ORDER
P. Sathasivam, J.
1. Since common issue is involved in both these writ petitions, they are being disposed of by the following common order. In W.P.No. 7957 of 94, the petitioner challenges the proceedings of the first respondent dated 15-4-93 in W.D.C.No. D5/10747/89, enhancing the building licence fee etc. As a consequential relief, the petitioner also prays for direction to the first respondent to issue building permit for the construction at 115, Nelson Manickam Road, Madras without insisting upon payment of building licence fee etc.
2. In W.P.No. 8106/94, Tamil Nadu Flat Promoters Association challenges the proceedings of the first respondent dated 7-4-94 in W.D.C.No. TP/658/94, enhancing the building licence fee, security deposit fee etc. They also prayed for direction to the respondents from giving effect to the said impugned circular and from levying any security deposit from the members of the petitioner Association as condition precedent for the grant of planning permission for construction of buildings.
3. The case of the petitioner in W.P.No. 7957 of 94 is briefly stated here under:- According to the petitioner, he is putting up construction at 115, Nelson Manickam Road, Madras consisting of Block A, B, C, D and E measuring in all 10330 sq. metres. The petitioner has already paid the security deposit demanded by the Madras Metropolitan Development Authority (in short 'M.M.D.A') as condition precedent for the grant of planning permission by furnishing bank guarantee though the said authority had no power to collect the same. Now, by virtue of the impugned circular dated 15-4-93, the first respondent herein-Corporation of Madras, without any authority, has revised the building licence fee. Similar increases have been made in the matter of scrutiny fee/application, building, plans, fees for issue of true copies, search fees etc. Based on such revision, the 2nd respondent has now levied a sum of Rs.4,69,270/- towards building licence fee and Rs.270/- for scrutiny charges as condition precedent for grant of building licence. The petitioner had already approached the M.M.D.A. which is the appropriate planning authority and has complied with all the requirements of the M.M.D.A. for grant of planning permission including the security deposit. On enquiry, the petitioner came to know that the decision of the Corporation was made due to increase in cost of living index. This is not at all a justification because there is no services whatsoever rendered by the Corporation in charging the exorbitant fee under the caption 'Building Licence fee', because in cases like the petitioner it is the M.M.D.A which had already granted the planning permission after collecting all the charges. The levy of licence fee by the Corporation of Madras in respect of construction over and above 900 sq.m. and special buildings is clearly illegal. On 17-7-87 the Corporation of Madras further enhanced the building licence fee. On 31-7-92, another order was passed in the form of circular enhancing the levy of building licence fee by several manifolds as well as scrutiny fee and for issuing true copies etc. On 15-4-93 again the rates were increased steeply as evident from the circular which is now the subject matter of challenge in this writ petition. Inasmuch as such levy is illegal and without the authority of law, the petitioner is constrained to approach this Court challenging the said levy and he has no other effective alternative remedy.
4. In W.P.No. 8106 of 94, the petitioner is the Tamil Nadu Flat Promoters Association. According to them, it is a registered Association and it has been formed with the object of promoting the interests of organised development of residential flats in the City of Madras and other parts of the State. It is stated that construction and regulation of any type of building in the City of Madras over and above 900 sq.m. and special buildings is regulated by the Madras Metropolitan Development Authority constituted under the Town and Country Planning Act. In respect of buildings less than 900 sq.m. building licences are to be obtained from only the Corporation of Madras. The M.M.D.A. grants planning permission for development of any land or building in the Madras Metropolitan area in terms of Section 49 of the Tamil Nadu Town and Country Planning Act (hereinafter referred to as 'the Planning Act'). In terms of the Planning Act, M.M.D.A. is empowered to collect fees for processing of application and such other charges which are permissible under the Planning Act and the Development Control Rules framed there under. In the absence of any specific provision in the Planning Act, M.M.D.A. has no power to collect security deposit. In terms of section 230 of the Madras City Municipal Corporation Act, 1919 (hereinafter referred to as 'M.C.M.C. Act'), the State Government is empowered to make rules for the regulation or restriction of the use of sites for building and for the regulation or restriction of buildings. In terms of Section 349 of the M.C.M.C. Act, the council is empowered to make bye-laws not inconsistent with the Act which inter alia, under Section 349 (10) (a) includes bye-laws for the regulation of building and for determination of the information and plans to be submitted with the application to build and Section 349 (10) (c) provides for bye-laws for the licensing of builders and surveyors and for the compulsory employment of licensed builders and surveyors. The third respondent/State had issued a notification on 29-8-72, laying down rules for the regulation of construction of buildings and the use of the sites for building in the City of Madras. In respect of construction of buildings over and above 900 sq.m., M.M.D.A. is already levying security deposit and as such it will be wholly unreasonable for the Corporation of Madras to also demand security deposit in respect of buildings over and above 900 sq.m. or special buildings as defined under Rule 19 (b) of the Development Control Rules framed under the Planning Act. The Corporation of Madras which has no role to play can never demand payment of security deposit as condition precedent for the grant of planning permission and there cannot be two authorities simultaneously levying same fee for performing the same duty particularly when the levy itself has been found to be unconstitutional. By virtue of the impugned order, once again there has been steep revision and not only revision and this time another invention of the Corporation is the payment of security deposit only in the zeal to collect money and only in the zeal to collect revenue the Corporation has been squeezing the flat promoters without there being any sanction for such levies under the Act. Having no other effective remedy, the petitioner Association has filed the above writ petition.
