IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.06.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOs.21402, 22062, 22063, 22089, 22090 and 27935 of 2008, 5309, 9109, 11193, 11336, 11971, 13541, 14620, 14621, 14622 and 19356 of 2009, 3483, 9207, 9508, 9785, 12959, 14793, 18453, 18454, 19565, 20062, 23335, 23336, 27491 and 28170 of 2010, 834 and 6634 of 2011, 30216 of 2008, 2046, 4333 and 21427 of 2009, 18139 of 2010, 8427 of 2011, 26960 and 27814 of 2007 and 11468 of 2010, 27815 of 2007, 12765 and 27934 of 2008, 5541, 9110, 19355 and 23599 of 2009, 3482, 7803, 9206, 9507, 9784, 11615, 12806, 12958, 13112, 14012, 15827, 16147, 17131, 17392, 17962, 17963, 17964, 17965, 18660, 19566, 19963, 20061, 22621 and 23051 of 2010 and 835 of 2011, 13427 of 2009, 2568, 7357 and 29640 of 2010 and M.P.Nos.2, 3, 2, 3 and 2 of 2007, 2, 2, 2, 2, 2, 1, 1, 2, 1, 1 and 2 of 2008, 1, 1, 2, 3, 1, 1, 2, 1, 2, 1, 2, 1, 1, 1, 1, 2, 2, 2, 2, 1, 2, 1, 1, 2, 1 and 2 of 2009, 1, 2, 1, 2, 1, 1, 2, 1, 1, 2, 2, 2, 3, 1, 2, 3, 1, 1, 2, 1, 1, 2, 3, 1, 2, 1, 2, 1, 2, 2, 3, 1, 1, 1, 2, 1, 2, 2, 1, 1, 2, 1, 2, 3, 4, 2, 1, 2, 2, 1, 2, 1, 1, 2, 1, 1,2,3 and 4 of 2010, 1,1,2,1,1 and 2 of 2011 W.P.No.21402 of 2008 : Sundaram Auto Components Limited, Jayalakshmi Estates, No.29, Haddows Road, Chennai-600 006 represented by its Authorized Signatory C.Mukundhan .. Petitioner Vs. 1.State of Tamil Nadu, rep by the Secretary to Government, Housing and Urban Development, Secretariat, Fort St. George, Chennai-600 009. 2.The Director of Town and Country Planning, 807, Anna Salai, Chennai-600 002. 3.Block Development Officer, Kundrathur Panchayat Union, Sriperumpudur Taluk, Kanchipuram. .. Respondents W.P.No.30216 of 2008 : M/s.Keyaram Hotel Pvt. Ltd., rep by its Director, Mr.K.Sandrasegaran, No.2,Harrington Road, Chetpet, Chennai. .. Petitioner Vs. 1.The Secretary to Government, Housing and Urban Development, Fort St. George, Chennai-600 009. 2.The Member Secretary, Chennai Metropolitan Development Authority, No.1, Gandhi Irwin Salai, Egmore, Chennai-600 008. .. Respondents W.P.No.26960 of 2007 : M.Nelson Babu .. Petitioner Vs. 1.Secretary to Government, Housing and Urban Development Department, Fort St. George, Chennai-600 009. 2.The Director of Town and Country Planning, No.807, Anna Salai, Chennai-600 002. 3.The Member Secretary, Local Planning Authority, 11-A, Raman Pillai Street, Ramavarmapuram, Nagercoil,-629 001. .. Respondents W.P.No.27815 of 2007 : M/s.S.P.Apparels Limited, rep by its Manager (Public Relations) A.Natarajan, No.39-A,Extension Street, Kaikadiputhur, Avinashi-641 654. Coimbatore District. .. Petitioner Vs. 1.The State of Tamil Nadu, rep by the Secretary to Government, Housing and Urban Development Department, Secretariat, Fort St. George, Chennai-600 009. 2.The Director of Town & Country Planning, 807, Anna Salai, Chennai-600 002. 3.The Deputy Director (FAC) Town & Country Planning, Corporation Commercial Complex, Dr.Nanjappa Road, Coimbatore-18. 4.The Executive Officer, Avinashi Town Panchayat, Avinashi-641 654. .. Respondents W.P.No.27935 of 2008 : M/s.Cedeeyes Housing and Infrastructure Ltd., rep. By its Managing Director, 42,Second Main Road, Gandhi Nagar, Adyar, Chennai-600 020. .. Petitioner Vs. 1.The State of Tamilnadu, rep by its Secretary, Housing and Urban Development Department, Fort St. George, Chennai-600 009. 2.The Commissioner, Town & Country Planning, 807,Anna Salai, Chennai-600 002. 3.The Regional Dy. Director of Town & Country Planning (G), Chengalpattu Region, Chengalpattu-Kancheepuram District. 4.Nellikuppam Panchayat rep by its President Nellikuppam, Kancheepuram District. .. Respondents W.P.No.13427 of 2009 : Akshya Private Limited, rep by its Manager-Legal, G Square, 4th Floor, 46,Old Mahabalipuram Road, Chennai-600 096. .. Petitioner Vs. 1.State of Tamilnadu, rep by the Secretary to Government, Housing and Urban Development Department, Secretariat, Fort St. George, Chennai-600 009. 2.The Chennai Metropolitan Development Authority, rep by its Member Secretary, Thalamuthu Natarajan Maaligai, No.8,Gandhi Irwin Road, Egmore, Chennai-600 008. 3.The Director of Town and Country Planning, 807, Anna Salai, Chennai-600 002. 4.The Chennai Metropolitan Water Supply and Sewerage Board, rep by its Managing Director No.1, Pumping Station Road, Chennai-600 002. 5.The Commissioner of Town and Country Planning, 807,Anna Salai, Chennai-600 002. 6.Nandhivaram-Guduvancheri Town Panchayat, rep by its Executive Officer, Guduvancheri, Chengalpattu Taluk, Kancheepuram District. .. Respondents W.P.No.2568 of 2010 : Super DP Products Private Limited, represented by its Director S.Narayan, 201/5, Jagannathapuram Road, Irrulipattu Village, Azhinjivakkam Post, Ponneri Taluk, Thiruvallur District. .. Petitioner Vs. 1.State of Tamil Nadu, represented by its Secretary to Government, Housing and Urban Development Department, Secretariat, Fort St. George, Chennai-600 009. 2.Deputy Director, Town & Country Planning, Chenglepet Zone, 11,G.S.T. Road, Chenglepet-1. .. Respondents W.P.No.14793 of 2010 : S.Padmapriya .. Petitioner Vs. 1.The State of Tamil Nadu, rep by Secretary to Government, Housing and Urban Development Department, Fort St. George, Chennai. 2.The Director of Town and Country Planning, Chennai. 3.Member Secretary, Cuddalore Local Planning Committee, Cuddalore. 4.The Commissioner, Cuddalore Municipality, Cuddalore. .. Respondents W.P.No.29640 of 2010 : Dharbhari Charitable Trust, rep by its Chairperson, Dr.(Mrs.)S.Karuna, "Vignesh Towers" No.1391-A, Sathy Road, Ganapathy, Coimbatore-641 006. .. Petitioner Vs. 1.The Secretary to Government, Housing and Urban Development Department, Secretariat, Chennai-600 009. 2.The Commissioner, Town and Country Planning, No.807, Anna Salai, Chennai-600 002. 3.The Member Secretary (incharge), Local Planning Authority, Corporation Commercial Complex, Sivananda Colony, Coimbatore-600 012. .. Respondents W.P.No.21402 of 2008 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of declaration declaring that the provisions of the Tamil Nadu Town and Country Planning (Second Amendment) Act, 2007 and the Tamil Nadu Town and Country Planning (Levy of Infrastructure and Amenities Charges) Rules, 2008 as unconstitutional, arbitrary and illegal. W.P.No.30216 of 2008 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of declaration to declare the amended provisions 63B and 63C of Tamil Nadu Town and Country Planning Act, 1971 authorizing to levy collection of Infrastructure and Amenities charges as ultravires to the Constitution. W.P.No.26960 of 2007 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records relating to the G.O.Ms.No.191, Housing and Urban development (UD1) Department dated 1.6.2007 on the file of the first respondent herein and to quash the same and consequently direct the third respondent to issue the building permission to the petitioner for the construction of the commercial building situated in Survey No. P-10/21 (part) Santhan Chetti Vilai road, Nagercoil within a time frame. W.P.No.27815 of 2007 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records of the third respondent in Na.Ka.No.1582/2007 COM-5, dated Nil signed on 29.6.2007, quash the same as illegal and contrary to the provisions of the Tamil Nadu Town and Country Planning Act, 1971. W.P.No.27935 of 2008 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of declaration declaring the Rules 4 to 7 of Tamilnadu Town and Country Planning (Levy of Infrastructure and Amenities Charges) Rules 2008 and consequent G.O.Ms.No.84 (Housing and Urban Development UD4-1) Department, dated 8.4.2008 fixing maximum rate for Chengalpattu Region are ultravires the Tamil Nadu Town and Country Planning (Second Amendment) Act, 2007. W.P.No.13427 of 2009 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records of the fifth respondent comprised in its proceedings bearing Na.Ka.No.15381/08 CP dated 3.2.2009 and quash the same in so far as it relates to Condition No.13 imposed in the said proceeding and quash the same and consequently direct the fifth and sixth respondents to grant planning permission and building permit in favour of the petitioner in respect of its application dated 31.7.2007 for the proposed construction of a multi storey residential-cum-commercial building with a built up area of 21424.15 sq.mtr comprised in stilt + ground floor + 13 floors in the lands in S.Nos. 417/5, 422/2A, 423/1A1, 423/1A2, 423/1B, 423/2B, 423/3B1, 423/4A, 424/1A, 424/1B, 424/2B, 425/2, 425/3, 434/1 and 434/2 in Nandhivaram Village, Nandhivaram-Guduvancheri Town Panchayat, Chengalpattu Taluk, Kancheepuram District without in any manner insisting on payment of any amount towards infrastructure and basic amenities fee. W.P.No.2568 of 2010 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records of the respondents culminating in the computation communication of the second respondent dated 27.4.2009 bearing reference Na.Ka.No.348/2009/Se.Ma.6, consequential demand of the second respondent dated 18.11.2009 bearing reference Na.Ka.No.348/2009/Se.Ma.6, and the final communication of the second respondent dated 21.1.2010 bearing reference Na.Ka.No.348/2009/Se.Ma.6, quash the said communications and direct the respondents to implement G.O.Ms.No.161, dated 09.09.2009 issued by Housing and Urban Development (UD 4(1)) Department by accepting Rs.1,69,800/- as full infrastructure and amenities charges (computed at the rate of Rs.150/- per square meter for 112 square meters) for the petitioner's industrial building, situate in Survey No.201/5, Irulipatti village, Ponneri Taluk, Thiruvallur District (land admeasuring 79 cents or thereabouts and building admeasuring 1132 square meters). W.P.No.7357 of 2010 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the second respondent to dispose of the representation dated 15.03.2010 in reference to the revised and modified charges of infrastructure and amenities charges as per G.O.Ms.No.161, Housing and Urban Development, dated 09.09.2009 and consequently to forbear the second respondent invoking Rs.13,23,575/- covered in the bank guarantees in B.G.No.20440, dated 19.2.2009 and B.G.No.20441 dated 19.2.2009 each pending on the file of the fourth respondent till the disposal of the representation dated 15.3.2010. W.P.No.14793 of 2010 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of declaration declaring that Sections 59 and 63(B) of the Tamil Nadu Town & Country Planning Act, 1971 are not applicable to private buildings of non-governmental persons. W.P.No.29640 of 2010 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records pertaining to the impugned order No.1162/2008/LPA-3, dated 29.09.2008 and consequential notice dated 2.9.2010 and dated 03.12.2010 of the third respondent and quash the same and to direct the second respondent to consider the petitioner's representation, dated 24.11.2010. For Petitioners : Mr.AR.L.Sundaresan, SC for Mr.R.S.Pandiyaraj in W.P.Nos.11336, 11971, 13541, 14620 to 14622 of 2009, 18453, 18454, 23335 and 23336, 27491 and 28170 of 2010. Mr.Vijay Narayanan, SC for Mr.Srinath Sridevan in W.P.Nos.22062, 22063, 22089, 22090 and 21402 of 2008 Mr.G.Masilamani, SC for Mr.R.Bharathkumar in W.P.No.29640 of 2010 Mr.R.Thyagarajan, SC for Mr.P.Rathinadurai in W.P.No.2046 of 2009, 27934 and 27935 of 2008 Mr.A.Thyagarajan, SC for Mr.D.Veerasekaran in W.P.19963 of 2010 Mr.A.L.Somayahi, SC for Mr.T.K.Bhaskar in W.P.No.11615 of 2010 Mr.K.Doraiswamy, SC for Mr.S.Venkateswaran in W.P.No.23051 of 2010 Mr.T.K.Bhaskar in W.P.No.5309 of 2009 Mr.M.Venkatakrishnan in W.P.Nos.9109, 9110, 19565, 19566 of 2009 Mr.P.R.Balasubramanian in W.P.No.5541/2009 Mr.P.R.Raman, 11193 of 2009 Mr.Satish Parasaran in W.P.Nos.23599 of 2009, 9206, 9207, 9784, 9785, 9507, 9508 of 2010, 13427 of 2009 and for M/s.Azb and Partners in W.P.Nos.19355 and 19356 of 2009 Mr.S.Ganesan in W.P.No.2568 of 2010 Mr.R.Murari in W.P.No.12806, 22621 of 2010 Mr.K.Rajasekaran in W.P.No.13112 of 2010 Mr.M.Sundar in W.P.No.15827, 17392 of 2010 M/s.Profexs Associates in W.P.No.17131 of 2010 Mr.R.Sunilkumar in W.P.Nos.834 & 835 of 2011 Mr.J.Pothiraj in W.P.No.6634 of 2011 Mr.D.S.Rajasekaran in W.P.Nos.20061, 20062 of 2010 Mr.R.Gururaj in W.P.Nos.11468 and 14793 of 2010 Mr.G.Ethirajulu in W.P.No.12765 of 2008 Mr.S.Raveekumar in W.P.No.18660 of 2010 Mr.S.Subbiah in W.P.No.26960 of 2007 Mr.M.Sureshkumar in W.P.Nos.3482 & 3483/ 2010 Mr.S.R.Rajagopal in w.P.No.14012 of 2010 Ms.R.Hemalatha in W.P.No.27814 of 2007 Mr.R.Sureshkumar in W.P.No.7803 of 2010 Mr.Abudu Kumar Rajaratnam in W.P.Nos.7357 of 2010 and 8427 of 2011 Mr.B.Rabu Manohar in W.P.No.16147 of 2010 Mr.A.V.Arun for Mr.S.Seshadri in W.P.Nos.17962 to 17965 of 2010 Mr.S.Sundaresan in W.P.Nos.30216 of 2008,4333,21427 of 2009 and 18139 of 2010 Mr.R.Mohan in W.P.Nos.12958 & 12959 of 2010 For Respondents : Mr.M.C.Swamy, SGP assisted by Mr.R.Ravichandran, AGP Mr.R.Neelakandan for R-2 in W.P.No.5541 of 2009, for R-3 in W.P.Nos.12765 of 2008, 16147 of 2010, for RR1,3 and 5 in W.P.No.13427 of 2009 Mr.K.Balasubramanian for R-3 in W.P.No.5541 of 2009 Mr.G.S.Mohan for R-4 in W.Ps.11193 and 13427 of 2009 Mr.I.Paranthaman for R-3 Mr.R.Gowthama Narayanan for R-5 Mr.R.Neelakandan for R-4 in W.P.Nos.19355 and 19356 of 2009 Mr.T.Seenivasan for R-3 in W.P.No.17131 of 2010 Mr.R.Murali for RR5 and 6 in W.P.Nos.9206 and 9207 of 2010 Mr.I.Paranthaman for R-4 in W.P.Nos.9784,9785, 9507 and 9508/2010 and for R-2 in W.P.Nos.22621, 3482, 3483, 7803, 7357 of 2010, 13427, 4333 of 2009 and for R-3 in W.P.No.23051 of 2010 Mr.L.S.M.Hasan Fizal for R-3 in W.P.No.11468 of 2010 Mr.G.Sankaran for R-5 in W.P.No.9507 and 9508 of 2010 Mr.M.Devaraj for R-1 in W.P.12765 of 2008 Mr.P.S.Jayakumar for R-4 in W.P.No.27814 of 2007 Mr.J.Raja Kalifulla for R-4 in W.P.No.7803 of 2010 M/s.Ram & Rajan Associates for R-4 in W.P.No.7357 of 2010 Mr.K.Jayachandran for R-4 in W.P.No.23051 of 2010 Mr.N.Senthilkumar for R-4 in W.P.16147/2010 Mr.V.R.Thangavelu for R-4 in W.P.No.27934 of 2008 for R-6 in W.P.No.13427 of 2009 Mr.M.Dhandapani for R-4 in W.P.No.14793 of 2010 Mr.J.Raveendran, CMDA for R-2 in W.P.No.21427 of 2009 Mr.R.Neelakandan for R-1 in W.P.Nos.12958 and 12959 of 2010 - - - - COMMON ORDER These batch of writ petitions came to be posted before this court on being specially ordered by the Hon'ble Chief Justice vide order dated 14.6.2011. 2.The petitioners in all these writ petitions are either Promoters, Realtors, property developers, public limited companies or charitable educational trust. Most of the writ petitions challenges the constitutional validity of Sections 63B and 63C of the Tamil Nadu Town and Country Planning Act, 1971 (for short TCP Act) introduced by Tamil Nadu Act 34 of 2007 as well as the statutory rules known as the Tamil Nadu Town and Country Planning (Levy of Infrastructure and Amenities Charges) Rules, 2008 (for short 2008 Rules). Apart from the attack made on the vires of the Act and Rules, there are also individual cases seeking for exemption from the provisions of the Act on the ground that they are charitable trust running educational institutions and also seeking for reclassification of their buildings under different heads of entry so as to have lesser rate of levy for Infrastructure and Amenities charges (for short IAA Charges). 3.Some of the writ petitioners who have challenged the vires of the Act and Rules, have also filed individual writ petitions challenging the notices issued by the TCP Department or Local Planning Authorities. In some cases, persons who have executed bond as a condition precedent for getting planning permission have also challenged the subsequent demand to pay the balance amount, thereby resiling form the earlier undertaking given by them. In one or two cases, a contention was also made that as their buildings are located under the Special Economic Zone, they are entitled for the privileges conferred in terms of the Special Economic Zones Act, 2005. 4.Since number of counsels have appeared and arguments were repetitive, it is enough to set out the common contentions raised by them. 5.The first ground of attack made by the petitioners were that the object of TCP Act was only to provide planning development and use of rural and urban land in the State for the purposes connected therewith. Any amendment made must serve the object for which the Act was enacted. The present amendment is totally out of context with the provisions of the Act. It is stated that the power to levy development charges is already found under Section 59 and also relevant laws related to the local bodies for collection of development charges. There is no further requirement to collect an infrastructure and amenities charges separately. The collection of IAA charges and keeping it in a separate fund is clearly not contemplated under the provisions of the Act. Further, making such collection is not authorised by Article 265 of the Constitution as well as violative of Article 14 of the Constitution. Under Sections 63B and 63C, except the provisions were made for collection of IAA charges, the Act did not lay down any principle under which the delegates can collect the amount including the rates, duration and purpose for which such charges are collected. The amended provision inasmuch as had delegated essentially legislative function, the Act also suffers on account of the same. Hence it is liable to be set aside. 6.Since the builders have already been paying charges towards development in terms of Section 59, the further collection though under different nomenclature, but essentially for the very same purpose would amount to double levy and not authorised by relevant legislative entry. The levy of IAA charges is nothing but a fee and not a tax. The said collection of charges has no nexus with the object sought to be achieved and the relative benefits available to the petitioners including the users, there is no quid proquo and that the same is not indicated either in the Act or in the Rules. Hence the collection of such charges is an exercise of fraud committed by the State. The buildings which are located in the Special Economic Zone are entitled for special protection under the Special Economic Zones Act, 2005. Inasmuch as the non obstante clause provided therein under Section 51 of the said Act, the impugned amendment is also ultravires of the Central law. Even otherwise for the buildings situated in the Special Economic Zone, the State Governments have been mandated under Section 50 for the grant of exemption from the levy of taxes, duties to the developers or entrepreneurs. 