Allahabad High Court
Raj Nagar Extension N.H.58 Developers ... vs State Of U.P. And Another on 18 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 2650
Bench: Pankaj Mithal, Vipin Chandra Dixit
HIGH COURT OF JUDICATURE AT ALLAHABAD A F R [Reserved on 07.01.2020] [Delivered on 18.02.2020] Court No. 29 Case :- WRIT - C No. - 25643 of 2017 Petitioner :- Raj Nagar Extension N.H.58 Developers Association And Anr. Respondent :- State of U.P. and Another Counsel for Petitioner :- Ram Bilas Yadav,Mahesh Chandra Chaturvedi,Mahesh Narain Singh,Pankaj Agarwal,Vrindavan Mishra Counsel for Respondent :- C.S.C.,Anoop Trivedi,Ram Bilas Yadav Hon'ble Pankaj Mithal,J.
Hon'ble Vipin Chandra Dixit,J.
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.
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.
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.
The parties have exchanged pleadings and have agreed for disposal of the petition at the stage of admission itself.
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.").
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.
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.
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.
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.
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.
Accordingly, objections raised by Sri M.C. Chaturvedi in this regard are of no avail and stands overruled.
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 F.A.R and security for rain harvesting system.
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.
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.
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.
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.
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.
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.
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.
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.
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 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.
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.
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.
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.
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.
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.
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.
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 thing, the same can not be done and even if accepted, the person is not debarred from disputing the demand subsequently.
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.
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.
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.
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.
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 In view of the aforesaid facts and circumstances, we find no force in the submission of Sri Chaturvedi in regard to estopple by acquiescence.
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.
The writ petition stands allowed to the above extent with no order as to costs.
Order Date- 18.02.2020 SKS