M/S KAMDHENU LABELS PRIVATE LTD V. THE COMMISSIONER

WA/1168/2021

AI Insights

M/s Kamdhenu Labels Private Ltd, represented by its director Sri Karan Ramsisaria, filed a writ appeal against the order of the learned Single Judge, which had dismissed their writ petition seeking a refund of development and betterment charges amounting to Rs.10,19,277. The charges were collected by the Bruhat Bengaluru Mahanagara Palike (BBMP) for improvements and developments in the area where the appellant's property is located. The appellant argued that these charges were collected without any legal authority, relying on the Karnataka Municipal Corporations Act, 1976, and previous Supreme Court judgments. However, the High Court dismissed the appeal, referencing a similar case (W.P.Nos.56465 & 56724-734/2014) where the same issue was resolved in favor of the BBMP.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 732802 (HC-KARNATAKA)
• Appeal Type: Others
• Pronouncement Date: 23-11-2022
• Assessment Year: misc
• Other Referred Cases: COMMISSIONER OF INCOME TAX (CENTRAL)-I, NEW DELHI VS VATIKA TOWNSHIP PRIVATE LIMITED - (2015)1 SCC 1, HMM LIMITED & ANOTHER VS ADMINISTRATOR, BANGALORE CITY CORPORATION AND ANOTHER - (1989)4 SCC 640
• Laws Referred To: Karnataka High Court Act, 1961, Karnataka Municipal Corporations Act, 1976
• Result in Favour of: Revenue
• Court: HIGH COURT
• Assessee Lawyers: PARASMA PARAS JAIN
• Keywords: Betterment Charges; Development Charges; Mandamus; Refund; Writ Appeal
• Section: 4; 467; 466; 466(b)