7.It was further argued that the Rules framed under the Act have given uncanalized power to fix minimum and maximum amount in the classification of different types of buildings which are also not relevant in collecting IAA charges. The notices issued by the local planning authorities and the Director of Town and Country Planning suffer from non adherence to the procedures established under the Act. No provisional notices fixing the rates payable and calling for objections were issued before passing final orders. But straightaway demand notices have been issued. Therefore, it was unnecessary for the petitioners to avail the remedy provided under Rule 10 of the 2008 Rules. Even otherwise the condition of 50% of pre-deposit will make the alternative remedy illusory. Without prejudice to the contentions, it was further submitted that by G.O.Ms.No.34, Housing & Urban Development Department, dated 8.2.2008 when certain persons were given concessional levy of Rs.100/- per square metre, the same should be made available to all the persons who did not have the said benefit. In any event, the persons who were charged to pay in terms of G.O.Ms.No.84, Housing and Urban Development Department, dated 8.4.2008 should be given the benefit of G.O.Ms.No.161, HUD Department, dated 9.9.2009. Though some developers were made to sign the bond on dotted lines lest they may face the risk of refusal of planning permission, such bond conditions cannot be enforced. The developers are entitled to have the benefit of the subsequent G.O. fixing different rates of levy. 8.In respect of the charitable trust running educational institutions, they should not be treated as commercial buildings as they were imparting education and that they should be treated under the category "institutions". It was also stated that since they were imparting education, they should be given exemption from the grant of levy. 9.Before going into the contentions raised by placing reliance upon various judgments, it is necessary to trace the legislative history of the impugned amendment as well as various other laws to which references were made in this batch of cases. 10.The state Government issued an order by G.O.Ms.No.191, Housing and Urban Development Department, dated 1.6.2007. It gave reasons for bringing the G.O, which is as follows: "....as broad road connectivity, provision of standard infrastructure, implementation of schemes for connecting sewerage and drainage to the trunk systems, creation of environment friendly atmosphere on long term basis, etc. have become essential and it is felt necessary to provide adequate funds by way of establishing an Infrastructure and Amenities Fund with adequate sources of revenue." 11.In the light of the said object, infrastructure and basic amenities charges were fixed as follows: Infrastructure and Basic Amenities Charges S.No. Type of Building Ceiling of the Rates 1) Commercial & IT Building Rs.500/- per sq.m. 2) Multistoreyed Building Rs.1000/- per sq.m. 3) Institutions Rs.200/- per sq.m. 4) Industrial use Rs.300/- per sq.m. 12.The charges so collected was to be credited in the Infrastructure and Amenities Charges Fund to be operated and maintained by the Director of Town and Country Planning. In respect of Chennai Metropolitan area, the CMDA was directed to collect the said charges. Subsequently, some of the real estate promoters had requested the Government to exclude the Non-FSI and parking area from the levy of Infrastructure and Basic amenities charges and also had requested payment to be made on installment basis. The Government accepting the said request and also the recommendation of the Director of Town and Country Planning, had passed G.O.Ms.No.215, HUD Department, dated 02.07.2007. By the said order, the Government had excluded from the levy of IAA charges the non FSI and parking area. It had also directed 50% of the IAA charges should be collected at the first instance when final decision for grant of planning permission is taken and that the balance 50% was to be collected in two installments at 25% each for which the builders must give an irrevocable bank guarantee. 13.But, however the Government felt that mere issuance of an executive order may raise legal controversies. Therefore, in order to give statutory backing, it had amended the provisions of TCP Act by the Tamil Nadu Amendment Act, 34 of 2007 known as Tamil Nadu Town and Country Planning (Second Amendment) Act, 2008. By the said amendment, the legislature had introduced Sections 63B and 63C into the TCP Act. Section 63B reads as follows: "63-B.Levy of infrastructure and amenities charges.-(1)Every local authority or the planning authority, as the case may be, while according building permit under the relevant laws or according permission under this Act, as the case may be, shall levy charges on the institution of use or change of use of land or building or development of any land or building in the whole area or any part of the planning area so as to meet the impact of development and for ensuring sustainable development of urban and rural areas by providing adequate infrastructure and basic amenities at the rates as determined in accordance with such procedure as may be prescribed which shall not be less than minimum and not more than the maximum as may be prescribed, and different rates may be prescribed for different parts of the planning area and for different uses. (2)The infrastructure and amenities charges shall be leviable on any person who undertakes or carries out any such development or institutes any use or changes any such use. (3)The collection of the infrastructure and amenities charges shall be made in such manner as may be prescribed. Explanation.-For the purpose of this Section "relevant laws" means in case of- (i)the Chennai Metropolitan Development Authority, the Tamil Nadu Town and Country Planning Act, 1971 (T.N.Act 35 of 1972); (ii)The Chennai City Municipal Corporation, the Chennai City Municipal Corporation Act, 1919 (T.N. Act 4 of 1919); (iii)The Madurai City Municipal Corporation, the Madurai City Municipal Corporation Act, 1971 (T.N. Act 15 of 1971) (iv)the Coimbatore City Municipal Corporation, the Coimbatore City Municipal Corporation Act, 1981 (T.N. Act 25 of 1981) (v)The Tiruchirappalli City Municipal Corporation, the Tiruchirappalli City Municipal Corporation Act, 1994 (T.N. Act 27 of 1994); (vi)The Tirunelveli City Municipal Corporation, the Tirunelveli City Municipal Corporation Act, 1994 (T.N. Act 28 of 1994); (vii)the Salem City Municipal Corporation, the Salem City Municipal Corporation Act, 1994 (T.N. Act 29 of 1994) (viii)The Municipalities and Town Panchayats, the Tamil Nadu District Municipalities Act, 1920 (T.N. Act 5 of 1920); and (ix)The Panchayat Unions and Village Panchayats, the Tamil Nadu Panchayats Act, 1994 (T.N. Act 21 of 1994). 63-C.Constitution of State Infrastructure and Amenities Fund.-(1)The Government may constitute a fund called "State Infrastructure and Amenities Fund" to provide adequate infrastructure and basic amenities so as to meet the impact on development and for ensuring sustainable development of urban and rural area. (2)The infrastructure and amenities charges levied under Section 63-B shall be credited to this fund. (3)The fund shall be operated, utilized and maintained in such manner as may be prescribed." 14.In order to validate the transactions which took place ever since the introduction of G.O.Ms.No.191, dated 1.6.2007, Section 3 of the Amending Act validated all the earlier transactions. Section 3 reads as follows: "3.Validation and levy of infrastructure and amenities charges.-Notwithstanding anything contained in the principal Act, or any judgment, decree or order of any Court no levy or collection of infrastructure and amenities charges at any time between 1st day of June 2007 and the date of publication of this Act in the Tamil Nadu Government Gazette shall be deemed to be invalid or ever to have been invalid and such charge levied or collected shall be deemed to be and to have always been validly levied or collected in accordance with law, as if the principal Act, as amended by this Act, had been in force at all material times when such levy or collection has been made and no suit or other legal proceeding shall be maintained or continued against any local authority, planning authority, the Director of Town and country Planning, Government or any other authority whatsoever on the ground that such levy or collection was not made in accordance with law." 15.The Statement of object and reasons as appended to the Bill reads as follows: "The urban areas are under stress due to the recent trend of industrial and economic development and the growth is beyond the defined planning unit of urban authority into the peri-urban areas and are developing at a fast pace. These areas are in a process of urbanization and therefore progressively assume many of the characteristics of urban areas. It is transition zone where rural and urban land uses are mixed and there is a rapid conversion of rural land to urban purposes. 2.In the process of development, private developers are playing key role and put in their efforts in the actual provision of industry construction and accessory developments like commercial, residential, recreational, etc., while they swing for the process of these sectors, they also derive appreciable gains in the process. The development requires high order infrastructure like international standard transport facilities, new source of water supply system, connecting sewerage and drainage to the trunk system, creation of environment friendly atmosphere at the local as well as regional level which require huge capital outlay. The concerned local bodies find it difficult to cater to the needs for infrastructure facilities even at the local level, even though the development provide outlets to the growth of the cities. In view of the above, some kind of institutional arrangement for mobilization and provision of higher order infrastructure at the regional level is though of. At present, developers develop properties without providing basic infrastructure. Under these circumstances, the user pay concept is one of the solutions for sustainable development. In these specific cases, major participation of developers in the provision of infrastructure is essential, as they derive the main benefit out of these developments. Hence, the Government, after detailed examination of the facts of the ground reality, has ordered in G.O.Ms.No.191, Housing and Urban Development [UD4(2)] Department, dated 01.06.2007 for the collection of infrastructure and basic amenities charges from the higher order developers." 16.Pursuant to the amendment made to TCP Act, the Government had introduced Tamil Nadu Town and Country Planning (Levy of Infrastructure and Amenities Charges) Rules, 2008. The rules were brought into effect from 12.11.2007. The rules also defined the term "infrastructure" under Rule 2(d), which reads as follows: "(d)"infrastructure" means the sum of technical installations and social institutions creating a basis for human activities. Specifically it is the physical equipment needed to provide services such as transport, power, water supply, sewerage, drainage, communications and access;" 17.The rates for IAA is found under Rule 4. The Director of Town and Country Planning was given power to fix the rates of charges in respect of all areas other than Chennai Metropolitan Planning area for each of the category of buildings which should not be less than minimum and more than maximum. Rule 4 reads as follows: "4.Infrastructure and Amenities Charges.- The infrastructure and amenities charges shall be collected for new constructions, additions to existing constructions and change of use of existing buildings at the rates not exceeding the maximum rate and not less than the minimum rates indicated in the Table below, in case of different categories of buildings referred to in the Table:- THE TABLE Sl.No. Type of building Minimum rates per square metre Maximum rates per square metre     1 Multistoreyed buildings accommodating residential or commercial or Information technology or industrial or institutional or combination of such activities. 500 1000 2 Commercial building, Information Technology building, Group development and Special building (not covered under Sl.No.1) 250 500 3 Institutional building (not covered under Sl.No.1) 100 200 4 Industrial building (not covered under Sl.No.1) 150 300 18.Under Rule 5 power has been given to the Director of Town and Country Planning to fix the rates of such charges in respect of all the areas, other than the Chennai Metropolitan Planning Area, for each of the above categories of buildings, which shall not be less than the minimum and not more than the maximum as prescribed under rule 4 taking into account the various aspects of developments including infrastructural needs. Under Rule 6, any person who intends to build for which planning permission is required under the Act, must apply in Form-A for the assessment of infrastructure and amenities charges. Under Rule 7, appropriate planning authority or local authority were bound to decide the issue and in case, no such application is made, after serving notice on the person liable to make payment, charges may be decided and provisional notice of demand should be sent in Form B. Under Rule 8, final assessment has to be made in Form C. 19.Rule 9 provides for payment to be made in installments and the same reads as follows: "9.Payment of Infrastructure and Amenities Charges.- Such person on receipt of the final assessment order under Rule 8 shall be liable to pay to the Planning Authority or the Local Authority, as the case may be, Infrastructure and Amenities Charges assessed:- Sl.No. Number of instalment Quantum of Infrastructure and Amenities Charges to be collected Period of payment     1 1st instalment 50 per cent of the charge At the time of final decision on the application for grant of planning permission but before the issue of the Planing Permission. 2 2nd instalment 25 per cent of the charge Within the end of 6 months period from the date of issue of Planning Permission. 3 3rd instalment 25 per cent of the charge Within one year from the date of payment of second instalment or before the issue of completion certificate whichever is earlier. 20.Rule 10 provides for appeal. The said rule reads as follows: "10.Appeal.- Any person aggrieved by the final assessment order issued under Rule 8 may, within a period of thirty days from the date on which the order was received by him, appeal against such order to the Chennai Metropolitan Development Authority in cases relating to Chennai Metropolitan Planning Area or to the Director of Town and country Planning in cases relating to planning area other than the Chennai Metropolitan Planning Area: Provided that the Chennai Metropolitan Development Authority or the Director of Town and Country Planning, as the case may be, may admit an appeal preferred after the expiry of the said period, if the Chennai Metropolitan Development Authority or the Director of Town and Country Planning, as the case may be, is satisfied that the appellant had sufficient reason for not preferring the appeal within the said period, However, no such appeal shall be entertained after a period of one hundred and eighty days from the date on which the order was received by him: Provided further that no appeal shall be entertained under this Rule unless it is accompanied by satisfactory proof of (he payment of the Infrastructure and Amenities Charges admitted by the appellant to be due or 50 per cent of the assessed amount whichever is higher." 21.Subsequent to the statutory rules came to be made, the Government by G.O.Ms.No.4, HUD Department, dated 4.1.2008 had suggested modalities for collection of IAA charges which is as follows: Sl.No. Number of Installment Quantum of Infrastructure and amenities charges to be collected Period of payment 1 1st Installment 50% of the charge At the time of final decision on the application for grant of planning permission but before the issue of the planning permission. 2 2nd Installment 25% of the charge Within the end of 6 months period from the date of issue of planning permission 3 3rd Installment 25% of the charge Within one year from the date of payment of second installment or before the issue of completion certificate whichever is earlier. 22.The planning authorities or local authorities were advised to add this condition in their orders at the time of issuance of planning permission so that charges will be collected without fail. The authorities were also directed to obtain necessary bank guarantees in the format which is already in operation in the CMDA. After amendment to the Act and statutory rules came into force, it was seen that representations were sent from the builders, developers that there is slump in the real estate market and hence they requested reduction in the rates of charges. Therefore, the Government had issued G.O.Ms.No.34, HUD Department, dated 8.2.2008, wherein and by which it was decided that pending final decision on their request, an interim decision was taken to promote development without any bottleneck in the initial phase. Hence an uniform rate of Rs.100/- per sq.m was to be charged for IIA charges with an indemnity bond towards payment of balance of charges before issuance of completion certificate as per the time schedule to be prescribed. 23.But within two months from the date of issuance of that order, the Government had considered the issue and found that there was no necessity to make any modification and hence cancelled the G.O.Ms.No.34, dated 8.2.2008 by issuance of G.O.Ms.No.84, HUD Department, dated 8.4.2008. In that order, the authorities were directed to collect installments as per Rule 9. In paragraphs 5 and 6 of the said G.O., the following directions were issued: "5.The Government also direct that in respect of the Chennai Metropolitan area and Chengalpattu Region the maximum rates of the charges shall be fixed and collected, in respect of the Coimbatore and Tiruppur Local Planning areas and Kurichi New Town Development area 75% of the maximum rates of charges and in respect of the other areas 50% of the maximum rates of charges shall be fixed and collected. 6.The Government further direct that the powers delegated to the Vice-Chairman, Chennai Metropolitan Development Authority, and the Commissioner of Town and Country Planning for fixing the rates of charges be withdrawn. In future the rates shall be fixed by the Government." 