JUDGMENT T.V.R. Tatachari, J.
(1) This writ petition has been filed by the petitioners who are all residents and owners of houses and plots in a colony called 'Punjabi Bagh', situate in New Delhi, praying for the issuance of (1) a writ of mandamus directing the respondents to take over the services in respect of Punjabi Bagh and perform all the obligatory functions enjoined upon the latter by law and to desist from demanding certain deficiencies or, in any case, from laying down payment of the deficiencies as a condition precedent for rendering the civic amenities and conveniences in pursuance of the said obligatory functions; and (2) a writ of prohibition or a suitable direction to the respondents to forbear from claiming or recovering any taxes, charges or rates from the residents and owners of properties in Punjabi Bagh until the aforesaid civic functions are undertaken and performed by the respondents and civic amenities and conveniences are furnished to the said residents and owners.
(2) The respondents are (1) the Municipal Corporation of Delhi and (2) The Commissioner, Municipal Corporation of Delhi. The petitioners are all owners of properties in, and residents of Punjabi Bagh, a colony established in New Delhi. The first petitioner is the Refugee Co-operative Housing Society, Ltd. which is a Cooperative Society registered under the Bombay Co-operative Societies Act, 1925, as extended to Delhi. The other petitioners are members of the Society. According to the averments in the writ petition, the said Society was registered on 14-6-1950, primarily with the object of setting up a residential colony for the rehabilitation of displaced persons. who had migrated from West Pakistan. The objects of the Society include:-
"(1)To design, lay-out, establish and maintain, a garden town;
(2)To facilitate and regulate the housing of memebrs; and (3)To create funds to be lent out to members for the purchase of sites and construction of houses."
(3) In the same year, the Government acquired about 575 acres of land in the villages of Shakurpur, Madipur and Basai Darapur in Delhi State at the cost of the Society. In 1951, the Society took possession of the said land for establishing a colony thereon. The members of the aforesaid Society were allotted different plots of land on which they have constructed houses bearing numbers as shown in the cause title of the writ petition.
(4) After taking possession of the land in the year 1951, the Society submitted a lay-out plan of the colony to be established to the Delhi Development Authority. The said plan was approved by the Delhi Development Authority by Resolution No. 329, dated 31-12-1957 excepting the services which were not approved. After the formation of the Municipal Corporation of Delhi in 1957 (hereinafter referred to as the "Corporation"), the area in question came within the jurisdiction of the Corporation, and the record relating to the colony was transferred to the Corporation. The development of the land was started by the Society in the year 1958. The Society also submitted a revised lay-out plan, and the same was put up for the approval of the Standing Committee of the Corporation under section 313 of the Delhi Municipal Corporation, Act, 1957, (hereinafter referred to as the "Corporation Act"). By Resolution No. 18, dated 1-7-1959 (Annexure R-III), the Standing Committee of the Corporation approved the revised plan with the following conditions:-
"1.No land covered by the sanctioned lay-out shall be sold, or built upon until the services covered by the layout have been laid to the satisfaction of the Commissioner.
2.The sanction given to the lay-out shall lapse, unless the services are provided within a period of 12 months. The time limit may, however, be extended by the Commissioner by another 12 months for reasons to be recorded.
3.The Coloniser, within 15 days of the sanction of the lay-out plan, shall deposit a cash security at the rate of 25 np. per sq. yd. of the gross area covered under the lay-out plans as a guarantee for developing the land and providing the services to the satisfaction of the Commissioner within the prescribed time and on his failing to do so the Commissioner shall have the right to forfeit a part of whole of the security amount.
4.The sites which have been left for cinema will not be allowed for this purpose as one is near a Primary School and the other is on the main Rohtak Road which is objectionable. Both these sites will be kept as open area till the question is further examined after the necessity of a cinema is felt.
5.The area demarcated for commercial purposes along Rohtak Road will remain unbuilt unless specifically approved for a District Shopping Centre in the area.
6.The stipulations made in Paras 12 to 16 shall be complied with."
Subsequently, foundation stone of colony was laid by Pandit Jawaharlal Nehru, the then Prime Minister of India, and the colony was named by him as Punjabi Bagh.
(5) The building of houses in the colony was allowed on 1-5-1961 (vide Annexure R-IV), and the building activity started sometime towards the end of 1961. The development of the land was almost completed, according to the petitioners, by the year 1962. On 23-4-1962, the Corporation published a notice (Annexure R-l) in pursuance of the provisions of sub-section (i) (b) of section 115 of the Delhi Municipal Corporation Act No. 66, of 1957 that in the Refugee Co-operative Society's colony sufficient water was available from the Municipal Water Works for a reasonable, supply to all the lands and buildings in that colony, and started levying general tax, fire tax and water tax with effect from 1-4-1962.
(6) In 1963, another revised lay-out plan was submitted by the Society, and by Resolution No. 1047, dated 15-12-1965 (Annexure R-IV), the said revised plan was approved by the Standing Committee of the Corporation subject, inter-alia, to the following conditions:-
"1.All the services viz. water, sewer and storm water drain for the portion now included in the lay-out plan (area 20.56 acres) will have to be got approved from the Standing Committee of M.C.D. and same be laid at site within 12 months of the receipt of the approved services plans by the Society.
2.The area of plots and the roads falling in the Rly. Land be exchanged with the Railway Authorities. Road No. 13 shall be constructed by the Society after exchange of the area.
3.All the open spaces and areas meant for public facilities including the Master Plan Green Area be handed over to the Corporation free of cost, other than those allotted to Registered Societies prior to 15-12-1965."
(7) According to the petitioners, about 560 houses were constructed by 1965, and about 1200 houses by 24-10-1969, the date of the filing of the Writ petition. The population of the colony by the said date is stated to be about 20,000. The Society is stated to have spent about one crore of rupees on the development of the colony which included "construction of bridges, laying of the roads and service lanes up to red bajri level and carpetting of the main roads, laying sewerage line including sullage wells and septic tanks, laying of water pipe lines, and connecting the same with the municipal main, storm water drains, road side plantations, electric lines for street lights and domestic lights, partial development of parks, club, etc., in that area. It is further stated that the Society has been incurring a recurring annual expenditure of about Rs. 1,25,000.00 for the maintenance of the above services. and that the total expenditure incurred till the filling of the writ petition on the maintenance of the said services was Rs. 7,54,882.00. It is stated in the writ petition that the Corporation has not taken over the colony for the purpose of rendering the essential services mentioned above, although it has been charging the petitioners since the year 1962-63 vacant land tax and property tax including scavenging, fire and water taxes, and that the total amount of taxes paid by the plot-holders in the colony to the Corporation, so far as could be worked out, came to about Rs. 40 lakhs, and the annual tax charges which are levied amounted to Rs. 5 lakhs.
(8) The petitioners set out the facts and circumstances relating to seven items of civic amenities. The first is "street lighting", and the petitioners stated that the Corporation took over street lighting on 1-9-1967, that till then the Society had to pay for the rentals of the bulbs as well as for the electrical energy consumed, and that except for two roads where tube-lighting has been provided, street and road lighting has been very poor ever since it was taken over by the Corporation. The second item is "sewerage", and it is stated regarding the same that the entire sewerage system was laid and being maintained by the Society. The third item is "storm water drains", and it is averred regarding this item that the Society constructed a net work of storm water drains at an expense of some lakhs of rupees, and has been repairing and cleaning them so that the area is not flooded during rains. The fourth item is "drinking water", and it is stated that the Socieity laid its own system of water supply at a cost of Rs. 11,15,352.00, that the Corporation has not taken over the water-supply, but has been supplying drinking water which, however, is neither wholesome nor adequate. The fifth item is "roads, service lanes etc.", and the petitioners averred that the Corporation has not been taking any interest regarding their improvement, repair and up-keep, and that the Society has been maintaining them and attending to the repair of damage to culverts, roads and bridges. The sixth item is "road-side plantations and parks", and it is stated regarding the same that they were laid and are being maintained by the Society, and that the Corporation has not been taking any interest in their maintenance or up-keep. The seventh item is "scavenging", and the petitioners averred in the writ petition that the Corporation has not yet taken over the same, that there are no dust bins, no public latrines and no arranagement for removing the refuse and filth from public roads and streets, and that in a few streets and roads part-time sweepers have been engaged by the Corporation, but the arrangement is miserable and in most of the areas in the colony the streets are not swept.
