Karnataka High Court
Sri. Mahadeva S/O Gokol Pawar vs The State Of Karnataka & Ors on 28 January, 2015
Author: L Narayana Swamy
Bench: L. Narayana Swamy
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF JANUARY 2015
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
WRIT PETITION NO.104410 OF 2013 (LB-RES)
Between:
Sri Mahadeva
S/o Gokol Pawar
Age about 32 years
Occ: Agriculture
C/o B.S. Kabbin
R/o Rajendra Nagar, Adarsha Nagar
Behind Police Station
Bijapur 586 101
...Petitioner
(by Shri Sudhirsingh R. Vijapur, Advocate)
And:
1. The State of Karnataka
Rep by its Secretary
Department of Urban Development
M.S. Building, Bangalore - 560 001
2. The Commissioner
Bijapur Urban Development Authority
Bijapur 586 101
3. The Deputy Commissioner
Bijapur District, Bijapur 586 101
...Respondents
(by Shri Shivakumar Tengli, AGA for R1;
2
Shri S.S. Halalli, Advocate for R2)
This Writ Petition is filed under Article 226 and 227 of the
Constitution of India praying to issue a writ of certiorari and
declare that the provisions of Karnataka Town and Country
Planning (Amendment) Act, 2011 (Karnataka Act No.6 of 2012)
published in the official gazette dated 03.01.2012 (Annexure-B)
as invalid and unconstitutional as violative of Article 14 of the
Constitution of India and beyond the scope of other
constitutional provisions; and etc.
This Writ Petition coming on for Preliminary hearing 'B'
group, this day, the Court made the following:
ORDER
In this petition the petitioner has prayed for a writ declaring that the provisions of Karnataka Town and Country Planning (Amendment) Act, 2011 (Karnataka Act No.6/2012) published in Official Gazette dated 3rd January 2012 in No:
¸ÀAªÀå±ÁE 41 ±Á¸À£À 2011 ¨ÉAUÀ¼ÀÆgÀÄ as unconstitutional and arbitrary.
Similar challenge was made raising similar questions in Writ Petition No.103406 of 2013 and connected petitions. By its order dated 21st January 2015, the said petitions were dismissed following the order passed in Writ Petitions No.37442-37443 of 2012 and connected matters and by its order dated 9th June 2014.3
2. While dismissing the writ petitions No.37442-37443 of 2012 and connected matters, in paragraphs 10 to 12 and paragraphs 15 and 16 of its judgement, it is observed thus:
"10. To consider the constitutionality of the Act, the first and foremost thing that is required to be looked into is whether the Constitution permits the Legislature of the State to pass such a legislation. Once the legislature is found to possess the required legislative competency to enact the law imposing fee, the limits of that competence cannot be judged further by any forum or the manner in which that power is exercised. Entry 66 of List-II of Seventh Schedule to the Constitution empowers the State to pass such legislation. Entry 66 reads thus:
"Fees in respect of any of the matters in this list, but not including fees taken in any court."
When the power is traced under the said Entry, it is to be held that State Legislature has got competence to enact the law for levying the fee for the said purpose by bringing amendment to the Act. The Hon'ble Supreme Court, in the case of MUNICIPAL COUNCIL KOTA, RAJASTHAN v. DELHI CLOTH AND GENERAL MILLS COMPANY LIMITED reported in 2001(3) SCC 654, in the course of the judgment has held that "when the power is available under the List, it cannot be said that it is 4 unconstitutional for examining the amendment to the Act."
11. Article 243(x) of the Constitution of India enables the State Legislature to pass any law under clause (a) to authorize the Municipality to levy, collect and appropriate such taxes, duties, tolls and fees in accordance with such procedure and subject to such limits. When the State Legislature is empowered to legislate by bringing amendment to the Act, then the planning authority is competent to levy fee of Rs.1.00 lakh per acre for rejuvenation of tanks and hence no arbitrariness or error is found.
