Prakash Narain, C.J.
(1) This is an appeal under Clause X of the Letters Patent of the Punjab High Court, as applicable to this court, against the judgment of a learned Single Judge of this court who disposed of a petition under Article 226 of the Constitution of India, filed by the appellants, challenging certain demands made by the first respondent prior to its taking over the various services in the residential colony developed by the first appellant.
(2) A mandamus was sought by the appellants against the Municipal Corporation of Delhi, respondent No. 1, directing the Municipal Corporation of Delhi to take over the services and perform all the functions under Section 42 of the Delhi Municipal Corporation Act, 1957 in the residential colony developed by the petitioners, known as Panchshila Park. Respondent No. I was willing to take over the various services provided the appellants either rectified or paid for the deficiencies in the various services provided in the colony. Aggrieved, the appellants filed a writ petition contending that nothing was payable and the Municipal Corporation of Delhi was under an obligation to take over the services and maintain the same. The services in respect of which the dispute has arisen are the sewage, horticulture work and roads. The colony has two blocks, which may be described as 'North Block' and 'South Block'. These two blocks were developed and constructed upon at different points of time. The two blocks are divided by a public road which passes through the middle of the land allotted to the appellant society. The lay out plan of the 'North Block' was submitted to the M.G.D. on May 24, 1963. The same was approved by the Standing Committee of the M G. D. and the approval was conveyed to the first appellant by a letter dated December 30, 1964. Along with the lay out plan, which was submitted to the M. G. D, service plans for water supply, sewage scheme and roads were also submitted. According to the conditions on which the lay out plan was sanctioned, the first appellant had to lay the services as per the service plans within a period of one year though this date was extended at the request of the first appellant from time to time. Once services had been laid an application had to be moved for permission to commence building activity. At that stage the services are checked by the officials of the M.G.D. and a report of deficiencies, if any, is put up. These deficiencies have to be removed before commencing building activity. Thus the services comprising of water supply system, sewage system, and street lighting had all to be completed along with the laying of roads and storm water drains prior to the commencement of the building activity. Before these services were to be taken over by the Municipal Corporation of Delhi, it was necessary that 50 per cent of the houses should have been constructed in the colony. This procedure was in vogue till September 11, 1970. Thereafter it has been resolved by the M.G.D that services of a colony could be taken over at the time of allowing the building activities after charging maintenance charges for water supply, sewage, storm water drains for 2' years. It was also resolved to charge 5 paise per sq. yard of the total area of the colony for horticulture work. There was thus an obvious difference between the procedure to be followed prior to September 11, 1970 and thereafter.
(3) When the first appellant applied for building activity in the 'North Block' the old procedure was in force. Accordingly, an inspection was made and deficiency reports were submitted. These were with regard to roads and storm water drain and for these two, the cost of deficiencies was Rs. 73,100.00 .Rs. 60,000.00 was demanded for construction of water storage tank. The first appellant was asked to deposit the amounts, Rs. 73,100.00 only by way of security, and also to give an undertaking that these deficiencies would be removed and all blockages cleared before the colony is taken over. The first appellant deposited these amounts on March 5, 1966. On June 3, 1967 the first appellant informed the M.G.D. that it had completed both these items, i.e premix carpet had been laid on all the roads in the northern area and all the storm water drains had been plastered and consequently requested for releasing of its security of Rs. 73,100/ -. On January 3, 1970 the first appellant wrote to the M.G.D. that out of 135 sanctioned plots in the 'North Block' 71 houses had been completed and requested that the services may be taken over.
(4) With regard to the 'South Block' the lay out plan was sanctioned by the M.G.D. on December 12, 1966 subject to certain conditions. Condition No. 10 was that the Society shall have to pay the share of the cost of the trunk services as may be intimated to them by the Corporation. Certain deficiencies in the storm water drains, road and water supply and drainage were pointed out by the M.G.D. to the first appellant by a letter dated July 13, 1967. Rs. 39,543.00 were required to be deposited before grant of building permission. The first appellant deposited Rs. 40,000/ - and by its letter dated July 13, 1967 and another letter of February 7, 1968 informed the M.G.D. and the Town Planner that the deficiencies had been removed. The Town Planner agreed to release Rs. 40,000/ -. On December 5, 1970 a request was made to take over the services as 50 per cent of the houses had been constructed.
