BHALCHANDRA ANANDRAO KANGO Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) ALL these three petitions, filed under Article 226 of the Constitution, raise a common question viz. the power of respondent Nos. 2 and 3 - the City and Industrial Development Corporation of Maharashtra (CIDCO) to levy and collect service charges from the residents of New Aurangabad and hence they are being decided by this common judgment.

(2.) IN the first petition, the petitioners are residents of New Aurangabad who were allotted residential plots by CIDCO for construction of residential dwellings, whereas in the second petition a co-operative housing society is the petitioner. The third petition has been filed by a public trust registered for the purpose of welfare activities in the N-5 sector of CIDCO, Aurangabad. In the first petition the respondent No. 3 had issued, sometimes in February/march, 1990, bills for service charges and called upon the plot owners to pay the same at the rate of Rs. 4/- per square meter for residential plots [built up area] and Rs. 6/-per square meter for the commercial plots. Similarly, notices were issued on 18th January, 1991 as well as 16th September, 1991 demanding service charges at the rate of Rs. 4/- per square meter of the plot area. It has been submitted before us by the learned counsel for the petitioners that (a) CIDCO does not have the power to levy such service charges; (b) even if they have such power, the service charges cannot be demanded unless the civic amenities are provided and the demand for the same is made thereafter; (c) service charge at the rate of Rs. 4/-per square meter is arbitrary, unjust and unreasonable; and (d) in some cases the service charge has been demanded at the rate of Rs. 4/- per square meter for the built up area whereas in some other cases it has been charged at the rate of Rs. 4/-per square meter of the total plot area. Reliance has been placed on the report dated 11th December, 1988 submitted by the Commissioner appointed by this Court in Writ Petition No. 421 of 1986. This was a public interest petition filed by some of the residents of CIDCO praying for directions to take steps to provide and maintain the civil amenities like playground, open spaces, shopping complex, gardens and parks, drainage and sewerage lines, water supply lines, roads and other cultural activities. The Commissioner, appointed by this Court, had submitted a report highlighting the lack of all these civic amenities in the New Township named CIDCO. It was pointed out that the drainage system was inadequate and insufficient while in some areas it was not provided. The drainage lines were laid adjacent to the water supply pipelines and if there was leakage in the drainage line, the water supply line was getting affected. The water supply was inadequate and the PVC pipes used for water supply lines were broken in some parts of the township. In almost all the localities there were complaints of inadequate water supply. Conservancy services, construction and maintenance of roads, street lighting were found to be inadequate. Tree plantation and gardens as well as parks was another deficiency and CIDCO had failed to provide for cultural and sports facilities. It appears that some of the petitioners and dignitaries had also raised doubts about the civic amenities provided by CIDCO. Legal notices were issued challenging the bills for service charges. Some residents claimed that on receipt of these bills they had approached CIDCO to make the payments but they were not accepted as they were belated by few days or months and unless interest on the amounts was paid CIDCO would not accept the principal amounts. There was a meeting held on 21st September, 1989 between the representatives of residents and the CIDCO authorities in which the issues like provision for school plots, market areas, hospitals, community centers, open spaces, entertainment facilities, post office, government offices, stadia, garden, childrens park, play grounds, plots for temples, water supply, drainage system and conservancy etc. were discussed and steps taken by CIDCO were listed out. A contempt petition came to be filed in Writ Petition No. 421 of 1986 after the Court Commissioner had submitted his report. Affidavit in reply submitted in the said contempt petition has also been relied upon in these petitions. It is contended that when no steps were taken to provide the basic civic amenities by CIDCO, the residents could not have been called upon to pay the service charges and service charge being a quid pro quo, CIDCO was first required to provide these amenities and then demand payment of service charges, if at all the Corporation had any such power/authority to impose service charges.

(3.) AFFIDAVIT in reply has been filed in support of CIDCO's authority to levy service charges and demand the same. There is no dispute that CIDCO allotted plots for residential as well as commercial purposes on long lease basis in different sectors of the New Township (North of Jalna road) by way of a written agreement which was a basic document with its terms and conditions binding upon both the parties. The initial agreements of lease signed in 1979 as well as the subsequent lease agreements contained a specific clause regarding payment of service charges i. e. Clause No. 3 (ee ). In the first set of agreements, signed in 1979, the said clause reads as under: