ALLAHABAD DEVELOPMENT AUTHORITY AND ANR.versusSABIA KHAN AND ANR.

         ALLAHABAD DEVELOPMENT AUTHORITY AND ANR.                                  A
                                       v.
                          SABIA KHAN AND ANR.

                                JULY 11, 2006

               [S.B. SINHA AND DAL VEER BHANDARI, JJ.)                             B


      UP. Water Supply & Sewage Act, 1975:

       Levy of various charges/fee by the Authority-Validity of-Held: High
Court without applying its mind and without arriving at a finding of fact          C
proceeded to hold that levy of such charges/fee was impermissible in law-
Pcwer ofjudicial review is limited in such matters-Under the circumstances,
all the matters are remitted to High Court for disposal afresh applying the
relevant principles of law therefor, also by impleading the State of Uttar
Pradesh and UP. Jal Sansthan as parties-Judicial Review.                           D
      The question which arose for determination before this Court in these
appeals was as to whether the charges/fee levied by the Allahabad Development
Authority were valid in la.w.

      Allowing the appeals, the Court                                              E
      HELD:l.I. Without applying its mind to all aspects of the matter relating
to applicability of the charges/fee, High Court proceeded to hold the same as
impermissible in law without arriving at any finding to that effect. [453-F[

      1.2. The High Court could have struck down the levy on arriving at a         p
finding of fact that levy~ng of such fee was not justified but the High Court
should not have proceecled on the basis that all the applicants would be keeping
the building materials on their own lands or on private lands. The High Court,
furthermore, applied a wrong test in giving its opinion. [453-G]

      2. While dealing with the constitutionality and/or applicability/legality    G
of a Statute and/or the rules and regulations framed thereunder, the power of
judicial review is limited. The High Court ought to have applied its mind having
regard to the well settled principles in regard thereto and as laid down by
this Court in various decisions. In any view of the matter, the said finding

                                      451                                          H
    452                    SUPREME COURT REPORT', [2006] SUPP. 3 S.C.R.

A could not have been arrived at by the High Court in absence of the State as a
    party in the writ petition.1454-C-DI

          3.1. The High Court should consider the writ petitions filed by the
    respondents and other connected matters, if any, applying the relevant
    principles applicable therefor. The matters are remitted to the High Court
B   for consideration afresh by impleading the State of Uttar Pradesh and U.P.
    Jal Sansthan as parties. 1454-E, F, G, HI

         3.2. It is clarified that this Court has not applied its mind to the rival
    contentions of the parties and all the contentions of the parties shall remain
C   open before the High Court 1455-AI

          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4351 of2004.

          From the Judgment and Order dated I. 7.2003 of the High Court of
    Allahabad, in Civil Misc. Writ Petition No. 232381/2001.  ..         •

D                                       WITH

          C.A. Nos. 4352,4389,4391,4392,4393,4394,4397,4399,4401,4402-4403/
    2004,5151,5455/05,7511,7512 and 7513/2004.

          M.N. Krishnamani, S. Markandey, Rakesh Uttamchandra Upadhyay (for
E Gopal Balwant Sathe,) A.K. Misra, K.K. Tyagi, Sarada, Afteehar Ahmad, P.
    Narasimhan, Madhu Tewatia, Chander Shekhar Ashri, Pramod Swamp,
    Kamlendra Misra, Anuvrat Sharma, Rajeev Dubey, Mukesh Verma, K.C. Jain,
    E.C. Agrawala, Mahesh Agarwal, Rishi Agrawal, Manu Krishnan, Jayant
    Kumar, H.K. Puri, R.P. Wadhwani, S.K. Verma, Ajay K. Agarwal and Prashant
F   Kumar for the appearing parties.

          The Judgment of the Court was delivered by

          S.B. SINHA, J. C.A.Nos. 4351/2004, 4352/2004, 4402-4403/2004, 4389/
    2004, 4391/2004, 4392/2004, 4394/2004, 4397/2004, 4393/2004.
G         These appeals are directed against the common judgment and order
    dated I. 7.2003 passed by the Division Bench of the Allahabad High Court in
    the writ petitions filed by the respondents herein questioning the legality/
    validity of the following rates/charges levied by the first appellant herein
    namely:
H         (I) Water Charges
 ALLAHABAD DEVELOPMENT AUTHORITY v. SABIA KHAN [SINHA, J.] 453

      (2) Malwa Charges                                                            A
      (3) Sub-Division Charges
      (4) Development Charges
      (5) Open space charges

      In the writ petitions filed before the High Court only the first appellant   B
herein and its Zonal officers were impleaded as parties. The State of Uttar
Pradesh and even the U. P. Jal Sansthan, another statutory body constituted
under the provisions of UP. Water Supply & Sewage Act, 1975 were not
impleaded therein as parties.

