Judgment:
ORDER
J.C. Verma, J.
1. Vide advertisement Issued by the Director of Estate, Government of Rajasthan, Jaipur it was notified to auction of a free land, ceiling free, vacant property known as Dr. Hellings Bungalow located at Station Road, near Khasa Kothi for setting up a hotel/ commercial complex / hotel cum commercial complex, on the conditions mentioned therein in Annexure-1. The petitioner was the successful bidder where bid was accepted and confirmed by the Government of Rajasthan for a price @ Rs. 18.815/-per sq. meter and the total price of the plot / building in question being Rs. 19,56,76,000.00. A sale-deed was also executed on 7-1-1997 vide Annexure-2. The physical possession was also transferred. Building plans are said to have been submitted by the petitioner. It is stated that the building plans were ultimately approved on 20-2-1997, but still not released. For releasing the building plans a demand of certain amount vide Annexure-5 was made i.e. charges for additional constructed area, a licence fee, inspection charges, and stacking charges with the following details.
i) Charges for additionalconstructed area Rs. 106,90,905.00ii) approval fee Rs. 41,26,982.00iii) Inspection charges Rs. 52,000.00iv) Stacking (Debris)charges Rs. 10,000.00TOTAL Rs. 148,79,887.00
2. The petitioner company protested, however. It had to deposit the said amount vide separate two pay orders on 21-4-1997 vide Annexure-6, which was duly acknowledged vide Annexure-7. It is stated that another demand in addition to the demands mentioned above of the amount of Rs. 6,42,378/- were also as penalty made for undertaking certain activities vide Annexure-9 which was without any basis as no construction development activity was undertaken by the petitioner on the said plan. Demand was made vide Annexure-9 of the said amount which is also said to have been deposited under protest.
3. The maps were not approved till 14-5-1997,
4. The management of the property was transferred to Municipal Corporation as per the powers conferred by the provisions of Section 16 r/w Sections 95, 32(3) and 63 of the Jaipur Development Authority Act in the year 1996. Certain regulations had been made in the year 1996 prescribing the bye-laws for the constructions. The JDA had framed the Jaipur Development Authority Building Regulations, 1996 prescribing procedure for construction of the building in the region and u/Section 68 of the JDA Act. Fee to be charged had also been provided for approving the map for the purpose of permission of construction of the building. The maximum permissible commercial area has been fixed as 35% under the rules with the height of 30 meters. The FAR is also prescribed, under Regulation 14.3, the applicant seeking permission is required to deposit the fees and charges as determined by the competent officer from time to time for approving the building plans.
5. The submission of the learned counsel for the petitioner is that the demand now being challenged is beyond any of the provisions under the Act or any rules or regulations and the Municipal Corporation is not competent to charge any fee from the petitioner for any alleged construction as shown in the map for approval. It is submitted that u/s 104 taxes can be levied and u/Section 105 and 127 to 129 there is a provision for levying of fee for licence and Section 156 provides levy of fees for every notice or distress. Section 138 of the Municipalities Act is analogous to Section 68 of the JDA Act which provides levy of fees for licence or permission for making any temporary construction or for putting up any projection.
6. It is the contention of the petitioner that under Article 265 of the Constitution, no tax can be collected or levied except by authority of law and authority of statute. Tax is imposed for the purpose of raising general revenue where a fee is levied for some services rendered by the State to the person concerned. It is the contention of the petitioner that the Municipal Corporation is said to have levied the so-called fee under the JDA Regulation, 1996, but there are no rules or regulations for levying of the fee as has been demanded vide letter dated 10-4-1997, as such the Municipal Corporation had acted without jurisdiction and without any statutory sanction for levy of fee. It is the submission of the petitioner that the demand, as made, is violative of the JDA Act, 1992 and the regulations made thereunder in the year 1996; it is also violative of Article 265 of the Constitution of India and Article 14 of the Constitution of India, being unconstitutional, ultra vires, bad in law, without there being any sanction of law for the imposition of such charges or fee. It is further submitted that the fee is charged as compensation for the expenses in regard to rendering service to the person from whom the fee is collected and that it has correlation to the services rendered or the advantages conferred. The principle of quid-pro-quo in the imposition of fee are not existing in the demand made, which is a sine-qua-non for the imposition of fee. It is stated that there is no services involved. It is stated that there is no correlation between the services rendered and the imposition of the fee pursuant to the notice Annexure-5. A prayer has been made that Annexures-5, 9 and 12 be quashed and further that Annexure-12 dated 9-9-1996 be declared as ultra vires of Article 265 and Article 14 of the Constitution and also Sections 65 and 68 of the Jaipur Development Authority Act, Section 138 of the Rajasthan Municipalities Act. Further prayer has been made that Regulation 14.3 of the JDA Regulations, 1996 be also declared as ultra vires with the consequent relief that the respondent be directed to refund the amount of Rs. 1,55,22,265/- with interest @ 18%.
