IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.09.2011 CORAM THE HONOURABLE MR. JUSTICE D. MURUGESAN AND THE HONOURABLE MR. JUSTICE K.K.SASIDHARAN W.P.Nos.20434, 20435 of 2009, 304 and 10682 of 2002, 755, 7459, 8433, 33680 of 2003, 6006, 6256, 6926, 10440, 29434, 30602 of 2004, 2636, 4409, 11821, 11822,16683, 17291, 20969, 24805,28785, 33278, 33279, 33505 of 2005, 6471, 7824, 30290, 34741, 34702 of 2006, 19839, 11632, 17436, 21751, 24002, 24590 of 2009, 19744, 3782, 3783, 14670, 14201, 14202, 24153, 16464, 16465 of 2010, 7884 of 2011 and connected Mps. Sumanth and Company ..Petitioner in WP.20434/09, Mylapore, Chennai 20435/09, 21751/09 S.Mangilal Baid ...Petitioner in W.P.304 of 2002 Naryana Guruviah Chetty's Estate and Charities rep by its Honorary Secretary Mr.V.Sethuram Chennai ...Petitioner in W.P.10682 of 2002 1. A.K.Srivathsan 2. A.K.Sridharan 3. A.K.Sriram 4. A.K.Srikanthan 5.A.K.Srimukundhan All are rep by their Registered Power Agent Mr.Kamal Lunawath ..Petitioner in W.P.755 of 2003 K.Vasudevan rep by his Power of Attorney Agent Mr.Kishore Kumar Gokaldas Chennai ...Petitioner in W.P.7459 of 2003 V.Jagannathan ...Petitioner in W.P.8433 of 2003 Ceebros Hotesl(P) Ltd rep by its Managing Director Mr.C.Subba Reddy Chennai ...Petitioner in W.P.33680 of 2003 https://hcservices.ecourts.gov.in/hcservices/ S.Natarajan Rep by his Power Agent Mr.M.Chandru Chennai ...Petitioner in W.P.6006 of 2004 M/s.Deccan Estates of Construction (P) Ltd Rep by its Director Mr.A.Nirmal Gardhia Chennai ...Petitioner in W.P.6256 of 2004 M.Chandru ..Petitioner in W.P.6926/2004 4409/2005, 33505/2005, 7824/2006,, 34702/2006 17436 of 2009, 24590 of 2009 Bharat Kumar K.Kamdar ..Petitioner in W.P.10440 of 2004 1. M/s.Hosak Industries 2. M/s.Rabia Leather Industries Ltd Rep by their Power Agent Mr.V.Jaggannathan Chennai ...Petitioner in W.P.29434 of 2004 M.Baskaran ...Petitioner in W.P.30602 of 2004 1.P.S.Surana 2.Leelavathi Surana 3.Vinod Sruana 4.Rashmi Surana ...Petitioner in W.P.2636 of 2005 1 to 4 rep by their Power of Attorney Agent Mr.Prakash Mal Surana Chennai M/s.Raja Muthaiah Chettiar and Charitable Educational Trust by its Managing Trustee Mr.MAM Ramasamy Rep by its power Agent M/s.Chaitanya Builders and Leasing (P)Ltd ...Petitioner in W.P.11821/2005 Kamalesh Kumar Seth ...Petitioner in W.P.11822 of 2005 33278 of 2005 Shyam G.Duseja ...Petitioner in W.P.16683 of 2005 https://hcservices.ecourts.gov.in/hcservices/ 1. Harshad V.Doshi 2. Pravin Jain 3. Manju Jain 4. Yogira Jain 5. Hetal M.Doshi 6. Yashmathi H.Doshi All rep by their Power Agent Mr.Mehul J.Doshi ...Petitioners in W.P.17291 of 2005 S.Sathishkumar ...Petitioner in W.P.20969 of 2005 Kishorkumar Gokaldas ...Petitioner in W.P.24805 of 2005 Cosmo Foundations Ltd thro its Director Vimallamma Chennai ..Petitioner in W.P.28785 of 2005 A. Nirmal Gadhiya ..Petitioner in W.P.33279/05 1. Rafiqua Asroph Ali 2. Minor Riyasudeen 3. Minor sirasudeen Petitinoers 2 & 3 rep by Motor & next friend 1st petitioner 4. Nirmal Gadhiya .. Petitioners in W.P.6471/06 M/s. Espee Engineering works Rep. by its proprietor Mr.S. Periyannan .. Petitioner in W.P.30290/06 R. Ravindran ..Petitioner in W.P.34741/06 S. Venkatasubramaniyan .. Petitioner in W.P.19839/09 M/s. Buhari Hotels & Resorts Pvt. Ltd, Rep. by its power of Agent M/s. Chaitanya Builders and Leasing Pvt. Ltd., Chennai. .. Petitioners W.P.11632/09 K. Ramakrishnan ..Petitioner in W.P.24002/09 M. Arivazhagan ..Petitioner in W.P.19744/2010 Pradeep Bhandari .. Petitioner in W.P.3782/2010, 3783/2010 https://hcservices.ecourts.gov.in/hcservices/ M. Krishnasamy ..Petitioner in W.P.14670/10 Rajendra R.Mehta ..Petitioner in W.P.14201/2010, 14202/2010, 7884/2011 M/s.Sri Kousalya Construction Ltd, Rep. by its Director Mr.Y.Meera Reddy. ..Petitioner in W.P.24153/2010 M/s. Mittulaul Lalah & Sons Chennai .. Petitioner in W.P.16464/2010 16465/2010. vs State of