THE UTTAR PRADESH URBAN PLANNING AND DEVELOPMENT ACT, 1973 [President's Act No. 11 of 1973] As re-enacted and amended by U.P. Act No. 30 of 1974, U.P. Act No. 13 of 1975, U.P. Act No. 19 of 1976, U.P. Act No. 41 of 1976, U.P. Act No. 47 of 1976, U.P. Act No. 48 of 1976, U.P. Act No. 14 of 1978, U.P. Act No. 10 of 1980, U.P. Act No. 6 of 1982, U.P. Act No. 28 of 1983, U.P. Act No. 21 of 1985, U.P. Act No. 1 of 1995 and U.P. Act No. 3 of 1997 1. Omitted by U.P. Act 30 of 1974. [***] An Act to provide for the development of certain areas of Uttar Pradesh according to plan and for matters ancillary thereto 2. Subs, by ibid. [It is hereby enacted as follows]: Prefatory Note--Reasons for the enactment.--(1) The Governor of Uttar Pradesh promulgated on June 12, 1973, the Uttar Pradesh Urban Planning and Development Ordinance, 1973, which reproduced the provision of the Uttar Pradesh Urban Planning and Development Bill, 1973 as passed by the U.P. Legislative Council. The reasons for this enactment are given below. (2) In the developing areas of the State of Uttar Pradesh the problems of town planning and Urban development need to be tackled resolutely. The existing local bodies and other authorities in spite of their best efforts have not been able to cope with these problems to the desired extent. In order to bring about improvement in this situation, the State Government considered it advisable that in such developing areas. Development Authorities patterned on the Delhi Development Authority be established. As the State Government was of the view that the Urban development and planning work in the State had already been delayed it was felt necessary to provide for early establishment of such authorities. (3) The present measure seeks to replace the aforesaid Ordinance by a President Act. (4) The Committee constituted under the proviso to sub-section (2) of Section 3 of the Uttar Pradesh State Legislature (Delegation of Powers) Act, 1973 (Act 33 of 1973), has been consulted before the enactment of this measure as a President's Act. COMMENT Enactment of the Act--Object of.--In 1978 U.P. Legislature enacted U.P. Urban Planning and Development Act, 1973 to provide for the development of certain areas of Uttar Pradesh according to the plan and for matters ancillary thereto. So, in the object of the reasons for enacting this Act, it was specifically stated as above. The result was that when the construction was sought to be made, which was governed by the provisions of this Act, one should take recourse to the provisions of the 1973 Act. [Harminder Pal Singh v. Vice-Chairman, 1992 All CJ 226]. CHAPTER I Preliminary 1. Short title and extent.--(1) This Act may be called the Uttar Pradesh Urban Planning and Development Act, 1973. (2) It extends to the whole of Uttar Pradesh, excluding Cantonment areas and lands owned, requisitioned or taken on lease by the Central Government for the purpose of defence. 2. Definitions.-In this Act unless the context otherwise requires,-- (a) "amenity" includes road, water supply, street lighting, drainage, sewerage, public works and such other convenience as the State Government may, by notification in the Gazette specify to be an amenity for the purposes of this Act; (b) "building" includes any structure or erection or part of a structure or erection which is intended to be used for residential, industrial, commercial or other purposes whether in actual use or not; (c) "building operation" includes rebuilding operations, structural alterations of, or additions to, buildings and other operations normally undertaken in connection with the construction of buildings; (d) "bye-law" means a bye-law made under this Act by the Development Authority; 1. Ins. by U.P. Act No. 13 of 1975. [(dd) "Chairman and Vice-Chairman" shall mean respectively the Chairman and the Vice-Chairman of the Development Authority;] (e) "development" with its grammatical variations, means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in any building or land, and includes re-development; (f) "development area" means any area declared to be development area under Section 3; (g) "the Development Authority" or "the Authority" in relation to any development area, means the Development Authority constituted under Section 4 for that area; 2. Ins. by U.P. Act No. 21 of 1985. [(gg) "Development Authorities Centralised Service" means a Centralised service created under Section 5-A;] 3. Ins. by U.P. Act No. 3 of 1997. [(ggg) “development fee” means the fee levied upon a person or body under Section 15 for construction of road, drain, sewer line, electric supply and water supply lines in the development area by the Development Authority;] (h) "engineering operations" includes the formation or laying out means of access to a road or the laying out of means of water supply; (i) "means of access" includes any means of access, whether private or public, for vehicles or for foot passengers, and includes a road; 3. Ins. by U.P. Act No. 3 of 1997. [(ii) "mutation charges" means the charges levied under Section 15 upon the person seeking mutation in his name of a property allotted by the Authority to another person;] (j) "regulation" means a regulation made under this Act by the Development Authority; (k) "rule" means a rule made under this Act by the State Government; 3. Ins. by U.P. Act No. 3 of 1997. [(kk) "stacking fees” means the fees levied under Section 15 upon the person or body who keeps building materials on the land of the Authority or on a public street or public place; (1) "to erect a building”, with its grammatical variations includes- (i) any material alteration or enlargement of any building; (ii) the conversion, by structural alteration- (a) of a building not originally constructed for human habitation into a place for human habitation; or (b) into more than one place for human habitation, of a building originally constructed as one such place; or (c) of two or more places of human habitation, into a greater number of such places; (iii) such alterations of a building as effect an alteration of its drainage or sanitary arrangements, or materially affect its security; (iv) the addition of any rooms, buildings, houses or other structures to any building; and (v) the construction, in a wall adjoining any street or land not belonging to the owner of the wall, of a door opening on to such street or land; 1. Subs, by U.P. Act No. 3 of 1997.[(ll) "water fees" means the fees levied under Section 15 upon a person or body for using water supplied by the Authority for building operation or construction of buildings;] (m) "zone" means any one of the division in which a development area may be divided for the purposes of development under this Act; (n) the expression "land" has the meaning assigned to it in Section 3 of the Land Acquisition Act, 1894. COMMENTS Section 3 of the Land Acquisition Act, 1894, is reproduced here in below: "3. Definitions. --In this Act, unless there is something repugnant in the subject or context, -- (a) the expression "land" includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth." CHAPTER II The Development Authority and its Objects 3. Declaration of development areas.-If in the opinion of the State Government any area within the State requires to be developed according to plan it may, by notification in the Gazette declare the area to be a development area. COMMENT Private Colonizers --Rights of --Refusal to give permission to private colonizers by the Development Authority may not be said to be arbitrary or discriminatory. [Ghaziabad Development Authority v. Delhi Auto and General Finance (P) Ltd., 1994 (2) UPLBEC 1373 (SC)]. 4. The Development Authority.--(1) The State Government may, by notification in the Gazette constitute for the purposes of this Act, an Authority to be called the Development Authority for any development area. (2) The Authority shall be a body corporate, by the name given to it in the said notification, having perpetual succession and a common seal with power to acquire, hold and dispose of property, both movable and immovable and to contract and shall by the said name sue and be sued. (3) The Authority in respect of a development area which includes the whole or any part of a city as defined in the 1. Subs, by U.P. Act No. 3 of 1997. [Uttar Pradesh Municipal Corporations Act, 1959], shall consist of the following members, namely, -- (a) a Chairman to be appointed by the State Government; (b) a Vice-chairman to be appointed by the State Government; 2. Subs, by U.P. Act No. 21 of 1985. [(c) the Secretary to the State Government incharge of the Department in which, for the time being, the business relating to the Development Authorities is transacted, ex officio;] (d) the Secretary to the State Government, incharge of the Department of Finance, ex officio; (e) the Chief Town and Country Planner, Uttar Pradesh, ex officio; 3. Subs, by U.P. Act No. 19 of 1976. [(f) the Managing Director of the Jal Nigam, established under the Uttar Pradesh Water Supply and Sewerage Act, 1975, ex officio; (g) the Mukhya Nagar Adhikari, ex-officio;] (h) the District Magistrate of every district or any part of which is included in the development area, ex-officio; (i) four members to be elected by Sabhasads of the 4. Subs, by U.P. Act No. 3 of 1997. [Municipal Corporation] for the said city from amongst themselves: Provided that any such member shall cease to hold office as such as soon as he ceases to be Sabhasad of the 4. Subs, by U.P. Act No. 3 of 1997. [Municipal Corporation]; (j) such other members not exceeding three as may be nominated by the State Government. (4) The appointment of the Vice-Chairman shall be wholetime. (5) The Vice-Chairman shall be entitled to receive from the funds of the Authority such salaries and allowances and be governed by such conditions of service as may be determined by general or special order of the State Government in this behalf. (6) A member referred to in clause (c), clause (d), clause (e) or clause (f) of sub-section (3) may instead of attending a meeting of the Authority himself depute an officer, not below the rank of Deputy Secretary in the department, in the case of a member referred to in clause (c) or clause (d), and below the rank of Town Planner in the case of a member referred to in clause (e) and not below the rank of Superintending Engineer in the case of a member referred to in clause (f), to attend the meeting. The officer so deputed shall have the right to take part in the proceedings of the meeting and shall also have the right to vote. (7) The Authority in respect of a development area other than that mentioned in sub-section (3) shall consist of a Chairman, a Vice Chairman and not less than five and not more than eleven such other members, including at least one member from the 1. Now 'Municipalities', vide U.P. Act No.12 of 1994. [Municipal Boards] and 2. Now to known as 'Nagar Panchayats' vide U.P. Act No, 12 of 1994. [Notified Area Committees] having jurisdiction in the development area, who shall hold office for such period and on such terms and conditions, as may be determined by general or special order of the State Government in this behalf : Provided that the Vice Chairman or a member other than an ex officio member of the authority may at any time by writing under his hand addressed to the State Government resign his office and on such resignation being accepted shall be deemed to have vacated his office. (8) No act or proceedings of the Authority shall be invalid by reason of the existence of any vacancy in, or defect in the constitution of, the Authority. COMMENTS Word “Chairman" of Development Authority substituted for word "Board" --Effect thereof.- In case any person wanted to erect any building in the cities, which come under the Development Authority, he has to take permission in writing from the Vice-Chairman before he could raise the constructions. The consequential effect of this provision read alongwith the lease-deed of 1941 will be that the word "Board" by operation of law would be deemed to have been substituted by "Nagar Mahapalika", which is recognised as "Municipal Corporation" recently, and after coming into force of 1973 Act, it is to be read as "Vice-Chairman". In accordance with the terms of the lease-deed, permission can be granted either by the Collector or by the Vice- Chairman, as the word "Board" will be deemed to be substituted by the word "Vice- Chairman". [Harminder Pal Singh v. Vice-Chairman, Allahabad Development Authority, 1992 All CJ 226]. Allotment of flats/house --Instalment and price thereof --Development Authority, if enhancing the cost of house or flats, there will be no arbitrariness and unreasonableness on the part of Development Authority in increasing the cost or monthly instalment of the house/flat. [Bareilly Development Authority v. Ajai Pal Singh, (1989) 1 UPLBEC 655]. While determining price of house/flat constructed by the Development Authority and the rate of monthly instalments to be paid, the Authority, or its agent, after entering into ordinary contract, acts purely in its executive capacity. The relations thereafter, are no longer governed by the Constitutional provisions but by a legally valid contract which determine the rights and obligations of the parties inter se. [Bareilly Development Authority v. Ajai Pal Singh, 1989 (1) UPLBEC 655 (SC)]. The action of the Development Authority of demanding higher price for flats from the petitioner other than applicants, is arbitrary, discriminatory and violative of Art. 14 of the Constitution of India. [Rajesh Kumar Diuivedi v. Kanpur Development Authority, 1992 All CJ 464]. Sanctioned Plan. --When sanctioned plan is likely to cause obstruction in free flow of water, the State Government is enabled to examine the plan [Cantonment Board v. Nagar Mahapalika, 1987 UPLBEC 898]. 5. Staff of the Authority. --(1) The State Government may appoint two suitable persons respectively as the Secretary and the Chief Accounts Officer of the authority who shall exercise such powers and perform such duties as may be prescribed by regulations or delegated to them by the Authority or its Vice- Chairman. (2) Subject to such control and restrictions as may be determined by general or special order of the State Government, the Authority may appoint such number of other officers and employees as may be necessary for the efficient performance of its functions and may determine their resignations and grades. (3) The Secretary, the Chief Accounts Officer and other officers and employees of the Authority shall be entitled to receive from the funds of the Authority such salaries and allowances and shall be governed by such other conditions of service as may be determined by regulations made in that behalf. 1. Ins. by U.P. Act No. 21 of 1985. [5-A. Creation of Centralised Services. --(1) Notwithstanding anything to the contrary contained in Section 5 or in any other law for the time being in force, the State Government may at any time, by notification, create one or more 'Development Authorities Centralized Services' for such posts, other than the posts mentioned in sub-section (4) of Section 59, as the State Government may deem fit, common to all the Development Authorities, and may prescribe the manner and conditions of recruitment to, and the terms and conditions of service of persons appointed to such service. (2) Upon creation of a Development Authorities Centralised Service, a person serving on the posts included in such service immediately before such creation, not being a person governed by the 2. Its Bare Act can be had from Alia Law Agency, Alld. written by Dr. U.B. Singh. [U.P. Palika (Centralised) Services Rules, 1966], or serving on deputation, shall, unless he opts otherwise, be absorbed in such service, -- (a) finally, if he was already confirmed in his post, and (b) provisionally, if he was holding temporary or officiating appointment. (3) A person referred to in sub-section (2) may, within three months from the creation of such Development Authorities Centralised Service communicate to the Government in the Housing Department, his opinion not to be absorbed in such Centralised Service, failing which he shall be deemed to have opted for final or provisional, as the case may be, absorption in such Centralised Service. (4) Suitability of a person absorbed provisionally, for final absorption in a Development Authorities Centralised Service, shall be examined in the manner prescribed and if found suitable he shall be absorbed finally. (5) The services of an employee who opts against absorption or who is not found suitable for final absorption, shall stand determined and he shall, without prejudice to his claim to any leave, pension, provident fund or gratuity which he would have been entitled to, be entitled to receive as compensation from the Development Authority concerned, an amount equal to -- (a) three month's salary, if he was a permanent employee; (b) one month's salary, if he was a temporary employee. Explanation.-For the purposes of this sub-section the term 'salary' includes dearness allowance, personal pay and special pay, if any. (6) It shall be lawful for the State Government or any officer authorised by it in this behalf, to transfer any person holding any post in a Development Authorities Centralised Service from one Development Authority to another.] COMMENTS Centralised services. --The Development Authority is an autonomous body and is statutorily controlled by this Act. As such the State Government has no inherent power to transfer Chief Accounts Officer, who does not belong to Centralised Services, and also not being a civil servant, Fundamental Rules are not applicable to him. [Girja Shunkar Misra v. State of U.P., 1995 (1) UPLBEC 324]. Centralised service --Creation of, before 1st August, 1988. --Any person holding temporary or officiating appointment from before the above mentioned date is entitled to be absorbed provisionally subject to final absorption. [Mohd. Baqar v. State of U.P., 1997 (1) AWC 6]. Classification made by sub-section (2). --By an amendment, inserted by U.P. Urban Planning and Development (Amendment and Validation) Act, 1985 (U.P. Act No. 19 of 1985), classification made by sub-section (2) of this section and inclusion of absorption of employees belonging to U.P. Palika (Centralised) Service in Development Authority is not unreasonable. [L.S. Bajpai v. State of U.P., 1990 UPLBEC 462]. Absorption of employees of U.P. Palika (Centralised) Services. --Exclusion of employees is not ultra vires of Arts. 14 and 16 of the Constitution. [Ibid]. 6. Advisory Council. --(1) The State Government may, if it thinks fit, constitute an advisory council for the purpose of advising the Authority on the preparation of the master plan and on such other matters relating to the planning of development or arising out of, or in connection with, the administration of this Act as may be referred to it by the Authority. (2) The advisory council in respect of a development area referred to in sub-section (3) of Section 4 shall consist of the following members, namely: (a) the Chairman of the Authority, ex officio who shall be the President; (b) the Chief Town and Country Planner, Uttar Pradesh and the Chief Engineer, Local Self-Government Engineering Department, Uttar Pradesh, ex officio; (c) the Director, Medical and Health Services, Uttar Pradesh, or his nominee who shall not be below the rank of a Deputy Director, ex officio; (d) four representatives of the local authorities having jurisdiction within the limits of the development area, to be elected by their members from among themselves; (e) the Transport Commissioner, Uttar Pradesh, or his nominee who shall not be below the rank of Deputy Transport Commissioner, ex officio; (f) the Chairman, State Electricity Board, Uttar Pradesh or his nominee, ex officio; (g) all the members of the House of the People and the State Legislative Assembly whose constituencies include any part of the development area; (h) all members of the Council of States and the State Legislative Council who have their residence in the development area; (i) three members to be nominated by the State Government, one of whom shall represent the interest of labour and one the interest of industry and commerce in the development area. (3) For the purposes of clause (h) of sub-section (2), the place of residence of a member of the Council of States or the State Legislative Council shall be deemed to be that mentioned in the notification of his election or nomination, as the case may be, as such member. (4) An elected member under clause (d) of sub-section (2) shall hold office for a term of three years from the date of his election to the council and shall be eligible for re-election: Provided that such term shall come to an end as soon as the member ceases to be a member of the local body from which he was elected. (5) The advisory council, if any, in respect of a development area other than that mentioned in sub-section (2) shall consist of such members as may be determined by the State Government by general or special order in that behalf. (6) The 1. Subs, by U.P. Act No. 13 of 1975. [Advisory Council] shall meet as and when called by the Chairman: Provided that such meeting shall be held at least twice a year. 7. Objects of the Authority. --The objects of the Authority shall be to promote and secure the development of the development area according to plan and for that purpose the Authority shall have the power to acquire, hold, manage and dispose of land and other property, to carry out building, engineering, mining and other operations, to execute works in connection with the supply of water and electricity, to dispose of sewage and to provide and maintain other services and amenities and generally to do anything necessary or expedient for purposes of such development and for purposes incidental thereto: Provided that save as provided in this Act nothing contained in this Act shall be construed as authorising the disregard by the Authority of any law for the time being in force. CHAPTER III Master Plan and Zonal Development Plan 8. Civil survey of, and master plan for the development area. --(1) The Authority shall, as soon as may be, prepare a master plan for the development area. (2) The master plan shall -- (a) define the various zones into which the development area may be divided for the purposes of development; and indicated the manner in which the land in each zone is proposed to be used (whether by the carrying out thereon of development or otherwise) and the stages by which any such development shall be carried out; and (b) serve as a basic pattern of frame-work within which the zonal development plans of the various zones may be prepared. (3) The master plan may provide for any other matter which may be necessary for the proper development of the development area. 9. Zonal Development Plans.