Delhi High Court
Dma Nursing Home And Medical ... vs Union Of India And Others on 1 June, 2001
Equivalent citations: AIR2001DELHI471, 93(2001)DLT279, AIR 2001 DELHI 471, (2001) 93 DLT 279
Author: O.P. Dwivedi
Bench: O.P. Dwivedi
ORDER O.P. Dwivedi, J.
1. The petitioner, DMA Nursing Home and Medical Establishment, an association of about 350 nursing homes and medical establishments in Delhi have files this writ petition under Article 226 of the Constitution of India challenging the Vires of Guide-line Nos. IX and XI, issued by the respondent No. 1 in pursuance of notification No. 11017/7/91/DDIB dated 7th May 1999 permitting mixed land use namely nursing homes, guest houses and banks in the residential areas.
2. The first comprehensive Master Plan for Delhi Was notified under Section 7 of the Delhi Development Act, 1957 on 1st September 1962. Later on, on account of multifarious developments, the Central Government extensively modified the Master Plan 1962 under section 11A of the Delhi Development Act, 1957 keeping in view the new dimensions in urban development and the perspective for Delhi in the year 2001. This modified Master Plan was titled as "Master Plan for Delhi perspective 2001". Non residential activities like nursing homes were expressly excluded from the residential areas by virtue of clause 10.0 III (d) of Development code. Master Plan 2001 recognised that the planned city should be a hierarchical cellular structure with nuclie to contain essential facilities at different levels and with that end in view laid down standards to be followed while preparing divisional plans and area plans. Nursing homes were recognised as an essential facility and accordingly the Master Plan 2001 laid down that in the process of preparation of division and area plans provision ought to be made for two nursing homes of the area of 2000 sq. mt. each at the community level (2000 families with the population of the one lac). It appears that in actual implementation no land was earmarked for nursing homes either because the land designated for the said user in the zonal plan was subsequently allowed for purposes other than nursing homes or because there was no vacant land available which could be specified, designated for nursing homes. In the meantime many nursing homes came up in different parts of the city and for this property tax and other local taxes at commercial rates were charged from them. Besides, local authorities also charged a tax/fee from the nursing homes for disposal of the medical waste. It may be stated here that long back on the years 1953, Delhi Nursing Home Registration Act 1953 had been enacted with the objective of regulating nursing homes in Delhi by providing for registration and inspection. Realizing the necessity of having nursing homes in residential areas, Government of India, Ministry of Urban Development, Delhi Division, permitted Mixed land use vide notification No. II-11017/7/91/DDIB dated 7th May 1999 by making necessary modification in the Master Plan. BY this notification nursing homes, guest houses and Banks wee allowed to be run on residential plots of the minimum size of 209 Sq. ft. facing a minimum road with 18 mt. (9 mt in special area and 13.5 mt. in the rehabilitation colonies) subject to the conditions laid down under guide-lines issued in this regard. The guide-lines which were issued pursuant to notification dated 7th May, 1999, inter alia, provided that:-
(ix) a permission fee will be charged at the rate of 10% per annum of the difference between the current commercial rate and current residential rate as approved by this Ministry. The fees will be based on the actual floor area utilised for such non-residential purpose. The amount collected through tem levy of permission fee will be placed in a separate escrow account by the concerned local body collecting it and will be utilized for augmentation of infrastructure in and around the area.
(x) Where residential premises are already being put to such non-residential use, the same will be regularised on their payment of permission fee vide para (ix) above from the date from which its functioning has been established:
(xi) local bodies will ensure that permission fee is paid for each financial year within six months of that financial year. In case of violation of these guide-lines/default, prompt action will be taken to issue time-bound notice to party and in case of non-compliance close and seal the premises and permission fee with 100 % misuse fee recovered."