24.Subsequently, the Government had issued G.O.ms.No.161, HUD Department, dated 09.09.2009, wherein it was recorded that a representation was received from the President of Confederation of Real Estate Developers' Associations of India to the effect that levy of charges is over and above the development charges that is collected under various other heads. In the other States, the rates are very much lower. They also pointed out that the real estate market was very much depressed and the sales have dipped as a result of high rates of interest on home loans. Therefore, a request was made to reduce the IAA charges and the charges may be made effective from 8.4.2008, i.e., the date on which G.O.Ms.No.84, dated 8.4.2008 was issued. However, the Government, after considering the said request and in consultation with the CMDA and the Commissioner for Town and Country Planning and also took note of the slump in the construction industry, had dispensed with the minimum and maximum rates specified in Rule 4 of the 2008 Rules. 25.The rates for different categories were prescribed in paragraphs 4(ii) to 4(v) which reads as follows: "ii)The infrastructure and Amenities charges for different categories in different areas shall be as given in the table below: Chennai Metropolitan Commissioner of Town and Development Authority Country Planning Sl.No. Type of Building Chennai Metropolitan Area Chengalpattu Region Coimbatore, Tirupur and Kurichi Other areas Rates per sq. mtr. 1 Multi Storeyed Building Commercial or Information Technology or Industrial or Institutional or Combination of such activities 500 500 375 250 2 Multi Storeyed residential 250 250 250 250 3 Other than Multi storeyed Building Commercial building, Information Technology building, Group Development and Special Building 250 250 190 125 4 Institutional building (not covered under S.No.1) 100 100 75 50 5 Industrial building (not covered under S.No.1) 150 150 112.5 75 Iii)The infrastructure and Amenities charges shall be paid in one lumpsum, before issue of Planning Permission. iv)The above rates of Infrastructure and Amenities charges shall take place with immediate effect. v)The revised rates of Infrastructure and Amenities charges shall be revised at a later date whenever necessity arises." Though in paragraph 6 of the said order, it was stated that necessary proposal for amending statutory rules were to be sent, but it is fairly submitted that no such rules have been enacted so far. 26.Further Section 2(2) of the TCP Act, 1971 defines "amenities", which is as follows: "(2)"amenities" includes streets, open spaces, parks, recreational grounds, play-grounds, water and electric supply, street lighting, sewerage, drainage, public works and other utilities, services and conveniences;" 27.Section 2(13) also defines "development", which is as follows: "(13)"development" means the carrying out of all or any of the works contemplated in a regional plan, master plan, detailed development plan or a new town development plan prepared under this Act and shall include the carrying out of building, engineering, mining or other operations in, or over or under land, or the making of any material change in the use of any building or land: Provided that for the purposes of this Act, the following operations or uses of land shall not be deemed to involve development of the land that is to say- (a)the carrying out of any temporary works for the maintenance, improvement or other alteration of any building, being work which do not materially affect the external appearance of the building; (b)the carrying out by a local authority of any temporary works required for the maintenance or improvement of a road, or works carried out on land within the boundaries of the road; (c)the carrying out by a local authority or statutory undertaker of any temporary works for the purpose of inspecting, repairing or renewing any sewers, mains, pipes, cables or other apparatus, including the breaking open of any street or other land for that purpose; (d)the use of any building or other land within the curtilage of a dwelling house for any purpose incidental to the enjoyment of the dwelling house as such; and (e)the use of any land for the purpose of agriculture, gardening, or forestry (including afforestation) and the use for any purpose specified in this clause of this proviso of any building occupied together with the land so used;" 28.Mr.R.Thiagarajan, learned Senior counsel for some of the petitioners contended that most of the buildings were situated in difference village panchayats. Under Section 242(2) of the Tamil Nadu Panchayats Act, the State Government had framed Tamil Nadu Panchayat Buildings Rules, 1997. Under the said statutory rules, it is the panchayat which has to approve the layout of sites. The rules elaborately deal with various criteria for sanctioning layouts. Rule 25 provides for sanction of plan in respect of multistorey and public buildings. There it is stated that the executive authority should not grant approval for any construction without consulting the Joint Director or Deputy Director of Town and Country Planning. Rule 35 levies fees payable. The said rule reads as follows: "35.Levy of fees by Village Panchayats.-The Inspector of the Village Panchayats shall notify the maximum and minimum rates specified in the Appendix-F for adoption by the Village Panchayats taking into consideration the proximity of the Village Panchayats to the nearest Municipality and ensure that the rates so determined by the Village Panchayats do not exceed the prevailing rates of the neighbouring Municipality." In the absence of rules to be notified under rule 25, the present orders levying IAA charges are also not valid. 29.In the light of the above legal provisions, it was contended that the term amenities defined under Section 2(2) of TCP Act includes streets, open space, playground, etc. Insofar as water, sewerage and drainage are concerned, the same is taken care of by the Chennai Metropolitan Water Supply and Sewerage Board Act, 1978 and that the CMDA is collecting development charges in terms of Section 59 of the said Act. When under Section 59 of the said Act, the levy of development charges were questioned, a division bench of this court in M.Chandru Vs. Member Secretary, Chennai Metropolitan Development Authority reported in 2007 (1) CTC 353 had upheld the said power. The matter was taken to the Supreme Court. The Supreme Court in M. Chandru v. Member-Secretary, Chennai Metropolitan Development Authority reported in (2009) 4 SCC 72 had held that the levy of development charges under Section 59 is a fee. Since in that case, the State had not produced any material whatsoever before the High Court, which was required for meeting the challenge of imposition of fee, the matter was remanded back to this court and the same is pending before the division bench. 30.In respect of the electricity supply, it was for the TNEB to undertake the said work. The street lights, playgrounds, open space and parks were to be maintained by the local bodies. Therefore, when substantial part of the amenities have been taken care of by Section 59 and the other enactments in the field, there was no requirement for charging infrastructure and amenities charges. Even otherwise, they have not given any quantified data as to what was the expenditure involved for providing infrastructure and amenities and as to whether the levy was in commensurate with the projected expenditure. In the absence of the respondents rendering any special service, they cannot charge any infrastructure and amenities charges. It is also stated that having collected so much amount, the petitioners are not even aware as to how monies are spent by the respondents which were collected in the name of IAA charges. 31.In this context, the learned Senior counsel referred to a judgment of the Supreme Court in Nagar Mahapalika, Varanasi Vs. Durga Das Bhattacharya and others reported in AIR 1968 SC 1119 and contended that expenditure for paving by lanes and for lighting the streets and parks are the statutory duties of the municipalities and that for reimbursement of such cost, license fee cannot be charged. The learned counsel further placed reliance upon a judgment of the Supreme Court in The Government of Andhra Pradesh and another Vs. Hindustan Machine Tools Ltd., reported in AIR 1975 SC 2037 = (1975) 2 SCC 274 for contending that fee is a sort of return or for consideration of service rendered and hence there should be an element of quid pro quo. 32.The learned Senior Counsel thereafter referred to a judgment of the Supreme Court in Kamaljeet Singh v. Municipal Board, Pilkhwa and others reported in AIR 1987 SC 56 = (1986) 4 SCC 174 for contending that nullah constructed for flow of sewage does not entitle levy of toll tax on stage carriage operators. The learned Senior counsel further referred to a judgment of the Supreme Court in State of Uttar Pradesh and others Vs. Vam Organic Chemicals Ltd. and others reported in (2004) 1 SCC 225 for contending that levy of fee has to be struck down when fee levied was not established to be in commensurate with the special service to be done. There should be reasonable relationship between levy of fee and service rendered. The test of co-relationship or correspondence has been repeatedly used by the court for upholding the fee and that it was reasonable in the requirement of the authority for fulfilling his statutory obligation. 33.The learned Senior Counsel also referred to a judgment of the Supreme Court in Municipal Corporation, Amritsar Vs. Senior Superintendent of Post Offices, Amritsar Division and another reported in (2004) 3 SCC 92 for contending that the municipal corporation was collecting tax from the general public for water supply, street lights and approach roads. Hence there is no provision for the municipal corporation to levy service charges. Thus, tax cannot be pressed into service in the name of service charge. He further placed reliance upon a judgment of the Supreme Court in Calcutta Municipal Corporation and others Vs. Shrey Mercantile (P) Ltd. And others reported in (2005) 4 SCC 245 for contending that the main difference between fee and tax is on account of source of power. But the use of expression tax or fee in the statute is not decisive and certain proper constructed fee can also be held to be tax. But the tax is an enforced contribution expected pursuant to the legislative authority for the purpose of raising revenue to be used for public or governmental purposes and not as payment for special privileges or services rendered by the public officer. The fee is imposed upon a person to defray the cost of a particular service rendered to his account. 34.The learned Senior counsel further referred to a judgment of the Supreme Court in Jindal Stainless Ltd.(2) and another Vs. State of Haryana and others reported in (2006) 7 SCC 241 to contend that there must be quantifiable data to be made available by the State to justify the levy imposed by the State. He further referred to a judgment of the Supreme Court in Mumbai Agricultural Produce Market Committee and another Vs. Hindustan Lever Limited and others reported in (2008) 5 SCC 575 for contending that the burden is on the State to justify the levy even if it is the case of cost of supervision and the State may recover, materials must be produced before the court for making such levy. 35.The learned Senior counsel further stated that the municipality in the garb of service charge cannot impose tax when the Act do not provide for such levy of tax. For this purpose, reliance was placed upon a judgment of the Supreme Court in Municipal Corporation, Amritsar Vs. The Senior Superintendent of Post Offices, Amritsar Division and another reported in AIR 2004 SC 2912. He further referred to a judgment of the Supreme Court in Ansal Properties and Industries Limited Vs. State of Haryana and another reported in (2009) 3 SCC 553 that even if a demand was made on the basis of TCP Act, a challenge can always be raised where demand was sought to be protected and supported by statutory provisions. The learned Senior counsel made further reference to a judgment of the Supreme Court in Raj Homes Private Limited and another Vs. State of Madhya Pradesh and others reported in (2008) 9 SCC 500 to contend that prescription of citywise preminum and flat rate was arbitrary and unreasonable if relevant factors were not taken into account. 36.Mr.Satish Pararasan, the learned counsel for some of the petitioners submitted that earlier writ petition filed in W.P.No.2683 of 2009 challenging the amendment made to the Act and Rules by the representative body of builders, i.e., CREDAI was withdrawn by the association on 14.08.2009 with liberty to file a fresh writ petition. Therefore, the withdrawal will not stand in the way of the present petitioners pursuing the case. He also submitted that the petitioners were also not guilty of laches since the judgment challenging Section 59 of the TCP Act came to be delivered only on 17.02.2009 and when they came to know that levy of IAA charges must co-relate the service rendered, they have come forward to file the present writ petition. 37.For this purpose reliance was placed upon a judgment of the Supreme Court in Union of India and others Vs. I.T.C. Limited reported in AIR 1993 SC 2135 = 1993 Supp (4) SCC 326. It was stated therein that if any wrong computation is made, refund of excise duty can be claimed and an aggrieved person can approach the authority soon after coming to know of the judgment of the court. It cannot be said to be guilty of laches. 38.The learned counsel also referred to a judgment of the Supreme Court in Salonah Tea Co. Ltd. And others Vs. Superintendent of Taxes, Nowgong and others reported in (1988) 1 SCC 401 for contending that if tax or money has been collected without any authority of law, there is a concomitant duty to refund the realisation as a corollary of the constitutional inhibition that should be respected and if tax was collected without the authority of law and wrong assessment was made, there is no power vested on the State to retain the money and that they are liable to be refunded. 39.Further, the learned counsel referred to Queen's Bench decision in The Queen Vs. Tynemouth Rural District Council reported in 1896 (2) QB 219 for contending that if owner provides at his own expenditure the sewers with which drains were intended to be connected, then the local authorities were not entitled to attach an unreasonable condition for grant of approval. 40.On the question of right of appeal provided under Rule 10 of the IAA Rules 2008, it is stated that the appeal is not an effective provision and since assessment has not been made in terms of Rules 6 to 9, the question of filing an appeal against the defective claim will not arise. For this purpose, he placed reliance upon a judgment of the Supreme Court in Institute of Chartered Accountants of India Vs. L.K.Ratna and others reported in (1986) 4 SCC 537. It was contended that insufficiency of original authority cannot be cured in such an appeal. The failure of natural justice in trial body cannot be cured by sufficiency of natural justice in an appellate body. But in that case itself, in paragraph 18, the Supreme Court had observed as follows: 18...... It is the portrait of his professional honour. In a world said to be notorious for its blase attitude towards the noble values of an earlier generation, a man's professional reputation is still his most sensitive pride. In such a case, after the blow suffered by the initial decision, it is difficult to contemplate complete restitution through an appellate decision. Such a case is unlike an action for money or recovery of property, where the execution of the trial decree may be stayed pending appeal, or a successful appeal may result in refund of the money or restitution of the property, with appropriate compensation by way of interest or mesne profits for the period of deprivation..... Therefore, that judgment may not be appropriate for the contention that was advanced herein. 41.The learned counsel also placed reliance upon a judgment of the Supreme Court in Mardia Chemicals Ltd. etc. Vs. Union of India and others reported in (2004) 4 SCC 311 for contending that the condition of pre-deposit for maintaining an appeal is not pre-deposit of any amount at the first instance is not found in any valid law and since the first proceedings is under Rule 10, the requirement of deposit on the basis of one sided claim cannot be said to be a reasonable condition at the first instance and that too before the start of adjudication of dispute. 42.With reference to delegation of power given to the authorities and for the attack of delegation of essential legislative function to the delegate, the learned counsel placed reliance upon a judgment of the Supreme Court in Municipal Corporation of Delhi Vs. Birla Cotton, Spinning and Weaving Mills, Delhi and another reported in AIR 1968 SC 1232. It was contended that sufficient legislative guidelines is not given to the authorities and therefore, leaving power to levy was an excessive delegation. 43.Supporting the stand, the other learned counsel Mr.T.K.Baskar, stated that it is not in every case that alternative remedy will have to be availed and it has got its well known exception, i.e., if a writ petition is filed for enforcement of any of the fundamental rights or where there has been violation of principles of natural justice or where ordering other proceedings are wholly without jurisdiction or when the vires of the Act is challenged. For this purpose, he placed reliance upon a judgment of the Supreme Court in Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others reported in (1998) 8 SCC 1. In respect of the location of buildings in the Special Economic Zone, the policy note prepared by the State Government was produced to show that the units in the Special Economic Zone would be exempted from taxes levied by the local bodies. 