(9) According to the petitioners, the Corporation is bound to take over the services and is responsible under the Corporation Act "for providing civic amenities and public conveniences, such as construction, repair and maintenance of roads and lanes, water supply, scavenging, maintenance & up-keep of parks, road-side plantations, drains and drainage works, opening and maintenance of hospitals, dispensaries and child welfare centres, construction and maintenance of public streets, bridges and culverts etc.", but the Corporation has not done any of the aforesaid things for the benefit and convenience of the inhabitants of the colony, and the few services undertaken by it are being attended to in a niggardly and half-hearted fashion.
(10) In these circumstances, the Society wrote a letter (Annexure B). dated 6-6-1965, to the respondents stating that the development of the colony was completed, that about 550 houses were constructed and some were under construction, and that vacant land tax and house tax amounting to lakhs of rupees were being collected by the Corporation from the colony, and requesting that the services, viz. street lighting, water supply, roads, and sewerage system may be taken over by the Corporation. The Society again wrote a letter (Annexure C) on 7-8-1966 stating that although the colony had been in existence for the last four years the Corporation had not provided any civic services despite the fact that the residents have been paying house tax, that the Society came to know that the Corporation decided that till 50 per cent of houses are constructed, the Society should bear the entire cost of maintenance of civic services, that it was unheard of that the residents should pay for the street lights to the Municipal Corporation and bear the charges for the maintenance of other civic services, and at the same time pay taxes also to the Corporation, that it was no longer possible for the Society with its meagre resources either to maintain the civic services or to pay for the street lights to the Corporation, and that they, therefore, request the Corporation to take over the services immediately. It was added that the residents decided not to pay the house-tax till the Corporation decides to maintain the civic services. It appears that the Society wrote further letters, and to a letter, dated 1-1-1969, (which has not been filed by the petitioners as an annexure) the Corporation replied on 21-2-1969 Annexure D) informing the Society that the matter of taking over of the services in Punjabi Bagh colony by the Corporation was considered by the Deputy Commissioners) in a meeting held on 18-1-1969 when deficiencies with respect to various services, viz. (1) roads and storm water drains, (2) water supply (3) sewerage, (4) health and sanitation and (5) horticulture, were pointed out as detailed in the letter, and that the Society should either remove the said deficiencies or deposit the cost thereof so that the work could be taken up by the Corporation. The Society was also requested to hand over to the Corporation the various sites for community centre etc. as per the resolution of the Standing Committee of the Corporation. It appears that some discussions took place between the Corporation and the Secretary of the Society on 11-8-1969 in the room of the Deputy Commissioner (W), and with reference to the said discussion the Corporation wrote a letter (Annexure E), dated 12-8-1969, in which reduced amounts of cost of deficiencies in water supply and sewerage system were mentioned, and the Society was also informed that they will have to do certain items of work enumerated in the letter. The Corporation appears to have written another letter, dated 10-10-1969, but the same has not been produced. There was a further letter from the Corporation, dated 16-10-1969 (Annexure F) in continuation of the earlier letter dated 10-10-1969. In this letter, the Corporation mentioned the cost of deficiencies in respect of the horticulture work as worked out by the Gardens Superintendent, and the Society was asked to indicate the time within which they would be able to complete the horticulture work to the required standard and to the satisfaction of the Commissioner. Mention was also made in the said letter about the cost of deficiencies for dust bins and "Dalaos", and payment of Rs. 3.13 lakhs for the construction of over-head tank. The letter concluded with the request that the Society should arrange for the payment of the cost of deficiencies as intimated in the letters dated 10-10-1969 and 16-10-1969 at an. early date so that the Corporation could take over the services.
(11) The amounts of various deficiencies mentioned by the Corporation in the aforesaid letters are as under :- "Roads & Storm water drains Rs. 13,49,410.00 Water supply system Rs. l,10,000.00 Sewerage system Rs. 1,40,000.- Cost of over-head work Rs. 3,13.000'- Horticulturework Rs. 11,04,360;- Dusi bins etc. Rs. 32,500,- Total Rs. 30,49,270.00 (12) It is clear from the above letters that, according to the Corporation, the development of the colony and the initial laying out of the services by the Society were not in accordance with the approved layout plan and various deficiencies were found, and that the Society should either remove the various deficiencies pointed out by the Corporation or deposit the sum of Rs. 30,49,270.00 with the Corporation before the services could be taken over by the Corporation. In view of the said stand taken by the Corporation, the petitioners filed the present writ petition contending (1) that the Corporation is bound to take over the maintenance of the various services and cannot put forward the payment of the deficiencies as a condition precedent for taking over the services, that the Corporation should take over the services, remove the deficiencies, if any, and then claim the cost of the deficiencies from the Society, and that, in any case, the cost of deficiencies mentioned by the Corporation was arbitrary, and as the petitioners were not informed as to how the various figures were arrived at, the fixation of the figures was one-sided and against the rules of natural justice; and (2) that the Corporation is under an obligation to provide civic amenities and conveniences by virtue of the provisions in the Corporation Act, particularly, section 42 of the Act, that taxes which can be levied by the Corporation under the Act are the price which the rate-payers have to pay for the civic amenities, conveniences and other services which are to be provided by the Corporation under the provisions in the Corporation Act, and that since the Corporation has not been performing its obligatory functions enumerated under section 42 of the Act and has not been providing civic amenities and conveniences to the petitioners and other owners of plots and houses in Punjabi Bagh colony, the Corporation is not entitled to levy and recover any of the taxes, charges or rates from the residents and owners of properties in Punjabi Bagh. They prayed (1) that a writ of mandamus be issued directing the respondents to take over the services in respect of Punjabi Bagh colony and perform all the obligatory functions enjoined upon them by law, and to desist from demanding the deficiencies or, in any case, from requiring payments thereof as a condition precedent for taking over the services and (2) that a writ of prohibition or a direction be issued to the respondents to forbear from claiming or recovering any taxes, charges or rates from the residents and owners of properties in Punjabi Bagh until the various civic functions are undertaken and performed by the respondents, and civic amenities and conveniences are furnished to the petitioners and other residents and owners of properties in Punjabi Bagh.
(13) In opposition to the writ petition, a counter-affidavit of Shri K.L. Kapoor, Junior Town Planner, Delhi, has been filed on behalf of the first respondent. It is stated in the counter affidavit that the revised lay-out plan was approved by Resolution No. 1047, dated 15-10- 1965, subject to the conditions, inter alia, that all the services, viz., water, sewer, storm water drains etc., should be laid by the Society strictly in accordance with the approved standards and the same will have to be approved by the Standing Committee of the Corporation, and that all the open spaces and areas meant for public facilities including Master Plan Green Area should be handed over to the Corporation free of cost. As regards the taking over of the services in respect of the colony, it is stated that according to the policy laid down the Coloniser/Society has to develop the colony according to the approved services plan for water supply, sewerage, storm water drains, roads etc., and building activity is permitted after the services have been tentatively checked by the respective departments of the Corporation the Coloniser/Society has to deposit a certain amount as security for making up any deficiencies; and the Coloniser/Society has to maintain the services in accordance with the Corporation standards till such time as 50/o of the houses have been constructed, after which, on a request by the Coloniser/Society to the Corporation to take over the services, the services laid by the Coloniser/Society are checked by the Corporation and the deficiencies, if any, have either to be made up the Coloniser/Society or in lieu thereof an equivalent amount has to be deposited with the Corporation when only the services would be taken over by the Corporation and maintained by it. It is further stated that in the case of Punjabi Bagh colony, it was not developed according to the lay-out plan, the services laid by the Society were not up to the prescribed standards, and the conditions subject to which the lay-out plan was sanctioned had not been fulfillled, that various deficiencies had been pointed out, but the Society had niether made up the deficiencies nor deposited the costs thereof amounting to Rs. 30,49,270.00, that the Corporation was willing to take over the services of the said colony if the deficiencies are removed or the costs for meeting the deficiencies are paid by the Society, and that till the Corporation takes over the services, it is not bound to provide any of the civic facilities in the colony. It is added that although the services in the colony have not been taken over, the Corporation has been looking after the street lighting as a matter of mere convenience to the residents of the locality, that although the drinking water services has not been taken over, the Corporation with a view to alleviate the hardship of the residents of the colony, agreed to and has been supplying drinking water and collecting charges for the water supplied, that although the colony has not been taken over, the Health Department has engaged sweepers for general cleanliness since 1969, who are supervised by a sanitary guide, and that as the Society had not provided a single dust bin in the entire colony, the refuse is being collected from the open collection sites by the Municipal trucks. As regrads the levy and recovery of taxes, it is stated that under the provisions of the Corporation Act the levy and recovery of property tax on the property situated within the jurisdiction of the Corporation is not dependent upon either the taking over of the services or the providing of civic facilities in the area.
