Bombay High Court
Sanjay S/O Lakhanlal Agnihotri ... vs U.O.I. Thr. Its Secty., Min. Of ... on 28 September, 2017
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.4264/2009
1. Sanjay S/o Lakhanlal Agnihotri,
Aged 44 years, Occ : Agriculturist,
R/o Pardeshipura, Ramnagar,
Wardha, Tah. & Dist. Wardha.
*2. Champalal S/o Sunderlal Bhutada,
Aged 73 years, occ : Business,
R/o Saibaba Mandir Road,
Wardha, Tah. & Dist. Wardha.
(*Deleted as per Court's order
dtd.25/03/11)
3. Jayant S/o Sharadrao Kawale,
Aged 43 years, Occ : Business,
R/o Pratapnagar, Wardha,
Tah & Dist. Wardha. ..... PETITIONERS
...V E R S U S...
1. Union of India,
Through its Secretary,
Ministry of Urban Development,
IDSMT Projects, Mantralaya,
New Delhi, Tah. & Dist. New Delhi.
2. The State of Maharashtra,
Through the Director,
Municipal Administration,
Government of Maharashtra,
Mantralaya, Mumbai,
Tah. & Dist. Mumbai.
3. Town Planning Officer,
Wardha District,
Bachat Bhavan, Civil Lines,
Wardha, Tah. & Dist. Wardha.
4. Municipal Council Wardha,
Wardha, Tah. & Dist. Wardha.
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5. Chief Officer,
Municipal Council Wardha,
Wardha, Tah. & Dist. Wardha.
6. Municipal Engineer,
Municipal Council Wardha,
Wardha, Tah. & Dist. Wardha. ... RESPONDENTS
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Shri A. H. Lohiya, Advocate for the petitioners.
Ms. Mugdha Chandurkar, Advocate for respondent No.1.
Shri A. M. Balpande, AGP for respondent Nos.2 and 3.
Shri Abhay Sambre, Advocate for respondent Nos.4 to 6.
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CORAM:-
B.P.DHARMADHIKARI &
ARUN D. UPADHYE, JJ.
DATED :
28/09/2017.
ORAL JUDGMENT : (PER B. P. DHARMADHIKARI, J.)
1. Heard Shri Lohiya, learned counsel for the petitioners,
Ms. Chandurkar, learned counsel for respondent No.1, Shri Balpande,
learned Assistant Government Pleader for respondent Nos.2 and 3 and
Shri Sambre, learned counsel for respondent Nos.4 to 6.
2. Cognizance of the present matter has been taken in
public interest.
3. Three issues have been presented to the Court. First one
is levy and recovery of land development charges contrary to the
Scheme of Section 124-A of the Maharashtra Regional and Town
Planning Act, 1966 or then the explanation furnished in relation thereto
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by Section 12 of the Maharashtra Act No.10 of 1994. Second issue is
about the recovery of rain harvesting charges and the last issue is about
522 unattended audit objections for the period from 1999 to 2006.
4. Shri Lohiya, learned counsel submits that provisions of
Section 124-A of the Maharashtra Regional and Town Planning Act,
1966 (hereinafter referred to as "1966 Act") added on 10/08/1992
show that the same are prospective only and no retrospective recovery
or levy is permitted. By relying upon proviso added to Sub-Section (2)
vide Maharashtra Act No.10 of 1994 and the clarification by Section 12
thereof, he submits that if permission to develop / construct was
already procured or deemed to have been given before 10 th August,
1992, recovery is not permitted. During arguments, he submitted that in
fact, the dispute mainly pertains to recovery of land development
charges from 10/08/1992 onwards. According to him, though such
charge could not have been claimed at all, almost in all cases, land
development charges have been levied and also paid by the citizens. He,
therefore, submits that, the amount of recovery towards land
development charges must be refunded. He points out an instance
where Municipal Council admitted its mistake and ordered refund.
5. In relation to rain harvesting charges, Shri Lohiya,
learned counsel submits that Section 105 of the Maharashtra Municipal
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Councils, Nagar Panchayats and Industrial Townships Act, 1965
(hereinafter referred to as "1965 Act") does not permit any such levy
even as an interim measure. Entry which may have some bearing on it
has been added for the first time on 4 th August, 2012 to Section 105.
He, therefore, submits that in this situation when there is no provision
in law and there is no reply also by the Municipal Council explaining
the source and sanction for such recovery, said amount needs to be
refunded.
6. In relation to 522 audit objections, he submits that no
serious cognizance of these audit objections has been taken by anybody.
Audit objections show last scale manipulation and misappropriation. He
relies heavily upon reply affidavit filed by respondent No.2 to urge that
there, the authority has pointed out falseness in claim of compliances
made by the Municipal Council and how the compliance is merely an
eye wash. He has relied upon Section 104 of "1965 Act" and the
provisions of the the Bombay Local Fund Audit Act, 1930 to submit that
in this situation, respondent No.2 ought to have referred the matter to
the said authority so that appropriate surcharge can be worked out and
amount can be recovered from the persons found guilty.