44.Countering the contentions raised by the counsels for the petitioners, Mr.M.C.Swamy, learned Special Government Pkeader referred to various averments made in the common counter affidavit filed, dated 8.4.2011 in the batch of cases. He contended that the preamble to the Act and object and reasons set out in the amendment Act are clear guidelines for levy of IAA charges. The judgment rendered under Section 59 in M.Chandru's case (cited supra) has no relevance to the facts on hand. The present levy is on account of infrastructure and amenities and creation of special fund. While development charges are to be utilized for the purposes mentioned under Section 67 of the TCP Act, it was towards the expenditures incurred in the administration of the Act, cost of acquisition of land for development purposes, towards expenditure for any development or works contemplated in any development plan, towards expenditure for such other purposes as may be required by the planning authority and for such other purposes as the Government may direct, but the imposition of levy of infrastructure and basic amenities charges was necessitated due to massive development and it is to meet the impact of development and for ensuring sustainable development of urban and rural areas. The charges are credited to the fund which will be used for purposes prescribed by the State. It is largely used for preparation of infrastructure investment plans, execution of infrastructure investment plan in full or part and for any purposes incidental to the preparation or execution of infrastructure investment plans. Therefore there is vast difference between the development charges levied under Section 59 and IAA charges under Section 63B. The fund is created for better and greater infrastructure and for providing basic amenities. The contention that no personal service to the developers was devoid of merits. 45.The builders are required to pay charges as per the provisions of the Government Order which were prevalent when the planning permission was issued. They will not be eligible to any benefit or revision of rates on account of subsequent orders. It was further stated that the urban areas in our country particularly in the State of Tamil Nadu are witnessing rapid growth and massive scale of urbanization, technological advancement particularly with the advent of electronic revolution, fast changing urban structure and urban life style, increase in complexities of urban problem, inadequacy of shelter and basic civic services, unmanageable urban sprawl would become acute in the days to come and pose a greater challenge to the efficient planning development and management to town and cities. It is stated that the urban urban population has been growing at the rate of 30% to 35% and expected to be more or less same rate during coming years. As per the 10th Five year Plan report, the growth of the population has put urban infrastructure and services under severe strain on urban areas in the country and present a grim picture with regard to the availability of basic infrastructure. Therefore, the Government was taking effective steps to meet out the grave situation, lest urbanization will paralyze everything in all aspects. Due to the policy of economic liberalization, globalization and deregulation, urban centres in general and large urban cetres in particular are going to attract lot of growth and investment. They will be fast emerging as an hub around which Indian economy will gravitate. Therefore, it becomes essential that appropriate environment in these centres is created which will help them to attract investments, provide employment, ensure quality of life and make them more sustainable and productive. 46.It was further stated that infrastructures are foundations on which superstructure of urban areas is built and quality of life is determined. In out Country, urban centres offer inadequate services in terms of potable water supply, sewerage disposal and solid waste management. In the result, urban areas are becoming centres of dirt and diseases. Environment conditions prevailing in urban sectors are highly conducive to spread diseases making urban life unsafe for the majority of people living in slums and squatter colonies. Lack of capacity to pay for the services concerned on the part of the most of the urban users coupled with the lack of resources with service providing Government agencies results in non-provision of the services and as such quality of life suffers. In the years to come, magnitude of demand for amenities and infrastructures would be colossal and making available huge resources by the Government and its departments from budgetary mechanism would be impossible. Hence an alternate mechanism of funding the infrastructure and amenities would have to be found out. Pricing of developed urban land has to be done in such a way that all costs of providing social and physical infrastructures are loaded on the land itself. It is following these principles while development is permitted, infrastructure and basic amenities charges are to be collected to improve the quality of life. In essence, principle of users must pay will have to be followed. 47.It was further stated that development requires high order infrastructure like international standard transport facilities, broad road connectivity, new source of water supply system, sewerage and drainage to the trunk system, creation of environment friendly atmosphere in the urban as well as regional level which require huge capital outlay. The concerned local bodies will be having difficult to cater to the needs of infrastructure facilities even at the local level. Further, investments are required to provide adequate services in terms of sewerage, drainage, solid waste management and electricity. Experience of the neighbouring States in this regard are also taken into account. The Government after detailed examination of the fact and ground reality had ordered collection of IAA harges from the higher developers excluding small residential developers. It is with this view, charges have been levied. 48.It was further stated that the TCP Act came into force from the year 1972 and since more than 38 years have elapsed, the levy of development charges prescribed under the Act were not adequate to the present day conditions and are not in commensurate with the cost of lands and that facilities provided by the developers will be only temporary measure. This will result in depending upon the Government sources finally posing a serious financial crisis to the local bodies. At the present rate of growth in which developers are unable to provide drinking water to all the occupants. While the ground water availability can be exploited for some time, after depletion of ground water and drained all natural sources will further result in huge investments in projects such as desalination projects. The pressure on the Government is mounting to provide special schemes in the areas that are rapidly developing with high rise buildings, group developments and special buildings. Due to density of population in the developing area, there is possibility of heavy traffic on the road. Hence there is dire necessity to provide free flow for traffic by planning for broad road networks. Such road works are beyond the locality of an individual developer. Hence the Government has to provide necessary infrastructure and basic amenities to meet the impact of development created by special classes of buildings such as commercial, information technology, multistoreyed building, industrial units. This necessitated the Government to bring the amendment. 49.Refuting the stand that the amounts collected have been either not spent or spent in a clandestine way without transparency, the learned Special Government Pleader produced the following fund position regarding IAA charges, which reads as follows: Fund position Infrastructure & Amenities charge (Rs.iIn crores) Sl.No. Subject Total project cost Fund sanctioned Fund yet to be released Fund released so far 1 World Tamil Conference at Coimbatore (Infrastructure) 26.31 24.78 24.78 2 Water supply scheme for Manapakkam 10.44 5.22 5.22 --
3 UGCS for Manapakkam 26.86 13.43 13.43
14 Pumping stations along IT corridor 28.05 14.025 14.025 5.5 5 STP at Sholinganallur 27.31 14.08 14.08
Grade Separators at Anna Salai 500 100 G.O. Awaited
Improving the condition of KWMC 33.625 33.625 33.625
Flyover and sub-way in Tiruvalluvar salai and CB road 126.4
Committee felt that no rule provision is there funding to land acquisition.
Special Road Project 1000 309 309 51.61 51.61 51.61 10 Chennai Metro Rail 350 350 11 Tirunelveli Bye pass road 5 Committee approved and proposal sent to Govt. for sanction of funds.
Total 740.89 Fund available 990.85 crores Fund released 740.89 crores
249.96 crores Committed 74.88 crores
Balance available 175.08 crores
50.The learned Special Government Pleader referred to a judgment of the Supreme Court in Sreenivasa General Traders and others Vs. State of Andhra Pradesh and others reported in (1983) 4 SCC 353 for contending that co-relationship between levy and service rendered is one of general character and not of mathematical exactitude. All that is necessary is that there should be reasonable relationship between levy of fee and service rendered.
51.He further referred to a judgment of the Supreme Court in B.S.E.Brokers' Forum, Bombay and others Vs. Securities and Exchange Board of India and others reported in (2001) 3 SCC 482 for contending that there is sea change in the judicial thinking as to the difference between a tax and a fee. The traditional concept of quid pro quo in a fee has undergone considerable transformation. So far as the regulatory fee is concerned, the service to be rendered is not a condition precedent and the same does not lose the character of a fee provided the fee so charged is not excessive. It was also stated that once the levy is in public interest and connected with the larger trade in which the contributories are involved then confining the services only to the contributories does not arise. The entire benefit of levy need not accrue to the contributories.
52.The learned Special Government Pleader also referred to a judgment of the Supreme Court in Sona Chandi Oal Committee and others Vs. State of Maharashtra reported in (2005) 2 SCC 345 wherein the earlier case in B.S.E.Brokers' Forum's case (cited supra) came to be quoted with approval. It was further argued on the basis of the said judgment that the services to be rendered is not a condition precedent if there is reasonable relationship between levy of fee and service rendered is sufficient. Though ordinary fee should be uniform, but the absence of uniformity by itself will not indicate that the levy is a tax.
53.He also referred to a judgment of the Supreme Court in Quarry Owners' Association v. State of Bihar reported in (2000) 8 SCC 655 for contending that the history of the legislation will show there is wider area of delegation in the matter of imposition of tax for local bodies subject to control and safeguards of various kinds which followed the nature of guidance in the matter of fixation of rate for local taxation. It is not necessary while giving delegation that maximum rate also must be prescribed.
54.Before dealing with the main contentions, it is necessary to deal with the writ petitions challenging the vires of Section 59 of the TCP Act. Though in two of the writ petitions, the challenge made to Section 59 of the TCP Act, that question is no longer res integra and the legality of the said section was upheld by the division bench of this court in M.Chandru Vs. Member Secretary, Chennai Metropolitan Development Authority reported in 2007 (1) CTC 353. Subsequent to the appeal to the Supreme Court, that view was upheld in M.Chandru v. Member-Secretary, Chennai Metropolitan Development Authority reported in (2009) 4 SCC 72.
55.In the light of the rival contentions, it has to be seen whether the petitioners have made out any case for the grant of reliefs prayed for by them. It must be noted that the panchayats have been given constitutional status by insertion of Part IX in the Constitution. Under Article 243(G), the powers of the authority and responsibilities of the panchayats have been set out. Article provides for legislature of the State may by law endow the panchayats with such powers and authority as may be necessary to enable them to function as institutions of the self Government and such law may contain the provisions for the devolution of powers and responsibilities upon panchayats, at the appropriate level subject to such conditions specified therein with reference to preparation of plans for economic development and social justice and implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule. The Eleventh schedule sets out various functions which panchayats may undertake and out of 29 subjects, item 10 deals with rural housing, item 11 deals with drinking water and item 23 deals with health and sanitation.
56.Some counsel argued that in respect of Chennai Metropolitan area, Chennai Metropolitan Sewerage Board constituted under the 1978 Act enjoin to provide water supply and sewerage. For that purpose, Section 59 has been inserted in the TCP Act enabling the CMDA to collect development charges. When once development charges are paid in respect of water supply and sewerage, the question of the petitioners further saddling with the liability to pay amenities and infrastructure does not stand to reason. In fact Section 2(2) of the TCP Act defined amenities which includes water supply and sewerage as seen already. But that argument overlooks the fact that infrastructure and amenities charges which are now sought to be charged is not only related to metropolitan area, but even peripheral villages which are outside the metropolitan area. Further under the Tamil Nadu Village Panchayat Act read with Rule 35 of the Tamil Nadu Panchayat Buildings Rules, panchayats can levy fees on being notified by the Inspector of Panchayats and not otherwise. But interpolate between Part IX and IX-A of the Constitution vis-a viz., the development authority constituted under the TCP Act came to be considered by the Supreme Court in respect of Bangalore Municipal Corporation Act vis-a-viz Bangalore Development Authority Act in Bondu Ramaswamy and others Vs. Bangalore Development Authority and others reported in (2010) 7 SCC 129. In paragraphs 45 and 48, the Supreme Court had observed as follows:
"45.Part IX-A seeks to strengthen the democratic political governance at grass root level in urban areas by providing constitutional status to Municipalities, and by laying down minimum uniform norms and by ensuring regular and fair conduct of elections. When Part IX-A came into force, the provisions of the existing laws relating to municipalities which were inconsistent with or contrary to the provisions of Part IX-A would have ceased to apply. To provide continuity for some time and an opportunity to the concerned State Governments to bring the respective enactments relating to municipalities in consonance with the provisions of Part IX-A in the meanwhile, Article 243ZF was inserted. The object was not to invalidate any law relating to city improvement trusts or development authorities which operate with reference to specific and specialised field of planned development of cities by forming layouts and making available plots/houses/apartments to the members of the public.
48.Municipalities are not concerned with nor entrusted with functions similar to those entrusted to BDA under the BDA Act, that is building, engineering or other operations by forming layout of plots with all amenities, construction of houses and apartments, as a part of any scheme to develop a city. Municipalities are concerned with the overall economic development providing social justice (urban poverty alleviation and slum improvement) regulating land use and constructions, providing amenities (roads, bridges, water supply, fire services, street lighting, parking, bus stops, public conveniences), promoting education and culture etc. Neither urban town planning nor regulation of land use and construction, is similar to the `development' as contemplated in BDA Act, that is carrying out building, engineering operations in or over or under land. It would thus be seen that the object and functions of a Municipal Corporations are completely different from the object and purpose of a development authority like BDA. BDA is not a municipality. Therefore, it cannot be said that mere existence of Municipal Corporations Act, duly amended to bring it in conformity with Part IX-A of the Constitution, will nullify or render redundant, the BDA Act."
Therefore, both town and country planning and village panchayats were responsible for developing infrastructure and amenities in order to have plan development. Fees to be collected under Rule 35 of the Panchayat Buildings Rules cannot be confused with the IAA charges levied by the impugned enactment.
57.The nature of levy is not a tax, but only a fee and therefore, quid proquo is involved and that since the respondents have not satisfied in proving the court the said levy, it should be struck down. The said argument cannot be accepted by this court as in the present case rules themselves has fixed levy per square metre and different types of buildings were charged different levies. The counter affidavit has explained the necessity to charge the said fee. The earlier distinction between maximum and minimum has also been removed by the last G.O. Further, there is also distinction between Chennai Metropolitan area and other places. Therefore, there is no arbitrariness in the demand of levy. Though vaguely it was argued that they were not aware of the nature of expenditures incurred by the respondent State, the same has also been explained by the State by giving the latest fund position as set out elsewhere. Hence that argument will stand rejected.
58.Even though it may be stated that the panchayats are not provided any water supply and sewerage and the petitioners' buildings themselves ar providing the same at their own expenses, the same cannot be accepted, as ultimately the panchayat may also have to end up doing works as entrusted to them by Schedule 11 read with Article 243-G. Further in the present case, it is not the question of merely providing water and electricity supply and sewerage, but also the other amenities which are set out in the objects and reasons of the Act as elaborated in the counter affidavit filed by the respondents State. The term "amenities" is different from the term "development" as it is separately defined under Section 2(2) of the TCP Act. The term "infrastructure" is also defined under Section 2(d) of the 2008 Rules. Though there may be overlapping in some of the items, but it is more comprehensive than the normal term "development" as understood in the TCP Act.
