P.K. Jain, J.
1. Though the appeals were admitted by Hon. R. N. Ray, J. (since retired) vide order dated 10.12.1997 no substantial questions of law were formulated. However, Sri A. K. Mishra, learned counsel for the appellant has pressed the two appeals on following substantial questions of law formulated by him in the memos of appeal :
'(1) Whether the appellant was only authorized to sanction the site plan for the construction of 1.5 F.A.R. The respondents admitted a site plan for construction of multistoried building of 3.5 F.A.R., site plan of which can only be passed after the Board of the appellant in its meeting approves it and sends its recommendation to the State Government and the State Government grants its permission, only then site plan of 3.5 F.A.R. of multistoried building can be passed. No request was made nor any application was given by the plaintiff respondent that his case be placed before the Board of the appellant but view to the contrary taken by the appellant court is wholly illegal and erroneous?
(2) Whether as per the rules andregulations of the appellant,the respondents are liable topay development charges,internal development chargesand bettermen charges to theappellant as the land indispute Is situated within the -regulated area and as suchbefore permittingconstructions on a free holdland development charges etc.are charged as per the rulesand regulations of theappellant but view to thecontrary taken by theappellant court is whollyIllegal and erroneous?'
2. In Second Appeal No. 1139 of 1997, one more question raised Is that the trial court decreed the suit for allotment of certain lands to the plaintiffs-respondents on payment of consideration as directed by the Courts below. The decree is in the nature of specific performance of the contract. There was no agreement. Hence the said decree is without jurisdiction.
3. Since in both the appeals, the questions raised are identical. It would be convenient to decide both the appeals by a common Judgment.
4. In Suit No. 417 of 1997. the plaintiff alleged that he was owner in possession of land khasra No. 126 admeasuring 3-4-0 bigha pucca khasra No. 125 admeasuring area 1-10-6 pucca btgha situated in village Makanpur Pargana Loni, Tehsll Dadri, district Ghaziabad. The name of the father of the plaintiff and the name of the plaintiff were recorded in the revenue records in various years. The defendant is interfering without right or title in the possession of the plaintiff and threatened to demolish the constructions made thereon. The plaintiff applied for sanction of plan of multlstorled building but the defendant did not pass any order. The relief claimed was that by a decree of permanent injunction the defendant, Its officials and officers be restrained from interfering in the peaceful possession of the plaintiff over the suit land and they also be restrained from illegally demolishing the constructions in the suit land. By a subsequent amendment a further prayer added was that by a decree of mandatory injunction they be directed to sanction the construction plan of 3.5 F.A.R. multistoried building.
5. In Suit No. 509 of 1997 was filed by the plaintiffs-respondents in respect of khasra plot No. 233 area admeasuring 1-13-0 pucca bigha, khasra plot No. 232 area admeasuring 0-13-0 pucca btgha. khasra plot No. 232 area admeasuring 0-13-0 and khasra plot No. 377/2 area admeasuring 1-13-0 pucca btgha with similar allegations and for the same relief. However, by subsequent amendment in the plaint another relief added was that by passing a mandatory decree the defendant be directed to allot 1378,71 square metre land after accepting consideration of Rs. 708 per sq. metre and betterment charges at the rate of 1% of the sale consideration. The material allegations on which the said relief was added were that the defendant is developing the land in Kaushambi scheme. According to the development plan some of the roads, drainage, sewer etc. pass through the land of the plaintiffs. The defendant requires 447.22 sq. metre land of khasra No. 377/2 and the defendant shall have to allot 1549.95 sq. metre land to straighten the land of the plaintiffs. Likewise for constructions of road, boundary wall of sub-stations the defendant needs 277.45 sq. metre of land and the plaintiffs need 1656.16 sq. metre of land for constructions of the building. After adjustment the plaintiffs will be given 1378/71 sq. metre land. The agreement in this respect was arrived at between the parties and the defendant shall have to pay Rs. 708 plus one per cent betterment charges to the plaintiffs.
6. The defendants contested both the suits on various grounds. They had also taken the plea that the disputed land does not belong to the plaintiffs. In both the suits the trial court recorded findings of fact that the land was not acquired by the defendant-appellant and the plaintiffs were owners and were recorded tenure-holders of the suit land. On the evidence of the parties, the trial court recorded a finding of fact that the defendants agreed to allot certain lands to the plaintiffs on the terms and conditions as stated above in the plaint in Suit No. 509 of 1997 in lieu of land acquired by the defendant-appellant for the purposes of development of its own land. The trial court also held that the plaintiffs were entitled to sanction of 3,5 F.A.R. land for construction of multi storied building. The trial court, therefore, decreed both the suits. The lower appellate court affirmed the findings of fact recorded by the trial court. Aggrieved by the judgments and decrees passed by the Courts below the appellant Ohaziabad Development Authority has filed these two appeals.