5. Commissioner, Corporation of Madras/first respondent in both the writ petitions, has filed a common identical counter affidavit disputing various averments made by the petitioners. The case of the Corporation is briefly stated here under:- M.M.D.A. is vested with powers to sanction planning permission under Planning Act for the purpose of construction of building and to develop the property. The M.M.D.A. has delegated its powers to the Corporation of Madras for issue of planning permission in respect of ordinary buildings, not exceeding 300 M2 in floor area which does not fall under Rule 19 (b) of Development Control Rules. Accordingly, the planning authority is the M.M.D.A. to issue planning permission. But, the building permission has to be issued by the Corporation of Madras for all kinds of buildings. The planning permission is to develop the property and the building permission is to regulate the construction of buildings in accordance with the Madras City Corporation Building Rules, 1972 framed under the Madras Municipal Corporation Act. Whenever the planning permission is granted by the M.M.D.A., one of the conditions stipulated therein is that the applicant has to obtain building permission from the Corporation of Madras if the building is to be constructed within the City of Madras. Accordingly, the planning permission and the building permission are altogether for different purposes and they are governed by the provisions of the rules made under the different statutes.
6. Clause (8) of sub-rule (3) of Rule 3 of Madras City Corporation Building Rules, 1972 prescribes that the application for construction of building must be accompanied by a treasury receipt for payment of fees for the permit. As per Section 365 (2) of the M.C.M.C. Act, the Council is authorised to prescribe the fees for grant of such permission or licence. The Special Officer (Council), Corporation of Madras prescribed payment of fees for building licences fee by a resolution No. 421/85 dated 2-4-85 and the same was revised and enhanced by 10 per cent by a resolution No.45/90 dated 25-1-90 with effect from 1-4-90. Thereafter, the Special Officer (Council), by a subsequent resolution dated 30-7-92, enhanced the building licence fee and other fees as prescribed in circular dated 31-7-92. Again, in Resolution No. 1399/93 dated 8-4-93, the Special Officer (Council), enhanced the building licence fees and other fees with effect from 1-4-93. The said enhancement was necessitated due to increase in price and other stationery and other charges. The said enhancement is only minimum. In Resolution No. 0843/94 dated 2-4-94, the Special Officer enhanced the building licence fee and other fees by 10 per cent with effect from 1-4-94 from the existing fees in 1993. The said enhancement of fee necessitated because the 'receipts and expenditure' in the Budget for the past four years from 1991-92 to 1994-95 of the Corporation of Madras is increasing in expenditure more than that of the receipts from the building licence fee by the works department. The expenditure includes personal cost and administrative cost among other costs. Further, the building permission applications received by the Corporation are considerably increasing year by year for which additional staff for scrutinising and sanctioning the plans have been posted to dispose of the applications quickly. Due to the computerisation, the sanctioning process has become systematic and quick. The cost of maintenance and repair of vehicles used by the inspecting officials to sanction the plan and enforcement officials have also increased. So the enhancement of building licence fee was necessitated. The enhancement of the licence fee is on quid pro quo principles. The Corporation has not fixed the licence fee arbitrarily as alleged. The fee has been enhanced commensurate with the expenses incurred by the Corporation of Madras in issuing building licence. The Corporation of Madras is well within its jurisdiction to fix and demand the building licence fee and as such the writ petition filed by the petitioner challenging the enhancement of building licence fee are liable to be dismissed.