59.On the question of amendment made to the TCP Act by introducing Sections 63B and 63C and whether the CMDA can be asked to collect IAA charges and whether such delegation is permissible was also upheld by the Supreme Court in M.Chandru's case (cited supra). In paragraphs 21 and 22, the Supreme Court had observed as follows:
21. However, it appears that by Section 81(2)(jj) which was inserted by Tamil Nadu Act 49 of 1988, the Board has been empowered to frame regulations in relation to the manner and basis on which IDC shall be collected. In terms of the aforementioned power, Regulation 4 has been made in terms whereof CMDA has been authorised to collect IDC. Thus, the matter providing for collection of IDC is a matter of procedure and not a substantive provision. It, in that view of the matter, is not a delegation of power. CMDA is not appropriating any fund collected on behalf of the Sewerage Board. It has no power to utilise any amount. The power of collection is merely an incidental power. They have no power to assess or appropriate the same; the rate having been fixed.
22. Although for different reasons, we, thus, uphold that part of the order of the High Court on this count."
60.Whether power to collect IAA charges can be delegated to the authorities without being quantified by the legislative and whether it amounts to excessive delegation on essential legislative function, the said issue need not deter us. In Novva Ads v. Secretary, Department of Municipal Administration and Water Supply reported in (2008) 8 SCC 42, the Supreme Court held that delegated legislation can be declared invalid by the court only on grounds that it violates the provisions of the Constitution or that it violates the enabling Act. In this regard it is necessary to refer to the following passages found in paragraphs 37 to 41 of the said judgment, which reads as follows:
37.The provisions contained in Rule 3 do not restrict or control the scope of Section 326-J which operates on a wider plane. While failure to obtain a no-objection certificate in terms of Rule 3(iii) itself would disentitle an applicant for the grant of a licence to erect a hoarding, Section 326-J, prohibits erection of hazardous hoardings and also mandates the Commissioner (now District Collector) not to grant any licence under Section 326-C in respect of such hoardings. It also authorises the Commissioner to order confiscation and removal of such hoardings which are erected in contravention of the mandate therein.
38.20. A delegated legislation can be declared invalid by the Court mainly on two grounds: firstly, that it violates any provision of the Constitution and secondly, it is violative of the enabling Act. If the delegate which has been given a rule-making authority exceeds its authority and makes any provision inconsistent with the Act and thus overrides it, it can be held to be a case of violating the provisions of the enabling Act but where the enabling Act itself permits ancillary and subsidiary functions of the legislature to be performed by the executive as its delegate, the delegated legislation cannot be held to be in violation of the enabling Act. [See vide State of M.P. v. Bhola10, (SCC p. 10, para 20).]
39.In St. Johns Teachers Training Institute v. National Council for Teacher Education11 this Court has held that: (SCC pp. 331-32, para 10) 10. Delegated legislation permits utilisation of experience and consultation with interests affected by the practical operation of statutes. Rules and regulations made by reason of the specific power conferred by the statutes to make rules and regulations establish the pattern of conduct to be followed. Regulations are in aid of enforcement of the provisions of the statute. The process of legislation by departmental regulations saves time and is intended to deal with local variations and the power to legislate by statutory instrument in the form of rules and regulations is conferred by Parliament. The main justification for delegated legislation is that the legislature being overburdened and the needs of the modern day society being complex, it cannot possibly foresee every administrative difficulty that may arise after the statute has begun to operate. Delegated legislation fills those needs.
40.It is well settled that a delegated legislation would have to be read in the context of the primary statute under which it is made and, in case of any conflict, it is primary legislation that will prevail.
41.In ITW Signode India Ltd. v. CCE12 this Court has held as under: (SCC p. 71, para 56) 56. It is a well-settled principle of law that in case of a conflict between a substantive Act and delegated legislation, the former shall prevail inasmuch as delegated legislation must be read in the context of the primary/legislative Act and not vice versa.
61.The Supreme Court in New Delhi Municipal Council v. Tanvi Trading and Credit Private Limited, (2008) 8 SCC 765 has held that executive power of the State extends to matters with respect to legislature has power to make laws and the executive instructions can be issued in the absence of legislation and even if there exist legislation, it can also supplement. In paragraph 35, the Supreme Court had observed as follows:
35.Even assuming that the LBZ guidelines are not relatable to the DD Act or the NDMC Act, the Central Government undoubtedly could, in exercise of executive power introduce these guidelines. At this stage, it would be instructive to refer to the extent of executive power of the Union as provided in Article 73 of the Constitution. Article 73 inter alia provides that, subject to the provisions of the Constitution, the executive power of the Union extends to the matters with respect to which Parliament has power to make laws. Parliament has enacted the Delhi Development Act, 1957 and the New Delhi Municipal Council Act, 1994. Article 73 does not define what an executive function is, neither does it mention the matters over which the executive power is exercised. The extent defined in Article 73 is not exhaustive. The Union Government has power to issue executive directions relating to the matters dealt with under the DD Act, 1957 and the NDMC Act, 1994, though the directions contrary to the provisions of those Acts cannot be issued. The executive power of the Union, under Article 73 extends to the matters with respect to which Parliament has power to make laws and hence, the field in which law could have been made, executive instructions may be issued in the absence of legislation in the field or if there is existing legislation, then to supplement it.
62.Therefore, the challenge made to the vires of the Act must necessarily fail. The Act is very much within the legislative competence of the State. As to whether there was excessive delegation under Section 63B and 63C and that essential legislative function cannot be delegated and the present impugned Act suffers from such vires also cannot be accepted also came to be considered in respect of very same enactment in Consumer Action Group v. State of T.N. reported in (2000) 7 SCC 425. In paragraphs 18 to 21, the Supreme Court had observed as follows:
18.The catena of decisions referred to above concludes unwaveringly in spite of a very wide power being conferred on the delegatee that such a section would still not be ultra vires, if guidelines could be gathered from the Preamble, Objects and Reasons and other provisions of the Acts and Rules. In testing the validity of such provision, the courts have to discover, whether there is any legislative policy, purpose of the statute or indication of any clear will through its various provisions. If there be any, then this by itself would be a guiding factor to be exercised by the delegatee. In other words, then it cannot be held that such a power is unbridled or uncanalised. The exercise of power of such delegatee is controlled through such policy. The fast-changing scenario of economic, social order with scientific development spawns innumerable situations which the legislature possibly could not foresee, so the delegatee is entrusted with power to meet such exigencies within the inbuilt check or guidance and in the present case to be within the declared policy. So the delegatee has to exercise its powers within this controlled path to subserve the policy and to achieve the objectives of the Act. A situation may arise, in some cases where strict adherence to any provision of the statute or rules may result in great hardship, in a given situation, where exercise of such power of exemption is to remove this hardship without materially affecting the policy of the Act, viz., development in the present case then such exercise of power would be covered under it. All situations cannot be culled out, which have to be judiciously judged and exercised, to meet any such great hardship of any individual or institution or conversely in the interest of the society at large. Such power is meant rarely to be used. So far as decisions relied on by the petitioner, where the provisions were held to be ultra vires, they are not cases in which the Court found that there was any policy laid down under the Act. In A.N. Parasuraman2 the Court held Section 22 to be ultra vires as the Act did not lay down any principle or policy. Similarly, in Kunnathat Thathunni Moopil Nair4. Section 7 was held to be ultra vires as there was no principle or policy laid down.
19.In this background we find the Preamble of the Act laid down:
An Act to provide for planning the development and use of rural and urban land in the State of Tamil Nadu and for purposes connected therewith.
20.The Preamble clearly spells out the policy which is for planning and development of the use of the rural and urban land in the State. The Statement of Objects and Reasons also indicates towards the same, the relevant portion of which is quoted hereunder:
The Tamil Nadu Town Planning Act, 1920 (Tamil Nadu Act 7 of 1920) which is based on the British Town and Country Planning and Housing Act, 1909, has been in force in the State for nearly five decades. The said Act provides for matters relating to the development of towns to secure to their present and future inhabitants, sanitary conditions, amenity and convenience. It was felt necessary to make comprehensive amendments to the Act as the Act had several shortcomings and defects.
21.Not only Preamble and Objects and Reasons of the Act clearly indicate its policy but it is also revealed through various provisions of the enactment. Sub-section (13) of Section 2 defines development for carrying out any of the works contemplated in the regional and master plan etc. Section 9-C defines functions and powers of Metropolitan Development Authority, Section 12 refers to functions and powers of the appropriate planning authorities, Section 15 refers to regional planning. Section 16 is for preparation of land and building map, Section 17 refers to the master plans, Section 18 refers to new town development plan, Section 19 refers to the declaration of intention to make or adopt a detailed development plan, Section 20 refers to the contents of detailed development plan, Section 47 refers to use and development of land to be in conformity with the development plan, Section 48 refers to the restrictions on building and lands in the area of the planning authority. Each of them contributes for subserving the policy of the Act, and clearly declares the purpose of the Act. Hence Section 113 cannot be held to be unbridled, as the Government has to exercise its power within this guideline. Hence we hold Section 113 to be valid.
63.In the light of the above and having regard to the nature of duty imposed on the delegate, it cannot be held to be excessive delegation. On the other hand, such charges can only be levied by delegates depending upon the nature of amenities and infrastructures to be provided and that the legislature is not expected to go to the nature of such levies.
64.Therefore, the challenge made to G.O.Ms.No.191, dated 1.6.2007 and G.O.Ms.No.215, dated 2.7.2007 does not stand to reason. Even otherwise, by the subsequent validating legislation, those provisions are still valid and the writ petitions filed in this regard must necessarily be rejected.
65.Merely because discretion is conferred on the authorities to levy charges within the restricted parameters, it does not mean that power is likely to be misused. In Novva Ads's case (cited supra), the Supreme court in paragraph 32 had observed as follows:
"32.The power to license is not unfettered and is guided by the above considerations. Under Rule 11 an appeal lies to the State Government for refusing the grant or renewal of licences. Section 326-J of the Act empowers the District Collector to prohibit the erection of hazardous hoardings and hoardings which are hazardous and a disturbance to the safe traffic movement so as to adversely affect the free and safe flow of traffic. The power under Section 326-J is not arbitrary as held by the Supreme Court in M.C. Mehta v. Union of India8 on an identical provision relating to case of hoardings in New Delhi. Any action taken under Section 326-J must be taken by observing the principles of natural justice and supported by reasons. An appeal against the order of the District Collector for action under Section 326-J lies to the State Government under Section 326-H. There cannot be a presumption of misuse of power merely because discretion is conferred on a public authority for the exercise/use of the power. In Narayana Bhat case1 this Court has negatived the contention that the power of the licensing authorities is arbitrary and unguided."
66.The contention that the application filed for planning permission can also be considered in the light of the subsequent G.O. also does not stand to reason. In T. Vijayalakshmi v. Town Planning Member reported in (2006) 8 SCC 502, the Supreme Court in paragraph 18 had observed as follows:
"18.It is, thus, now well-settled law that an application for grant of permission for construction of a building is required to be decided in accordance with law applicable on the day on which such permission is granted. However, a statutory authority must exercise its jurisdiction within a reasonable time. (See Kuldeep Singh v. Govt. of NCT of Delhi3.)"
67.The argument based upon Special Economic Zones Act will over ride the provisions of the impugned provisions cannot be countenanced by this court. It was argued that the Special Economic zones created under the Special Economic Zones Act is a special law and they will over ride the State law and inasmuch as the TCP Act provides for levy of infrastructure and amenities charges and expects the State Government to grant waiver and that the State enactment is invalid. Such argument cannot be accepted because the State enactment, i.e., TCP Act is made in terms of Entry 20 of List III Economic and Social Planning under Schedule VII prescribed under Article 246 of the Constitution of India. The State has made a valid legislation. Neither there is any real nor apparent conflict with the Central legislation. The Central legislation merely expects the State Government to grant waiver on levy of taxes to promote Special Economic Zones, but it is not mandated to do so. This issue came to be considered by this Court in M/s.Swabs India (P) Ltd. and others Vs. The Commissioner, Tambaram Municipality and others in W.P.No.12272 of 2002, dated 30.07.2010. In paragraphs 16 and 17, this court had observed as follows:
16.But this term does not make them get exempted from the provisions of the Tamil Nadu District Municipalities Act. Whether petitioners have put up structures on their own land or on the lease lands, they are certainly the owners of the building which is liable to property tax under Section 81. The contention that Article 265 forbids the Municipality has to be rejected because the property tax is liable to be levied by the Municipalities under the Tamil Nadu District Municipalities Act both before and after the Constitution was enacted. Further, a constitutional status has also been given to the Municipalities by virtue of an introduction of Part IX-A into the Constitution by 74th Constitution Amendment Act with effect from 1.6.1993. Under Article 243-X, the Legislature of State by law can authorise the Municipality to levy appropriate taxes. What was originally a statutory right has now been given a constitutional status by the insertion of Part IX-A into the Constitution.
17.Even otherwise, there is no provision under the Special Economic Zones Act either exempting the Municipalities Act or directing the State Government to grant appropriate exemption. Section 50 of the Special Economic Zones Act is only an enabling provision and so long as exemption is not conferred either under Section 50 of the SEZ Act or under Section 86 of the District Municipalities Act, the petitioners unit are bound to pay property tax as demanded by the respective Municipalities. Reliance placed on Article 285 is wholly inappropriate.
68.Further, the Supreme Court vide judgment in Southern Pharmaceuticals & Chemicals v. State of Kerala reported in (1981) 4 SCC 391 dealt with the scope of Central and State legislation and held in paragraphs 13,15,16 and 17 as follows:
13.In determining whether an enactment is a legislation with respect to a given power, what is relevant is not the consequences of the enactment on the subject-matter or whether it affects it, but whether, in its pith and substance, it is a law upon the subject-matter in question. The Central and the State legislations operate on two different and distinct fields. The Central Rules, to some extent, trench upon the field reserved to the State legislature, but that is merely incidental to the main purpose, that is, to levy duties of excise on medicinal and toilet preparations containing alcohol. Similarly, some of the impugned provisions may be almost similar to some of the provisions of the Central Rules, but that does not imply that the State legislature had no competence to enact the provisions.
15.In Prafulla Kumar Mukherjee v. Bank of Commerce Ltd., Khulna1 the Privy Council in dealing with the question of distribution of powers laid down the tests that in order to see whether an Act is in respect of a particular subject, one must look to its true nature and character; its pith and substance. Lord Porter, in delivering the judgment of the Judicial Committee, observed:
As Sir Maurice Gwyer, C.J. said in the Subramanyam Chettiar case: It must inevitably happen from time to time that legislation, though purporting to deal with a subject in one list, touches also upon a subject in another list, and the different provisions of the enactment may be so closely intertwined that blind adherence to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the legislature enacting them may appear to have legislated in a forbidden sphere. Hence the rule which has been evolved by the Judicial Committee, whereby the impugned statute is examined to ascertain its pith and substance, or its true nature and character, for the purpose of determining whether it is legislation with respect to matters in this list or in that.' The doctrine of pith and substance evolved by the Privy Council has been followed by this Court throughout. Thus, in State of Bombay v.F.N. Balsara2 Fazl Ali, J., following the decision of the Judicial Committee, reiterated:
If the Act, when so viewed, substantially falls within the powers expressly conferred upon the legislature which enacted it, then it cannot be held to be invalid, merely because it incidentally encroaches on matters which have been assigned to another legislature. In such matters of seeming conflict or encroachment of jurisdictions, what is more important is the true nature and character of the legislation. A necessary corollary of the doctrine of pith and substance is that once it is found that in pith and substance the impugned Act is a law on a permitted field, any incidental encroachment on a forbidden field does not affect the competence of the legislature to enact the law.
