Anil Kumar Sen, J. - (1.) The point that arises for consideration in this writ petition is as to what should be the proper criterion for assessment of the fee payable to the Corporation of Calcutta for grant of permission to build as granted in the present case.
(2.) On the pleadings material facts are not disputed. Petitioner Archbishop of Calcutta, is the owner of plot No. 63, scheme No. LII C. I. T. within the municipal limits of Calcutta. He proposed to build a school for poor children and a chapel on the said plot out of a fund raised mainly from public charities. On March 23, 1967 he applied for necessary sanction of a building plan submitted to the Corporation of Calcutta. Under the Calcutta Municipal Act, 1951 and the scale of fees fixed by the Corporation thereunder certain fees for such sanction are payable to the Corporation. As such fees are payable on varying scales for varying types of buildings, there arose some dispute as to what should be the proper quantum of fee payable by the petitioner for the sanction prayed for. For early clearance of the plan for sanction, the petitioner was made to deposit on demand by the Corporation of Calcutta a sum of Rs. 14,280/-, when deposit was made on April 28, 1967. It appears that such amount was assessed calculating the fee at the highest rate and such amount represents the maximum payable fee under the scale so fixed by the Corporation. The deposit was made on demand by the Corporation obviously on an understanding that on the assessment of the correct amount of fee payable under the law any excess amount so realised would be refunded by the Corporation. Corporation accorded sanction on May 3, 1967. On July 25, 1967 the petitioner demanded refund of the excess amount realised from him on account of the fees payable for the disputed sanction. Under paragraph 54 (4) of Schedule 16 to the Calcutta Municipal Act, 1951 every applicant for sanction of a building plan is liable to pay a fee which is to be assessed on a scale fixed by the Corporation with the approval of the State Government At the time when the sanction was sought for and granted the scale so fixed by the Corporation under the aforesaid statutory provision was as follows:-- "XII. Scale of fees for the grant of written permission under Rule 55 of Schedule XVI are as follows:-- (1) For building work upto 10,000 cft--Rs. 15. (2) For building work from 10,001 to 20,000 cft--Rs. 30. (3) For building work from 20,001 to 30,000 cft--Rs. 45. (4) For building work from 30,001 to 40,000 cft--Rs. 65. (5) For building work from 40,001 to 50,000 cft--Rs. 85. (6) For building work thereafter for every additional 10,000 cft--Rs. 25. (i) The above scale of fees be considered as the basic scale and will be applicable to dwelling houses only. (ii) For domestic class buildings other than dwelling double basic rates be charged. (iii) For warehouse class buildings within permissible area, three times the basic rates be charged. (iv) For warehouse class buildings in non-declared areas and for public buildings as defined in Section 5 (59) excluding charitable and educational institutions, etc., four times the basic rates be charged. (v) For public buildings such as charitable and Educational institutions, etc. half the basic rates be charged, with the approval of the Standing Buildings Committee." But the scale so fixed was under revision by the Corporation for which Government approval had been sought for and was being awaited at the relevant time. The Government accorded its approval to the new revised scale on August 11, 1967. The scale so revised is as follows:-- JUDGEMENT_493_AIR(CAL)_1973Html1.htm Note:-- (i) above scale of fees be considered as the basic scale and will be applicable only to dwelling houses. (ii) For domestic class building other than dwelling 3 times of the basic rates be charged. (iii) For warehouse class building within permissible area 4 times of the basic rates be charged. (iv) For public buildings as defined in Section 5/59 excluding charitable and educational institution etc. 6 times of the basic rates be charged. (v) For public buildings such as charitable and educational institution etc., half the basic rate be charged, with the approval of the Corporation through the Standing Finance and Establishment Committee." Revision as aforesaid brought in two noteworthy changes. In the first place under the revised scale there had been a general enhancement of fees payable as basic rate and secondly, the fees payable in respect of public buildings other than those of charitable and educational institutions were enhanced to six times the basic rate from four times the basic rate as in the old scale.
(3.) It is not in dispute that in the present case the Corporation demanded Rupees 14,280/- from the petitioner assessing the fee payable not only under the revised scale which had not then received the Government approval but also under note (iv) thereof as ordinary public buildings. This the Corporation did notwithstanding the admitted position that the proposed building is a public building for a charitable and educational institution. In claiming refund, the petitioner pointed out that the fee for the sanction had been wrongly assessed under note (iv); it being a charitable and educational institution proper assessment should have been made under note (v). It was claimed that the petitioner is liable only to pay half the basic rate and not six times such rate as assessed by the Corporation and as realised from him. Though the refund was claimed immediately after the deposit and the sanction, the Corporation sat over the matter for a long time. Only on March 30, 1970 the petitioner was informed of a decision taken in a resolution dated December 23, 1969 by Standing Finance and Establishment Committee. The resolution so communicated is a laconic one and reads as follows:-- "that the Committee do express its regret that it is unable to entertain the proposal." Obviously such a decision was taken by the said Committee in purported exercise of its discretion to accord approval under note (v) of the revised scale though there is no indication in the resolution itself as to under what authority the decision was so taken. The decision, however, gives no reason. Strangely, what is not at all in dispute either now or at any time is that the building proposed is one of a charitable and educational institution. That being so, only fee payable, in my opinion, would be as specified in note (v) of the revised scale. It is the validity of this decision and the consequential refusal to refund the excess fees realised from the petitioner which is the subject-matter of challenge before me in this writ petition.;