7. In order to bring the applicants to construct the buildings as per rules with the four corners of law, the security deposit has been proposed to be collected. In the event of the applicant constructing the building as per rules and sanctioned plan, the security deposit would be refunded. On the other hand, if the applicants violated or deviated the sanctioned plan, the security deposit would be forfeited by giving show cause notice to the applicant. This is a preventive measure preventing the applicants from violating or deviating the sanctioned plan. In order to prevent the public from violating the sanctioned plan while constructing the building, the Special Officer (Council) passed a resolution No. 1511/94 dated 27-4-94 to demand security deposit. So the levy and demand of security deposit made by the Corporation is legal, valid and in accordance with law. It is in the interest of public at large. The Municipal Corporation of Madras being a municipal Government of City of Madras, it has got jurisdiction to levy and demand security deposit. The Corporation of Madras is not demanding the security deposit in the cases where M.M.D.A. had collected such deposit at the time of issuing the planning permit which has been specifically stated in the resolution No. 1511/94 dated 27-5-94. The enhancement of building licence fee and other fee and collection of security deposit is valid, legal and in accordance with law.
8. In the light of the above pleadings, I have heard the learned counsel for the petitioners as well as respondents.
9. Mr. Mohan Parasaran, learned counsel for the petitioner has mainly contended that the Corporation of Madras has no power to levy building licence fee and collect security deposit, since already the other authority, namely, M.M.D.A. is seized and has been the only competent authority to deal with levying various conditions for grant of planning permission in respect of buildings over and above 900 Sq.Mts and special buildings. According to him, the levy and increase in building licence fee etc., as well as security deposit is illegal, ultravires, arbitrary and is violative of Articles 14, 19(1)(g) and 300-A of the Constitution of India. In any event, according to him, in the absence of any Council Resolution or Rules framed by the State Government and also of the fact that the Corporation of Madras does not render any services at all and even if some services are rendered there is clearly no correlation to the exorbitant rate which is now charged for the grant of planning permission by collecting building licence fee and as such the said levy is unreasonable. On the other hand, Mr. N.R. Chandran, learned Advocate General, after taking me through the relevant provisions from the Madras City Municipal Corporation Act and the Planning Act as well as the Rules and Regulations made there under, would contend that the planning authority-M.M.D.A. is to issue planning permission, whereas the building permission has to be issued by the Corporation for all kinds of buildings. According to him, the planning permission and building permission are altogether for different purposes and they are governed by the statutory provisions. He also contended that the Corporation of Madras through its Special Officer (Council) has got power to prescribe and fix fee at such rate as it thinks fit for grant of permission or licence as per Section 365 (2) of Madras City Municipal Corporation Act. By passing proper Resolution, the building licence fee and other fees were enhanced; accordingly they are valid, legal and in accordance with law. He also contended that in view of the increase in expenditure which includes personnel and administrative cost among other costs and also the number of buildings permission applications as well as increase in price and stationery and other charges, the enhancement of building licence fee is fully justified. He also contended that in order to bring the applicants to construct the buildings as per the Rules and sanctioned plan, the security deposit has been proposed to be collected. He further contended that in the event of applicant constructing the building as per rules and sanctioned plan, the security deposit would be refunded. He further contended that since the matter in issue is already covered by an earlier decision of this Court in the case of MENAKAWAR v. CORPORATION OF MADRAS, reported in 1988 WLR 107both the writ petitions are liable to be dismissed.
9(a). I have carefully considered the rival submissions.
10. Among the contentions raised, two things have to be considered, the first one is whether the first respondent-Corporation of Madras has power to levy building licence fee and collect security deposit, and the next one is if so, whether the enhancement of such fee is reasonable and acceptable?
11. Clause (8) of sub-rule (3) of Rule 3 of Madras City Corporation Building Rules, 1972 (in short 'the Rules') prescribes that application for construction or reconstruction of a building must be accompanied by a treasury receipt for payment of fees for the permit. Chapter XVI of the Madras City Municipal Corporation Act, 1919 (in short 'M.C.M.C.Act') deals with licences and permissions. As per Section 365 (2) of the said Act, the council is empowered to prescribe the fees for grant of such permission or licence. The particulars furnished in the counter affidavit of the Commissioner, Corporation of Madras clearly show that the Special Officer (Council), Corporation of Madras prescribed payment of fees for building licence fee by appropriate resolution and the same was revised and enhanced by 10 per cent by way of a separate resolution. Though it is stated in the affidavit filed by the petitioners that the impugned fee has been enhanced without there being any Council resolution or Rules, the details regarding resolution, the date on which the same was passed by the Special Officer (Council) and the rate of increase etc., are furnished in the counter affidavit of the Commissioner of the Corporation of Madras. In the light of these details and in the absence of any reply affidavit controverting these facts and figures, I reject the claim of the petitioner that there is no resolution by the Council or Rules at the instance of the State Government.