3. The petitioner has challenged this levy of permission/misuser fee on the ground that is it in the nature of the compulsory exaction of money without conferring may special advantage or services to class of citizens on whom the fee is being levied and there is no specific provision in the Delhi Development Act, 1957 or any other statute authorising respondent No.1 to impose such a fee. It is contended that there is no element of "quid pro quo" in the levy of such fees because guide-lines do not spell out any special advantage/facilities being conferred/provided to the nursing homes in particular. Besides, the imposition of such a fee without any legal sanction is ultra virus the Constitution and D.d. Act itself. It is further contended that fee is excessively onerous and confiscatory in nature which will lead to certain and inevitable closure fee besides being unduly excessively, is also discriminatory, expropriator and has no nexus with the alleged and purported object sought to be achieved and thus violates Articles 19(1)(g) of the Constitution of India.
4. It may be pointed out here that vide subsequent notification dated 22nd July 1999 clause x of he impugned guide-lines was modified and now the fee can be levied only prospectively and not retrospectively so petitioner's challenge is now confined only to clause IX and XI of the said guide-lines.
5. In its counter affidavit the respondent No. 1 UOI has deposed that notification dated 7th May 1999 where under these guide-lines were issued is an attempt to regulated commercial activities on the residential areas and to minimise the impact of commercial activities on the lives of the residents. The guide-lines also help in meeting the health service requirements through nursing homes and local banking facilities for the residents and to achieve this objective it is necessary to impose a fee to augment the infrastructure in the around the area. According to respondent No. 1 such fee can always be imposed by the respective local bodies under relevant acts namely DMC Act, NDMC Act and Delhi Development Act in so far as it relates to the building regulations and such levy cannot be said to a compulsory exaction because the petitioner has the option of not using the residential properties for commercial purposes.
6. In its separate affidavit, respondent No. 2/DDA has pleaded that before issuance of notification dated 7th May, 1999 all the nursing homes running in the residential area were unauthorised and although these were serving the medical needs of the local population, in several cases they adversely affected the peace, comfort and security of the neighborhood, disregarding any special arrangement for smooth circulation, parking, disposal of infectious wastes etc. That is why mixed user of the land was permitted vide notification dated 7th May, 1999 subject of course to the guide-lines. It is countended that under the provisions of Master Plan 2001 clause 10 which permitted mixed land use, a conversion fee is chargeable from the beneficiary and this conversion would depend upon two factors; (1) the cost of provision of parking, physical for residential and non-residential activity/use. It is averred that the permission fee is chargeable on annual basis until such time non-residential activities continue in the premises and the levy of such fee does not confer any right on the owner for permanent conversion of the plot from residential to commercial.
7. We have heard learned counsel for the parties and perused the record.
8. The basic principle of law regarding the imposition of tax by the State is contained in Article 265 of the Constitution of India. It lays down that no tax can be levied or collected except by authority of law. Although Article 265 of the Constitution of India speaks about tax only, it is by now a settled proposition of lw that whenever there is a compulsory exaction of money from the citizens there is a compulsory exaction of money from the citizens there must be a specific provision authorising imposition of such tax and/or fee. Learned counsel for the petitioner has cited several decisions of the Supreme Court in this regard. we may refer to the latest decision on the point in the case of Ahmedabad Urban Development Authority Vs. Sanat Kumar Jayanti Pasawal & Others reported in 1992 SC page 2038 - The facts in that case were that the respondens herein had filed a writ petition before the High Court of Gujrat seeking a declaration to the effect that the impugned regulation authorising levy of `development fee made under the Gujrat Town Planning and urban Development Act, 1976 are ultra virus Articles 14,19, and 21 of the Constitution of India as also the Act itself. The respondents sought appropriate writ dircting the development authority not to enforce or implement the said regulations and levy or recover any amount as development fee under the said regulations. It was contended on behalf of the writ petitioner therein that the levy of development fee by the Ahmedabad Urban Development Authority is not permitted by the statute so the levy and collection of various amounts by the development authority in the form of development fee was unauthorised. Moreover even if the State legislature had the power to make law authorising levy of such a fee, such power was not delegated to the State or to the Development Authority. High Court of Gujrat allowed the writ petition holding that even though the State legislature has the legislative competence under entry 66 of List II to make provisions for fee to be imposed by the Development Authority, no such provision was actually made by the legislature authorising the State or the Development Authority to levy such fee. In absence of such delegation by legislature the imposition of development fee was held ultra virus the Constitution of India as well as Gujrat Town Planning and urban Development Act, 1976. After scrutinising various provisions of the said Act, High Court of Gujrat held that neither the development authority nor any other authority has been vested with the power to charge development fee. Ahmedabad Urban Development Authority appealed to the Supreme Court and after taking note of various earlier decisions of the Court on the point Hon'ble Suprene Court observed as under:-
