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Judgment
P. Sathasivam, J.—The petitioners are builders, developers and individuals, who applied for planning permission before the Chennai
Metropolitan Development Authority (in short, ''CMDA''). Most of them seek for the issuance of Writs of Declaration, declaring that the amended
Sections 6(2)(xii-a) and 81(2)(jj) of the Chennai Metropolitan Water Supply and Sewerage Act, 1978 (in short, ''the CMWSS Act'') are
ultravires, unconstitutional, arbitrary and colourable exercise of power and forbearing the CMDA from insisting the payment of infrastructure and
development charges on behalf of Chennai Metropolitan Water Supply & Sewerage Board (in short, ''the CMWSSB'') for issuing planning
permission which are not permissible in law. In some of the writ petitions, seeking for the issuance of Writs of Certiorarified Mandamus, the main
challenge relates to demand of Infrastructure Development Charges (IDC) by the CMDA on behalf of CMWSSB; while in other Writ Petitions,
the prayer is for the issuance of Writs of Mandamus, forbearing the CMDA from collecting IDC on behalf of CMWSSB. Since the main issue
relates to the validity of the amended provisions in the CMWSS Act, all the writ petitions are being disposed of by the following common
Judgment.
For convenience, we shall refer the case of the petitioner in WP. No. 34702 of 2006.
According to the petitioner, he is the owner of the property situate at Door No. 18/1, East Coast Road, S. No. 205/3 Part, 4A, 5A, 8 and 10,
T.S. No. 26, Block No. 42 of Thiruvanmiyur Village, Chennai 600 041. He applied for planning permission to the CMDA for construction of
additional Block of Stilt Floor + 11 floors residential building with 64 dwelling units annexing to the existing BF + GF + 4 floors building with 18
dwelling and commercial use in the said property and his application was received by the CMDA on 08.11.2005. The CMDA, by letter dated
08.09.2006, directed the petitioner to pay sums under various heads, which included Rs. 5,30,500/- towards IDC payable to CMWSSB by
CMDA. Neither the Tamil Nadu Town and Country Planning Act, 1971 (in short, ''the T&CP Act'') nor the CMWSS Act, 1978, prescribes any
amount or provides for any specific rate payable towards development of infrastructure facility relating to Metro Water and Sewerage connections.
According to him, by virtue of Sections 9E, 49, 59, 60, 61, 62 and 63 A of the T&CP Act, the CMDA has no power to collect IDC. Further, in
view of Sections 45, 55 and 56 of the CMWSS Act, the CMWSSB is obliged to effect water supply and provide sewerage connection since the
proposed building comes within the Corporation limit and there are water lines of the CMWSSB within 30 meters from the site of the petitioner.
Inasmuch as the site meets all the requirements contemplated under Sections 45, 55 and 56 of the CMWSS Act, and there is no infrastructure
facility involved, the CMDA cannot make an arbitrary demand, which is equal to six times the development charges, under the guise of approving
the planning permission. Both the T&CP Act and the CMWSS Act do not envisage or enable the first respondent to claim such an amount and no
power is vested with them to reject the approval on the ground of non-payment of IDC. Fixing up of Rs. 64/- per sq. metre is arbitrary and there
is no nexus between the claim and the area of development. There is no such provision enabling the CMWSSB to authorise CMDA to
collect/recover the amount.
The second respondent - CMWSSB has filed a counter affidavit, wherein, it is stated that Section 63-A of the T&CP Act enables the CMDA
to pay to CMWSSB the charges levied and collected towards provision for or improvement of water supply or sewerage service. The amended
provisions, viz., 6(2)(xii-a) read with Section 81(2)(jj) of the CMWSS Act, empowers the CMWSSB to collect IDC from the applicant, builder
or developer of such multistoreyed buildings or special buildings as may be prescribed for provision of adequate water supply or sewerage
connection so as to ensure the availability of infrastructure proportionate to the growing city population and rapid developmental activities.
