IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE FOURTEENTH DAY OF JULY TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION NO : 9363 of 2003 Between: GUNTUR CITY MUNICIPAL RATE PAYERS ASSN, REP.BY ITS GNL SECY M.L.KANTHA RAO O/O.GUNTUR CITY MUNICIPAL RATE PAYERS ASSN, GUNTUR ..... PETITIONER AND GUNTUR MUNICIPAL CORPN, GUNTUR, REP. COMMISSIONER O/O. GUNTUR MUNICIPAL CORPN, GUNTUR .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to declare the action of the respondentin levying and collecting amount under the head of "PS CHARGES" from the rate payers of Guntur as illegal, arbitrary and unjust issuing appropriate writ of Mandamus. Counsel for the Petitioner:MR.M.V.S.SURESH KUMAR Counsel for the Respondent No.: GP FOR MUNCIPAL ADMN. & URBAN DEV. The Court made the following : THE HON'BLE SRI JUSTICE R.SUBHASH REDDY WRIT PETITION NO:9363 of 2003 ORAL ORDER: The petitioner, The Guntur City Municipal Rate Payers Association, represented by its Secretary has filed this writ petition seeking a writ of mandamus to declare the action of the respondent in collecting primary service charges from the property holders/residents of Guntur Municipal Corporation, as illegal and arbitrary. It is the case of the petitioners that members of the petitioner – association are residents of Guntur Municipal Corporation and they are paying regular property taxes for the properties owned by them. It is their grievance in the writ petition that in addition to collecting property tax, water charges and drainage cess, the respondents are also imposing and collecting other charges terming it as primary service charges. It is their case that as per the provisions of Municipal Corporation Act and the rules made thereunder, there is no power or jurisdiction conferred on the respondent to levy separate charges as primary service charges. In the counter affidavit filed on behalf of the respondent it is stated that the Corporation is collecting primary service charges at the rate of Rs.5/- per month along with the property tax towards special maintenance of sanitation for collecting refuse from door to door by provide plastic small dust bins a the cost of the respondent corporation. It is stated that the existing procedure for collecting refuse from the dust bins provided at the corners of each street became unhygienic as the refuse is being thrown on the roads by the dwellers. It is stated that the respondent is also providing small plastic dustbins to each of the family portions irrespective of owner/occupier and the same is advantageous to the owner/occupier. It is stated that collection of primary service charges has been resolved by the Corporation by resolution No.445 dated 30.12.2000. It is stated that majority of the residents/owners/occupiers are availing the facility without any objection. With regard to the authority of the respondent – corporation, it is stated that in view of the provision under Section 490 of the Greater Hyderabad Municipal Corporation Act, 1955, the Commissioner is empowered to enter into contract with the owners/occupiers to remove rubbish and filth from their premises on such terms and conditions. Heard the learned counsel for the petitioner as well as the leaned standing counsel appearing for the respondent – Corporation. It is submitted by the learned counsel for the petitioner that the property tax which is being collected from the petitioner is also for the purpose of maintaining sanitation and in that view of the matter there is no authority or jurisdiction conferred on the respondent to collect other charges by naming it as primary service charges. On the other hand, it is submitted by the Learned Standing Counsel appearing for the Corporation that the provisions under the Greater Hyderabad Municipal Corporation Act, 1955 as applicable to the Guntur Municipal Corporation, empower the corporation to impose any tax other than the taxes specified under Section 197(1) of the Act. It is submitted that as per the resolution passed by the Municipal Corporation for proper maintenance of sanitation these charges are levied. It is further submitted that under Section 490 of the Act, the Commissioner may contract with the owner/occupier to remove rubbish or filth from the premises on payment of such fees which the Corporation may determine. In this case it is to be noted that though reference is made to Sections 197 and 490 of the Act, from a reading of the provisions under Section 197 it is clear that the Corporation is empowered to impose any tax other than those taxed specified under sub-section (1) of Section 197 subject to previous sanction of the Government. In the case on hand, though it is stated that the resolution was passed by the Corporation, there was no sanction from the Government as such, and therefore the power to collect the primary service charges cannot be traced to power under Section 197(2). At the same time, though it is further sought to be justified by taking the assistance of Section 490 of the Act whereunder the Commissioner is entitled to enter into contract with the owner/occupier, in this case it is clear from the pleadings that so far the members of the petitioner association have not entered into any contract with the Corporation to collect the rubbish as per Section 490 of the Act. In that view of the matter, unless there is contract consenting for collection and to meet the liability, the respondent corporation cannot unilaterally demand such charges as primary service charges. At the same time it is also to be noted that the petitioner has not given any particulars regarding number of members of the association. Therefore, there cannot be any general direction as prayed for to the Corporation as much as if any of the property holders and occupiers are availing the service by paying the payment such persons who are not members in the association cannot be deprived of the facility being extended by the Corporation for better management of sanitation. Under the above circumstances, I dispose of the writ petition directing the respondent not to demand the primary service charges from such members of the association who are not willing to avail the facility. It is made clear that those who are willing to avail the service, can avail it by paying the necessary charges as determined by the Commissioner of the respondent corporation. It is open to the Corporation to continue the said procedure so long as there is no objection from the property holders/occupiers who are availing such facility by paying necessary charges. Subject to the above directions, the writ petition is disposed of. No order as to costs. ___________ 14-7-2009 asp