7. Reply has been filed by the respondent Municipal Corporation. Certain preliminaryobjections have been taken that the writ petitioners are not competent to file the present writ petition. It is admitted that the land in question was taken in auction by the petitioner being the Highest bidder. It is submitted that the building plans as submitted by the respondent were to be approved according to the regulations applicable. It is submitted that the JDA had made Building Bye Laws, 1996 which had been adopted by the Municipal Corporation, It is also admitted that the area was earlier under the control of the JDA, but it now stands, transferred to the Municipal Corporation, Jaipur since 1996. The demand notice as issued for depositing an amount of Rs. 14879887/- and amount of Rs. 642378/- as penalty are admitted and submitted that the petitioner had since deposited the said amount. It is also admitted that the amount now being charged is amount towards the fee for approving the plans/maps.
8. Prom the pleadings and the arguments the following points were required to be determined;
(1) that if the demand is in the nature of fee and, therefore, there has to be an elements of quid-pro-quo between the fee and the services rendered by the department. The element of quid-pro-quo is sort of justifying the imposition of fee.
(2) It must be levied in consideration of certain services and should be in the nature of quid-pro-quo and must be collected and earmarked to meet the expenses of rendering the services and cannot be levied for the purposes of raising general revenue.
(3) the fee cannot be excessive, exorbitant and disproportionate to the services rendered and in case there is any increase in the fee, it has to be proved that due to the increase in the charges, the fee has been increased and it has to be in proportion of increase in the cost of services. It cannot be increased without any basis.
(4) that the provisions for levying fee are to be laid down by the Legislature and power to levy a fee/tax should exist under the Act and both the sources are to flow from the authority of statute as mandated in Article 265 for levy/collection; no fee can be levied by way of the administrative decision.
(5) whether the demand so made is tax without any sanction of law.
9. In the impugned order Annexure-5 dated 10-4-1997, the Municipal Corporation, Jaipur had Informed the petitioner that as per the resolution No. 18 dated 20-21-22/2/1997 passed by the Corporation, an amount of Rs. 1,48,79,887/- was required to be deposited by the petitioner for the purpose of approval of the building plan which included the items of the fee for approval of additional construction, penalty, inspection and malba. Vide Annexure-6 objection was taken by the petitioner to such a demand mentioning therein that earlier the maps were being approved only by charging a few thousand rupees whereas the demand now had been made by Increasing It more than 1000% and there is no logic and justification for Increasing the fee to such a heavy amount. It was further submitted that nothing had been notified for Increasing of the fee, however, with protest the said amount was deposited. The petitioner has attached Annexure-12 a circular dated 9-9-1996 issued by the Jaipur Development Authority authorising certain kind of fee to be charged under the JDA Rules, 1996, The Building Bye Laws framed by the JDA authorities have been adopted by the Jaipur Municipal Corporation in the meeting held on 5-12-1996 vide proposal No. (02)26 at Item No. Kha(2) when decision was taken to grant permission for the new constructions as per the JDA Building Bye Laws.
10. The argument of the municipal Corporation by a defence is that fee levied by it is not in the nature of tax, but is in the nature of fee and penalty and it has been levied under the regulations framed by the JDA and adopted by the Municipal Corporation implying thereby that there is no authority provided under the Municipality Act 1959 either for levy of fee or for levy of penalty. It goes without saying that the tax can be imposed with an authority under Article 265 of the Constitution of India which reads that no tax is leviable or collectable except by authority of law.
