SRI. U.BHOJRAJ v. THE STATE OF KARNATAKA

(BY SMT. SPOORTHY V., HCGP FOR R1; SMT. SINCHANA. M.R, ADVOCATE FOR R3 AND R49 (VK NOT FILED) …RESPONDENTS THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO-QUASH THE CIRCULAR DATED 04.09.2015 ISSUED BY THE R-3 ANNEXURE- E IN SO FAR THE PETITIONERS IS CONCERNED QUASH THE GOVERNMENT ORDER DATED THE CORRIGENDUM ORDER DATED 28.02.2007 ISSUED BY THE R-2 MANDATING UPFRONT COLLECTION OF LABOUR WELFARE IS CESS ANNEXURE-F CONCERNED AND ETC., IN SO FAR THE PETITIONERS

18.01.2007 AND THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM ORAL ORDER Petitioner in the captioned petition has sought the following reliefs: i. Issue a writ or order by way of certiorari quashing the circular dated 04/09/2015, bearing No. Heninayo/JD(N)/DM3/PR /320/2015-16 issued by - 3 - NC: 2025:KHC:21298 WP No. 13067 of 2020 HC-KAR the Respondent No.3 (Annexure-E) in so far the Petitioners is concerned. ii. iii. iv. Government Issue a writ or order by way of certiorari quashing bearing No.LD/300/LET/2006 dated 18/01/2007 and the corrigendum order bearing No.LD/300/LET/2006, dated 28/02/2007 issued by the Respondent No.2 mandating upfront collection of labour welfare cess (Annexure-F) in so far the Petitioners is concerned. Issue a writ or order by way of certiorari quashing the demand notice dated 30/11/2019, bearing No. BBMP/Addl. Dir/JD South/0036/18-19 issued by the Respondent No.4 (Annexure-D) for demanding in so far it is concerned to Labour cess, Ground rent, Security deposit, revised License fee and scrutiny fee and etc., as illegal, without jurisdiction and arbitrary. Issue a writ or order or direction by way of mandamus directing the Respondent No.3 and 4 BBMP to issue the sanction plan for construction of commercial building in the Schedule Property without insisting the Labour cess, Ground rent, Security deposit, revised license fee, scrutiny fee and etc., and pass any such other orders) as this Hon'ble Court deems facts and circumstances of the case in the interest of justice and equity.

#2. It is brought to the notice of this Court that across the Bar, the issue is dealt by the Co-ordinate Bench in the reported judgment in W.P.No.36017/2018 and connected matters. The Co-ordinate Bench, while - 4 - NC: 2025:KHC:21298 WP No. 13067 of 2020 HC-KAR deciding the issue, has held that the bye-laws under which Ground Rent, License Fee, Building License fee, Scrutiny fee are levied are ultra vires the Act. The Co-ordinate Bench also quashed the circular dated 04.09.2015 and Government circulars dated 27.01.2017 and 30.03.2017. Therefore, this Court deems it fit to cull out the operative portion of the order, which reads as under; "ORDER (a) All the Writ Petitions are allowed. (b) The bye-laws under which Ground Rent, Licence Fee, Building Licence Fee, Scrutiny Fee, Security Deposit are all held ultravires the Act and are resultantly rendered unenforceable. (c)The Circular bearing No.ºÉ¤£ÀAiÉÆÃ/eÉ.r(G)/rJªÀiï3/¦Dgï/320/2015-16 dated 04.09.2015 stands quashed. (d) The Circular bearing No.£ÀCE 36 ¨ÉªÀÄ¥Áæ 2016 (¨sÁUÀ) dated 27.01.2017 and the Circular bearing No. ºÉ¤£ÀAiÉÆÃ/¦Dgï/1533/2016-17 dated

30.03.2017 demanding Lake Rejuvenation Fee are quashed. - 5 - NC: 2025:KHC:21298 WP No. 13067 of 2020 HC-KAR (e) Imposition of labour cess under the Welfare Cess Act is upheld, but its demand for payment upfront in terms of Government Orders dated

