Ashok Bhan, J.
1. In the State of Punjab, three town Amritsar, Jalandhar and Ludhiana have municipal corporations and are governed by Punjab Municipal Corporation Act, 1976, whereas in other towns there are municipal committee governed by the Punjab Municipal Act, 1911. Two sets of writ petitions were filed, one by the residents of Ludhiana Municipal Corporation and others by the residents of various other municipal committees, which are disposed of by this common judgment. The challenge in all these writ petitions was to the imposition of charges levied for meeting the expenses of laying down sewerage in the State of Punjab, Since most of the arguments in these two sets of cases were common, the two sets were disposed of by a common judgment and basically the facts were taken from the writ petition pertaining to Municipal Corporation Ludhiana In the later part of the judgment, the learned Single Judge discussed separately the points urged with regard to the residents of municipal committee which are governed under the Punjab Municipal Act 1911 (hereinafter referred to as the 1911 Act). The writ petitions were dismissed by the learned Single Judge. The letters patent appeal under consideration arise out of C.W.P. 1431 of 1988, filed by the residents of Municipal Committee, Patiala. C.W.P No. 5178 of 1990 titled as Sher Singh and Ors. v. State of Punjab, which has been filed by the residents of Municipal Committee Zira district Ferozepur, is also being disposed of by this judgment as counsel for the parties agreed that the decision rendered in the letters patent appeal, would also govern the fate of C W.P. No. 5178 of 1990. The facts are being stated from the letters patent appeal.
2. Appellants claiming themselves to be the representatives of residents of Patiala, filed the petition in a representative capacity challenging the levying of sewerage charges vide notification Annexure P/4 dated 24-2-1982 equivalent to the water bill in a particular month on the ground that the municipal committee had no jurisdiction to levy such charges as the same was illegal, unjust, without authority amounting to double taxation and against the bye-laws and the provisions contained in the Punjab Municipal Act relating to taxes ; it was further averred that the municipal committee was statutorily bound to provide the basic amenities to the residents of the city such as provisions of the water, sanitation, drainage and sewerage etc; that the municipal committee was already charging tax from its residents in the form of house tax, water tax and other allied taxes and, therefore, there was no justification in levying sewerage charges equivalent to the water bill. The appellants have not taken a clear stand as to whether the levy of sewerage charges was a tax or a fee. At the time of arguments before us, counsel for the appellants categorically stated that he would proceed in the matter treating the levy of sewerage charges to be a fee and not a tax Counsel for the appellants submitted that such a fee could not be levied as the Municipal Committee had no authority to levy the same; that even if the municipal committee had the authority to levy fee, the same had not been levied after following the procedure laid down in the Act. Lastly, it was submitted that the taxes collected are merged in the general revenue of the State to be applied for the general purposes but fees on the other hand are used in the public interest and for some special service rendered involving an element of quid pro quo that in the present case there was no quid pro quo and nexus between the service rendered and the charges levied.
3. As against this, the stand taken by the respondents (which is based on their written statement) is that the levying of sewerage charges was in the nature of fee and not tax and the same was legal and just and the committee levied the sewerage charges equal to the water charges after following the procedure laid down in the 1911 Act; it was further submitted that the committee is a statutory body which is to provide basic amenities to the residents such as roads, provisions for water and sewerage for which the committee has to maintain a special drainage system and treating plant and therefore; has to spend huge amount; that the drainage system for providing flush system facilities was provided after raising loans from the Life Insurance Corporation of India and after getting aid from the World Bank in Punjab. The aid was provided in the form of loan at reduced rate of interest payable in easy instalments. Provisions of underground water supply and sewerage facility is a very costly exercise and cannot normally be undertaken by a local body without massive financial assistance. The extension of existing water supply and sewerage facilities in the City of Patiala was taken on an ambitious scale under the World Bank Project which covered Ludhiana. Jalandhar, Amritsar, Rajpura, Patiala, Bhatinda, Moga and Pathankot. The total out-lay of the project was Rs. 66.7 crores. A loan of Rs. 1,04,40,900 00 was received by the municipal committee and the payment of the same was to be made as per schedule fixed, a copy of which is attached as Annexure R/1; it was further averred that separate drainage and sewerage bye-laws were framed in the year 1978 under the Punjab Municipal Act and the sewerage charges equal to water charges were approved by the Government in November 1978 and the impugned notification Annexure P/4 amending the bye-laws was approved by the Government and thereafter the sewerage charges became payable as per the amended notification Annexure P/4. It was argued that the water charges had been levied after following the procedure laid down in the Act and bye-laws; that the municipal committee had the jurisdiction to levy the sewerage charges.