6. After giving our anxious consideration to the contention raised by Mr. Goswami, it appears to us that in t fiscal matter it will not be proper to hold that even in the absence of express provision, a delegated authority can impose tax or fee. In our view, such power of imposition of tax and/or fee by delegated authority must be very specific and there is no scope of implied authority for imposition of such tax or fee. It appears to us that the delegated authority must act strictly within the parameters of the authority delegated to it under the Act and it will not be proper to bring the theory of implied intent or the concept of incidental and ancillary power in the matter of exercise of fiscal power in the matter of exercise of fiscal power. The facts and circumstances in the case of district Council of Jowai, are entirely different. The exercise of powers by the Automonous Jantia Hills Districts are controlled by the constitutional provisions and in the special facts of the case, this Court has indicated that the realisation of just fee for a specific purpose by the autonomous District was justified and such power was implied. The said decision cannot be made applicable to the facts of this case or the same should not be held to have laid down any legal proposition that in matters of imposition of tax or fees, the question of necessary intendment may be looked into when there is no express provision of imposition of fee or tax. The other decision in Kharagram Panchayat Samiti's case, also deals with the exercise of incidental and consequential power in the field of administrative law and the same does not deal with the power of imposing tax and fee
7. The High Court has referred to the decisions of this Court in Hingir's case, and Jagannath Ramanuj's case and Delhi Municipal Corporations's case (Supra). It has been consistently held by this Court that whenever there is compulsory exaction of any money,m there should be specific provision for the same and there is no room for intendment. Nothing is to be read and nothing to be implied and one should look fairy to the language used.
We are, therefore, unable to accept the contention of Mr. Goswami. Accordingly, there is no occasion to interfere with the impugned decision of the High Court. The appeal, therefore, fails and it dismissed with no order as to costs."
9. In view of this categorical pronouncement by the Supreme Court it is obvious that the impugned levy has to be authority of some provision in the Constitution or under the DD Act and if there is not such provision in the Constitution or DD Act, the said levy will have to be struck down as being ultra virus the Constitution and the Act.
10. The DDA Act does not contain any specific provision authorising the levy of permission fee/misuser fee by DDA or by Government of India for allowing mixed land used in residential areas. Section 13 of the DDA Act contemplates collection of permission fee while granting permission for development of land under section 12 of the Act. "Development" as defined under section 2(d) of the DDA Act means carrying out of building, engineering, mining or any other operation in, on, over or under land or the making of any material change in any building or land and includes re-development." Section 56(2)(h) of the DDA Act empowers the Central Government to Frame rules regarding, inter alia, levy and collection of fee on an application for permission under section 13 of the DDA Act. A citizen willing to raise a building has to obtain the permission under section 12 of the DD Act. DDA can realise fee under section 13 before granting such permission. In the present case the buildings in which the nursing homes are being run have already been constructed. The petitioners are putting a part of the building to non residential use namely for running nursing homes. The fee levied by the impugned guide-lines is for allowing misuse and not for rasing the building. so the fee sought to be levied by these guide-lines cannot be said to be covered under section 13 of the DDA Act. It is not the case of the respondents in their counter affidavits that the permission Fee/misuser fee sought to be levied by the impugned guide-lines is covered under section 13 of the DD Act nor any such plea was raised on their behalf at the time of arguments. There is no other provisions in the DDA Act nor rules made there under for imposition of misuse fee to be levied by the impugned guide-lines. In their counter affidavits the respondents have not pointed out any specific provision in the DD Act under which such fee could be levied. In the written arguments dated 25th March, 2001 filed by the respondent No.2 DDA an attempt has been made to justify the levy of permission fee/misuser fee on the authority of section 7(3) of the DD Act which reads as under:-
