LOONKARAN PARAKH Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) THIS petition under Article 226 of the Constitution raises a question as to the validity of the fee imposed by Bye-law 7 of the Building Permission (Fees, Composition Fee) Bye-laws, 1973, of the Municipal Corporation, Raipur.

(2.) THE petitioner has filed this petition as a guardian of his minor son. An application was made to the Corporation on behalf of the minor for permission to construct a building. As a prerequisite to the grant of permission, the petitioner was required to pay to the Corporation Rs. 225/- as fee payable under the bye-laws. The petitioner contends that the Madhya Pradesh Municipal Corporation Act, 1956, which is the relevant Statute, does net authorise the Corpora lion to charge any fee for grant of building permission, that the provisions under which the bye-laws purport to have been made do not refer to any fee and that the impost is a tax in the garb of fee. The petitioner prays that the bye-laws be quashed and that a direction be issued to the Corporation to refund the fee collected frnm the petitioner. The Corporation in its return has justified the imposition of the fee under Section 366 (3) or the Act. The Corporation denies that the fee is a tax and contends that the fee is correlated to the expenses incurred by the Corporation in discharging its duty of regulation and control of building activity within the Corporation limits. It is submitted that the expenses incurred by the Corporation in discharging the aforesaid duty are approximately equal to the collections made as fee under the impugned Bye-laws.

(3.) TO appreciate the rival contentions, it is first necessary to notice the relevant provisions of the Act and the Bye-laws. Chapter XI of the Act deals with Taxation. Section 132 in this Chapter authorises the Corporation to impose taxes enumerated therein apd Section 133 provides the procedure for imposition of tax, Chapter XXIV which occurs in Part VI of the Act deals with the subject of "building Control". Section 293 which is the first section in this Chapter prohibits erection or re-erection of any building or making of any material external alteration to any building without the permission of the Commissioner, who is one of the municipal authorities charged with the duty of carrying out the provisions of the Act (Section 6 ). As required by Section 294, every person intending to erect or re-erect a building has to make two applications: (1) an application for approval of the site together with a site plan and (2) an application for permission to build together with a ground plan, elevation and Section of the building and a specification of the work to be done. The Commissioner may refuse to approve the site on the grounds mentioned in Section 296. The grounds on which permission to erect or re-erect building may be refused are contained in Sections 295 and 297. Speaking generally, a site may be disapproved if erection or re-erection of the proposed building would be in contravention of a town planning scheme or any other provision of the Act or any other enactment; or if the site is in a portion within the limits of the city in which the position and direction of the streets have not been determined and the proposed building will obstruct or interfere with the construction in future of suitable streets pr with the drainage, water-supply or ventilation, or if the site has been re-claimed or used as a place for depositing sewage, offensive matter or rubbish or carcasses of dead animals or is otherwise insanitary or dangerous to health; or if the building is likely to interfere with a future town planping scheme. Permission for erection or re-erection cannot be granted by the Commissioner until the site is approved. Even after ap-sproval of the site permission to erect a building cannot be granted if the plans and specifications show that the proposed building is not ia accordance with a town planning scheme or the provisions of the Act or any rule or bye-law made thereunder or any other enactment; or if the erection of the proposed building would be a nuisance or injurious to the inhabitants of the neighbourhood or to the public. Sectiop 298 provides that the work of the erection of the building shall be executed in such manner under sucn supervision through such qualified agency and subject to such conditions or restrictions as may be prescribed by the Bye-laws. If the work of erection is not started within one year the sanction lapses but it can be renewed under Sectiop 300. A new building cannot be occupied or used without first obtaining the permission of the Commissioner under Section 301. The section requires that after completion of the work a notice shall be given to the Commissioner who may refuse permission to occupy or use the building if the erection, construction or re-construction is in contravention of any provisions of the Act, or any rule or bye-law made thereunder or any other enactment for the time being in force. The section requires that all necessary facilities for inspection of the work shall be given to the Commissioner, The Commissioner has power under Section 307 to require removal of any work which has been executed without sanction or in contravention of the terms of sanction. These Sections in Chapter IV dealing with building control do not contain any provision for charging any fee. Section 366 which authorises imposition of a fee for every licence or written permission occurs in Chapter XXXIV (Part VIII) which contains General Provisions for the carrying on of the Municipal Administration. Section 366 which is the first section in this Chapter deals with licences and permissions. Section 366 (1) provides that whenever it is prescribed by or under the Act that the permission of the Commissioner is necessary for the doing of any act, such permission, unless otherwise expressly provided, be in writing. Section 366 (2) requires that every licence and permission shall be signed by the Commissioner and contain the particulars mentioned in the Section. Section 366 (3) which permits imposition of a fee reads :