4. We have examined the various contentions raised at the time of arguments before us.
5. Municipal Committees in Punjab are governed by the 1911 Act. Section 61 of the 1911 Act deals with the taxation powers and the same reads as under :--
'61. Taxes which may be imposed:--Subject to any general or special orders which the State Government may make in this behalf, and to the rules, any committee may, from time to time for the purposes of this Act, and in the manner directed by this Act, impose in the whole or any part of the municipality any of the following taxes, namely :--
(1) (a) a tax payable by the owner, on buildings and lands--
(i) not exceeding 12 per centum of the annual value ;
(ii) not exceeding one anna, per square yard of the ground area ; or
(iii) not exceeding three rupees, per running foot of frontage in streets or bazars ;
Provided that in the case of lands and buildings occupied by tenants in perpetuity, the tax shall be payable by such tenants :
(b) a tax on persons practising any profession or art or carrying on any trade or calling in the municipality ;
Explanation-A person in the service of the Government or person holding an office Under the State Government or the Central Government or a local or other public authority shall be deemed to be practicing a profession within the meaning of this sub-clause
(c) a tax payable by the owner, on all or any vehicles other than motor vehicles animals used for riding, draught or burden, and dogs, when such vehicles, animals used as aforesaid, and dogs are kept within the municipality;
(d) a tax, payable by the employer, on menial domestic servants;
(e) a tax, payable by the occupier of any buildings in respect of which the committee has, in exercise of the powers conferred by Sections 159 to 165 of this Act, undertaken the house scavenging ;
(ee) in addition to the tax imposed under clause (a), scavenging tax, payable by the occupier, on buildings and lands of such percentage of the annual value thereof as the State Government may, by notification declare to be reasonable for providing for the collection, removal and disposal by the committee of all filth and polluted obnoxious matter from latrines, urinals, cess-pools and for efficiency maintaining and repairing the municipal drains constructed or used for the reception or conveyance of such filth or polluted and obnoxious matters
(f) a tax payable by persons presenting building applications to the committee:
Provided that a committee shall not impose any tax without the previous sanction of the State Government when--
(i) it consists of members less than three fourths of whom have been elected ; or
(ii) its cash balances have, at any time within the three months preceding the date of the passing of the resolution imposing the tax, fallen below Rs. 20,000/- or one tenth of the income accrued in the previous financial year whichever amount shall be less.
(2) Save as provided in the foregoing clause, with the previous sanction of the State Government any other tax which State Legislature has power to impose in the State under the Constitution.
(3) Omitted.
Nothing in this section shall authorise the imposition of any tax which the State Legislature has no power to impose in the State under the Constitution.
Provided that a committee which immediately before the commencement of Constitution was lawfully levying any such tax under this section as then in force, may continue to levy that tax until provision to the contrary is made by Parliament.
Explanation.--In this section 'tax' includes any duty, cess or fee.
6. Section 61 of the 1911 Act slates that subject to any general or special orders which the State Government may make in this behalf, and to the rules, any committee may, from time to time for the purposes of this Act, and in the manner directed by this Act, impose in the whole or any part of the municipality any of the taxes which have have been enumerated in Sub-section (1) of Section 61 of the 1911 Act. Sub section (2) provides that the municipal committee with the previous sanction of the State Govt. may impose any other tax, which the State Legislature has the power to impose in the Stale under the Constitution. Explanation to section 61 says that 'tax ' includes any duty, cess or fee Section 62 lays down the procedure which has to be followed to impose taxes ; section 62-A deals with, the power of the Government in taxation whereby the State Government, by notification in the official gazette, require a Committee to impose any tax mentioned in section 61, not already imposed at such rate and within such period as may be specified in the notification and thereafter the Committee is bound to act accordingly. Section 188 deals with the frame of the General bye-laws which provides for the scavenging, removal and disposal of all rubbish, filth, night soil, silage or sewage in the buildings and for making provisions generally for carrying out the purposes of the Act. Section 200 of the Act provides that all bye-laws made under this Act, would be subject to previous publication. Section 201 provides that no bye laws made under any section of this chapter shall come into force untill it is confirmed by the State Government and, published for such time and in such manner as the State Government may prescribe in this behalf.
7. In this back-drop of the provisions of the Act, it has to be examined as to whether the Municipal Committee has levied the sewerage charge in accordance with law or not. Explanation to section 61 clearly states that in this section 'tax' includes any duty, cess or fee. The next point to be examined is as to whether the State Government has power to legislate on the matter regarding sanitation or not because primarily sewerage system deals with providing sanitation in a city.