7. The position of audit after the year 2006 till date, is not
within the knowledge of the petitioners. He has invited our attention to
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certain orders passed in this petition demanding information from the
Municipal Council in relation to development charges. He claims that
those details or clarifications are still not furnished.
8. Shri Balpande, learned A.G.P. relies upon the reply
affidavit mentioned supra.
9. Ms. Chandurkar, learned counsel submits that no reply
has been sought for from respondent No.1 and there are no allegations
against respondent No.1.
10. Shri Sambre, learned counsel submits that efforts made
by the Municipal Council to comply with the audit objections, are
placed by an affidavit before this Court. All possible steps have been
taken and the Chief Officer has got limited powers in the matter.
11. Insofar as recovery of land development charges is
concerned, he points out that the provisions of Section 124-A (1) of
"1966 Act" permit such levy separately only in relation to land also.
According to him, unless such levy in individual cases, is pointed out to
be unjust, cognizance cannot be taken by the Municipal Council.
Information supplied to the petitioners by the Municipal Council only
discloses figures of development charges recovered by it and it does not
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mean that the said recovery is illegal. He also points out that when the
levy was found unwarranted, the Municipal Council refunded the
amount to the persons paying it. But later on, refund is found to be
wrong and hence, efforts are made to recover the refunded amount.
12. Lastly, he submits that insofar as recovery of rain
harvesting charges are concerned, though there is no reply affidavit
before this Court, as per his instructions that amount is recovered as
deposit to see that person to whom permission has been given,
constructs necessary structure for rain water harvesting. If such an
arrangement is found constructed that deposit is refunded. He, further
adds that through the amount received in deposit, the Municipal
Council has also undertaken some work towards rain harvesting. He,
therefore, submits that the grievance in public interest, in this respect is
unsustainable.
13. Perusal of affidavit reply filed by respondent No.2 in
compliance of the order of this Court dated 21 st September, 2011,
particularly in para 5, reveals substance in contention of the petitioners.
522 audit objections and compliance report filed in relation to 49 audit
objections, out of it has been brought on record in that paragraph.
Authority also states that the compliances were found not satisfactory
and therefore, further explanation was called for by the Assistant
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Director, Local Fund. The Municipal Council on 02/07/2010 submitted
explanation on 93 audit reports. However, the same is incomplete.
These documents are filed on record as Annexure to the reply and
perusal thereof reveals that what has been submitted as compliance is
nothing but audit objection itself with some details. There is no answer
to the objection as such. The respondent No.2 himself, therefore, has
found that the compliance is incomplete and not as per the procedure.
He has also pointed out that the Municipal Council has also passed the
resolution to drop the audit paras.
14. In para 6 of the said affidavit, compliances of 13 audit
objections attended by the Municipal Council on 20/06/2011 have been
again adversely commented upon.
15. The state of affairs, therefore, show that as per law, the
State Government has conducted audit and more than 522 audit
objections were found not satisfied from the year 1997 till 2006. The
present writ petition is filed in public interest in 2009 and respondent
No.2 has filed affidavit on 4th September, 2012. So even till 2012, these
objections were not met with. On the contrary, the Municipal Council
had audacity to pass a resolution to waive all audit objections.
16. We cannot countenance this conduct of the Municipal
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Council. Not only this, but inaction on the part of respondent No.2 in
the matter also cannot be accepted. Respondent No.2 was definitely not
helpless. Respondent no.2 could have resorted to powers given to it in
"1965 Act" or even under the Bombay Local Fund Audit Act, 1930 and
proceeded to find out delinquent and amount of surcharge and
recovered it from the ex-officer or ex-councillor of the Municipal
Council. This has not been done till date.
17. Now, in 2017, it may be difficult for anybody to frame
charge or fasten responsibility for whatever has been done in the year
1999 i.e. about 20 years back. Expiry of time in such matters prejudices
public interest and helps the wrong-doers in escaping either un-noticed
or unpunished. We find that respondent nos.4, 5 and 6 have succeeded
to certain extent in doing it. We also find that respondent No.2 has not
taken necessary steps in the matter though it was duty bound to do so.
It has indirectly helped such delinquents to escape.
18. Insofar as levy of rain water harvesting charge is
concerned, in absence of any definite reply affidavit on record and any
specific entry in Section 105 of "1965 Act", it is clear that such a
demand could not have been made. The Municipal Council could have
come before this Court and pointed out that it had recovered that
amount as deposit and issued receipts accordingly to the persons
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seeking permission to develop. The petitioners state that no such
receipts showing the nature of amount as deposit, are issued. Thus,
persons who have paid the amount are not aware that they are entitled
to its refund. The fact that amount has not been refunded, may also
indicate that the Municipal Council has not paid visit to the site where
development has been carried out to find out compliances with rain
water harvesting measures. Had compliance come on its record or had
it issued Completion Certificate, the question of refund would then have
definitely cropped up. The material on record does not throw any light,
in this respect.