12. By virtue of Section 9-A of the Tamil Nadu Town and Country Planning Act, 1971 (in short 'Planning Act'), which was inserted by Act 22 of 1974, the Madras Metropolitan Development Authority (in short 'M.M.D.A') was constituted. A perusal of the relevant provisions as well as the Rules/Regulations clearly shows that M.M.D.A. is vested with powers for sanction of planning permission under the Planning Act for the purpose of construction of building and to develop the property. It is also not disputed that the M.M.D.A. has delegated its powers to the Corporation of Madras for issuance of planning permission in respect of ordinary buildings, not exceeding 300 M2 in floor area. A careful analysis of the provisions of both the Act and the Rules made there under, it is revealed that the planning authority is the M.M.D.A. to issue planning permission, whereas the building permission has to be issued by the Corporation of Madras. The planning permission is to develop the property and the building permission is to regulate the construction of buildings in accordance with the Rules framed under the M.C.M.C. Act. It was also brought to my notice that whenever the planning permission is granted by the M.M.D.A., one of the conditions stipulated therein is that the applicant has to obtain building permission from the Corporation of Madras if the building is to be constructed within the City of Madras. Accordingly, the planning permission and the building permission are altogether for different purposes and they are governed by the provisions made under different statutes.
13. It is also the case of the petitioner that inasmuch as he had applied and obtained permission under Section 49 of the Planning Act after payment of necessary fee, the present claim by the Corporation of Madras seeking licence fee cannot be sustained. The very same question was considered by Mohan, J., (as he then was) in MENA KAWAR, Tmt. v. CORPORATION OF MADRAS, reported in 1988 WL.R. 107. Since the learned Advocate General heavily relied on the said decision and contended that the matter in issue is directly covered by the said decision, it is useful to refer the facts and the ultimate decision rendered in the decision. The petitioner in that case submitted a plan for construction of a premises in No.8, Ayyamudali Street for basement floor, ground, magazine and first floor. The said plan was sanctioned by the Corporation of Madras dated 28-12-82. In the process of construction, the petitioner constructed ground to third floor without basement and magazine floors. For the unauthorised construction in relation to ground floor and first floor, criminal action was initiated on 2nd May, 1984. The petitioner was fined Rs.110/-. For the illegal construction of second floor criminal action was initiated on 9th July, 1984. The petitioner was fined by the 19th Metropolitan Magistrate. As regards the illegal construction of the third floor, criminal action was initiated on 29th July, 1984. It is, under these circumstances, a notice was issued to the petitioner on 4-9-85. In the said notice, it was pointed out that the petitioner was constructing a building unauthorizedly and she was informed to stop the work and remove the same at once. To this, the petitioner sent a reply on 10-9-85 stating that in view of the scanty land space available and of the large family under engineer's advice she proceeded with the construction and there has been a deviation of the sanctioned plan. Further, in two criminal cases, the Court levied fine and penalty for deviation and unauthorised construction. The said fine and penalty was paid on 30-5-85 itself for all the floors. The construction so far made and completed had been assessed to property tax of Rs.3,262-35. Therefore, in view of the levy and payment of fine penalty for unauthorised construction and in view of the assessment of the property to property tax, the unauthorised construction must be deemed to have been condoned and no further action was called for. However, for the purpose of regularisation, she was submitting a revised plan for permission to construct the additional portions which have been already constructed. In addition to the factual contentions, it was also stated that by passing the Town and Country Planning Act, 1975, the provisions of the M.C.M.C. Act relating to the construction of buildings and the permission thereof have been superseded and the provisions of the Town and Country Planning Act in relation to the construction of the buildings alone will apply. Hence the provisional order made under Section 256 (1) of the Act was ultra vires and has no legal effect. By a notice dated 29-10-85, which was affixed to the premises of the petitioner on 2-11-85 issued under Section 378 of the Act, the petitioner was informed that the officers of the Corporation would enter the premises for the purpose of demolition of the unauthorised construction in the second and third floors. It was at this stage the petitioner came forward with the writ petition for certiorari to quash the notice dated 19-9-85 and the order of demolition dated 3-11-85. With the said factual position, it was contended before Mohan, J., (as he then was) that an application under Section 49 of the Planning Act has been filed by the petitioner before the M.M.D.A. and it was open to that authority to sanction the permission required under certain conditions. By reason of Section 49 of the Planning Act, the provisions relating to obtaining the building plan under the Act do not have any operative