7. Heard, Sri A. K. Mishra, learned counsel for the appellant and Sri Rajiv Mishra. learned counsel for the respondents in both the appeals.
Findings on Question No. 1 :
8. The case of the plaintiff-respondent was that the plaintiff intended to construct multistorled building on his land and he had applied for permission to construct 3.5 F.A.R. multistoried building. Such an application in the prescribed form and complying with all formalities was moved on 14.6.1995. The plaintiffs further case is that the development authority. i.e., the appellant neither refused the permission nor granted the permission. On consideration of the evidence adduced by the authorities, the trial court recorded a finding of fact that the plaintiff-respondent submitted application for permission to construct multlstorled building in 3.5 F.A.R. on 14.6.1995. The defendant did not grant the permission even after expiry of six months period. It was also held that the permission was also not refused by the defendant-appellant. The defendant-appellant's case appeared to be that for grant of permission for construction of multlstorled building in 3.5 F.A.R., the sanction of the Government was necessary. It is admitted that around this land in question, the authority has granted permission to various builders to construct multlstorled building in 3.5 F.A.R. No copy of sanction from the State Government in such cases has been filed. The sole question, therefore, is whether sanction of the State Government for construction of a building in 3.5 F.A.R. was necessary or not and if so, what was its procedure.
9. Submission of Sri A. K. Mishra is that it has been the practice of the appellant to obtain sanction from the State Government where permission to construct multistoried building in 3.5 F.A.R. is sought. On the other hand, Sri Rajiv Mlshra, learned counsel for the respondent has vehemently submitted that there is no rule or bye-law framed by the authorities providing for such sanction from the State Government. Despite sufficient opportunity being granted Sri A. K. Mishra, learned counsel for the appellant has not been able to refer to any provision of law or bye-law or rules framed under the U. P. Urban Planning and Development Act whereby sanction of the State Government is necessary for granting permission to construct a building beyond the height of 1.5 F.A.R.
10. Section 14 (1) of the U. P. Urban Planning and Development Act, 1973 (hereinafter called 'the Act') provides that after the declaration of any area as development area under Section 3, no development of land shall be undertaken or carried out or continued in that area by any person or body (including a department of Government) unless permission for such development has been obtained in writing from the Vice-Chairman in accordance with the provisions of this Act. The term development has been defined in Section 2(e) of the Act which provides that 'development' with its grammatical variations, means the carrying out of building, engineering, mining or other operations tn, on, over or under land, or the making of any material change in any building or land, and includes redevelopment. Therefore, the carrying out of building operations over any land within development area amounts to development. Section 14 (1) specifically provides that permission to make such development by carrying out building operations over the land shall be granted in writing by the Vice-Chairman. This provision does not admit of any exception. It does not limit the powers of the Vice-Chairman and does not provide as upto what height the permission for development can be granted by the Vice-Chairman and beyond that, the sanction of the State Government was necessary. There is of course Section 10 of the Act which provides that every plan shall be submitted by the authority to the State Government for approval and the State Government may either approve the plan without modification or with such modification as it may consider necessary or reject the plan with directions to the authority to prepare a fresh plan according to such directions. However, this provision applies only to master plan and the zonal development plans only and not to the plans for constructing a building in the development area. Sub-section (1) of Section 10 specifically provides that in this Section and in Sections 11, 12, 14 and 16. the word 'plan' means the master plan as well as the zonal development plan for a zone. Sub-section (1) of Section 14 does not speak of any plan ; it only speaks of permission for development when such development is undertaken, carried out or continued in the development area by any person or body of persons. This sub-section (2) of Section 14 which speaks of plans and provides that after coming into operation of any of the plans in the development area, no development shall be undertaken or carried out or continued in that area unless such development is also in accordance with such plan which means that the developments carried out should be in accordance with the master plan or zonal development plan. No plan or permission for development by carrying out building activities could be permitted by the Vice-Chalrman if same is in contravention of the master plan or the zonal development plan. Before the lower appellate court, an argument was advanced on behalf of the appellant that the defendant-appellant is not authorised to sanction the site plan of 3.5 F.A.R. multlstoried building and such power vests in the Board/the Government. The lower appellate court rejected this contention and held that the plaintiff was not required to obtain any sanction from the Board or State Government. The learned counsel for the appellant has not been able to point out or show any provision of law, bye-law or regulation framed under the Act whereby the defendant-appellant was bound to refer the matter to State Government where the sanction for constructing a building beyond 1.5 F.A.R. was required. The appellant has also failed to establish any such practice adopted by the appellant. As already pointed out above, it is not disputed that around the land of the plaintiff some builders have been permitted to raise constructions in 3.5.F.A.R. It is nowhere pleaded nor any evidence Is produced by the defendant-appellant to show that such practice as suggested by Sri Mishra was adhered to and sanction of the State Government was obtained by the authority. As a matter of fact, in my opinion, no substantial question of law is involved in this regard and the provisions of the Act are very much clear.
