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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 10111 of 1983.

From the Judgment and Order dated 22.8.1983 of the Gujarat High Court in Special Civil Application No. 3494 of 1980.

P.K. Goswami and P.H. Parekh for the Appellants. P.C. Kapur (NP) and M.N. Shroff (NP) for the Respondents.

The Judgment of the Court was delivered by G.N. RAY, J. This appeal is directed against the judgment of the High Court of Gujarat dated August 22, 1983 in Special Civil Application No.3494 of 1980. The said Special Civil Application No.3494 of 1980 arose out of a Writ petition moved in the High Court of Gujarat by the respondents Nos. 1,2,3 inter alia for declaration that the provisions of Sections 119(1) and 119(2)(c) of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as the Town Planning Act) are ultra vires and the impugned regulations purported to have been made under the Town Planning Act are ultra vires Articles 14, 19 and 21 of the Constitution and the said regulations are also ultra vires the Town Planning Act itself. The Writ Petitioners also made a prayer before the High Court for appropriate writ, order or direction directing the Ahmedabad Urban Development Authority (hereinafter referred to as the Development Authority) not to enforce or implement the said regulations and not to levy or recover any amount as development fee under the said regulations. A prayer was also made for appropriate writ, order or direction directing the Development authority to refund the amount of development fees realised from the Writ Petitioners.

(d) Even if there is any power to levy such fee by the State Legislature in the absence of delegation of such power, the Development Authority could not impose any development fee.

The High Court of Gujarat has held that Entry 66 of List II of VIIth Schedule to the Constitution deals with fees in respect of any of the matters in the said List but not including any fee taken in any Court. Entry 5 of List II of that Schedule refers to Constitution and powers of improvement trust and other local authorities for the purpose of local self government or village administration. The High Court has held that under Entry 66, the State Legislature has legislative competence to make provisions for fees to be imposed by the Development Authority constituted under Section 31 of the said Act. The High Court has, however, held that simply because there is legislative competence for the State Government to charge fees for the Urban Development Authority, it cannot be held that demands for the development fee and/or imposition of the same by the Development Authority under the impugned regulations is legal and valid. The High Court has indicated that it is to be seen whether under Town Planning Act, a specific power has been given to the Development Authority to impose such development fee. After scrutinising the provisions of the Town Planning Act, the High Court has come to the finding that the Development Authority or as a matter of fact any other authority under the Act has not been vested with the power to charge betterment or the development fee.