Heard learned sr. counsel Mr. Mihir Joshi for the petitioners. The petitioners have approached this Court challenging the decision of respondent GIDC dated 8/2/2010 and modified under circular dated 9/7/2010 for levying and recovering "Infrastructure Upgradation Fund" from the occupiers of the plots.
Learned counsel for the petitioners contended that the lease document in question in respect of members of the association as well as the individual petitioner who has come along with association before this Court, do not provide anywhere for levying such charges nor has the statute i.e. Gujarat Industrial Development Act, 1962 or rules & regulations framed there under authorizes and permits levying of such charges under said head. The counsel has relied upon decision of the Apex Court in order to substantiate his submission with regard to lack of authority in respect of levying said charge in case of Ahmedabad Urban Development Authority Vs. Sharatkumar Jayantikumar Pasawalla and others, reported in AIR 1992 SC 2038, and submitted that, that judgment holds the field even today also. The charges sought to be levied is without rendering any service whatsoever and in fact there is a special provision for levying service charges and the fund which is sought to be created is admittedly not for providing any service as such. Therefore, the levy and recovery of the amount and creating funds under the said head is patently without any authority of law and/or justification and or competence on the part of the concerned authority. Learned counsel has also relied upon the decision of the Apex Court in case of Ram Chandra Srivastava Vs. Chairman, Delhi Development Authority And Another, reported in (2009) 16 SCC pg. 485, in order to support his contention that service charge levied by Delhi Development Authority is in nature of fees and it should have broad co-relation with value of service provided. In the instant case, in fact, as could be seen from definition of service charge provided under the regulations, same is liable to be paid to the Corporation for the services rendered and it is emphatically submitted that this charge which is sought to be levied is not part & parcel of service charge and it cannot be classified to be service charge as such.
Learned counsel for the petitioners has also drawn attention of the Court to one of the notices received by the occupier of the plot and member of the association indicating that the respondent GIDC is proceeding under the provision of Public Premises (Eviction of Unauthorised Occupants) Act, 1972 for compelling occupants to pay charges, for which there exists no legal basis at all.
In view of these submissions, the Court is of the considered view that the action of eviction on account of non-payment of service charges would act as a drastic action for which authorities are yet to indicate any justification. There appears to be substance in the submission made on behalf of the petitioners. Hence let there be NOTICE returnable on 27/4/2012. In the meantime & till the returnable date of the notice there shall be ad-interim stay in terms of Paragraph no. 8 (C) of the petition.
It goes without saying that as this order is passed ex parte, it is open to the respondent to approach the Court even prior to the returnable date for modification and/or vacation of this order. Direct service permitted.
[ S.R. BRAHMBHATT, J ] /vgn Top