Karnataka High Court
Irayya S/O Shadakshrayya Galimath And ... vs The State Of Karnataka & Another on 18 February, 2015
Author: L Narayana Swamy
Bench: L.Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 18TH DAY OF FEBRUARY 2015
BEFORE
THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY
WRIT PETITION NOS. 204923/2014
& 201052/2015 (GM-RES)
BETWEEN:
1. Irayya
S/o Shadakshrayya Galimath,
Age: 37 years, Occ: Agriculture
2. Sangeeta
W/o Irayya Galimath
Age: 28 years, Occ: Household
Both R/o Sadhana Nivas,
Near Shanteshwar Mangal
Karyalay, Sindagi Road,
Indi, Dist: Bijapur.
... Petitioners
(By Sri Ameet Kumar Deshpande, Advocate)
AND:
1. The State of Karnataka
Rep. By its Secretary,
Department of Urban Development,
M.S. Building,
Bangalore - 560 001.
2
2. The Chief Officer
Town Planning,
Indi, Dist: Bijapur - 586 101.
... Respondents
(By Sri Shivakumar Tengli, AGA)
These Writ Petitions are filed under Articles 226 and
227 of the Constitution of India praying to issue a writ of
certiorari and grant the following reliefs: declare that the
provisions of Karnataka Town and country planning
(Amendment Act) 2011, (Karnataka Act No.6/2012),
published in the Karnataka Official Gazette dated 3.1.2012
in No.¸ÀAªÀå±ÁE 41 ±Á¸À£À ¨ÉAUÀ¼ÀÆgÀÄ the copy of which is at
Annexure-'B' as invalid and unconstitutional: quash the
demand raised by respondent No.2 on 5.7.2014 in file No.
À s/É «£Áå¸À/¹DvÁB07B2014-15 in so far as the amount of
AiÉÆÃ.¥Áæ.¥ÀÅgÀ¸¨
Rs. 2,33,426/- calculated at the rate of Rs. 1,00,000/- per
acre made under section 18(A) of the Karnataka Town &
Country Planning Act, towards Cess/Fee for rejuvenation of
Lakes of water bodies, the original is at Annexure-'A'.
These petitions coming on for preliminary hearing this
day, the Court made the following:
ORDER
Petitioners in these petitions have prayed for writ in the nature of certiorari declaring the provisions of Karnataka 3 Town and Country Planning (Amendment Act) 2011, (Karnataka Act No.6/2012), published in the Karnataka official gazette dated 3.1.2012 in No. ¸ÀAªÉʱÁE 41 ±Á¸À£À 2011, ¨ÉAUÀ¼ÀÆgÀÄ vide Annexure-B as invalid and unconstitutional. A further prayer is also made to quash the demand raised by the respondent No.2 on 5.07.2014 in file No.AiÉÆÃ.¥Áæ.¥ÀÅgÀ¸¨ À s/É «£Áå¸À/¹.Dgï-7/2014-15 insofar as the amount of Rs.2,33,426/- calculated at the rate of Rs.1,00,000/- per acre made under Section 18(A) of the Karnataka Town and Country Planning Act, towards cess/fee for rejuvenation of lakes or water bodies.
2. Similar challenge by taking similar questions was made 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. While dismissing the writ petitions No.37442- 37443 of 2012 and connected matters, in paragraphs 10 to 4 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 unconstitutional for examining the amendment to the Act."
511. 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 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 6 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
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 7 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 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 8 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."
4. The prayers made in these petitions also are squarely covered by the order passed in the Writ Petitions No.103406 of 2013 and connected matters disposed of on 21st January 2015 referred to above. In terms of the order passed in the above Writ Petitions, these petitions are also disposed of.
Learned Government Advocate is permitted to file memo of appearance within a period of six weeks.
Sd/-
JUDGE sdu