Government Order 146, dated 02.06.1998, prescribes the charges to be collected as IDC by CMDA and paid over to CMWSSB. The IDC is
collected by the CMDA to avoid duplication of work and to make the process simple under single window system. The said process is legally
valid and enforceable. Section 60 of the T&CP Act specifies the rates at which the development charges shall be collected from the applicant, and
the claims are being made by the CMDA as per the provisions therein. The rules specified in Section 81(2)(jj) of CMWSS Act provides for
collection of IDC by CMWSSB. The rate at which IDC is to be collected will vary from time to time and the rate is enforced by CMWSSB with
the approval of the competent authority. The IDC is collected only to render service and to strengthen and maintain the water supply and sewerage
infrastructure in Chennai City. The CMWSSB has delegated the power to CMDA to collect the IDC on its behalf by making proper regulations,
which are in accordance with the Act. The CMWSSB is collecting IDC at the rate of Rs. 64/- per sq. mt. for the proposed construction. The
petitioner''s statement that CMWSSB demands a sum equivalent to the cost of construction is incorrect. Sections 45 and 56 of CMWSS Act
deals with charges for consumption of water and guidelines for availing water and sewerage connections, whereas the IDC is collected for the
overall development of infrastructure. The amended provisions are valid and there is no ground for interference.
In the light of the above pleadings, we heard the learned Counsel appearing on either side.
First, let us enumerate the contentions raised by the respective sides.
Contentions of the petitioners:
(a) The impugned provisions, viz., Section 6(2)(xii-a) and Section 81(2)(jj) of CMWSS Act, are ultra vires, arbitrary and unconstitutional. The
above provisions do not prescribe any rate for Infrastructure Development Charges (IDC).
(b) The demand of IDC payable to CMWSSB has no nexus to the main scheme of the Act and the demand itself is illegal.
(c) The Board did not pass any regulation and fixing up of Rs. 64/- per sq. metre is arbitrary and there is no nexus between the claim and the area
of development.
(d) The amended provisions are contrary to Sections 45 and 56 of CMWSS Act.
(e) As per the Preamble of the Act, it is for the Board to provide the infrastructure for effecting service connections to the buildings in Chennai
City. The present demand towards IDC is not sustainable.
(f) In any event, CMDA has no power/authority to collect charges on behalf of CMWSSB.
Reply by the respondents:
(i) Section 63A of the T&CP Act enables the CMDA to apportion the development charges relatable to provision for or improvement of water
supply or sewerage service and to spare those charges with CMWSSB.
(ii) The amended provisions empower the Board to collect IDC so as to have resources/availability of infrastructure commensurable to the growing
city population and enormous construction activities.
(iii) The amendment specifies the manner and basis on which IDC shall be collected.
(iv) Government Order in G.O. No. 146, dated 02.06.1998, and the Regulations authorise the CMDA to collect IDC.
(v) In order to help the consumers, by applying the Single Window System, CMDA collects IDC at the time of processing the Planning
Application in respect of Special and multi-storeyed buildings and the same is being paid to CMWSSB.
Since all the above mentioned issues are interconnected, we proceed to consider the same collectively in the following paragraphs.
The impugned provisions are as follows:
I. 6. Powers of the Board - (1)....
(2) Without prejudice to the generality of the foregoing provision, the Board shall have power -
...
...
...
(xii-a) to collect infrastructure development charges from the applicant, builder or developer of such multi-storeyed building or special building as
may be prescribed, for the provision of adequate water supply or sewerage.
II. 81. Power to make regulations -
(1) ...
(2) In particular and without prejudice to the generality of foregoing power, such regulations may provide for all or any of the following matters,
namely:
...
...
...
(jj) the manner of and the basis on which the infrastructure developments charges shall be collected.
CMWSS Act, 1978, was enacted to provide for the constitution of the Chennai Metropolitan Water Supply and Sewerage Board for
exclusively attending to the growing needs of and for planned development and appropriate regulation of water supply and sewerage services in the
Chennai Metropolitan Area with particular reference to the protection of public health and for all matters connected therewith or incidental thereto.
