2019 INSC 0599 Page 1 of 8 REPORTA BLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO . 5820 OF 2019 (A RISING OUT OF S LP (C IVIL ) N O. 10151 OF 2014 ) LUCKNOW DEVELOPMENT AUTHORITY & AN R. .....APPELLANT(S) VERSUS GOPAL DAS (DECE ASED) THROU GH LR s & ORS. .....RESPONDENT(S) J U D G M E N T HEMANT GU PTA , J. Leave granted. 2) The appellant -Lu cknow Development Authority 1 is ag grieved against the judgment and order passed by the Division Bench of Lu cknow Bench of the Allahabad High Court on Januar y 15, 2014 whereby the order dated July 29, 20 11 passed by LDA was quashed. The appellant s were also made liable to pay cost s of Rs.1,00,000/ - with the di rection to recover the cost s from the authorities who have been instrumental in p assing the impugned order . 1 for short, ‘LDA ’ Page 2 of 8 3) The fac ts leading to the present appeal are that LDA acquired total land measuring 168.592 hectares (666 Bigha , 7 Biswa , 8 Biswansi, 8 Kachwansi) vide notification dated November 12, 1981 under Section 4 of the Land Acquisition Act, 1894 for development of Sitapur Road Ci ty Ex tension Scheme for residential purposes. Notification under Section 6 read with Section 17 was issued on December 3, 1981 and the award was pu blished on January 15, 1986. 4) The land o f the resp ondent s measu ring 1.2 00 hectares forming part of land acquired was sought to be released from acquisiti on from the State Government under Section 17 of the Uttar Pradesh Urban Planning and Development Act, 1973 2. The land was released from acquisition on May 23, 2011 wher eby an order of resto ra tion of land in question of Khasra No s. 416 and 417 was passed in favour of the respondents along with an order of payment of development fee in terms of Section 17 of the Act. The respondent s were directed to de posit an amount of Rs.1, 57,22,056 /- within one week being Rs.1,38,780/ - as the cost of acquisition and Rs.1,55,83,276/ - as the amount of development fee vide separate letter dated July 29, 2011 . It is the said order which has been set aside by the High Co urt vide order i mpug ned in the present appeal. The Hig h Court held a s under: 2 for short, ‘Act ’ Page 3 of 8 “33. In view of the aforesaid interpretation of word, "development", it shall be obligatory on the part of the development authorities like LDA in the present case, to make so me development in a ccor danc e to statutory man date over the land and its vicinity to ma ke it entitle to impose development charges in terms of proviso of sub - section (1) of Section 17 of the Act. Further, the development charges co -relate with the expenditu re incurred with re gard to development activi ties. The development activ ities should b e in the vicinity where citizens' plots, flats or houses exist. In the present case, from the lay out plan and material on record, it appears that no development activiti es have been done t owar ds west side of the ra ilway lin e. Whatever develo pment has been done, it seems to have been done in the Sector -A of the Scheme towards eastern side of railway line. Neither any material has been brought on record nor there is any ple adi ng on record tha t el ectr icity, sewer line, road con structed by the LD A is utilized by the petitioner. There is no material on record which may prove that electricity connection has also been provided to the petitioner's premises from the infrastructure of the LDA. Nationa l Hi ghwa y No.24 is the old road con necting Lucknow an d Sitapur and it does not seem to be part of the development project of the LDA. 34. …Nothing has been brought on record to establish the expenditure incurred on development work don e o ver the land in disp ute or in its close vi cinity in terms of Section 8 and 9 of the Act from which the petitioner may be benefited. In absence of any benefit provided to the petitioner by the development work done by the development authority or the Luc kno w Development Au thor ity as the case may be , the pet itioner or a citiz en may not be subj ected to payment of development charges. ” 5) Such development charges at the time of res toration are contemplated in ter ms of proviso to Section 17 (1) of the Act , which re ads as under: “17. Comp ulsory acquisition of land. -(1) I f in the opinion of the Sta te Government , any land is required for the purpose of development , or for any Page 4 of 8 ot her pu rpose, under this Act , the State Governm ent may acquire such land under the Provisi on s of the Land Ac quisi tio n Act,1894 : Provided that any pe rson , fro m whom any land is so acquired , may after the expiration of a period of five years room the dat e of such acquisition apply to the State Government for restoration of that land to him on th e ground that the land has not been utili sed within the per iod for t he purpose , for wh ich it was acquired and if the State Government is satisfied to that effect i t shall or der restoration of the land to him on re -payment of the charges which were incurred in connection wit h the ac quisition together with interest at the ra te of twelve per c ent per annum and such development charges , if any , as may have been incurred after acq uisition . (2) Where any land has been acquired by the State Government, that Gover nm ent may, after i t has ta ken possession of the land transf er the la nd to the Authorit y or any local authority for the purpose for which the land has been acquired on paymen t by Authority or the local Authority of the compensation awarded under that Act an d of the charges i ncurr ed by the Government in connection w ith the a cquisition .” 6) Lear ned counsel for the appellant s submits that the land in questi on is 1 38 575.25 s q. feet i .e. 12878.741 sq. meters and is situated between rai lway line of Aishbagh -Mail ani Se ction and Nation al Hi ghw ay No. 24. Since the land in question is part of a planned sc heme of LDA, all necessary external infrastructural developments like constru ction of road, electricity, water and se wer lines have been made available in the area. It i s also pointed o ut th at development under the Act means development of the entire area as a whole and not only the land of the one or two landowners . Th e l and in question i s part of Master Plan and the Page 5 of 8 development of the area cannot be seen in piecemeal. In the impugned orde r before the High Court , the compet ent authority has recorded the following fact s: “11. …Under the scheme of Sitapur City Ext ension Scheme in question, the land admeasuring 168.529 hect. was acquired in the year 1981. Th is land i s co mp let ely develop ed lan d and under this land approx. . 