G.B. Pattnaik, J.
1. This writ application is in the nature of a public interest litigation wherein the authority of the State Government as well as the Cuttack Development Authority to impose a fee called 'front-end-fee' of Rs. 5.000/- as a condition precedent for approval of a building plan is being challenged.
2. It is contended that when a citizen seeks permission to construct a house in accordance with the provisions of the Orissa Development Authorities Act, it is not open for the competent authority to demand a sum of Rs. 5,000/- as front-end-fee as a condition precedent for applying for permission as neither the statute nor the rules made there- under authorise the levy in question It is further contended that such levy is arbitrary and grossly excessive, unreasonable and is a whimsical act of the authorities and consequently must be held to be unconstitutional, invalid and inoperative and must be struck down. The order of the Planning Member of the Cuttack Development Authority requiring such deposit as a condition precedent for processing of the application for permission to build up a house has been annexed as Annexure-1.
3. The State of Orissa (opp. party No. 1) has filed a return stating therein that for rapid development and proper regulation of water supply and sewerage sarvices in the State, the Orissa State Legislature have enacted a law called the Orissa Water Supply and Seweraga Board Act, 1991 (Orissa Act 12 of 1991) (hereinafter called the 'Water Supply Act'). Under the said Act a Board has been constituted called the 'Orissa Water Suppiy and Sewerage Board'. The Board has been empowered under the Act to prepare schemes for water supply and to lay down the schedule of fees and other charges for all kinds of services rendered by the Board to the State Government, Local Bodies, Institutions or individuals. The said Board having levied the aforesaid fee of Rs. 5,000/-, the State Government has issued the direction that payment of Rs. 5,000/- with the Board must be made a condition prece- dent for processing any application for approval of the Plan. It has been further stated that the Board with due approval of the State Government having borrowed loans from HUDCO for Water Supply Schemes in Urban areas, unless such levy is made and collected, it will not be possible to repay the loan in question. According to the State Government, the fee that is being charged as front-end-fee is for the services to be rendered by the Water Supply and Sewerage Board and there is no infirmity with the levy in question.
4. The Water Supply and Sewerage Board was initially not a party to the writ application, but on being impleaded as a party pursuant to an application filed by the Board a counter affidavit has been filed on behalf of the Board. The stand taken in the counter affidavit of the Board is that the Board having been constituted on 24-7-1991 has takan up the implementation of the Water Supply Schemes in eleven major towns in Orissa including Cuttack. So far as Cuttack is concerned, the Board entrusted the work of preparing a detailed project report for Water Supply Scheme to a Management Consultant in New Delhi, who in the meantime has submitted a detailed project report and the estimated cost of implementing the Scheme of Water Supply to Cuttack City will be Rs. 2,857/- lakhs. The said Consultant has also furnished a cash-flow statement and while calculating the estimated cost of the project and its repayment schedule it has taken into account the levy of Rs. 5,000/- towards front-end.fee from each connection in Cuttack Town on cost-effective basis. On the basis of the aforesaid report of the Consultant, the Board has given its proposal of the levy of front-end- fee which has been duly approved by the State Government and the State Government in its stand has issued the Circular to the Cuttack , Development Authority for raising the demand in question as a condition precedent for processing an application for construction of a house within the Cuttack City. According to the Board, Section 16 of the Water Supply Act fully authorises the Board to make such levy and therefore there is no illegality or unconstitutionally in the levy in question.
5. In course of hearing of this writ application Mr. Palit for the petitioner and Mr. Mohapatra for the Board and learned Additional Government Advocate tor the State reiterated their respective stands. According to Mr. Palit neither the Orissa Water Supply and Sewerage Board Act nor the Orissa Development Authorities Act confers any authority on the Cuttack Development Authority of the Board to . levy the front-end-fee as a condition precedent for processing an application for construction of a building within Cuttack City and, therefore, the Impugned order is without jurisdiction. He further contends that the Resolution of the Government of Orissa in the Housing and Urban Development Department dated 31st March, 1994, which has been annexed as Annexure-3, also indicates that the Government decided to impose front-end-fee of Rs. 5,000/- for all new water supply connections to each individual holding. That being the position imposition of or direction to collect Rs. 5,000/- from each applicant before approval of a building plan is unauthorised and without jurisdi- ction and accordingly cannot be sustained.