(5) It is thereafter that again a complete checking was done and deficiencies were pointed out in roads and storm water drains, parks and open spaces. Rs. 81,000/ - was also demanded towards proportionate cost of the trunk sewer. The demand was reviewed and ultimately the deficiencies for roads and storm water drains were fixed at Rs.61,983.00 , the proportionate cost of the trunk sewer was fixed at Rs. 81,000.00 and the deficiencies for horticulture work were fixed at Rs. 10,89,700/'. The first appellant disputed that there were any deficiencies and that is how they filed the writ petition.
(6) The learned Single Judge came to the conclusion that the procedure applicable to the first appellant was the procedure prevalent prior to September 1 1, 1970 and that in the ultimate analysis the demand of the Corporation for Rs. l,98,500.00 for deficiencies on account of trunk sewer will have to be modified so as to exclude the proportionate cost for the 'North Block' only as this condition for sanctioned lay out was with regard to 'South Block' and not for 'North Block'. The M.G.D. was held to be not justified in demanding the amount for alleged deficiencies on account of horticulture work in either of the two blocks. With regard to the deficiencies in roads, viz., the claim for which was Rs l,88,000.00 and Rs.61,983.00 )the learned Judge held that these will have to be worked out with reference to the dates on which request was made to take over the service and not with reference to any other date. The M.C.D. was directed to recompute the demands which would have to be met by the first appellant.
(7) In appeal two points have been urged. First, that no general tax, scavenging or fire tax could be levied till the MC.D. does its statutory duty of maintaining roads, sewers etc. as these taxes are in the nature of fees and not tax. Secondly, it has been urged that the charge for deficiencies, if any, has to be calculated on the basis of the date of the sanction of the lay out plan or at least the date on which permission was granted to commence building activity and not with reference to the date on which request is made to M.G.D. to take over the services. In our view, neither of the two points has any force.
(8) A Division Bench of this Court in Delhi Stale Government Employees Co-operative House Building Society Ltd. & Others v. The Municipal Corporation of Delhi & Others : 81ITR604(Delhi) , has clearly laid down that the levy and collection of property tax by the Corporation under the Delhi Municipal Corporation Act, 1957 is not dependent upon the taking over of the services or providing of civic amenities mentioned in the various clauses of Section 42 of the Act. We see no reason to differ with this view. Learned counsel for the appellants referred to a decision of the Supreme Court in Municipal Corporation of Delhi and others v. Mohd. Yasin 23 (1983) DLT 493 In our opinion, this decision does not help the learned counsel at all. This was an appeal from a decision of this court reported as 1970 (1) Delhi 612. The dispute was regarding the enhancement of the fee for slaughtering animals by the Municipal Corporation of Delhi from Re 00.25 to Rs. 2.00 per animal in the case of sheep, goats and pigs and from Re. 1.00 to Rs. 8.00 in the case of buffaloes. The notification was quashed by this court on the ground that the Corporation wag really proposing to levy a tax under the guise of enhancing the fee. The plea of the butchers was accepted by the High Court that the fee was being increased disproportionately to the costs of the services rendered and thus it became a tax. In this context their Lordships of the Supreme Court observed that there was no generic difference between a tax and a fee, though broadly a tax is a compulsory exaction as part of a common burden, without promise of any special advantages to classes of tax payers whereas a fee is a payment for services rendered, benefit provided or privilege conferred. Compulsion is not the hall-mark of the distinction between a tax and a fee. That the money collected does not go into a separate fund but goes into the consolidated fund does not also necessarily make a levy a tax. Though a fee must have relation to the services rendered, or the advantages conferred, such relation need not be direct; a mere casual relation may be enough. Further, neither the incidence of the fee nor the service rendered need be uniform. Quid pro quo in the strict sense is not the one and only true index of a fee; nor is it necessarily absent in a tax. The three taxes to which the appellant has referred are levied as taxes and have no relation whatsoever with any services to be rendered by the Corporation. thereforee, the first contention has to be rejected.