--(1) Simultaneously with the preparation of the master plan or as soon as may be thereafter, the Authority shall proceed with the preparation of a Zonal development plan for each of the zones into which the development area may be divided. (2) A zonal development plan may-- (a) contain a site-plan and use-plan for the development of the zone and show the approximate locations and extents of land uses proposed in the zone for such things as public buildings and other public works and utilities, roads, housing, recreation, industry, business, markets, schools, hospitals and public and private open spaces and other categories of public and private uses; (b) specify the standards of population density and building density; (c) show every area in the zone which may, in the opinion of the Authority, be required or declared for development or redevelopment; and (d) in particular, contain provisions regarding all or any of the following matters, namely,- (i) the division of any site into plots for the erection of buildings; (ii) the allotment or reservation of land for roads, open spaces, gardens, recreation-grounds, schools, markets and other public purposes; (iii) the development of any area into a township or colony and the restrictions and conditions subject to which such development may be undertaken or carried out; (iv) the erection of buildings on any site and the restrictions and conditions in regard to the open spaces to be maintained in or around buildings and height and character of buildings; (v) the alignment of buildings of any site; (vi) the architectural features of the elevation or frontage of any building to be erected on any site; (vii) the number of residential buildings which may be erected on plot or site; (viii) the amenities to be provided in relation to any site or buildings or such site whether before or after the erection of buildings and the person or authority by whom or at whose expense such amenities are to be provided; (ix) the prohibitions or restrictions regarding erection of shops, workshops, warehouses or factories or buildings of a specified architectural feature or buildings designed for particular purposes in the locality; (x) the maintenance of walls, fences, hedges or any other structural or architectural construction and the height at which they shall be maintained; (xi) the restrictions regarding the use of any site for purposes other than erection of buildings; (xii) any other matter which is necessary for the proper development of the zone or any area thereof according to plan and for preventing buildings being erected haphazardly in such zone or area. COMMENTS Development planning. --An open space for a public park is an essential feature of the modern planning as it improves the social ecology. [D.D. Vyas v. Ghaziabad Development Authority, 1993 All LJ 86:1992 All CJ 705]. "Park" --Defined. --Word "Park" means the parks owned and maintained by Nagar Mahapalikas, Notified Areas or Town Areas which must have considerable area covered by gardens with trees, plants or flower beds or green lawns and should have been maintained as a place for public resort or recreation, air or light, etc. [D. D. Vyas v. Ghaziabad Development Authority, 1993 All LJ 86:1992 All CJ 705]. Objection as to sanction of plan. --When the disputed property belongs to a temple and no right, title or interest in the disputed land accrued, disputes pertaining to title with respect to which sanction is sought cannot and ought not appropriately to be determined in such proceedings. [Shyam Sunder Agarwal v. D.M./Vice-Chairman, Banda Development Authority, 1992 All CJ 353]. 10. Submission of plans to the State Government for approval.--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. (2) Every plan shall, as may be after its preparation be submitted by the Authority to the State Government for approval and that Government may either approve the plan without modification or with such modifications as it may consider necessary or reject the plan with directions to the Authority to prepare a fresh plan according to such directions. 11. Procedure to be followed in the preparation and approval of plan. --(1) Before preparing any plan finally and submitting it to the State Government for approval, the Authority shall prepare a plan in draft and publish it by making a copy thereof available for inspection and publishing a notice in such form and manner as may be prescribed by regulations made in that behalf inviting objections and suggestions from any person with respect to the draft plan before such date as may be specified in the notice. (2) The authority shall also give reasonable opportunity to every local authority within whose local limits and land touched by the plan is situated, to make any representation with respect to the plan. (3) After considering all objections, suggestions and representations that may have been received by the Authority, the Authority shall finally prepare the plan and submit it to the State Government for its approval. (4) Subject to the foregoing provisions of this Section, the State Government may direct the Authority, to furnish such information as that Government may require for the purpose of approving any plan submitted to it under this section. 12. Date of commencement of plan. --Immediately after a plan has been approved by the State Government, the Authority shall publish in such manner as the State Government may specify, a notice stating that a plan has been approved and naming a place where a copy of the plan may be inspected at all reasonable hours, and upon the date of first publication of the aforesaid notice the plan shall come into operation. COMMENTS Sanction of plan on leasehold land. --For erecting building on leasehold land the sanction granted by Development Authority would be valid and for it the counter- signature of the District Magistrate is not required. [Harminder Pal Singh v. Vice Chairman, Allahabad Development Authority, 1992 All CJ 226]. 1. Ins. by U.P. Act No. 19 of 1976. [CHAPTER III-A Arterial Roads in Development Area 12-A. Maintenance and improvement of facade of certain buildings abutting arterial roads. --(1) Where in any development area, any building occupied wholly for non-residential purposes or partly for residential and partly for non-residential purposes abuts an arterial road, the occupier of such building shall be bound to repair, white-wash, colour-wash or paint the facade of such building at his own cost in accordance with any bye-laws made in that behalf. (2) Where the authority, with a view to ensuring symmetry with any colour-scheme or other specification made in that behalf considers it necessary or expedient so to do, or where any occupier fails to repair, white-wash, colour-wash or paint the facade of any building in accordance with sub-section (1), it may by order require that the said work shall be carried out by the Authority itself or under its direction, and may accordingly, also require the occupier to pay the cost of such work to the Authority. (3) The cost of any work referred to in sub-section (2) shall be calculated on a 'no profit no loss' basis and in case of any dispute about the reasonableness of the amount required to be deposited, the same shall be decided by the State Government, and subject thereto, the order of the Authority shall be final and shall not be called in question in any court. (4) In case of non-payment by an occupier of the whole or part of the cost of any work referred to in sub-section (2), it shall, on the certificate of the Vice- Chairman, be recoverable from the occupier as arrears of land revenue. Explanation. --In this section- (a) the expression 'arterial road' shall have the meaning assigned to it in the bye-laws; (b) the expression 'occupier', in relation to a building means the person in actual occupation or use of the building, and includes-- (i) the owner (which expression shall include an agent or trustee or a receiver, sequestrator or manager appointed by a court, or a mortgagee with possession of the buildings) in occupation; (ii) the tenant who for the time being is paying or is liable to pay rent in respect thereof to the owner; (iii) the rent-free grantee or licensee thereof; (iv) the person who is liable to pay to the owner damages for unauthorised use and occupation thereof.] CHAPTER IV Amendment of the Master Plan and Zonal Development Plan 13. Amendment of plan. --(1) 1. Subs, by U.P. Act No. 19 of 1976. [The Authority] may make any amendments in the master plan or the zonal development plan as it thinks fit, being amendments which, in its opinion do not effect important alterations in the character of the plan and which do not relate to the extent of land uses or the standards of population density. (2) The State Government may make amendments in the master plan or the zonal development plan whether such amendments are of the nature specified in sub-section (1) or otherwise. (3) Before making any amendments in the plan, the Authority, or as the case may be, the State Government shall publish a notice in at least one newspaper having circulation in the development area inviting objections and suggestions from any person with respect to the proposed amendments before such date as may be specified in the notice and shall consider all objections and suggestions that may be received by the Authority or the State Government. (4) Every amendment made under this section shall be published in such manner as the Authority or the State Government, as the case may be, may specify, and the amendment shall come into operation either on the date of the first publication or on such other date as the authority or the State Government as the case may be, may fix. (5) When the Authority makes any amendment in the plan under sub-section (1) it shall report to the State Government the full particular of such amendments within thirty days of the date on which such amendments come into operation. (6) If any question arises whether the amendments proposed to be made by the Authority are amendments which affect important alterations in the character of the plan or whether they relate to the extent of land-uses or the standards of population density, it shall be referred to the State Government whose decision thereto shall be final (7) Any reference in any other Chapter, except Chapter III, to the master plan or the zonal development plan shall be construed as reference to the master plan or the zonal development plan as amended under this section. COMMENTS Change of land from residential to recreational use. --By a notification the State Government converting the use of land from recreational to residential purposes where the authority had not made any plans or scheme for the use of land for recreational purpose and no proposals to this effect had been sent to the State Government. On the other hand State had not disclosed the reasons for which the use of land was again being changed. So in absence of any scheme to meet strong public necessity, the exercise of power was held arbitrary and illegal. [Delhi Auto and General Finance Pvt. Ltd. v. State of U.P., 1993 All CJ 169]. Change of public purpose.-- Acquisition of land for public purpose not illegal on ground of change of purpose from residential construction into commercial purpose. [Trijugi Nath Gupta v. State of U.P., 1985 UPLBEC 1130]. Lease in public park/open space for construction --Illegal. --Lease for construction of store and godown is hit by law to preserve open space/park. [Arun Kumar v. Nagar Mahapalika, 1988 UPLBEC 666], When lease was granted of an open space inside a public park, it will be illegal and violative of the concept of urban planning and the discipline of law, which requires preservation of parks and open spaces. High Court directed to dismantle the same but allowed time till the other stadium is not constructed. [Ibid]; See also Secs, 2 (b) and 8 respectively of the U.P. Parks, Playgrounds and Open Spaces (Preservation and Regulation) Act, 1975, which are reproduced, hereinbelow: "2. (b) 'park' means a piece of land on which there are no buildings or of which not more than one-twentieth part is covered with buildings, and the whole or the remainder of which is laid out as a garden with trees, plants or flower-beds or as a lawn or as a meadow and maintained as a place for the resort of the public for recreation, air or light;" "8. Prohibition of construction of buildings, etc. -- No person shall, except with the previous sanction of the prescribed authority, construct any building or put up any structure likely to affect the utility of the park, playground or open space specified in the list published under Section 3 or Section 4." Public parks --Master plan amended --Effect. --Once any site is dedicated for a park by any Authority or the State Government, it cannot amend the plan because the basic characteristics of such a plan cannot be altered by the Authority. [D.D. Vyas v. Ghaziabad Development Authority, 1992 All CJ 705:1993 All LJ 86]. Boundary wall of public park. --When a park is covered by boundary walk to which that park is not perceivable from outside then that boundary wall will be scaled down. [Arun Kumar v. Nagar Mahapalika, 1987 UPLBEC 666]. Amendment of plan. --Neither the Urban Planning and Development Authority nor the State Government can amend the plan in such a way that basic feature of allowing the conversion of open space meant for public park is destroyed. This has been already discussed and provided in sub-sections (1) and (2) of Section 13. [D. D. Vyas v. Ghaziabad Development Authority, 1992 All CJ 705:1993 All LJ 85; AIR 1991 SC 420 relied on]. CHAPTER V Development of Lands 14. Development of land in the developed area. --(1) 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 1. Subs, by U.P. Act No. 19 of 1976.[Vice-Chairman] in accordance with the provisions this Act. (2) After the coming into operation of any of the plans in any development area no development shall be undertaken or carried out or continued in that area unless such development is also in accordance with such plans. (3) Notwithstanding anything contained in sub-sections (1) and (2), the following provisions shall apply in relation to development of land by any department of any State Government or the Central Government or any local authority -- (a) when any such department or local authority intends to carry out any development of land it shall inform the 1. Subs, by U.P. Act No. 19 of 1976. [Vice-Chairman] in writing of its intention to do so, giving full particulars thereof, including any plans and documents, at least 30 days before undertaking such development; (b) in the case of a department of any State Government or the Central Government, if the 1. Subs, by U.P. Act No. 19 of 1976. [Vice-Chairman] has no objection, it should inform such department of the same within three weeks from the date of receipt by it under clause (a) of the department's intention, and if the 1. Subs, by U.P. Act No. 19 of 1976. [Vice-Chairman] does not make any objection within the said period the department shall be free to carry out the proposed development; (c) where the 1. Subs, by U.P. Act No. 19 of 1976. [Vice-Chairman] raises any objection to the proposed development on the ground that the development is not in conformity with any master plan or zonal development plan prepared or intended to be prepared by it, or on any other ground, such department or the local authority, as the case may be, shall-- (i) either make necessary modifications in the proposal for development to meet the objections raised by the 1. Subs, by U.P. Act No. 19 of 1976. [Vice-Chairman]; or (ii) submit the proposals for development together with the objections raised by the 1. Subs, by U.P. Act No. 19 of 1976. [Vice-Chairman] to the State Government for decision under clause (d); (d) the State Government, on receipt of proposals for development together with the objections of the 1. Subs, by U.P. Act No. 19 of 1976.[Vice-Chairman], may either approve the proposals with or without modification or direct the department or the local authority, as the case may be, to make such modifications as proposed by the Government and the decision of the State Government shall be final; (e) the development of any land begun by any such department or subject to the provisions of Section 59 by any such local authority before the declaration referred to in sub-section (1) may be completed by that department or local authority with compliance with the requirement of sub-sections (1) and (2). COMMENTS Plan sanctioned--No scrutiny thereafter.-Once the plan has been approved there was no necessity to scrutinise the same, except on the allegations of fraud and mis-representation. [Jagdish Pd. Dubey v. Allahabad Vikas Pradhikaran, 1993 ALJ 1120:1992 All CJ 1009:1992 UPLBEC 695 (HC) (DB)]. Demand of Administrative expenditure and profit--Validity.--Administrative expenditure did not come to an end with the construction and delivery of possession of the disputed flats but continued until other flats were also ready for delivery. It can be demanded by the society from the allottee. Housing Society, however, cannot demand additional profit and interest. [Sanjay Place Group Housing Association v. Agra Development Authority, 1992 ALJ 650 (SC)]. Right to make fresh demand-Maintainability of writ-Art. 226, Constitution of India.-- In determining the right to make fresh demands and deciding the issue one way or the other does not require entering into accounting or arithmetical calculations. Held, that dismissal of writ by High Court on the ground that remedy lies by way of suit because the matter requires accounting was not proper. [Sanjay Place Group Housing Association v. Agra Development Authority, 1992 ALJ 650 (SC)]. Power --Nature -- Power under Sections 14 and 15 of the Act cannot be equated with judicial power which in the absence of express provision could not enable review of judicial order after its exercise. [Maharaja Dharmendar Pd. Singh, In re, AIR 1989 SC 997; Jagdish Pd. Dubey v. Alld. Vikas Pradhikaran, 1993 ALJ 1120]. There can be no review when there is no concealment of facts, much less material fact. [Jagdish Pd. Dubey v. Alld. Vikas Pradhikaran, 1993 ALJ 1120; Case law relied upon : Ganesh Pd. v. State of U.P., 1967 ALJ 745; Harbhjan Singh v. Karam Singh, 1966 SC 641; R. v. Minister of Transport, (1934) 1 KB 277; Surya Narain Tripathi v. State of U.P.. 1997 ALJ 1103:1991, ACJ 92]. Approval of map plan. -- Before proceeding to interpret Section 14 and 15 of this Act, the purpose of legislation should be ascertained first. [Jagdish Pd. Dubey v Allahabad Vikas Pradhikaran, 1993 ALJ 1120:1992 All CJ 1009 : 1992 UPLBEC 695 (HC) (DB)]. Building construction. --Development charges are only payable when the building construction is started after the grant of permission from the Development Authority. It is a legal requirement of this Act. [Malti Kaul v. Allahabad Development Authority, (1995) 2 UPLBEC 974]. Construction work --Permission for. --Permission was granted with condition that if the construction will not be completed within three years, fresh permission would have to be taken for the same purpose. In the mean time, just after the grant of abovesaid permission, earlier order of granting permission was suspended by another order and was revived after one and a half year’s period. This period would be included while calculating the period of three years. If by including this one and a half year the construction work came within the permitted time and meanwhile any demolition order has been passed, it will be quashed. [Methodist Church in India v. Bareilly Development Authority, 1988 UPLBEC 218]. Development charges. --Development Authority is competent to levy and charge development charges when any owner undertakes to develop the land. [State of U. P. v. Malti Kaul, (1997) 1 UPLBEC 99:1996 (28) ALR 657 (SC)]. Development fee. --Sections 14 and 15, which provide for development of the land with the permission of Vice Chairman, do not provide for levy of development fee on those, who had applied for permission. [Malti Kaul v. Allahabad Development Authority, C.M.W.P. No. 35662 of 1994, dated 21st April, 1995]. Powers. --Powers under Section 14 should not be equated with judicial powers. [State of U.P. v. Maharaja D.P. Singh, 1989 (2) UPLBEC 74], Residential accommodation. --Where the land was acquired for the purpose of constructing residential accommodation and by the resolution of Development Authority it was resolved to utilise that land for the purpose of constructing commercial shops and offices, then, if the master plan was not amended in accordance with the provisions of Secs. 13 and 14, it will be violative of these sections, but in the mean time change of purpose will not render the acquisition illegal. [Trijugi Nath Gupta v. State of U. P., 1985 UPLBEC 1130], 15. Application for permission. --(1) Every person or body (other than any department of Government or any local authority) desiring to obtain the permission referred to in Section 14 shall make an application in writing to the 1. Subs, by U.P. Act No. 13 of 1975. [Vice-Chairman] in such form and containing such particulars in respect of the development to which the application relates as may be prescribed by 2. Subs, by U.P. Act No. 13 of 1975. [bye- laws]. (2) Every application under sub-section (1) shall be accompanied by such particulars as may be prescribed by rules. 