This Civil Application is taken out by applicant - original respondent No. 2 in main Special Civil Application with following prayers:
"(A) YOUR LORDSHIPS be pleased to vacate ex-parte order dated 11/4/2012 in captioned Special Civil application as the same stays the comprehensive notice passed by the Corporation which includes several charges other than infrastructure upgradation charges.
(B) Be pleased to pass such other or further orders as the nature and circumstances of the case may demand."
The prayers are sought to be justified on account of the averments and contentions raised in the reply affidavit filed in the main matter.
The Court extensively heard learned counsel for applicant - original respondent no. 2. Learned counsel for applicant invited this court's attention on page nos. 255, 257, 279, 280, 281, 283, 284, 288, 290, 292 and 295; and contended that levying of infrastructure development fund is in fact on account of pressing need of upgrading the infrastructure facilities prevalent in some of the estates managed and run by applicant - GIDC. The opponent
- original petitioner association itself has time & again approached respondent no. 2 for seeking aid and assistance in facilitating collection of the amount which could be utilized for upgradation and/or meeting the existing infrastructure facilities. The Corporation in its wisdom had to decide in its meeting and passed resolution on 30.3.2009 for levying charge called "Contribution Towards Infrastructure Upgradation Funds" and levied Rs.9/- per sq. mt. from the occupier of the plots or premises in the estate. Rs. 9/- is sought to be explained on page No.292. Subsequently, resolution dated 4/8th February 2010 came to be passed, wherein, it was decided to levy Rs.5/- instead of Rs.9/- and how Rs.5/- are to be divided is also explained, whereunder Rs.2/- out of Rs.5/- were to go back to the Association of industries or the notified area, and Rs.3/- were to be kept for the amount already spent by the Corporation.
Learned counsel appearing for applicant - original respondent No. 2 further submitted that the petitioner Association is not entitled to seek any relief much less interim relief in view of the fact that the order of imposing the charges towards 'Infrastructure Development" is in fact existing since 4.2.2010. The correspondence between the Federation of Industries Association to which the petitioner Association is one of the member and minute of the meeting produced on record would go to show that the charges were in fact leviable and more than 95% of the occupants have paid, therefore the charges, which have been sought to be levied and non-payment whereof is subject matter of steps under the provisions of the Gujarat Public Premises (Eviction of Unauthorized Occupants) Act, 1972 (hereinafter referred to as 'the PP Act' for short), cannot be said to be unjustified so as to provide any action under PP Act itself. The delay of 2 years and few months in challenging the decision in itself is sufficient to vacate the interim relief in favour of the petitioner.
Learned counsel appearing for applicant - original respondent no. 2 submitted that Corporation has in fact incurred huge amount of expenses in helping the execution and implementation of the project called "Critical Infrastructure Upgradation" and this expenses were required to be recovered as corporation has in good faith contributed towards this expenditure and as members themselves have through Association not protested or rather said that the amount of Rs.5/- is justified, then, in light of this, the opponent
- original petitioner cannot insist for any relief much less interim relief as it is granted by this Court in main matter for which the present Civil Application is filed for vacating the same.
Learned counsel appearing for applicant - original respondent no. 2 thereafter alleged that amount which is sought to be levied is so small which can be said to be negligible amount though collectively, it may remain to be sizable amount in the hands of Corporation which is nothing but recovery of huge amount already spent by corporation in respect of development projects. The Rs.5/- per sq.mt from occupant per year has not been pleaded to be so high amount and it cannot be said to be exorbitant in any manner. As against this, the sizable amount which may accrue to the Corporation, would help Corporation in minimizing its loss and this in turn would help the Corporation.
Learned counsel appearing for applicant - original respondent thereafter submitted that the reference to the documents cited hereinabove unequivocally lead to the only conclusion that there exists consensus amongst the original petitioner as well as Corporation and in furtherance thereof, the Corporation spent money towards infrastructure development projects and now, as the projects are on the verge of completion, they back out from the consensus and is attempting to go back of its promise and which may not be subject matter of judicial scrutiny by this Court under Article 226 of the Constitution of India and therefore, on this count also, the petition is required to be dismissed and interim relief is required to be vacated.