Tamilnadu rep. by its Secretary to Government, Ministry of Housing and Urban Development Fort St. George, Chennai ..Ist Respondent in WP 20434, 20435/09, 10682/02, 755/2003, 33680/03, 17291/05, 19839/09, 11632/09, 17436/09, 21751/09, 24002/09, 24590/09, 19744/10 3782/10, 3783/10, 14201/10, 14202/10, 24153/10, 16464/10, 16465/10, 7884/2011 R2 in WP 7459/03, 24805/05 The Member Secretary Chennai Metropolitan Development Authority, Thalamuthu Natarajan Building, No.8, Gandhi Irwin Road, Chennai-600 008 ..2nd Respondent in WP 20434, 20435/09, 10682/02, 755/2003, 33680/03, 17291/05, 19839/09, 11632/09, 17436/09, 21751/09, 24002/09, 24590/09, 19744/10 3782/10, 3783/10, 14201/10, 14202/10, 24153/10, 16464/10, 16465/10, 7884/2011 R1 in WP 304/02, 7459/03, 8433/03, 6006/04, 6256/04, 6926/04, 10440/04, 29434/05, 30602/04, 2636/05, 4409/05, 11821/05, 11822/05, 16683/05, 20949/05, 24805/05, 28785/05, https://hcservices.ecourts.gov.in/hcservices/ 6471/06, 7824/06, 30290/06, 34741/06, 34702/06, 14670/10 Respondent in WP 33278/05, 33279/05, 33505/05 The Commissioner, Corporation of Chennai, Chennai ..2nd Respondent in WP 14670/10 The Chairman Cum Managing Director, Chennai Metro Water and Sewerage Board, Chennai-600 002 ..3rd Respondent in WP 20434, 20435/09, 10682/02, 755/2003, 7459/03, 33680/03, 24805/05, 19839/09, 11632/09, 17436/09, 21751/09, 24002/09, 24590/09, 19744/10, 3783/10, 14202/2010, 24153/10, 16464/10,7884/2011 R2 in WP 304/02, 8433/03, 6256/04, 6926/04, 10440/04, 29434/05, 30602/04, 2036/05, 4409/05, 11821/05, 11822/05, 16683/05, 20949/05, 28785/05, 6471/06, 7824/06, 30290/06, 34741/06, 34702/06, Prayer in W.P.No.20434/09, 20435/09,21751/09, 24002/09, 19744/10, 3783/10, 14202/10, 24153/10, 16464/10: Writ petition filed under Article 226 of the Constitution of India praying to issue a writ of Declaration to delcare that the amended Section 6(2)(xii-a) 81 (2)(jj) of Chennai Metropolitan Water Supply and Sewerage Board Act are ultra vires, unconstitutional, arbitrary and colourable exercise of power and forbearing the second respondent from insisting the payment of infrastrure and development charges on behalf of the third respondent for issuing planning permission which are not permissible in law. W.P.No.304/02, 8433/03: Praying to issue a 'writ of Certiorarified Mandamus' to call for the records relating to the impugned letter of the First Respondent vide letter No.B1/28661/2001 dated 20.12.2001 (W.P.304/02) Lr.No.C3/13607/2002 dated 7.3.2003 (W.P.No.8433/03) and quash the same and directing the First Respondent to release the planning permission approval to the petitioner forthwith. https://hcservices.ecourts.gov.in/hcservices/ W.P.No.10682 of 2002 Praying to issue a 'writ of Certiorarified mandamus' calling for the records of the second Respondent dated 14.3.2002 in Lr.No.C3/23233/2001 and quash the same in so far as it relates to payment of Infrastructural improvement charges and consequently direct the respondents to grant planning permission for construction of dwelling units at Door Nos.54 to 56, Wallajah Road, Chennai without insisting on Infrastructural Improvement charges. W.P.No.755 of 2003: Praying to issue a 'Writ of Certiorarified Mandamus' calling for the records of the 2nd Respondent dated 16.12.2002 in Lr.No.C3/21501/2002 received on 17.12.2002 and quash the same in so far as it relates to payment of Infrastructural Improvement charges and consequently direct the grant of planning permission for construction of dwelling units at No.117/1, L.B.Road, Adyar, Chennai-600 020, without insisting on payment of Rs.6,12,000/- towards Infrastructural Improvement charges or any other levy. W.P.No.7459 of 2003: Praying to issue a 'writ of Mandamus' forbearing the Respondents from collecting a sum of Rs.2,92,000/- as Infrastructure development charge payable to CMWSSB in the First Respondent's letter dated 7.11.2002 in