8 Article 246 of the Constitution of India deals with the legislative powers of the Parliament of India and that of the State Legislatures. On subjects enumerated in List-I of the Seventh Schedule, that is the Union List only the Parliament has the power to legislate. On the matters enumerated in List-II in the Seventh Schedule, only the State Legislatures have the power to legislate. On the concurrent List, that is List-III, both Parliament and the State Legislatures have the powers to legislate but the same is subject to certain riders which have been mentioned in the Constitution itself Entry 6 in the State List provides as under :--
'Public health and sanitation ; hospitals and dispensaries.'
The three lists given in the Seventh-Schedule of the Constitution of India provides the legislative heads under which the powers have been conferred on the Parliament and the State legislatures From entry 6 in the State List it is clear that sanitation falls under List-II. The State Legislature has the jurisdiction to make laws with respect to it. Keeping in view Sub-clause (2) of Section 61 of 1911 Act, the Municipal Committee can levy any tax, which the State Legislature has the power to impose in the State under the Constitution but with the previous sanction of the State Govt. Since the State Legislature has the power to impose tax in the State regarding sanitation, the municipal committee can also impose the same ipso facts but with the previous sanction of the State Govt. The next question to be seen is as to whether the sewerage charges have been levied after getting the previous sanction of the State Govt. or not and further as to whether the amendment envisaging the increase in the sewerage charges by the impugned notification Annexure P/4 has been made with the previous sanction of the State Govt. or not. In para 8 of the written statement filed, it has been specifically averred and which has not been controverted that separate drainage and sewerage bye-laws were framed as back as in the year 1978 under the Punjab Municipal Act and the sewerage charges equal to water charges were approved by the Government in November 1978. The impugned notification Annexure P/4 superseding the earlier notification of November 1978 making amendment in the sewerage bye-laws has been done after getting sanction and confirmation from the Governor of the State as required u/s 201 of the 1911 Act. The above observation would show that Municipal Committee had jurisdiction to impose sewerage charges and the same were imposed after getting previous sanction of the State Govt. as provided in Sub. C1 (2) of section 61 r.w. sections 188 and 201 of the 1911 Act. Since the sewerage Charges are not lax but fee, the next question for consideration is as to whether the Municipal Committee can levy such fee under the Act or the Constitution. Entry 66 of the State List reads as under :--
'Fees in respect of any of the matters in this List, but not including fees taken in any Court.'
It is on the basis of this entry r. w. explanation to 61, 188 and 201. It was argued on behalf of the respondents that fees on the subjects covered by all the entries of List II of seventh Schedule, can be charged by the Municipal Committee as can be charged by the State Entry 6 of the State List provides for sanitation. Sewerage is an act of sanitation as mentioned in Entry 6 of List II and therefore, the fees could be collected by levying sewerage from the persons who are benefited from the sewerage system The State Legislature could impose tax under any of the legislative heads mentioned in List II and it could also levy fees in respect of any of the matters in this list, therefore, the municipal committee could also levy tax or fee on any, of the legislative heads mentioned in list II after getting previous sanction from the State Govt. in consonance with sub clause (2) of Section 61 of the 1911 Act.
9. The nest point to be considered is as to whether there is a quid pro quo and nexus between the service rendered and the charges levied. The writ petition woefully lacks in particulars of facts on this point. Except putting a challenge that there is no quid pro quo and the nexus between the service rendered and the charges levied, no other details have been given.
10. As against this, the respondents have given certain details in which it has been stated that sewerage facilities which fall under sanitation has been provided after getting aid by way of loan from the World Bank and Life Insurance Corporation of India and the Govt. Annexure R/1 to the writ petition shows that a loan of Rs. 1,04,40,900-00 was taken from the life Insurance Corporation of India on 28.2.1979. The rate of interest was 91/2%. This amount was to be paid in 22 six monthly equal instalments commencing from 1.8.1983 and ending on 1.8.2004. The first instalment of the principal amount is Rs. 4,84,575.60, which was to be paid in six months along with interest which varied with each instalment as it kept on getting less in proportion to the payment of each instalment but all the same, the interest also runs into lacs of rupees per six months. It has been categorically averred by the respondents that the sewerage charges which are being collected are very nominal and will not meet the entire expenses which the Municipal Committee has spent and other maintenance expenses for providing the flush system facilities to the inhabitants of Patiala. Under the Water (Prevention and Control of Pollution) Act, 1974, the Committee is under civic obligation to instal a treatment plant to treat the discharge of sewerage before allowing such sewerage into a stream in order to avoid pollution. Keeping in view the lack of particulars given in the writ petition on this aspect and taking into consideration the facts stated by the respondents in their written statement, it cannot be held that there is no quid pro quo or no nexus between the service rendered and the charges levied.
11. For the reasons recorded above, we find no merit in this appeal and while confirming the impugned judgment of the learned Single Judge dismiss this appeal. No costs.