Chapter-VII of the T&CP Act, particularly Sections-59 and 63-A, deals with levy, assessment and collection of Development Charges by the
planning authorities and apportionment of certain development charges. Section-59 enables the CMDA to levy development charges on the
institution/change/use of any land or building or development of any land or building for which permission is required as provided in Section-60.
Sub-section(3) of Section 59 makes it clear that the development charges shall be leviable on any person who undertakes or carries out any such
development or institutes or changes any such use. Sections-61 and 63 provides the procedure to be followed for ''assessment of development
charges'' and ''recovery of development charges''. Section 63A, dealing with apportionment of development charges, provides that CMDA shall
pay to CMWSSB those charges relatable to provision for or improvement of water supply or sewerage service in the Chennai Metropolitan
Planning Area.
In order to tackle the crisis in providing better facilities to all on account of the growing city population, development and enormous
construction activities, the Government introduced Section 6(2)(xii)(a) enabling the CMWSSB to collect the IDC from the applicant, builder or
developer of prescribed multistoreyed buildings or special buildings for providing water and sewerage connections. Section 81 of the CMWSS
Act enables the Board to make regulations for carrying out the purposes of the Act. Clause(jj) of Section 81(2) empowers the Board to prescribe
the manner in which the IDC is to be collected. It is not in dispute that the State is competent enough to bring forward such provisions. The main
grievance of the petitioner is that inasmuch Sections-45 and 56 of the CMWSS Act take care of provision of water supply and sewerage
connection and the applicants/persons concerned have to pay necessary charges for the same, there is no need to pay IDC.
Chapter-VI of the CMWSS Act speaks about Water Supply and Sewerage. Section-45 reads as follows:
Water connections for domestic consumption and use - (1) The authorised authority shall, on the application by the owner or occupier of any
building or premises, arrange to supply water thereto for domestic consumption and use if -
a) the building or premises is within thirty metres of a main of the Board from which water can be supplied; and
b) the cost of all works necessary for that purpose shall be borne by the applicant:
Provided that the authorised authority may arrange for supply even if the building or premises is beyond thirty metres as aforesaid if the applicant
agrees to bear all costs and expenses and if the supply is otherwise practicable.
Section-56, dealing with Sewerage connections, reads as follows:
Sewer connections: (1) The authorised authority shall, on the application of the owner or occupier of any premises or the owner of a private
street, arrange for the applicant''s house-sewer or other sewer in the private street to empty into a sewer of the Board if-
(a) there is a sewer of the Board within thirty metres of the nearest point from such premises or property;
(b) the owner or occupier agrees to bear all cost and expenses of the work and materials necessary for that purpose;
(c) the owner or occupier complies with such conditions and requirements as may be prescribed.
(2) If there is a public sewer or other place set apart by the Board for the discharge of the sewage within a distance not exceeding thirty metres of
the nearest point on any premises, or if within such distance, a Board''s sewer or other place for the discharge of sewage is about to be provided
or is in the process of construction, the authorised authority may-
(a) by notice direct the owner of the said premises to construct a sewer leading therefrom to such sewer or place and to execute all such works as
may be necessary at such owner''s expense, or
(b) cause to be constructed a sewer leading from the said premises to such Board''s sewer or place and cause to be executed all such works as
may be necessary:
Provided that -
(i) not less than fifteen days before constructing any sewer or executing any work under Clause (b), the authorised authority shall give notice to the
owner of the nature of the intended work and the estimated expenses recoverable from the owner; and
(ii) the expenses incurred by the authorised authority in constructing any sewer or executing any work under Clause (b) shall be recoverable from
the owner in such instalments as the Board may deem fit and recoverable in the same manner as tax under this Act.