97.1% of the land is planned land. All the public facilities like Roads, Electricity, Water, Sewer e tc. has been made av ailable o ver this land by the authority. In between Railway Line and National Hig hw ays there is t otal 3 4-1-0-0 bigha land which is covered with road (National Highway) , hence it comes within the categor y of developed land. Since befor e, the facilities of roads, e lectricity and water are available here. The total acquired land except 19 -6-0-0 bigh a h as bee n allotted. However, the land in question is reserved for future development, and any decision i n this regard are not available in the record. The lan d in ques tion comes under the scheme of Sitapur City Extension S cheme. Any zonal Plan of land sit uated in between Railway Line and National Highway is not approved, but by clubbing this area , the “Road Network Plan ” of complete scheme in which all the sec tors have been shown is approved. The aforesaid plan exists at present and there ar e n o necessity to re ne w the lay -out plan of Schemes of the Autho rity. 12. …In accordance to Report of the Authority, approx. 34 Bigha land betw een N ational Highway Luck now Sitap ur Road and Railway Line has been acquired which is an Pattinuma, and out of w hich 15 Big ha lan d has been allotted and approx. 19 Bigha land is remain as it is. The land of the petitioner Shri Gopal Das is included in this 19 Bigha land and out o f this af ore said 19 Bigha land, over the land of 12 Bigha there are personal build ings etc. are ex isted be ing the encroachment. In this way when the land of t he petitioner has not been planned and has not been allotted and in part of t he land his paint bu siness is running, then it does not reveal justified in any manner that the land h as be en used by the Lu ck now Development Authority. Because the land in question of petitioner has been acquired by the Lucknow Development Authority for the use of residenti al provis ions, but the same has not been used for the s aid provisi ons. Therefore on th e basis Page 6 of 8 of all th e aforesaid facts and circums tances, the balance of convenience is revealed in favour of the petitioner. Therefore, in such circums tances, the transfer of land in question is to be considered in favour of petitioner under Section 17 of th e Uttar Pra desh Urb an Planning and Development Act, 1973. ” 7) The learned counsel for the appellants submits that the land in questi on is situated between ra ilway lin e and National Highway , which is measuring 34 Bighas , out of which 15 Bighas ha s bee n al lotted and rem aining 19 Bighas of land including 12 Bighas of the respondent s ha s not been allot ted . It is the said averment made in Para 15 which was take n into consideration by the High Court and retur ned a finding that the develop ment charges could not be claimed a s there is no development wo rk on the land of the respondent s. It is the said finding which is sought to be supported by Mr. V.K. Gar g, learne d sen ior counsel appearing for the respondent s. 8) Learned counsel fo r the r espondent s point ed out t hat in respec t of so m e other land, part of th e same acquisition has been released in terms of Section 24 of the Fair Compensation and Transparency in Land Acquisition , Rehabilitation and Resettlement Act, 2013. Therefore, the respond ents can not be tr eated in a discrim in atory manner. 9) We do not find that the findings recorded by the High Court are sustainable in law. As per the avermen ts made in the counter Page 7 of 8 affidavit filed before the High Court and also in the impugned order , it is stated that 97.1% of the total land a cq uired is plann ed land. Sma ll portion of 19 Bighas including the land of the respondent s has not been planned for the reason that there w ere buildings on such area. Therefore, when the appellant s state that the land of th e respondent s ha s n ot been plann ed or a llotted i s in the cont ex t that the area has not been plotted. It does not mean that the appellant s ha ve not carr ied out any development on the land in question. It is not some part of the land a cquired is required to be taken into con sideration , t o find out as to whether any development has been carried out in the land a cquired . The findings of the High Court that the land in question or the v icinity has not been developed is not t he correct rea ding o f the impugned orde r passed as it has been clea rly sta ted that 97.1% of the land acquired has been developed . The development is to be examined in respect of the land acquired. It is categ orical stand of the appe llants that they ha ve constructed ro ad, provided electricity, water and laid se wer lines an d, th erefore, the respondent s cannot avoid payment of de velopment charges while seeking res toration of land in terms of Section 17 of the Act . 10) In view thereof, we find that the jud gm ent passe d b y the High Court setting aside the claim of de velopment cha rg es is not sustainable . Consequently, the appeal is allowed and the said finding is set aside . Page 8 of 8 11) We find that the order qu an tifying the development charges of Rs.1,57,2 2,056/ - was rais ed without giving any opportunity of heari ng to the respon dent s. Cons eq uently, th e demand letter /orde r dated July 29, 2011 is set aside with liberty to the appella nts to communicate the amount incurred on acquisi tion and development charges in ac cordance with law. It shall be open to the respond ents to seek remedy , if any , under th e Right to F air Compensation and Transparency in Land Acquisi tion, Rehabilitation and Resettle ment Act, 2013 in accor dance with law. ...................................... .......J. (L. NAGESWARA RAO ) .................. .... ............... ........J . (HEMANT GU PTA ) NEW DELHI; JUL Y 24 , 201 9.