TMI Blog2007 (5) TMI 687X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 687 of 2005 and W.P. No. 1261 of 2003, Mr. Saktinath Mukherjee, Mr. Subrata Kumar Basu, Mr. Sanjib Kumar Mal, Mr. Bimalendu Das, Mr. M. Khatua for Respondent/Opposite Party in A.P.O. No. 144 of 2005, A.P.O.T. No. 194 of 2005, W.P. No. 1261 of 2003, Mr. Saktinath Mukherjee, Mr. Subrata Kumar Basu, Mr. Sanjib Kumar Mal, Mr. Bimalendu Das, Mr. Amiya Narayan Mukherjee, Mr. Sourav Bandyopadhyay, Mr. Dip Narayan Mukherjee for Respondent/Opposite Party in A.P.O. No. 34 of 2004, A.P.O.T. No. 23 of 2004, W.P. No. 741 of 2003, A.P.O. No. 36 of 2004, A.P.O.T. No. 25 of 2004, W.P. No. 108 of 2003, A.P.O. No. 37 of 2004, A.P.O.T. No. 26 of 2004, W.P. No. 81 of 2003, A.P.O. No. 38 of 2004, A.P.O.T. No. 27 of 2004, W.P. No. 2067 of 2002, A.P.O. No. 39 of 2004, A.P.O.T. No. 28 of 2004, W.P. No. 961 of 2003, A.P.O. No. 40 of 2004, A.P.O.T. No. 29 of 2004, W.P. No. 2139 of 2002, A.P.O. No. 41 of 2004, A.P.O.T. No. 30 of 2004, W.P. No. 740 of 2003, Mrs. Vijaya Bhalia for Respondent/Opposite Party in A.P.O. No. 35 of 2004, A.P.O.T. No. 24 of 2004 and W.P. No. 1003 of 2003 JUDGMENT Bhaskar Bhattacharya, J. 1. All these Mandamus-Appeals along with a separate writ-application have be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs, there is no provision in the Kolkata Municipal Corporation Act, 1980 and the Rules and Regulations framed thereunder, enabling the Kolkata Municipal Corporation Authority to demand any amount by way of Drainage Development Fees for sanction of the Building Plan. The writ-petitioners, therefore, prayed for declaration that the circular No. 08 of 2002-2003 issued by the Commissioner of the Kolkata Municipal Corporation was ultra vires the Constitution of India and the Kolkata Municipal Corporation Act and the Building Rules framed thereunder and consequently, prayed for quashing of the said circular and the resulting demand of money on the basis of such circular. 6. Those writ-applications were contested by the Kolkata Municipal Corporation by filing affidavits-in-opposition and the defence taken by the Corporation was that the year's budget estimate of the Corporation regarding rates, taxes, fees and charges to be levied by the Corporation contained a specific provision for realization of the fees for Drainage Development and specific rates were mentioned therein and the Mayor with the concurrence of the members of the Mayor-in-Council and the Municipal Commissioner duly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) .... (2) Any person desirous of availing himself of the provisions of sub-section (1) shall give to the Municipal Commissioner notice of his proposals, and at any time within one month after receipt thereof the Municipal Commissioner may grant permission or by notice to him refuse to permit the communication to be made, if it appears to him that the mode of construction or condition of the house-drain in such that the making of the communication would be prejudicial to the drainage system, and for the purpose of examining the mode of construction and condition of the house-drain he may, if necessary, require it to be laid open for inspection. (3) .... 290. Connections with municipal drains not to be made except in conformity with section 289. - No person shall without complying with the provisions of section 288 or section 289 and the regulations made thereunder make or cause to be made any connection of a house-drain belonging to himself or to some other person with any municipal drain and the Municipal Commissioner may close, demolish, alter or remake any such connection made in contravention of this section, and the expenses incurred by the Municipal Commissioner in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , or any underground water reservoir, for conveying to the premise the supply of wholesome or unfiltered water from the service mains of the Corporation, and pipes, septic tanks, house drains or other means of communication with any Municipal drain, or the traps or apparatus connected therewith, with reference to section 313. 7(d) a plan showing the position of pipes, underground and overhead reservoirs of water supply and house drains, septic tanks, if any, or means of communication with any municipal drain or the traps or apparatus connected therewith in conformity with section 313. 24. Notice for covering up drains, etc. - (1) Before proceeding to cover up drains or appliances connected with the drainage, the applicant shall give a notice to the Municipal Commissioner in the form as specified in Schedule XI stating that such drains or appliances are ready for inspection and shall specify the date and hour not being a date earlier than seven days from the date of the notice on which he will proceed to cover up such drains or appliances. (2) An officer of the Corporation duly authorised by the, Municipal Commissioner in this behalf shall inspect the work at the site an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legated 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 official power. 14. Bearing in mind the aforesaid principles and after going through the various provisions of the Act, the Rules and the Regulations framed thereunder, referred to by Mr. Mitra, the learned senior advocate appearing on behalf of the appellant, we do not find that either in the Act or the Rules or the Regulations framed thereunder, any right or authority has been given to the Corporation to realise Drainage Development Fees from the owners of the land or the building at the time of the sanction of the Building Plan as condition precedent for grant of permission to raise building. 