The above provisions, viz., Sections-45 and 56 of the CMWSS Act, make it clear that on the application by the owner or occupier of any
building or premises, if the building is within 30 metres of a main of the Board from which water can be supplied, on payment of costs of all works,
necessary water connection will be provided. In the same way, sewerage connection is also to be provided as per Section-56. Here again, it
empowers the authority to recover the expenses incurred in constructing any sewer or executing any work. It is also clear that the expenses for
water/sewerage connection from the building or premises upto a main of the Board is to be borne out by the owner or occupier of the building or
premises. In fact, the petitioners have not quarrelled about those charges payable by the owner of the premises. However, one has to bear in mind
that, in order to draw water from various sources to meet the need of the people and also clear the sewage, the Board has to prepare a plan and
spend huge money for the same. In those circumstances, merely because the owner or occupier of a building or premises has just paid the costs of
the works necessary for getting connection, it cannot be contended that CMWSSB is not entitled to collect any other amount including IDC. As
explained by the Additional Advocate General, in view of the increasing population and sudden rise in building activities, the Board has to lay main
lines to take water from various sources and sewer lines to take the drain water outside the habitations, for which, undoubtedly, huge resources are
required. Further, it is the admitted fact that the claim on IDC is not applicable to all buildings. It applies only to Special and multistoreyed
buildings. It is also not in dispute that those buildings are being used by large number of people by virtue of more dwellings and, in that event, it is
the responsibility of the Board to provide adequate quantity of water and also make effective arrangements to clear the sewage. In such
circumstances, it cannot be contended that the demand of IDC has no nexus to the main scheme of the Act, accordingly, we reject the contention
that the demand is illegal, on the other hand, considering the huge number of development activities, we hold that the demand is legal.
Next, it is contended that fixing of Rs. 64/- per sq. metre is arbitrary and the Board has not passed any regulation to determine the amount and
recover the same. We intend to consider the above contention in two dimensions, viz., (a) as to whether the plea of the petitioners that there was
no Regulation, empowering the CMDA to collect the charges on behalf of CMWSSB, is factually correct; and (b) equity in charging flat rate of
Rs. 64/- per sq. metre.
16-A. After introducing the impugned provisions, the Board framed a regulation for levy and collection of IDC of multistoreyed and special
buildings on 30.12.1998. The following information furnished by the 2nd respondent is relevant:
Pursuant to the amendment of Section 6 and Section 81 of Chennai Metropolitan Water and Sewerage Board Act, 1978 (Tamil Nadu Act 28 of
1978) the Board make the following regulations in respect of levy and collection of infrastructure development charges in respect of multi-storeyed
and special buildings.
Short Title and Commencement:
1.(i) The regulation is called the Chennai Metropolitan Water Supply and Sewerage Infrastructure Development Charges (Levy and Collection)
Regulations, 1998.
(ii) The regulation comes into force with effect from 05.03.1998.
Definition:
In this regulations unless the otherwise requires ''Act'' means Chennai Metropolitan Water Supply and Sewerage Act, 1978 (Tamil Nadu Act
28 of 1978).
(a) Applicant mean and includes the applicant builder or developer of multi-storeyed buildings or special buildings as the case may be for the
provision of adequate water supply or sewerage and matters connected thereto.
(b) ''Multi-storeyed building'' means and block or buildings exceeding of 4 floors and/or 15 meters in height.
(c) ''Special building'' means any block or buildings means not less than three floors but not exceeding four floors.
(d) ''Infrastructure Development'' means any provision made by the Board regarding water supply and sewerage services and matters connected
therein.
The Board shall collect infrastructure development charges through Chennai Metropolitan Development Authority from the applicant of multi-
storeyed buildings or special building as the case may be for the provision of adequate water supply or sewerage and the matters connected
thereto at the flat rate of Rs. 64/- per sq. metre (of the built up area).
sd/-
C.P.SINGH,
30.12.98
Managing Director.
The above said Regulation is an answer to the contention that the CMDA has no power or authority to collect the charges on behalf of
CMWSSB. It is also relevant to refer to the decision of the Board of Directors of CMWSSB at the meeting held on 05.03.1998 at 10 A.M.
MINUTES OF 197th MEETING OF BOARD OF DIRECTORS OF CMWSS BOARD HELD ON 05.03.1998 AT 10.00 A.M.