12. Hon'ble Supreme Court in the case of MUNICIPAL BOARD, HAPUR ETC VS JASSA SINGH & ORS. reported in 1996(10) SCC 377 at paragraph 6 has observed thus:
"6. Clause (b) thereof provides for the regulation or prohibition of any description of traffic in the streets where such regulation or prohibition appears to the Board to be necessary. It would, thus, be seen that the Board has been empowered statutorily to prescribe the fee for use of the public property vesting in or belonging to the municipality. Even under the recent amendment brought by the Constitution [73rd Amendment] Act, 1992 which came into force w.e.f. April 20, 1993, it imposes the statutory responsibilities on the municipalities. Article 243 - p(d) defines "municipal area" to mean the territorial area of a Municipality as is notified by the Governor. Article 243(a)(i) envisages that subject to the provisions of the Constitution, the 5 Legislature of a State may, by law, endow the municipalities powers and authority as may be necessary to enable them to function as institutions of self- government and such law may contain provisions for the devolution of powers and responsibilities upon municipalities, subject to such conditions, as may specified therein, with respect to the preparation of plans for economic development and social justice .Entry 17 of the 12th Schedule provides for public amenities including street lighting, parking lots, bus stops and public conveniences. Thus, the Constitution enjoins the appropriate Legislature to provide for preparation of the plans for economic development and social justice including power to provide public amenities including street lighting, parking lots, bus stops and public conveniences. On such public amenities including bus stops having been provided by the municipalities, as a is statutory duty, it is the duty of the user thereof to pay fee for service rendered by the municipality. The municipality had prescribed the minimum fee to the user at the rate of Re. 0.75 per day or part thereof, for use of any transport vehicle, as mentioned hereinbefore. The High Court is clearly in error in striking down the demand of fee power holding that it is ultra vires their power."
In view of the above, it is found that the State Legislature has competency since the subject is found in Entry 66 of List-II in the Seventh schedule to the Constitution and as such when amendment was brought to the Act, the Planning Authority has got competency. Accordingly, no arbitrariness is found.
13 and 14. xxx xxx xxx 6
15. In the light of above discussion what is tested is whether the power is extended to the State Legislature in List-II or not; and secondly, the State Legislature has enacted the law in accordance with law and the Constitutional provisions; and lastly whether the authority under the statute has exercised such power as per the amendment. It is found in answering the same in favour of the amendment. The Hon'ble Supreme Court in the case of THE COMMISSIONER, HINDU RELIGIOUS ENDOWMENTS, MADRAS VS., SRI LAKSHMEENDRA THIRTHA SWAMIYAR OF SHRI SHIRUR MUTT, reported in 1954 SCR 1005 has observed that the question be determined is whether the power to levy such specific tax has been assigned to the Legislature by the entries in the List over which its power is extended, if not the Courts must declare the imposition a ultra vires.
16. The fee is a payment levied by the State in respect of service provided by it for the benefit. It is levied on a principle just opposite to that of a tax. While tax is paid for common burden, fee is a payment made for some special benefit or privilege enjoyed/to be enjoyed and the payment is proportionate to such benefits. As already referred, in the recent trend it is not possible to expect an individual who pays the fee and services is attributed to him only. A service is available and attributable to all persons including the person who paid the fee. Special services rendered is distinctly and primarily meant for the benefit of specified class or the 7 State as a whole and may ultimately and indirectly the benefit would not detract from the character of levy as a fee. In the statement of objections, the Government has stated that the fee is collected for saving of lakes or water bodies, which are on the verge of extinct. Developers and builders who are putting up constructions and forming layouts are obstructing the natural streams which ultimately dry down the lakes also. Keeping this object in mind if the developers and builders are demanded to pay a fee for rejuvenation of lakes, and the collection of the said fee is after the decision of an expert body and before doing that the State legislature has brought amendment to the Act, it is to be held that the authorities have competency to do so."
3. The prayers made in these petitions are squarely covered by the order passed in the Writ Petitions No.103406 of 2013 disposed of on 21st January 2015 and connected matters referred to above. In terms of the order passed in the above Writ Petitions, this petition is also disposed of.
Sd/-
JUDGE lnn