- (1.) Heard learned Counsel for the appellants as well as for the respondents, in appeal. By consent of both the parties, the matter is taken up for final disposal on merits.
(2.) It is not in dispute that the respondent/writ petitioner is putting up a construction of residential quarters at the instance of the Government of West Bengal. It is also not in dispute at the time of sanction of building plan certain amounts were collected by the Kolkata Municipal Corporation towards drainage development charges. However, this became subject matter of dispute which is altogether a different cause of action from the cause of action of the present appeal. The cause of action of the present appeal is a demand dated 21.01.2013 requesting the respondent/writ petitioner to deposit additional sum of Rs.40,47,630/-(Rs. Forty lac forty seven thousand six hundred and thirty only) for construction of box drain which includes supervision charges so as to replace and service the drain running in front of the premises of the construction unit. This came to be challenged on the ground that till date no regulation of any nature as contemplated is formed in terms of Section 289 of Kolkata Municipal Corporation Act, 1980 authorising the Kolkata Municipal Corporation to recover such expenses spent for the construction of drainage connections so far as the private house drainage system. According to the appellant Corporation under Section 307 of the said Act they are authorised to exercise such power and, therefore, such provision read with Section 131 of the Act clearly authorises Kolkata Municipal Corporation to levy such fee on private house owners. In other words according to them the estimate for the construction of box drainage system had approval of the budget as it was included in the budget for 2013-14. Therefore, they were justified in demanding such an amount. Reading Section 307 along with Section 131 mentioned below clearly indicates what exactly is the amount that has to be collected under Section 307 which also has to be supported by a regulation. "307. Power of Municipal Commissioner to charge for drainage and sewerage service in certain cases.- (1) The Municipal Commissioner may subject to such terms and conditions as to payment, quantity or period as may be fixed under this Act or the rules or the regulations made thereunder, levy a charge for drainage and sewerage service in any case which is governed by the provisions of section 239 or section 248 or section 249. (2) Any unpaid sum under this section shall be recoverable from the person concerned as an arrear of tax under this Act."
(3.) Reading of Section 307 clearly indicates, it is annual fee that has to be charged under Section 307. So far as the present charges are concerned according to the learned Counsel arguing for the appellant as they had obtained a loan from Asian Development Bank for the improvement of the drainage system in the locality in question, naturally they are entitled to collect the same from the prospective construction units as they are providing civic amenities to the occupants or the builder of the construction. Section 289 reads as follows ;- "289. Right of owner or occupier of premises to drain into municipal drawin.- (1) Subject to such regulations, as the Corporation may make in this behalf, the owner or occupier of any premises having a private housedrain may apply to the Municipal Commissioner to have his house-drain made to communicate with the municipal drains and thereby to discharge foul water and surface water from those premises : Provided that nothing in this sub-section shall entitle any person- (a) to discharge directly or indirectly into any municipal drain any trade effluent from any trade premises except in accordance with the provisions made under this Act or any liquid or other matter the discharge of which into municipal drains is prohibited by or under this Act or any other law for the time being in force; or (b) Where separate municipal drains are provided for foul water and for surface water, to discharge directly or indirectly " (i) foul water into a drain provided for surface water, or (ii) except with the permission of the Municipal Commissioner, surface water into a drain provided for foul water; or (c) to have his house-drain made to communicate directly with a stormwater overflow main. 2. Any person desirous of availing himself of the provisions of sub-section (1) shall give to the Municipal Commissioner notice of his proposals, and at any time within one month after receipt thereof the Municipal Commissioner may grant permission or by notice to him refuse to permit the communication to be made, if it appears to him that the mode of construction or condition of the house-drain in such that the making of the communication would be prejudicial to the drainage system, and for the purpose of examining the mode of construction and condition of the house-drain he may, if necessary, require it to be laid open for inspection. 3. The Municipal Commissioner may, if he thinks fit, construct such part of the work necessary for having a private house-drain made to communicate with a municipal drain as is in or under a public street and in such a case, the expenses incurred by the Municipal Commissioner shall be paid by the owner or occupier of the premises in advance with such regulations as may be made by the Corporation in this behalf." Reading Section 289 clearly indicates there has to be a regulation. So far as Section 289 is concerned it indicates how a particular fee or cost could be charged and what would be the basis for such estimation. As a matter of fact neither the quantum of demand nor the procedure for arriving at such estimation is the subject matter of contest. The very authority to levy such amount under Section 307 of the Act is under challenge. Reading of both the Sections, i.e. Section 289 and Section 307, they clearly indicate till date the Corporation has not evolved or formed any regulation under which they could charge or levy the amount in question. In order to demand such amount from the prospective builder there has to be an authority to levy such amount and such authority for the purpose of levying the amount must be regulated by a regulation which is absent in the present procedure.;