Learned counsel appearing for the applicant - original respondent no. 2 further contended that the provision of PP Act itself - specifically section - 4, indicates that petitioners will have amply opportunity to justify their stand and prove that the charges, which is sought to be levied, is the charges which is not legal and therefore, this court at least may permit the applicants - original respondents to proceed with the proceedings undertaken pursuant to the notice under PP Act and if at all, the court is convinced, the court may restrain in passing the final order of eviction.
Learned counsel appearing for applicant - original respondent no. 2 contended that notices issued under PP Act are composite notices and therefore, on account of stay granted, those notices are also not proceeded as on account of stay, which is granted qua the levy or charge known as infrastructure upgradation fund and therefore, the composite notice, which contains or includes other defaults, is also not been proceeded with under the PP Act.
Learned counsel appearing for applicant - original respondent no. 2 further submitted that therefore, application be allowed and interim order be vacated and/or in the alternative be modified and permit the Corporation to proceed under the PP Act and conclude the same but Corporation may not pass the final orders.
Learned counsel appearing for opponent - original petitioner has invited this court's attention to the averments made in the memo of petition in para-3.16 at page-9 and contended that the Court has granted interim relief in view of this averments, as it would show that the drastic action of notice of eviction, which is admittedly summary procedure, could not have been issued, when even the demand or bill is not is not raised.
Learned counsel appearing for opponent - original petitioner thereafter invited this court's attention to the affidavit-in-reply filed by respondent Corporation and dealing with the averments made in para-3.16 by referring page-271, which deals with para-3.16 of the petition and submitted that the respondent no. 2 Corporation has not controverted this fact at all and therefore, this fact has not been controverted that there exists no demand or bill calling upon the members of the petitioner Association for paying the charges and non-payment of which is said to be subject matter of eviction notice issued under the PP Act.
Learned counsel appearing for opponent - original petitioner thereafter invited this court's attention to the averments made in the memo of petition and prayer clause and submitted that the GIDC is not looking after or providing any aspect of maintenance at all.
Learned counsel appearing for opponent - original petitioner thereafter invited this court's attention to the scheme or policy promulgated vide Resolution dated 10.6.2004, which is part of Industrial policy of the State, wherein, it is one of fact that the State Government would offer subsidy as envisaged thereunder to industries in their attempt for bringing about Infrastructural Upgradation. In this policy, no financial obligation is fastened upon the GIDC at all. This aspect has not been controverted in any manner by learned counsel for respondent. In other words, it can be stated that this policy is the policy under which the industries were to take up on their own the infrastructural upgradation and subsidy was to flow from State. There exists another such scheme under the auspicious of Government of India, which is known as "Industrial Infrastructure Upgradation Scheme" (IIUS). There also, there exists no obligation upon the GIDC i.e statutory body - original respondent no. 2 and in fact, on account of some observations or guidelines, embodied in the scheme of policy of the State promulgated in the year 2004 that the industries which are covered by other scheme are not liable to receive the subsidy available. There appears to be some correspondence between the Association, GIDC and others.
Learned counsel appearing for opponent - original petitioner thereafter submitted that those correspondence is attempted to project as if there exists consensus between the petitioner and GIDC for permitting the GIDC to levy the recurring charges under the head called 'Infrastructural Upgradation Fund' (IUF for short) but close reading of those documents, even if they are taken to be uncontroverted in any manner, then also, they would not lead to conclude that there exists consensus much less agreement expressed permitting GIDC to accept the recurring subsidy of charges known under the head of Infrastructure Upgradation Fund. Therefore, when the respondent no.2 has no authority in first instance to impose such charges, naturally, they have no authority or justification for and to order recovery thereof and when recovery itself is not permissible, the attempt to project consensus would be of no avail and therefore, the whole exercise of issuance of notice under PP Act becomes exercise without jurisdiction and therefore, the interim order granted may be continued till final disposal of this petition.