Mr. Mohapatra appearing for the Orissa Water Supply and Sewerage Board, on the other hand, places before us the provisions of Sections 16, 17 and 23 of the Water Supply Act and contends that there is enough authority with the Board to make the levy in question and when the levy has been made taking into account the services to be rendered by the Board for supply of water to the inhabitants of the town, the same cannot be held to be illegal and invalid and inoperative nor can it be held to be unconstitutional in any manner and, on the other hand, is in the larger interest of the inhabitants of the town and, therefore, should not be interfered with.
6. From the rival contentions of the parties and the stand taken in the affidavits filed by them, it is crystal clear that the levy in question is sought to be a levy of fee and not tax and, therefore, the question that arises for consideration is whether such fee could be levied as a condition precedent for considering an application for construction of a bulding or it can be levied only when any inhabitant intends to take water connection ?
Section 15 of the Orissa Watar Supply and Sewerage Board Act, 1991, provides the duties and functions on the Board, one of the duties being to prepare draft plans for water supply, sewerage and drainage on the directions of the State Government. Section 16 enumerates the power of the Board and Section 16(2)(e) confers power on the Board to lay down the schedule of fees and other charges for all kinds of services rendered by the Board to the State Government, local bodies, institutions or individuals. Under Section 17 of the Act, the Board is entitled to give such directions to any local body with regard to implementation of any water supply or sewerage scheme financed by it as it thinks fit. Sac. 23 is the power of the State Government to issue directions to the Board and the local bodies far co-ordination of the activities of the board and other local bodies. Section 36 of the Act contained in Chapter-V authorises the Board to fix the costs of water to be supplied according to volume and also the minimum cost to be charged in respect of each connection in consultation with the State Government.
Examining the aforesaid provisions of the Orissa Water Supply and Sewerage Board Act, the conclusion is irresistible that that the Board can lay. down the schedule of fees and other charges for services rendered by the Board to the State Government, local bodies, institutions or individuals and it can also by notification in the Official Gazette fix the cost of water to be supplied according to volume and also the minimum cost to be charged in respect of each connection. From the counter affidavit filed on behalf of the Board (opp. party No. 3) it is established that the Board has taken loan from HUDCO for implementation of the water supply scheme and a huge amount is being spent for the implementation of the scheme. But notwithstanding the same, we have failed to locate any power with the Board within the four corners of the Orissa Water Supply and Sewerage Board Act to levy a front-end-fee of Rs. 5,000/- as a condition precedent for considering an application for construction of a building. In fact, there is no such power with the Board under the Act in question and, therefore, the State Government could not have issued such a direction in the purported exercise of power Under Section 23 of the Orissa Water Supply and Sewerage Board Act. Then again, under the Orissa Development Authorities Act, 1982 (Orissa Act 14 of 1982). there is no provision which makes it obligatory on the part of a person intending to construct a building to take water supply connection provided for in the town, nor is there any provision there in which authorises the Development Authority to insist upon the payment of a fee called 'front-end-fee' before considering an application for sanction of building-plan. In the absence of any such provision in the Orissa Development Authorities Act, the impugned direction as contained in Annaxure-1 must be held to be without jurisdiction. Further the resolution of the Government of Orissa in the Housing and Urban Development Department dated 31st of March, 1994, clearly indicates that for timely repayment of loan to HUDCO and to get the financial assistance from HUDCO on a continuous basis for other towns. Government decided to impose front-end-fee for all new water supply connections to each individual house. Such a decision does not authorise either the Government or the Development Authority to insist upon payment of Rs. 5,000/- as a condition precedent for considering application for sanction of plan for construction of building. An application for sanction of plan for construction of building has to be dealt with by the Development Authority under the Orissa Development Authorities Act and if under the said Act no power has been conferred to make the demand*, the demand must be held to be without jurisdiction. Therefore, neither the State Government nor the Cuttack Development Authority, nor even the Water Supply and Sewerage Board has the power to demand a sum of Rs. 5,000/-as front-end fee as a condition precedent for making an application for approval of a building plan and, therefore, the said direction under Annexure-1 must be held to be without jurisdiction. We accordingly quash the same.
The writ application is allowed. There will, however, be no order as to costs.
R.K. Patra, J.
7. I agree.