C3/29560/2001. W.P.No.33680 of 2003: Praying to 'writ of declaration' declaring that section 6 (Xii-a) and Section 81(2)(ii) of Madras Metropolitan Water Supply Sewerage Board Act, 1978 as amended by Act 49/1998 prescribing demand of infrastructure development charges is arbitrary, illegal, unconstitutional, unenforceable in law in so far as the petitioner is concerned and consequently forbearing the Respondents from enforcing the letter No.C3/54769/2000 dated 27.5.2002 on the file of the 2nd Respondent demanding Rs.25,37,500/- towards Infrastructure development charges. W.P.No.6006/04, 6256/04, 6926/04, 10440/04, 29434/04, 30602/04, 4409/05,11821/05, 11822/05, 16683/05, 28785/05, 7824/06, 19839/09, 11632/09, 17436/09, 24590/09: Praying to issue a 'Writ of Declaration declaring that the amended section 6(2)(Xii-a) 81(2)(ii) of Chennai Metropolitan Water Supply and Sewerages Board Act are ultravires, unconstitutional, Arbitrary and colourable exercise of power and forbearing the 2nd respondent from insisting the payment of infrastructure and https://hcservices.ecourts.gov.in/hcservices/ development charges on behalf of 1st Respondent for issuing planning permission which are not permissible to law so far as the petitioner is concerned. W.P.No.2636/05, 6471/06, 34741/06, 34702/06: praying to issue a writ of declaration to declare that the amended section 6(2) (xii- a) 81(2)(jj) of Chennai Metropolitan Water Supply and Sewerage Board Act are ultra wires un constitutional arbitrary and colourable exercise of power and consequently forbearing the first respondent from insisting the payment of infrastructure and development charges in favour of the second respondent for issuing planning permission which is against law. W.P.No.17291 of 2005:- praying to issue a writ of declaration declaring rule 19(b) III B of Development Control Rules as ultra- vires the Tamil Nadu Town and Country Planning Act and condition (vi) of the letter dated 28.4.2005 as illegal unconstitutional and unenforceable so fas as it relates to the demand of security deposit and Infrastructure charges for the proposed development and consequently direct the 2nd respondent to issue planning permission of the petitioner without insisting on payment of security deposit of Rs.18,44,000/- and Infrastructure Development charges to CMWSSB of Rs.11,80,000/- as per letter dated 28.4.2005 No. C3/16340/2004 on the file of the 2nd respondent. W.P.No.20969/05:- praying to issue a writ of declaration to declare that amendment Sections 6(2) (xii-a) 81 (2) (jj) of Chennai Metropolitan Water Supply and Sewerage Board Act are ultravirus unconstitutional arbitrry and colourable exercise of power and forbearing the respondent from insisting the payment of infrastructure improvement and development charges through the first respondent for issuing planning permission which are not permissible in law. W.P.No.24805 of 2005:- praying to issue a writ of mandamus forbearing the respondents from collecting a sum of Rs.4 21 000/-as Infrastructure Development charge payable to CMWSSB the third respondent herein in the first respondents letter dated 22.7.2005 in letter No. C3/13752/2004 W.P.No.33278/05, 33279/05, 33505/05 praying to issue a writ of declaration to declare that the amended section 6(2) (xii-a) 81 (2) (jj) of Chennai Metropoliton Water supply and sewerages Board Act are ultravirus unconstitutional Arbitrary and colourable exercise of power and forbearing the respondent from insisting the payment of infrastructure and development charges on behalf of CMWSSB for issuing planning permission which are not permissible in law. https://hcservices.ecourts.gov.in/hcservices/ W.P.30290/06: Praying to issue a 'writ of Declaration' to declare that the amended section 6 (2) (xii-a) 81(2)(jj) of Chennai Metropolitan Water Supply and Sewerage Board Act are ultravirus, unconstitutional, arbitrary and colourable