.,Housing & ... on 4 August, 2010
Bench: Pradeep Kant, Ritu Raj Awasthi
Court No. - 1 Case :- MISC. BENCH No. - 7419 of 2010 Petitioner :- Madhur Colonisers Pvt. Ltd.,Thru. Its Director, Respondent :- State Of U.P.,Thru. Secy.,Housing & Urban Planning & Others Petitioner Counsel :- Nandita Bharti Respondent Counsel :- C.S.C.,Mahesh Chandra Hon'ble Pradeep Kant,J.
Hon'ble Ritu Raj Awasthi,J.
Notice on behalf of respondent no.1 has been accepted by the learned Chief Standing Counsel and on behalf of respondent nos. 2 and 3 notice has been accepted by Sri Mahesh Chandra.
Learned counsel for the petitioner Sri Prashant Chandra submits that despite the order passed by this Court for determination of betterment charges in accordance with the provisions of section 51 of U.P. Awas Evam Vikas Parishad Adhiniyam, 1965, the impugned order has been passed by the Housing Commissioner in pursuance of the resolution passed by the Board reiterating that the determination has been done in the year 2000 but again without the scheme being even launched, what to say of being in advanced stage, as required in section 51 of the aforesaid Act, even the possession of the land has yet been taken..
Under the impugned order, only interim betterment charges have been asked for, with the condition, that if any excess amount, on determination being made, later on the same shall also be recovered, submission is that in view of section 51 of the aforesaid Act, when it appears to the Board that the scheme is sufficient advanced to enable the amount of the betterment fee to be determined, the Board shall, by resolution passed in this behalf, declare that for the purpose of determining such fee, the execution of the scheme shall be deemed to have been completed and shall thereupon give notice in writing to every person on whom a notice has been served under section 51 or to the successor-in-interest of such person, as the case may be, that the Board proposes to assess the amount of betterment fee payable in respect of such land. Section 50, gives the manner in which such calculation is to be done.
The impugned order dated 24.06.2010 itself says that the development work is yet to be undertaken and it does not say that any development work has been done rather to the contrary the letter of the Commissioner of the Division dated 30.10.2009 makes specific recital that no development work has yet been started under 'Jagrati Vihar Scheme' and that even possession has not been transferred till date.
In support of his submission, the learned counsel for the petitioner also placed reliance upon the order dated 27.04.2010 passed in Civil Misc. Writ Petition No. 35372 of 1998 In re:- Dr. Umesh Chandra Maheshwari vs Mathura/Vrindavan Development Authority and another, at Allahabad.
It also could not be explained by the respondents under which provision, any amount of betterment charges can be asked for as an interim measure nor there is any provision which permits determination of interim betterment charges.
We, under the circumstances, are prima-facie of the view that the Housing Commissioner or the Board would have no authority to either issue notice under section 51 of the aforesaid Act or to make assessment of betterment charges unless the conditions specified therein do exist stand fulfilled.
The learned counsel for the respondents prays for and is granted three weeks time to file counter affidavit.
List this matter in the month of September, 2010.
Till then, the petitioner shall not be required to make payment of the betterment charges, in pursuance of the impugned order dated 24.06.2010, contained in Annexure No.2 to the writ petition.
Order Date :- 4.8.2010 vks