PRELIMINARY OBJECTIONS
11. In regard to the preliminary objections for filing the appeal under Section 170 of the Rajasthan Municipalities Act, it is the only provision for filing of an appeal to the Collector which confines to any of the order passed by the Board in Clause (a) or Clause (b) or (c) of Sub-Section (6); or Clause (a) or (b) of Sub-Section (11). Admittedly, the present is not the case falling under any of the provisions in which appeal is maintainable under theprovisions of availability of appeal. The prayer made in the present writ petition is to declare the imposition and realisation of fee and the charges as per Annexures-5. 9 and 12 as ultra vires, void and illegal and also to declare the order Annexure-12 to be in violation of Articles 265 and 14 of the Constitution of India and Sections. 65 and 68 of the Jaipur Development Authority Act and Section 138 of the Rajasthan Municipalities Act, 1959 along with certain other prayers. The plan had not been approved at the time when the impugned orders were passed. It is stated that the demand so made is without any authority and without any Jurisdiction for which there is no provision under the regulations providing for imposition of financial penalty of such fee and that such excessive penalty had not been based on any criteria. The regulations are being challenged as ultra vires and also being without any jurisdiction. It has been authoritatively held that the availability of alternative remedy would be of no bar if the order challenged is without jurisdiction.
12. In Dr. (Smt.) Kuntesh Gupta v. Management of Hindu Kanya Mahavldyalaya, Sitapur (U.P.) (1987)4 SCC 525 : (AIR 1987 SC 2186) it was held that when the authority had acted wholly without jurisdiction, the High Court should not refuse to exercise its jurisdiction under Article 226 of the Constitution on the ground of existence of an alternative remedy. It was observed as under (Para 12) :--
'it is well established that an alternative remedy is not an absolute bar to the maintainability of a writ petition. When an authority has acted wholly without jurisdiction, the High Court should not refuse to exercise its Jurisdiction under Article 226 of the Constitution on the ground of existence of an alternative remedy. In the instant case, the Vice-Chancellor had no power of review and the exercise of such a power by her was absolutely without jurisdiction. Indeed, the order passed by the Vice-Chancellor on review was a nullity ; such an order could surely be challenged before the High Court by a petition under Article 226 of the Constitution and, in our opinion, the High Court was not Justified in dismissing the writ petition on the ground that an alternative remedy was available to the appellant under Section 68 of the U.P. State Universities Act'.
13. Similarly it was laid down in the case of Ram and Shyam Company v. State of Haryana (1985)3 SCC 267 : (AIR 1985 SC 1147) as under (Para 9 of AIR) :--
'It should be made specifically clear that where the order complained against is alleged to be illegal or invalid as being contrary to law, a petition at the instance of person adversely affected by it, would lie to the High Court under Article 226 and such a petition cannot be rejected on the ground that an appeal lies to the higher officer or the State Government. An appeal in all cases cannot be said to provide in all situations an alternative effective remedy keeping aside the nice distinction between jurisdiction and merits.'
14. In the case of Paradip Port Trust v. sales Tax Officer (1998)4 SCC 90: (AIR 1999 SC 552), it was observed as under (Para 2) :--
'Having regard to the question that was involved in the writ petitions relating to interpretation of Article 366(29-A)(d) of the Constitution and the taxability of the transactions in respect of which sales tax had been assessed by the Sales Tax Officer, it has to be held that the High Court should have entertained the writ petitions and should have considered the said question instead of requiring the appellant to avail the remedy of appeal under the Sales Tax Act.'
15. In the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai (1998)8 SCC 1 : (AIR 1999 SC 22), it was observed as under (Paras 14.15, 20 & 21 of AIR) :--
'The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. The High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its Jurisdiction. But the alternative remedy has been consistently held by the Supreme Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural Justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged'.
'Therefore, the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation.
Hence, the High Court was not justified in dismissing the writ petition at the initial stage without examining the contention that the show cause notice issued to the appellant was wholly without jurisdiction and that the Registrar, in the circumstances of the case, was not justified in acting as the Tribunal.'
16. In the case of Hindus tan Zinc Limited v. State of Rajasthan (1988) (2) WLN 320 wherein the Division Bench of this Court had held that the availability of alternative remedy of appeal is not sufficient to refuse decision of that point in a writ petition when the action challenged is without Jurisdiction. It was observed as under :--
'We may dispose of at the outset the preliminary objection taken by the Additional Government Advocate in the special appeal on the ground of existence of alternative remedy of appeal. It is sufficient to say that the point involved for decision is existence of authority of law to recover the tax demanded, in admitted facts and, therefore, availability of the alternative remedy of appeal is not sufficient to refuse decision of that point in a writ petition. The preliminary objection is therefore, rejected.'