force. It was also contended that since there was no sanctioned plan for the 2nd and 3rd floors, only when there is a plan and there is a deviation, it would amount to unauthorised construction. Where no plan was submitted for these two floors, it is not possible for the Commissioner to take action under Section 256 (1) of the Act, much less under Section 256 (3) of the Act. Therefore, the notice itself is per se bad. On the other hand, the counsel for the Corporation argued before the learned Judge that the application for permission under Section 49 of the Planning Act cannot in any manner affect the operation of the Act. The scope of the two Acts are totally different. The Madras Metropolitan Development Authority is only an authority to give permission for planning, while the building plan has to be sanctioned by the Corporation under the relevant provisions of the Act. The learned Judge referred to the legal background in enacting M.C.M.C. Act, 1919 as well as various regulations framed there under. After analysing Sections 230, 234, 236, 256 of the M.C.M.C.Act as well as application filed under Section 49 of the Planning Act, the learned Judge has held thus:- (para 7)
7.......First of all, the Planning Act was enacted for planning the development that the use of rural and urban land in the State of Tamil Nadu. Sec.49 of the Planning Act says if a person intends to carry out any development or any land or building, he shall make an application to the appropriate authority for permission in such form and containing such particulars as may be prescribed. Under sub-Sec.(2) of Sec.49 it is stated that the appropriate authority in deciding whether to grant or refuse such a permission shall have regard to the following matters:-
(a) The purpose for which the permission is required;
(b) The suitability of the place for such purpose;
(c) The future development and maintenance of the planning area. This section appears in Chapter VI which deals with the control of development and use of land. Therefore, obviously, this has absolutely nothing to do with the building regulations, the objects of which are totally different as stated above. How the land in metropolitan development area is to be controlled for the purpose of development and use can have nothing to do with the actual building which is still covered only by Section 234 of the Act and the permission obtained from the Commissioner thereof. The positive prohibition contained in Sec. 236 (1) of the Act, is not diluted or deviated from by Sec.49 of the Planning Act. The two Acts, viz., the Tamil Nadu City Municipal Corporation Act and the Tamil Nadu Town and Country Planning Act, operate in two different spheres, the latter dealing with the development and the use of the land, while the former dealing with regulating the construction of buildings. Therefore, I am totally unable to accept the argument of Mr. T. Chengalvaroyan that Sec. 49 of the Planning Act supersedes the provision of the Act with regard to the construction of the building. Nowhere does the Planning Act talk of building at all. The provisions of the Act occurring in Chapter A retained all the vigour and force notwithstanding the passage of time; notwithstanding the enactment of the Planning Act.'
After going through the relevant provisions from both the enactments, I am in respectful agreement with the view expressed by the learned Judge and reject the contra argument made by the learned counsel for the petitioners. It is clear that the scope of the 2 Acts are totally different. In other words, the Planning Act deals with the development and the use of the land, while the M.C.M.C. Act deals with regulating the construction of buildings. I am also satisfied that merely because the petitioner obtained planning permission under Section 49 of the Planning Act, it cannot be contended that he can ignore the provisions of the M.C.M.C.Act with regard to the construction of the building. I am also satisfied that nowhere does the Planning Act talk of building at all. As stated earlier, Section 49 of Chapter VI of the Planning Act deals with control, development and use of the land and this is nothing to do with the building regulations. How the land in Metropolitan development area is controlled for the purpose of development and use can have nothing to do with the actual building which is covered only by Section 234 of the M.C.M.C. Act and permission obtained from the Commissioner thereof. A conjoined reading of Sections 234, 235, 236 and 365 of M.C.M.C Act and the Madras City Corporation Building Rules, 1972 clearly shows that building permission has to be issued by the Corporation of Madras. I have already referred to the relevant Rules which prescribe that the application for construction of building must be accompanied by a treasury receipt for payment of fees. Section 365 (2) of the Act also enables the Council, viz., the Special Officer to prescribe fees for grant of such permission or licence at such rate as may be fixed by the Council. In the light of the statutory provisions, I hold that irrespective of the provisions of the Planning Act, the first respondent has power to levy building licence fee and also enhance the same from time to time by passing appropriate resolution. The details regarding various resolutions have been referred to in the counter affidavit. In the light of the factual and legal position, the main contention that the Corporation of Madras has no power to levy and enhance building licence fee is liable to be rejected.
