V SUDARSHAN Vs. BANGALORE DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) THE petitioners in all these writ petitions are seeking a direction to the bangalore Development Authority to comply with the orders dated 30th March 2007, passed by the Hon'ble Supreme Court in Civil Appeal no. 7791/1997 and refund to the petitioners the property taxes collected from them till 24-7-1992, i. e. till the date of amendment effected to the B. D. A. Act, by the B. D. A. (Amendment) Act, 1993, together with Bank rate of interest from the date of receipt of tax amount till the date of repayment.

(2.) SUBSEQUENTLY, in Writ Petition No. 712/ 2002 the petitioners filed an application for an amendment, to incorporate an additional prayer, to declare that the Bangalore Development authority and certain other Law (Amendment) Act, 2002 (Karnataka Act no. 19 of 2002) published in the Karnataka gazette dated 9th September 2002, as ultra vires the Constitution of India and to strike down the same. The said application is allowed. Therefore, the fate of all these writ petitions revolve round the constitutional validity of the aforesaid Amendment Act. Therefore, they are taken up for consideration together and disposed of by this common order.

(3.) BRIEF background: all these petitioners are rate payers and owners of sites which are situated in several layouts formed by the Bangalore Development authority (for short hereinafter referred to as "b. D. A. " ). After payment of such tax, they preferred writ petitions before this Court in W. P. Nos. 4394-4410/1988 contending that the B. D. A. has no power to levy and collect property tax from these petitioners under the bangalore Development Act. 1976 for short hereinafter referred to as "the Act". No valid notification under Section 29 of the Act has been issued by the Government making Section 103 to 106 of the Karnataka Municipal corporation Act, 1976 applicable and conferring on the authority the powers under those provisions for levy, assessment and collection of property tax. Therefore, they contended as the authority has levied and recovered property tax without authority, it is violative of article 265 of Constitution of India and therefore, the same is liable to be returned to them. The said writ petitions were contested by the b. D. A. The learned Single Judge of this court on consideration of the rival contentions allowed the writ petitions. It was held that the act does not confer upon the B. D. A. the power to impose, asses and collect tax, cess and fee notwithstanding the notification issued by the State Government under the said provision without corresponding services compulsions. The notification issued by the Government under Section 29 is neither valid nor effective. It was further held that there is no material on record to assume that the B. D. A. has been rendering services which correspond to the taxes, cesses and fee recoverable under the relevant provisions of the Karnataka Municipal Corporation Act, 1976 and if the competent authorities of the Corporation themselves were to embark on such levy and recovery. It was also held that the contention raised on behalf of the B. D. A. that the taxes, cesses and fee are levied for the purposes of defraying the maintenance cost does not stand legal scrutiny. A provision is made under the corporation Act for levy and recovery of several taxes, cesses and fee with corresponding services being rendered by the Corporation to the rate payers, the money so collected being a part of the Corporation fund. In respect of B. D. A. there are no provisions under the Act authorising or empowering the imposition and recovery of taxes, cesses and fee except betterment tax and there is no provision under the Act which provides for inclusion of taxes, cesses and fee in the Bangalore Development Authority Fund under the act nor any statutory obligation is rendered by the B. D. A. correspondingly. Insofar as taxes, cesses and fee in question are concerned, there is not even a mention of such taxes, cesses and fee in the entire Act leave alone the question of expounding the nexus between levy and the benefit conferred directly or indirectly. None of the taxes, cesses and fee are justified or authorised under the provisions of the Act and hence, such a levy and recovery is void ab initio The B. D. A. was directed to stop collecting taxes, cesses, fee, etc. , relating to vacant lands and buildings from the concerned members of the public. The B. D. A. was also directed to refund to the concerned members of the public the taxes (except betternent tax), cesses and fee collected from them.