17. Apart from above, in the present case the point involved is whether the amount being charged by the respondent Corporation amounts to tax or fee which can be decided by the High Court under Article 226/227 of the Constitution.
18. In regard to other objection that for the reason that the petitioner had deposited the amount and therefore, he is estopped from challenging the same, it has been clearly stated by the petitioner in Annexure-6 letter dated 21-4-1999 that the amount so demanded is being deposited under protest. The very demand was objected to from the very first day. The principle of estoppel is applicable where there is conscious relin-quishment of right. In the case of refusal of permission of approval of the maps, the principle of estoppel cannot be made applicable in this case as the amount so demanded is without jurisdiction and no waiver can operate against it as has been held by the Hon'ble Supreme Court in the case of Associated Hotels of India Ltd. v. S.B. Sardar Ranjit Singh AIR 1968 SC 933 as under , (Para 14) :--
'A waiver is an intentional relinquishment of a known right. There can be no waiver unless the person against whom the waiver is claimed had full knowledge of his rights and of facts enabling him to take effectual action for the enforcement of such rights.'
19. The petition has been filed by the company who had authorised to file the same to Shri Bhim Sen Garg as well who is the Director and the share holder of the company and the petition as such is maintainable.
20. For the above-said reasons, none of the preliminary objection is tenable.
21. The provision of collection of fee is also controlled by the statute in the similar manner as of tax. The Municipal Corporation is a creation of Municipal Act, 1959 and if any tax or fee is to be levied, the authority for levying such fee or tax should flow from the statute itself and if no such authority for Such exercise of levy of tax is forth-coming under the Act, the burden lies on the Municipal Corporation to prove the source for exercising such an authority.
22. in the case of Ahmedabad Urban Development Authority v. Sharad Kumar Jayanti Kumar Pasawalla (1992)3 SCC 285 : (AIR 1992 SC 2038), the Supreme Court had an occasion to examine the issue as to the competence of the local authority to levy any fee upon a builder and the limitation operating in this regard upon exercising the power by the local authorities. It was observed as under (Paras 2, 3, 6, 7) :--
'The High Court of Gujarat has held that Entry 66, List II of Seventh Schedule to the Constitution deals with fees in respect of any of the matters in the said List but not including any fee taken in any Court. Entry 5 of the List II of that schedule refers to constitution and powers of Improvement Trust and other local Authorities for the purpose of local self-Government or village administration. The High Court has held that under Entry 66, the State Legislature has legislative competence to make provisions for fees to be imposed by the Development Authority constituted under Section 31 of the said Act. The High Court has, however, held that simply because there is legislative competence for the State Government to charge fees for the Urban Development Authority, it cannot be held that demands for the development fee and/or imposition of the same by the Development Authority under the impugned regulations is legal and valid. The High Court has indicated that it is to be seen whether under the Town Planning Act, a specific power has been given to the Development Authority to impose such development fee. After scrutinizing the provisions of the Town Planning Act, the High Court has come to the finding that the Development Authority or as a matter of fact any other authority under the Act has not been vested with the power to charge betterment or the development fee. The High Courts has referred to the decisions of this Court in Hingir-Rampur Coal Company Limited v. State of Orissa and Shri Jagannath Ramanuj Das v. State of Orissa. This Court has held that between a tax and a fee there is no generic difference because in a sense both are compulsorily exaction of money by public authority but in a tax imposed for public purpose, no service need be rendered in return of such tax. A fee is however levied essentially for services rendered and as such there is an element of quid pro quo between the person paying the fee and the public authority imposing the same. it has been further indicated that whenever there is any compulsory exaction of any money from a citizen, there must be a specific provision for imposition of such tax and/or fee. There is no room for any intendment for imposition of compulsory payment. Whenever there is any compulsory exaction of money from a citizen, nothing is to be read and nothing is to be implied. (One should look fairly at the language used.)
'After giving our anxious consideration to the contentions raised by Mr. Goswami, it appears to us that in a fiscal matter it will not be proper to hold that even in the absence of express provision, a delegated authority can impose lax or fee. in our view, such power of imposition of tax and/or fee by delegated .authority must be very specific and there is no scope of implied authority for imposition of such tax or fee. It appears to us that the delegated authority must act strictly within the parameters of the authority delegated to it under the Act and it will not be proper to bring the theory of implied intent or the concept of incidental and ancillary power in the matter of exercise of fiscal power.'
