NOIDA ENTREPRENEURS ASSOCIATION Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioners have come up with a prayer to quash the New Okhla Industrial Development Area (Levy of Amenities Tax) Regulations, 1992 (hereinafter referred to as 'the Regulations') as contained in Annexure-11, on the ground that it ultra vires provisions of the Constitution of India and the U. P. Industrial Area Act, 1976 (hereinafter referred to as 'the Act'). Their further prayer is to command respondent No. 4 NOIDA not to enforce the Regulations against the lease holders of Residential and Industrial sites including buildings situate within its territorial limits. The Submission :

(2.) Mr. B. B. Paul, learned counsel of the petitioners, contended that the impugned Regulations ultra wires Article 265 of the Constitution of India as well as Section 19 of the Act. Since NOIDA had realised development charges from the petitioners and others, therefore, it cannot levy tax under Section 11 of the Act aforementioned. There is a well-settled distinction between levy of tax and imposition of tax as pointed out by the Supreme Court in Kewal Krishna Puri v. State of Punjab, AIR 1980 SC 1008. Since the earlier scheme of NOIDA was enacted under 20 Points Programme, thus it has to function on no loss no profit basis.

(3.) Mr. Awasthi, learned counsel appearing on behalf of respondent No. 4, contended that neither the Regulations ultra vires Article 265 of the Constitution of India nor of Section 19 of the Act. Section 11 of the Act confers powers in respondent No. 4 to levy tax and Section 19 confers Jurisdiction in Respondent No. 4 to make such Regulations with the previous approval of the State Government consistent with the provision of the Act and thus, there is no merit in either of the two contentions urged by Sri Paul. He further contended that Section 11 of the Act in particular authorises the authority to levy tax for the purposes of providing, maintaining or continuing any amenities in the Industrial Development Area as it may consider necessary in respect of any site or building on the transferee or occupier thereof. The development charges collected were found insufficient and hence amenity tax. The decision relied upon by Sri Paul has no bearing on the question Involved in this case. Under Section 11 of the Act the imposition of tax. however, cannot exceed 25%, and in fact the tax not having been imposed till date the petitioners have got no cause of action to move this Court rather they ought to have waited till the imposition of tax. Thus, this writ petition is liable to be dismissed with costs.