JUDGMENT
K.A. Swami, J.
1. This Appeal by the defendant is preferred against the Judgment and decree dated 28-2-1979 passed by the learned VII Additional Civil Judge, Bangalore City in O.S. No. 284/1975.
2. The trial Court has decreed the suit for recovery of a sum of Rs. 2,05,098/- with proportionate costs and current interest at 6% per annum on Rs. 2,05,098/- from the date of suit till the date of realisation.
3. The respondent-plaintiff filed the aforesaid suit for recovery of a sum of Rs. 2,16,387/- from the defendant. The said sum was made up as follows:
1) Amount paid
on 7-10-1975
Rs. 1,99,914-00
Interest there on at 12% from 7-10-1975 till date
Rs. 10,995-42
2) Amount paid
on 9-12-1974
Rs. 5,184-00
Interest thereon at 12% from 9-12-1975 till date
Rs. 293-59
Total
Rs. 2,16,387-01
However, the trial Court has disallowed the interest as claimed by the plaintiff and has decreed the suit for a sum of Rs. 2,05,098/-.
4. The case of the plaintiff was that it had owned vast area measuring 67 acres 10 1/2 guntas in S. No. 88 to 104 of Byatarayanapura Village, Yelahanka Hobli, Bangalore North Taluk. It had agreed to sell the same to M/s. Larson & Toubro for establishing their factory; that for that purpose, it had obtained the sanction from the Deputy Commissioner for conversion of the land from agriculture to non-agricultural purposes; that it had applied to the defendant for sanction of the plan for establishing a factory; that the defendant insisted upon the payment of development charges/supervision charges; that as the establishment of the factory was going to be delayed, the plaintiff had no option but to pay the amount. Accordingly it paid a sum of Rs. 1,99,914/- on 9-10-1974 in respect of the plan to be sanctioned for the area measuring 65 acres 22 1/2 guntas and paid a further sum of Rs. 5,184/- in respect of the remaining area of 1 acre 26 1/2 guntas. It was also the case of the plaintiff that it paid the aforesaid amounts under protest as it was not liable to pay and the defendant was not entitled to recover it under any of the provisions of the City of Bangalore Improvement Act, 1945 (hereinafter referred to as the ‘Act’). The plaintiff also specifically pleaded that no supervision was conducted at any time by the defendant.
5. The defendant denied the suit claim and contended that it was entitled to claim and recover the amount under Sub-section (5) of Section 25 of the Act; that the plaintiff having paid the amount under the Agreements executed on 6-11-1974 and 10-3-1975, it was not open to the plaintiff to claim refund of the same.
6. In the light of the pleadings of the parties, the trial Court framed the following 8 issues:
1. Does the defendant prove that this Court has no territorial jurisdiction?
2. Does the plaintiff prove that the demand and collection of suit amounts as unilateral, arbitrary and illegal?
3. Does the plaintiff prove that the sum of Rs. 1,99,914/- was paid under protest? If so, is plaintiff estopped from filing the suit?
4. Does the defendant prove that the plan submitted by the plaintiff under cover of the letter dated 16-1-1974 is a ‘Layout’ within the meaning of that word as defined under Sub-section 20(a) of Section 3 of the Corporation of the City of Bangalore Act?
5. Does the defendant prove that it is entitled to demand and collect development/layout charges or supervision charges?
6. Does the plaintiff prove that it has served the statutory notice as required under Section 51 of the C.I.T.B. Act?
7. Does the defendant prove that the suit is barred by limitation?
8. To what reliefs are the parties entitled?
The trial Court also framed the following 4 additional issues:
1. Whether the agreements dated 6-11-1974 and 10-3-1975 executed by the plaintiff in favour of the defendant establish that the plaintiff has unconditionally agreed to pay the supervision charges and accepted that the land in question is a layout?
2. Whether in view of the aforesaid agreements, the plaintiff is estopped from claiming the suit claim?
3. Whether the plaintiff has paid to the defendant the sum of Rs. 5,184/- referred to in para 11 of the plaint unconditionally and whether the plaintiff is not entitled to refund of the same?
4. Does plaintiff prove that it is entitled at Rs. 12% p.a. on Rs. 1,99,914/- and Rs. 5,184/- from the respective dates of payment?