'The High Court has referred to the decisions of this Court in Hingir case and Jagannath Ramanuj case and Delhi Municipal Corporation case. It has been consistently held by this Court that whenever there is compulsory exaction of any money, there should be specific provision for the same and there is no room for intendment. Nothing is to be read and nothing is to be implied and one should look fairly to the language used. We are, therefore, unable to accept the contention of Mr. Goswami. Accordingly, (here is no occasion to interfere with the impugned decision of the High Court. The appeal, therefore, fails and is dismissed with no order as to costs.'
23. The case of Ahmedabad Urban Development Authority v. Sharad Kumar Jayanti Kumar Pasawalla, (1992) 3 SCC 285 : (AIR 1992 SC 2038) (supra), has settled the proposition (1) that the delegated authority (local authority) can impose a lax or fee only if there is a specific conferment of such power upon such delegated authority by the State by way of a proper legislation; (2) that if where is compulsory exaction of any money there should be specific provision for the same and there is no room for any intendment implied or otherwise.
24. In the case of State of Maharashtra v. The Salvation Army, AIR 1975 SC 846, it was held that two elements are essential in order to determine that the payment may be regarded as a fee i.e. in the first place it must be levied in consideration of certain services and the amount collected must be earmarked to meet the expenses of rendering these services.
25. In the State of Kerala v. Madras Rubber Factory Ltd., (1998) 1 SCC 616 : (AIR 1998 SC 723), it was held that the charge under the taxing statute can only be under the Act and not under the Rules or the notification. The rules normally provide for the procedure to be followed for the realisation of the staiutory dues.
26. In the case of Om Prakash Agrawal v. Gin Raj Kishore, (1986) 1 SCC 722 : (AIR 1986 SC 726), it was held that the tax had three principal characteristics : (i) it is imposed under statutory power without thetax-payer's consent and the payment is enforced by law; (ii) it is an imposition made for public purposes without reference to any special benefit to be conferred on the payer of the tax; (iii) it is a part of the common burden, the quantum of imposition upon the tax-payer depending generally upon the capacity of the tax-payer to pay.
27. It was further held that in determining a levy as a fee (he true test, must be whether its primary and essential purpose is to render specific services to a specified area or class it being of no consequence. It was held that the fact that the fund is created under the Act is a mere cloak to cover the true character of the levy in question.
28. In very recent judgment reported in (1999) 1 Supreme 136 : (AIR 1999 SC 635), Secunderabad Hyderabad Hotel Owners' Association v. Hyderabad Municipal Corporation, Hyderabad, licence fee collected to give various service like scavenging etc., it was held that it is now settled law that the licence fee may be either regularatory or compensatory. When a fee is charged for rendering specific services, a certain element of quid pro quo must be there between the service rendered and the fee charged so that the licence fee is commensurate with the cost of rendering the service although exact arithmetical equivalence is not expected. The fee which is charged for such activity would be validly classifiable as a fee and not a tax although such fee cannot be excessive. It was further held that the fees although credited in the common fund, are earmarked for the purposes for which they are collected; doubling the licence fee after 9 years could not be considered an excessive increase.
29. In the case of H.H. Shri Swamiji of Shri Admar Mutt v. Commissioner, Hindu Religious and Charitable Endowments Department, (1979) 4 SCC 642 : (AIR 1980 SC 1), it was held by the Supreme Court that for the purpose of finding whether there is a co-relationship between the services rendered to the fee payers and the fees charged to them, it was necessary to know the cost incurred for organising and rendering the services. But the matters involving consideration of such a correlationship are not required to be proved by a mathematical formula. What has to be seen is whether there is a fair correlations between the fee charged and the cost of services rendered to the fee payers as a class. Each case has to be judged from a reasonable and practical point of view for finding out the element of quid pro quo.
