- (1.) Heard Sri Anoop Trivedi, learned counsel for the petitioner, learned Standing Counsel for the respondent nos.1, 3 and 4 and Sri Bhupeshwar Dayal, learned counsel for the respondent no.2.
(2.) This writ petition has been filed challenging the recovery proceedings initiated against the petitioner which Sri Anoop Trivedi learned counsel submits is referable to Section 33 of U.P. Urban and Planning and Development Act, 1973 and is in violation of principles of natural justice. He submits that without there being any adjudication on the issue of the amount sought to be recovered from the petitioner the recovery has been straight away issued to be recovered as arrears of land revenue which is not recoverable as the procedure prescribed has not been followed. Learned counsel for the petitioner further submits that the said amount would become recoverable only after it is quantified and unless there is a quantification under the provisions of Section 33 the process of recovery could not have been initiated. Section 33 of 1973 Act is extracted hereinunder :- "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 a 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 carried out within the time specified in the order, then the Authority may itself provide the amenity or carry out the development or have 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 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 [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."
(3.) We have considered the submissions raised and we find that the grievance of the petitioner is about the violation of the procedure prescribed under Section 33 of the 1973 Act. The agreement which has been admitted by the petitioner to have been entered into with the Meerut Development Authority is on record as annexure-5 to the writ petition. We may extract Clause 2 to Clause 7 of the said agreement in extenso to consider the aforesaid submissions raised on behalf of the petitioner. The same is reproduced hereinunder : "2. PROVIDED always and it is hereby agreed if COLONIZER commit any breach of the terms and conditions of the agreement or if COLONIZER make any composition or arrangement with this creditors, then and in any such case, not with standing the waiver of any previous cause or right and over and above the action empowered to be taken under the provisions of the said directors and regulations, as amended from time to time, the development authority may forfeit the security deposited by the society and any itself undertake to complete the works and recover the charge from the society as it may incur. 3. PROVIDED that as and when the development authority is satisfied that the COLONIZER has complied with the conditions of these presents and had development any part of the colony the development authority may release for with the bank guarantee to the extent of the cost of internal development works carried out by the COLONIZER. 4. THAT security furnished shall remain with the development authority till completion certificate of internal development work to be carried by the COLONIZER in respect of the area of which permission to develop is granted is issued by the developed authority is satisfied that colonizer has complied with the provisions of these presents, if colonizer fails to carry out within any quarter the work of internal development which he is required to carry out within the period according to the progress schedule the colonizer shall when called upon by the development authority and within the time to be specified by it furnish such additional security for the value of that much work which in the opinion of the development authority fails short of the required work and failure on the part of COLONIZER to do so shall be construed as a breach of this agreement. This additional security as aforesaid shall be released when the deficiency in the work of internal developed as aforesaid is made good by COLONIZER. 5. ALL MONEY recoverable by the development authority under this agreement may without prejudice to any other remedy provided by law or by this deed be recovered form the society an arrears of land revenue. 6. THIS STAMP DURY payable on this and other documents to be executed by COLONIZER in pursuance of this agreement shall be borne by the COLONIZER. 7. IN THE EVENT of any question, dispute of difference arising out of this agreement or touching or concerning the subject matter thereof, the same shall be referred to the sole arbitration on any person nominated by the secretary to government U.P. in the Housing department. There will be no objection that the arbitrator is a Government Servant. And that he had to deal with matters to which the agreement relates or that in the course of this duties as a government servant he has expressed views on all or any of the matters is dispute of difference. The award of the arbitrator shall be final and binding on the parties.";