7. Civic survey of, and master Plan for Delhi.
(1) XXXXX (2) XXXXX (3) The master plan may provide for any other matter which is necessary for the proper development of Delhi.
11. It was contended by the learned counsel for the respondents that under clause of 10 of the Master Plan which regulates mixed land use, DDA can realise "conversion fee" which is based on two factors namely (i) cost of provision for parking and physical and social infrastructure (ii) the deferential price of space of the residential and non-residential activities/use. So the misuse fee can also be levied under clause of the 10 of the Master Plan which is a part of the Statute.
12. Having given our anxious thought to the submissions made by leaned counsel for the parties, we are of the view that the permission fee/misuser fee sought to be imposed by the impugned guide-lines cannot be described as "conversion fee" for two reasons. Firstly, the conversion fee as contemplated under clause 10 of the Master Plan is a one time settlement for the conversion of the user of the land. But the impugned fee is chargeable on year to year basis so long as the misuse continues. Secondly even after the payment of intended permission fee/misuser fee, there is no conversion of the land use from residential to commercial. Even after payment of permission fee/misuser fee the land use remain residential. So permission fee/misuser fee sought to be imposed by the impugned guide-lines cannot be categorised as "conversion fee" as envisaged under clause 10 of the Master Plan. There is not other clause in the Master Plan authorising the levy of such permission/misuser fee. So this contention of the respondents has to be repelled.
13. Learned counsel for the respondents referred to entries No. 49 and 66 in List II of seventh schedule and Article 239AA Section #(a) of the Constitution of India and contended with reference to AIR 1974 SC 1232, AIR 1955 SC 549 and AIR 1982 SC 33 that the Parliament/Legislature has legislative competence to make laws imposing texas/fees in respect of the subjects mentioned in said entries and since the executive power of the Union/State extends to the matters with regard to which the Parliament or State Legislature has the power to make laws, the respondent No. 1 could very well issue impugned guide-lines in exercise of its executive power under Art. 73(1)(a) of the Constitution of India. This argument holds good in the entire filed of the executive power of the State except to the area where it is specifically prohibited by the law. Article 265 of the Constitution of India prohibits levy of tax except by authority of law. We have already noticed that it is the settled position of law that whenever there is a compulsory exaction of money there should be specific provision of law for the same and there is not room for any intendment. In the case of Commissioner of income-tax, Gujrat III, Ahmedabad Vs. Ahmedabad Rana caste Association -
it was observed that in exercise of its executive power the State is charged with the duty and the responsibility of carrying on the general administration of the State. So long as the State Government does not go against the provisions of the Constitution or any law, the width and amplitude of its executive power cannot be circumscribed. if there is no enactment covering a particular aspect, certainly the Government can carry on the administration by issuing administrative directions or instructions, until the legislature makes a law in their behalf. When Article 265 of the Constitution of India prohibits levy of any tax/fee except by the authority of law, Article 73(1)(a) of the Constitution cannot be pressed into service to justify the levy. There has to be specific enactment by the Parliament or the State legislature authorising such a levy. The Parliament could very well legislate and make special provisions in the DD Act empowering respondent Nos. 1 and/or 2 levy such a fee but, as already noticed, no such a fee but, as already noticed, no such power has been conferred on the respondents in the DD Act or any other Statute. Therefore, the Contention of the learned Counsel for the petitioner that the imposition of permission fee/misuser fee by the impugned guide-lines is without authority of law, must prevail.