7. In support of its case, the plaintiff examined two witnesses as P.Ws.1 and 2 and produced 34 documents which were marked as Exhibits P-1 to P-34. However, the defendant did not produce any evidence.
8. The trial Court, on the basis of the evidence on record, answered issues 2, 3 and 6 in the affirmative and issues 1, 4, 5 and 7 and additional issue Nos. 1, 2 and 4 in the negative. However, it answered additional issue No. 3 in the affirmative but it held, even then, the plaintiff was entitled to refund of Rs. 5,184/- from the defendant because the defendant was not, in law, entitled to recover such sum. As already pointed out, the trial Court disallowed the interest claimed by the plaintiff. Thus the trial Court decreed the suit for a sum of Rs. 2,05,098/-.
9. In this Appeal, Sri A.J. Sadashiva, learned Counsel for the appellant-defendant contends that the trial Court is not justified in law in decreeing the suit inasmuch as the defendant is entitled under Sub-section (5) of Section 25 of the Act to claim the supervision charges in order to supervise the lay-out whether it be of industrial layout or private layout; that the plaintiff having executed Exhibits P-26 and P-27, it is not open to the plaintiff to contend that it is not liable to pay the supervision charges as agreed to and paid by it; that at any rate, there was no protest made by the plaintiff in respect of the amount paid under Ex.P-27, the trial Court ought to have disallowed the said sum.
10. In the light of the aforesaid contentions, the following points arise for consideration:
1. Whether the defendant was entitled to recover the sum of Rs. 1,99,914/- and Rs. 5,184/- under Sub-section (5) of Section 25 of the Act?
2. Whether the aforesaid amounts were paid by the plaintiff under protest?
3. Whether the trial Court is justified in law in passing a decree under appeal in the light of the agreements Exs.P-26 and P-27 executed by the plaintiff?
4. What order?
POINT No. 1
11. The undisputed facts of the case are: The entire area measured 67 acres 10 1/2 guntas. It was owned by the plaintiff. The plaintiff wanted to establish a factory. Therefore, it got the entire area converted for non-agricultural purposes from the concerned Deputy Commissioner and paid the non-agricultural fine. Thereafter it could not establish the factory. Therefore, it entered into an agreement with M/s. Larson & Toubro to sell the entire extent of 67 acres 10 1/2 guntas and executed an agreement of sale dated 11 -8-1973 as per Ex.P-34. It applied to the defendant for sanction of an industrial layout. The defendant insisted that the plaintiff was liable to deposit the supervision charges of Rs. 1,99,9147- at the rate of 9% of the Development Charges of Rs. 22,21,261/- calculated at the rate of Rs. 7/- per square yard of the sital area. Similarly in respect of the remaining extent of 1.26 1/2 acres also, the defendant claimed a sum of Rs. 5,184/- at the same rate towards supervision charges. The plaintiff paid a sum of Rs. 1,99,914/- under protest. The protest letter dated 7-10-1974 is marked as Ex.P-7. However, it did not file any such protest letter when it made the payment of Rs. 5,184/-.
12. The case of the plaintiff is that whether the payment is made under protest or not, the defendant is not, in law, entitled to claim and recover such amount as supervision charges in respect of the industrial layout Therefore, it is not entitled to recover the same. As already pointed out, the defendant has based its claim solely on Sub-section (5) of Section 25 of the Act. It reads thus:
“The Board may require the applicant to deposit before sanctioning the application, the sums necessary for meeting the expenditure for making road, side drains, culverts, underground drainage and water supply and lighting and the charges for such other purposes as such applicant may be called upon by the Board, provided the applicant also agrees to transfer the ownership of the roads, drains, water supply mains and open spaces laid out by him to the Board permanently without claiming any compensation therefor.”
Section 25 relates to forming of new extensions or layouts, making new private streets. The conditions necessary for attracting Sub-section (5) of Section 25 of the Act are that the defendant must incur expenditure for making road, side drains, culverts, underground drainage and water supply and lighting and the charges for such other purposes and the plaintiff must agree to transfer the ownership of the roads, drains, water supply mains and open spaces laid out to the defendant permanently without claiming any compensation therefor.