3. Ins. by U.P. Act No. 3 of 1997.[(2-A) 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 fees levied in respect of an 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.] (3) On the receipt of an application for permission under sub-section (1), the 1[Vice-Chairman] after making such inquiry as it considers necessary in relation to any matter specified in clause (d) of sub-section (2) of Section 9 or in relation to any other matter, shall by order in writing either grant the permission, subject to such conditions, if any, as may be specified in the order or refuse to grant such permission: Provided that before making an order refusing such permission, the applicant shall be given a reasonable opportunity to show cause why the permission should not be refused: Provided further that the 4. Subs, by U.P. Act No. 13 of 1975. [Vice-Chairman] may before passing any order on such application give an opportunity to the applicant to make any correction therein or to supply any further particulars of documents or to make good any deficiency in the requisite fee with a view to bringing it in conformity with the relevant rules or regulations. 5. Ins. by U.P. Act No. 3 of 1997.[Provided also that before granting permission, referred to in Section 14 the Vice-Chairman may get the fees and the charges levied /under sub-section (2-A) deposited]. (4) Where permission is refused, the grounds of such refusal shall be recorded in writing and communicated to the applicant. (5) Any person aggrieved by an order under sub-section (4) may appeal to the 1. Subs, by U.P. Act No. 13 of 1975.[Chairman] against that order within thirty days from the communication thereof and may after giving an opportunity of hearing to the appellant and, if necessary, also to the representative of the 1. Subs, by U.P. Act No. 13 of 1975. [Vice-Chairman] either dismiss the appeal or direct the 1. Subs, by U.P. Act No. 13 of 1975.[Vice-Chairman] to grant the permission applied for with such modifications, or subject to such conditions, if any, as may be specified. (6) The 1. Subs, by U.P. Act No. 13 of 1975.[Vice-Chairman] shall keep in such form as may be prescribed by regulations a register of applications for permission under this section. (7) The said register shall contain such particulars, including information as to the manner in which applications for permission have been dealt with as may be prescribed by regulations, and shall be available for inspection by any member of the public at all reasonable hours on payment of such fee not exceeding rupees five as may be prescribed by regulations. (8) Where permission is refused under this section, the applicant or any person claiming through him shall not be entitled to get refund of the fee paid on the application for permission but the 1. Subs, by U.P. Act No. 13 of 1975.[Vice-Chairman] may, on an application for refund being made within three months of the communication of the grounds of the refusal under sub-section (4) direct refund of such portion of the fee as it may deem proper in the circumstances of the case. 2. Ins. by U.P. Act No. 3 of 1997.[(9) If at any time after the permission has been granted under sub-section (3), the Vice-Chairman is satisfied that such permission was granted in consequence of any material mis-representation made or any fraudulent statement or information furnished, he may cancel such permission, for reasons to be recorded in writing and any work done thereunder shall be deemed to have been done without such permission: Provided that a permission shall not be cancelled without affording to the person or body concerned a reasonable opportunity of being heard.] COMMENTS Writ against order of cancellation of sanctioned plan --It is maintainable. --No appeal has been provided when the permission has been granted. Writ petition is, therefore, maintainable. [Jagdish Pd. Dubey v. Allahabad Vikas Pradhikaran, 1993 ALJ 1120:1992 All CJ 1009:1992 UPLBEC 695 (HC) (DB)]. Cancellation of permission --Hearing necessary. --Revocation or cancellation of permission can be exercised in accordance with rules of natural justice. [Staff of U.P. v. Maharaja A.P. Singh, 1990 ALR 8 (Sum) (SC)]. Appeal against grant of permission. --No appeal is maintainable against the grant of permission. It is against the order to refuse permission that appeal lies under sub-section (5) of Section 15. Representation may, however, be filed by the person aggrieved against grant of permission. [Suresh Chandra v. Commissioner/Chairman, D.D.A., 1990 ALR 803: 1990 (2) AWC 1371:1990 ALJ 675 (DB)]. Appeal against sanction. --A reading of Sec. 15 would make it clear that it is only when a permission is refused that a right to appeal accrues and not otherwise. Appeal against the order granting permission for construction held not maintainable. [Suresh Chandra v. Commissioner (Chairman), Mussoorie, (1990) 2 UPLBEC 1050]. Review. --Review of order of granting permission for construction is beyond the powers contained in sub-section (5) of Section 15. [Jagdish Pd. Dubey v. Allahabad Vikas Pradhikaran, 1993 ALJ 1120:1992 All CJ 1009:1992 UPLBEC 695 (HC) (DB)]. 1. Ins. by U.P. Act No. 3 of 1997.[15-A. Completion certificate.--(1) Every person or body having been granted permission under sub-section (3) of Section 15, shall complete the developments according to the approved plan and send a notice in writing of such completion to the Authority, and obtain a completion certificate from the Authority in the manner prescribed or provided in the Bye-laws of the Authority: Provided that if completion certificate is not granted and refusal to grant it is not intimated within three months after receipt of the notice of completion, it shall be deemed that the completion certificate has been granted by the Authority. (2) No person shall occupy or permit to be occupied any commercial building or use or permit to be used such building or part thereof affected by any work unfit-- (a) completion certificate has been issued by the Authority, or (b) Authority has failed for three months after the receipt of the notice of completion to intimate its refusal of grant of the said certificate. Explanation. --For the purposes of this section the expression "commercial building" shall have the meaning assigned to it in the Uttar Pradesh Municipal Corporations Act, 1959.] 16. Uses of land and buildings in contravention of plans. --After the coming into operation of any of the plans in a zone no person shall use or permit to be used any land or building in that zone otherwise than in conformity with such plan: Provided that it shall be lawful to continue to use, upon such terms and conditions as may be prescribed by bye-laws made in that behalf, any land or building for the purpose and to the extent for and to which it is being used upon the date on which such plan comes into force. COMMENT Uses of land. --Two private colonisers applied for permission to make constructions and Development Authority sought to change the use of that land but State Government refused for permitting any change. In such a situation Development Authority's refusal will not be arbitrary or discriminatory even when the land was set apart for recreational use in Master Plan. [Ghaziabad Development Authority v. Delhi Auto and General Finance (Pvt.) Ltd., (1994) 2 UPLBEC 1373 (SC)]. CHAPTER VI Acquisition and Disposal of Land 17. Compulsory acquisition of land. --(1) If in the opinion of the State Government any land is required for the purpose of development, or for any other purpose, under this Act, the State Government may acquire such land under the provisions of the Land Acquisition Act, 1894: Provided that any person from whom any land is so acquired may after the expiration of a period of five years from the date of such acquisition apply to the State Government for restoration of that land to him on the ground that the land has not been utilized within the period for the purpose for which it was acquired, and if the State Government is satisfied to that effect it shall order restoration of the land to him on repayment of the charges which were incurred in connection with the acquisition together with interest at the rate of twelve per cent per annum and such development charges if any as may have been incurred after acquisition. (2) Where any land has been acquired by the State Government, that Government may, after it has taken possession of the land, transfer the land to the Authority or any local authority for the purpose for which the land has been acquired on payment by Authority or the local Authority of the compensation awarded under that Act and of the charges incurred by the Government in connection with the acquisition. COMMENT Town Development. --When for construction of public park some open space is preserved and earmarked in plan for the development of the town, the Urban Planning and Development Authority cannot ignore or neglect to develop that open space for the public purpose, like a park. [D.D. Vyas v. Ghaziabad Development Authority, 1993 All LJ 86]. 18. Disposal of land by the authority or the local authority concerned.- (1) Subject to any directions given by the State Government in this behalf, the Authority or, as the case may be, the local Authority concerned may dispose of -- (a) any land acquired by the State Government and transferred to it, without undertaking or carrying out any development thereon; or (b) any such land after undertaking or carrying out such development as it thinks fit, to such persons, in such manner and subject to such terms and conditions as it considers expedient for securing the development of the development area according to plan. (2) Nothing in this Act shall be construed as enabling the Authority or the local Authority concerned to dispose of land by way of gift 1. Omitted by U.P. Act No. 19 of 1976. [* * *] but subject thereto, reference in this Act, to the disposal of land shall be construed as references to the disposal thereof in any manner, whether by way of sale, exchange or lease or by the creation of any easement, right or privilege or otherwise. 2. Inserted by U.P. Act No.19 of 1976. [(3) Notwithstanding anything contained in sub-section (2), the Authority or the local authority concerned may create a mortgage or charge over such land (including any building thereon) in favour of the Life Insurance Corporation of India, the Housing and Urban Development Corporation, or a banking company as defined in the Uttar Pradesh Public Moneys (Recovery of Dues) Act, 1972 or any other financial institution approved by general or special order in this behalf by the State Government]. 3. Ins. by U.P. Act No. 21 of 1985.[(4) Where vacant land has been disposed of under this section by way of lease for making constructions within the stipulated time with right of forfeiture of the lease and re-entry upon failure to make constructions within such time, and the lessee fails without sufficient reason, to make the constructions or a substantial portion thereof, within the stipulated time or such extended time as . the lessor may grant, 4. Subs, by U.P. Act No. 3 of 1997 for the words "the lessor may forfeit". [the lessor may, subject to the provisions of sub-section (4-A), forfeit] the lease and re-enter upon the land : Provided that no forfeiture and re-entry shall be made unless the lessee has been allowed reasonable opportunity to show cause against the proposed action. 1. Ins. by U.P. Act No. 3 of 1997.[(4-A) Where a lessee fails to make construction within the stipulates time, and the extended time, if any, under sub-section (4) so that the total period from the date of lease exceeds five years, a charge at the rate of two per cent of the prevailing market value of the concerned land shall be realised every year from him by the lessor and if from the date of imposition of the said charge a further period of five years elapses, the lease shall stand forfeited and the lessor shall re-enter upon the land : Provided that where the period of five years has expired before the commencement of the Uttar Pradesh Urban Planning and Development (Amendment) Act, 1997, or where the period of five years expires within one year after such commencement, the charge shall be realizable after a period of one year from the date of such commencement.] (5) Upon such forfeiture and re-entry, the premium paid by the lessee for such land shall be refunded without any interest, after deducting-- (a) the amount, if any, due to the lessor under that lease, and (b) a sum equivalent to 5 per cent of the premium, for administrative expenses. (6) Any person aggrieved by an order under sub-section (4) may, within 30 days from the date of knowledge thereof, prefer an appeal to the District Judge whose decision shall be final. (7) The land so re-entered upon after forfeiture of lease may be disposed of in accordance with the provisions of sub-sections (1) and (2).] 19. Nazul lands.--(1) The State Government may, by notification in the Gazette and upon such terms and conditions as may be agreed upon between that Government and the Authority, place at the disposal of the Authority, all or any developed and undeveloped lands in the development area vested in the State (known and hereinafter referred to as "nazul lands"), for the purpose of development in accordance with the provisions of this Act. (2) After any nazul land has been placed at the disposal of the Authority under sub-section (1), no development of any such land shall be undertaken or carried out except by or under the control and supervision of the Authority. (3) After any such nazul has been developed by or under the control and supervision of the Authority it shall be dealt with by the Authority in accordance with directions given by the State Government in that behalf. (4) If any nazul land placed at the disposal of the Authority under sub-section (1) is required at any time thereafter by the State Government, the Authority shall, by notification in the Gazette, replace it at the disposal of that Government upon such terms and conditions as may be agreed upon between that Government and the Authority. COMMENTS Entry of land as nazul land. --Free hold land cannot be entered as nazul land without affording opportunity of hearing. [M/s. Mayur Continental v. Administrator, 1989 (2) UPLBEC 127]. CHAPTER VII Finance, Accounts and Audit 20. Fund of the Authority. --(1) The Authority shall have and maintain its own fund to which shall be credited-- (a) all moneys received by the Authority from the State Government by way of grants, loans, advances or otherwise; (b) all moneys borrowed by the Authority from sources other than The State Government by way of loans or debentures; (c) all 1. Subs, by U.P. Urban Development Authorities (Toll) Act, 1976 (U.P. Act No. 48 of 1976). [fees, tolls and charges] received by the Authority under this Act; (d) all moneys received by the Authority from the disposal of lands, buildings and other properties, movable and immovable; and (e) all moneys received by the Authority by way of rents and profits or in any other manner or from any other source. (2) The fund shall be applied towards meeting the expenses incurred by the Authority in the administration of this Act and for no other purposes. (3) Subject to any directions of the State Government, the Authority may keep in current account of any Scheduled Bank such sum of money out of its fund as it may think necessary for meeting its expected current requirements and invest any surplus money in such manner as it thinks fit. (4) The State Government may, after due appropriation made by Legislature by law in that behalf, make such grants, advances and loans to the Authority as that Government may deem necessary for the performance of the functions of the Authority under this Act, and all grants, loans and advances made shall be on such terms and conditions as the State Government may determine. (5) The Authority may borrow money, by way of loans or debentures from such sources (other than the State Government) and on such terms and conditions as may be approved by the State Government. (6) The Authority shall maintain a sinking fund for the repayment of moneys borrowed under sub-section (5), and shall pay every year into the sinking fund such sum as may be sufficient for repayment within the period fixed of all moneys so borrowed. (7) The sinking fund or any part thereof shall be applied in, or towards, the discharge of the loan for which such fund was created, and until such loan is wholly discharged it shall not be applied for any other purpose. COMMENTS Development fee. --Provisions, which deal with fee, are contained in Section 20, but this section does not provide for development fee. Section 20 lays down that the Authority, shall have and maintain its own funds to which shall be credited all fees, tolls and charges, received by owner under this Act. [Malli Kaul v. Allahabad Development Authority, C.M.W.P. No. 35662 of 1994, dated 21st April, 1995]. 21. Budget of the Authority. --The Authority shall prepare in such form and at such time every year as the State Government may specify, a budget in respect of the financial year next ensuing, showing the estimated receipts, and expenditure of the Authority. 1. Subs, by U.P. Act No. 28 of 1983 (w.e.f. 6.10.1982). 22. Accounts and audit.--(1) The Authority shall maintain proper accounts and other relevant records and prepare an annual statement of accounts including the balance-sheet in such forms as the State Government may specify. (2) The accounts of the Authority shall be subject to audit annually by the Examiner, Local Fund Accounts: Provided that in place of or in addition to the Examiner, Local Fund Accounts, the State Government may entrust the audit to the Accountant General, Uttar Pradesh or Comptroller and Auditor General of India or to any other Auditor on such terms and conditions, in such manner, for such period and at such times as may be agreed upon between him and the State Government. (3) The rights, authority and privileges of any person conducting audit under sub-section (2) shall,- (i) in the case of Examiner, Local Fund Accounts, be the same as he has in connection with the audit of the accounts of local authority; (ii) in the case of the Accountant General, Uttar Pradesh or as the case may be, the Comptroller and Auditor General of india, be the same as he has in connection with the audit of Government accounts; and (iii) in the case of any other auditor, be as prescribed; and, in particular, he shall have the right to demand production of books, accounts, connected vouchers, papers and other documents and to inspect the Office of the Authority. (4) The accounts of the Authority, as certified by the Auditor or any person appointed by him in that behalf together with audit report thereon shall be forwarded to the State Government annually or at such times as may be directed by it. The State Government may issue such directions to the authority as it may deem fit and the Authority shall be bound to comply with such directions. (5) Any expenditure, incurred by the Auditor in connection with the Audit shall be payable by the Authority to the Auditor. 23. Annual Report.--The Authority shall prepare for every year a report of its activities during that year and submit the report to the State Government in such form and on or before such date as the State Government may specify and such report shall be laid before both Houses of the Legislature. 