SHAM APPARTMENTS Vs. MUNICIPAL CORPORATION OF HYDERABAD

JUDGEMENT

(1.) In this batch of writ petitions the levy of betterment drainage imposed undercircular II. No.533/TP/A1/81 dated 9-4-81 issued by the Municipal Corporation Hyderabad is challenged. The facts as stated in the affidavit filed in W.P. No. 3102 of 1981 which are common in the batch are as follows: The affidavit in support of this writ petition is filed by one Mr. S.R.Kamath. The petitioners are the builders carrying on the business of constructing multistoreyed complexes and other residential or commercial buildings. The object behind this busi ness is to construct and provide multi-storeyed flats on ownership basis to various families to provide accommodation at reasonable cost in the twin cities of Hyderabad and Secunderabad. The petitioners are also carrying on business of constructing commercial complexes for the purpose of housing a shopping centre and having various types of shops at one place with a view to provide the benefit to the public to facilitate purchase of all their requirements at a single place.

(2.) The first resdondent Municipal Corporation of Hyderabad (hereinafter called the Corporation) is a statutory body having authority and jurisdiction conferred by the statute HYDERABAD MUNICIPAL CORPORATION ACT, 1955, to regulate and control the constructions of buildings, being authorised to grant permit in respect of buildings to be constructed. While granting the permit the corporation is charging a permit fee in accordance with the provisions of the Statute. Apart from that the corporation is also imposing what is called 'Drainage Betterment Charges" on each building permit on the plinth areas basis. In this respect of Drainage Betterment Charges the General Body of the Hyderabad Municipal Corporation by its resolution No. 579 Dated 7.4.1981 has fixed the payment of Drainage Betterment Charges a Condition for grant of the building permit and the said resolution is being implemented with effect from 15-4-1981. When the petitioners submitted plans for building permit the corporation was insisting upon the payment of the said Drainage Betterment Charges as specified in the schedule annexed to the resolution, Such an action, as per the affidavit, is arbitrary, illegal and without jurisdiction, It is stated that the corporation being a Statutory Body is obliged " to act only in accordance with the statutory powers conferred by the provisions in the statute. There is no provision in the Hyderabad Municipal Corsporstion Act which gives a right authority or power to the respondents to demand or collect separate drainage betterment charges from the seekers of building permit. The property tax is collected under section 199 of the Corporation Act from the citizens every half-year which includes the drainage tax. When such a tax is collectd it is the function of the respondents under section 112 (4) of the Corporation Act to construct, maintain and cleanse the drains and drainage works for the convenience of the general Public. Therefore. the respondents have no authority or jurisdiction to charge separately for the purpose of their primary duty and function under the Statute. So, the demand for such a drainage betterment charges under the impunged circular is absolutely arbitrary and illegal.

(3.) There is also a reference nude to by-law No. 7 of the Municipal Bye-Laws. "Bye-Law No. 7 clearly states that no notice preferred under bye-laws 3 and 6 to 11 shall be deemed unless the person giving notice had paid to the commissioner in the notice the fees determined by the Commissioner from time to time, for the grant of permit inarcceipt in token of the said fee is attached to the notice, if the permit is refused, 3/4th of the fee shall be refunded to the applicant by a cheque or money order in the form specified in the Appendix 'B' after deducting necessary expenses". Therefore, from a reading of the above bye-law it is clear that the respondent has no authority or Power to demand separtely betterment drainage charges as is done in the impugned letter. It is further stated: