KHAN CHAND Vs. STATE OF U P

JUDGEMENT

(1.) IN this petition filed under Article 226 of the Constitution of INdia the short question that arises for consideration is whether Controlling Authority and the State Government committed any error in determining compounding fee leviable on petitioner for having raised construction without obtaining permission of Prescribed Authority.

(2.) ON an area of approximately 4400 sq. feet ownership of which is not disputed, shops and residential accommodation were constructed on ground and first floor some time in 1966. Prescribed Authority, Regulated Areas, Nainital served notice on petitioners, u/S. 10 of U. P. (Regulation of Building Operations) Act to show cause by 20-5-67 as to why these constructions may not be demolished and fine imposed as they were built without obtaining prior permission u/S. 6 of the Act. Although the notice was contested but the petitioners do not appear to have pressed it except requesting the Prescribed Authority to recommend to the Controller for compounding. ON 25-9-1968 Prescribed Authority made inspection of the site and found that entire construction was unauthorised as it was raised without obtaining prior sanction of competent authority. Petitioners were found to have contravened Master plan by constructing commerical accommodation in residential locality, encroached nazul land and paved public land. Thereafter overseer appears to have submitted report showing exact measurement etc. which was considered by Prescribed Authority and he passed an order copy of which has been filed as annexure 'II' to the supplementary affidavit. It appears that the overseer had recommended heavy compounding fee therefore the petitioners requested the Prescribed Authority that although they were willing to compound but the matter be referred to controlling authority to enable them to afford an opportunity to appear before him to get the compounding fee reduced. The Prescribed Authority held that although constructions and offence committed by petitioners was not compoundable but they were substantial and provided important facility to public and its destruction would be waste of money. He, therefore, directed the constructions to remain subject to certain conditions to which the petitioners agreed. The conditions were: (a) the encroachment in the form of brick platform and all cemented constructions shown in the diagram attached to my inspection note should be removed by the O. P. (b) all the shops which are at present used as workshop and sales shops for agricultural implements and tractors should be removed from the building. (c) in the vacated spaces shops necessary of civil aminity such as ready made garments, tailors, sweetmeat will be permitted. (d) no further constructions on the building or extending it should be made by the O. P. without consulting the Prescribed Authority and not in accordance with the master plan.

(3.) COMING to the main question of compounding fee it has not been disputed on behalf of State that compounding fee was leviable in accordance with various paragraphs of the Minutes of the meeting of the controlling authority of Kicha Regulations Area, district Nainital held on 30-5-62 at 11 a. m. in the office of the Commissioner, Kumaun Division, Nainital filed as annexure 7 to the supplementary affidavit. Paragraph 4 of the minutes deals with schedule of compounding fee to be charged by Prescribed Authority. The controlling authority approved three categories out of which compounding fee in case of petitioners, has admittedly been levied under sub-paragraph (2) of category No. (II) and sub-paragraph (3) (b) of category No. (Ill) which are quoted below "CATEGORY NO. II 2. For carrying out of development without obtaining prior sanction of the Prescribed Authority, or when the development is not in accordance with the sanctioned plan in such a way that the bye laws in force have been contravened but the land used in accordance with the Master plan and the required front set backs have been left open, the following fees shall be charged. Total plinth area of the development carried out Upto 1000 sqft Rs. 500/- 1001 sft to 2000sft. Rs. 1000/- Above 2001 sft. (about 5% of cost). Rs. 1500/. The term front set backs mentioned in these rules also means set backs towards other than front street if the site of the applicant abuts on more than 1 street and where the side set back required in the bye laws to be left open is equal to the front set back. (b) Where the development involves the constructions of compounding wall, laying of streets, storm water drains etc. provided that the bye laws of the land use proposal of the Master plan have not been contravened, the fee shall be as follows :- 5% of the development cost or Rs. 500/- whichever is more. Cotegory No. Ill 3. (a) For the development carried out without obtaining prior sanction of the Prescribed Authority or when the development has been so carried out that it is not in accordance with the plans sanctioned for such developments thereby, the Master plan has been contravened, no compounding fee shall be charged and the development must be demolished. (b) Where the development as mentioned in (a; above is such that it does not contravene with the proposals of the Master plan but the front set back have not been left open, the fees to be charged shall be equal to one and a half times the cost of land required to be left open based on the prevailing value of land in the area. The above fee shall be in addition to that may be charged under Secs. 1 and 2 of these rules."