24. Pension and Provident Funds.--(1) The Authority may constitute for the benefit of its whole-time paid members and of its officers and other employees in such manner and subject to such conditions, as the State Government may specify, such pension or provident funds as it may deem fit. (2) Where any such pension or provident fund has been constituted, the State Government may declare that the provisions of the Provident Funds Act, 1925, shall apply to such funds as if it were a Government Provident Fund. CHAPTER VIII Supplemental and Miscellaneous Provisions 25. Power of entry.--The Vice-Chairman of the Authority may authorise any person to enter into or upon any land or building with or without assistants or workmen for the purpose of— (a) making any inquiry, inspection, measurement or survey or taking levels of such land or building; (b) examining works under construction and ascertaining the course of sewers and drains; (c) digging or boring into the sub-soil; (d) setting out boundaries and intended lines of work; (e) making such levels, boundaries and lines by placing marks and cutting trenches; (f) ascertaining whether any land is being or has been developed in contravention of the master plan or zonal development plan or without the permission referred to in Section 14 or in contravention of any condition subject to which such permission has been granted; or (g) doing any other thing necessary for the efficient administration of this Act: Provided that- (i) no such entry shall be made except between the hours of sun-rise and sun-set and without giving reasonable notice to the occupier, or if there be no occupier to the owner of the land or buildings; (ii) sufficient opportunity shall in every instance be given to enable woman, if any, to withdraw from such land or building; (iii) due regard shall always be had, so far as may be compatible with exigencies of the purpose for which the entry is made to the social and religious usages of the occupants of the land or building entered. 26. Penalties.--(1) Any person who whether at his own instance or at the instance of any other person or any body (including a department of Government) undertakes or carries out development of any land in contravention of the master plan or zonal development plan or without the permission, approval or sanction referred to in Section 14 or in contravention of any condition subject to which such permission, approval or sanction has been granted, shall be punishable with fine which may extend to 1. Subs, by U.P. Act No. 3 of 1997. [fifty thousand rupees] and in the case of a continuing offence, with further fine which may extend to 1. Subs, by U.P. Act No. 3 of 1997. [two thousand five hundred rupees] for every day during which such offence continues after conviction for the first commission of the offence. (2) Any person who uses any land or building in contravention of the provisions of Section 16 or in contravention of any terms and conditions prescribed by regulations under the proviso to that section shall be punishable with fine which may extend to 1. Subs, by U.P. Act No. 3 of 1997.[twenty five thousand rupees] and in the case of a continuing offence, with further fine which may extend to 1. Subs, by U.P. Act No. 3 of 1997.[one thousand two hundred and fifty rupees] for every day during which such offence continues after conviction for the first commission of the offence. (3) Any person who obstructs the entry of a person authorised under Section 25 to enter into or upon any land or building or molests such person after such entry shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. COMMENT Penalty. --Permission for construction of a building on land is a legal requirement of this Act. In absence of such requirement any construction, if made, will become an offence under Sec. 26. [Malli Kaul v. Allahabad Development Authority, (1995) 2 UPLBEC 974] 1. Ins. by U.P. Act No. 3 of 1997.[26-A. Encroachment of obstruction on public land.--(1) Whoever makes any encroachment on land not being private property, whether such land belongs to or vests in the authority or not in a development area, except steps over drain in any public street, shall be punishable with simple imprisonment for a term which may extend to one year and with fine which may extend to twenty thousand rupees. (2) Any offence punishable under sub-section (1) shall be cognizable. (3) Whoever by placing or depositing building material or any other thing whatsoever, or otherwise makes any obstruction in any street or land not being private property, whether such street or land belongs to or vests in the Authority or not in a development area, except steps over drain in any public street, or placing of building material during such period as may be permitted on payment of stacking fees on a public street or public place, shall be punishable with simple imprisonment for a term which may extend to one month or with fine which may extend to two thousand rupees or with both. (4) If there are grounds to believe that a person has made any encroachment or obstruction on a land in a development area which is not a private property the Authority or an officer authorised by it in this behalf may serve upon the person making encroachment or obstruction, a notice requiring him to show cause why he shall not be required to remove the encroachment or obstruction within such period not being less than fifteen days as may be specified in the notice, and after considering the cause, if any, shown by such person, may order removal of such encroachment or obstruction for reasons to be recorded in writing: Provided that any encroachment made on public land by a person belonging to weaker section on or before the date of commencement of the Uttar Pradesh Urban Planning and Development (Amendment) Act, 1997 shall not be removed until alternative land or accommodation is offered to rehabilitate him in such manner and on such terms and conditions as may be prescribed. Explanation.-For the purposes of this section, the expression-- (1) 'a person belonging to weaker section' means a person -- (a) whose family on the date of commencement of the Uttar Pradesh Urban Planning and Development (Amendment) Act, 1997 does not hold any immovable property in any city as defined in the Uttar Pradesh Municipal Corporation Act, 1959 or any Municipal Area as defined in the Uttar Pradesh Municipalities Act, 1916, and (b) whose principal source of livelihood is manual labour, including the practice of any craft, either by himself or by the members of his family and includes a rickshaw-puller or scavenger, but does not include a person who has been assessed to income tax under the Income Tax Act, 1961 or trade tax under the Uttar Pradesh Trade Tax Act, 1948 or Sales Tax under the Central Sales Tax Act, 1956; (2) 'family' in relation to a person belonging to weaker section, means the husband or wife, as the case may be, and unmarried minor children either or both of them. (5) Notwithstanding anything contained in the foregoing provisions the Authority or the officer authorised by it in this behalf shall, in addition to the action taken as provided in this section, also have power to seize or attach any property found on the land referred to in this section or, as the case may be, attached to such land or permanently fastened to anything attached to such land. (6) Where any property is seized or attached by an officer authorised by the Authority he shall immediately made in a report of such seizure or attachment to the Authority. (7) The Authority may make such orders as it thinks fit for the proper custody of the property seized or attached, pending the conclusion of confiscation proceedings, and if the property is subject to speedy and natural decay, or it is otherwise expedient so to do the Authority may order it to be sold or otherwise disposed off. (8) Where any property is sold as aforesaid, the sale proceeds after deducting the expenses, if any, of such sale and other incidental expenses relating thereto, shall-- (a) where no order of confiscation is ultimately passed by the Authority, or (b) where an order in appeal so requires, be paid to the owner thereof or the person from whom it is seized or attached. (9) Where any property is seized or attached under sub-section (5), the Authority may order confiscation of such property. (10) No order for confiscation of any property shall be made under sub-section (9) unless the owner of such property or the person from whom it is seized or attached is given,-- (a) a notice in writing, informing him of the grounds on which it is proposed to confiscate the property; (b) an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation; and (c) a reasonable opportunity of being heard in the matter. (11) Any order of confiscation under this section shall not prevent the infliction of any punishment to which the person affected thereby may be liable under the Act. (12) Any person aggrieved by an order made under sub-section (9) may within one month from the date of the communication to him of such order, appeal against it to the District Judge. (13) On such appeal, the District Judge may, after giving an opportunity to the appellant and the respondent of being heard, pass such order as he may think fit confirming, modifying or setting aside the order appealed against, and pending appeal, may stay the operation of such order on such terms, if any, as he thinks fit.] 1. Ins. by U.P. Act No. 3 of 1997.[26-B. Claim for compensation for removal under Section 26-A.—(1) Any person aggrieved by the removal of obstruction or encroachment under sub-section (4) of Section 26-A may within thirty days from the date of such removal prefer a chain for compensation or restitution or both before the Tribunal against either the Authority, or the officer ordering the removal or against both, and for making such officer personally liable for the loss caused to him due to such removal. (2) The District Judge having territorial jurisdiction over the area in which the removal of enforcement or obstruction as provided in sub-section (4) of Section 26-A has taken place shall be the Tribunal for the purposes of this section. (3) Every order of the Tribunal for payment of any compensation or for the restitution of any immovable property shall be deemed to be a decree of the Civil Court and shall be executable as such: Provided that if the Tribunal awards any compensation against any officer personally, it shall be the duty of the Authority to realise the amount from the salary or other dues of the officer concerned and to pay it to the claimant. (4) The proceedings before the Tribunal shall be deemed to be judicial proceedings within the meaning of Sections 193 and 228 of the Indian Penal Code. (5) The Tribunal shall for the purpose of deciding a claim under this section, have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 while trying a suit in respect of the following matters, namely : (a) Summoning and enforcing the attendance of any person and examining him on oath; (b) Receiving evidence on affidavits; (c) Inspecting any immovable property or its locality, or issuing commission for the examination of witnesses or documents or local investigation; (d) Requiring the discovery and production of documents; (e) Recording a lawful agreement, compromise or satisfaction and making an order in accordance therewith; (f) Any other matter which may be prescribed. (6) The decision of the Tribunal shall be final.] 1. Ins. by U.P. Act No. 3 of 1997. [26-C. Authority may, without notice, remove anything erected or deposited in contravention of Act.--The Authority or an officer authorised by it in this behalf may, without notice cause to be removed-- (a) any wall, fence, rail, post, step, booth or other structure whether fixed or movable and whether of a permanent or a temporary nature or any fixture which shall be erected, or set up in or upon or over any street or upon or ever any open channel, drain, well or tank contrary to the provisions of this Act; (b) any stall, chair, bench, box, ladder, bale, board or, shelf or any other thing whether placed, deposited, projected, attached or suspended in, upon, from or to any place in contravention of this Act. ] 1. Ins. by U.P. Act No. 3 of 1997. [26-D. Penalty for not preventing encroachment.—Whoever specially entrusted with the duty to stop, or prevent the encroachment or obstruction under this Act or any other Act, rules or bye-laws willfully or knowingly neglects or deliberately omits to stop or prevent such encroachment or obstruct-tion shall be punishable with simple imprisonment for a term which may extend to one month or with fine which may extend to ten thousand rupees or with both.] 27. Order of demolition of building.--(1) Where any development has been commenced or is being carried on or has been completed in contravention of the master plan or zonal development plan or without the permission, approval or sanction referred to in Section 14 or in contravention of any conditions subject to which such permission, approval or sanction has been granted, in relation to the development area, then, without prejudice to the provisions of Section 26 2.Subs, by U.P. Act No. 13 of 1975. [the Vice-Chairman or any officer of the Authority empowered by him in that behalf] may make an order directing that such development shall be removed by demolition, felling or otherwise by the owner thereof or by the person at whose instance the development has been commenced or is being carried out or has been completed, within such period not being less than fifteen days and more than forty days from the date on which a copy of the order of removal, with a brief statement of the reasons therefor, has been delivered to the owner or that person as may be specified in the order and on his failure to comply with the order, 2. Subs, by U.P. Act No. 13 of 1975. [the Vice-Chairman or such officer] may remove or cause to be removed the development, and the expenses of such removal as certified by 2. Subs, by U.P. Act No. 13 of 1975. [the Vice-Chairman or such officer] shall be recoverable from the owner or the person at whose instance the development was commenced or was being carried out or was completed as arrears of land revenue and no suit shall lie in the Civil Court for recovery of such expenses: Provided that no such order shall be made unless the owner or the person concerned has been given a reasonable opportunity to show cause why the order should not be made. (2) Any person aggrieved by an order under sub-section (1) may appeal to the 2. Subs, by U.P. Act No. 13 of 1975. [Chairman] against that order within thirty days from the date thereof and the 2. Subs, by U.P. Act No. 13 of 1975. [Chairman] may, after hearing the parties to the appeal either, allow or dismiss the appeal or may reverse or vary any part of the order. (3) The 2. Subs, by U.P. Act No. 13 of 1975. [Chairman] may stay the execution of an order against which an appeal has been filed before it under sub-section (2). (4) The decision of the 2. Subs, by U.P. Act No. 13 of 1975. [Chairman] on the appeal and, subject only to such decision, the order under sub-section (1), shall be final and shall not be questioned in any court. (5) The provisions of this section shall be in addition to, not in derogation of any other provision relating to demolition of building contained in any other law for the time being in force. 3. Omitted by U.P. Act No. 13 of 1975. [* * * *] COMMENTS Contravention of master plan.—In computing the three years' period, the period of one year, during which the construction work had been stopped, is to be excluded. The construction completed within three years after excluding one year, during which the work was stopped, have no breach of the condition. [Bareilly Development Authority v. Methodist Church of India, 1988 UPLBEC 1170 (SC)]. Illegal construction.—If any person makes illegal construction at his risk and peril, it cannot be compounded but illegality to be removed. [Bimla Devi v. Allahabad Development Authority, 1997 (1) AWC 2.105 (NOC)]. 28. Power to stop development.--(1) Where any development in a development area has been commenced or continued in contravention of the master plan or zonal development plan or without the permission, approval or sanction referred to in Section 14 or in contravention of any conditions subject to which such permission, approval or sanction has been granted then, without, prejudice to the provisions of Sections 26 and 27, the Vice-Chairman of the Authority or any officer of the Authority empowered by him in that behalf, may make an order requiring the development to be discontinued on and from the date of the service of the order, and such order shall be complied with accordingly. (2) Where such development is not discontinued in pursuance of the order under sub-section (1), the Vice-Chairman or the said officer of the Authority may require any police officer to remove the person by whom the development has been commenced and all his assistants and workmen from the place of development within such time as may be specified in the requisition, and such police officer shall comply with the requisition accordingly. (3) After the requisition under sub-section (2) has been complied with, the Vice-Chairman of the Authority may depute by a written order a police officer or an officer or employee of the Authority to watch the place in order to ensure that the development is not continued. (4) Any person failing to comply with an order under sub-section (1) shall be punishable with fine which may extend to two hundred rupees for every day during which the non-compliance continues after the service of the order. (5) No compensation shall be claimable by any person for any damage which he may sustain in consequence of the removal of any development under Section 27 or the discontinuance of the development under this section. (6) The provisions of this section shall be in addition to and not in derogation of, any other provisions relating to stoppage of building operations contained in any other law for the time being in force. COMMENTS Unauthorised constructions.—When a notice is served for any unauthorised construction and the owner has filed his objection, he cannot, subsequently, say that he has not received notice. [Sardar Mahendra Singh v. Commr./Chairman, Mussoorie Dehradun Development Authority, 1997 (1) UPLBEC 481]. Where sanctioned map was violated and despite being cautioned and questioned construction was continued. In the matter like this the Development Authority's action for questioning and warning to desist from making unauthorised constructions is not illegal. [Shanti Rani v. State of U.P., 1992 All CJ 1151]. Violation of bye-laws.—When there is condonation of construction in violation of the bye-laws, the law cannot give permission for condonation of such construction because these type of irregularities are incurable. [Bhagwat Prasad v. C.J.M., 1993 All CJ 286]. 1. Ins. by U.P. Act No. 3 of 1997. [28-A. Power to seal unauthorised development.--(1) It shall be lawful for the Vice Chairman or an officer empowered by him in this behalf, as the case may be; at any time before or after making an order for the removal or discontinuation of any development under Section 27 or Section 28 to make any order directing the sealing of such development in a development area in such manner as may be prescribed for the purposes of carrying out the provisions of this Act. (2) Where any development has been sealed, the Vice-Chairman or the officer empowered by him in this behalf, as the case may be, may, for the purpose of removing or discontinuing such development order the seal to be removed. (3) No person shall remove such seal except under an order made under sub-section (2) by the Vice-Chairman, or the officer empowered by him in this behalf. (4) Any person aggrieved by an order made under sub-section (1) or sub-section (2) may appeal to the Chairman against that order within thirty days from the date thereof and the Chairman may after hearing the parties to the appeal, either allow or dismiss the appeal. (5) The decision of the Chairman shall be final.] 29. Conferment of other powers of the Authority.--After a master plan or zonal development plan has come into operation under Section 12, the Development Authority or its Vice-Chairman shall have such other powers and functions exercisable by the local authority concerned or its Chief Executive Officer, as the case may be, under the enactment constituting that local authority, subject to such exceptions or modifications, as the State Government may by notification in the Gazette, specify. 30. Offences by companies.--(1) If the person committing an offence under this Act is a company, every person, who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation:--For the purposes of this section— (a) "company" means a body corporate and includes a firm or other association of individuals; and (b) "director" in relation to a firm means a partner in the firm. 31. Fines when realised to be paid to the Authority.--All fines realised in connection with prosecutions under this Act shall be paid to the Authority. 32. Composition of offences.