(9) With regard to the second contention, again, a Bench of this Court in The Refugees Co-operative Housing Society Ltd. and others v. The Municipal Corporation of Delhi and another 1972 (1) Delhi 755, reiterated its earlier view in : 81ITR604(Delhi) that the coloniser is under an obligation to develop the land fully and lay the services in accordance with the lay out plan because the lay out was approved and sanctioned on that condition. The coloniser is bound by the conditions on which the lay out plan was sanctioned. The Corporation was under an obligation to take over and maintain the services by reasons of the mandatory provisions in Section 42 of the Delhi Municipal Corporation Act but the statutory obligation arises only if the requirements in the relevant clause or clauses of Section 42 are satisfied. If the requirements are satisfied, the Corporation is bound to take over the services mentioned in Section 42 and maintain them. However, the taking over of the services is dependent upon the satisfaction of the Corporation that the services have been laid out fully and properly. Reference by learned counsel for the appellants to : 3SCR1217 are of little avail on either of the two points urged.
(10) No doubt certain deficiencies were pointed out before grant of building permission and amounts were deposited for removal of those deficiencies or by way of security for the same. Thereafter building permission was granted. During building operation or prior to that there was no request made to take over the services. The Municipal Corporation of Delhi was also under no obligation to do so because it is nobody's case that at any point of time prior to the making of the request by the first appellant to take over the services any demand had been made either by the residents or anyone else with respect to the Corporation taking over the roads and streets or any other services. The services which the Corporation is required to maintain by virtue of the obligation imposed upon it by Section 42 of the Act are the services which are provided by the Corporation and not the services provided by a coloniser or an individual in his own property. Till the services in the property of the individual or the coloniser are handed over or taken over by the Corporation it would be under no obligation under Section 42 to maintain the same. ft is, however, bound to take over the services when the request is made provided the services provided by the coloniser are in serviceable condition. If there are deficiencies the coloniser is to remove the same or jiy for removal of the same. The payment naturally has to be made for the deficiencies existing on the date on which the request to take over is made and not with reference to any other date. It is not understandable how the appellants contend that they arc liable to pay for deficiencies only for such of those and at the rate prevalent when the building activity was permitted. The building activity is permitted on completion of services or if there are deficiencies on deposit of the amount to meet those deficiencies as a condition of the sanction of the Jay out plan. It is not statutory and the Corporation does not enter into any obligation at that stage to take over the services. The taking over comes at a later stage. The procedure, however, has been changed from September 11, 1970. What the first appellant wants is that the later procedure should apply in its case. This is not possible. The Jay out plans were sanctioned under the earlier procedure and the condition relevant to that procedure alone would be attracted.
(11) We, thereforee, find no force in this appeal. We uphold the decision of the learned Single Judge that the demand of the Corporation for Rs. l,98,500.00 for deficiencies on account of trunk sewerage will have to be modified so as to exclude the proportionate cost for 'North Block' only which has been found to be not authorised. We also uphold the finding of the learned Single Judge that the demand for horticulture work was unjustified. There was no such condition at the time of the sanction of the lay out plan. With regard to the demands for Rs. 1,88,000.00 and Rs. 61,983.00 for deficiencies in roads and storm water drains, these deficiencies should be worked out with reference to the deficiencies existing on December 5, 1970, when request was made to take over the services on the ground that 50 per cent of the houses had been constructed in the 'South Block' and 50 per cent of the houses had been constructed in combined 'North' and 'South' Blocks. We uphold the decision with regard to Rs. 1,88,000.00 of the learned Single Judge but cannot agree with the finding that the claim of Rs. 61,983.00 was a contentious matter. This can also be worked out.
(12) With the above observations the appeal is dismissed with costs. Counsel's fee Rs. 550.00.