30. In the case of Krishi Upaj Mandi Samiti v. Orient Paper & Industries Ltd., (1995) 1 SCC 655 : (1994 AIR SCW 5156), it was held (Para 5 of AIR) :
(i) that the tax is a compulsory exaction of money by public authority for public purposes enforceable by law and is not payment for services rendered. There is no quid pro quo between the tax-payer and (he public authority;
(ii) Fee is a charge for a special service rendered lo individuals or a class by some governmental agency. The amount of fee levied is supposed to be based on the expenses incurred by the Government in rendering the service though in some cases the cost are arbitrarily assessed;
(iii) the distinction between a lax and a fee lies primarily in the fact that a tax is levied as a part of the common burden while a fee is a payment for a special benefit or privilege, Public interest seems to be at the basis of all impositions but in a fee it is some special benefit which is conferred and accruing which is the reason for imposition of the levy;
(iv) there is really no generic difference between tax and fee. Whether a cess is tax or fee, would depend upon the facts of each case. If in the guise of fee, the legislature imposes a tax it is for the court on a scrutiny of the scheme of the levy, to determine its real character. in determining whether the levy is a fee, the true lest must be whether its primary and essential purpose is to render specific services to a specific area or classes. It is of no consequence that the State may ultimately and indirectly be benefited by it;
(v) The rendering of service has to be established. The service, further, cannot be remote. The test of quid pro quo is not to be satisfied with close or proximate relaiion-ship in all kinds of fees. A good and substantial portion of the fee must be shown to be expended for the purpose for which the fee is levied.
In the case of Kewal Krishan Puri v. State of Punjab, (1980) 1 SCC 416 : (AIR 1980 SC 1008) and other connected cases, it was held :--
(i) the Constitution recognises a different and distinct connotation between taxes andfees.
(ii) A fee is a charge for a special service rendered to individuals by some governmental agency and involves the principle of quid pro quo for the services rendered to them.
(iii) Spending the amount of market fees for the purpose of augmenting the agricultural produce, its facility of transport in villages and to provide other facilities meant mainly or exclusively for the benefit of the agriculturists is not permissible on the ground that such services in the long run go to increase the volume of transactions in the market ultimately benefiting the traders also. Such an indirect and remote benefit to the traders is in no sense a special benefit to them.
31. The Supreme Court had ultimately held that both in State of Punjab and Haryana, the raising of an imposition of the rate of market fee up to Rs. 2 per hundred rupees cannot be held to be unreasonable, but there was no justification in law in raising the fee from Rs. 2/- to Rs. 3/-.
32. Similar was (he effect of the case of Bhagwan Das Sood v. State of H.P., (1997) 1 SCC 227 : (AIR 1997 SC 1549).
33. It is not denied that the Municipal Corporation is governed by the provisions of the Rajasthan Municipalities Act, 1959. Sections 88 to 91 of Chapter IV empowers the Board to make rules, whereas Chapter VII. deals with the imposition of taxes and Chapter XI deals with the power to regulate the building etc. Sections 235 to 237 deals with the regulation of markets, sale of food etc.
34. Section 88 enables the Board to make rules in regard to constitution of committees, staff of officers and servants to be employed by the Board, their salaries, their service conditions; prescribing subject to the provisions of Chapter VII, the taxes under Section 105 to be levied in the municipality for municipal purposes, the conditions on which and extent to which remissions may be granted and the system on which refunds are to be allowed and paid in respect of such taxes and the fees to be charged for licences or permission granted and the times at which and the mode in which the same shall be levied or recovered or shall be payable, and prescribing the fees for notices demanding payments due on account of any tax, leviable under Sections 104, 105 or 106. It is further provided that no such Rule made by the Board under this section shall have any effect until and unless it is approved by the State Government.
35. Section 89 deals with the power to suspend, modify, reduce or abolish tax.
36. Section 90 empowers the Board to make bye-laws for the regulation and inspection of markets, prescribing conditions on or subject to which the circumstances in which and the areas or localities in respect of which, licence is to be granted etc. etc.
37. Section 91 prescribes for publication of rules.
38. Chapter VII admittedly deals with the imposition of taxes which is not applicable in the case in hand.
39. Chapter XI prescribes the regulations of building in regard to setting back projecting buildings, setting forward to regular line of street, building of corner street, level of building etc. etc. whereas Section 194 deals with the permission necessary for certain projections, drain pipes etc.
40. Section 138 of the Municipalities Act empowers the Board to charge fee for certain licences to be granted by the Board under the Act for permission for making any temporary erection or for putting any projection or for temporary occupation of any public street.
