AMITAVA LALA, J. - (1.) THE petitioner has filed this writ petition with the following prayers to issue: "(i) a writ, order or direction, including a writ in the nature of certiorari, quashing the impugned order dated 8.9.1998 passed by the respondent no. 1 (annexure -4) and the order dated 23.9.1998 passed by the respondent No. 1 (annexure-7); (ii) a writ, order or direction in the nature of mandamus, restraining the respondents from demanding from the petitioner an amount of Rs. 4,71,995/- as development charge and the amount of Rs. 2,35,997.50 as interest on the said amount, in any manner, whatsoever; (iii) any other writ, order or direction as this Hon'ble Court may deem fit and proper in the circumstances of the case; and (iv) award costs of the petition to the petitioner."
(2.) THE fact remains that the petitioner made an application in the prescribed proforma to the respondent Authority for sanction of a building plan for proposed nursing home at Mathura which the petitioner aspired to establish, being a medical doctor of eminence in his field. The petitioner, for the proposed nursing home, for which he applied on 15th October, 1994 under the scheme name and style of Maheshwari Hospital, held a site located at Delhi Byepass Road at village Jaisindhpura Dangar, Mathura and the land at the site consisted of agricultural land originally belonging to the petitioner. Although the area fell within the development area of the respondent authority, no development of any kind as per plan etc. has been undertaken in the area which lies outside the city limits. The petitioner's application for sanction of building plan was registered as application no. 172-N under Section 15(1) of the Uttar Pradesh Urban Planning and Development Act, 1973 (hereinafter referred to as the 'Act') and a demand was raised against the petitioner for levy of betterment charge to the tune of Rs. 1,36,609/- plus stacking charge to the tune of Rs. 16,916/-, thus totalling to an amount of Rs.1,53,525/-. In response to the aforesaid demand of betterment charges plus stacking charges as conditions precedent to sanction of petitioner's building plan, the petitioner deposited an amount of Rs. 1,53,525/- with the respondent-Development Authority. After deposit of the necessary betterment charges plus stacking charges as demanded, the respondent authority vide its memo dated 10th May, 1995 granted sanction to the petitioner's building plan and a memo to that effect was issued by the secretary of the respondent Development Authority approving the building plan submitted by the petitioner. After obtaining the sanction from the respondent Authority, the petitioner proceeded to construct the proposed nursing home at the proposed site strictly in accordance with the building plan sanctioned by the Development Authority and the construction was completed in the month of April, 1997. Thereafter the hospital was inaugurated on 6th September, 1997. It has been specifically stated that the hospital in question is situated on the petitioner's ancestral agricultural land, which is now banjar land and that in the dire vicinity of the hospital, no development work or provisions of any facilities for improvement of the surrounding areas has been carried out by the respondent Development Authority in any manner, whatsoever. However, the petitioner received a memo dated 8th September, 1998, exactly one year after the inauguration, in which it was mentioned that the respondent Authority has found upon scrutiny of the said application that the petitioner had not paid betterment charge to the tune of Rs. 4,71,995/- and that on the said unpaid amount, he was further held liable to pay an interest of Rs. 2,35,997.50, thus, totalling to an amount of Rs. 7,07,992.50. The petitioner has further stated that the impugned memo dated 08th September, 1998 has been issued by the Development Authority unilaterally without affording any opportunity of hearing under show cause against the proposed levy or assessment.
(3.) AGAINST this background, the petitioner filed various representations inclusive of the representation dated 23rd September, 1998 and 26th September,1998 addressed to the Vice-Chairman, Mathura/Vrindavan Development Authority raising various objections about the levy. The petitioner received a cryptic reply on 23rd September, 1998 with reference to an earlier representation dated 17th September, 1998 filed by the petitioner on the same ground, reiterating the demand raised by means of the impugned memo dated 08th September, 1998. The petitioner sought allusion at this juncture to the provisions of Sections 35 and 36 of the Act, which refer to the levy and assessment of betterment charge. Such sections are quoted hereunder: "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 no 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 areas, 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. 36. Assessment of betterment charge by Authority.--(1) When it appears to the [Vice-Chairman] that any particular development scheme is sufficiently advanced to enable the amount of the betterment charge to be determined, the [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 [Vice-Chairman] proposes to assess the amount of the betterment charge in respect of the property under Section 34. (2) The [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 [Vice-Chairman] inform the [Vice-Chairman] by a declaration in writing that he accepts the assessment or dissents from it. (3) When the assessment proposed by the [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 [Vice-Chairman] the information required by sub-section (2) within the period specified therein the matter shall be determined by the [Chairman] [and such determination shall not be questioned in any Court]." ;