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TMI Blog1992 (5) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... 3494 of 1980 arose out of a Writ petition moved in the High Court of Gujarat by the respondents Nos. 1,2,3 inter alia for declaration that the provisions of Sections 119(1) and 119(2)(c) of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as the Town Planning Act) are ultra vires and the impugned regulations purported to have been made under the Town Planning Act are ultra vires Articles 14, 19 and 21 of the Constitution and the said regulations are also ultra vires the Town Planning Act itself. The Writ Petitioners also made a prayer before the High Court for appropriate writ, order or direction directing the Ahmedabad Urban Development Authority (hereinafter referred to as the Development Authority) not to enforce or implement the said regulations and not to levy or recover any amount as development fee under the said regulations. A prayer was also made for appropriate writ, order or direction directing the Development authority to refund the amount of development fees realised from the Writ Petitioners. It was contended by the Writ Petitioners that; (a) levy of development fee is not authorised by the statute and therefore the action of respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of money by public authority but in a tax imposed for public purpose, no service need be rendered in return of such tax. A fee is however levied essentially for services rendered and as such there is an element of quid pro quo between the person paying the fee and the public authority imposing the same. It has been further indicated that whenever there is any compulsoty exaction of any money from a citizen, there must be a specific provision for imposition of such tax and/or fee. There is no room for any intendment for imposition of compulsory payment. whenever there is any compulsory exaction of money from a citizen, nothing is to be read and nothing is to be implied. One should look fairly at the language used. The High Court has also referred to another decision of the Court in the case of Delhi Municipal Corporation v. Mohd. Yasin, AIR 1983 SC 617 wherein the compulsory nature of exaction by way of tax and fee partaking the character of tax has been reiterated and it has been held that there is no generic difference between tax and fee though broadly a tax is compulsory exaction as part of a common burden without promise of any special advantages to classes of tax payers wherea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... local authority is constituted or if such Act does not contain any provision for such borrowing, in accordance with the Local Authorities Loans Act, 1914 or as the case may be, the Saurashtra Local Authorities Loans Act, 1951, and any expenses incurred by an appropriate authority or the State Governmnet under this Act in connection with a development plan or a town planning scheme may be defreyed out of the funds of the appropriate authority . Section 91 (1) and (2) have been referred to by Mr. Goswami, which are to the following effect: 91 (1) An appropriate authority shall have and maintain its own fund to which shall be credited- (a) all moneys received by the authority by way of grants, loans, advances or otherwise; (b) all moneys derived from its undertakings, projections and other sources; (c) such amounts of contributions from local authorities as the State Government may specify from time to time to be credited to the fund (2) the fund of an appropriate authority shall be applied towards meeting- (a) expenditure incurred in the administration of this Act; (b) cost of acquisition of land for the purpose of this Act; (c) expenditure for any developmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose fees, the Development Authority by virtue of the delegated legislation can also impose betterment fee or the development fee and simply because imposition of such fee by the Development Authority is not specifically mentioned, it cannot be held that the Development Authority cannot impose any betterment fee or development fee even though such fee was essential for the development activities and has been imposed with reference to development effected. Mr. Goswami has very strongly relied on the decision of this Court in the case of the District Council of the Jowai Autonomous District Jowai and others v. Dwet Singh Rymbai etc., AIR 1986 SC 193. In considering the validity of the Notification issued by the District Council of District, Jowai under United Khasi and Jaintia Hills Autonomous District (Management and Control of Forests) Act. 1959, it has been held by this Court that in the real sense what in sought to be required under the Act is not royalty since the forest does not belong to the District Council. The amount claimed by way of royalty under the Notification is in reality compulsory exaction of money by public authority for public purpose enforeceable by law and in no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Gujarat was not justified in holding that such imposition of fee by framing impugned regulations was wholly unauthorised and as such illegal and void. After giving our anxious consideration to the contentions raised by Mr. Goswami, it appears to us that in a fiscal matter it will not be proper to hold that even in the absence of express provision, a delegated authority can impose tax or fee. In our view, such power of imposition of tax and/or fee by delegated authority must be very specific and there is no scope of implied authority for imposition of such tax or fee. It appears to us that the delegated authority must act strictly within the parameters of the authority delegated to it under Act and it will not be proper to bring the theory of implied intent or the concept of incidental and ancillary power in the matter of exercise of fiscal power. The facts and circumstances in the case of District Council of Jowai are entirely different. The exercise of powers by the Autonomous Jaintia Hills Districts are controlled by the constitutional provisions and in the special facts of the case, this Court has indicated that the realisation of just fee for the a specific purpose by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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