16.The main thrust of the argument is the decision of this Court in Hyderabad Chemical and Pharmaceutical Works Ltd. v. State of Andhra Pradesh3 which, we are afraid, is clearly distinguishable. There the Court was concerned with the question whether Rule 36 of the Medical Preparations and Spirituous Rules, 1345 Fasli, framed under the Hyderabad Abkari Act, 136 Fasli which provided that the expenses of the establishment for the supervision of the work shall be borne by the pharmaceutical laboratory (licensee) as per the decision of the Commissioner of Excise, was still enforceable having regard to Section 21 of the Central Act and Rule 143 of the Central Rules. It was held that the effect of Section 21 of the Central Act was that so far as the Hyderabad Act applied to the use of alcohol in the manufacture of medicinal and toilet preparations, the Act must be deemed to have been repealed and, therefore. Rule 36 could not survive. In that case, the Court was concerned with the levy of supervisory charges at the stage of manufacture of medicinal and toilet preparations, and not with the levy of supervisory charges at the stage of the supply and utilisation of rectified spirit in the manufacture of medicinal and toilet preparations. This is clear from an observation at p. 380 of the Report to the effect:
The supervisory staff which has to be paid for under Rule 36 therefore is meant for the supervision of the manufacture of medicinal preparations and it is for that purpose only that expenses have to be borne by the laboratory concerned. The purpose of the rule therefore is clearly covered by the Act and the Rules framed thereunder and it cannot survive the Act and the Rules in view of Section 21 of the Act and Rule 143 of the 1956 Rules, and the proviso to Section 21 cannot be availed of by the State. While repelling the contention that Rule 36 could still be good law as it was meant to carry out the general law relating to alcohol and intoxicating drugs, the Court pointed out that the Central Rules make no provision for recovery of supervisory charges, the intention being that the duty under the Act would cover all expenses for enforcing it and observed:3 (at SCR p. 380) We are of opinion that there is no force in this contention either. In the first place, as we have already indicated, the main object of the supervisory staff mentioned in Rule 36 is to supervise the manufacture of medicinal preparations. In that connection the supervisory staff will certainly see that the alcohol supplied is used for the purpose for which it is supplied and is not used in any other manner. Rule 36 is only concerned with seeing that the manufacture of medicinal preparations is made properly and is done under the supervision of the establishment attached to each laboratory; and it is only incidentally that in that connection the establishment is also to see that the alcohol supplied is not used otherwise than for the purpose of manufacture. Further, the Central Act, which the Court was considering, was a fiscal measure. The whole object and purpose of that Act is to levy a duty of excise on medicinal and toilet preparations containing alcohol. The Central Rules have mainly been framed to achieve this object. Rule 45(1) on which reliance was placed, reads:
The officer-in-charge shall exercise such supervision as is required to ensure that alcohol issued for a certain preparation is added to the materials which go to make that preparation and that no portion of such alcohol is diverted to other purposes. The provision is merely incidental to the main purpose i.e. collection of excise duty on medicinal and toilet preparations containing alcohol.
17. There can be no doubt that the impugned Act is relatable to Entry 8, List II of the Seventh Schedule. In Balsara case2 the Court held that the expression liquor in Entry 31, List II of the Seventh Schedule to the Government of India Act, 1935, took within its sweep all liquids containing alcohol. In dealing with the question, Fazl Ali, J. observed: (at SCR pp. 705-06) The framers of the Government of India Act, 1935, could not have been entirely ignorant of the accepted sense in which the word liquor has been used in the various excise Acts of this country and, accordingly I consider the appropriate conclusion to be that the word liquor covers not only those alcoholic liquids which are generally used for beverage purposes and produce intoxication, but also all liquids containing alcohol. It may be that the latter meaning is not the meaning which is attributed to the word liquor in common parlance especially when that word is prefixed by the qualifying word intoxicating, but in my opinion having regard to the numerous statutory definitions of that word, such a meaning could not have been intended to be excluded from the scope of the term intoxicating liquor as used in Entry 31 of List II. It is not disputed by the appellants that the impugned Act does not levy a duty of excise on medicinal and toilet preparations containing alcohol, but they contend that, whatever be the intention, the State legislature had, in fact, encroached upon an occupied field. The contention is, in our opinion, wholly misconceived. The main purpose of the impugned Act is to consolidate the law relating to manufacture, sale and possession of intoxicating liquor and intoxicating drugs which squarely falls under Entry 8, List II of the Seventh Schedule, while the main object of the Central Act is to provide for the levy and collection of duties of excise on medicinal and toilet preparations containing alcohol falling under Entry 84, List I of the Seventh Schedule. When the framework of the two enactments is examined, it would be apparent that the Central and the State legislations operate in two different and distinct fields. In the matter of making rules or detailed provisions to achieve the object and purpose of a legislation, there may be some provisions seemingly overlapping or encroaching upon the forbidden field, but that does not warrant the striking down of the impugned Act as ultra vires the State legislature.
69.With reference to non obstante clause found in Special Economic Zones Act, i.e., Section 51, having over riding effect, the same has got no validity in terms of the affected provisions of TCP Act. The Act is a State legislation enacted under List III and having received the assent of the President of India, it will be protected by Article 254(2) of the Constitution.
69.1.The Supreme Court in M. Karunanidhi v. Union of India reported in (1979) 3 SCC 431 has held that presumption is always in favour of the constitutionality of a statute and before any repugnancy can arise, certain conditions must be satisfied and there can never be any repeal by implication unless the inconsistency appears on the face of the two statutes. In paragraphs 24 and 35, the Supreme Court had observed as follows:
"24.It is well settled that the presumption is always in favour of the constitutionality of a statute and the onus lies on the person assailing the Act to prove that it is unconstitutional. Prima facie, there does not appear to us to be any inconsistency between the State Act and the Central Acts. Before any repugnancy can arise, the following conditions must be satisfied:
2. That such an inconsistency is absolutely irreconcilable.
3. That the inconsistency between the provisions of the two Acts is of such nature as to bring the two Acts into direct collision with each other and a situation is reached where it is impossible to obey the one without disobeying the other.
35.On a careful consideration, therefore, of the authorities referred to above, the following propositions emerge:
1. That in order to decide the question of repugnancy it must be shown that the two enactments contain inconsistent and irreconcilable provisions, so that they cannot stand together or operate in the same field.
2. That there can be no repeal by implication unless the inconsistency appears on the face of the two statutes.
3. That where the two statutes occupy a particular field, but there is room or possibility of both the statutes operating in the same field without coming into collision with each other, no repugnancy results.
4. That where there is no inconsistency but a statute occupying the same field seeks to create distinct and separate offences, no question of repugnancy arises and both the statutes continue to operate in the same field."
69.2.The Supreme Court while permitting the law to be made by both Central and State Government has held that in order to find the inconsistencies, it should be seen whether by abiding the State law without flouting or violating the Central law, then it cannot be a case of repugnancy and the laws of complementary to each other. Both laws can stand together. Reference may be made to the judgment of the Supreme Court in Ram Chandra Mawa Lal v. State of Uttar Pradesh reported in 1984 Supp SCC 28. In paragraph 50, the Supreme Court had observed as follows:
"Is the alleged inconsistency irreconcilable or intolerable one?
50.There are degrees of inconsistency in the context of conflict of laws. There can be apparent or surface inconsistency which may be considered as a non-hostile, tolerable, benign, one, subject to the unquestioned power of the Centre to override the State if so minded. On principle, every apparent inconsistency cannot be presumed to be hostile or intolerable. More so when the Centre does not even raise a whisper of discord. One of the tests for ascertaining whether the inconsistency is an irreconcilable or intolerable one, is to pose this question: Can the State law be obeyed or respected without flouting or violating the Central law in letter and spirit? If the answer is in the affirmative, the State law cannot be invalidated. Not at any rate when the State law merely promotes the real object of both the laws, and is in the real sense supplementary or complementary to the Central law. In the present case the test answers in favour of the validity of the impugned State notification. The Central notification is not violated if the dealers sell the fertilizers from out of the existing stocks acquired at the lower rates, for, both the notifications fix the maximum selling price and the maximum selling price fixed under the State notification is not higher than that fixed under the Central notification. What is more, the State notification promotes and serves the object and purpose of both the Centre and the State. Promotes and serves, in the sense, that the manifest object of fixing maximum ceiling price is to make available to the cultivators who grow the food for the Nation to obtain the inputs at reasonable prices and to protect them from exploitation so that the food production is not retared. It is not contended even by the petitioners, for the very good reason that it is incapable of being so contended, that the object of the price regulation is to enable the dealers to make unconscionable profit. Thus the impugned State notification promotes rather than defeats, the life-aim of Central as also the State notifications. It helps rather than hurts the objectives and goals of the Centre, and there is no conflict whatsoever of interest, purpose, or perspective. The State has done only that which the Centre presumably would have readily done if it was fully aware of the situation from all angles of vision. For, the only impact of the impugned notification is that the cultivator for whose protection the price regulation is essentially made, is saved from exploitation without hurting the legitimate claim of the dealer, who, in any case, gets his fixed profit margin of Rs 45 per ton."
69.3.The Supreme Court vide its judgment in Pt. Rishikesh v. Salma Begum, (1995) 4 SCC 718 has held that merely because there is subsequent Central Act on the same issue is enacted, it does not automatically result in a repugnancy. Unless they are in coalition course, there is no necessity for the State legislature to re-enact the law to make it valid. In this context, it is necessary to refer to paragraph 21 of the said judgment, which reads as follows:
"21.The condition precedent to bring about repugnancy should be that there must be an amendment made to the principal Act under the Central Act and the previous amendment made by a State Legislature or a provision made by a High Court must occupy the same field and operate in a collision course. Since the State Act as incorporated by Act 37 of 1972 and the Explanations to Rule 5 by Act 57 of 1976, Rule 5 was not occupied by the Central Act in relation to the State of U.P., they remain to be a valid law. We may clarify at once that if the Central law and the State law or a provision made by the High Court occupy the same field and operate in collision course, the State Act or the provision made in the Order by a High Court being inconsistent with or in other words being incompatible with the Central Act, it becomes void unless it is re-enacted, reserved for consideration and receives the assent of the President after the Central Act was made by Parliament i.e. 10.9.1976."
Hence that contention must necessarily fail.Therefore, inasmuch as the present enactment is intended to levy IAA charges, the same is valid.
Appellate Remedy :
70.The argument that appellate remedy is not an effective remedy and defective order cannot be cured in an effective appeal. Reliance was placed upon the judgment of the Supreme Court in L.K.Ratna's case (cited supra), Mardia Chemicals Ltd.'s case (cited supra) and Whirlpool Corporation's case (cited supra). But, however the question has to be looked into from a different angle. Even in cases where procedures contemplated under 2008 rules came to be followed or not is not a mere question of law, but also the question of fact. In many cases the type of buildings, number of storeys constructed were also raised for the first time before this court. These area all matters essentially to be determined by the fact finding authority, failing which by the statutory appellate authority. Therefore, the question that notices were issued on account of improper exercise of power cannot be raised in a writ petition under Article 226 of the Constitution.
71.The further argument was that the appeal requires pre-deposit and therefore, it is illusory and also an inspiration was drawn from Mardia Chemicals case (cited supra). In Mardia Chemicals' case, it was held that the court of first instance even before the adjudicating the right of parties, no deposit can be expected. But, in the present case, after assessment was made and final notices were issued, an appeal remedy is available to the parties. Therefore, pre-deposit required as a condition precedent for entertaining the appeal cannot be found fault with.
72.In this context, it is necessary to refer to a judgment of the Supreme Court in Raj Kumar Shivhare v. Directorate of Enforcement reported in (2010) 4 SCC 772, wherein the Supreme Court while dealing with an alternative remedy available under the FEMA Act held that the Act cannot be bypassed and the jurisdiction under Article 226 of the Constitution of India cannot be invoked. In the following passages found in paragraph 31, the Supreme Court had observed as follows:
"31.When a statutory forum is created by law for redressal of grievance and that too in a fiscal statute, a writ petition should not be entertained ignoring the statutory dispensation. In this case the High Court is a statutory forum of appeal on a question of law. That should not be abdicated and given a go-by by a litigant for invoking the forum of judicial review of the High Court under writ jurisdiction. The High Court, with great respect, fell into a manifest error by not appreciating this aspect of the matter. It has however dismissed the writ petition on the ground of lack of territorial jurisdiction."
"55.It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and the SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection."
74.Therefore, the writ petitions challenging various demand notices have to be dismissed on the short ground that the petitioners have not availed the appeal remedy and that this court cannot sit over these matters as if it is an appellate court. The reasons given by the petitioners for not availing the appellate remedy cannot find acceptance by this court.
75.In some of the cases the petitioners were charitable trusts running educational institutions. Therefore, it was argued that bringing them under commercial buildings is misnomer. Such an argument overlooks the fact of the TCP Act defining the term "commerce" and "commercial use". Sections 2(10) and 2(11) reads as follows:
"(10)"commerce" means the carrying on of any trade, business or profession, sale or exchange of goods of any type whatsoever and includes the running of, with a view to making profits, hospitals, nursing homes, infirmaries, educational institutions, and "commercial" shall be construed accordingly;
(11)"commercial use" includes the use of any land or building or part thereof for purpose of commerce or for storage of goods, or as an office, whether attached to industry or otherwise."
76.Therefore, the definition of the term "commerce" is made all comprehensive to include any running of with a view to make profit, hospitals, nursing homes, infirmaries, educational institutions and "commercial" shall be construed accordingly. Therefore, it is not necessary to incorporate any other meaning when the particular enactment in which this court is concerned had defined commerce. Therefore, the buildings in which educational institutions are running should be treated as institution or it should be exempted from payment of charges cannot find acceptance by this court. In cases where instead of ordinary building, the levy is charges as multistoreyed building, the said error can be corrected by filing an appropriate appeal with sufficient proof.
77.In the present case, on behalf of some of the petitioners it was contended that though applications were made earlier, subsequently consideration took place much later, thereby making them to cough up hefty amounts towards IAA charges and hence such levy was invalid. More or less an identical question came to be considered by the Supreme Court in Commissioner of Municipal Corporation, Shimla v. Prem Lata Sood reported in (2007) 11 SCC 40. In paragraphs 36,38,39 and 50, the Supreme Court had observed as follows:
36.It is now well settled that where a statute provides for a right, but enforcement thereof is in several stages, unless and until the conditions precedent laid down therein are satisfied, no right can be said to have been vested in the person concerned. The law operating in this behalf, in our opinion is no longer res integra.
38.The question again came up for consideration in Howrah Municipal Corpn. v. Ganges Rope Co. Ltd.6 wherein this Court categorically held: (SCC p. 680, para 37) 37. The context in which the respondent Company claims a vested right for sanction and which has been accepted by the Division Bench of the High Court, is not a right in relation to ownership or possession of any property for which the expression vest is generally used. What we can understand from the claim of a vested right set up by the respondent Company is that on the basis of the Building Rules, as applicable to their case on the date of making an application for sanction and the fixed period allotted by the Court for its consideration, it had a legitimate or settled expectation to obtain the sanction. In our considered opinion, such settled expectation, if any, did not create any vested right to obtain sanction. True it is, that the respondent Company which can have no control over the manner of processing of application for sanction by the Corporation cannot be blamed for delay but during pendency of its application for sanction, if the State Government, in exercise of its rule-making power, amended the Building Rules and imposed restrictions on the heights of buildings on G.T. Road and other wards, such settled expectation has been rendered impossible of fulfilment due to change in law. The claim based on the alleged vested right or settled expectation cannot be set up against statutory provisions which were brought into force by the State Government by amending the Building Rules and not by the Corporation against whom such vested right or settled expectation is being sought to be enforced. The vested right or settled expectation has been nullified not only by the Corporation but also by the State by amending the Building Rules. Besides this, such a settled expectation or the so-called vested right cannot be countenanced against public interest and convenience which are sought to be served by amendment of the Building Rules and the resolution of the Corporation issued thereupon.