Findings on question No. 2 :
11. In the plaint in Suit No. 509 of 1997, It was pleaded by the plaintiff in para 4 that the plaintiff has deposited the required fee with the defendant for grant of permission to construct building in 3.5 F.A.R. but the defendants are illegally demanding development charges to which they are not legally entitled since the plaintiff is himself intending to carry out development of his own land. The defendant in para 11 of the written statement in Suit No. 509 of 1997 took a plea that the construction plan cannot be sanctioned without deposit of development charges since the land in question is situated in regulated area. No such plea was taken either in the plaint or in the written statement in Suit No. 417 of 1997, therefore, the question raised herein is raised only in Second Appeal No. 1139 of 1997. Such question cannot be raised in Second Appeal No. 1138 of 1997 for want of pleading by the parties and if the Courts below have dealt with it. while deciding Suit No. 417 of 1997 it is decided beyond jurisdiction. So far as Suit No. 509 of 1997 is concerned, this question appears to have been dealt by the trial court while deciding issue No. 2. The trial court has held that the attention of the Court was drawn by the plaintiff towards Section 35 of the U. P. Urban Planning and Development Act, 1973, which provides for payment of betterment charges only where the development is carried out by the development authority. The court, however, observed that since the plaintiff has expressed his intention to develop his land himself, he was not bound to pay development charges, he was simply bound to pay betterment charges. This question does not appear to have been dealt with by the lower appellate court even though in ground No. 6 the appellant has specifically challenged the finding of the trial court in this regard.
12. Sri A. K. Mishra. learned counsel for the appellant has referred to sub-section (2A) of Section 15 of the Act which provides as follows :
'The authority shall be entitled to levy development fees. mutation charges, stacking fees and water fees in such manner and at such rates as may be prescribed :
Provided that the amount of stacking Jees levied in respect of art area which is not being developed or has not been developed, by the authority, shall be transferred to the local authority within whose local limits such area is situated.'
13. Proviso (3) to sub-section (3) of Section 5 also further provides that before granting permission referred to in Section 14, the Vice-Chairman may get the fees and charges levied under sub-section (2A) deposited. In view of the proviso quoted hereinbefore it is 'clear that before grant of permission under Section 14 (1), the Vice-chairman of the development authority is well authorized to get the fees and charges levied under subsection (2A) deposited. Sri Rajiv Mishra has. however, pointed out that the plaintiff had applied for grant of permission in the year 1995 whereas provisions of sub-section (2A) of Section 15 and proviso (3) to subsection (3) of Section 15 were introduced in the Act by U. P. Act No. 3 of 1997.
14. The U. P. Urban Planning and Development Act was amended by U. P. Act 3 of 1997 by which sub-section (2A) of Section 15 and proviso to subsection (3) as pointed out above were introduced. The Amending Act received the assent of the Governor on May 1, 1997 and was published in U. P. Gazette extraordinary on 2nd May, 1997. The Amending Act does not provide for retrospective operation of the amended provision of the Act. However, admittedly the sanction has not been granted by the appellant till today. Since, now there is a provision under Section 15 of the U. P. Urban Planning and Development Act with regard to the authority of the appellant to levy development charges and to compel the plaintiff-respondent to deposit the same before sanction for carrying out development by building activities is granted, the plaintiff-respondent is bound to deposit such development fee as may be imposed. It may not be out of place to point out here that in Section 2 of the Act clause (ggg) was introduced by the Amending Act which defined the development fee. This clause provided that the 'development fee means the fee levied upon a person or body under Section 15 for construction of road, drain. seiyer line, electric supply and water supply lines in the development area by the development authority.'
15. In view of the above definition of development fee, the same can be levied by the appellant only when development is carried out in the development area by construction of road, drain, sewerllne. electric supply and water supply lines. In the instant case, there is no evidence on record that such development has been made by the appellant. However, during arguments, it is conceded by the respondent that they are ready to pay the development fee probably for the reason that they have not pleaded in the plaint that no such development was carried out by the appellant in the area in question. Sri Rajiv Mishra, has however, pointed out that the appellant is charging development fee at the rate of Rs. 100 per sq. yard which fact was conceded by the appellant. In the case of Ghaziabad Shiromanl Sahkari Avas Samiti Ltd. and others v. State of U. P. and others. (1990-1) SCC 583. He has referred para 9 of the judgment which reads as follows :
'It has been agreed that the development charges for the sewerage, electricity, road connections and the like shall be provided by the development authority at the rate of Rs. 100 per sq. yard and Internal development shall be done by the societies themselves in raising the construction, the bye-laws and regulations of the development authority shall be strictly followed. We hope and trust that the development authority shall extend its co-operation in every manner to the societies to effectuate the directions made by us .....'
