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2013 DIGILAW 807 (KAR)

Commissioner v. Sister Uthrika Mary (superior)

2013-07-17

K.L.MANJUNATH, L.NARAYANA SWAMY

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JUDGMENT 1. The legality and correctness of the Order passed by the Learned Single Judge in W.P.No.6520/2007 dated 7-7-2009 is called in question in this appeal. 2. St. Joseph Educational Society situated at Chamarajnagar Town is aggrieved by the levy of developmental fee of Rs.1,82,390/- by the appellant invoking Section 18 of the Karnataka Town and Country Planning Act, 1961 demanding the appellant herein to refund the same on the ground that appellant did not refund the fee remitted by the school to the municipality. The Writ Petition was filed praying to quash the reply to legal notice dated 11-1-2007 holding that the fees collected towards development as also null an void and to issue a writ of mandamus directing the Commissioner- Urban Development Authority to reimburse the development fees to a tune of Rs.1,82,390/- and to grant such order reliefs. 3. It is the case of the writ petitioner that it is a charitable institution imparting education reserving 80% of its seats to the students belong to backward classes, Scheduled Castes, Schedules Tribes and Christians by collecting a nominal fee and that the institution is not making any profit and the institution is running to serve the backward classes in order to bring them to the main stream of the society. Since the class rooms were not sufficient for the strength of the students of the school, with an intention to add additional class rooms, they approached the municipality for sanctioning license and plan. In order to get the license and plan sanctioned, the petitioner was compelled to deposit a sum of Rs.1,82,390/-as developmental charges, though it was brought to the notice of the authorities that it is a charitable institution and not required to make the said payment the authorities did not agree to exempt it. Therefore, the writ petitioner was compelled to deposit the sum and obtained the sanctioned plan thereafter, a demand was made by the writ petitioner for refund of the amount remitted by it. Since there was a refusal, the writ petition came to be filed. 4. The writ petition was resisted on two grounds. The main ground of attack was that writ petition is not maintainable in view of Section 18(2) of the Karnataka Town and Country Planning Act, 1961. Secondly, it was contended that the developmental fee has been collected based on the provisions of Section 18 of the Act. 4. The writ petition was resisted on two grounds. The main ground of attack was that writ petition is not maintainable in view of Section 18(2) of the Karnataka Town and Country Planning Act, 1961. Secondly, it was contended that the developmental fee has been collected based on the provisions of Section 18 of the Act. In the circumstances, it was requested to dismiss the writ petition. 5. The Learned Single Judge, with regard to the maintainability of the writ petition, cam to the conclusion that the writ petition cannot be rejected since the statutory appeal provided under sub-section (2) of section 18 of the Act is not an efficacious remedy. Accordingly, the writ petition was allowed directing the appellant herein to refund the amount. In the circumstances, the present appeal is filed. 6. At the outset, we have noticed that the writ petitioner has not filed the writ petition challenging the provision of Section 18 as unconstitutional or ultra vires. If the writ petitioner had filed the writ petition challenging the constitutional validity of Section 18, this Court could have appreciated the stand of the Institution. The word used under Section 18 is “developmental fee”. Always fee would commensurate with the services rendered by the authority, in order to collect the fees. It cannot be considered as a tax. Tax is nothing but a compulsory extraction without there being services rendered. If the writ petitioner had challenged the validity of the Section 18 as ultra vires on the ground that the levy and collection of developmental fee is without rendering any service by the authorities and collection of developmental fee with an abnormal rate would be more than a tax without giving any service to the institution, then the situation would have been different. Since such question has not been raised in the writ petition, it was considered by the Learned Single Judge that it is special enactment to give benefits to the eligible persons and such provision cannot be stated to be an alternative and efficacious remedy provided by the statutory to the aggrieved person. We could have appreciated the findings of the Learned Single Judge provided the statutory as provided under Section 18 is not an efficacious or an alternative remedy. We could have appreciated the findings of the Learned Single Judge provided the statutory as provided under Section 18 is not an efficacious or an alternative remedy. In order to find out whether the alternative remedy of filing appeal to the District Court by the petitioner is an efficacious or not, we are required to examine sub-Section (2) of Section 18 of the Act. Section 18(1) and (2) reads as follows:- “18. Recovery of a fee in certain cases of permission for change in the use of land or building:- (1) Where permission for change of land use or development of land or building is granted under Section 14-A or Section 14-B or Section 15 or Section 17 and such change of land use or