exercise of power and forbearing the 1st respondent from insisting the payment of infrastructure and development charges on behalf of the 2nd respondent for issuing planning permission for the proposed constructions of BF + stilt floor + 6 floors + 7th floor part of I.T. Building at plot No.5(NP), Jawaharlal Nehru road, Thiru-vi-ka industrial Estate, Guindy, Chennai-97 which are not permissible in law. W.P.3782/2010: Praying to issue a 'Writ of Certiorarified Mandamus' Calling for the records of the 2nd respondent dated 19.02.2010 in Lr.No.C3/18372/2009 with respect to the demand of security deposit of Rs.3,40,000/- (Rupees Three Lakhs and Forty Thousand only) for proposed development, and Rs.1,79,60,000/- (Rupees One Crore Seventy Nine Lakhs and Sixty Thousand only) towards caution deposit as contained in the column No.IV & VII of the impugned order of the 2nd respondent with respect to the building to be put up at Plot No.9 & 10, Door No.15, Whites Road, Chennai-14 comprised in R.S.No.343/14, Block No.11 of Triplicane Village by quashing the same and consequently direct the 2nd respondent to grant planning permission as sought for in respect of the Information Technology park Building in the aforesaid property without insisting upon the demand of security deposit and caution deposit. W.P.14670/2010: Praying to issue a 'Writ of Certiorari Calling for the records relating to the first respondent vide Letter No.C3/22148/08 dated 25.6.10 and to quash the same. W.P.14201/2010, 16465/2010: Praying to issue a 'Writ of Declaration' to declare that the provisions contained in Regulation 26 (24), 27 (25), 28 (14) of Development Regulations to Tamilnadu and Country Planning Act are ultra vires, unconstitutional, arbitrary and colourable exercise of power and forbearing the 2nd respondent from insisting on the payment of security deposit for putting up any construction which are not recognized in law. https://hcservices.ecourts.gov.in/hcservices/ W.P.7884/2011.: Praying to issue a 'Writ of Declaration' declaring that the amended Section 6 (2) (xii-a) 81 (2) (jj) of Chennai Metropolitan Water Supply and Sewerage Board Act(T.N.Act.28)of 1978 are ultravires, unconstitutional, arbitrary and colourable exercise of power and forbearing the 2nd respondent from insisting the payment of infrastructure and development charges on behalf of the 3rd respondent for issuing planning permission which are not permissible in law. (Prayer amended as per order dated 30.3.2011 by RSJ in M.P.No.2/2011 in W.P.7884/2011) Mr. R. Thiagarajan Senior Counsel for Mr.S. Sundaresan : For petitioners in W.P.Nos.20434, 20435 of 2009, 304 of 2002, 8433 of 2003, 6006, 6256, 6926, 10440, 29434, 30602 of 2004, 4409, 11821, 11822, 33278 33279, 33505 of 2005, 6471, 7824, 30290, 34741, 34702 of 2006, 19839, 11632, 17436, 21751, 24002, 24590 of 2009, 19744, 14201, 14202, 24153, 16464, 16465 of 2010. Mr.Krishnappan Senior Counsel for Mr.R. Mohan : For petitioners in W.P.Nos.3782, 3783 of 2010, 28785 of 2005, 7884 of 2011. K.Venkatasubramanian : For Petitioner in W.P.No. 10682 of 2002 and 755 of 2003 Mr.K.V.Babu : For Petitioner in W.P.No. 7459 of 2003 Mr.P.B. Ramanujam : For Petitioner in W.P.No. 33680 of 2003 Mr. M.L.Joseph : For Petitioner in W.P.No. 2636 of 2005. Mr.G. Durairaj : For Petitioner in W.P.No. 16683 of 2005 https://hcservices.ecourts.gov.in/hcservices/ Mr.A.R.Karunakaran : For Petitioner in W.P.No. 17291 of 2005 Mr.K.Dharanidharan : For Petitioner in W.P.No. 20969 of 2005 Dr.P. Vasudevan : For Petitioner in W.P.No. 24805 of 2005 Mr.S.Vijayakumar : For Petitioner in W,.P.No. 14670 of 2010 Mr.A. Navaneethakrishnan Advocate General Assisted by Mr. R. Ravichandran : For Respondent No.1 WPs. AGP 20434, 20435 of 2009, 10682 of 2002, 755, 33680 of 2003, 17291/05, 19839, 11632, 17436, 21751, 24002, 24590 of 2009, 19744, 3782, 3783, 14201, 14202, 24153, 16464, 16465 of 2010, 