(14) In reply to the said counter-affidavit, the Secretary of the Society, Shri Sadhu Ram, filed a rejoinder, dated 9.4.1970, reiterating the allegations and contentions in the writ petition. He submitted, inter-alia that there was no such policy laid down as has been mentioned in the counter-affidavit, and even if there was any such policy it has no force of law: that it was provided in the resolutions, dated 1.7.1959 and 15.10.1965, that no land covered by the sanctioned layout plan shall be sold or built upon until the services have been laid to the satisfaction of the Commissioner; that the building activity was allowed to be started in the year 1961 which shows that the services were laid to the satisfaction of the respondents, and the latter are, therefore, estopped from alleging that services have not been laid to the satisfaction of the Commissioner; that even if there are any deficiencies, there is no provision in the Corporation Act which entitles the respondents to demand that the deficiencies should be made up or, in any case, make the payment of the cost of the deficiencies a condition precedent for taking over the services and furnishing civic amenities and conveniences; that the Corporation determined the various amounts on account of the alleged deficiencies without reference to and without disclosing even the basis therefore to the Society, and the unilateral determination of the deficiencies is illegal, unjustified and contrary to rules of natural justice; and that the levy and recovery of taxes are connected with the rendering of the essential services as laid down in section 42 of the Corporation Act, and it is incumbent upon the Corporation to provide the said services before they are entitled to levy and recover the taxes as the taxes are fees in lieu of the services to be rendered by the Corporation underthe provisions of the Corporation Act.
(15) A further affidavit of Shri Hira Lal, Deputy Assessor and Collector in the Corporation, dated 8.12.1970, has been filed along with Annexures R-I to R-V on behalf of the respondents. By way of rejoinder to the said further affidavit. the petitioners filed an affidavit of Shri Sadhu Ram. dated 28.1.1971. along with Annexures P-l to P-8. In reply thereto, a further affidavit of Shri Hira Lal, dated 16.2.1971, has been filed along with Annexure R-A on behalf of the respondents.
(16) On the averments in the writ petition and the affidavits filed by both the parties, the first point for consideration is whether the land was developed by the Society according to the lay-out plan and the services .were laid by the Society to the satisfaction of the Commissioner. That the Society had to do so cannot be disputed as the same was one of the conditions imposed in the resolutions (Annexure R-III and R-IV), dated 1.7.1959 and 15.12.1965, by which the lay-out plan was approved or sanctioned. The only quesition. is whether the Society actually did so or not. Shri Sarju Prasad learned counsel for the petitioners, argued that one of the conditions imposed by the aforesaid resolutions was that the land should not be sold or built upon until the services covered by the lay-out plan have been laid to the satisfaction of the Commissioner, that admittedly the building activity had been allowed to be commenced in 1961 and the same implies that the services were laid to the satisfaction of the Commissioner, and that it is not therefore open to the respondents to contend that the services were not so laid. It is true that the resolutions contain such a condition and the building activity was commenced in 1961. The Junior Town Planner stated in his counter-affidavit that building activity was permitted after the services have been tentatively checked by the respective departments of the Corporation. In other words, the condition regarding the granting of permission for commencement of building activity was not being strictly applied, and building activity was being permitted even on the basis of a tentative checking without insisting that the services should have been laid to the satisfaction of the Commissioner. This averment was, no doubt, denied in the rejoinder of Shri Sadhu Ram. But. the averment of the Junior Town Planner is corroborated by the averment in paragraph 8 of the writ petition itself that the development of the land was "almost .completed by the year 1962", and also by the fact that a revised lay-out plan was submitted in 1963 and the same was sanctioned on 15.12.1965. These show that the development of the land and the laying of the services cannot be said to have been completed by 1961 when building activity was permitted. No inference can therefore be drawn from the fact that the building activity commenced in 1961 that the services were completely laid to the satisfaction of the Commissioner even by 1961.
(17) However, Shri Sarju Prasad also relied upon certain recitals in the document, Annexure R-IV, which contains Commissioner's letter No. 355/C &C, dated 29-5-1965, to the Standing Committee of the Corporation, and the Resolution No. 1047, dated 15.12.1965, passed by the Standing Committee after considering the proposals of the Commissioner in the said letter. In this letter, the Commissioner set out the earlier history of the development of the Punjabi Bagh colony, pointed out that the Society submitted a revised lay-out plan, and explained the broad features of the said revised plan. Referring to the services in respect of the colony, the Commissioner stated in more than one place that "the services have already been laid and completed", and stated in one place as under :- "THEservices have already been laid in the colony except for the land now included in the lay-out plan. The services such as water, sewer and storm water drain etc. for the portion now included will have to be got approved from the various Service Departments of the Corporation before laying the same at site."
(18) Finally he recommended that the said revised plan may be approved by the Standing Committee subject to certain conditions of which conditions Nos. 1, 2 and 4 run as under :-
(I)All the services viz. water, sewer and storm water drain for the portion now included in the lay-out plan (area 20.56 acres) will have to be got approved from the various Service Departments of the M.C.D. and the condition laid down by the Service Departments will have to be complied with.
(II)All the services for the portion now included in the lay-out plan (area 20.56 acres) will have to be laid at the site within 12 months of the receipt of the approved services plan of the Society.
(IV)All the open spaces meant for public facilities will be handed over to the Corporation free of cost."
(19) As already stated, the Standing Committee passed a Resolution, No. 1047, on 15.12.1965, accepting the recommendation of the Commissioner and approving the revised lay-out plan subject to the conditions mentioned by the Commissioner with slight modifications which are not material. It is in view of the aforesaid statement of the Commissioner that the learned counsel for the petitioners argued that the services were clearly admitted to have been laid completely to the satisfaction of the Commissioner. He further pointed out that the Corpoation or the Commissioner did not mention any deficiencies in the services laid by the Society till 21-2-1969, when the Corporation sent the letter (Annexure D) pointing out for the first time certain deficiencies with respect to various services, and requiring the Society to either remove the said deficiencies or deposit the cost thereof as pointed out in the letter. The learned counsel argued that the non-mention of any deficiencies for nearly four years after the Commissioner had declared to the Standing Committee in 1965 that the service had already been laid and completed, shows that the mention of deficiencies for the first time in 1969 was just an after-thought. There is considerable force in the argument of the learned counsel. The Commissioner had declared clearly in his letter to the Standing Committee that the services had already been laid and completed by the date of his letter. There is nothing on the record to show that the Corporation had detected any deficiencies in the services and intimated the same to the Society between 1965 and 1969. It was for the first time that mention was made about certain alleged deficiencies in their letter (Annexure D), dated 21-2-1969. In fact, the Society wrote a letter (Annexure B). dated 6-6-1965, and again another letter (Annexure C), dated 7-8-1966, pointing out the services laid by them and requesting that the services may be taken over by the Corporation. The petitioners alleged in paragraph 13 of the writ petition that the respondents took four years to look into the matter, although the Society had informed them as early as 1965 that they should take over the services. This averment that the Corporation took four years to look into the matter was not denied in paragraph 14 of the counter-affidavit of Shri K.L. Kapur. All that was staled in the said paragraph was that it was correct that the Society requested the Corporation to take over the colony and start maintaining the civic services, but when the officers of the Corporation visited the colony they found that the services provided were below the standard, and consequently. the Society was rightly advised either to bring the said services up to the standard or to pay the deficiency cost to the Corporation. But no document has been mentioned or annexed to the counter-affidavit lo show when exactly the deficiencies were found by the officers of the Corporation and whether such deficiencies were intimated to the Society between 1965 and 1969. The non-mention of the deficiencies for about four years clearly supports the suggestion of the learned counsel for the petitioners that the version of the Corporation that there were deficiencies in the service laid by the Society, was an after-thought. In the circumstances, it is not open to the respondents to assert that the Society had not laid the services completely to the satisfaction of the Commissioner in spite of the declaration of the Commissioner referred to above, and it has to be held that the services were laid completely to the satisfaction of the Commissioner as declared by the Commissioner himself as early as 1965 in respect of the entire colony excepting the portion of 20.25 acres included in the lay-out plan in 1965. Shri Sadhu Ram stated in paragraph 8 of his affidavit, dated 28-1-1971, that the said area of 20.25 acres also has since been developed fully. The said averment was not specifically denied by Shir Hira Lal in his affidavit, dated 16-2-1971, and he merely averred that "it is not admitted that the Society has done full development of the area in respect of all item mentioned in section 313 of the Act as obligatory on a Coloniser." This cannot be regarded as denial of the specific averment of Shri Sadhu Ram. The averment of Shri Sadhu Ram has, therefore, to be accepted. In the above view, it is not necessary to go into the contentions on behalf of the petitioners that the respondents cannot put forward the payment of the cost of alleged deficiencies as condition precedent for taking over the services, that the Corporation should take over the services, remove the deficiencies, if any, and then claim the cost of the deficiencies from the Society, and that, in any case, the fixation of the cost of deficiencies by the Corporation was arbitrary, one-sided, against the rules of natural justice, and hence illegal.