15. Mr. Mitra in this connection placed strong reliance upon the provision contained in sections 307 and 131 of the Act and contended that there being specific budget estimate enabling the Corporation to realise fees for Drainage Development and such provision having been approved by the Mayor-in-Council with the concurrence of the Municipal Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as condition precedent for sanction of the Building Plan of a proposed building for drainage development of the surrounding area by imposing such fees only on those persons who will apply for permission to erect building leaving other landowner or the owner of the building or the persons liable to pay property-tax. 19. We are, therefore, not at all impressed by the aforesaid contention advanced by Mr Mitra. 20. The next question is whether imposition of such fees is authorised by section 543(2) of the Act. 21. According to the said sub-section, except as otherwise provided in the Act or the Rules or the Regulations made thereunder, for every licence or written permission required to be signed by the Municipal Commissioner or any officer authorised to grant any permission, a fee may be charged at such rate as may from time to time be fixed by the Municipal Commissioner with the sanction of the Mayor-in-Council, and such fee shall be payable by the person to whom the licence or the written permission is granted. It is true that for the purpose of obtaining permission for construction of the building, written permission is necessary and in the Building Rules, specific provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... those Act, Rules or the Regulations. Thereafter, His Lordship distinguished the term fees from tax by referring to the element of quid pro quo in the former and came to further conclusion that the proposed Drainage Development Fees were within the purview of the property-tax as defined in section 2(68A) of the Act and thus, the attempt on the part of the Corporation to realise further amount of revenue by way of the disputed fees really amounted to double taxation. 28. The strict concept of difference between the terms fees and taxes has undergone change in course of last forty years as it appears from the various decisions of the Apex Court cited by Mr. Mitra. The following observations of the Supreme Court in the case of The Calcutta Municipal Corporation v. M/s. Sherry Mercantile Pvt. Ltd. (supra) will be sufficient for our purpose: As noticed in the City Corporation of Calicut (AIR 1985 SC 756) (supra), the traditional concept of quid pro quo in a fee has undergone considerable transformation. From a conspectus of the ratio of the above Judgments, we find that so far as the regulatory fee is concerned, the service to be rendered is not a condition precedent and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccording to the sanctioned seating capacity of the cinema-houses. The respondent's cinema-house had 551 seats and under the changed method, it became liable to a fee of Rs. 5/- per show. In the result, it became liable to pay a fee of Rs. 6,000/- per year. 33. The respondent then moved the High Court at Calcutta under Article 226 of the Constitution for a writ quashing the resolution. The application was first heard by Sinha, J., who allowed it. This order was confirmed by an Appellate Bench of the same Court consisting of Bose, CJ. and G.K. Mitter, J. on appeal by the Corporation. Hence, the said appeal before the Apex Court. 34. Before the Supreme Court one of the points taken was that, the levy authorised by sections 443 and 548 was a fee in return for services to be rendered and not a tax and it had therefore to be commensurate with the costs incurred by the Corporation in providing those services. It was further argued that Articles 19(1)(f) and (g) of the Constitution were violated in that case as section 548 gave an arbitrary power of taxation. These contentions found favour with the learned Judges of the High Court but the Apex Court negatived such contention in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is not really open to the respondent for section 548 does not use the word 'fee'; it uses the words 'licence fee' and those words do not necessarily mean a fee in return for services. In fact in our Constitution fee for licence and fee for services rendered are contemplated as different kinds of levy. The former is not intended to be a fee for services rendered. This is apparent from a consideration of Article 110(2) and Article 199(2) where both the expressions are used indicating thereby that they are not the same. In Shannon v. Lower Mainland Dairy Products Board, 1938 AC 708 : (AIR 1939 PC 36) it was observed at pp. 721-722 (of AC) : (at pp. 38-39 of AIR): if licenses are granted, it appears to be no objection that fees should be charged in order either to defray the costs of administering the local regulation or to increase the general funds of the Province or for both purposes.... It cannot as their Lordships think, be an objection to a licence plus a fee that it is directed both to the regulation of trade and to the provision of revenue. It would, therefore, appear that a provision for the imposition of a licence fee does not necessarily lead to the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view, while making such submission, Mr. Mitra totally overlooked the fact that in the case of Liberty Cinema, section 443 of the Act authorised imposition of licence-fee on the owner of the cinema hall whereas in the cases before us, there are no provisions in the Act or the Rules or the Regulations giving power of imposing Drainage Development Fees at the time of sanctioning of the building permission and as such, section 543 of the Act cannot come into play for saving the Corporation. 