—(1) Any offence made punishable by or under this Act may either before or after the institution of proceedings, be compounded by 1. Subs, by U.P. Act No. 13 of 1975. [the Vice Chairman] (or any officer authorised by him in that behalf by general or special order)], on such terms, including any terms as regards payment of a composition fee, as 33[the Vice Chairman] (or such officer) may thinks fit. (2) Where an offence has been compounded, the offender, if in custody, shall be discharged and no further proceedings shall be taken against him in respect of the offence compounded. COMMENTS Compounding fee for illegal construction.--When illegal constructions being completed violating the notices which restrained the construction from proceeding. This is collusion. Held that the compounding fee, if charged, reflects very badly on an administration which is supposed to regulate urbanization. [Ashok Kumar Tumberia v. Hardwar Development Authority, 1997 (1) AWC 421]. When some shops on the ground floor and in the same number on the first floor were constructed. Inspite of receipt of notice and without obtaining permission the construction work was in progress. It will be clearly in violation of the bye-laws and against the future development policy. The moment owner was suggested for compounding then the logical consequence is that the construction was unauthorised. [Sardar Mahendra Singh v. Commr./Chairman, Mussoorie Dehradun Development Authority, 1997 (1) UPLBEC 481]. Compounding of construction—Effect of—Unauthorised construction became authorised. [Mayur Continental v. Administrator, Nazul Land, 1989 (2) UPLBEC 127]. Compounding to unauthorised construction cannot be a subject-matter of subsequent action. [Mayur Continental v. Administrator, Nazul Land, 1989 (2) UPLBEC 127]. 33. Power of the Authority to provide amenity or carry out development at cost of owner in the event of his default and to levy cess in certain cases.-- (1) If the Authority, after holding a local inquiry or upon report from any of its officers or other information in its possession, is satisfied that any amenity in relation to any land in development area has not been provided in relation to that land which, in the opinion of the Authority, ought to have been or ought to be provided or that any development of the land for which permission, approval or sanction had been obtained under this Act or under any law in force before the coming into force of this Act has not been carried out, it may, after affording the owner of the land or the person providing or responsible for providing the amenity a reasonable opportunity to show cause, by order require him to provide the amenity or carry out the development within such time as may be specified in the order. (2) If any amenity is not provided or any such development is not carried out within the time specified in the order, then the Authority may itself provide the amenity to carry out the development or have it provided or carried out through such agency as it deems fit: Provided that before taking action under this sub-section, the Authority shall afford a reasonable opportunity to the owner of the land or to the person providing or responsible for providing the amenity to show cause as to why such action should not be taken. (3) All expenses incurred by the Authority or the agency employed by it in providing the amenity or carrying out the development together with interest at such rate as the State Government may, by order fix from the date when a demand for the expenses is made until payment may be recovered by the Authority from the owner or the person providing or responsible for providing the amenity as arrears of land revenue, and no suit shall lie in the Civil Court for recovery of such expenses. (4) Notwithstanding anything contained in the foregoing sub-section where the Authority on the written representation by so many of the owners of any land in a development area as represent not less than one-half of the area, of that land, is satisfied that any amenity in relation to such land has not been provided which in the opinion of the Authority ought to have been or ought to be provided, or that any development of that land for which permission, approval or sanction had been obtained under this Act or under any law in force before the 33[commencement of this Act] has not been carried out, it may itself provide the amenity or carry out the development or have it provided or carried out through such agency as it deems fit, and recover the expenses by levy of cess from all the owners of the said land: Provided that if the owners making the said representation contend that the amenity had been agreed to be provided or the development had been agreed to be carried out by a coloniser or co-operative housing society through or from whom the land was acquired by them, they shall file with the Authority a copy of such agreement, or of the deed of transfer or of the bye-laws of the society incorporating such agreement, and no action shall be taken by the Authority under this sub-section unless notice has been given to the coloniser of the society, as the case may be, to show cause why such action should not be taken: Provided further that where the Authority is satisfied that the coloniser or the society has become defunct or is not traceable, no notice under the last preceding proviso need be issued. 1. Ins. by U.P. Act No. 3 of 1997. [(4-A) Where the authorityprovides anyamenityin an areadeveloped by it, the authority shall, till the responsibility for maintenance is assumed by the local authority as provided in Section 34, be entitled to recover, in the manner prescribed, from the owner of the land or building, such charges therefor as may be fixed by the State Government by a notified order, having regard to the expenses incurred for maintaining and continuing to provide such amenity.] (5) The cess referred to in sub-section (4) shall be equivalent to the expenses incurred by the Authority or the agency employed by it in providing the amenity or carrying out the development, together with interest at such rate as the State Government may by order fix, from the date of completion of the work until payment, and shall be assessed and levied on all the owners of the land in proportion to the respective areas of land owned by them. (6) The said cess shall be payable in such number of instalments, and each instalment shall be payable at such time and in such manner, as the Authority may fix, and arrear of cess shall be recoverable as arrears of land revenue, and no suit shall lie in the civil court for recovery thereof. (7) The expenses incurred by the Authority or the agency employed by it under this section shall be certified by the Authority, and such certificate, as also the assessment of the cess, if any, under sub-section (5) shall be final. (8) If under any agreement between the owners of the land and the coloniser or the society referred to in sub-section (4) the responsibility for providing the amenity or carrying out the development vested with such coloniser or society, the cess payable under that sub-section by the owners shall be recoverable by them from the coloniser or society, as the case may be. COMMENTS Amenity by Development Authority.—Provisions of Sec. 33 is related to giving of amenity or carrying out development at the cost of owner. Thus the principle of quid pro quo will be applicable here and as such for providing amenity is a condition precedent for levy. Development Authority can charge the amount to meet the expenses alongwith interest, which was incurred either by it or its agency in providing amenity or carrying out development [Malti Kaul v. Allahabad Development Authority, (1995) 2 UPLBEC 974]. Development and supervision charges.—In absence of any clear and specific provision in the Act or Regulation the Development Authority is not competent to demand or realise development and supervision charges. [Rangji Sahkari Avas Samiti Ltd. v. State of U.P., 1997 (1) AWC 47]. Development fee.—Development Authority has no authority to impose development fee. Section 33 only authorises the Authority to recover the charges which have incurred in carrying out the work, which the person concerned failed to carry out without any satisfactory cause. [Sita Mishra v. State of U.P., 1996 All CJ429]. Under this section the Development Authority can charge the amount to meet the expenses along with interest, which have been incurred either by owner or by its agency in providing amenity or carrying out the Development. Conditions precedent for the exercise of power under Sec. 33 do not exist. [Malti Kaul v. Allahabad Development Authority, C.M.W.P. No. 35662 of 1994, dated 21st April, 1995]. 34. Power of Authority to require local authority to assume responsi-bilities in certain cases.--Where any area has been developed by the Authority, the Authority may require the local authority within whose local limits the area so developed is situated, to assume responsibility for the maintenance of the amenities which have been provided in the area by the Authority and for the provisions of the amenities which have not been provided by the Authority but which in its opinion should be provided in the area, on terms and conditions agreed upon between the Authority and that local authority; and where such terms and conditions cannot be agreed upon, then on a reference of the matter to the State Government by the Authority, on terms and conditions settled by the Government in consultation with the local authority. 35. Power of Authority to levy betterment charges.--(1) Where in the opinion of the Authority, as a consequence of any development scheme having been executed by the Authority in any development area, the value of any property in that area which has benefited by the development, has increased or will increase, the Authority shall be entitled to levy upon the owner of the property or any person having an interest therein a betterment charge in respect of the increase in value of the property resulting from the execution of the development: Provided that not betterment charge shall be levied in respect of lands owned by Government: Provided further that where any land belonging to Government has been granted by way of lease or licence by Government to any person, then that land and any building situate thereon shall be subject to a betterment charge under this section. (2) Such betterment charge shall be an amount- (i) in respect of any property situate in the township or colony, if any, developed or in other area developed or redeveloped, equal to one-third of the amount, and (ii) in respect of property situated outside such township, colony or other area, as aforesaid, not exceeding one-third of the amount, by which the value of the property on the completion of the execution of the development scheme, estimated as if the property were clear of buildings, exceeds the value of the property prior to such execution, estimated in like manner. COMMENT Betterment charges.—This section empowers the Development Authority to levy betterment charges as a consequence of any development scheme executed by owner in the development area resulting in value of any property in that area [Malti Kaul v. Allahabad Development Authority, C.M.W.P. No. 35662 of 1994, dated 21st April, 1995]. Before imposing these charges the Authority has to make assessment order after giving reasonable opportunity of being heard to person concerned. [Ibid]. 36. Assessment of betterment charge by Authority.--(1) When it appears to the 1.Subs, by U.P. Act No. 13 of 1975. [Vice-Chairman] that any particular development scheme is sufficiently advanced to enable the amount of the betterment charge to be determined, the 1. Subs, by U.P. Act No. 13 of 1975. [Vice-Chairman] may, by an order made in that behalf, declare that for the purpose of determining the betterment charge the execution of the scheme shall be deemed to have been completed and shall thereupon give notice in writing to the owner of the property or any person having an interest therein that the 1. Subs, by U.P. Act No. 13 of 1975. [Vice-Chairman] proposes to assess the amount of the betterment charge in respect of the property under Section 34. (2) The 1. Subs, by U.P. Act No. 13 of 1975.[Vice-Chairman] shall then assess the amount of betterment charge payable by the person concerned after giving such person an opportunity to be heard and such person shall, within three months from the date of receipt of the notice in writing of such assessment from the 1. Subs, by U.P. ActNo. 13 of 1975. [Vice-Chairman] inform the 1. Subs, by U.P. Act No. 13 of 1975. [Vice-Chairman] by a declaration in writing that he accepts the assessment or dissents from it. (3) When the assessment proposed by the 1. Subs, by U.P. Act No. 13 of 1975. [Vice-Chairman] is accepted by the person concerned within the period specified in sub-section (2) such assessment shall be final. (4) If the person concerned dissents from the assessment or fails to give the 1. Subs, byU.P. ActNo. 13 of 1975.[Vice-Chairman] the information required by sub-section (2) within the period specified therein the matter shall be determined by the 1. Subs, by U.P. Act No. 13 of 1975. [Chairman] 2. Inserted by ibid. [and such determination shall not be questioned in any court]. 3. Subs, by U.P. Act No. 13 of 1975. [37. Finality of decision.-- 4. Subs, by U.P; ActNo. 19 of 1976. [Except as provided in Section 41, every decision] of the Chairman on appeal, and subject only to any decision on appeal (if it lies and is preferred), the order of the Vice-Chairman or other officer under Section 15, or Section 27, shall be final and shall not be questioned in any Court.] 38. Payment of betterment charge.--(1) The betterment charge levied under this Act shall be payable in such number of instalments, and each instalment shall be payable at such time and in such manner, as may be fixed by bye-laws made in that behalf. (2) Any arrear of betterment charge shall be recoverable as an arrear of land revenue, and no suit shall lie in the civil court for recovery of such arrear. 39. Additional stamp duty on certain transfers of property.--(1) The duty imposed by the Indian Stamp Act, 1899, on any deed of transfer of immovable property shall, in the case of an immovable property situated within a development area, be increased by two per cent on the amount or value of the consideration with reference to which the duty is calculated under the said Act: Provided that the State Government may, by notification in the Gazette, enhance, the aforementioned percentage of the increase in stamp duty up to five. (2) All collections resulting from the said increase shall, after deduction of incidental expenses, if any, be allocated and paid by the State Government in its discretion, either to the Development Authority alone or to the Development Authority, the Uttar Pradesh Avas Evam Vikas Parishad and the 1. Subs, by U.P. Act No. 3 of 1997. [Municipal Corporation] or the 2. Now 'Municipality', vide U.P. Act No. 12 of 1994. [Municipal Board], as the case may be, in such proportion as may from time to time be determined, in such manner and in accordance with such principles as the State Government may by notification in the Gazette, specify. (3) For purposes of this section, Section 27 of the Indian Stamp Act, 1899, shall be read as if it specifically required the particulars referred to therein to be separately set forth in respect of property within the development area and property situated outside such area. (4) For the purposes of this section, Section 64 of the Indian Stamp Act, 1899, shall be so read and construed as if it referred to the Development Authority as well as to the State Government. (5) The provisions of clause (g) of sub-section (2) of Section 172 and Section 91 of the 1. Subs, by U.P. Act No. 3 of 1997. [Uttar Pradesh Municipal Corporations Act, 1959] and of clause (xiii-B) of Section 128 and Section 128-A of the 1. Subs, by U.P. Act No. 3 of 1997. [Uttar Pradesh Municipalities Act, 1916] and Section 62 of the Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965, shall to the extent of any repugnancy with the provisions of this section, cease to have effect, and the provisions of this section shall prevail. (6) The provisions of Sections 6, 8 and 24 of the United Provinces General Clauses Act, 1904, shall apply in relation to such cesser as they apply in relation to repeal and re-enactment. COMMENTS Increased duty under the section--Conditions.-- Section 39 is attracted only when transfer of immovable property situated within a development area is made. [Bilal Ahmad Sherwani and Kishori Lal v. State, 1992 ALJ 409 (HC) (DB)]. Applicability of various Acts--Sections thereof--As various sections of different Acts are dealt with in this section, the same have been reproduced as under: Indian Stamp Act, 1899, Sections 27 and 64.-- "27. Facts affecting duty to be set forth in instrument.--(1) The consideration (if any) and all other facts and circumstances affecting the chargeability of any instrument with duty, or the amount of the duty with which it is chargeable, shall be fully and truly set forth therein. (2) In the case of instruments relating to immovable property chargeable with an ad valorem duty on the value of the property, and not on the value set forth, the instrument shall fully and truly set forth the annual land revenue in the case of revenue paying land, the annual rental or gross assets, if any, in the case of other immovable property the local rates. Municipal or other taxes, if any, to which such property may be subject, and any other particulars which may be prescribed by rules made under this Act." "64. Penalty for omission to comply with provisions of Section 27.--Any person, who with intent to defraud the Government: (a) executes any instrument in which all the facts and circumstances required by Section 27 to be set forth in such instrument are not fully and truly set forth; or (b) being employed or concerned in or about the preparation of any instrument, neglects or omits fully and truly to set forth therein all such facts and circumstances; or (c) does any other act calculated to deprive the Government of any duty or penalty under this Act; shall be punishable with fine which may extend to five thousand rupees." U.P. Municipal Corporations Act, 1959, Clause (g) of sub-section (2) of Section 172 and Section 191.-- "(2) In addition to the taxes specified in sub-section (1) the Corporation may for the purposes of this Act and subject to the provisions thereof impose any of the following taxes, namely,-- * * * * * (g) a tax on deeds of transfer of immovable property situated within the City;" "191. Tax on deeds of transfer of immovable property.--(1) Where the Corporation has imposed a tax referred to in clause (g) of Section 172, the duty imposed by the Indian Stamp Act, 1899 on any deed of transfer of immovable property shall, in the case of immovable property situated within the City, be increased by 2 per cent on the value of the consideration with reference to which the duty is calculated under the said Act. (2) All collections resulting from the said increase shall, after the deduction of incidental expenses, if any, be paid to the Corporation by the State Government in such manner as may be prescribed by rules. (3) For the purpose of this section. Section 27 of the Indian Stamp Act, 1899, shall be so read and construed as if it specifically require the particulars referred to therein to be separately set forth in respect of-- (a) property situated within the City, and (b) property situated outside the City. (4) For the purposes of this section, Section 64 of the Indian Stamp Act, 1899, shall be so read and construed as if it referred to the Corporation as well as to the Government." U.P. Municipalities Act, 1916, Sections 128 and 128-A.-- “128. Taxes which may be imposed.--(1) Subject to any general rules or special orders of the State Government in this behalf, the taxes which a Municipality may impose in the whole or part of a municipality are-- (i) a tax on the annual value of buildings or lands or both, (ii) a tax on trades and calling carried on within the municipal limits and deriving special advantages from, or imposing special burdens on municipal services; (iii) a tax on trades, callings and vocations including all employ-ments remunerated by salary or fees; (iii-a) a theatre tax which means a tax on amusement or entertain-ments; (iv) a tax on vehicles and other conveyances plying for hire or kept within the municipality or on boats moored therein; (v) a tax on dogs kept within the municipality; (vi) a tax on animals used for riding, driving, draught or burden, when kept within the municipality; (vii)[* * *] (viii)[* * *] (ix) a tax on inhabitants assessed according to their circum-stances and property; (x) a water-tax on the annual value of buildings or lands or of both; (x-a) a drainage tax on the annual value of buildings leviable on such buildings as are situated within a distance, to be fixed by rule in this behalf for each municipality from the nearest sewer line; (xi) a scavenging tax; (xii) a conservancy tax for the collection, removal and disposal of excrementious and polluted matter from privies, urinals, cesspools, (xiii) [* * *] (xiii-A) [* * *] (xiii-B) a tax on deeds of transfer of an immovable property situated within the limits of the Municipality; (xiv) [* * *] (2) Provided that taxes under clauses (iii) and (ix) of sub-section (1) shall not be levied at the same time [* * *] nor shall the taxes under clauses (x-a) and (xii) of sub-section (1) be levied at the same time: Provided further that no tax under Clause (xiii-B) of sub-section (1) shall be levied on deeds of transfer of immovable property situated within such area of the municipality as forms part of the local area of any improvement trust created under Section 3 of the U.P. Town Improvement Trust Act, 1919 (U.P. Act VIII of 1919): Provided also that no tax under Clause (iv) of sub-section (1) shall be levied in respect of any motor vehicle]. (3) Nothing in this section shall authorise the imposition of any tax which the State Legislature has no. power to impose in the State under the Constitution: Provided that a Municipality which immediately before the commencement of the Constitution was lawfully levying any such tax under this section as then in force, may continue to levy that tax until provision to the contrary is made by the Parliament." “128-A. Tax on deeds of transfer of immovable property.