14. Now I shall consider levy of security deposit by the Corporation of Madras. I have already referred to Chapter XVI of the M.C.M.C.Act which deals with procedure and miscellaneous matters. Section 365 deals with licences, registration and permission. No doubt, it is stated that levy of security deposit has been struck down by this Court. However, it is not disputed that when the matter was pending before the Supreme Court, the question was not agitated in view of the insertion of relevant rule enabling the Corporation to claim security deposit, hence now the petitioners cannot be permitted to challenge the power of the Corporation. Rule 1 (b) of Development Control Rules for Chennai Metropolitan Area clearly says that any site approval or planning permission for any development under these rules shall not absolve the applicant of his responsibility to get clearance or permission under other Acts and Rules. Rule 26 of the said Rules clearly says that,
'Rule 26 (a) In the application of these rules if there is conflict between the requirements under these rules and the requirements under any other Act or rules or By laws in force the requirements under these rules and the provisions of Chennai City Municipal Corporation Act, Tamil Nadu or Panchayat Act or any other law relating to the local authority for the time being in force or any rule, bylaw or regulation made under the said act or laws, such provisions which are contrary to these rules shall stand suspended.'
The above referred provisions amply show that irrespective of the provisions of the Planning Act, for construction of buildings the applicant has to satisfy other condition/conditions to be imposed by the Corporation. I have already referred to Section 365 (1) and (2) of the M.C.M.C.Act; accordingly I hold that the first respondent is competent to collect security deposit in order to fulfil the statutory provisions and to prevent the applicant from deviating the sanctioned plans as well as violating the building rules. It is also explained by the Commissioner, Corporation of Madras in his counter affidavit that in recent times there is a tendency on the part of the public to construct the buildings deviating from the sanctioned plans and violating the building rules. In order to curtail the tendency of construction of the building in violation of sanctioned plan and not to violate the building rules and development control rules, the Corporation of Madras proposed to collect security deposit. It is also clear that in order to bring the applicants to construct the building as per rules and sanctioned plan, the security deposit has been proposed to be collected. The Commissioner has also explained that in the event of the applicant constructing the building as per rules and sanctioned plan, the security deposit would be refunded. If the applicants violated or deviated the sanctioned plan, the security deposit would be forfeited by giving show cause notice to him. Here again, the Special Officer (Council) passed Resolution No. 1511/94 dated 27-5-94 demanding security deposit at the rate of Rs.25/- per Sq.Met. (M2) for residential buildings more than 100 M2 and Rs.50/- per M2 for commercial building more than 100 M2. The Commissioner has also explained that the Corporation is not collecting the security deposit, where M.M.D.A. has collected security deposit while sanctioning the planning permit. Accordingly, I hold that the demand of security deposit made by the Corporation is legally valid and is in accordance with law. The Municipal Corporation has got jurisdiction to demand security deposit to prevent the public from violating the sanctioned plan and building rules while constructing the buildings, accordingly I reject the contention raised by the learned counsel for the petitioners.
15. Finally I shall consider whether the licence fee and the security deposit as enhanced in the impugned proceedings are reasonable and acceptable. Though Mr. Mohan Parasaran, learned counsel for the petitioners, has contended that the increase or enhancement of the licence fee and security deposit are unreasonable or arbitrary, as rightly pointed out by the learned Advocate General, absolutely there are no factual details furnished in the affidavit. On this ground alone, the said contention is liable to be rejected. On the other hand, in the counter affidavit, the Commissioner, Corporation of Madras has furnished the reason/reasons which necessitated for enhancement. It is highlighted that the increase in expenditure, stationery and other charges, is more than that of the receipts from the building licence fee by the works department. It is also explained that the expenditure includes personal cost and administrative cost among other costs. The Commissioner has also explained that as the number of building permission applications received by the Corporation are considerably increasing year by year, additional staff for scrutinising and sanctioning the plans have been posted to dispose of the applications quickly. It is also stated that the Corporation has posted staff to monitor the construction of the buildings whether the buildings are being constructed in accordance with the sanctioned plan and rules made there under. It is also stated that the administration cost has increased in processing building applications as the Corporation of Madras has computerised the issue of acknowledgements and planning permits. It is further stated that the cost of maintenance and repair of vehicles used by the inspecting officials to sanction the plan and enforcement officials have also increased. By referring to all those factual details, it is stated that the enhancement of building licence fee was necessitated and it is on quid pro quo principles. In this regard, the learned Advocate General has heavily relied on the following decisions in support of his contention that the fees collected have live nexus with the expenditure incurred and that the concept of quid pro quo in the strict sense is not the one and the only true index of a fee. The challenge in the first case AIR 1992 SC 1387 was mainly on the ground that the rates of fees fixed in Article 1 and Article 8-A in Appendix II to the Rules were disproportionately high having no nexus to the nature of services rendered and intended to augment revenue and partake character of tax and as such the levy suffered from the vice of arbitrariness, hostile discrimination and unreasonable restriction on trade. The High Court came to the conclusion that the necessary element of quid pro quo was absent and as such struck-down the amendment on the said ground. Reversing the judgment of the High Court, the Supreme Court in COMMISSIONER AND SECRETARY TO GOVT. C.T. & R.E. DEPARTMENT v. S.M.F. CORPORATION AIR 1992 S.C. 1387 has observed thus:- (para 14)