37. Therefore, we do not find any substance in the additional point taken by Mr. Mitra in the present appeal. 38. We, consequently, find no substance in the contentions raised by Mr. Mitra and hold that the learned single Judge rightly concluded that the imposition of Drainage Development Fees was unauthorised. 39. Now we take up the assigned writ-application filed by the Asian Leather Limited and another. 40. In view of our finding that the imposition of the Drainage Development Fees was illegal in the foregoing appeals, the only question that remains to be decided is whether the writ-petitioners are entitled to the refund of the money realised by the Corporation by virtue of the Circul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eaning of Article 12 of the Constitution is declared illegal and ultra vires the Statute which controls the activity of such State , the refund of money, is a matter of course. In support of such contention, Mr. Mukherjee relies upon the following decisions: 1) The Sales Tax Officer, Banaras Ors. v. Kanhaiya Lal Makund Lal Saraf, reported in AIR 1959 SC 135. 2) The State of Kerala v. Aluminium Industries Ltd., reported in 1965(16) ST 689. 3) State of Madhya Pradesh v. Bhailal Bhai Ors., reported in AIR 1964 SC 1006. 4) M/s. K.S. Venkatararnan Co. (P) Ltd. v. State of Madras, reported in AIR 1966 SC 1089. 5) Mahabir Kishore Ors. v. State of Madhya Pradesh, reported in AIR 1990 SC 313. 6) Commissioner of Sales Tax, U.P. v. M/s. Auriaya Chamber of Commerce, Allahabad, reported in AIR 1986 SC 1556. 43. After hearing the learned counsel for the parties and after going through the materials on record we are of the view that if a person makes payment by mistake of law, section 72 of the Contract Act is applicable and the period of limitation is three years as prescribed by Article 133 of the Schedule to the Limitation Act, 1963 and the provisions of section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he writ-application, declared the action of the Corporation as ultra vires. Therefore, in this case before us, there is no scope of any argument that the claim of the Asian Leather Private Limited was barred by the law of limitation. At this stage, it will not be out of place to mention the decision of the Supreme Court in the case of Sales Tax Officer, Banaras Ors. v. Kanhaiya Lal Makund Lal Saraf (supra), where the Supreme Court in clear language stated that merely because the State has not returned the money paid as sales-tax by the assessee but has spent them away in the ordinary course of the business of the State will not make any difference to the position under the plain terms of section 72 of the Contract Act and that the assessee would be entitled to recover back the monies paid by it to the State under mistake of law. Therefore, we do not find any substance in the contention of Mr. Ghosh that merely because the Corporation has spent that money for the purpose of public works, that fact would enable it to resist the claim of the writ-petitioners. 46. We now propose of deal with the decisions cited by Mr. Ghosh. 47. In the case of M/s. Orissa Cement Limited v. Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of rice would be collected from the millers before the issue of permits. The appellants applied for and obtained permits by fulfilling the two principal considerations. Subsequently, they applied to the Government to refund the amount paid as administrative surcharge as they had paid it under mistake of law and that the latter had no right to collect it. In the petitions, they contended that the respondent Government had no legal right to collect any administrative surcharge and therefore, the amount should be refunded. The appellant alleged that they made the payments under mistake of law. The High Court held that the levy of administrative surcharge was not backed by valid legislative sanction but observed that the appellants were not entitled to any relief on three grounds. First, the administrative surcharges were paid voluntarily by the appellants. Secondly, the Court would not be justified in exercising discretion in favour of the appellants who voluntarily paid the administrative charges, obtained the permits and derived considerable profits therefrom. Thirdly, there was undue delay in claiming the refund. In such a case, the Supreme Court refused to interfere with the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that a writ-application was not maintainable solely for the refund of tax, alleged to have been illegally collected by the State for the simple reason that a claim for such a refund can always be made in a suit against the authority which had illegally collected the money as a tax and in such a suit, it is open to the State to raise all possible defences to the claim, which, cannot in most of the cases, be appropriately raised and considered in the exercise of writ jurisdiction. In the cases before us, however, the writ-petitioners prayed for declaration that the circular issued by the Corporation was ultra vires the Statute and as a consequential measure, have prayed for refund of the money. Therefore, the principles laid down in the said case cannot have any application to the cases before us. 50. In the case of A.V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani Anr. (supra), the Supreme Court reiterated that the well-settled principle, that a party, who applies for issue of high prerogative writ, should, before he approaches the Court, have exhausted all other remedies open to him under the law, is not the one which bars the jurisdiction of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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