       The Division Bench of the High Court allowed the writ petitions µrimiarily
                                                                                   c
on the premises that the Court can take 'judical Cognizance' of certain facts,
stating "we may notice that in relation to the water charges it was opined that
as water is supplied by the U.P. Jal Sansthan, constiuted under the U.P. Water
Supply & Sewage Act, 1975, the first appellant herein has no water works of
its own."                                                                         D
       It was pointed out before us that the water charges are collected by the
first appellant herein and the sums so collected are handed over to the Jal
Sansthan, the details whereof are stated in Annexure A- I to the rejoinder
affidavit filed by the appellant to the counter affidavit of the respondents. The
High Court did not apply its mind to this aspect of the matter at all.            E
      Similarly without applying its mind to all aspects of the matter relating
to applicability of the charge/fee, the High Court proceeded to hold that the
same was impermissible in Jaw without arriving at a finding that the petitioners
therein have not been keeping the building materails on the land of the            F
authority or on a public street or public place.

      In a given case, therefore, the High Court could have struck down the
levy on arriving at a finding of fact that levying of such fee was not jusitified
but the High Court should not have proceeded on the basis that all the
applicants would be keeping the building materials on their own lands or on G
private lands. The High Court, furthermore, applied a wrong test in opining:

            "It is well known that in U.P., and perhaps in many other States,
        whenever a person applies for sanction of a map for constructing a
        building or room the authorities demand bribe, otherwise the map wiil
        not be sanctioned and all kinds of hyper technical objections are H
    454                    SUPREME COURT REPORTS [2006] SUPP. 3 S.C.R.

A           raised. It is common knowledge that almost every Municipality or
            local authority in the country has fixed a rate of this bribe for
            sanctioning a map. One has to pay a hefty sum of money to the
            Municipality or Development authority officials if one wishes to get
            a map sanctioned for constructing a building or room, and if one does
            not pay this amount the map will not be sanctioned come that may.
B           How long the citizens of this country will tolerate this scandalous
            state of affairs is anyone guess. The times has now come when it has
            become the duty of the Court to intervene in this disgraceful state of
            affairs and voice its protest. The judiciary has to speak out of behalf
            of the people in such matters and bring them out to the notice of the
c           people at the helm of the affairs."

           While dealing with constitutionality and/or applicability/legality of a
    Statute and/or the rules and regulations framed thereunder, the power of
    judicial review is limited.

D         The High Court in our poinion ought to have applied its mind having
    regard to the well settled principle in regard thereto and as laid down by this
    Court in various decisions. In any view of the matter, the said finding could
    not have been arrived at by the High Court in absence of the State of Uttar
    Pradesh as a party in the writ petition.

E         We are, therefore, of the opinion that the impugned judgment cannot
    be sustained. In our opinion the High Court should consider the writ petitions
    filed by the respondents and other connected matters, if any, applying the
    relevant principles applicable therefor.

          The impugned judgments are, therefore, set aside. The appeals are
F allowed and the matters are remitted to the High Court for consideration of
    the matters afresh.

           Keeping in view the peculiar facts and cirucmstances of this case and
    having regard to the contentions raised at the Bar that the levies imposed by
G   the appellant No. I are illegal, we would request the High Court to consider
    the desirability of disposing of the matters as expeditiously as possible and
    preferably within a period of four months from the date of communications
    of this order.

          It goes without saying that the State of Uttar Pradesh and the UP. Jal
H Sansthan shall be impleaded as parties. Mr. Markandaya, learned senior counsel
      ALLAHABAD DEVELOPMENT AUTHORITY v. SABIA KHAN [SINHA, J.] 455

     appearing on behalf of the State of Uttar Pradesh states before us that the        A
     State ofU.P. shall appear before the High Court. A notice be sent by the High
     Court to Jal Sansthan. We may furthermore observe that this court has not
     applied its mind to the rival contentions of the parties and all the contentions
     of the parties shall remain open before the High Court.

           C.A. Nos. 4399/2004, 440112004, 7511/2004, 7512/2004, 7513/2004, 54551       B
     2005, 5151/2005.

           In view of our judgment in Allahabad Development Authority and Anr.
     v. Sabia Khan and Anr., Civil Appeal No. 4351/2004, the interim orders passed
     in these appeals cannot be sustained and are set aside accordingly. The
     appeals are allowed. However, it would be open to the High Court to consider       C
     the matter afresh.

     S.K.S.                                                       Appeals allowed.




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