--(1) Where a Municipality has imposed a tax referred to in Clause (xiii-B) of sub-section (1) of Section 128, the duty imposed by the Indian Stamp Act, 1899, on any deed of transfer of immovable property shall, in the case of immovable property situated within the limits of such municipality, be increased by two per cent, on the amount or value of the consideration with reference to which the duty is calculated under the said Act : Provided that the Municipality may, by a special resolution, with the prior approval of the State Government, raise the aforementioned percentage of the increase in stamp duty up to five. (2) All collections resulting from the said increase shall after the deduction of incidental expenses, if any, be paid to the Municipality concerned by the State Government in such manner as may be prescribed. (3) For the purposes of this sub-section, Section 27 of the Indian Stamp Act, 1899, shall be so read and construed as if it specifically requires the particulars referred to therein to be separately set forth in respect of— (a) property situate within the limits of a municipality; and (b) property situate outside the limits of a municipality. (4) For the purposes of this section all reference in Section 64 of the Indian Stamp Act, 1899 to the Government shall be deemed to include the Municipality as well." U.P. Avas Evam Vikas Parishad Adhiniyam, 1965, Section 62.-- "62. Additional stamp duty on transfers of property.—(1) The duty imposed by the Indian Stamp Act, 1899 on any deed of transfer of immovable property shall, in the case of immovable property situated within the area in which this Act is in force, be increased by two per-cent on the amount or value of the consideration with reference to which the duty is calculated under the said Act: Provided that the Board may, with the previous approval of the State Government, enhance the aforementioned percentage of the increase in stamp duty up to five.- (2) All collections resulting from the said increase shall, after deduction of incidental expenses, if any, be allocated and paid by the State Government to the Board alone or to the Board and the Municipal Corporation or the 1. Ins. by U. P. Urban Development Authorities (Toll) Act, 1976 (U. P. Act No. 48 of 1976). [municipal board], as the case may be, in such proportions as may from time to time be determined in such manner and in accordance with such principles, as may be prescribed. (3) For the purposes of this section, Section 27 of the Indian Stamp Act, 1899 shall be read as if it specifically required the particulars referred to therein to be separately set forth in respect of-- (a) the property situated within the area where this Act is in force, and (b) the property situated outside such area. (4) For the purposes of this section, Section 64 of the Indian Stamp Act, 1899 (Act No. II of 1899), shall be so read and construed as if it referred to the Board as well as to the State Government. (5) The provisions of clause (g) of sub-section (2) of Section 172 and Section 191 of the Uttar Pradesh Municipal Corporations Act, 1959 and the clause (xiii-B) of Section 128 and Section 128-A of the U.P. Municipalities Act, 1916 (U.P. Act No. II of 1916) shall not apply in relation to any local area in which this Act is in force and the provisions of this section shall prevail. The provisions of Sections 6, 8 and 24 of the U.P. General Clauses Act, 1904, shall apply in relation to such cesser as they apply in relation to repeal and re-enactment." U.P. General Clauses Act, 1904, Sections 6, 8 and 24.-- "6. Effect of repeal.— Where any Uttar Pradesh Act repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not- (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any remedy, or any investigation or legal proceeding commenced before the repealing Act shall have come into operation in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such remedy, may be enforced and any such investigation or legal proceeding may be continued and concluded, and any such penalty, forfeiture or punishment imposed as if the repealing Act had not been passed." “8. Construction of references to repealed enactment.--(1) Where, any Uttar Pradesh Act repeals and re-enacts, with or without modify-cation, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted. (2) Where the short title of any enactment is amended by an Uttar Pradesh Act, then references to that enactment by its old short title in any other enactment shall be construed as references to that enactment by its new short title.” "24. Continuation of appointments, notifications, orders, etc. is sued under enactments repealed and re-enacted.-Where any enactment is repealed and re-enacted by an Uttar Pradesh Act with or without modification, then; unless it is otherwise expressly provided any appointment or statutory instrument or form made or issued under the repealed enactment shall, so far as it is not inconsistent with the provisions re-enacted and continue to be in force, and be deemed to have been made or issued under the provisions so reenacted, unless and until it is superseded by any appointment, or statutory instrument or form made or issued under the provisions so re-enacted. 1. Ins. by U. P. Urban Development Authorities (Toll) Act, 1976 (U. P. Act No. 48 of 1976). [39-A. Toll for amenities.--The Authority shall be entitled to charge and collect, toll for the use of approach roads and other amenities, at such rate and in such manner as may be notified by the State Government, from visitors, to such places of popular resort (including any ancient and historical monuments) within its development area as may be so notified: Provided that-- (a) the rate of toll per visitor, shall not exceed 2. Subs, by U. P. Act No. 1 of 1995 for the words "rupees two" (w.e.f 19th October, 1994).[rupees one hundred]; (b) the State Government may by notification, exempt any class or classes of visitors from the payment of the toll and may fix any day or days on which no toll shall be chargeable]. 3. Subs, by U. P. Act No. 21 of 1985. [40. Mode of recovery of moneys due to Authority.—Any money due to an Authority on account of any fee, or charges, or from disposal of land, building or any other property, movable or immovable, by way of rent, premium, profit or hire-purchase instalment, may, without prejudice to the right of recovery by any other mode of recovery provided by or under this Act or any other law for the time being in force, be realized-- (a) either, as arrears of land revenue upon a certificate of the amount due sent by the Authority to the Collector, or (b) by attachment and sale of property in the manner provided in Sections 504, 505, 506, 507, 508, 509, 510, 512, 513 and 514 of the 1. Subs, by U.P. Act No. 3 of 1997. [Uttar Pradesh Municipal Corporations Act, 1959 (2 of 1959); and such provisions of the said 1. Subs, by U.P. Act No. 3 of 1997. [Act] shall mutatis mutandis apply to recovery of dues of an Authority as they apply to recovery of a tax due to a 1. Subs, by U.P. Act No. 3 of 1997. [Municipal Corporation] so however, that reference in the aforesaid sections of the said Adhiniyam to 'Mukhya Nagar Adhikari, 1. Subs, by U.P. Act No. 3 of 1997. [Corporation] and 'Executive Committee' shall be construed as references to 'Vice-Chairman', 'Development Authority' and 'Chairman' respectively: Provided that no two or more modes of recovery shall be commenced or continued simultaneously]. COMMENTS Loan advanced for building--Recovery under this section--Wrong.--The loan advanced to enable to construct a house does not fall in any of the clauses contemplated under Section 40 of the Act. It cannot be recovered under this Section. [Gyan Singh v. Kanpur Development Authority, 1992 ALJ 111]. Loan.—Provision of Section 40 could not be invoked by the authority only if the money sought to be recovered was due to it on account of fees or charges or from the disposal of land, building or other properties or by way of rents and profits. It was indisputable that the amount sought to be recovered by authority was neither fees nor - .charges nor could it be described as an amount due to the Development Board on account of disposal of lands, buildings, etc. The loan advanced for enabling to construct house could obviously not fall in any of the clauses under Sec. 40. [Gyan Singh v. Kanpur Development Authority, 1991 All CJ 771]. Applicability of Uttar Pradesh Municipal Corporation Act, 1959, Sections 504 to 514.- As various sections of this Act are dealt with in clause (b) of Section 40 of U.P. Urban Planning and Development Act, 1973, the same have been reproduced as under: "504. Presentation of bill.--(1) As soon as a person becomes liable for the payment of any sum on account of a tax, other than any tax payable upon immediate demand, the Mukhya Nagar Adhikari shall, with all convenient speed, cause a bill to be presented to the person so liable. (2) Unless otherwise provided by rule, a person shall be deemed to become liable for the payment of every tax and licence fee upon the commencement of the period in respect of which such tax or fee is payable." "505. Contents of bill.—Every such bill shall specify-- (a) The period for which and the property, occupation, circumstances or thing in respect of which the sum is claimed, and (b) the liability or penalty enforceable in default of payment, and (c) the time (if any), within which an appeal may be preferred as provided in Section 472." "506. Notice of demand--If the sum for which a bill has been presented as aforesaid is not paid into the office of the Corporation or to a person empowered by a regulation to receive such payments, within fifteen days from the presentation thereof, the Mukhya Nagar Adhikari may cause to be served upon the person liable for the payment of the said sum a notice of demand in the form prescribed by rule." “507. Issue of warrant.--(1) If the person liable for the payment of the said sum does not, within fifteen days from the service of such notice of demand either-- (a) pay the sum demanded in the notice, or (b) show cause to the satisfaction of the Mukhya Nagar Adhikari or of such officer as the Corporation by regulation may appoint in this behalf, why he should not pay the same, such sum with all costs of the recovery may be recovered under a warrant caused to be issued by the Corporation in the form prescribed by the rule, or to like effect by distress and sale of the movable property of the defaulter. (2) Every warrant issued under this Section shall be signed by the Mukhya Nagar Adhikari, or by the officer referred to in clause (b) of sub-section (1)." "508. Forcible entry for purpose of executing warrant.--It shall be lawful for Corporation Officer to whom a warrant issued under Section 507, is addressed to break open at any time between sunrise and sunset, any outer or inner door or window of a building, in order to make the distress directed in the warrant in the following circumstances and not otherwise: (a) if the warrant contains a special order authorising him in this behalf; (b) if he has reasonable grounds for believing that the building contains property which is liable to seizure under the warrant, and (c) if, after notifying his authority and purpose and duly demanding admittance he cannot otherwise obtain admittance : Provided that such officer shall not enter or break open the door of an apartment appropriated for women, until he has given any women therein an opportunity to withdraw." "509. Manner of executing warrant.--(1) It shall also be lawful for such officer to distrain, wherever it may be found, any movable property of the person therein named as defaulter, subject to the provisions of sub-sections (2) and (3). (2) The following property shall not be distrained : (a) the necessary wearing apparel and bedding of the defaulter, his wife and children; (b) the tools of artisans; (c) books of account; (d) when the defaulter is an agriculturist, his implements of husbandary, seed-grain and such cattle as may be necessary to enable him to earn his livelihood. (3) The distress shall not be excessive, that is to say, the property distrained shall be as nearly as possible equal in value to the amount recoverable under the warrant, and if any article has been distrained which in the opinion of the person authorized under sub-section (2) of Section 507 to sign a warrant, should not have been so distrained, they shall forthwith be returned. (4) The officer shall not seizing the property, forthwith make an inventory thereof, and shall before removing the same give to the person possession thereof at the time of seizure a written notice in the form prescribed by rule that the said property will be sold as shall be specified in such notice." “510. Sale of goods under warrant and application of proceeds.--(1) When the property seized is subject to speedy and natural decay or when the expense of keeping it in custody together with the amount to be recovered is likely to exceed its value, the Mukhya Nagar Adhikari or other officer by whom the warrant was singed, shall at once give notice to the person in whose possession the property was seized to the effect that it will be sold at once, and shall sell it accordingly unless the amount named in the warrant be forthwith paid. (2) If not sold at once under sub-section (1) the property seized or a sufficient portion thereof may, on the expiration of the time specified in the notice served by the officer executing the warrant, be sold by public auction under the orders of the Corporation unless the warrant is suspended by the person who signed it or the sum due from the defaulter is paid together with all costs incidental to the notice, warrant of distress and detention of the property. (3) The surplus, if any, shall be forthwith credited to the Corporation Fund, notice of such credit being given at the same time to the person from whose possession the property was taken; but if the same be claimed by written application made to the Mukhya Nagar Adhikari within one year from the date of the notice, a refund thereof shall be made to such person. Any sum not claimed within one year from the date of such notice shall be the property of the Corporation." "511. Procedure in case of execution against property outside the City.-- (1) If no sufficient movable property belonging to a defaulter, or being upon the premises in respect of which he is assessed, can be found within the City, the District Magistrate may, on the application of the Corporation, issue his warrant to an officer of his court- (a) for the distress and sale of any movable property or effects belonging to the defaulter within any other part of the jurisdiction of the District Magistrate, or (b) for the distress and sale of any movable property belonging to the defaulter within the jurisdiction of any other District Magistrate exercising jurisdiction within Uttar Pradesh. (2) In the case of action being taken under clause (b) of sub-section (1), the other District Magistrate shall endorse the warrant so issued, and cause it to be executed, and any amount recovered to be remitted to the District Magistrate issuing the warrant who shall remit the same to the Corporation." "512. Recovery by attachment and sale of defaulter's immovable property.--In the circumstances mentioned in sub-section (1) of Section 507, the Mukhya Nagar Adhikari or the officer referred to in clause (b) of sub-section (1) of Section 507, may in lieu of issuing a warrant for distress and sale of movable property or where such warrant has been issued but the amount recoverable has not been recovered in whole or part issue a warrant for the attachment and sale of the defaulter's immovable property." “513. Warrant how to be executed in the case of immovable property.--(1) When a warrant is issued under Section 512 for the attachment and sale of immovable property, the attachment shall be made by an order prohibiting the defaulter from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge, and declaring that the property will be sold unless the amount due, with the costs of recovery, are paid into the Corporation office within five days. (2) Such order shall be proclaimed at some place on or adjacent to the property by beat of drum or other customary mode, and a copy of the order shall be fixed on a conspicuous part of the property and upon a conspicuous part of the office of the Corporation and also when the property is land paying revenue to the State Government, in the office of the Collector of the district in which the land is situate. (3) Any transfer of a charge on the property attached or of any interest therein made without the written permission of the Mukhya Nagar Adhikari shall be void as against all claims of the Corporation enforceable under the attachment." "514. Sale of immovable property.--(1) If the amount due is not paid within the period stated in sub-section (1) of Section 513 the immovable property or a sufficient portion thereof may be sold by public auction by order of the Mukhya Nagar Adhikari unless the warrant is suspended by him, or the sum due and the cost of recovery are paid by the defaulter and the Mukhya Nagar Adhikari shall apply the proceeds or such part thereof as shall be requisite in discharge of the sum due and of the costs of recovery. (2) The surplus, if any, shall be forthwith credited to the Corporation Fund, but if the same be claimed by written application to the Mukhya Nagar Adhikari within six months from the date of the sale, a refund thereof shall be made to the defaulter and any surplus not claimed within six months as aforesaid shall be the property of the Corporation. (3) Where the sum due and the costs of recovery are paid by the defaulter before a sale is effected, the attachment of immovable property shall be deemed to have been removed. (4) Sales of immovable property under this section shall be held in the manner laid down in the rules. (5) After sale of the immovable property as aforesaid the Mukhya Nagar Adhikari shall put the person declared to be the purchaser in possession of the same and shall grant him a certificate to the effect that he has purchased the property to which the certificate refers. (6) It shall be lawful for the Mukhya Nagar Adhikari on behalf of the Corporation to offer a nominal bid in the case of any immovable property put up for sale, provided the previous approval of the Executive Committee is obtained to such bidding. (7) The Mukhya Nagar Adhikari may direct the removal from the immovable property by any police officer of any person who obstructs him in any action taken in pursuance of sub-section (5) and may also use such force as is reasonably necessary to effect entry on the said property." 41. Control by State Government.--(1) The 1. Subs, by U.P. Act No. 19 of 1976 (w.e.f. 15-8-1976). [Authority, the Chairman or the Vice-Chairman] shall carry out such directions as may be issued to it from time to time by the State Government for the efficient administration of this Act. (2) If in, or in connection with, the exercise of its powers and discharge of its functions by the 1. Subs, by U.P. Act No. 19 of 1976 (w.e.f. 15-8-1976). [Authority, the Chairman or Vice-Chairman] under this Act any dispute arises between the 1. Subs, by U.P. Act No. 19 of 1976 (w.e.f. 15-8-1976). [Authority, the Chairman or Vice-Chairman] and the State Government, the decision of the State Government on such dispute shall be final. (3) The State Government may, at any time, either on its own motion or on application made to it in this behalf, call for the records of any case disposed of or order passed by the 1. Subs, by U.P. Act No. 19 of 1976 (w.e.f. 15-8-1976). [Authority, the Chairman or Vice-Chairman] for the purpose of satisfying itself as to the legality or propriety of any order passed or direction issued and may pass such order or issue such direction in relation thereto as it may think fit : Provided that the State Government shall not pass an order prejudicial to any person without affording such person a reasonable opportunity of being heard. 