14. Learned counsel for the respondent referred to section 57(1)(f) of the Delhi Development Act which reads as under: -
"57(1) The Authority, with the previous approval of the Central Government, may, be notification in the Official Gazette, make regulations consistent with this Act and the rules made there under, to carry out the purposes of this Act, and without prejudice to the generality of this power, such regulations may provide for-
(a) XXXXX (aa) XXXXX
(b) XXXXX
(c) XXXXX
(d) XXXXX
(e) XXXXX
(f) the terms and conditions subject to which user of and buildings in contravention of plans may be continued."
15. Learned counsel for the respondent No. 1 contended that the DD could issue the impugned guide-lines in exercise of its powers under section 57(1)(f) of the Delhi Development Act. Learned counsel further contended with reference to titled Sir Parmeshwari Prasad Gupta Vs. the Union of India That although in this case the impugned guide-lines have been issued by UOI and not by the DDA, the DDA should be deemed to have ratified the same. Section 57(1)(F) of the Delhi Development Act empowers the DDA to make regulations by notification in the official gazette regarding terms and conditions subject to which the use of land and building in contraventional of the plan may be continued. It is not the case of the DDA that it has made any such regulation by notification in the official gazette. No such notification has been brought to our notice. The impugned guide-lines are in the nature of inter departmental administrative instructions issued by the respondent No.1 and not by respondent No. 2. So the impugned guide-lines cannot be said to have been issued under section 57(1)(f) of the Delhi Development Act.
16. Further the element of "quid pro quo" in the intended levy of permission fee/misuser fee and services rendered specially to the persons paying such fee, is missing in this case. The impugned guide-lines issued in pursuance of the notification dated 7th May, 1999 do not spell out any scheme or estimate of the services which will be rendered to the nursing home owners in return to fee levied. As already stated the owners of the building are already paying house tax, electricity charges etc. at commercial rates and special provisions have been made by the local authorities for the disposal of medical wastes by paying a fee. The guide-lines provide that for a plot of the size of over 250 Sq. mt. the parking had to be provided within the plot itself. For smaller plots, land in the vicinity will be identified and the common parking area will be developed. Providing a "Parking" in the vicinity by itself, cannot be said to be service rendered specially to the nursing homes. There is no proposal or promise to provide any extra or additional facility or services specially to the nursing homes. Moreover the quantum of permission fee/misuser fee sought to be levied is in no way linked to cost of services, if any, which the respondents propose to provide to the nursing home owners. In the case of Government of Andhra Pradesh Vs. Hindustan Machine Tools Ltd. Hon'ble Supreme Court had stuck down the levy of permission fee by the Gram Panchayat for constructing building on the ground that there is no proposal or scheme for providing any special services to the class of people who build houses nor there is any link between the levy of fee and the cost of the proposed services. Hon'ble Supreme Court further observed that the fees are a sort of return or consideration for services rendered which makes it necessary that there should be an element of "quid pro quo" in the imposition of fee. There has to be co-relation between the fee levied by the authority and the services rendered by it to the person who is required to pay the fee. Hon'ble Supreme Court referred to some earlier decisions on the point namely AIR 1954. SC Page 282 And AIR 1975 SC 846 and held that for justifying the imposition of fee and authority has to show what services are rendered or intended to be rendered individually to the particular person on whom the fee is imposed. Moreover, the fact that the fee is being levied at a certain percentage of the capital value of the building shows that the Gram Panchayat itself never intended to co-relate the fee with the cost of services rendered or intended to be rendered by it. In the present case also there is no promise or proposal for providing any special services to the nursing home owners. Besides the fee has been calculated at fixed 10% of the difference in residential and commercial value of land. This means that the amount of permission fee sought to be levied by the impugned guide-lines is not co-related to the actual expenses incurred or to be incurred by the authority in providing special services, if any, to the nursing home owners. Of course the fee need not be an exact equivalent of the expenses incurred on providing the services or facilities but there must be some co-relation between the two. In the present case, neither the intended misuse fee has been sanctioned by any particular provision of the statute nor it is co-related to any special service or cost thereof. Thus the intended levy of the permission fee/ misuse fee by the impugned guide-lines suffers from these two major infirmities. So in view of the law laid down by the Supreme Court, it has to be struck down as being illegal.