19. We, therefore, direct respondent Nos.4 and 5 to publish
an advertisement in Local Daily having wide circulation in Wardha
town within next four weeks pointing out that amount recovered by it
towards rain water harvesting charge is in fact, a deposit and those who
have complied with rain harvesting measures, can come to its office and
seek refund.
20. However, we also direct the President and the Chief
Officer of the Municipal Council to see that its Competent Officers visit
all such sites where development is claimed to have been carried out to
note such compliance. This exercise shall be carried out independently
and completed within six months.
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21. Insofar as levy and recovery or collection of land
development charges is concerned, Section 124-A of "1966 Act" shows
that it can be assessed and demanded independently. The retrospective
nature or arguments in relation thereto and fact that the land
development charges can be levied and asked for only in absence of
permission to develop already given in past demonstrate need to adopt
case-wise approach. Whenever a person approaches and seeks sanction
to a building plan, if his plot is in approved layout, it is clear that no
development charges in relation thereto can be demanded.
Development charges in that event can be only in relation to building
i.e. further development to be carried out on already developed plot. It
appears from the order of this Court dated 21 st September, 2011 in this
case that an effort was made in that direction by this Court to find out
whether the said charges have been recovered in respect of areas of old
town where there has been no fresh development or in new areas where
there has been fresh development.
22. The submission of the petitioners that the land
development charges could not have been demanded, needs verification
of facts. That verification is not possible in this public interest litigation.
In one case, the Municipal Council has after satisfying itself about the
impropriety of recovery of land development charges refunded it and
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later on, realized error committed by it in responding it. All these facts
do show need of verification of facts in each case by Municipal Council
before levy and also before refund.
23. It is apparent that remedy under Section 124-G of
"1966 Act" of filing an appeal is available to persons aggrieved by an
order passed by an authority under Section 124-E of "1966 Act". Section
124-E is on assessment and recovery of development charges. Thus,
cases where there could not have been assessment at all and still
development charges are levied and recovered, are also covered under
Section 124-E of "1966 Act".
24. Hence, the grievance of the petitioners or of persons
from whom such tax / charge has been recovered illegally, can form
subject matter of appeal under Section 124-G of "1966 Act". Hence, we
grant liberty to such individuals to file appeals under Section 124-G of
"1966 Act" as per law and seek refund by pointing out illegality of
assessment. Case specific application of mind is possible thereon.
25. Coming back to the question of further action in the
matter of 522 unattended audit objections, we find that this may be
true in case of several local bodies in the State of Maharashtra. The
reply affidavit filed by respondent No.2 itself shows casual approach on
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the part of the superior and responsible officers in such sensitive
matters.
26. In this situation, taking overall view of the matter, we
direct respondent No.2 - State of Maharashtra to collect data from all
local bodies in relation to pending audit objections like duration /
period thereof and why compliances have not been made. This data
shall then be looked into by the Secretary of State to find out how the
transparency in the administration of local bodies and the State
Government can be advanced by taking suitable remedial measures.
This exercise shall be completed, within a period of six months from the
date of communication of this order to respondent No.2.
27. Insofar as audit objections in case of respondent No.4 -
Municipal Council are concerned, we direct respondent No.2 - State of
Maharashtra to depute an officer not below the rank of Collector to look
into the administration of respondent No.4 - Municipal Council from
1999 till date. The said officer shall be deputed within a period of four
weeks from today and he shall look into relevant documents to find out
surviving audit objections and other administrative lapses within next
four weeks.
28. Respondents shall, thereafter contingent upon his
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report, take necessary steps as provided for in "1965 Act" against
respondent no.4 or delinquent councillors and officers with it.
29. For non-compliance with 522 audit objections, we
direct respondent No.2 to immediately proceed under the Bombay Local
Fund Audit Act, 1930 and initiate steps to fasten individual
responsibility against officers and elected office bearers. The surcharge
shall be worked out, as per law and recoveries shall also be then
initiated, as per outcome thereof.
30. We find that it is failure on the part of respondent
Nos.2 and 4 to act diligently which has contributed to present situation.
The situation could have been averted, had they been diligent. There is
every reason to foresee attempt to defeat or avoid this exercise on their
part.
31. To monitor the compliance with these orders, we direct
the respondent Nos.2 and 4 to submit compliance to the Registry of this
Court within period stipulated supra. In default, the Registry shall list
the disposed of petition before this Court. In said eventuality, the Court
will be constrained to pass appropriate order against officers found
guilty, for not acting diligently.
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32. Accordingly, we make rule absolute in above terms and
dispose of the present writ petition. No costs.
JUDGE JUDGE
Choulwar