2. Inserted by U.P. Act No. 19 of 1976 (w.e.f. 15-8-1975). [(4) Every order of the State Government made in exercise of the powers conferred by this Act shall be final and shall not be called in question in any court.] COMMENTS Development fee.—Under this section the State Government can issue directions for the efficient administration of this Act, but this section does not confer any power on the Government to issue direction to the Development Authorities for imposing development fee. [Malti Kaul v. Allahabad Development Authority, C.M.W.P. No. 35662 of 1994, dated 21st April, 1995]. Land not nazul.—Finding in revision final, possession of petitioner not unauthorised. [M/s. Mayur Continental v. Administrator, 1989 (2) UPLBEC 127]. Revocation of order.—Not illegal, when the order was obtained by fraud and misrepresentation. [State of U.P. v. Maharaja D.P. Singh, 1989 (2) UPLBEC 737]: Propriety of order/direction of authority.—State Government is enable to examine the sanction of plan, which was alleged to cause obstruction in free flow of water. [Cantonment Board v. Nagarmahapalika, 1987 UPLBEC 898]. 42. Returns and inspections.--(1) The Authority shall furnish to the State Government such reports, returns and other information as that Government may from time to time require. (2) Without prejudice to the provisions of sub-section (1) the State Government or any officer authorised by the State Government in that behalf, may call reports, returns and other informations from the Authority or the local authority concerned in regard to the implementation of the master plan. (3) Any person authorised by the State Government or the officer referred to in sub-section (2) may enter into or upon any land with or without assistants or workmen for ascertaining whether the provisions of the master plan are being or have been implemented, or whether the development is being or has been carried out in accordance with such plan. (4) No such entry shall be made except between the hours of sunrise and sunset and without giving reasonable notice to the occupier, or if there be no occupier, to the owner of the land or building. 43. Services of notices, etc.--(1) All notices, orders and other documents required by this Act or any rule or regulation made thereunder to be served upon any person shall save as otherwise provided in this Act or such rule or regulation be deemed to be duly served-- (a) where the person to be served is a company, if the document is addressed to the secretary of the company at its registered office or at its principal office or place of business and is either-- (i) sent by registered post, or (ii) delivered at the registered office or at the principal office or place of business of the company; (b) where the person to be served is a firm, if the document is addressed to the firm at its principal place of business, identifying it by the name or style under which its business is carried on, and is either-- (i) sent by registered post, or (ii) delivered at the said place of business; (c) where the person to be served is a public body or a corporation or society or other body, if the document is addressed to the secretary, treasurer or other chief officer of that body, corporation or society at its principal office, and is either-- (i) sent by registered post; .or (ii) delivered at that office; (d) in any other case, if the document is addressed to the person to be served and -- (i) is given or tendered to him, or (ii) if such person cannot be found, is affixed on some conspicuous part of his last known place of residence or business, if within the development area or is given or tendered to some adult member of his family or is affixed on some conspicuous part of land or building to which it relates, or (iii) is sent by registered post to that person. (2) Any document which is required or authorised to be served on the owner or occupier of any land or building may be addressed "the owner" or "the occupier", as the case may be, of that land or building (naming that land or building) without further name or description, and shall be deemed to be duly served-- (a) if the document so addressed is sent or delivered in accordance with clause (d) of sub-section (1); or (b) if the document so addressed or a copy thereof so addressed, is delivered to some person on the land or building or, where there is no person on the land or building to whom it can be delivered, is affixed to some conspicuous part of the land or building. (3) Where a document is served on a firm in accordance with clause (b) of sub-section (1), the document shall be deemed to be served on each partner of that firm. (4) For the purpose of enabling any document to be served on the owner of any property the secretary to the Authority, may by notice in writing require the occupier (if any) of the property to state the name and address of the owner thereof. (5) Where the person on whom a document is to be served is a minor, the service upon his guardian or any adult member of his family be deemed to be service upon the minor. (6) A servant is not a member of the family within the meaning of this section. COMMENTS Service of notice.—Mode of serving notice is provided under Section 43, which is to be adopted necessarily. If the notice have been served by publication in newspaper it will not be contemplated either by the Act or the Rules. [Nivedita Singh v. Vice Chairman, Allahabad Development Authority, 1988 UPLBEC 603]. 44. Public notice how to be made known.--Every public notice given under this Act shall be in writing over the signature of the secretary to the Authority and shall be widely made known in the locality to be affected thereby affixing copies thereof in conspicuous public places within the said locality, or by publishing the same by beat of drum or by advertisement in a newspaper having circulation in the locality or by two or more of these means, and by any other means that the secretary may think fit. 45. Notices etc. to fix reasonable time.--Where any notice, order or other document issued or made under this Act or any rule or regulation made thereunder requires anything to be done for the doing of which no time is fixed in this Act or regulation, the notice, order or other document shall specify a reasonable time for doing the same. 46. Authentication of orders and documents of Authority.--All permissions, orders, decisions, notices and other documents of the Authority shall be authenticated by the signature of the secretary to the Authority or any other officer authorised by the Authority in that behalf. 47. Members and Officers to be public servants.--Every member and every officer and other employee of the Authority shall be deemed to be a public servant within the meaning of Section 21 of the Indian Penal Code. COMMENT Public servants.—When Government have not been given power to transfer the employees from one Authority to another and Section 47 merely provides protection to the employees of the Authority for limited purposes, an officer of the Development Authority cannot become a public servant. [Girja Shankar v. State of U.P., (1995) 1 / UPLBEC 324]. 48. Jurisdiction of courts.--No court inferior to that of a Magistrate of the first class shall try on offence punishable under this Act. 49. Sanction of prosecution.--No prosecution for any offence punishable under this Act shall be instituted except with the previous sanction of the Vice- Chairman of the Authority or any officer authorised by him in that behalf. 50. Protection of action taken in good faith.--No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done under this Act or any rule or regulation made thereunder. 51. Power to delegate.--(1) The State Government may by general or special order, direct that any power exercisable by it under this Act except the power to make rules, may also be exercised by such officer in such cases and subject to such conditions, if any, as may be specified therein. (2) The Authority may, by general or special order, direct that any power exercisable by it under this Act except the power to make regulations or bye- laws, may also be exercised by such officer or local authority, in such cases and subject to such conditions, if any, as may be specified therein. (3) the Vice-Chairman of the Authority may by general or special order direct that any power exercisable by him under this Act may also be exercised by such officer of the Authority in such cases and subject to such conditions, if any, as may be specified therein. 52. Savings.--Nothing in this Act shall apply to-- (a) the carrying out of works for the maintenance, improvement or other alterations of any building, being works which affect only the interior of the building or which do not materially affect the external appearance of the building; (b) the carrying out by any local authority or by any department of Government of any works for the purpose of inspecting, repairing or renewing any drains, sewers, mains, pipes cables or other apparatus including the breaking open of any street or other land for that purpose; (c) the operational construction (including maintenance, development and new construction) by or on behalf of a department of the Central Government; (d) the erection of a building not being a dwelling house, if such building is required for the purposes subservient to agriculture; (e) the excavations (including wells) made in the ordinary course of agricultural operations; and (f) the construction of unmetalled road intended to give access to land solely for agricultural purposes. 53. Exemption.--Notwithstanding anything contained in this Act the State Government may by notification in the Gazette exempt, subject to such conditions and restrictions, if any, as may be specified in such notification any land or building or class of lands or buildings from all or any of the provisions of this Act or rules or regulations made thereunder. COMMENT Exemption from application of the Act.—Land covered under Government Notification, exempting lands for which U. P. Avas Evam Vikas Parishad Adhiniyam, 1965 applies are not exempted under Section 59 (1) (a) of U. P. Urban Planning and Development Act, 1973 and is not covered by any exceptions of this Act. So, the Notification will not apply here and such lands may not be exempted. [Narendra Mohan Foundation Trust v. Special Land Acquisition Officer, (1994) 2 CRC 975]. Even where the approval has not been obtained for continuing the scheme notified under Section 28, power under Section 53 can be exercised by the State Government.. [(Dr.) Ashok Gupta v. Uttar Pradesh Avas Evam Vikas Parishad, 1988 UPLBEC 480; See Section 28 of the U.P. Avas Evam Vikas Parishad Adhiniyam, 1965]. 54. Plans to stand modified in certain cases.--(1) Where any land situated in the development area is required by the master plan or a zonal development plan to be kept as an open space or unbuilt upon or is designated in any such plan as subject to compulsory acquisition, then, if at the expiration of ten years from the date of coming into operation of the plan under Section 12 or where such land has been so required or designated by any amendment of such plan, from the date of coming into operation of such amendment, under sub-section (4) of Section 13, the land is not compulsorily acquired, the owner of the land may serve on the State Government a notice requiring his interest in the land to be so acquired. (2) If the State Government fails to acquire such land within a period of six months from the date of the notice, the master plan or, as the case may be, the zonal development plan shall have effect, after the expiration of the said six months as if that land were not acquired to be kept as an open space or unbuilt upon or were not designated as subject to compulsory acquisition. 55. Power to make rules 1. See Uttar Pradesh Urban Planning and Development (Forms of Report) Rules, 1982, at p. 90..--The State Government may, by notification in the Gazette, make rules for carrying out the purposes of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely: 2. Subs, by U.P. Act No. 13 of 1975. [(a) the levy of fee on a memorandum of appeal under sub-section (5) of Section 15 or under sub-section (23) of Section 27;] (b) the procedure to be followed by the 3. Subs, by U.P. Act No. 19 of 1976. [Chairman] in the determination of betterment charge, and the powers that it shall have for that purpose; (c) any other matter which has to be, or may be prescribed by rules. (3) All rules made under this Act shall, as soon as may be after they are made, be laid before each House of the State Legislature, while it is in session for a total period of not less than thirty days, extending in its one session or more than one successive sessions, and shall, unless some later date is appointed, take effect from the date of their publication in the Gazette subject to such modifications or annulments as the two Houses of the Legislature may, during the said period, agree to make, so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done thereunder. 56. Power to make regulations.--(1) An Authority may, with the previous approval of the State Government, make regulations, not inconsistent with this Act and the rules made thereunder, for the administration of the affairs of the Authority. (2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely-- (a) the summoning and holding of meetings of the Authority, the time and place where such meetings are to be held, the conduct of business at such meetings and the number of members necessary to form a quorum thereat; (b) the powers and duties of the Secretary and Chief Accounts Officer of the Authority; (c) the salaries, allowances and conditions of service of the Secretary, Chief Accounts Officer and other officers and employees; (d) the procedure for carrying out the functions of the Authority under Chapters III and IV; (e) the form of register of application for permission and the particulars to be contained in such register; (f) the management of the properties of the Authority; 4. Added by U.P. Act No. 13 of 1975. [(g) the fee to be paid on an application for permission under sub-section (1) of Section 15; zonal development plan shall have effect, after the expiration of the said six months as if that land were not acquired to be kept as an open space or unbuilt upon or were not designated as subject to compulsory acquisition. 55. Power to make rules 1.See Uttar Pradesh Urban Planning and Development (Forms of Report) Rules, 1982, at p. 90..--(1) The State Government may, by notification in the Gazette, make rules for carrying out the purposes of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely : 2. Subs, by U.P. Act No. 13 of 1975. [(a) the levy of fee on a memorandum of appeal under sub-section (5) of Section 15 or under sub-section (23) of Section 27;] (b) the procedure to be followed by the 3. Subs, by U.P. Act No. 19 of 1976. [Chairman] in the determination of betterment charge, and the powers that it shall have for that purpose; (c) any other matter which has to be, or may be prescribed by rules. (3) All rules made under this Act shall, as soon as may be after they are made, be laid before each House of the State Legislature, while it is in session for a total period of not less than thirty days, extending in its one session or more than one successive sessions, and shall, unless some later date is appointed, take effect from the date of their publication in the Gazette subject to such modifications or annulments as the two Houses of the Legislature may, during the said period, agree to make, so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done thereunder. 56. Power to make regulations.--(1) An Authority may, with the previous approval of the State Government, make regulations, not inconsistent with this Act and the rules made thereunder, for the administration of the affairs of the Authority. (2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely-- (a) the summoning and holding of meetings of the Authority, the time and place where such meetings are to be held, the conduct of business at such meetings and the number of members necessary to form a quorum thereat; (b) the powers and duties of the Secretary and Chief Accounts Officer of the Authority; (c) the salaries, allowances and conditions of service of the Secretary, Chief Accounts Officer and other officers and employees; (d) the procedure for carrying out the functions of the Authority under Chapters III and IV; (e) the form of register of application for permission and the particulars to be contained in such register; (f) the management of the properties of the Authority; 4. Added by U.P. Act No. 13 of 1975. [(g) the fee to be paid on an application for permission under sub-section (1) of Section 15; (h) the fee to be paid for inspection or obtaining copies of documents and maps; (i) any other matters which has to be or may be prescribed by regulations]. (3) Until an authority is established for an area under this Act, any regulation which may be made under sub-section (1) may be made by the State Government, and any regulation so made may be altered or rescinded by the Authority concerned in exercise of its power under sub-section (1). 57. Power to make bye-laws.--The Authority may, with the previous approval of the State Government, make bye-laws consistent with this Act and the rules made thereunder, for carrying out the purposes of this Act in respect of any matter affecting the general public, and without prejudice to the generality of this power, such bye-laws may provide for-- (a) the form in which any application for permission under sub-section (1) of Section 15 shall be made and the particulars to be furnished in such application; (b) the terms and conditions referred to in Section 16, subject to which the user of lands and buildings in contravention of plans may be continued; 1. Ins. by U.P. Act No. 13of1975.[(bb) the guiding principles for composition of offences under Section 32;] (c) the time and manner of payment of betterment charge under Section 30; 2. Ins. Byibid. [(d) the grant of licences to architects, town planning engineers, surveyors, draftsmen for the preparation of building plans or water supply, drainage and sewerage plans and the fees to be paid for the grant of such licence; (e) for so long as the Zonal Development Plans are not prepared under Section 9, the matter specified in clause (d) of sub-section (2) of that Section;] 3. Ins. ByU.P. ActNo.19of 1976. [(ee) the definition of an arterial road and the colour scheme and other specifications according to which the facade of buildings abutting such road shall be repaired, white-washed, colour-washed or painted, under Section 12-A;] 4. Ins. by U.P. Act No. 13 of 1975. [(f) any other matter which has to be or may be prescribed by bye-laws]. COMMENTS Approval of bye-laws.—Even if any bye-law was in practice for several years, it cannot be given the status of a valid bye-law. For this, previous approval of the State Government is a condition precedent. [Ghaziabad Development Authority v. Delhi Auto and General Finance (P) Ltd., (1994) 2 UPLBEC 1373 (SC)]. Interference by High Court.—High Court can interfere with exercise of power under Direction 19 of the U.P. (Regulation of Building Operations) Directions, 1960 [See U.P. (Regulation of Building Operations) Act, 1950, Sec. 14; Deepak Mitra v. A.D.A., 1988 UPLBEC 24]. 58. Dissolution of Authority.--(1) Where the State Government is satisfied that the purposes for which the Authority was established under this Act have been substantially achieved so as to render the continued existence of the Authority in the opinion of the State Government unnecessary, that Government may by notification in the Gazette declare that the authority shall be dissolved with effect from such date as may be specified in the notification; and the Authority shall be deemed to be dissolved accordingly. (2) From the said date-- (a) all properties, funds and dues which are vested in, or realisable by the Authority shall vest in or be realisable by, the State Government; (b) all nazul lands placed at the disposal of the Authority shall revert to the State Government; (c) all liabilities which are enforceable against the Authority shall be enforceable against the State Government; and (d) for the purpose of carrying out any development which has not been fully carried out by the Authority and for the purpose of realising properties, funds and dues referred to in clause (a) the functions of the Authority shall be discharged by the State Government. 59. Repeal etc. and savings.