17. The argument that the impugned levy cannot be said to be compulsive in nature because the petitioners always have the option of closing down their nursing homes in which case they will not be required to pay any permission fee, is inherently fallacious. Compulsion lies in the fact that the payment is enforceable by law against a man in spite of his unwillingness. The levy of income-tax will in any case be a compulsory exaction of money even though the citizens have the option of restricting their earnings below taxable limits. In the case of the Commissioner. Hindu religious Endowments, Madras Vs. Shri lakshmindra Thirtha Swamiar of Shri Shirur Mutt a similar argument was raised on behalf of the respondent that a fee cannot be said to be compulsory exaction because the fee is paid for availing some services from the authorities so by not availing those services from the authorities so by not availing those services one can avoid payment of fee and therefore fee is a voluntary payment and not a compulsory exaction. Hon'ble Supreme Court observed that the element of compulsion or coercion or coercion is present in all kinds of impositions through in different degrees and not totally absent in fee. The house tax has to be paid only by those who own the houses and the land tax by those who possess land. Municipal taxes are to be paid by those who have properties in the municipality. Persons who do not have/own houses lands or properties within the municipality would not have to pay these taxes. Yet these imposition will fall within the category of tax and nobody can argue that it is the choice of the people who own land, houses or properties because if they do not own land house or property there is not compulsion to pay texas at all. This argument of learned counsel for the respondent, therefore, deserves out-right rejection.
18. The avowed object of amending master plan vide notification dated 7th May, 1999 is to cater to medical needs of residents in residential colonies where the authorities would not earmark the land for nursing homes, child welfare & maternity centers as per standards laid down in the master plan. It is the failure on the part of the authorities to demarcate/designate land for nursing homes to run in to be run in the residential areas vide notification dated 7th May, 1999. But the conditions for allowing nursing homes to run in the residential colonies have been made so stringent vide guide-lines IX and XI that they virtually amount to denial of permission to run nursing homes in such colonies. for permanent conversion the "conversion Fee" under clause 10 of the master plan is to be paid only once at a foxed percentage of the differential in residential/commercial value of the land whereas for temporary permission, the fee is to be paid year to year at the same rate. Surely the cost of temporary misuse should not be more than the cost of permanent conversion. Apparently there is no reasonable nexus between the avowed object of permitting nursing homes in the residential colonies vide notification dated 7th may, 1999 and the imposition of the annual permission fee by the impugned guide-lines.
19. Lastly it was contended by the learned counsel for the respondents that the impugned guide-lines nos. Ix and XI which relates to be taken in case of non-payment of permission fee are inseparable from rest of the guide-lines. Therefore, if impugned guide-lines Nos. IX and XI are struck down, the rest of the guide-lines issued in pursuance of notification dated 7th May, 1999 must also perish. Reliance was placed on the decision of the Supreme Court in R.M.D. Chamarbaugwall and another Vs. Union of India wherein the Supreme Court had dealt with the Doctrine of severability at length. After considering several authorities of the subject, the Supreme Court summarised the doctrine of severability as follows:-
"1. In determining whether the valid parts of a statute are separable from the invalid parts therefore, it is the intention of the legislature that it the determining factor. The test to be applied is whether the legislature would have enacted the valid part if it had known that the rest of the statute was invalid.
2. If the valid and invalid provisions are so inextricably mixed up that they cannot be separated from one another, then the invalidity of a portion must result in the invalidity of the Act in its entirely. On the other hand, if they are so distinct and separate that after striking out what is invalid, what remains is in itself a complete code independent of the rest, then it will be upheld notwithstanding that the rest has become unenforceable.
