Anil Kumar Sen, J.
1. The point that arises for consideration in this writ petition is as to what should be the proper criterion for assessment of the fee payable to the Corporation of Calcutta for grant of permission to build as granted in the present case.
2. On the pleadings material facts are not disputed. Petitioner Archbishop of Calcutta, is the owner of plot No. 63, scheme No. LII C. I. T. within the municipal limits of Calcutta. He proposed to build a school for poor children and a chapel on the said plot out of a fund raised mainly from public charities. On March 23, 1967 he applied for necessary sanction of a building plan submitted to the Corporation of Calcutta. Under the Calcutta Municipal Act, 1951 and the scale of fees fixed by the Corporation thereunder certain fees for such sanction are payable to the Corporation. As such fees are payable on varying scales for varying types of buildings, there arose some dispute as to what should be the proper quantum of fee payable by the petitioner for the sanction prayed for. For early clearance of the plan for sanction, the petitioner was made to deposit on demand by the Corporation of Calcutta a sum of Rs. 14,280/-, when deposit was made on April 28, 1967. It appears that such amount was assessed calculating the fee at the highest rate and such amount represents the maximum payable fee under the scale so fixed by the Corporation. The deposit was made on demand by the Corporation obviously on an understanding that on the assessment of the correct amount of fee payable under the law any excess amount so realised would be refunded by the Corporation. Corporation accorded sanction on May 3, 1967. On July 25, 1967 the petitioner demanded refund of the excess amount realised from him on account of the fees payable for the disputed sanction.
Under paragraph 54 (4) of Schedule 16 to the Calcutta Municipal Act, 1951 every applicant for sanction of a building plan is liable to pay a fee which is to be assessed on a scale fixed by the Corporation with the approval of the State Government At the time when the sanction was sought for and granted the scale so fixed by the Corporation under the aforesaid statutory provision was as follows:--
'XII. Scale of fees for the grant of written permission under Rule 55 of Schedule XVI are as follows:--
(1) For building work upto 10,000 cft--Rs. 15.
(2) For building work from 10,001 to 20,000 cft--Rs. 30.
(3) For building work from 20,001 to 30,000 cft--Rs. 45.
(4) For building work from 30,001 to 40,000 cft--Rs. 65.
(5) For building work from 40,001 to 50,000 cft--Rs. 85.
(6) For building work thereafter for every additional 10,000 cft--Rs. 25.
(i) The above scale of fees be considered as the basic scale and will be applicable to dwelling houses only.
(ii) For domestic class buildings other than dwelling double basic rates be charged.
(iii) For warehouse class buildings within permissible area, three times the basic rates be charged.
(iv) For warehouse class buildings in non-declared areas and for public buildings as defined in Section 5(59) excluding charitable and educational institutions, etc., four times the basic rates be charged.
(v) For public buildings such as charitable and Educational institutions, etc. half the basic rates be charged, with the approval of the Standing Buildings Committee.'
But the scale so fixed was under revision by the Corporation for which Government approval had been sought for and was being awaited at the relevant time. The Government accorded its approval to the new revised scale on August 11, 1967. The scale so revised is as follows:--
REVISED SCALE OF SANCTION FEES
1.For building work upto10,000 cft...Rs. 22.002.For building work from10,001 cft to 20,000 cft...Rs. 45.003.For building work from20,001 cft to 30,000 cft...Rs. 70.004.For building work from30,001 cft to 40,000 cft... Rs 100.005.For building work from40,001 cft to 50,000 cft...Rs. 140.006.For building work thereafter for additional10,000 cft...Rs. 40.00
(i) above scale of fees be considered as the basic scale and will be applicable only to dwelling houses.
(ii) For domestic class building other than dwelling 3 times of the basic rates be charged.
(iii) For warehouse class building within permissible area 4 times of the basic rates be charged.
(iv) For public buildings as defined in Section 5/59 excluding charitable and educational institution etc. 6 times of the basic rates be charged.
(v) For public buildings such as charitable and educational institution etc., half the basic rate be charged, with the approval of the Corporation through the Standing Finance and Establishment Committee.'
Revision as aforesaid brought in two noteworthy changes. In the first place under the revised scale there had been a general enhancement of fees payable as basic rate and secondly, the fees payable in respect of public buildings other than those of charitable and educational institutions were enhanced to six times the basic rate from four times the basic rate as in the old scale.
3. It is not in dispute that in the present case the Corporation demanded Rupees 14,280/- from the petitioner assessing the fee payable not only under the revised scale which had not then received the Government approval but also under note (iv) thereof as ordinary public buildings. This the Corporation did notwithstanding the admitted position that the proposed building is a public building for a charitable and educational institution. In claiming refund, the petitioner pointed out that the fee for the sanction had been wrongly assessed under note (iv); it being a charitable and educational institution proper assessment should have been made under note (v). It was claimed that the petitioner is liable only to pay half the basic rate and not six times such rate as assessed by the Corporation and as realised from him. Though the refund was claimed immediately after the deposit and the sanction, the Corporation sat over the matter for a long time. Only on March 30, 1970 the petitioner was informed of a decision taken in a resolution dated December 23, 1969 by Standing Finance and Establishment Committee. The resolution so communicated is a laconic one and reads as follows:--
'that the Committee do express its regret that it is unable to entertain the proposal.'