This Court is of the considered view that the court need not give elaborate reasoning so far as submissions made by learned counsels for both the sides for interpreting the documents and their purport at this stage as the court is not dealing with petition finally but suffice it to say that prima-facie conclusion is required to be drawn for deciding existence of prima-facie case. The original petitioners have relied upon the decisions of the Apex Court as they have been referred to in the main matter while passing earlier order dated 11.4.2012, when ex-parte ad-interim relief came to be granted.
The petitioners have therefore relied upon those judgments and contended that there exists no authority in GIDC to collect and levy the charges under head known as Infrastructure Upgradation Fund. The Court is of the prima-facie view that there appears to be no consensus as sought to be made out by learned counsel for respondent GIDC in respect of GIDC's authority to levy the charges. Had there been consensus, the same could have been spelt out unequivocally on the record but if one looks at the document pressed into service, those documents rather indicate that there was protest in respect of recurring levy of charge under the head called Infrastructure Upgradation Fund. The counsel for respondent no. 2 has rather not contended that there exists no scope in GIDC to levy the charges except on the consensus alleged. In other words, if the consensus plea is not accepted, then, under provision of law and as GIDC act as exists today, there exists no valid authority in GIDC to levy and collect the charges under the head Infrastructure Upgradation Fund. Therefore, the Court need to confine only the aspect which is sought to be pressed into service for justifying the levy and collecting charges under the head of Infrastructure Upgradation Fund on the basis of consensus. As it is stated hereinabove, close perusal of document could not persuade this court to even prima-facie hold in favour of respondent no. 2 GIDC that there exists any consensus, on the contrary, there exists serious lack of consensus so as to justify levying and collecting of the charges. It is also required to be noted at this stage that assuming for the sake of examining without holding that there exists some justification for levying and collecting the charges, then also, petitioners have legitimate right to approach this court as they are subjected to coercive steps in form of notice under PP Act, which is very summary procedure of eviction. Therefore, even if there exists some justification as pleaded by respondent no. 2 GIDC, then also, without raising notice of demand or bill, there cannot be any ground or jurisdiction for invoking the provisions of PP Act at all. The plain reading of PP Act applicable to this case, would persuade this court to prima-facie hold that the jurisdictional fact required to be existed for invoking provisions of PP Act were conspicuously absent and therefore, in my prima-facie opinion, the issuance of notice of eviction under the PP Act on the ground of non-payment of contribution under the head of Infrastructure Upgradation Fund is wholly without jurisdiction and cannot be said to be supported in any manner by any provisions of law.
The plain reading of Section 4 of the PP Act would clearly show that the authority gets jurisdiction to Act thereunder only in the eventualities mentioned thereunder, then, lack of submission in respect of existence of any authority except the alleged consensus would persuade this court to hold prima-facie that there exists no jurisdictional fact, which would have justified issuance of notice under PP Act. Therefore, on this count also, the interim relief granted needs not to be vacated. The balance of convenience in my view, is in favour of the petitioner as the petitioner cannot be subjected to pay any charges which is sought to be justified on account of existence of any authority and/or provisions of law. The levy of charge thus admittedly required to be supported by authority and/or provision of law. In absence of any authority or provision of law, citizen cannot be subjected to pay the same to the agency and authority of the State. Therefore, this levy, which is not supported by act, cannot be said to be permitted to be collected or else, it would amount to illegal collection, which is not available by law and therefore, this would rather amount to perpetrated illegality and therefore, ad-interim relief granted in main matter cannot be said to be vacated. It is hereby clarified that Corporation is restrained only from proceeding further under the PP Act, where, notice are based upon non-payment of charges under the head of Infrastructure Upgradation Fund but that cannot be construed in any manner or proceed against the occupants and occupants, in whose cases, they are required to be proceeded under PP Act. The original order made in main matter is eloquently clear and therefore, it is not required to be clarified in any manner. The Civil Application being bereft of merits, is required to be dismissed and is dismissed. No costs.
(S.R.BRAHMBHATT, J.) pallav Top