Judgement Text

" 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF NOVEMBER 2022 PRESENT THE HON’BLE MR. JUSTICE ALOK ARADHE AND THE HON’BLE MR. JUSTICE S.VISHWAJITH SHETTY W.A.No.1168/2021 (LB-BMP) BETWEEN: M/S KAMDHENU LABELS PRIVATE LTD A REGISTERED PRIVATE LIMITED COMPANY HAVING ITS CORPORATE OFFICE AT NO.16A CHOWRINGHEE MANSION #30 JAWAHARLAL NEHRU ROAD KOLKATTA - 700 016. AND HAVING OFFICE AT NO.86 3RD CROSS RANGANATHAPURA MAGADI ROAD CROSS KAMAKSHIPALYA BANGALORE - 560 079. REPRESENTED BY ITS DIRECTOR SRI KARAN RAMSISARIA AGED ABOUT 32 YEARS. ...APPELLANT (BY SRI PARASMAL B @ PARAS JAIN, ADV.) AND: THE COMMISSIONER BRUHAT BANGALORE MAHANAGARA PALIKE BYATARAYANAPURA VALAYA YELAHANKA SUB-DIVISION BANGALORE - 560 064.. ..RESPONDENT ( BBMP - SERVED ) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET ASIDE 2 THE ORDER DATED 15.09.2021 IN WRIT PETITION NO. 35595/2012 (LB-BMP). THIS APPEAL COMING ON FOR PRELIMINARY HEARING THIS DAY, VISHWAJITH SHETTY J., DELIVERED THE FOLLOWING: J U D G M E N T This intra court appeal is filed by the unsuccessful petitioner challenging the order dated 15.09.2021 passed by the learned Single Judge of this Court in W.P.No.35595/2012. 2. Heard the learned Counsel for the appellant and also perused the material available on record. 3. Facts leading to filing of this appeal briefly stated are, the appellant had purchased the property measuring 21,710 sq. ft. situated at Kamakshipalya, Magadi Road Cross, Bengaluru, under two separate sale deeds on 23.07.2004. Thereafter, an application was made for transfer of khatha in respect of the properties purchased by the appellant and on considering the said application, respondent no.1 demanded development/improvement charges amounting to Rs.4,82,600/- on 04.08.2004. The appellant allegedly paid a sum of Rs.4,80,733/- on 23.06.2006. Subsequently, an application for sanction of 3 plan for the purpose of constructing a building in the property purchased by the appellant was made and considering the same, a further demand for a sum of Rs.5,38,544/- was raised by the Bruhat Bengaluru Mahanagara Palike (BBMP) on 01.12.2011. The appellant allegedly paid a sum of Rs.5,39,000/- and Rs.1,01,000/- to the BBMP on 24.11.2011. Thereafter, on 05.09.2012, the appellant preferred W.P.No.35595/2012 with a prayer to issue a writ of mandamus to the respondents to refund the betterment charges and development charges collected from him which totally amounted to Rs.10,19,277/- with interest at 12% per annum. The said writ petition was dismissed by the learned Single Judge vide the order impugned and being aggrieved by the same, the petitioner has preferred this intra court appeal. 4. Learned Counsel for the appellant submits that the respondents have collected betterment charges and development charges without any authority of law. He submits that the provisions of the Karnataka Municipal Corporations Act, 1976 (for short, 'the Act') do not provide for collecting betterment charges or development 4 charges by the respondents. He also submits that the respondents have collected betterment charges and development charges on the basis of the circulars issued by respondent no.1 which has no statutory force. He submits that if the State and its authorities have collected any tax or fee from the general public without the authority of law, they are bound to refund the same. In support of his arguments, he has placed reliance on the judgment of the Hon'ble Supreme Court in the case of COMMISSIONER OF INCOME TAX (CENTRAL)-I, NEW DELHI VS VATIKA TOWNSHIP PRIVATE LIMITED - (2015)1 SCC 1, and HMM LIMITED & ANOTHER VS ADMINISTRATOR, BANGALORE CITY CORPORATION AND ANOTHER - (1989)4 SCC 640. 5. The learned Single Judge has disposed of the writ petition in view of the order passed by the coordinate bench of this Court in W.P.Nos.56465 & 56724-734/2014 and connected cases which was disposed of on 26.08.2016, wherein the very same issue was considered by a coordinate bench, and therefore, the learned Single Judge held that the order passed in W.P.Nos.56465 & 56724-734/2014 covers the issue 5 raised in the writ petition and has also observed that the order passed in W.P.Nos.56465 & 56724-734/2014 has attained finality. 6. In W.P.Nos.56465 & 56724-734/2014, a similar issue was considered by this Court and at paragraphs 30 to 33 it has been observed as under: \"30. Therefore, what was required of the respondents was to redo the process afresh to determine the appropriate improvement expenses in the light of the observations made in the order dated 20.4.2012 in W P No.18014/2011 and connected petitions and the observations made in W P No.40/2013 and connected matters disposed of on 10.4.2013. 31. Section 466 of the Act confers power on the Commissioner to declare the expenses on certain works as improvement expenses. Section 466(b) of the Act makes it clear that if the expenses to be recovered have been incurred or are to be incurred in respect of any work mentioned in any Rule made under this Act, wherein Section 466 of the Act is made applicable to such expense, then the Commissioner with the approval of the Standing Committee may declare such expenses to be improvement expenses. 6 Section 467 of the Act lays down the mode of collection of improvement expenses that have been incurred by making it clear that they shall be recovered in installments at such intervals which has to be determined by the Commissioner exercising his discretion. 32. From the above, it is clear that an objective consideration was required more so due to the fact that the liability for payment of improvement charges is being cast only on the property owners whose property is situate within the new areas which have been included in the larger urban area to constitute the BBMP and such imposition of improvement charges is not levied on the property owners who own properties in the areas which existed within the BMP jurisdiction before it became BBMP. Therefore, when a higher liability is cast on one class of citizens though as a fee on quid pro quo basis for a specific purpose as provided under the Rules, that class of citizens should be satisfied that they are getting more facilities than the usual facilities which are being provided to all the other citizens so as to bring it on par with the old area which has such infrastructure, which this area did not have and to that extent, the quid pro quo as 7 indicated would be satisfied though it need not be with mathematical exactitude. 33. Keeping the above basis for determination of improvement charges, it is to be examined whether the Corporation has exercised power in determining the improvement charges in compliance with the provisions of the Act and the Rules and the directions issued by this Court in the previous writ petitions.\" 7. Having observed as above, thereafter, the learned Single has taken into consideration the exercise done by the Corporation to arrive at the improvement charges at certain rate which was in consonance with the directions that were issued in the earlier writ petitions and the enabling provisions of the Act and Rules, held that the impugned circulars and the demand made by the Corporation were fully justified, and accordingly, has dismissed the writ petition. 8. The said order passed by the learned Single Judge in W.P.Nos.56465 & 56724-734/2014 has attained finality and the writ appeal preferred against the said order in W.A.No.2791/2019 has been dismissed. Under 8 the circumstances, in our considered view, the learned Single Judge was fully justified in dismissing the writ petition filed by the appellant on the ground that the issue involved in the writ petition is covered by the order passed in W.P.Nos.56465 & 56724-734/2014. 9. The judgments on which reliance has been placed by the learned Counsel for the appellant in support of his contentions would not be applicable to the facts and circumstances of the present case, and therefore, the same would not be of any aid to the appellant. The order impugned does not suffer from any infirmity or illegality, and therefore, we find no good reason to interfere with the said order. Accordingly, the writ appeal is dismissed. SD/- JUDGE SD/- JUDGE KK "