'14. This Court in several judgments over a period of 40 years has authoritatively crystalised the contradistinction between 'tax' and 'fee'. The judgments of this Court in COMMR. OF HINDU RELIGIOUS ENDOWMENTS, MADRAS v. SHRI LAKSHMINDRA THIRTHYA SWAMIYAR, :; H.H. SUDHANDARA v. COMMR. FOR HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS, : AIR1963SC966 ; HINGIR RAMPUR COAL CO. LTD., v. STATE OF ORISSA, : ; H.H. SWAMIJI v. COMMR. HINDU RELIGIOUS AND CHARITABLE ENDOWMENT DEPARTMENT, : [1980]1SCR368 ; and SOUTHERN PARMACEUTICALS AND CHEMICALS, TRICHUR v. STATE OF KERALA, : were considered by this Court in MUNICIPAL CORP. OF DELHI v. MOHD. YASEEN, : [1983] 142 ITR 737 (SC) wherein the Court speaking through Chinnappa Reddy, J. held as under (at pp.620-21 of AIR):- 'What do we learn from these precedents? We learn that there is no generic difference between a tax and a fee, though broadly a tax is a compulsory exactions as part of a common burden, without promise of any special advantages to classes of tax-payers whereas a fee is a payment for services rendered, benefit provided or privilege conferred, compulsion is not the hall-mark of the distinction between a tax and a fee. That the money collected does not go into a separate fund but goes into the consolidated fund does not also necessarily make a levy a tax. Though a fee must have relation to the services rendered, or the advantages conferred, such relation need not be direct; a mere casual relation may be enough. Further, neither the incidence of the fee nor the service rendered need be uniform. That others besides those paying the fees are also benefited does not detract from the character of the fee. In fact the special benefit or advantage to the payers of the fees may even be secondary as compared with the primary motive of regulation in the public interest. Nor is the Court to assume the role of a cost accountant. It is neither necessary nor expedient to weigh too meticulously the cost of the services rendered etc. against the amount of fees collected so as to evenly balance the too. A broad correlationship is all that is necessary. Quid pro quo in the strict sense is not the one and the only true index of a fee; nor is it necessary absent in a tax.'
After laying down the broad relationship between 'levy' and 'tax' and accepting the reasons for enhancing the fees under the Tamil Nadu Chit Fund Rules, Their Lordships have held as follows:- (para 17)
'17. We are of the view that the High Court fell into error in quashing the impugned Amendments. The enhanced fee, in this case, is justified on the legal as well as the factual anvil of quid pro quo. Apart from the appointment of Registrar, its staff and various other functionaries, the scheme of the Act in its operation involves huge expenditure which is entirely met out of the Fee-Fund. The fees collected under the Act have, therefore, live nexus with the expenditure incurred for the benefit of the chit fund business.'
In the light of the above conclusion coupled with the particulars furnished by the Commissioner, Corporation of Madras in his counter affidavit, I am satisfied that the enhanced fee is justified on the legal as well as the factual anvil of quid pro quo.
16. In SECRETARY TO GOVERNMENT OF MADRAS v. P.R. SRIRAMULU, reported in : AIR1996SC767 , the conclusion arrived at by Their Lordships is as under:- (para 14 and 16)
'14.......As discussed above if the essential character of the levy is that some special service is intended as quid pro quo to the class of citizens which is intended to be benefited by the service and a broad and general correlation between the amount so collected and the expenses incurred in providing the services is found to exist, then such levy would partake the character of a 'fee', irrespective of the fact that such special services for which the amount by levy of fee is collected incidentally and indirectly benefit the general public also. In order to establish the correlation between the amount recovered by way of 'fee' and the expenses incurred in providing the service they should not be examined so minutely or be weighed in golden scale to discern any difference between the two. It is not necessary to ascertain the same with any mathematical exactitude for finding the correlation but the test would be satisfied if a broad and general correlation is found to exist and once such a broad correlation between the totality of the expenses on the services rendered as a whole on the one hand and the totality of the amount so raised by way of the fee, on the other is established, it would be no part of the legitimate exercise in the examination of the constitutionality of the concept of the impost to embark upon its effect in the individual cases. If the aforesaid relation is found to exist in the levy of the fee, the levy cannot be said to be wanting in its essential character of a fee on the ground that the measure of its distribution on the persons or incidence is disproportionate to the actual services made available to them........
