AI Structured Summary
Not yet generated for this judgment
Judgment
N.K. Patil, J.—With consent of the learned Counsel for Petitioners and the learned Counsel for Respondents this matter is taken up for final hearing.
The Petitioners seeking declaration declaring that the claim for an additional amount at 10% of the total towards water charges over and above the value notified as per Annexure-A notification dated 21.5.1998 in No. MUDA:CAS:98-99 as unconstitutional, arbitrary and without authority of law and further they have prayed to quash the claims/allotment intimation as per Annexures-B to J, respectively, in so far as it relates to water charges/cess.
The Respondent No. 1-Mysore Urban Development Authority, Mysore, issued a notification dated 21.5.1998 inviting the application from eligible institutions for allotment of Civic Amenities Sites as per the Karnataka Urban Development Authorities (Allotment of Civic Amenity Sites) Rules, 1991, (hereinafter referred to as "the Rules"). The first, second and seventh Petitioners are the public charitable trusts and other Petitioners are the Registered Societies. The Petitioners being eligible for allotment of CA Sites have filed their respective applications for allotment of CA Sites. Accordingly, the first Respondent has allotted the CA Sites to each of the Petitioners. The particulars are as follows:
Sl. No., Site No. and Measurement, Layout, Purpose of Allotment, Letter of Allotment as Annexes PET. 1 14-D-1901. 25 Sq. Mts. Vijayanagar II Stage, Mysore, Commercial, 28.6.1999 Annexure B PET. 2 4- 1880 Sq. Mts., Bhogadhi, Yashodhara Hindi, HBCS Mysore,Girls Residential School, 26.3.1999 Annexure C PET. 3 2C-2 2170.13 Sq. Mts., Vijayanagar III Phase A-1 Block, Mysore, Kannada Medium School, 30.10.1999 Annexure D PET. 4 CA 2A-D 1080 Sq. Mts., Hebbal II Phase, Mysore, Kannada Medium School, 22.10.1999 Annexure E PET. 5 14-A 937.5 Sq. Mts., Vijayanagar III Phase, A Block,, Mysore, Yoga School, 30.10.1999 Annexure F PET. 6 3- 3816 Sq. Mts., Mahadeshwara Layout (Hebbal), Community Hall, 26.4.1999/ 6.4.1999 Annexure G PET. 7 4- 1611 Sq. Mts., Mahadeshwara Layout (Hebbal), Co-operative Hospital, 5.3.1999 Annexure H PET. 8 1, Devana Horu HUDCO III Phase, Community Hall, 26.3.1999 Annexure J
As per the notification dated 21.5.1998 issued by the first Respondent vide Annexure-A, the total lease amount payable both in one lumpsum and in instalments for each of the sites available for allotment. The first Respondent-Board, after scrutinising the applications filed by these Petitioners and after satisfying, allotted six Civic Amenity Sites, in question, to all these Petitioners and accordingly communicated the allotment intimation as per Annexures-B to J, respectively. At the time of allotment of intimation, the Respondents have demanded an additional amount calculated @ 10% of the total costs of the CA sites. The details of the amount claimed from each of the Petitioners and the lease amount published as per Annexure-A are as follows:
Sl. No., Lease Amount as per Annexure-A (a) Payable in Lumpsum (b) Payable in 10 instalments (c) Additional yearly lease amount, Lease Amount towards site (a) Payable in lumpsum (b) Payable in 10 instalments (c) Additional yearly lease amount, Cost towards water charges `Rs. Rs. Rs. Pet-1, The Petitioner is allotted a CA Site after dividing a notified site, a) 10,64,700 b) 1,32,533 c) 1,902, 1,06,470 Pet-2, a) 10,52,800 b) 1,32,970 c) 1,880, a) 10,52,800 b) 1,32,970 c) 1,880, Pet-3, The Petitioner is allotted a CA Site after dividing a notified site, a) 12,15,273 b) 1,53,540 c) 2,171, 1,21,528 Pet-4, The Petitioner is allotted a CA Site after dividing a notified site, a) 6,04,800 b) 81,444 c) 1,080, 60,480 Pet-5, The Petitioner is allotted a CA Site after dividing a notified site, a) 5,25,000 b) 66,308 c) 938, 52,530 Pet-6, a) 21,36,960 b) 2,69,900 c) 3,820, a) 21,36,960 2,69,900 c) 3,820, Pet-6, a) 8,94,900 b) 1,13,025 c) 1,600, a) 9,02,496 b) 1,13,025 c) 1,612, 90,250 Pet-7, a) 7,85,270 b) 99,165 c) 1,405, a) 7,85,232 b) 99,170 c) 1,405, 78,524
Accordingly, all the Petitioners, except 5th Petitioner, have deposited the first instalment amount. In spite of paying the first instalment as per the notification, the first Respondent has refused to deliver the possession of the respective CA sites to the Petitioners and instead of that the Respondent No. 1 had issued an endorsement dated 24.12.2001 informing the Petitioners that the possession would be delivered only when the Petitioners pay water charges within 15 days.
Assailing the correctness of the amount calculated at the rate of 10% of the total costs of the CA sites allotted to these Petitioners, the instant writ petitions have been filed by these Petitioners.
The principal submission canvassed by the learned Counsel for the Petitioners that in pursuance of the notification issued by the first Respondent for allotment of CA Sites, the Petitioners have made their applications and they are ready and willing to pay the lease amount as enunciated in the notification dated 21.5.1998. However, it is surprise to came to know that the first Respondent without any basis of justification has claimed the additional 10% of the additional water charges/cess, contrary to the relevant provisions of the Rules and the same is not permissible.