13. Sri Sadashiva, learned Counsel for the appellant-defendant contends that no doubt the appellant-defendant did not incur any expenditure for making roads, side drains, culverts, underground drainage and water supply and lighting etc. but nevertheless it was entitled to recover supervision charges as such demand fell within the expression “charges for such other purposes” as found in Sub-section (5) of Section 25 of the Act.
14. Before we deal with this contention, we may point out that it is the specific case of the plaintiff that no supervision was conducted by the defendant and no expenditure was incurred by it in this regard, We have already pointed out that the defendant has not produced any evidence. Therefore, the case of the plaintiff that the defendant had not supervised the work of laying roads, side drains, culverts, underground drainage and water supply and lighting, has been established,
15. We have already pointed out that it is not the case of the defendant that it has incurred any expenditure for the purpose of making the roads, side drains, culverts, underground drainage and water supply and fighting. It is not in dispute that It is an industrial layout for the purpose of establishing a factory and construction of other buildings and roads within the premises of the factory for the purpose of the factory. There are no sites formed for the purpose of selling the same to other persons. Therefore, the question of transferring the roads, side drains, water supply mains and open spaces laid out by the plaintiff to the defendant permanently without claiming any compensation does not arise. It is also not the case of the defendant that the plaintiff is liable to transfer the ownership of the roads, side drains and water supply and lighting and open spaces laid out by it within the premises of the factory in question. That being so, it is not possible to hold that the provisions of Sub-section (5) of Section 25 of the Act are attracted to the case on hand. If that be so, it is not open to the defendant to claim the amount by way of supervision charges. Supervision charges can be claimed on the amount of expenditure incurred by a person or an institution or a body corporate who forms a layout, lays roads, constructs side drains, culverts, underground drainage and water supply and secures power supply at his own cost under the supervision of the defendant for the purpose of selling the sites to others pr in the case of an institution or a House Building Co-operative Society or Housing Society allotting sites to its members, the roads, side drains, culverts, underground drainage and water supply and lighting mains will become common to all allottees of the sites and as such they become the public property. Therefore, the same have to be transferred to the defendant-Board so that it can maintain them for the benefit of the occupants and owners of the sites formed in such a layout No such question arises in respect of an industrial layout formed for the purpose of establishing a factory and constructing roads and buildings within its premises for the purpose of and use of the factory only. Therefore, looked from any point of view, the provisions of Sub-section (5) of Section 25 of the Act do not get attracted to a layout formed for the purpose of establishing a factory. That being so, defendant was and is not entitled to insist upon payment of supervision charges. Accordingly, point No. 1 is answered in the negative.
POINT No. 2
16. It is not in dispute that a sum of Rs. 1,99,914/- was paid under protest as evidenced by Ex.P-7, However, the remaining sum of Rs. 5,184/- was not paid under protest. It makes no difference because the defendant is a statutory authority. It cannot charge and recover any amount from anyone without the authority of law. Therefore, whether the amount was paid under protest or not, it did not make any difference because the defendant, in law, was not entitled to claim charge and recover such sums. Accordingly point No,2 is answered as follows:
“A sum of Rs. 1,99,914/- was paid under protest. The other sum of Rs. 5,184/- was paid without protest but in law, it did not make any difference and it did not entitle the defendant to retain that amount,”
POINT No. 3
17. Exs.P-26 and P-27 would have had efficacy in few provided the defendant had an authority under the Act to recover the sums covered under Exs.P-26 and P-27, We have held under point No. 1 that the defendant has had no authority to collect the aforesaid, sums under Section 25(5) of the Act under which it purported to collect the aforesaid sums in respect of the industrial layout formed for establishing the factory. Therefore, the fact that under Exs.P-26 and P-27, the plaintiff agreed to pay the sums mentioned therein did not in any way disable the plaintiff to claim refund of the same as long as the defendant, in law, was and is not entitled to collect the said sums. The plaintiff had not paid the amount gratuitously. It was collected from it by the defendant in the purported exercised of its authority under Section 25(5) of the Act which, as held by us, did not confer any such authority upon the defendant in the case of a layout formed for establishment of a factory. Point No. 3 is accordingly answered in the affirmative.
POINT No. 4
18. In view of the findings recorded on points Nos. 1 to 3, the Appeal is liable to fail. Accordingly, it is dismissed. However, in the facts and circumstances of the case, we pass no order as to costs.