7884 of 2011 For R2 in WP.7459/03, 24805/05 Mr.L.P.Shanmugasundaram : For respondent No.3 (CMWSSB) R3 in WPs 20434, 20435 of 2009, 10682 of 2002, 755,7459 33680/2003, 24805 19839, 11632, 17436, 21751, 24002, 24590 of 2009, 19744, 3783, 14202, 24153, 16464 /2010, 7884/2011 R2 in WP 304/02, 8433/03, 6006/04, 6256/04, 6926/04, 10440/04, 29434/04, 30602/04, 2036/05, 4409/05, 11821/05, 11822/05, 16683/05, 20949/05, 28785/05, 6471/06, 7824/06, 30290/06, 34741/06, 34702/06. Mr.Raja Srinivas : For CMDA in W.P.Nos.755, 7459, 8433, 33680 of 2003 19744, 3782 , 3783 of 2010 7884 of 2011 Mr.A.Kumar : For CMDA in W.P.Nos.20434 & 20435 of 2009, 304 & 10682 of https://hcservices.ecourts.gov.in/hcservices/ 2002, 19839, 11632, 17436, 21751, 24002, 24590 of 2009, 14670, 14201,14202, 24153, 16464, 16465 of 2010. Mr.M.Kathikeyan : For CMDA in W.P.Nos. 6006, 6256, 6926, 10440, 29434, 30602 of 2004, 2636, 4409, 11821, 11822, 16683, 17291, 20969, 24805, 28785, 33278, 33279, 33505 of 2005, 6471, 7824, 30290, 34741, 34702 of 2006. Mr.V.Bharathidasan : For Corporation in W.P.No.14670 of 2010 ------------ COMMON ORDER K.K.SASIDHARAN, J The central question that arises in these writ petitions is whether the levy of infrastructure development charges by the Chennai Metropolitan Water Supply and Sewerage Board is bad in law on account of the absence of necessary co-relation between the fee collected and the service intended to be rendered or in other words "quid pro quo". 2. Since common questions of fact and law arises in these batch of writ petitions, the same are disposed of by this common order. 3. For the sake of convenience, we quote hereinbelow the facts in W.P.No.34702 of 2006 treating it as the lead case. The facts: 4. The petitioner is a builder. He is stated to be the owner of the property situated at Door No.18/1, East Coast Road in Survey No.205/3 Part, 4A, 5A, 8 and 10, T.S.No.26, Block No.42 of Thiruvanmiyur Village, Chennai-600 041. The petitioner made an application before the Chennai Metropolitan Water Supply and Sewerage Board (hereinafter referred to as "CMWSSB") for planning permission for the purpose of construction of Additional Block of Stilt Floor plus Eleven Floors residential building with Sixty Four Dwelling Units. The application was submitted on 8 November, 2005. The Chennai Metropolitan Development Authority (hereinafter referred to as "CMDA") by their letter dated 8 September, 2006 directed the petitioner to pay infrastructure development charges due to CMWSSB besides other charges payable to the CMDA. https://hcservices.ecourts.gov.in/hcservices/ 5. Since the demand for payment of development charges were on account of the amended provisions of the Chennai Metropolitan Water Supply and Sewerage Board Act, the petitioner challenged the validity of Section 6(2)(xii-a) and 81(2)(jj) of the said Act. 6. The amended Act was challenged mainly on the ground that the infrastructure development has nothing to do with the individual promoters. It was the further contention of the petitioners that the levy was essentially in the nature of a tax though styled as a "fee". According to the petitioners, there is no quid pro quo for the demand of infrastructure development charges and as such, the levy is arbitrary and is nothing but a colourable exercise of power. 7. The CMWSSB in their counter affidavit filed originally justified the collection of infrastructure development charges. According to CMWSSB, the Board has spent considerable amount for providing infrastructural facilities required by the developers and as such the development charges were rightly levied. It was their further contention that multistoried and special buildings are the structures responsible for the discharge of sewerage at single point to public sewer system in huge quantity and are not in proportion to the capacity of designed sewers. At the same time, the demand for supply of water to such premises at single point has suddenly increased. The Board cannot anticipate any such development so as to provide the infrastructure facilities in advance leading to dead investments. Therefore, considering the total expenditure required for providing infrastructural facilities and to maintain the water supply and sewage system, the Act was amended authorising the Board to collect infrastructure development charges. 