KISANRAO MANIKRAO KHOPADE Vs. MUNICIPAL COUNCIL DHULE

JUDGEMENT

(1.) THE petitioners are residents of Dhule and own property situate within the jurisdiction of Municipal Council, Dhule. The grievance of the petitioners is that the 1st petitioner has submitted his lay out plans for approval to the Municipal Council in respect of land bearing Survey No. 472/1+2 admeasuring 7 acres 11 gunthas. The Chief Officer of the 1st respondent Municipal Council has not considered the said plans for approval, but on the contrary he demanded payment of betterment charges at the rate of Rs. 20/- per square metre vide his letter dated 13th February, 1991 as a condition precedent for considering the approval of the said plans. The demand is of about 3,75,000/ -. It is the contention of the 1st petitioner that the said letter, Exhibit A to the petition, is without the authority of law. He further submits that the Municipal Council is not authorised to claim betterment charges at the time of sanctioning of lay out plans as there is no such provision in the Maharashtra Municipalities Act, 1965, or Building Bye-laws. The petitioners also contend that Resolution No. 148 dated 11th November, 1990 passed by the Municipal Council, Dhule, inter alia laying down that development charges should be recovered at the rate of Rs. 1 /- per square foot on the basis of total area of the plot of land in respect of which lay out plans are to be sanctioned, is also ultra vires and bad in law. The said resolution is also bad for the reason that it acts retrospectively even to those plans which were sanctioned between the period 1979-80 to the date of resolution in 1990 and authorises the Chief Officer to make recoveries of development charges from the various land-holders at that rate. The petitioners, therefore, pray for a writ quashing and setting aside the Resolution No. 148 dated 11th November, 1990 as well as for a writ quashing and setting aside the demand of betterment charges made from the 1st petitioner vide letter dated 13th February, 1991, Exhibit A to the petition, and for other consequential reliefs.

(2.) THE 1st respondent Municipal Council, while contesting this petition, has contended that the Municipal Council as the planning authority under the Maharashtra Regional and Town Planning Act is authorised to prepare its own Building Bye-laws and collect betterment charges. The 1st respondent further pointed out that the experience of the Municipal Council was that no sooner the lay out plans are sanctioned, the owners immediately dispose of the open plots and the transferees proceed to carry out constructions of residential houses, etc. on such plots without anybody bothering about the required development of such lay out. No care whatsoever is taken for neatly constructing internal roads, making provision for draining out the waste water and storm water and ensuring the availability of proper place for the net-work of water supply or electric supply. It was found that the Municipal Council as the planning authority was required to shoulder the tremendous financial burden in majority of cases. According to Shri N. B. Shah, learned Advocate for the 1st respondent, since the services are required to be provided by the Municipal Council, 1st respondent is entitled to levy fees such as betterment charges and in particular as per the State Government, Urban Development Departments letter dated 21st October, 1989 bearing No. MCN. 1689/cr 569/8912. It was the contention of the 1st respondent that on the basis of the said letter, the Municipal Council is authorised to levy and collect betterment charges at the rate not let than Rs. 20/- per square metre. This letter is annexed as Annexure A to the reply-affidavit dated 6th June, 1991. Lastly, the 1st respondent relies on oral information of the Chief Officer from the Government to collect betterment charges at the rate not less than Rs. 20/- per square metre. On these points, the 1st respondent opposes the petition. By additional affidavit-in-reply filed by the 1st respondent, it was reiterated that as authorised by the Government of Maharashtra the Municipal Council was entitled to recover betterment charges at the stage of sanction of lay out plan itself. Briefly stated, the additional reply-affidavit in paragraph 5 says as follows :---

(3.) HAVING heard the learned Counsel Shri C. J. Sawant for the petitioners, Shri N. B. Shah for the 1st respondent and the learned Government Pleader Shri R. D. Soni for the 2nd respondent, we are of the opinion that the petition will have to be allowed.