(20) The next question for consideration is whether on the finding that the services have been laid by the Society to the satisfaction of the Commissioner, and that it is not open to the respondents to plead that they have not been so laid, the respondents are bound to take over the various services in respect of the Punjabi Bagh colony. As regards this question, the contention on behalf of the petitioners is that although the Society has to lay initially the services to the satisfaction of the Commissioner by reason of the condition imposed in sanctioning the lay-out, on the Society laying the services to the satisfaction of the Commissioner, the Corporation is bound to take over the services and maintain them, firstly because of their assurance to that effect which is implicit in the sanctioning of the lay-out plan and has also been expressly stated in the counter-affidavit of Shri K.L. Kapur, and secondly because the said services are among the obligatory functions of the Corporation enumerated in section 42 of the Corporation Act. The first reason cannot be disputed as the stand-point of the respondents has always been that they will take over the services if they are laid by the Soceity initially to the satisfaction of the Commissioner.
(21) We may notice here an averment in the counter-affidavit of Shri K.L. Kapur that according to a policy laid down, the Coloniser/Society has to maintain the services in accordance with the Municipal Corporation standards till such time as 50% of the houses have been constructed, when only the Society can request the Corporation to take over and maintain the services. The said policy was denied by Shri Sadhu Ram in his rejoinder, and he averred that there is no such policy having the force of law. Shri Kapur has not given any particulars as to when and by which authority the said policy was laid down, and no document to substantiate the same has been produced. It cannot therefore be accepted that 50 /o of the houses have to be built before the services can be taken over and managed by the Corporation.
(22) As regards the second reason, the marginal heading for section 42 is "obligatory functions of the Corporation". The section provides that "it is incumbent on the Corporation to make adequate provision by any means or measures which it may lawfully use or take, for each of the matters" enumerated in clauses (a) to (x) of the section. The words "obligatory functions" and "incumbent" show that the provision in this section is mandatory, and that a statutory duty has been placed upon the Corporation to make adequate provision for each of the matters enumerated in the various clauses of the section, provided, of course, the requirements in the relevant clause or clauses of the section are satisfied in a given case. That the provision in section 42 is mandatory is also clear from the contrast between this section and section 43 which lays down "the discretionary functions of the Corporation" and provides that "the Corporation may in its discretion provides either wholly or in part for all or any of the. matters" enumerated in clauses (a) to (z-a) of that section.
(23) The aforesaid obligation or duty cast upon the Corporation, however, arises only if the requirements in the relevant clause or clauses of section 42 are satisfied in a given case. In the present case, the petitioners have prayed for a mandamus directing the respondents to perform all the obligatory functions enjoined upon them by section 42. They however, set out the facts and circumstances relating to seven services in particular. It is, therefore, sufficient to consider only the said seven services. They are : (1) street lighting, (2) sewerage, (3) storm water drains. (4) drinking water, (5) roads, service lanes etc. (6) roadside plantation and parks, and (7) scavenging.
(24) As regards street lighting, the averment in the writ petition is that the Corporation took it over on 1-9-1967, but that the lighting has been very poor. On the other hand, the averment in the counter-affidavit of Shri K.L. Kapur is that, although the colony has not been taken over as yet by the Corporation, the Corporation has been looking after the street lighting as a matter of mere convenience to the residents of the locality, and that the lighting has not been poor. Shri Sarju Prasad contended that this service is covered by section 42(o) and, as such, is an obligatory function of the Corporation and not merely a matter being looked after as a matter of mere convenience to the residents of the colony, as averred by Shri Kapur in his counter-affidavit Clause (o) of section 42 is as under :- "(O).the lighting, watering and cleansing of public streets and other public places."
(25) The contention of the learned Attorney General on behalf of the respondents is that the clause applies only to lighting of public streets and other public places, and since the streets in the Punjabi Bagh colony have not been declared by the Commissioner as public streets as provided in the Corporation Act, they are not public streets and, therefore, the respondents cannot be said to be under an obligation to provide the street lighting in the Punjabi Bagh colony by virtue of clause (o). He submitted that the respondents, however, have been providing and looking after the street lighting since 1-9-1967 just as a matter of mere convenience to the residents of the colony. He raised a similar contention in respect of some of the other services also, and it is, therefore, convenient to consider them all together after referring to the other services.
(26) As regards sewerage and storm water drains, the contention of the petitioners is that they are covered by clause (a) which is as under :- "(A).the construction, maintenance and cleansing of drains and drainage work and of public latrines, urinals and similar conveniences."
(27) The contention of the Attorney General regarding these services is that they are also connected with the streets of the colony, and since the streets of the colony have not been declared by the Commissioner as public streets, the clause does not apply to the streets in the Punjabi Bagh colony and, therefore, there is no statutory obligation or duty to take over and maintain the said services.
ASregards drinking water, the contention on behalf of the petitioners is that the same is covered by clause (b) of section 42 which is as under :- "(B).the construction and maintenance of works and means for providing supply of water for public and private purposes."
(28) As regards the supply of drinking water, Shri Kapur stated in his counter-affidavit that apart from the deposit of the cost of the alleged deficiencies therein, the Society was asked to lay a 24" main across Najafgarh Nala, that till that portion of water main is laid, it would be difficult to take over drinking water service, that, however, it was notified under the provision of the Municipal Corporation Act that sufficient drinking water was available in the colony, and consequently with a view to over-come the hardship of the residents of the colony, the Corporation agreed to supply water and as such is entitled to be compensated by the way of water charges for the water supplied to the residents. But, in the view taken by us about the laying of the services by the Society to the satisfaction of the Commissioner even by 1965, the question of depositing any cost of deficiencies or laying a water main does not arise, and it has to be held that the respondents are bound to take over and maintain the service of drinking water supply.
(29) As regards roads, service lanes etc., the contention of the petitioners is that they are covered by clauses (n) and (p) of section 42 which read as under :-
"(N)the construction, maintenance, alteration and improvements of public streets, bridges, culverts, causeways and the like."
(P)the removal of obstructions and projections in or upon streets, bridges and other public places."
(30) The contention of the learned Attorney General in respect of these services also is that they are connected with the streets of the colony, and since the streets of the colony have not been declared by the Commissioner as public streets, the clauses (n) and (p) do not apply and, therefore, there is no statutory obligation or duty to take over and maintain the said services.
ASregards road-side plantations and parks, the same are covered, according to the petitioners, by clause (t) of section 42 which is as under : "(T)the laying out or the maintenance of public parks, gardens or recreation grounds."
(31) The petitioners averred in the writ petition that the said services were laid and were being maintained by the Society, and that the Corporation had done practically nothing in the matter. In his counter-affidavit Shri Kapur merely stated that the horticulture services will be looked after by the Corporation only when the colony is taken over. In reply thereto, Shri Sadhu Ram stated in his rejoinder that plots have been reserved for parks, green belt etc., and that the laying out and maintenance of public parks, gardens and recreation grounds are the statutory functions of the Corporation. The service is thus clearly covered by clause (t) of section 42, and in view of our finding regarding the laying of the services to the satisfaction of the Commissioner, no question of depositing any cost of deficiencies in respect of the said service would arise. It follows that it has to be held that the respondents are bound to take over and maintain this service also.
ASregards scavenging, Shri Sarju Prasad contended on behalf of the petitioners that it is covered by clause (c) of section 42 which reads as under :- "(C)the scavenging, removal and disposal of filth, rubbish and other obnoxious or polluted matters."