Obviously such a decision was taken by the said Committee in purported exercise of its discretion to accord approval under note (v) of the revised scale though there is no indication in the resolution itself as to under what authority the decision was so taken. The decision, however, gives no reason. Strangely, what is not at all in dispute either now or at any time is that the building proposed is one of a charitable and educational institution. That being so, only fee payable, in my opinion, would be as specified in note (v) of the revised scale. It is the validity of this decision and the consequential refusal to refund the excess fees realised from the petitioner which is the subject-matter of challenge before me in this writ petition.
4. In the writ petition the petitioner sought to raise two points, namely, (1) that the building sanction fee could not have been realised at the revised scale even before it bad got statutory force on necessary approval of the State Government which was granted only on August 11, 1967, that is on a date after the application for the sanction and its grant and (2) that in any event the petitioner is liable only to pay half the basic rate and not six times the same, the building being admittedly one of a charitable and educational institution.
5. Mr. Basu, appearing on behalf of the petitioner, has strongly pressed the second point above referred to and has further conceded that if this point be accepted he would Dot press the other and would waive the petitioner's claim in respect of the marginal rise in the basic rate on application of the revised scale to the impugned sanction.
6. The Rule is being contested by the respondents. An affidavit has been filed on their behalf though material facts as pointed out earlier have not been disputed. Mr. Sircar is appearing at the hearing on behalf of the respondents and he is unable to contest or deny the position that the building for which sanction was sought for was one of a charitable and educational institution.
7. In my considered opinion the second point raised by the petitioner and pressed by Mr. Basu should succeed. When it is not in dispute that the building in question is one of a charitable or educational institution, the Corporation could not have at all realised the building sanction fee under note (iv) of the revised schedule as was admittedly done in the present case inasmuch as such a building is explicitly excluded from that clause. Note (iv) of the revised schedule -- it should be noted -- does not exclude buildings of only such charitable and educational institutions as are approved by the Corporation or the Committee specified in note (v). What arc excluded are buildings which are in fact buildings of charitable and educational institutions. Therefore, when, as a matter of fact, the proposed building is one of a charitable and educational institution, assessment and realisation of building sanction fee under note (iv) of the revised schedule are wholly unauthorised and beyond the sanction of law.
8. It is true that note (v) of the revised schedule lays down that public buildings such as charitable and educational institutions etc., would be liable to pay half the basic rate with the approval of the Corporation through the Standing Finance and Establishment Committee. But in my opinion true effect of this restrictive clause is to provide that such concessional rate shall not be sanctioned except through the Committee and on specific approval. So that only genuine cases of public institutions of that character are admitted to the benefit. I am, however, unable to read in this clause any authority for the Corporation to discriminate between one charitable or educational institution and another nor am I able to read this clause to confer any discrimination on the Corporation or the Committee to choose amongst charitable or educational institutions as to which should be given the benefit of the concessional rate. Such construction, if adopted, would not only bring in scope for unreasonable discrimination but would also lead to inconsistency in the scheme of schedule and render it unworkable. Even if I assume for a moment that note (v) of the revised schedule confers a discretion on the Corporation either to allow or to disallow the half rate as specified therein in respect of a building of a charitable or educational institution, that would lead to incongruous result. Corporation disapproving note (v) is ruled out, but under what clause the assessment is to be made? No other clause of the schedule would at all be applicable because it being a public building for a charitable and educational institution is excluded from note (iv) and other clauses have got no application. In the result, no fee whatsoever would be chargeable by the Corporation for such a sanction. This was certainly not the intention when the scales were fixed by the Corporation under Para 55 (4) of Schedule 16 to the Act. Therefore, in case of public buildings either of the two clauses, namely, Clause (iv) or (v) would apply according to the nature of the building. So that if it is a building of a charitable and educational institution it being excluded from Clause (iv) would necessarily come within Clause (v), - discretion being limited to find out whether it is truely one of the aforesaid character or not and thus eligible for the concessional rate. In the present case there is no doubt or dispute about the character of the building which is admittedly a building of a charitable and educational institution. Therefore, the Corporation could have assessed and realised sanction fee only under cl. (v) of the revised schedule and not Clause (iv) thereof. Corporation was apparently wrong not only in realising the building sanction fee at an unauthorised rate, it was equally wrong in refusing to assess the rate under Clause (v) and refund the excess.
9. Further, it must also be observed that the Standing Finance and Establishment Committee acted quite arbitrarily in refusing the prayer of the petitioner without assigning any reason in its resolution. Nor has it been able to make out any reason in this Court on the face of the challenge thrown by the petitioner.
10. Hence, the application succeeds; the impugned decision of the Corporation and the resolution of the Standing Finance and Establishment Committee dated December 23, 1969, are hereby set aside. Corporation is hereby directed to assess the proper fee payable by the petitioner for the disputed sanction under Clause (v) of the revised scale of fees and on such reassessment to refund the excess which might be found to have been realised from the petitioner on his depositing Rs. 14,280/-. Rule is made absolute.
11. Let a writ in the nature of Mandamus do issue incorporating the above direction. In view of the the unreasonable stand taken by the Corporation petitioner is entitled to the costs of this litigation and as such I direct the respondents to pay the costs to the petitioner -- hearing fee being assessed at ten gold mohurs.