AHMEDABAD URBAN DEVELOPMENT AUTHORITY Vs. SHARADKUMAR JAYANTIKUMAR PASAWALLA

JUDGEMENT

(1.) This appeal is directed against the judgment of the High Court of Gujarat dated August 22, 1983 in Special Civil Application No. 3494 of 1980 (reported in 1984 (1) GLR 401. The said Special Civil Application No. 3494 of 1980 arose out of a writ petition moved in the High Court of Gujarat by the respondents Nos. 1, 2, 3 infer alia for declaration that the provisions of Secs. 119(1) and 119(2)(c) of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as 'the Town Planning Act') are ultra vires and the impugned regulations purported to have been made under the Town Planning Act are ultra vires Arts. 14, 19 and 21 of the Constitution and the said regulations are also ultra vires the Town Planning Act itself. The writ petitioners also made a prayer before the High Court for appropriate writ, order or direction directing the Ahmedabad Urban Development Authority (hereinafter referred to as 'the Development Authority') not to enforce or implement the said regulations and not to levy or recover any amount as development fee under the said regulations. A prayer was also made for appropriate writ order or direction directing the Development Authority to refund the amount of development fees realised from the writ petitioners.

(2.) The High Court of Gujarat has held that Entry 66 of List II of Vllth 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 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 Sec. 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 scruitinising 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.

(3.) The High Court has referred to the decisions of this Court in Hingir Rampur Coal Co. Ltd v. Stale of Orissa, AIR 1961 SC 459 and Sir Jagannaih Ramanuj Das v. State of Orissa, AIR 1954 SC 400. This Court has held that between a tax and a fee there is no generic difference because in a sense both are compulsory exactions 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 duo 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. The High Court has also referred to another decision of this Court in the case of Delhi Municipal Corpn. v. Mohd. Yasm, AIR 1983 SC 617, wherein the compulsory nature of exaction by way of tax and fee partaking the character of tax has been reiterated and it has been held that there is no generic difference between tax and fee though broadly a tax is compulsory exaction 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 or benefit provided or privilege conferred. The High Court has held that since there is no express provision for imposition of fee and the State Government has not delegated any such power to the Development Authority to impose fees for development, the regulations framed for such imposition of fees and the demands made therefor are wholly unauthorised and illegal.