(32) In paragraph 11 of the writ petition, it is averred that the Corporation has not yet taken over the service, that there are no dust bins, no public latrines and no arrangement for removing the refuse and filth from public roads and streets, that in a few streets and roads part-time sweepers have been engaged by the Corporation, and that the arrangement is hopelessly miserable and most of the area in the colony goes without sweeping. In answer thereto, Shri Kapur stated in his counter-affidavit that although the colony has not been taken over, the Health Department engaged sweepers for general cleanliness since 1969, that the same is being supervised by a sanitary guide, that the Society has not provided a single masonry dust bin in the entire colony, with the result that the refuse is collected from open collection sites by the Municipal trucks. In reply thereto, Shri Sadhu Ram stated in his rejoinder that the position taken on behalf of the respondents previously was that sweepers were provided in June/July 1968, but they have now shifted it to the year 1969, that Punjabi Bagh has mileage of 17.3 of roads and 9.1 of service lanes, that the area of the colony is 580.39 acres, and that no full time sweepers have been working in the locality. He also stated that it is incorrect that the Corporation collects refuse from the colony every day, and that the refuse remains on the spot or is thrown by private sweepers on the vacant plots or in the drains in the area. In other words, the arrangement of scavenging has not been satisfactory and adequate according to the petitioners. But, adequacy of the service provided by the respondents is a question of fact and cannot be decided merely on affidavits. Be that as it may, the fact remains that scavenging, removal and disposal of filth, rubbish and other obnoxious or polluted matters is a statutory obligation under clause (t) of section 42. It has therefore to be held that the respondents are bound to take over this service also and make adequate provision for the same.
(33) Thus, the respondents are bound to take over and maintain the three services of drinking water, road-side plantations and parks, and scavenging.
(34) We shall now consider the contention of the learned Attorney General on behalf of the respondents regarding the other four services of street lighting, sewerage, storm water drains, and roads, service lanes etc. The contention, as stated earlier, is that the said four services relate to or are connected with public streets, that the streets in Punjabi Bagh colony are only private street, and that since the said streets have not become public streets within the meaning of the Corporation Act, the relevant clauses in section 42 are not applicable and the Corporation is not bound to take over and maintain the aforesaid services. For a proper appreciation of the contention, it is necessary to refer to the relevant provisions in the Corporation Act.
(35) It cannot be disputed that the aforesaid four services relate to or are connected with public streets. The. obligation providing street lighting is, under section 42(o). in respect of public streets and public places. Sections 329 and 330 of the Corporation Act also show that the street lighting provided for in the Corporation Act is in respect of public streets and public places. Section 42(a) and sections 239 to 249 show that the services of sewerage and drainage (storm water drains) are also in respect of drains along side or under any public street. The services in respect of roads, service lanes etc. are also connected with public streets as is clear from clauses (n) and (p) of section 42 and sections 298 to 311 of the Corporation Act. It has therefore to be seen whether the streets in Punjabi Bagh colony are public streets within the meaning of the Corporation Act.
(36) Section 2(57) defines "street" as including "any way, road, lane. square, court, alley, gully, passage, whether a thoroughfare or not and whether built upon or not, over which the public have a right of way and also the roadway or footway over any bridge or causeway". Streets may be private or public. Section 2(39) defines a "private street" as meaning "any street, which is not a public street and includes any passage securing access to two or more places belonging to the same or different owners". Section 2(44) defines "public street" as meaning "any street which vests in the Corporation as a public street or the soil below the surface of which vests in the Corporation or which under the provisions of this Act becomes, or is declared to be, a public street".
(37) Chapter Xv of the Corporation Act, which consists of sections 298 to 330, contains provisions regarding streets. Sections 298 to 311 deal with streets, while sections 312 to 316 deal with private streets. Section 298 declares that "all streets within Delhi which are or at any time become public streets, and the pavements, stones and other materials thereof shall vest in the Corporation". It cannot be disputed that the streets in Punjabi Bagh colony are initially private streets belonging to the Society. The question is whether they have become or are declared to be public streets, when alone they will vest in the Corporation as provided in section 298. Section 312 provides that "if the owner of any land utilises, sells, leases out or otherwise disposes of such land for the construction of buildings thereon, shall lay down and make a street or streets giving access to the plots into which the land may be divided and connecting with an existing public or private street". Before dealing with the land in the manner mentioned in section 312, section 313 requires that the owner of the land should submit to the Commissioner a written application with a lay-out plan of the land showing the various particulars regarding streets mentioned in clauses (a) to (e) of the section. It has to be noted that clause (e) requires that the lay-out plan should show "the arrangements to be made for levelling, paving, metalling, flagging, channelling, sewering, draining, conserving and lighting street to streets". Section 313 also empowers the Standing Committee of the Corporation either to accord sanction to the layout plan on such conditions as it may think fit or disallow it or ask for Further information with respect to it. Section 314 empowers the Commissioner to direct alteration or demolition of any street if the owner lays-out or makes any street referred to in section 313, without or otherwise than in conformity with the orders of the Standing Committee.
(38) Sections 315 and 316 are the sections on which the contention of the learned Attorney General is mainly based. They are as Follows:- Section 315 "(1)If any private street, or part thereof is not levelled, paved, metalled, flagged, channelled, sewered, drained, conserved or lighted to the satisfaction of the' Commissioner, he may by notice require the owners of such street or part and the owners of the lands and buildings fronting or abutting on such street or part to carry out any work which in his opinion may be necessary, and within such time as may be specified in such notice.
(2)If such work is not carried out within the time specified in the notice, the Commissioner may, if he thinks fit. execute it and the expenses incurred shall be paid by the owners referred to in sub-section (1) in such proportion as may be determined by the Commissioner and shall be recoverable from them as an arrear of tax under this Act". Section 316 "IF any street has been levelled, paved, metalled, flagged, channelled, sewered, drained, conserved and lighted under the provisions of section 315, the Commissioner may, and on the requisition of a majority of the owners referred to in sub-section (1) of that section shall, declare such a street to be a public street and thereupon the street shall vest in the Corporation."
(39) SUB-SECTION (1) of section 315 provides that if any private street or a part thereof is not levelled etc. to the satisfaction of the Commissioner, he may require the owner or owner of the street and the owner or owners of the lands or building fronting or abutting on such street to carry out within a specified time any work which in his opinion may be necessary.- If such work is not carried out within the time specified, sub-section (2) of section 315 empowers the Commissioner, if he thinks fit to do so, to carry out the work himself and recover the expenses incurred from the owner. Section 316 provides that if any street has been levelled etc. "under the provisions of section 315", the Commissioner may declare such a street to be a public street. It also provides that the Commissioner shall so declare if a majority of the owners referred to in sub-section (1) of section 315 submit a requisition that the street should be declared as a public street. On such a declaration the section states that the street shall vest in the Corporation.
(40) The argument of the learned Attorney General is that the only provision under which private streets, like the streets in Punjabi Bagh colony, can become or can be declared to be public streets is section 316, that there is no statutory duty cast upon the Commissioner to declare such private streets as public streets unless section 316 applies, that the said section 316 does not apply unless section 315 applies in view of the words "under the provisions of section 315" in section 316, that section 315 cannot apply to the streets in Punjabi Bagh colony as they have not been levelled, paved, metalled etc. on a notice by the Commissioner under section 315(1) requiring the owners mentioned in the sub-section to carry out such work, and admittedly the Commissioner has not got any such levelling etc. executed on his own under section 315(2), and that consequently, the Commissioner is not under a statutory duty under section 316 to declare the streets in Punjabi Bagh colony as public streets, with the result that they are not public streets within the meaning of the Corporation Act which vest in the Corporation, and no question of any obligation to take over and maintain the four services in question arises.