8. The Division Bench speaking through His Lordship Mr.Justice P.Sathasivam, (as His Lordship then was), opined that CMWSSB is charging the infrastructure development charges only for the service rendered and to strengthen and maintain the water supply and sewerage infrastructure and as such, the levy is fully justified. Accordingly, the writ petitions were dismissed. 9. The unsuccessful writ petitioners challenged the order before the Supreme Court in Civil Appeal Nos.1079 of 2009 etc. batch. The Supreme Court negatived the contentions raised by the petitioners regarding delegation of power and upheld the validity of Section 81(2)(jj) of the Chennai Metropolitan Water Supply and Sewerage Board Act, though for different reasons. 10. The Supreme Court thereafter considered the question of quid pro quo. The Supreme Court found that State or the CMWSSB did not state on what basis the rate of Rs.64/- per square meter was https://hcservices.ecourts.gov.in/hcservices/ fixed. There were no records to indicate the amount spent towards services to be rendered to the multistoried and special buildings. The only contention originally taken was to the effect that the Board has to spend considerable amount for over all development of the water supply and sewerage system. The Supreme Court observed that in case it is a fee, the principle of quid pro quo would apply. The Supreme Court after extracting the leading decisions on the point including the judgement reported in 2006 (7) SCC 241 (Jindal Stainless Ltd., (2) & Another v. State of Haryana & Ors.,) remitted the matter to this Court with a direction to implead the State of Tamil Nadu as a party. The parties were given liberty to produce materials before this Court to substantiate their respective contentions. 11. Subsequent to the remand, the CMWSSB and the State of Tamil Nadu filed separate counter affidavits justifying the imposition of infrastructure development charges. The Board as well as the State in their respective counter affidavits through facts and figures explained the total expenditure incurred towards improvement of the existing water supply and sewage system and to maintain the system. The details of percentage of collection of infrastructure development charges were also given. The State justified the levy by pointing out that less than 2.5% of the actual amount spent by the CMWSSB for providing these facilities alone were collected from the builders. 12. The petitioners filed a reply affidavit wherein it is stated that the details given by the Board indicates only the over all expenditure and it has nothing to do with the special services rendered to the builders of multistoried and special buildings. Submissions: 13. The learned Senior Counsel for the petitioners in W.P.No.20434 of 2009 and other connected writ petitions contended that the levy is illegal and unjust, as it is against only a class of builders. The CMWSSB is responsible for providing water and sewage facilities. These facilities are provided generally for common benefit and as such the decision to collect fee from the promoters of special and multistoried buildings is liable to be quashed as violative of Article 14 of the Constitution of India. The respondents miserably failed to prove the special benefits to those class of builders. Therefore they are not entitled to collect the infrastructure development charges. The learned Senior Counsel for the petitioners in