development is capable of yielding a better income to the owner, the Planning Authority may levy a prescribed fee not exceeding one-third of the estimated increase in the value of the land or building in the prescribed manner for permitting such change of land use or development of land or building; (2) Any person aggrieved by the levy of fee under subsection (1), may within such period as may be prescribed, appeal to the District Court having jurisdiction on the ground that the change or development is not capable of yielding a better income to the owner. The decision of the District Court on such appeal shall be final.” Upon combined reading of the aforesaid two provisions it is clear to us that under Section 18 (1) on account of development if the owner is capable of getting better income, the Planning Authority may levy the prescribed fee not exceeding 1/3 of the estimated increase value in the land or building. Therefore, sub-section (2) of section 18 provides to collect fee in accordance with the notification to be issued by the Government from time to time. In the instant case the Government has issued a notification permitting the authorities to collect Rs.6/- per square meter, while sanctioning the plan holding that the development would bring better income to the owners. Accordingly fee has been levied in the instant case. 7. Sub-section (2) of Section 18 provides to file an appeal by an aggrieved person to District Court to show that he is not liable to pay developmental fee as demanded by the authorities. Accordingly fee has been levied in the instant case. 7. Sub-section (2) of Section 18 provides to file an appeal by an aggrieved person to District Court to show that he is not liable to pay developmental fee as demanded by the authorities. If the change or development of property is not capable of yielding better income to the owner, an opportunity is given to the aggrieved person to file appeal before the District Court to show that inspite of development made by the owner of the property, if he is not going to be benefitted or if there is no income as such, owner can always ask for reduction of the fee. This fact can be established before the Civil Court in an appeal because the parties are also entitled to lead evidence by producing the documents to show whether such development can yield any better income to the owner of the property or not. If such provision is provided to an aggrieved person to file an appeal, no Court can held that such provision of law is not an efficacious or an alternative remedy open to the party. This aspect of the matter has not been considered by the Learned Single Judge in the present case. 8. It is the specific case of the writ petitioner that a charitable institution imparting education by collecting nominal fee from Schedule castes, Schedule tribes, minority and other backward class students and if such institution has put up additional construction, it always can establish that such additional construction is not yielding any income in order to pay developmental fee of Rs.1,82,390/-. Moreover, the constitution provides to give free and compulsory education for children up to the age of 14 years and if such institution is imparting education by collecting a nominal fee it cannot be said that it is yielding income by putting up additional construction. 9. Considering the appeal provision the petitioner can produce both oral and documentary evidence before the appellant Court to show how the appellant is yielding the additional construction to be put would yield income in order to pay the developmental fees of Rs.1,82,390/-. Therefore, it cannot be said that the appeal provision is not an efficacious remedy. 10. 9. Considering the appeal provision the petitioner can produce both oral and documentary evidence before the appellant Court to show how the appellant is yielding the additional construction to be put would yield income in order to pay the developmental fees of Rs.1,82,390/-. Therefore, it cannot be said that the appeal provision is not an efficacious remedy. 10. While exercising the jurisdiction under Article 226 of the Indian Constitution, the Court should find out distinction between the litigation to be filed between Civil Court and High Court. Writ jurisdiction cannot be considered as panacea for all the litigation. Therefore, by producing all relevant records, the writ petitioner, instead of filing the writ petition, could have filed an appeal before the District Court of competent jurisdiction. Since such a remedy is not availed by the writ petitioner, without considering merits and de-merits of the writ petition we have to set aside the Order of the Learned Single Judge granting liberty to the writ petitioner to approach the District Court to file an appeal within a period of 30 days from today and if such an appeal is filed, either the District Court or respondents in the appeal shall not raise the question of limitation since the writ petitioner has been agitating the matter before this Court. In the result, the appeal is allowed. The Order of the Learned Single Judge dated 07/07/2009 passed in W.P.No.6529/2007 is hereby set aside. Liberty is granted to writ petitioner to file an appeal under sub-section (2) of Section 18 of Karnataka Town and Country Planning Act, 1961 within a period of 30 days from the date of receipt of a copy of this Order before the District Court, Chamarajnagar, which Court shall dispose of the appeal on merits and in accordance with law without raising the question of limitation.