--(1) (a) The operation of clause (c) of Section 5, Sections 54, 55 and 56, clause (xxxiii) of Section 114, sub-section (3) of Section 117, clause (c) of sub-section (1) of Section 119, Section 191, Sections 316, 317, 318, 319, 320, 321, 322, 323, 324, 325, 326, 327, 328, 329 and 333, clauses (a) and (b) of sub-section (1) of Section 334, Sections 335, 336, Chapter XIV of the 1. Subs, by U.P. Act No. 3.of 1997. [Uttar Pradesh Municipal Corporation Act, 1959, Sections 178, 179, 180, 180-A, 181, 182, 183, 184, 185, 186, 203, 204, 205, 206, 207, 208, 209, 210 and 222 of 1. Subs, by U.P. Act No. 3.of 1997. [Uttar Pradesh Municipalities Act, 1916] for the said sections are extended under Section 338 thereof or under Section 38 of the 3. Repealed by Act No. 12 of 1994. [United Provinces Town Areas Act, 1914], or as the case may be, of Sections 162 to 171 of the 1. Subs, by U.P. Act No. 3.of 1997. [Uttar Pradesh Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961] and of the Uttar Pradesh (Regulation of Building Operations) Act, 1958 and the Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965, 2. Subs, by U.P. Act No. 47 of 1976 and be deemed always to have been substituted. [(except in relation to those housing or improvement schemes which have either been notified under Section 32 of the Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 before the declaration of the area comprised therein as development area or which having been notified under Section 28 of the said Adhiniyam before the said declarations are thereafter approved by the State Government for continuance under the said Adhiniyam or which are initiated after such declaration with the approval of the State Government, hereinafter in this section referred to as Special Avas Parishad Schemes)] shall in respect of a development area remain suspended, and sub-section (3) of Section 139 of the 1. Subs, by U.P. Act No. 13 of 1975 [Uttar Pradesh Municipal Corporation Act, 1959], shall have effect as if the requirement as to constitution of a Development Fund were suspended with effect from the date of constitution of the Authority for that area and until the dissolution of such Authority, and the provisions of 1. Subs, by U.P. Act No. 13 of 1975 (w.e.f. 15-8-1974). [Sections 6 and 24 of the United Provinces General Clauses Act, 1904] shall apply in relation to such suspension as if the suspension amounted to repeal of the said enactments by this Act, and in particular, all proceedings relating to acquisition of land and interest in land for improvement schemes under the said enactments pending immediately before such suspension before any court, tribunal or authority may be continued and concluded in accordance with the provisions of the said enactments (which shall mutatis mutandis apply) as if those provisions were not suspended 2. Subs, by U.P. ActNo. 47 of 1976 and be deemed always to have been substitutedretrospectively.and be deemed always to have been substituted. [and the powers, for doing anything which could, but for such suspension of the Uttar Pradesh (Regulation of Building Operations) Act, 1958, be done by the prescribed authority and controlling authority and which can, after such suspension be done by virtue of the application of Section 6 of the Uttar Pradesh General Clauses Act, 1904, shall vest in the Vice-Chairman and the Chairman respectively]. (b) The operation of the provisions suspended by virtue of clause (a) shall revive upon the dissolution of the Authority under Section 58 and the provisions of 1. Subs, by U.P. ActNo.13of 1975 (w.e.f. 15-8-1974). [Sections 6 and 24 of the United Provinces General Clause Act, 1904] shall apply in relation to the cesser of application of the corresponding provisions of this Act as if such cesser amounted to a repeal of these provisions of this Act by an Uttar Pradesh Act. 3. Inserted by U.P. Act No. 13 of 1975 (w.e.f. 15-8-1974).[(c) Without prejudice to the generality of the provisions of clauses (a) and (b), any bye-laws, directions or regulations under the 4. Subs, by U.P. Act No. 3 of 1997. [Uttar Pradesh Municipalities Act, 1916] or the Uttar Pradesh (Regulation of Building Operations) Act, 1958 or the 4. Subs, by U.P. Act No. 3 of 1997. [Uttar Pradesh Municipal Corporations Act, 1959] as the case may be, and in force on the date immediately before the date of commencement of this Act, shall, in so far as they are not inconsistent with the provisions of this Act, continue in force, until altered, repealed, or amended by any competent authority under this Act.] (2) Where any area for which an Improvement Trust constituted under the United Provinces Town Improvement Act, 1919 is in existence is declared to be a development area under Section 3, the said Act as well as the Uttar Pradesh Local Bodies (Appointment of Administrator) Act, 1961, if applicable, shall, in relation to such area, stand repealed as from the date of the constitution of the Development Authority for that area, and the Improvement Trust shall, as from that date, stand dissolved. 5. Subs, by U.P. ActNo. 13 of1975 (w.e.f. 15-8-1974). [(3) On and from the constitution of the Development Authority in relation to a development area which includes the whole of a city as defined in the 4[Uttar Pradesh Municipal Corporations Act, 1959], all posts borne on the establishment of the 4[Municipal Corporation] of that city exclusively in connection with its activities under Chapter XIV of the said Adhiniyam or under the Uttar Pradesh (Regulation of Building Operations) Act, 1958, immediately before the date of the constitution of the Development Authority, not being a post governed by the Uttar Pradesh Palika (Centralized) Services Rules, 1956 (hereinafter in this section referred to as the Centralized Services), shall, on and from such date, stand transferred to the Development Authority with such designations as the Authority may determine and officers and other employees who are not members of any Centralised Services, serving under the 1. Subs, by U.P. Act No. 3 of 1997. [Municipal Corporation] of that city not exceeding the number of posts so transferred shall be selected in accordance with such directions as may be issued by the State Government for being appointed on the said posts and on such selection shall stand transferred to find become officers and other employees of the Development Authority and shall as such hold office by the same tenure, at the same remuneration and on the same terms and conditions of service as they would have held the same if the Authority had not been constituted, and shall continue to do so unless and until such tenure, remuneration and terms and conditions are duly altered by the Authority] : Provided that any service rendered under the 1. Subs, by U.P. Act No. 3 of 1997. [Municipal Corporation] by any such officer or other employee before the constitution of the Authority shall be deemed to be service rendered under the Authority: Provided further that the Authority may employ any such officer or other employee in the discharge of such functions under this Act as it may think proper, and every such officer or other employee shall discharge those functions accordingly. 2. Subs, by U.P. Act No. 13 of 1975 (w.e.f. 15-8-1974). [(4) On and from the date of the constitution of the Development Authority in relation to a development area which includes the whole of a city as defined in the 1. Subs, by U.P. Act No. 3 of 1997. [Uttar Pradesh Municipal Corporations Act, 1959] all posts governed by the Centralized Services which were borne on the establishment of the 1. Subs, by U.P. Act No. 3 of 1997. [Municipal Corporation] of that city exclusively in connection with its said activities immediately before the date of constitution of the Development Authority shall, on and from such date, stand transferred to the Development Authority with such designations as the State Government may determine, but all such posts shall continue to be filled by members of the Centralised Services, as they would have been filled had they not been so transferred to the Authority, and the said Adhiniyam and the rules relating to the Centralised Services shall be amended accordingly.] (5) Every officer and other employee serving under an Improvement Trust referred to in sub-section (2) immediately before the date on the constitution of the Development Authority shall, on and from such date, be transferred to and become an officer or other employee of the Development Authority with such designations as the Authority may determine and shall hold office by the same tenure, at the same remuneration and on the same terms and conditions of service as he would have held the same if the Authority had not been constituted, and shall continue to do so unless and until such tenure, remuneration and terms and conditions are duly altered by the Authority : Provided that any service rendered under the Trust by any such officer or other employee before the constitution of the Authority shall be deemed to be service rendered under the Authority : Provided further that the Authority may employ any such officer or other employee in the discharge of such functions under this Act as it may think proper, and every such officer or other employee shall discharge those functions accordingly. (6) Notwithstanding the provisions of sub-sections (1) and (2)-- (a) anything done or any action taken (including any notification issued or order or scheme made or permission granted) under any of the enactments referred to in sub-sections (1) and (2) shall, so far as it is not inconsistent with the provisions of this Act continue in force and be deemed to have been done or taken under the provisions of this Act unless and until it is superseded by anything done or any action taken under the provisions of this Act; (b) all debts, obligations and liabilities incurred, all contracts entered into and all matters and things engaged to be done by, with or for any local authority constituted under any enactment referred to in sub-sections (1) and (2) in relation exclusively to the performance of functions assigned to the Development Authority by this Act shall be deemed to have been incurred, entered into or engaged to be done by, with or for the Development Authority concerned; (c) all properties, movable and immovable, vested in an Improvement Trust referred to in sub-section (2) shall vest in the Development Authority concerned, all properties movable and immovable vested in any other 1. Subs, by U.P. Act No. 3 of 1997. [local authority constituted under any enactment referred to in sub-section (1)] in relation exclusively to the performance of functions assigned to the Development Authority by this Act shall vest in the Development Authority concerned; (d) all rents, fees and other sums of money due to an Improvement Trust referred to in sub-section (2) or in relation exclusively to the performance of functions assigned to the Development Authority by this Act shall be deemed to be due to the Development Authority; (e) all suits, prosecutions and other legal proceedings instituted or which might have been instituted by, for or against 1. Subs, by U.P. Act No. 3 of 1997. [any authority appointed or constituted under any enactment referred to in sub-section (1)] or sub-section (2) in relation to the performance of functions assigned to the Development Authority by this Act may be continued or instituted by, for or against the Development Authority; 1. Subs, by U.P. Act No. 3 of 1997.[(f) all appeals under sub-section (2) of Section 15 of the Uttar Pradesh (Regulation of Building Operations) Act, 1958 in relation to an area, declared under this Act as a development area, pending before the Controlling Authority on the date of such declaration shall stand transferred to the Chairman and the decision of the Chairman shall be final and all such appeals which were addressed to the Controlling Authority and which were entertained by the Chairman after the said declaration shall be deemed to have been preferred to the Chairman and the decision of the Chairman shall be final.] Explanation.--For the purposes of this sub-section, the Development Fund referred to in sub-section (3) of Section 139 of 2.Subs, by U.P. Act No. 3 of 1997. [the Municipal Corporations Act, 1959], and all properties created out of that fund, and all debts, obligations and liabilities incurred, all contracts entered into and all matters and things engaged to be done by, with or for the 1. Subs, by U.P. Act No. 3 of 1997. [Municipal Corporation] in relation to such properties or in relation to the functions specified in Chapter XIV of the said Adhiniyam, shall be deemed to relate to the performance of functions assigned to the Development Authority by this Act and clauses (a), (b), (c), (d) and (e) shall apply accordingly. (7) If any dispute arises between any Local Authority or a Development Authority whether for purposes of clauses (b), (c) and (d) of sub-section (6) any debt, obligation or liability was incurred or any contract was entered into or anything was engaged to be done by, with or for any local authority, or any property vested in any local authority, or any rent, fee or other sum was due to any local authority, in relation exclusively to the performance of functions assigned by this Act to the Development Authority it shall be referred to the State Government whose decision shall be final and shall not be questioned in any court. (8) If any question arises whether for the purpose of sub-section (3) any officer or other employee of the 1. Subs, by U.P. Act No. 3 of 1997. [Municipal Corporation] concerned was immediately before the date of constitution of the Development Authority employed exclusively in connection with the performance of functions under Chapter XIV of the 1. Subs, by U.P. Act No. 3 of 1997. [Uttar Pradesh Municipal Corporations Act, 1959], in the area for which the Development Authority is constituted, it shall be referred to the State Government whose decision shall be final and shall not be questioned in any court. (9) Nothing in sub-sections (3) and (4) shall apply to an officer or other employee of a 1. Subs, by U.P. Act No. 3 of 1997. [Municipal Corporation] or an Improvement Trust, as the case may be, who within one month from the date of the constitution of the Development Authority concerned intimates the 1. Subs, by U.P. Act No. 3 of 1997. [Municipal Corporation], or Trust of his option not to become an employee of the Development Authority, and on receipt of such intimation by that body, his employment thereunder shall stand immediately determined, and his post under that body shall stand abolished, and he shall be entitled to receive from that body compensation-- (a) if he was employed immediately before the date of the constitution of the Development Authority, in a permanent capacity, equivalent to three months' salary; (b) if he was employed immediately before the date of the constitution of the Development Authority in a temporary capacity, equivalent to one month's salary. Explanation.--In this sub-section, the expression, "salary" includes Dearness Allowance, Special Pay or any other like periodical allowance or pay. (10) Notwithstanding anything contained in the U.P. Industrial Disputes Act, 1947 in any other law for the time being in force, the transfer of services of any officer or the employee to the Development Authority under sub-section (3) or sub-section (5) shall not entitle him to any compensation under that Act or such other law, and no such claim shall be entertained by any court, Tribunal or authority. (11) Notwithstanding anything contained in sub-sections (3) and (5) no appointment made or promotion, increment in salary, pension, allowance or any other benefit granted to any person after the commencement of this Act andbefore the date of constitution of the Development Authority which in the opinion of the Development Authority would not ordinarily have been made or granted or would not ordinarily have been admissible under the terms and conditions of service in force prior to the commencement of this Act shall have effect or be payable or claimable from the Development Authority or from any Provident, Pension or other fund or from any authority administering the fund unless the State Government has, by general or special order, confirm the appointment, promotion or increment or has directed the continued grant of the pension, allowance or other benefit, as the case may be. (12) For the persons who immediately before the date of constitution of the Development Authority were trustees of any pension, provident, gratuity or other like fund constituted for the officers and other employees referred to in sub-section (3) or sub-section (5), other than trustees nominated by or under any law, there shall be substituted as trustees such persons as the State Government may by general or special order specify. (13) For the purposes of clauses (b), (c), (d) and (e) of sub-section (6) all the functions of a 1. Subs, by U.P. Act No. 3 of 1997. [Municipal Corporation] under Chapter XIV of the 1. Subs, by U.P. Act No. 3 of 1997. [Uttar Pradesh Municipal Corporation Act, 1959] and all the functions of the Uttar Pradesh Avas Evam Vikas Parishad under the Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 other than those related to any 2. Subs, by U.P. Act No. 47 of 1976 and be deemed always to have been substituted. [Special Avas Parishad Schemes] shall be deemed to be functions assigned to the Development Authority by this Act. 3. Ins. by U.P. Act No. 19 of 1976 and again subs, by U.P. Act No. 6 of1982. [(14) Notwithstanding anything contained in Section 365 of the 1. Subs, by U.P. Act No. 13 of 1975 [Uttar Pradesh Municipal Corporation Act, 1959] all acquisition of land and interest in land for an improvement scheme, the functions in respect of which are to be deemed as functions assigned to the Development Authority under sub-section(13) shall be completed at least up to the stage of making awards on or before 4. Subs, by U.P. Act No. 6 of 1982 and shall be deemed to have come into force on [December 31, 1982]. COMMENTS Sanction of layout plan to colonizer--Non-compliance of formalities by him cannot be a ground for cancellation of permission to individual owner.--Once a layout plan has been sanctioned and the building plan submitted by an individual owner of the plot, if it complies with the requirement of rules, neither its sanction can be withheld nor, if the sanction has been granted, can be invoked. Sanction of the layout plan so far as the individual owner is concerned is final. [(Smt.) Meera Singh v. Varanasi Development Authority, 1991 ACJ 649 (DB): 1991 (2) ALR 251 : 1992 ALJ 126 (DB).] Review--No power granted under the Act.--The Act has not conferred any right for review of any sanction to layout or building plan granted by the Development Authority. [Ibid.] Sanction of plan--Obtained by misrepresentation or fraud--Cancellation thereof.--Sanction of layout plan can be cancelled only if it is established that it has been obtained by misrepresentation or fraud. [(Smt.) Meera Singh v. Varanasi Development Authority, 1992 ALJ 126 (HC) (DB): 1991 (1) ACJ 649 (DB) : 1991 (2) ALR 251; Jagdish Pd. Dubey v. Alld. Vikas Pradhikaran, 1993 ALJ 1120.] Exemption.—When notification, is issued under Section 32, it will come within "Special Avas Parishad Scheme" and exemption will be granted. [Swaran Singh v. State of U.P., 1988 UPLBEC 742]. Approval of State Government.—When any scheme was not initiated with the approval of the State Government then that scheme will not be covered by any exception as well by the provision of U.P. Avas Evam Vikas Parishad Adhiniyam, 1965 and by operation of law, it will remain suspended for such disputed land and could not be invoked by the Board. [Narendra Mohan Foundation Trust v. Special Land Acquisition Officer, (1994) 2 CRC 975]. Sanction by competent authority.--Under this Act provision have been made to levy the development charges so as to see that the area is developed in planned manner and as per the sanction given by the competent authority. [State of U.P. v. Malti Kaul, (1997) 1 UPLBEC 99 (SC)]. "All proceeding relating to acquisition of land and interest in land"—Interpretation of.— The phrase "all proceedings relating to acquisition of land and interest in land" contained in clause (a) of sub-section (1) has wide ambit. (U.P. Avas Evam Vikas Parishad v. Smt. Kanak, 1993 UPLBEC 843]. Taking possession of land.—Though State Government has power to drop or withdraw the land acquisition proceedings but it is not open to Development Authority to take possession of land by issuing notice and to contend that the acquisition proceedings have not ceased. [Kapoor Chand v. Development Authority, (1990) 2 UPLBEC 1312]. Permission of Vice-Chairman in KAVAL towns.—This Act was made applicable only to KAVAL towns, but Sec. 59 of this Act repealed Sections 316 to Section 329 of the Uttar Pradesh Nagar Mahapalika Adhiniyam, 1959 (now known as Uttar Pradesh Municipal Corporations Act, 1959), in consequence to which the provisions read with lease deed of 1941 is that the word "Board" by operation of law would be deemed to have been substituted by the aforesaid "Nagar Mahapalika". In the result if any development of land shall be undertaken or carried out or continued in such areas by any person or body (including Government department), the permission in writing by the Vice-Chairman should be obtained first. [Harminder Pal Singh v. Allahabad Development Authority, 1992 All CJ 226]. 60. Repeal and savings.--(1) The Uttar Pradesh Urban Planning and Development Ordinance, 1973 (U.P. Ordinance 7 of 1973), is hereby repealed. (2) Notwithstanding such repeal, anything done or any action taken under the said Ordinance, shall be deemed to have been done or taken under this Act, as if this Act had commenced on the 12th day of June, 1973. |