AGENDA ITEM No. 26 RES.NO.64/98
AGENDA ITEM No. 26 RES.NO.64/98
----------------- -------------
SE(P&D) - NOC - CLEARANCE TO PLANNING PERMISSION
APPLICATION - POLICY DECISION TO BE TAKEN
------------------------------------------------
The Board observed that Infrastructure service charges shall incorporate the recovery of expenditure both on Water Supply and Sewerage and
resolved as follows:
1) to take a policy decision to issue NOC in respect of special buildings/multistoreyed flats cases on collection of a part of infrastructure
development charges;
2) to collect at a flat rate of Rs. 64/- per sq. m from the applicants towards infrastructure development charges which amounts to 10% of the
estimated expenditure on providing the infrastructure facility;
3) to write to Government to suitably amend the CMWSS Act, 1978 by incorporating explicit provision authorising CMWSS Board to make
appropriate regulations for collection for infrastructure developments charges;
4) to authorise CMDA to act as agent of CMWSS Board in so far as calculations, collection and remittance to this Board of the infrastructure
development charges as above are concerned and grant NOC to applicant/builders of Special buildings and multistoried flats without referring the
individual cases to this Board; and
5) to review the situation after one year.
sd/-
C.P. Singh,
05.03.1998.
Managing Director.
The above decision of the Board coupled with the Regulation referred to above undoubtedly authorises the CMDA to act as agent of the
CMWSSB in calculation, collection and remittance in respect of IDC.
16.B. Coming to the other segment, viz., equity in collection of flat rate of Rs. 64/- per sq. mt., it is seen that the Government, based on the
decision of the CMDA and CMWSSB, after verifying various aspects/materials, accepted the suggestion of the Board for collection of flat rate of
Rs. 64/- per sq. metre. In this regard, it is useful to refer to the following decision of the Government in G.O.D. No. 146, Housing and Urban
Development (VDI) Department, dated 2.6.1998,
...
The Government after careful consideration have decided to accept the request of the Vice Chairman, Chennai Metropolitan Development
Authority to modify the instructions already issued by the Government in their letter dated 31.12.92 first read above. They accordingly direct that
in modification of the instructions referred to in para 1 above, planning permission for the construction of Multistoreyed buildings be considered by
Chennai Metropolitan Development Authority after following the procedure suggested by Chennai Metropolitan Water Supply and Sewerage
Board for collection of a flat rate of Rs. 64/- per sq.m. from the applicants towards infrastructure development charges and pass on the same to
Chennai Metropolitan Water Supply and Sewerage Board without referring the individual cases to the Chennai Metropolitan Water Supply and
Sewerage Board, prior to placing the proposals before the Multistoreyed Building Panel. The collection of such charges for Special Buildings will
have to wait till the Chennai Metropolitan Water Supply and Sewerage Board Act is amended.
The Member Secretary, Chennai Metropolitan Development Authority is requested to take necessary further action based on the above
decisions in respect of all pending applications as well as for applications to be received in future.
ORDER OF THE GOVERNOR
sd/-
P.BASKARADOSS
SECRETARY TO GOVERNMENT.
It is clear that, before fixing a flat rate towards IDC in respect of ""special and multistoreyed buildings"" for provision of water and sewage, the
Government considered various aspects/materials supplied by CMDA as well as CMWSSB. It is for the Government and the respective bodies to
review the rate at the appropriate time depending on the demand and resources available with them. In the light of these particulars and of the fact
that the said flat rate is applicable only to Special and Multistoreyed buildings and the same is liable to be reviewed, the contention that the same is
arbitrary is liable to be rejected.