Further, it is pointed out that the value per sq. mt. is calculated on the basis of an estimate prepared taking into consideration the costs towards survey work, formation of roads, metalling and asphalting of roads, construction of masonry box drain, providing requisite drains as per plan amongst others. A separate estimate towards providing water to the total number of sites is also prepared and the same is included in the final estimate. Once it is included in the scheme it is not open for the Respondent No. 1 to claim the additional charges of 10% towards water charges/cess and the said costs are already included in the lease amount, is arbitrary, un-reasonable and unconstitutional.
Further, the learned Counsel for the Petitioners pointed out that the Respondents herein had allotted several sites in different layouts at Mysore City. The other sites are allotted on the basis of the value per sq. mt. as notified in Annexure-A. But the additional levy/amount towards water charges is claimed only from the allottees of the CA Sites and in respect of the Petitioners only. As such, the said claim for an additional amount @ 10% of the total charges towards water charges/cess is discriminatory and is in violation of the Article 14 of the Constitution of India.
Lastly, the learned Counsel for Petitioners placed reliance on the decision of this Court reported in AIR 1999 Kar 18 (S. Chandrashekar and Ors. v. Bangalore City Corporation and Ors.), wherein this Court held thus:
Levy of water cess/fee, powers of Corporation, Cauvery Water Supply Scheme undertaken by Bangalore Water Supply and Sewerage Board, Order of Corporation levying fee/cess or surcharge for purpose of raising money to advance loan to Board for executing said Scheme. Said levy neither authorised by any Government order nor by provisions of Act, is without authority. Notices demanding same quashed.
Per contra, the learned Counsel for first Respondent, inter-alia, contended and justified the impugned demand made in the allotment notice sent to these Petitioners. Except justifying the same he is unable to persuade this Court to point out that the Respondent-Board has got power to demand the additional water charges/cess @ 10% of the costs of the CA sites allotted to these Petitioners. Further it may be noticed that in spite of giving several adjournments for more than 10 times by this Court and on earlier occasion 3 times, the Respondent No. 1 has not chosen to file the statement of objection, in spite of giving sufficient opportunity to the first Respondent to justify their claim. This conduct itself suffice for this Court to accept the submission made by the learned Counsel for the Petitioners and to grant the prayer as sought for by the Petitioners.
The questions that arise for my consideration are as follows:
(1) Whether the first Respondent has got power to demand an additional amount @ 10% of the total costs of the CA Sites allotted to these Petitioners in pursuance of the notification issued by it as per Annexure-A?
(2) Whether the said demand made by the first Respondent vide allotment communication to these Petitioners is in accordance with the Rules?
Re. Point No. 1:
As per the Notification issued by the first Respondent, wherein it is clearly stated the terms and conditions for allotment of CA Sites strictly in accordance with the Rules. But, it is relevant to point out that as per the notification issued by the first Respondent dated 21.5.1998, there is no such condition regarding payment of additional amount @ 10% of the total costs of the CA Sites towards water charges/cess at the time of executing the lease agreement in favour of these Petitioners.
The learned Counsel for the Petitioners has rightly pointed out that the said demand made by the first Respondent is one without authority of law and Rules. Hence, in my considered view the said additional amount @ 10% of the total costs of the CA Sites towards water charges/cess, as demanded by the first Respondent, is contrary to the relevant provisions of the Rules and the same is one without authority of law. Therefore, it is not sustainable.
Further, it is significant to note here that any fee or cess or whatever modes, i.e., levied by the executive order is unsustainable in law as the same do not have any sanction of law, because once the scheme has been sanctioned by the Government for formation of layout, the estimate in respect of the entire layout will be included once it is collected. Thereafter, the Authorities have got no power to demand the additional amount @ 10% of the total costs of the CA Sites towards water charges/cess, on the basis of the instructions, is not permissible.
Further, it reveals from the records that the matter has not been placed before the Authority or the authority has taken any decision regarding demand of additional amount @ 10% of the total costs of the CA Sites towards water charges/cess, in the instant case. As stated supra, in the case on hand, the State Government has not even issued any order in exercise of its executive power authorising the Authority to raise the additional amount @ 10% of the total costs of the CA Sites towards water charges/cess. In the absence of any provisions under the Rules, the first Respondent-Board has no right to demand the additional amount @ 10% of the total costs of the CA Sites towards water charges/cess, from these Petitioners contrary to their own notification and contrary to the Rules. Therefore, keeping in view all the facts and circumstances of the case, in my considered view, there is no justification for the first Respondent-Board to demand an additional amount @ 10% of the total costs of the CA Sites towards water charges/cess which is contrary to the Rules. Hence, the impugned notice is hereby declared as null and void.
Secondly, as pointed out by the learned Counsel for the Petitioners that in respect of the CA Sites allotted in Mysore City with respect to the other allottees the first Respondent-Board has not demanded additional amount @ 10% of the total costs of the CA Sites towards water charges/cess. Once they have not collected the said amount from the allottees of the other CA sites, it is not open for the first Respondent to pick and choose and make demand in respect of the Petitioners. As such the demand made by the first Respondent is discriminatory and violative of Articles 14 of the Constitution of India. Therefore, on this ground also the impugned demand made by the first Respondent-Board is not sustainable.
Having regard to the factual and legal aspects and in view of the law laid down by the Apex Court and by this Court time and again, the Respondents are not justified the demand of additional amount @ 10% of the total costs of the CA Sites towards water charges/cess. Accordingly, the writ petitions filed by the Petitioners liable to succeed.
For the reasons as stated above, the writ petitions filed by the Petitioners are allowed. The impugned demand made by the first Respondent - Board dated 21.5.1998 in No. MUDA:CAS:98-99, to pay additional amount @ 10% of the total costs of the CA Sites towards water charges/cess, is hereby quashed. The first Respondent-Board is hereby directed to collect the lease amount as per the notification dated 21.5.1998 and as per the Rules.