16. It has been submitted by Sri Mishra that from a number of builders the development fee has been charged, at the above rate. Sri A, K. Mishra has, however, pointed out that there is no material on record to substantiate the argument of the learned counsel for the respondent. It may be observed here that the appellant being a body of the Government constituted to carry out the purpose of enacting of the Act would maintain uniformity in charging development charges from various persons/bodies carrying out development activities by constructing buildings. In case from other builders/developers of the land, the development fee has been charged at the rate of Rs. 100 per sq. yard, there Is no reason why the appellant should charge higher development fee from the plaintiff-respondent especially when the plaintiff-respondent has categorically pleaded that it intends to carry out Internal development by himself.
17. In view of the discussions made above, it is held that the appellant is entitled to charge development fee before sanctioning the development plan by permitting to construct the building. However, such fee shall be charged uniformly as pointed out above.
18. The findings of the Courts below that the authority is entitled only to levy betterment charges is set aside for the reason that the betterment charges are levied by the authority only when as a consequence of any development scheme executed by the authority in any development area, the value of any property In that area has increased due to the benefits of the development. In the instant case, there is no evidence to the effect that the value of the land due to the activity of the development in the area has increased. Besides this, the authority under Section 15(2A) is entitled to levy development fee, stacking charges, water fee and mutation charges only before grant of permission to carry out development activities by constructions. Further, in the Instant case the development charges are being claimed by the appellant, therefore, the betterment charges cannot be directed to be paid by the plaintiff-respondent.
Findings on Question No. 3 in Second Appeal No. 1139 of 1997 :
19. The trial court in Suit No. 509 of 1997 recorded a finding of fact on consideration of the evidence of the parties that the defendant-appellant requires 447.22 sq. metres In plot No. 377/2 of the plaintiff for construction of road. Similarly in khasra Nos. 232 and 233 the defendant-appellant requires 277.45 sq. metres of land belonging to the plaintiff-respondent for purposes of construction of road and boundary wall of sub-station. On perusal of the proceedings of the authority which were produced by D.W. 1 appearing on behalf of the defendant-appellant, the Court also recorded a finding of fact that an agreement was arrived at between the parties to transfer the aforesaid land by the plaintiff to the defendant and In lieu thereof the defendant agreed to compensate the plaintiff by providing some land in the development area at the rate of Rs. 708 per sq. metres. This finding of fact has been affirmed by the lower appellate court and both the Courts have passed the decree in this regard. The argument of Sri A. K. Mishra, learned counsel for the appellant is that specific performance of the contract cannot be granted by the trial court in the absence of any such agreement. In the written statement. It has been pleaded that there was no legal agreement between the parties in this regard. However, it is not specifically denied that the defendant wanted part of the land from plot Nos. 377/2. 232 and 233 belonging to the plaintiff. In the written statement the ownership of the plaintiff of the aforesaid plots was denied. The finding of the Courts below is against the defendant-appellant, which is not challenged in this appeal. D.W. 1 Ashok Kumar on the other hand, admitted during cross-examination that the development authority needs 447.22 sq. metres of land of khasra plot No. 377/2 for purposes of construction of road and similarly the defendant requires 277.45 sq. metres of land of plot Nos. 232 and 233 for purposes of construction of road and boundary wall of sub-station. Admittedly, such land has not been acquired by the development authority, viz.. the appellant. Considering the evidence of the defendant which was in form of statement of D.W. 1 and which is based upon the entries in the proceedings book, Courts below held that there appeared to be an agreement between the parties for transfer of land. These are findings of fact and, in my view, no substantial question of law Involved. The concurrent findings of fact arrived at by the Courts below cannot be assailed In Second Appeal.
20. In view of the discussions made above, both the appeals are partly allowed and decree passed by the Courts below is modified to the extent that the appellant is entitled to levy development charges before sanctioning the development plan by building activities by the plaintiff. The defendant, therefore, shall serve a notice within 15 days from today upon the plaintiff-respondent to deposit the development fee within the period provided in the notice, which the plaintiff-respondent shall deposit within the stipulated period and thereafter the defendant shall grant permission and sanction the development plan as decreed by the Courts below.