41. Rules have also been framed by the Municipal Corporation.
42. Counsel for the respondent-Municipal Corporation has not been able to bring to the notice of the Court any provision of the Act, empowering the Municipal Corporation to demand the fee as mentioned in the impugned orders nor any such rules have been framed. It goes without saying that the rules could only be framed if the Municipal Corporation is empowered under the Act for imposing any such fee. Facing with the situation the Municipal Corporation has come out with the plea that as a matter of fact the Municipal Corporation had adopted by way of resolution the provisions of the JDA Act which action of the Municipal Corporation is also under challenge. It shall not make any difference if the Municipal Corporation by way of its resolution adopts any provision of any other statutory authority or pass a resolution itself for levying such fee but the source of compulsory collection of the amount from the citizens must comethrough the powers as enshrined or provided under the Act itself which admittedly is not existing in the present case. in view of the law laid down by the Apex Court as discussed above, the very action of the respondent is without jurisdiction and cannot be sustained in the eyes of law.
43. Apart from above, the demand made by the Municipal Corporation as contained in Annexure-5 for approving the map by levying fee for additional construction and or approving the maps must conform to the principles and the law laid down for the services so rendered, i.e. there has to be an element of quid pro quo between the fees so charged and the services so rendered by the department for justifying the imposition of such fee and that it should be levied in consideration of certain services to meet the expenses of rendering such services and that it cannot be charged on ad valorem basis and it cannot be excessive and exorbitant and disproportionate to the services and that the fee or tax is to be charged on the authority so given by the legislature and if any such rules are framed those rules are to be approved by the legislature.
44. From the above narration of facts and provisions of law the following facts emerges :--
(1) that the petitioner had submitted the map for approval showing therein certain construction which according to the petitioner was permissible under the law;
(2) the map was to be approved;
(3) the Municipal Corporation had demanded an exorbitant/heavy fee for the so-called additional construction for approving the map;
(4) heavy fee has been demanded along with the other items of approving the map as mentioned in Annexure-5.
45. From the provisions of the Act nothing has been brought by the Municipal Corporation empowering it to levy such a fee as mentioned in Annexure-5 for approving the map of additional construction, nor then is such regulations or rules framed by the Municipal Corporation for charging such fee, which rules or regulations could only be framed if so empowered under the Act itself The consequent result would be that the Municipal Committee had acted without jurisdiction in collecting such charges from the petitioner to the tune of Rs. 1,06,90,905/- for approving the map for additional construction area which area was still to be constructed if the maps were approved even though the petitioner slates that the maps were in accordance with the Act or the rules or bye-laws prescribing the limitation of construction. The other items of charging the fee of approving the map amounting to Rs. 41,26,982/- cannot be said to be a fee for the services rendered for approval. The fee is too excessive. No criteria has been brought on record as to how the fee has been fixed and determined. As has been held repeatedly that the fee can be charged for the services so rendered, it goes without saying that it was the duty of the Municipal Corporation to bring on record that the services for approving the maps was so onerous as to charge such a heavy fee. The fee for such services cannot be fixed whimsically or too excessive as to invite the violation of Article 14 of the Constitution to be called an arbitrariness. So; is the other item of Rs. 52.000/- Called the inspection charges.
46. In my opinion, for the reasons that there are no statutory sanction for charging any fee for the items mentioned above in Annexure-5, the Municipal Corporation was not empowered to charge or to demand any such fee from the petitioner and as such the amount so charged is to be refunded with interest.
47. For the reasons that by no means, the demand can be considered falling under the term 'fee' rather it amounts to tax in the guise of the fee for which there is no sanction, authority or power or statutory provision in the Municipality and for charging such an amount.
48. For the reasons mentioned above, the writ petition is allowed. The impugned orders are quashed with the direction that the respondents shall refund back the aforesaid three amounts charged under the heading of (1) fee for additional constructed area (approving of map); (2) approval fee; (3) inspection charges, totalling to Rs. 1,48,69,887/-and along with the amount of penalty charged on the abovesaid amount amounting to Rs. 6,42,378/- which penalty could not be charged being without jurisdiction. The aforesaid amount shall be refunded with interest of 12% p.a. from the date of receipt till is paid back to the petitioner if already not refunded. The petitioner shall also be entitled to the cost which is assessed as Rs. 5,000/-.