(41) We are unable to accept the above argument as, in our opinion. the interpretation sought to be placed on section 315 and 316 by the learned Attorney General leads to an anomaly. It is true that section 316 provides that if any street has been levelled, paved, metalled etc. "under the provisions of section 315", the Commissioner may declare the same to be a public street, and shall declare it as a public street if a majority of the owners referred to in section 315(1) require him to do so. It is also true that sub-section (1) of section 315 states that if any private street is not levelled etc., the Commissioner may require the owners referred to in the sub-section to carry out such work, and sub-section (2) states that if such work is not so carried out by the owners the Commissioner may get the work executed and recover the cost of the same from the owners. But, if the argument of the learned Attorney General is accepted, private streets which are levelled etc. by the owners even without being required by the Commissioner to do so, would not fall within section 316, and the owners cannot require the commissioner to declare them as public streets. In other words, the owners of private streets and the lands and buildings fronting or abutting on such streets who level them etc. after receiving a notice from the Commissioner can require the Commissioner to declare them as public streets, while the same owners, if they do the levelling etc. on their own, cannot require the Commissioner to declare the streets as public streets. This, in our opinion, is an anomaly and could not have been intended by the legislature. The purpose of section 315 is merely to empower the Commissioner either to get private streets levelled etc. by the owners referred to in section 315(1) if they had not been so levelled etc., and in default, to get the levelling etc. executed and recover the expenses incurred from the said owners. The purpose of section 316 is to provide that the Commissioner may declare such streets which have been levelled etc. as public streets, and that he shall so declare if the majority of the owners referred to in section 315(1) require him to do so. The emphasis in both the sections is on the levelling etc. of the streets, and not on the question whether such levelling etc. has been done by the owners on their own on a notice by the Commissioner. There is no reason at all why owners of private streets who level etc. the streets on their own should be at a disadvantage, while they or other owners who wait for a notice from the Commissioner and then level etc. their streets have the advantage of getting the streets declared as public streets. Reading sections 315 and 316 together, the legal position, in our opinion, is that when private streets are levelled etc. and the owners referred to in section 315(1) desire to have them declared as public streets, a majority of them, if not all, may require the Commissioner to so declare them, and then the Commissioner is bound to so declare. In the present case, we have held that the services were laid by the Society to the satisfaction of the Commissioner, and the Society, representing the members thereof who are the owners of the streets and the lands and buildings fronting or abutting on such streets, requested the Commissioner to take over the services by which it really meant that the streets may be declared as public streets and the services may be taken over and maintained. The provision under section 316 is, therefore, attracted and the Commissioner has no option and is bound to declare the streets in the colony as public streets. As a consequence of such declaration the streets vest in the Corporation by virtue of section 298, and the Commissioner is thereupon bound to take over the four services in question and maintain them by virtue of section 42 and other relevant sections which have already been referred to above.
(42) Even otherwise, i.e. even if section 315(1) is applicable only when the streets are levelled etc. by the owners after the service of a notice by the Commissioner, the said requirement is, in our opinion, satisfied in the present case. As held by us, the services were laid by the Society to the satisfaction of the Commissioner by 1965. The Society stated in its letter (Annexure B), dated 6-6-1965, that all the roads had been constructed and most of them have even been carpetted. It is true that a formal letter from the Commissioner written prior to 1965 requiring the Society to level the streets has not been brought on record by the petitioners. But, such requisition is implicit in the fact that when the Society submitted its revised lay-out plan of the colony, the Commissioner put up the same to the Standing Committee of the Corporation along with a letter (Annexure R-III), dated 22-6-1959, wherein stated, inter alia, that the Society had fulfillled the conditions required for the sanction of the lay-out plan, and recommended the approval of the layout plan subject to certain conditions which have already been extracted earlier. Condition Iii of the said conditions was that the Coloniser ' should deposit a cash security at the rate of 25 n.p. per sq. yard of the gross area covered under the lay-out plan as a guarantee for developing the land and providing the services to the satisfaction of the Commissioner. The reference to the provision of the services clearly shows that the Society was required to provide the services to the satisfaction of the Commissioner, and the stipulation in the condition No. Iii is a notice by the Commissioner to the Society that it should provide the services to his satisfaction. The said recommendation of the Commissioner was accepted and sanctioned by the Standing Committee on 1-7-1959 (vide Annexure R-III), the Society was informed about the same, and it proceeded to develop the land and lay the services in accordance with the lay-out plan. The development and the laying of the services were completed by the Society to the satisfaction of the Commissioner as held by us. Thus, the entire sequence of events clearly shows that the Society completed the development of the land and the laying of the services on the requisition of the Standing Committee and the Corporation, and the same tantamounts, in our opinion, to a notice by the Commissioner under section 315(1) to the Society and a compliance with the notice by the Society. After such Compliance, the Society, which represents all its members, requested the Commissioner to take over the services in the colony and maintain them, and consequently section 316 is attracted, with the result that the Commissioner is bound to declare the streets in the colony as public streets under section 316 and take over the four services in question and maintain them.
(43) Thus, either way, the respondents are bound to take over and maintain the four services in question also.
(44) The second contention of Shri Sarju Prasad on behalf of the petitioners is that the Corporation has not taken over the essential services including sewerage, storm water drains, drinking water, roads, service lanes, road-side plantation, parks and scavenging, that the said services are being maintained by the Society itself at its own cost, and .yet the Corporation has been levying and collecting about rupees five lakhs per year towards vacant land tax and property tax which includes general tax, water tax, fire tax and scavenging tax since 1962-63, that there is no return by way of civic amenities and facilities which the Corporation is under statutory obligation to provide, that taxes are, indeed, the price which rate-payers pay in lieu of the services rendered by the Corporation, that there is no justification for the levying of the taxes in question when the Corporation has not been providing civic amenities and facilities, and that the levy is, therefore, an illegal imposition and an unauthorised exaction. In short, the contention is that the Corporation is not entitled to levy and collect, and the petitioners are not liable to pay, the aforesaid taxes unless and until the Corporation takes over the services and provides civil amenities and conveniences. This contention is based on two ground, viz. (1) that the taxes mentioned above are really fees in nature, and the provision of civic amenities and conveniences is the quid pro quo for the levy of the said fees, and (2) that in any case, i.e even if the taxes levied are not fees, the provisions in the Corporation Act which empower the Corporation to levy the taxes show that the taxes are to be levied for the discharge of various functions, particularly the obligatory functions mentioned in section 42 of the Corporation Act.
(45) On the other hand, the contentions of the learned Attorney General in reply to the above contentions are (1) that the petitioners have not put forward in their writ petition the case that the taxes levied by the Corporation are in the nature of fees, and the said contention sought to be urged on behalf of the petitioners should not-be allowed to be raised, (2) that the taxes levied and collected by the Corporation from the petioners are not fees, and (3) that the Corporation is entitled to levy and collect the said taxes under the provisions of the Corporation Act irrespective of the question whether the obligatory functions under section 42 are discharged or not.
(46) It is true that the petitioners did not use the word "fees" in their writ petition. But, a perusal of the various averments in the writ petition, particularly, the averment in paragraph 16 that "indeed, tax is the price which rate-payers have to pay in lieu of the services rendered by the local authority" shows that the point that the taxes are fees and the provision of civic amenities and conveniences is the quid pro quo for the levy of such fees, though not expressly mentioned, is implicit therein. We, therefore, heard the arguments of the learned counsel for both the parties on the said point also.
(47) The distinction between a tax and a fee has been pointed out by the Supreme Court in a number of decision. In Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of sri Shirur Mutt, B.K. Mukerji J. (as his Lordship then was) cited the definition of tax given by Latham C.J. in Matthews v. Chicory Marketing Board, 60 C.L.R. 263, 276.(2) viz. "A tax is a compulsory exaction of money by public authority for public purposes enforceable by law and is not payment for services rendered", and pointed out that the characteristic of tax is that "it is an imposition made for public purpose without reference to any special benefit to be conferred on the payer of the tax", that the said characteristic "is expressed by saying that the levy oFtax is for the purposes of general revenue, which when collected forms part of the public revenues of the State", that "asthe object of tax is not to confer any special benefit upon any particular individual, there is, as it is said, no element of quid pro quo between the tax payer andthe public authority", and that "another feature of taxation is that as it is a part of the common burden the quantum of imposition upon the tax payer depends generally upon his capacity to pay". As regards a fee, the learned Judgs observed as follows:- "Afee is generally defined to be a charge for a special service rendered to individuals by some governmental agency. The amount of fee levied is supposed to be based on the expenses incurred by the Government in rendering the service, though in many cases the costs are arbitrarily assessed."
(48) Referring to an argument that a fee is something voluntary which a person has got to pay if he wants certain services from the Government, but there is no obligation on his part to seek such services and if he does not want the services, he can avoid the obligation, the learned Judge observed as under:- "WEthink that a careful examination will reveal that the element of compulsion or coerciveness is present in all kinds of imposition, though in different degress, and that it is not totally absent in fees. This, therefore, cannot be made the sole or even a material criterion for distinguishing a tax from fees".