39.In Union of India v. Indian Charge Chrome7 yet again this Court emphasised: (SCC p. 327, para 17) 17. The application has to be decided in accordance with the law applicable on the date on which the authority granting the registration is called upon to apply its mind to the prayer for registration.
50.Furthermore, since special regulations have been framed in the town of Shimla, the core area as provided for in the Regulation is required to be protected. The area in question has been declared to be a heritage zone, and hence no permission to raise any construction can be issued, which would violate the ecology. Such regulations have been framed in public interest. Public interest, as is well known, must override the private interest. (See Friends Colony Development Committee v. State of Orissa15, AIR at para 22.)
78.In cases where the petitioners have paid the amounts pursuant to the undertakings and also executing bond by creating bank guarantees, they cannot resile from the said term and it is purely a matter of contract between the parties. It was argued that these amounts were extracted on threat of non granting planning permission. The said argument cannot be accepted. First of all, the petitioners are not men of no means. They are huge builders knowing fully the consequences of such undertakings and execution of bond and creation of bank guarantees. If there are any illegalities, they can always approach the court at the first instance. Having obtained the planning permission with condition fulfilled therein, they cannot turn back and challenge the levy of IAA charges. They have come to file such writ petitions on coming to know of subsequent writ petitions filed before this court by other builders and also concessions shown in some of the transitory G.Os in reducing the amount of IAA charges. Such an attitude cannot be encouraged by this court. In fact, in some of the cases, the writ petitions are only filed for refund of the amounts on the spacious plea that the impugned proceedings are unconstitutional and ultravires of the TCP Act. Since this court has upheld the validity of the Act and rules, the question of any refund will not arise. Hence these writ petitions will have to be necessarily dismissed.
79.In view of the above, this court has no hesitation to reject the writ petitions where the vires of Sections 63B and 63C of the TCP Act and rules were challenged. Accordingly, the following writ petitions, i.e.,W.P.NOs.21402, 22062, 22063, 22089, 22090 and 27935 of 2008, 5309, 9109, 11193, 11336, 11971, 13541, 14620, 14621, 14622 and 19356 of 2009, 3483, 9207, 9508, 9785, 12959, 14793, 18453, 18454, 19565, 20062, 23335, 23336, 27491 and 28170 of 2010, 834 and 6634 of 2011, 30216 of 2008, 2046, 4333 and 21427 of 2009, 18139 of 2010, 8427 of 2011 will stand dismissed. Consequently, connected miscellaneous petitions stand closed. No costs.
80.Though the other writ petitions did not challenge the provisions of the Act, they were also clubbed along with this batch. In these cases, the individual demand notices or the threat of cancellation of planning permission are under challenge. Hence it is necessary to deal with the same individually.
81.W.P.Nos.27814, 27815 and 26960 of 2007 : The first writ petition challenges the Government Order in G.O.Ms.No.191, Housing and Urban Development department, dated 1.6.2007 on the ground that levy of IAA charges is without authority of law and contrary to Article 264 of the Constitution. The second writ petition challenges the consequential notice, dated 29.06.2007. The third writ petition also challenges the same G.O.Ms.No.191, dated 1.6.2007 on the ground that it is without any statutory backing and beyond legislative power under TCP Act. They are governed by the District Municipalities Act. Therefore, the only authority under the said Act can have power to levy charges. Hence the G.O. is invalid.
82.Admittedly, these three writ petitions were filed before the amendment made to the TCP Act by the Tamil Nadu Amendment Act 34/2007 introducing Sections 63B and 63C into the Act as well as the consequential statutory rules framed in the year 2008 with effect from 12.11.2007. In the absence of any challenge to the said provisions, including challenge to Section 3 of the validating provisions and introduced by the Amended Act, the writ petitions cannot be entertained. Hence all the three writ petitions will stand dismissed.
83.W.P.No.12765 of 2008 : This writ petition challenges the notice issued by the Planning Authority, dated 11.4.2008 claiming development charges. It was claimed that they are liable to pay development charges in terms of G.O.Ms.No.34, Housing, dated 8.2.2008. They are bound to pay Rs.500/- per square meter and not in terms of G.O.Ms.No.84, Housing, dated 8.4.2008. The said question does not arise for consideration, because G.O.Ms.No.34, Housing, dated 8.2.2008 is only an adhoc arrangement and that has been subsequently cancelled by the subsequent G.O.Ms.No.84, Housing, dated 8.4.2008 and the persons were directed to continue to pay in terms of the earlier order. It is only an adhoc decision and not a final order. Merely because the petitioner had acted upon the earlier G.O., that does not give any finality and that the subsequent G.O. is also not under challenge. Hence for the foregoing reasons, the writ petition will stand dismissed.
84.W.P.No.27934 of 2008 : The same petitioner had also filed W.P.No.27935 of 2008 challenging Since the contentions raised therein have been rejected, the subsequent challenge to the demand notice, dated 05.11.2008 does not stand to reason. Even if calculations were made erroneously, the petitioner is entitled to file an appeal before the appellate authority in terms of Rule 10 as pointed out above. Hence this writ petition will stand dismissed.
85.W.P.No.5541 of 2009 : In this writ petition, the challenge is to the demand notice, dated 28.5.2008 issued by the Planning Authority at Kurichi. In this case, the petitioner had given a bond, dated 8.10.2007 agreeing to abide by the conditions imposed by the G.O. and were directed to pay the same in three installments. Therefore, in terms of the affidavit of undertaking, he was directed to pay the amount. The contention was that the Trust is running a Matriculation Higher Secondary School. They had asked for a bank loan. Since the bank loan has not been obtained, they could not pay the amount immediately. They had also objected for levy of charges. The petitioner also filed an application in M.P.No.1 of 2009 seeking for refund of the amount on the ground that levy of damages was illegal. Though they had applied for building license on 23.09.2004 itself, the permission was granted on 6.11.2007. Hence on the basis of the subsequent G.O., they cannot claim the amount.
86.In the counter affidavit filed by the respondents, it was stated that during the process of the application, the order of levy of IAA charges has been issued. Therefore, the petitioners are bound to comply with the same. They are also bound by the undertaking given. The reference to G.O.Ms.No.34, dated 8.2.2008 is no more and that G.O. was rescinded by G.O.Ms.No.84, dated 8.4.2008.
87.In view of the reasons set out above, this court is not inclined to accept the contentions raised by the petitioner. Hence this writ petition will stand dismissed.
88.W.P.No.9110 of 2009 : In this writ petition, the petitioner challenges the notice, dated 6.1.2009 insofar as the demand for payment of Rs.1,56,06,000/- towards infrastructure and amenities charges in respect of multistorey building. The contention was that the demand made in terms of Section 63B and 63C as well as Rules are illegal. The respondents lack authority to charge certain amounts and the the levy is an offence under Article 265 of the Constitution. It is further stated that the petitioner building do not contemplate the provisions of Infrastructure and amenities warranting for levy of charges.
89.Since this Court has upheld the constitutional validity of the amendment to the Act as well as Rules framed thereunder , this writ petition is liable to be dismissed. Accordingly, the writ petition will stand dismissed.
90.W.P.No.13427 of 2009 : In this case, the petitioner builder had given an undertaking, dated 3.6.2009 agreeing to pay at the rate of Rs.1000/- per sq. meter towards IAA charges and the balance to be paid on the subsequent dates as prescribed by the Government. Notwithstanding the same, this writ petition was filed when a demand was made by notice, dated 3.2.2009 by the Commissioner of Town and Country Planning. It is claimed that since the association, i.e. CREDAI had also filed W.P.No.2683 of 2009, they are not challenging the vires of the Act. But, the contention was that the action of the respondents in obtaining an undertaking to pay the amount was illegal. But, however this court has already held that the impugned provisions in the TCP Act as well as the Rules framed thereunder are valid. Hence this writ petition is misconceived. Accordingly, the writ petition will stand dismissed.
91.W.P.No.19355 of 2009 : The petitioner has already filed W.P.No.19356 of 2009 challenging the constitutional validity of the amendment made to the TCP Act and that has been dismissed by this court by giving reasons as seen above. In this writ petition, the petitioner challenges the demand, dated 26.2.2009 and the consequential letter dated 24.3.2009 towards IAA charges as a pre-condition. Since the contentions raised in the other writ petition were rejected, this writ petition also will stand dismissed.
92.W.P.No.23599 of 2009 : In this writ petition, the challenge is to the notice, dated 19.5.2009 demanding excess levy of Rs.1,33,84,800/- towards IAA charges. The ground raised was that the building put up by the petitioner was an institution and therefore, charges levying under Sl.No.2 of the table under Rule 4 was invalid. It is also claimed that they are also having educational institution. Therefore, they should come under Sl.No.3 and cannot be charges under Sl.No.2 as a commercial building.
93.This court has already held that the educational institution also comes under the term commercial building. If there is any wrong levy, it is also open to the petitioner to file an appeal before the appellate authority. In that view of the matter, this court is not inclined to interfere with the same. Hence the writ petition will stand dismissed.
94.W.P.No.2568 of 2010 : The petitioner challenges the communications, dated 18.11.2009 and 21.1.2010 demanding payment as per the undertaking and refusing to consider their offer to pay Rs.150/- per square metre in terms of G.O.Ms.No.161, Housing, dated 9.9.2009. According to them, under the G.O maximum and minimum rates have been done away and that the petitioner must have the benefit of the said G.O. and that the undertaking will not operate. Such a contention cannot be considered since the petitioner had already given an undertaking to pay the amount and his case was dealt with by the earlier order which was in force. Already similar contentions have been rejected by this court. Hence this writ petition will stand dismissed.
95.W.P.No.3482 of 2010 : The petitioner challenges an order, dated 10.6.2009 issued by the Planning Authority directing the petitioner to pay a sum of Rs.1,26,300/- towards IAA charges and the subsequent letters dated 20.11.2009 and 29.1.2010 and seeks to set aside the same insofar as they related to demand of IAA charges and also for a direction to the authorities to grant completion certificate.
96.The contention raised was that the Act not excluding the Special Economic zone was illegal. The nature of fee charged does not show any quid pro quo and already Section 59 of the TCP Act levies development charges. Therefore, the additional charge levied was illegal. The question of providing roads was taken care of by the State Government on the basis of built, operate and transfer given by outsourcing work. Hence the reasons given for charging IIA charges were not valid. Already these grounds were dealt with and held against the petitioner. Hence this writ petition will stand dismissed.
97.W.P.No.7357 of 2010 : In this writ petition, the petitioner seeks for a direction to dispose of his representation, dated 15.3.2010 and ask for revision of levy in terms of G.O.Ms.No.161, Housing, dated 9.9.2009 and also is contending that the amount already paid by G.O.Ms.No.84, Housing, dated 8.4.2008 was sufficient. As already held by this court, the earlier adhoc decision was cancelled by the State Government. The petitioner cannot have the advantage of the earlier G.O., which is only interim in transitory and they are bound to pay the amount as per the order. Whatever the amount paid in terms of the G.O in operation cannot be modified in the light of the subsequent G.O. Hence W.P.No.7357 of 2010 will stand dismissed.
98.W.P.No.7803 of 2010 : The petitioner is the charitable trust claiming to be the charitable educational trust running self financing engineering college. They are seeking to challenge the order dated 30.3.2010 issued by the second respondent and the consequential order dated 6.4.2010 and seeks to set aside the same and also for the grant of planning permission/building permission for construction of college at Poonjeri village. The impugned order itself came to be issued on the basis of the petitioner moving this court earlier with W.P.Nos.5387 and 5388 of 2010. This court directed their representation to be considered in accordance with law by an order dated 18.3.2010. Since their appeal was rejected by the Director of Town and Country Planning, they were informed that they should pay the amount as notified in the consequential order. In this writ petition, there is no challenge to the order passed by the appellate authority, dated 8.1.2010 referred to in the impugned order. Still it was contended that they should have the benefit of the G.O.Ms.No.84, Housing, dated 8.4.2008 and that any amount of levying higher is unconstitutional. Already similar contentions were negatived. In the affidavit filed by the petitioner there is no reason as to why the order passed by the Director was not under challenge. Hence the writ petition will stand dismissed.
99.W.P.No.9206 of 2010 :The petitioner company had challenged the constitutional validity of the amendment made to the TCP Act in W.P.No.9207 of 2010 and that has already been negtatived by this court. In this writ petition, it is the consequential proceedings, dated 22.2.2010 and the consequential letter dated 12.4.2010 are under challenge. The petitioner wants to set aside the same and for a consequential direction to issue a completion certificate. Since that writ petition was dismissed, necessarily this writ petition will have to fail. Accordingly, this writ petition will stand dismissed.
100.W.P.No.9507 of 2010 :In this writ petition, the petitioner challenges a letter, dated 23.7.2007 issued by the third respondent Director of Town and Country Planning and the consequential letters dated 31.3.2008, 19.01.2009 and 31.12.2009 issued by the fourth respondent Planning Authority, Tiruppur and after setting aside the same seeks for a direction to refund a sum of Rs.31,62,192/-. The same petitioner had filed W.P.No.9508 of 2010 challenging the vires of Sections 63B and 63C of the TCP Act and that has been negatived by this court. Hence this writ petition will have to be necessarily failed. Accordingly, this writ petition will stand dismissed.
101.W.P.No.9784 of 2010 : In this writ petition, the petitioner challenges the order dated 14.8.2008 issued by the third respondent Director of Town and Country Planning and the consequential letters dated 6.10.2008, 31.2.2009 and 2.3.2010 and after setting aside the same seeks for the refund of Rs.48,51,105/- already paid towards IAA charges. The petitioner had also challenged the vires of Sections 63B and 63C of the TCP Act and the consequential rules in w.P.No.9785 of 2010 and that has been negatived by this Court. Hence this writ petition will stand dismissed.
102.W.P.No.11468 of 2010 : The petitioner has come forward to challenge G.O.Ms.No.191, Housing dated 1.6.2007 and G.O.Ms.No.22, Housing, dated 25.1.2008 and seeks to set aside the same. The contention of the petitioner was that the G.Os cannot stand in isolation and it should be supported by the Act. The first G.O. referred to by the petitioner was subsequently backed by the amendment made to the TCP Act, wherein Sections 63B and 63C were introduced. In the second G.O., rules were framed pursuant to the amendment. The contentions raised herein have been answered and the validity of the Act and rules have been upheld by this Court. Hence, this writ petition will stand dismissed.
103.W.P.No.11615 of 2010 : The petitioner company challenges the notice dated 13.5.2010 demanding for payment of Rs.95 lakhs in terms of the IAA charges and also as per the undertaking given on 14.9.2007. The contention that it was located in the Special Economic Zone and therefore the levy is unconstitutional was also rejected by this court. The further contention that no proper notice was given and the categorisation that it was the multistoreyed building was erroneous is a matter which the appellate authority under Rule 10 can validly decide.
104.The petitioner had stated that they are intending to challenge the vires of Sections 63B and 63C and they have not filed any such writ petition. In any event, this court is not inclined to go into the fact situation about the petitioner's building and it is entirely the matter for the appellate authority to decide. Already this court has upheld the provisions relating to appeal and disinclined to deal with the writ petitions bypassing the appeal remedy. Therefore, this writ petition will stand dismissed with liberty to the petitioner to move the appellate authority.
105.W.P.No.12806 of 2010 :In this writ petition, the petitioner challenges the letter dated Nil (April, 2010) issued by the planning authority, wherein and by which the balance amount of Rs.1,56,47,500/- was demanded from the petitioner company. The contention raised was that they must have the benefit of G.O.Ms.No.161, Housing, dated 9.9.2009 and that the demand notice based upon the earlier G.O was unsustainable. The rules framed in 63B impinges the right of the petitioner to develop the property. All the contentions have already been rejected by this court elsewhere. In the light of the same, this writ petition will stand dismissed.