W.P.No.3782 of 2010 etc., batch of cases advanced similar contentions. According to the learned Senior Counsel, the fee is per se discriminatory and the collection lacks the element of quid pro quo.. The learned Advocate General by placing reliance on the audited accounts of the CMWSSB contended that the special and multistoried buildings account for the major development and as such CMWSSB has been spending considerable https://hcservices.ecourts.gov.in/hcservices/ amount to provide infrastructural facilities to these buildings. The CMWSSB has also been spending substantial amount for maintaining the water and sewage system and the major buildings like the petitioners are the actual beneficiaries. Therefore CMWSSB has rightly made a provision to collect a percentage of the cost from these builders. According to the learned Advocate General, the collection of fee when compared to the benefits appears to be very negligible. Concept of fee: 14. The fee unlike a tax rests on the principle of equivalence. The levy of fee must have a corresponding relation with the service provided by the statutory or other authorities. This distinguishing or rather essential feature differentiates fee from tax. Though providing service is a condition precedent for levy of fee, the failure on the part of the authority to extend equal service matching the collection would not make the fee bad. 15. The petitioners have no case that the impugned Act and the Regulations made there under are ultravires the powers of the Legislature of the State of Tamil Nadu. The challenge is confined to the question regarding absence of special benefits to the petitioners. Analysis: 16. The question raised by the petitioners should be considered in the light of the observation made by the Supreme Court in the order of remand. 17. The counter affidavit earlier filed by the CMWSSB does not contain materials justifying the levy of fee. This made by the Honourable Supreme Court to remit the matter so as to enable the State and CMWSSB to produce materials to meet the challenge on levy of fee. 18. The counter affidavit filed by the State of Tamil Nadu contains details of the amount spent for providing the water supply and sewage facilities to the builders and the actual amount spent for maintaining the very system. According to the State, the burden of liability of the expenditure totally incurred by the CMWSSB is shared by the promoters/developers of special and multistoried buildings and it represents only 2.5% on an average of total expenditure. 19. The following table appended to the counter affidavit gives the details of the amount spent by the Board and the amount collected by way of infrastructure development charges. https://hcservices.ecourts.gov.in/hcservices/ Sl .N o. Year Annual expenditure incurred towards improvements to existing water supply and sewerage infrastructu re facilities (Rs. in crores) Infrastruct ure development charges collected from the developers of Multistorie d building and special building (Rs. in corres) Balance amount of expenditure incurred (less infrastruct ure Development Charges collected ) (Rs.in crores) Source of funds to meet out the balance incurred expendi- ture Percentag e on collectio n of infrastru c-ture Developme nt charges to incurred expenditu re on schemes (in %) 1 1997- 1998 142.09 0.21 141.88 World Bank, Commer- cial Banks, L.I.C., Hudco OECF. Govern- ment, TNUDF, JNNURM, etc. 0.15 2 1998- 1999 257.17 3.38 253.79 1.32 3 1999- 2000 278.08 2.92 275.16 1.06 4 2000- 2001 258.57 5.14 253.43 1.99 5 2001- 2002 154.25 4.29 149.96 2.79 6 2002- 2003 126.11 8.21 117.9 6.52 7 2003- 2004 703.53 8.97 694.56 1.28 8 2004- 2005 445.4 7.27 438.13 1.64 9 2005- 2006 154.08 5.92 148.16 3.85 https://hcservices.ecourts.gov.in/hcservices/ Sl .N o. Year Annual expenditure incurred towards improvements to existing water supply and sewerage infrastructu