18.01.2007 and 28.02.2007 stands quashed. (f) The State or the BBMP is not precluded from bringing in the impugned levies under the provisions of the Act or the Rules by making suitable amendments to the Act and the Rules. 368 (g) Petitioners in all these petitions who have deposited certain amounts in terms of the interim order passed by this Court before this Court are entitled to refund of the amounts so deposited. (h) Insofar as refund in other cases who have paid to the Corporation under protest, they shall be entitled to such refund only if the same is not collected from the consumers of the apartments, businesses as the case would be. (i) Insofar as all other payments made, they would all be at liberty to give representation to the BBMP and the BBMP would consider the refund of the amounts, in accordance with law and the findings of this Court. (j) If representations are made by the petitioners for refund, the BBMP shall pass appropriate orders within 12 weeks the date of such representations. - 6 - NC: 2025:KHC:21298 WP No. 13067 of 2020 HC-KAR In view of disposal of the petitions, all pending Interlocutory Applications also stand disposed."

#3. In the considered view of this Court, the issues raised in the present writ petition stand squarely covered by the authoritative pronouncement rendered by the Co- ordinate Bench of this Court in W.P.No.36017/2018 and connected matters. The Co-ordinate Bench, after examining the statutory framework and the impugned levy mechanisms adopted by the BBMP, categorically held that the imposition of Ground Rent, Licence Fee, Building Licence Fee, Scrutiny Fee, and Security Deposit lacked statutory sanction and were ultra vires the Karnataka Municipal Corporations Act, 1976. The Co-ordinate Bench further held that Clause 3.8 of the BBMP Building Bye- laws, 2003, which provided for imposition of Ground Rent, was also devoid of legal authority and consequently struck it down. The Court also quashed the impugned Circular dated 04.09.2015 issued by respondent No.4, as well as the Government Orders

27.01.2017

30.03.2017, which had directed collection of such fees - 7 - NC: 2025:KHC:21298 WP No. 13067 of 2020 HC-KAR without statutory backing. With specific reference to labour welfare cess, the Co-ordinate Bench upheld the competence of the State to levy the cess under the Building and Other Construction Workers’ Welfare Cess Act, 1996, but set aside the directive mandating its upfront collection through Government Orders dated

18.01.2007 and 28.02.2007, thereby rendering demand raised in anticipation of sanction of building plans unlawful. The Co-ordinate Bench also clarified that the only charging provision available under the Act was sub- section (20-b) of Section 423, which merely enabled collection of fees for services relating to burial grounds and crematoria, and could not be relied upon for the imposition of unrelated charges such as ground rent or scrutiny fee. In light of these clear and binding findings, the controversy raised in the present writ petition does not survive for independent adjudication, as the grievance of the petitioner is directly addressed and resolved by the said judgment. Therefore, this Court is of the considered - 8 - NC: 2025:KHC:21298 WP No. 13067 of 2020 HC-KAR opinion that the present writ petition deserves to be allowed by applying the ratio and operative portion of the judgment rendered in W.P.No.36017/2018 and connected matters.

#4. In view of the above, this Court proceeds to pass the following; ORDER (i) The writ petition is allowed. (ii) The impugned demand notice

30.11.2019 issued by respondent No.4 as per Annexure-D is hereby set-aside. (iii) Respondent Nos.3 and 4 are hereby directed to issue fresh/modified plan as the case may be. (iv) Respondent Nos.3 and 4 are hereby directed forthwith process petitioner's application seeking building license and sanction of the building plan, strictly in accordance with law. - 9 - NC: 2025:KHC:21298 WP No. 13067 of 2020 HC-KAR (v) It is made clear that the issuance of the building license and approval plan shall not be withheld merely on the ground that the BBMP is contemplating to file an appeal against the reported judgment. (vi) If the building licence and sanction plan are issued, the same shall be subjected to the outcome of any appeal that may be filed by the BBMP against the judgment. Pending applications, if any, are also disposed off. SD/- (SACHIN SHANKAR MAGADUM) JUDGE PB List No.: 2 Sl No.: 4