From the above discussion, we are satisfied that CMWSSB is charging the Infrastructure Development Charges only for the service rendered
and to strengthen and maintain the water supply and sewerage infrastructure. We have already referred to the substantive provisions in the Town
and Country Planning Act, Section-59 in particular, which enables the CMDA to levy development charges. Further, as explained in the counter
affidavit, the present method of demand/collection is beneficial to the applicant since at one place viz., at the time of processing of the plan, he pays
all the charges payable to the CMDA as well as CMWSSB. In other words, it helps the applicant to get processed the planning permission
application at one location ie., at CMDA, and to avoid duplication of work and to do the process simple under single window system. As
explained earlier, the charges collected not only covers the sewer lines or water lines provided for facilitating the applicants'' buildings but they are
also utilized for development of infrastructure right from the source of the distribution point in case of water supply and interception and collection
of sewage from the premises and disposal of the same after appropriate treatment at the Sewage Treatment Plant in case of sewerage. We accept
that the special buildings and multistoreyed buildings are responsible for the sudden spurt in demanding the infrastructure facilities at high rate and
sometimes it requires huge investments. We find that Sections-45 and 56 deal with charges for consumption of water and guidelines for availing the
water and sewage connection, whereas the IDC is collected for overall development of infrastructure as stated earlier. We are of the view that the
CMDA claimed the above charges only based on regulations and approval by the competent authority, ie., the Government.
Before winding up, we deem it necessary to summarise our views. If a legislation is based on equity, reasonableness and well accepted general
principles, just by colouring them to have stained with unconstitutionality or arbitrariness, the same cannot be defeated/struck down ignoring the
public interest and policy involved in such legislation. In the cases on hand, we find no substance whatsoever in any of the pleas projected by the
petitioners due to various reasons adverted to. In the modern society, one cannot imagine of a dwelling area without civic amenities. Burden
mounts on the Government when bloom water scarcity and other related civic exigencies, having adverse impact on the society as a whole and the
Governments undergo limitless pressure in finding solutions therefor. Any act of the Government or its agencies to provide better facilities to the
entire society by properly and reasonably balancing between the interests of two sets of citizens cannot be allowed to be canvassed as
unconstitutional so as to benefit one particular group of persons. One cannot feign ignorance of the various activities of the Government, which are
rather gigantic and burdensome in nature, towards providing better civic amenities viz., drawing water from various sources to combat the
challenges during water scarcity by spending considerable portion of revenue towards installation of adequate infrastructure, and also their effort to
balance between ecology and clearing the sewage by establishing treatment plants therefor. The other important aspect is, a ''multistoreyed
building'' or a ''special building'' cannot be treated on par with an individual dwelling. Such high buildings house large number of people compared
to ordinary houses and their water consumption level and discharge level (of sewage) are very high and, in case of any failure in the discharge
system or other problems, to remedy the same, a large portion of money is to be spent, sometimes, the process requires replacement of the entire
infrastructure, hence, the measures brought in by way of impugned provisions, which are only to render effective service to the public and to
provide quality-oriented service to one and all irrespective of the more level of damage caused to the infrastructure by the multistoreyed buildings
and special buildings, can never be underestimated to defeat the public cause at the cost of benefit to some individuals. Our earlier discussion on
the relevant aspects would lead to the only conclusion that the impugned provisions are in no way unconstitutional, ultra vires or arbitrary, instead,
they are based on equity and public interest, enabling the authorities to serve better the entire society. There is also no question of overlapping of
the provisions and, in fact, the provisions of the respective statutes including the impugned provisions complement each other. The same set of
reasonings is also applicable to the grounds raised in respect of charging flat rate of Rs. 64/- per square metre. There was proper delegation of
power in the light of the Act and the authority concerned did not violate any of the constitutional provisions or the principles of natural justice so as
to render the impugned provisions invalid. After all, by the present scheme articulated by the impugned provisions, everyone including the
petitioners, who also form part of the society, are going to be benefitted as it paves the way for smooth and uninterrupted flow of services from the
side of the authority, in such circumstances, we find no valid ground for interference.
In the light of the above discussion, we hold that both the impugned provisions, viz., 6(2)(xii-a) and 81(2)(jj) of the Chennai Metropolitan
Water Supply and Sewerage Act, 1978, are legal and valid. The consequential orders are also valid. Accordingly, all the Writ Petitions are
dismissed. No costs. Connected Miscellaneous Petitions are closed.