16.........Apart from the facts stated above it may also be taken note of that there could not be any scientific method by which the levy of fee may be made exactly corresponding to the expenditure in a particular year relating to the administration of civil justice. Some fluctuations are bound to occur in respect of the recoveries by levy of fee and the expenditure on administration of civil justice. In any case it is also not the requirement of law that the collection raised through the levy should exactly tally or correspond to the expenditure in the administration of civil justice. It has already been ruled by this Court that the correlation between the amount raised through the fee and the expenses incurred in providing the services should not be examined with exactitude with a view to ascertain any accurate and arithmetical equivalence but the test would be satisfied if a broad and general correlation is found to exist....'
It is clear from the said decision that there could not be any scientific method by which the levy of fee may be made exactly corresponding to the expenditure. It is also clear that it is not the requirement of law that the collection raised through the levy should exactly tally or correspond to the expenditure.
17. In B.S.E. BROKERS' FORUM v. SECURITIES AND EXCHANGE BOARD OF INDIA, reported in : regarding the regulatory levy and the adherence to the principle of quid pro quo, Their Lordships have held that there has been a sea change in the judicial thinking as to the difference between a tax and a fee. The traditional concept of quid pro quo in a fee has undergone considerable transformation. So far as the regulatory fee is concerned, the service to be rendered is not a condition precedent and the same does not lose the character of a fee provided the fee so charged is not excessive. It is also not necessary that the services to be rendered by the collecting authority should be confined to the contributories alone. If the levy is for the benefit of the entire industry, there is sufficient quid pro quo between the levy recovered and services rendered to the industry as a whole. In the present case the statute under Section 11 of the Act requires the Board to undertake various activities to regulate the business of the securities market which requires constant and continuing supervision including investigation and instituting legal proceedings against the offending traders, wherever necessary. Such activities are clearly regulatory activities and the Board is empowered under Section 11 (2) (k) to charge the required fee for the said purpose, and once it is held that the fee levied is also regulatory in nature then the requirement of quid pro quo recedes to the background and the same need not be confined to the contributories alone. Similar view has been expressed in STATE OF TRIPURA v. SUDHIR RANJAN NATH, reported in : . It is clear from the above decisions that the traditional concept of quid pro quo in a fee has undergone considerable transformation. It is also clear that in so far as the regulatory fee is concerned, the service to be rendered is not a condition precedent and the same does not lose the character of a fee provided the fee so charged is not excessive. In the cases on hand, as I have already stated, the petitioners have not furnished the factual details in the affidavit. On the other hand, the Commissioner, Corporation of Madras has highlighted the enhancement made by the Special Officer (Council) by way of resolution, enhancing the building licence fee and other fee. He also furnished the existing fee and the revised/enhanced fee as per the subsequent resolutions. In every occasion the enhancement is only to the extent of 10 per cent. I have already referred to the reason which necessitated the enhancement for licence fee and other fees. In the absence of reply affidavit disputing those factual materials and in the light of the principles laid down in the above referred decisions, I do not find any valid reason to reject the information furnished by the Commissioner; accordingly I hold that the enhanced licence fee, other fees so charged is not excessive or violative of Articles 14, 19(1)(g) and 300-A of the Constitution of India as claimed by the petitioners. On the other hand, as stated above, the impugned demand of fee is reasonable and not excessive. I am satisfied that the Corporation of Madras has enhanced the requisite fee after taking into consideration the expenses involved in processing and issuing building licences and the services rendered to the applicants. It cannot be disputed that the cost of each and every item of stationery, salary etc., are being increased, so the enhancement of fees are warranted. I have already held that the grant of planning permission is altogether different from building permission. The particulars furnished also show that the Corporation of Madras has set up a separate department called Town Planning Department for grant of building licence, planning permission and to monitor as well as supervise the construction of buildings. The building rules have been framed to regulate the construction of buildings. The levy of building licence fee is by virtue of Section 365 (2) of the M.C.M.C.Act. The collection of development charges is under the provisions of the Town and Country Planning Act and the collection of building licence fee is in accordance with the provisions of the M.C.M.C. Act. I am also satisfied that though the planning authority granted planning permission, the building permission is necessary from the local body to construct the building under the M.C.M.C.A ct. The enhancement of building licence fee and other fee and collection of security deposit are valid, legal and in accordance with law.
18. In the light of what is stated abovem there is no merit in the claim made by the petitioners; consequently both the writ petitions fail and are accordingly dismissed. All the connected W.M.Ps., are closed.