(49) As regards the distinction between a tax and a fee, the learned Judge observed as follows:- "THEdistinction between a tax and a fee lies primarily in the fact that a tax is levied as a part of a common burden, while a fee is a payment for a special benefit on privilege. Fees confer a special capacity, although the special advantage, as for example in the case of registration fees for documents or marriage licenses, is secondary to the primary motive of regulation in the public interest. Public interest seems to be at the basis of all impositions, but in a fee it is some special benefit which the individual receives. As Seligman says, it is the special benefit accruing to the individual which is the reason for payment in the case of fees; in the case of a tax, the particular advantage if it exists at all is an incidental result of State action."
(50) Continuing, the learned Judge further observed as follows:- "IF,as we hold, a fee is regarded as a sort of return or consideration for services rendered, it is absolutely necessary that the levy of fees should, on the face of the legislative provision be co-related to the expenses incurred by Government in rendering the services. As indicated in article 110 of the Constitution, ordinarily there are two classes of cases where Government imposes 'fees' upon persons. In the first class of cases, Government simply grants a permission or privilege to a person to do something, which otherwise that person would not be competent to do extracts fees either heavy or moderate from that person in return for the privilege that is conferred. A most common illustration of this type of cases is furnished by the license fees for motor vehicles. Here the costs incurred by the Government in maintaining an office or bureau for the granting of licenses may be very small and the amount of imposition that is levied is based really not upon the costs incurred by the Government but upon the benefit that the individual receives. In such cases, according to all the writers on public finance the tax element is pre-dominant, and if the money paid by license holders goes for the up keep of roads and other matters of general public utility, the license fee cannot but be regarded as a tax.
(51) In the other class of cases, the Government does some positive work for the benefit of person and the money is taken as the return for the work done or service rendered. If the money thus paid is set apart and appropriated specifically for the performance of such work and is not merged in the public revenues for the benefit of the general public, it could be counted as fees and not a tax. There is really no generic difference between the tax and fees and as said by Seligman, the taxing power of a State may manifest itself in three different forms known respectively as special assessments, fees and taxes".
(52) Observations to the same effect have been made in Sri Jagannath Ramanuj Das v. State of Orissa, Radial Panachand Gandhi v. State of Bombay, , Hingir Rampur Coal Co. v. State of Orissa, ; and Nagar Mahapalika, Varanasi v. Durga Das Bhattacharya , cited at the Bar. It is, however, sufficient to refer only to the observations of Gajendragadkar J. (as his Lordship then was) in Hingir-Rampur case wherein the distinction between a tax and a fee has been summarised as follows (page 464): "IT is true that between a tax and a fee there is no generic difference. Both are compulsory exactions of money by public authorities; but whereas a tax is imposed for public purposes and is not, and need not, be supported by any consideration of service rendered in return, a fee is levied essentially for services rendered and as such there is an element of quid pro quo between the person who pays the fee and the public authority which imposes it. If specific services are rendered to a specific area or to a specific class of persons or trade or business in any local area, and as a condition precedent for the said services or in return for them cess is levied against the said area or the said class of persons or trade or business the cess is distinguishable from a tax and is described as a fee. Tax recovered by public authority invariably goes into the consolidated fund which ultimately is utilised for all public purposes, whereas a cess levied by way of fee is not intended to be, and does not become, a part of the consolidated fund. It is earmarked and set apart for the purpose of services for which it is levied. There is, however, an element of compulsion in the imposition of both tax and fee. When the Legislature decides to render a specific service to any area or to any class of persons, it is not open to the said area or to the said class of persons to plead that they do not want the service and therefore they should be exempted from the payment of the cess. Though there is no element of quid pro quo between the tax-payer and the public authority there is no option to the tax-payer in the matter of receiving the service determined by public authority. In regard to fee there is, and must always be, co-relation between the fee collected and the service intended to be rendered. Cases may arise where under the guise of levying a fee Legislature may attempt to impose a tax; and in the case of such a colourable exercise of legislative power courts would have to scrutinise the scheme of the levy very carefully and determine whether in fact there is a co-relation between the service and the levy, or whether the levy is either not co-related with service or is levied to such an excessive extent as to be a pretence of a fee and not a fee in reality. In other words, whether or not a particular cess levied by a statute amounts to a fee or tax would always be a question of fact to be determined in the circumstances of each case."
(53) The relevant provisions of the Corporation Act have to be examined now in the light of the principles laid down in the decisions referred to above. Chapter Viii of the Act, which consists of sections 113 to 184, contains provisions regarding taxation. Section 113 empowers the Corporation to levy the various kinds of taxes enumerated therein' "for the purposes of this Act". One of them is "property taxes". Section 114 provides that save as otherwise provided in the Act, the property taxes shall be levied on lands and buildings in Delhi, and shall consist of (a) a water tax, (b) a scavenging tax, (c) a fire tax, and (d) a general tax. Chapter Vii of the Act, which consists of sections 99 to 112, contains provisions regarding Revenue and Expenditure. Sections 99 to 107 deal with "the Municipal Fund". Sub-section (1) of section 99 provides, inter alia, that save as otherwise provided in the Act, all monies raised by any tax, rate or cess levied for the purposes of the Act, and all fees collected and all fines levied under the Act or under any rule, regulation or bye-law made there under, shall form one Fund to be entitled "the Municipal Fund of Delhi". Sub-section (2) of the said section provides that the Municipal Fund shall be held by the Corporation in trust for the purposes of the Act subject to the provisions contained in the Act, and that it shall be maintained in the following four accounts, namely:-
"(A)the Electric Supply Account relating to all moneys received by or on behalf of the Corporation in respect of the operations of the Delhi Electric Supply Undertaking;
(B)the Transport Account relating to all moneys received by or on behalf of the Corporation in respect of the operations of the Delhi Transport Undertaking;
(C)the Water Supply and Sewage Disposal Account relating to all moneys received by or on behalf of the Corporation in respect of the operations of the Delhi Water Supply and Sewage Disposal Undertaking; and (D)the General Account relating to all moneys received by or on behalf of the Corporation other than those specified in clause (a) or clause (b) or case (c)."
(54) Section 105 deals with the application of the Municipal Fund. Sub-section (1) of the section provides that the monies credited from time to time to the Municipal Fund shall be applied in payment of all sums, charges and costs necessary for carrying out the provisions of the Act, and of the rules, regulations and bye-laws made there under, or of which payment is duly directed, sanctioned or required by or under any of the provisions of the Act. Sub-section (2) of the said section provides that such monies shall likewise be applied in payment of all sums payable out of the Municipal Fund under any other enactment for the time being in force. It has to be noted that according to section 99 all monies raised by way of taxes, rates, cesses and fees form one Fund which is entitled "the Municipal Fund of Delhi", and according to section 105 the monies credited to the Municipal Fund can be applied in payment of all sums charges and costs necessary for carrying out the provisions of the Act and of the rules, regulations and bye-laws made there under. In other words, the various amounts levied and collected under the Act as taxes form part of the general revenue of the Corporation and monies from the said general revenue are applied for all purposes under the Act, rules, Iregulations and bye-laws. As pointed out in the decisions referred to above, one of the important characteristics of a tax is that it is levied for the purposes of general revenue, and when collected forms part of the public revenue of the Public Authority. Also, one of the tests for deciding whether amounts collected are taxes or fees is to see whether the amounts so collected are earmarked and utilised for a specific purpose or for the purposes of the individual or groups of individuals from whom the amounts are collected, or are utilised for various purposes of general public utility. If the amounts are utilised for general public purposes, they have to be regarded as taxes and not as fees. In the present case, as all the taxes levied and collected under the Corporation Act merge into one general Fund of the Corporation and amounts from that Fund are utilised for all public purposes under the Corporation Act, the amounts have to be regarded as taxes and not as fees. It is true that section 99(2) provides that the Municipal Fund shall be maintained in four specified accounts. But, the mere maintenance of the said four accounts does not mean that the amounts levied and collected as taxes are earmarked for a particular purpose or for the purpose of the individual or group of individuals from whom the amounts are collected. There is no provision in the Act to that effect. In view of the clear provision in section 99(1) that all the amounts levied and collected as taxes shall form one Fund, and the provision in section 105 that the monies from the Fund shall be applied in payment of all sums, charges and costs necessary for carrying out the provisions of the Act, rules, regulations and bye-laws, the amount cannot be regarded as fees and can only be regarded as taxes. Consequently, there can be no element of any quid pro quo attached to the said amounts. Therefore, the argument of Shri Sarju Prasad that the amounts levied and collected as taxes from the petitioners are in the nature of fees, and that the provision of civic amenities and conveniences under the Act is the quid pro quo for the levy of the said fees, cannot be accepted.