106.W.P.No.12958 of 2010 : The petitioner in this writ petition challenges the demand notices, dated 12.04.2007, 28.04.2010, 24.05.2010 and 14.06.2010. By order dated 28.04.2010, the petitioner was directed to pay a sum of Rs.70,51,90,000/-. The petitioner made a revised proposal. The petitioner was developing building in an area of 108 acres comprising several blocks in Egattur village, Muttukadu panchayat. The petitioner was informed that unless he pays 50% of the amount, the question of any reconsideration will not arise. Subsequently, by an order dated 14.6.2010, the petitioner was informed that even after a period of one year, they have not paid the amount and therefore, the planning permission was cancelled.
107.At the time of admission, the petitioner had agreed to pay Rs.250/- per sq. meter and on that condition, this court direction their application to be considered. Challenging the constitutional validity of the Act and Rules, the same petitioner filed W.P.No.12959 of 2010 which was dismissed by this court. It was contended by them that the IAA charges payable by them will be relatable to G.Os. which are prevalent at the time when planning permission was issued. If that is so, nothing prevented the petitioner from filing an appropriate appeal contending these facts before the appellate authority which had been specially constituted for this purpose. Hence with the liberty to the petitioner to file an appeal, this writ petition will stand dismissed.
108.W.P.No.13112 of 2010 : The petitioner challenges an order dated 14.6.2010 issued by the Local Planning Authority and seeks to set aside the same. The petitioner has built a multistorey building containing restaurant and lodge and also a multiplex theatre and a shopping mall. They were asked to pay the amount in terms of G.O.Ms.No.84, Housing, dated 8.4.2008. Since they have not paid the amount of Rs.2,82,37,500/-, the planning permission was cancelled. The petitioner contended that they have paid 50% of the amount as IAA charges and the balance amount was to be paid on installments. Further, they want to have the advantage of G.O.Ms.No.161 and that the cancelation of planning permission was erroneous. If any arrears are to be paid, they should have been collected as revenue recovery. All these contentions cannot be accepted and that the said issues have been dealt with in the main part of the order. If the petitioner does not obey the condition for grant of planning permit, it is open to the authorities to revoke the planning permission. Hence the writ petition will stand dismissed.
109.W.P.No.14012 of 2010 : The petitioner filed the writ petition challenging the demand notice issued by the Deputy Director of Town and Country Planning, dated 12.5.2010 demanding payment of Rs.40,46,500/- in terms of G.O.Ms.No.84, Housing, dated 8.4.2008. The petitioner seeks to set aside the notice and seeks for a direction to an extent to follow the procedure prescribed under the rules. In this writ petition, the rules provides for an appeal under Rule 10. It is for the petitioner to avail the same. This court has already declined to entertain the writ petitions bypassing the statutory appeal remedy. Hence the writ petition will stand dismissed with liberty to the petitioner to approach the appellate authority.
110.W.P.No.15827 of 2010 : The petitioner claims to be the charitable educational trust. They have challenged the order of the local planning authority, dated 16.4.2010 and the consequential order dated 14.6.2010. By the first order they were reminded about the non payment of IAA charges amounting to Rs.1,21,77,000/- notwithstanding obtaining the planning permission and also executing the bond. By the subsequent order, they were informed that since they have not paid the IAA charges, planning permission given to them was revoked. The contention of the petitioner was that levy of charges was violative of Article 265 of the Constitution. In any event, the petitioner building will attract only Rs.100/- per sq. metre as an institutional building and even if it is classified as a special building, it will draw only Rs.250/- per sq.metre. Therefore, the levy of charge was illegal.
111.If the question is only about wrong classification, an appeal can cure such defect. On that score, this court is not inclined to entertain the writ petition. Already this court has upheld the right of appeal given under Rule 10 and disinclination of this court to entertain the writ petitions to decide the question on the basis of pleadings. The contentions raised require factual finding by the authority. Hence the writ petition will stand dismissed with liberty to move the appellate authority.
112.W.P.No.16147 of 2010 : The petitioner is the matriculation school. They have challenged the order of the third respondent, dated 9.6.2008 and the consequential proceedings, dated 14.5.2010. By the impugned proceedings, the petitioner was informed that they are bound to pay a sum of Rs.4,75,000/- towards IAA charges. They have only paid Rs.1,19,000/-. Therefore, the balance amount was directed to be paid. In the consequential proceedings, they were also informed that planning permission was given on the basis of the undertaking given by them. Therefore, they have to pay the balance amount, failing which they were threatened that the planning permission will be revoked.
113.The contention raised by the petitioner was that they are charitable organixation. Since it is an institution, they are liable to pay Rs.200/- per sq. metre and it cannot be classified as a commercial building. The petitioner had requested that they are willing to pay if time was granted and that the classification made b them was erroneous. However, the petitioner having given a bond and agreed to abide by the terms of the bond, they cannot resile from the undertaking. Hence this court is not inclined to entertain the writ petition. Hence the writ petition will stand dismissed.
114.W.P.No.17131 of 2010 :The petitioner is the cotton mill. They have filed the present writ petition challenging an order dated 3.7.2010 issued by the Deputy Director of Town and Country Planning, Salem and after setting aside the same, seeks for a direction to pay the balance in eight installments. The petitioner had to pay Rs.27,75,500/- towards IAA charges. They have only paid Rs.5 lakhs in June, 2010. In the affidavit, they had mentioned that since several other persons filed writ petitions, they did not pay the amount. All of a sudden, they are unable to pay the same. They are not disputing the quantum of payment.
115.This writ petition was admitted on 30.7.2010 and an interim stay was granted by this court. However, the question of payment of amounts by installments which was to be paid even at the time of planning permission was issued will not arise. This court cannot grant any such direction. The Supreme Court vide its judgment in Assistant Collector of Central Excise, Chandan Nagar, West Bengal Vs. Dunlop India Ltd. and others reported in (1985) 1 SCC 260 had deprecated the practice of granting such order. Hence the writ petition will stand dismissed.
116.W.P.No.17392 of 2010 : The petitioner claims to be a charitable educational trust. They have filed the writ petition challenging the cancellation of planning permission dated 14.6.2010 for non payment of IAA charges. They have also filed W.P.No.15827 of 2010 challenging the order of the local planning authority, dated 16.4.2010 and the consequential order dated 14.6.2010. Since that writ petition was dismissed, this writ petition will also stand dismissed.
117.W.P.Nos.17962 to 17965 of 2010 : In the first two writ petitions, the petitioner is one and the same. In the third and fourth writ petitions, the petitioner is one and the same person. In the first two writ petitions, the petitioner challenges the order dated 25.6.2010 passed by the Deputy Director in demanding a sum of Rs.2,77,500/- towards IAA charges and in the second writ petition, they were reminded of the non payment of the amount, failing which they were warned that planning permission will be cancelled in respect of their rice mill. In the third writ petition, the petitioner was reminded of non payment of Rs.1,65,000/- in respect of the rice mill and in the fourth writ petition, the same petitioner was informed that if payment was not made, planning permission will be cancelled.
118.The contention raised by the petitioners was that fixing rate at Rs.250/- per sq.metre was illegal and that it should be only Rs.150/- per sq.metre. It was stated that though an appellate remedy is available under Rule 10, this court will have jurisdiction. However this court has already held that the appeal remedy has to be availed before invoking the jurisdiction of this court. Hence all the four writ petitions will stand dismissed with liberty to the petitioners to move the appellate authority as contemplated under the rules.
119.W.P.No.18660 of 2010 : The petitioner has come forward to challenge the order issued by the Deputy Director of Town and country Planning, dated 18.1.2010. By the impugned order, the petitioner was directed to pay a sum of Rs.45,71,350/- towards IAA charges. The contention of the petitioner was that levy should be made only in terms of G.O.Ms.No.161, Housing, dated 9.9.2009 and the order cannot be made at the time of making assessment. The petitioner is eligible to get concession as per the G.O. The petitioner had already paid Rs.45,71,350/- on 11.2.2010 and in terms of the G.O., the petitioner wants levy of Rs.150/- per sq.metre and refund of Rs.23,68,505/-. This court has already held that G.O.Ms.No.84 will not apply to the case of the petitioner as he had already been dealt with by an earlier Government order. Hence there is no case made out by the petitioner. This writ petition will stand dismissed.
120.W.P.No.19566 of 2010 : The petitioner has come forward to challenge an order dated 25.5.2010 passed by the second respondent Deputy Director of Town and Country Planning, Chengalpattu, wherein and by which the petitioner was directed to pay a sum of Rs.72,65,000/- as per the undertaking dated 13.10.2007. The contention of the petitioner was that Sections 63B and 63C are unconstitutional and contrary to Article 265 of the Constitution. The petitioner has to be treated as an industrial building and not as special building. However, this court has already upheld the validity of the amendment made to the Act. Hence the contentions raised in this regard cannot be accepted. If the petitioner is of the view that wrong classification was made, than it is for him to avail the remedy by way of an appeal. Hence with this observation, this writ petition will stand dismissed.
121.W.P.No.19963 of 2010 : The petitioner is an Institute of Science and Technology. They have come forward to challenge the notice, dated 27.08.2010 directing them to pay a sum of Rs.10,45,000/-, failing which they were informed that planning permission given to them will be cancelled. The contention of the petitioner was that they built a matriculation school in Silathur Village as per the planning permission. But as the institutional building not covered by Sl.No.1 of the G.O. and that the rate of levy is only Rs.50/- per sq. metre, the petitioner's building cannot be classified as multistoreyed building. While they offered to pay Rs.50/- per sq.metre, the demand was exorbitant. The issue raised herein is completely a factual issue which can be decided only by the appellate authority under Rule 10. Therefore, the petitioner is at liberty to file an appeal raising the contentions made herein. With this observation, the writ petition will stand dismissed.
122.W.P.No.20061 of 2010 : The petitioner in this writ petition challenges the notice, dated 16.8.2010 demanding payment of balance amount of Rs.27,72,750/- towards IAA charges by the Deputy Director of Town and Country Planning, Chengalpattu. The petitioner also filed W.P.No.20062 of 2010 challenging the validity of Sections 63B and 63C and that has been rejected by this court. In the light of the same, the impugned notice cannot be set aside and the reasons weighed for upholding the provisions will also apply to the present impugned notice. The petitioner having accepted the earlier condition and had paid 50% of the amount, cannot come to this court for waiver of balance 50%. Hence the writ petition will stand dismissed.
123.W.P.No.22621 of 2010 : The petitioner Estate has come forward to challenge the demand notice issued by the local planning authority, dated 30.8.2010 demanding a sum of Rs.1,64,03,250/-. It was stated that the petitioner had paid first installment of Rs.21,87,100/- and the balance amount will have to be paid. The petitioner was given planning permission under the condition that he has to pay the amount towards IAA charges. While the petitioner was willing to pay Rs.60,14,525/-, the demand that he should pay Rs.375/- per sq.metre was errnoeus and that the petitioner will pay Rs.100/- per sq.metre as per the earlier G.O. Therefore, the demand should be set aside. As already held by this court, the G.O. referred to by him is only a transitory order and not a permanent G.O. and that has also been rescinded by the Government by the subsequent order in G.O.Ms.No.84, dated 8.4.2008. The petitioner also claims that he is entitled to be considered as multistorey residential building and not as a multistorey building coming under Sl.No.1 of G.O.Ms.No.161. But, in the present case, the petitioner has already given an undertaking which is enclosed in page 9 of the typed set to pay the amount at Rs.100/- as an initial payment and the balance to be paid as and when the Government orders are issued. Subsequently, G.O.Ms.No.84, dated 8.4.2008 had come into operation. Therefore, the petitioner is bound to pay the said amount. Hence there is no case made out. Accordingly, the writ petition will stand dismissed.
124.W.P.No.23051 of 2010 : The petitioner has come forward to challenge an order, dated 15.7.2008 of the third respondent Local Planning Authority, Coimbatore and the consequential proceedings, dated 9.9.2010 and after setting aside the same seeks for refund of Rs.6,12,42,750/-. The contention of the petitioner was that they have located their building in the Special Economic Zone and that the policy of the State Government was to be liberal in respect of the said location. Under Section 50 of the Special Economic Zones Act, the State Government can grant exemption from the said tax and levy to the developer and Section 61 of the Act has got over riding effect. Therefore, the amount collected from the petitioner towards infrastructure and amenities charges at Rs.750/- per sq.metre was illegal and that they are eligible for refund of the amount. Already this court has dealt with the contentions regarding the reliance placed upon the Special Economic Zones Act and the policy of the Government. In the light of the above reasoning, the writ petition will stand dismissed.
125.W.P.No.29640 of 2010 : The petitioner is claiming to be the charitable trust. They have come forward to challenge the notices dated 29.9.2008, 2.9.2010 and 03.12.2010 issued by the third respondent. By the impugned proceedings, the petitioner was informed that they were given planning permission on the basis of the undertaking that they will pay infrastructure and amenities charges. Though they sought for exemption, the same was refused by stating that there is no provision under the Government order for grant of exemption. Hence they were directed to pay a sum of Rs.1,30,25,260/- towards IAA charges, failing which it was informed that they will seal the premises.
126.The contention raised by the petitioner was that they are bound to pay only Rs.75/- per sq.metre and that the claim of Rs.375/- per sq.metre in terms of G.O.Ms.No.161 was illegal. Since they are coming under the institutional building and not covered by Sl.No.1 as multistorey building, the levy of the amount was illegal. Though the learned Senior counsel submitted that they are running educational institution and therefore, they cannot be treated as commercial building, such a contention has already been answered in the main part of the judgment. The petitioner is bound to file an appeal before the appellate authority under Rule 10. In that view of the matter, the writ petition will stand dismissed with liberty to the petitioner to file an appeal.
127.W.P.No.835 of 2011 : The petitioner is a charitable trust, which has come forward to challenge the notice, dated 16.8.2010, wherein they were asked to pay a sum of Rs.74,86,000/- towards IAA charges. The contention raised in this writ petition on legal issues regarding vires of the amendment and also the statutory rules framed thereunder has already been answered in respect of the petitioner in W.P.No.834 of 2011. There are no other grounds raised with reference to the impugned demand notice. Since the other writ petition has been dismissed and the amendment to the Act and Rules have been upheld, this writ petition must necessarily fail. Accordingly, this writ petition will stand dismissed.
128.In the light of the above, all these batch of writ petitions will stand dismissed. Consequently, connected miscellaneous petitions stand closed. No costs.
1.The Secretary to Government, State of Tamil Nadu, Housing and Urban Development, Secretariat, Fort St. George, Chennai-600 009.
2.The Director of Town and Country Planning, 807, Anna Salai, Chennai-600 002.
3.Block Development Officer, Kundrathur Panchayat Union, Sriperumpudur Taluk, Kanchipuram.
4.The Member Secretary, Chennai Metropolitan Development Authority, No.1, Gandhi Irwin Salai, Egmore, Chennai-600 008.
5.The Member Secretary, Local Planning Authority, 11-A, Raman Pillai Street, Ramavarmapuram, Nagercoil,-629 001.
6.The Deputy Director (FAC) Town & Country Planning, Corporation Commercial Complex, Dr.Nanjappa Road, Coimbatore-18.
7.The Executive Officer, Avinashi Town Panchayat, Avinashi-641 654.
8.The Regional Dy. Director of Town & Country Planning (G), Chengalpattu Region, Chengalpattu-Kancheepuram District.
9.The President Nellikuppam Panchayat Nellikuppam, Kancheepuram District.
10.The Managing Director The Chennai Metropolitan Water Supply and Sewerage Board, No.1, Pumping Station Road, Chennai-600 002.
11.The Executive Officer, Nandhivaram-Guduvancheri Town Panchayat, Executive Officer, Guduvancheri, Chengalpattu Taluk, Kancheepuram District.
12.Deputy Director, Town & Country Planning, Chenglepet Zone, 11,G.S.T. Road, Chenglepet-1.
13.Member Secretary, Cuddalore Local Planning Committee, Cuddalore.
14.The Commissioner, Cuddalore Municipality, Cuddalore.
15.The Member Secretary (incharge), Local Planning Authority, Corporation Commercial Complex, Sivananda Colony, Coimbatore 600 012