3. Even when the provisions which are valid are distinct and separate from those which are invalid, if they all form part of a single scheme which is intended to be operative as a whole, then also the invalidity of a part will result in the failure of the whole.
4. Likewise, when the valid and invalid parts of a statute are independent and do not form part of a scheme but what is left/ after omitting the invalid portion is so thin and truncated as to be in substance different from what it was when it emerged out of the legislature, then also it will be rejected in its entirely.
5. The separability of the valid and invalid provisions of a statute does not depend on whether the law is enacted in the same section or different section; it is not the form, but the substance of the matter that it material, and that has to be ascertained on an examination of the Act as a whole and of the setting of the relevant provision therein.
6. If after the invalid portion is expunged from the statute what remains cannot be enforced without making alternations and modifications therein, then the whole of it must be struck down as void, as otherwise it will amount to judicial legislation.
7. In determining the legislative intent on the question of separability, it will be legitimate to take into account the history of the legislation, it object, the title and the preamble to it.
20. In a nutshell the doctrine of severability propunds that "when a statute is in part vaoid, it will be enforced as regards that the rest, if that is separable from what is invalid." We have carefully scrutinised the guide-lines issued in pursuance of notification dated 7th May, 1999 and we are unable to subscribe to the line of argument adopted by leaned counsel for the respondent. Guide-lines no. I, II, III relate to the minimum road frotage, maximum floor area/ FAR and maximum plot size on which nursing home could be permitted. Guide-line No. IV relates to the parking. Remaining guide-lines Nos. V, VI, VII And VIII relate to disposal of medical waste, branch offices of the banks and prohibitition as to the running of restaurant. We are unable to discern any organic link between the impugned guide-lines Nos. IX and XI and the remaining guile-lines. The other guide-line Nos. IX and XI. Learned counsel for the respondent further contended that the Union of India would not have allowed change of user from residential to commercial except on payment of fee and therefore the impugned guide-lines must be deemed to be integral part of the whole scheme. We have carefully perused the notification dated 7th May, 1999 and the impugned guide-lines and we find nothing therein to indicate that in permitting mixed land user the Union of India and any money motive. It does not appear to us that the mixed land user was allowed with the idea of collecting funds or to create a source of recurring income by levy of impugned fee. Moreover, under the law this could not be purpose of levy of fee because the amount of fee has to be co-related to the amount of expenditure likely to be incurred on providing some services/facilities to the person on whom the fee is levied So in our view, it will not be correct to say that impugned guide-line Nos. IX and XI are integral part of whole scheme and in absence thereof the remaining guide-lines or the notification cannot be made effective/operational.
21. In view of our discussion above, we have arrived at the conclusion that the imposition of permission fee/misuser fee and the proposed action for non-payment for such permission fee stipulated in the impugned guide-line Nos. IX and XI is in the nature of the compulsory exaction of the money without any authority of law. There is not element of "quid pro quo" between the levy of fee and services, if any rendered or proposed to be rendered to nursing homes owners who are supposed to pay the fee nor there is any co-relation between the two. Besides, the impugned levy has not reasonable nexus with the avoided object of providing medical services to the local residents.
22. In the result, the writ petition is allowed and the impugned guide-line Nos. IX and XI issued in pursuance of notification No H11017/7/91/DDIB dated 7th May 1999 are struck down as being illegal and ultra vires the Constitution and Delhi Development Act, 1957. There will, however, be no order are to costs.
23. Before parting with the case, we would like to clarify that under section 57-1(f) of the DD Act, the Authority is competent to make regulations with the previous approval of the Central Government to carry out the purpose of this Act laying down the terms and conditions subject to which the user of lands and buildings in contravention of the plan may be continued. While making such regulations a provision for imposition of fee for permitting user of lands and buildings in contravention of the plan can be made provided, of course, such imposition of the fee is otherwise in accordance with law.