(55) The other argument of the learned counsel is that even if the amounts levied and collected from the petitioners are taxes and not fees, the provisions in the Corporation Act which empower the Corporation to levy the taxes show that the taxes are to be levied only for the discharge of various civic functions, particularly the obligatory functions mentioned in section 42 of the Corporation Act, and therefore the discharge of the various functions and the provision of civic amenities and conveniences is a condition precedent for the levy of the taxes. This argument is really two-fold. The first limb of the argument is that the Corporation Act empowers the Corporation to leyy and collect taxes for the purposes of the Act which include the obligatory functions under section 42, and therefore unless those functions are performed the Corporation is not entitled to levy the taxes. The second limb of the argument is that the provisions of the Corporation Act which provide for the levy of specified taxes lay down the conditions under which the said specified taxes shall be levied for specified purposes, and therefor", unless the conditions are satisfied and the specified purposes are present the specified taxes cannot be levied.
(56) As regards the first limb of the argument, it is true that section 113 of the Corporation Act empowers the Corporation to levy the taxes enumerated in the section for the purposes of the Act. We are concerned in this case with property taxes which are levied under section 114 on lands and buildings in Delhi. It is also true that section 105 states that monies from time to time credited to the Municipal Fund shall be applied in payment of all sums, charges and costs necessary for carrying out the provisions of the Act. It is again true that section 42 enumerates the obligatory functions of the Corporation, and therefore all sums, charges and costs necessary for performing the said obligatory functions have to be met from out of the Municipal Fund in which are included the property taxes. But, that does not, in our opinion, mean that the performance of the obligations under section 42 and the levy of the taxes under section 113 are dependent upon each other. Both the sections are mandatory, and the Corporation is as much bound to levy taxes by reason of the provisions in section 113 as it is bound to perform the obligations mentioned in section 42. Neither section refers to the other nor makes the action under one dependent on the other. In the absence of any words to that effect in either of the sections, it has to be held that each of the sections operates independent of the other. The Corporation is entitled to levy and collect taxes as provided in section 113 and other sections irrespective of the performance of the functions mentioned in section 42, and it cannot be contended that unless the said functions are performed by the Corporation, no taxes can be levied and collected by it. So far as the obligatory functions mentioned in section 42 are concerned, the Corporation is bound to perform them in accordance with the provisions in the section, and if it fails to do so, the remedy is to get the performance of the obligatory functions enforced by a Court of law. The first limb of the argument of the learned counsel has therefore to be rejected as untenable.
(57) As regards the second limb of the argument, reference has to be made to the provisions in the Corporation Act relating to the taxes complained of by the petitioners. As stated earlier, we are concerned in this writ petition with only property taxes which are one of the taxes which the Corporation is empowered to levy by section 113. Section 114 provides that save as otherwise provided in the Act, the property taxes shall be levied on lands and buildings in Delhi, and shall consist of (a) a water tax, (b) a scavenging tax, (c) a fire tax, and(d) a general tax.
(58) Section 114(1)(a) states that the water tax levied by the Corporation shall be "of such percentage of the rateable value of lands and buildings as the Corporation may deem reasonable for providing water supply in Delhi". Section 115(1) provides that "save as otherwise provided in this Act, the water tax shall be levied only in respect of lands and (A)to which a water supply is furnished from, or which are connected by means of pipes with, municipal water works; or (B)which are situated in any portion of Delhi in which the Commissioner has given public notice that sufficient water is available from municipal water works for a reasonable supply to all the lands and buildings in the said portion."
(59) The Commissioner had given a public notice (Annexure R-I) such as is mentioned in clause (b) of section 115(1) on 23.4.1962 with reference to the Punjabi Bagh colony. The necessary condition was thus complied with, and therefore the Corporation was entitled to levy water tax.
SECTION 114(1)(b) states that the scavenging tax leviable by the Corporation shall be: "OFsuch percentage of the rateable value of lands and buildings as the Corporation may deem reasonable for providing for the collection, removal and disposal by municipal agency of all filth and polluted and obnoxious matter from latrines, urinals and cess pools and for efficiently maintaining and repairing the municipal drains constructed or used for the reception or conveyance of such filth or polluted and obnoxious matter,"
SECTION 115(2) provides that:
"SAVEas otherwise provided in this Act, the scavenging .tax shall be levied only in respect of lands and buildings -
(A)in which there is a latrine, urinal cesspool, bathing place or cooking place connected with a municipal drain; or (B)which are situated in any portion of Delhi in which the Commissioner has given public notice that the collection, removal and disposal of all filth and polluted and obnoxious matter from latrines, urinals and cesspools will be undertaken by municipal agency: PROVIDED that the said tax shall not be levied in respect of any land or building, in or upon which, in the opinion of the Commissioner, no filth or polluted and obnoxious matter accumulates or is deposited".
(60) The Commissioner had given a public notice (Annexure R-II) such as is mentioned in clause (b) of section 115(2) with reference to Punjabi Bagh colony on 28-7-1967. The Corporation was thus entitled to levy scavenging tax also.
(61) It may be stated that the Corporation made available water supply and scavenging facilities. According to the petitioners, however, the water supply is not adequate and the water is neither pure nor wholesome for human consumption. The scavenging facilities also are not adequate according to the petitioners. The said allegations, which are denied by the respondents, involve questions of fact which cannot be decided satisfactorily on the basis of affidavits. The question is therefore left open, and it is open to the petitioners to take such steps as are open to them in law, if so advised.
(62) As regards fire tax, section 114(1)(c) states that a fire tax leviable by the Corporation shall be: "OFsuch percentage of the rateable value of lands and buildings as the Corporation may deem reasonable for providing for the expense necessary for the conduct and management of the Fire Service Undertaking and for the protection of life and property in the case of fire".
(63) Section 115(3) provides that: "THEfire tax shall be levied in respect of all lands and buildings in Delhi in respect of which the general tax is levied or would have been levied but for the exemption specified in sub-section (4): Provided that the fire tax shall not be levied in any rural area until the Commissioner has given public notice that the Corporation has undertaken to render fire service in that area through the agency of the municipal fire-brigade".
(64) Shri Hira Lal stated in para 6 of his counter-affidavit that general and fire tax was levied in the Punjabi Bagh colony with effect from 1-4-1962. This was not denied in the rejoinder of Shri Sadhu Ram. Further, a notification No. F. 9/5/59 R & S (Annexure R-A) was issued by the Corporation on 28-12-1959 in exercise of the powers conferred by clause (a) of section 507 of the Corporation Act with the previous approval of the Central Government declining that Punjabi Bagh colony shall cease to be a rural area. It has therefore become an urban area by virtue of the definition of "urban area" in section 2(61) of the Corporation Act which states that "urban areas" means the areas of Delhi which are not rural areas. As it is no longer a rural area, no public notice such as is mentioned in the proviso to section 115(3) was therefore necessary, and the Corporation was therefore entitled to levy fire tax.
(65) According to the petitioners, the nearest fire station is at Moti Nagar which is at a distance of about five miles from Punjabi Bagh colony. On the other hand, according to the supplemental affidavit of Shri Hira Lal, dated 16-2-1971, fire service is at the beck and call of the residents of Punjabi Bagh colony, and Moti Nagar Fire Station is about one mile only from the limits of Punjabi Bagh and not five miles. These averments and counter-averments involve a question of fact which cannot be decided on the basis of affidavits only. The question is therefore left open.
Lastly, 114(1)(d) states that a general tax leviable by the Corporation shall be:-
(I)of not less than ten and not more than twenty per cent of the rateable value of lands and buildings within the urban areas, and (II)on lands and buildings within the rural areas at such lower rates and with effect from such date as may be determined by the corporation "
(66) As stated earlier, Punjabi Bagh colony had become an urban area. The Corporation was therefore entitled to levy general tax.
(67) Thus, the second part also of the argument of the learned counsel for the petitioners cannot be accepted.
(68) For the above reasons, we allow the writ petition partly and direct respondents I and 2 to declare the streets in the Punjabi Bagh colony as public streets, and to take over the services of (1) street lighting, (2) sewerage, (3) storm water drains, (4) drinking water, (5) roads, service lanes etc., (6) road-side plantations and parks and (7) scavenging in respect of Punjabi Bagh colony and maintain the same at the cost of the Corporation. In the circumstances of the case, we direct the parties to bear their own costs in this writ petition.