S.W Puranik, J.:— The petitioners are residents of Dhule and own property situate within the jurisdiction of Municipal Council, Dhule. The grievance of the petitioners is that the 1st petitioner had submitted his lay out plans for approval to the Municipal Council in respect of land bearing Survey No. 472/1 + 2 admeasuring 7 acres 11 gunthas. The Chief Officer of the 1st respondent-Municipal Council has not considered the said plans for approval, but on the contrary he demanded payment of betterment charges at the rate of Rs. 20/- per square metre vide his letter dated 13th February 1991 as a condition precedent for considering the approval of the said plans. The demand is of about Rs. 3,75,000/-. It is the contention of the 1st petitioner that the said letter, Exhibit ‘A’ to the petition, is without the authority of law. He further submits that the Municipal Council is not authorised to claim betterment charges at the time of sanctioning of lay out plans as there is no such provision in the Maharashtra Municipalities Act, 1965, or Building Bye-laws. The petitioners also contend that Resolution No. 148 dated 11th November 1990 passed by the Municipal Council, Dhule, inter alia laying down that development charges should be recovered at the rate of Re. 1/- per square foot on the basis of total area of the plot of land in respect of which lay out plans are to be sanctioned, is also ultra vires and bad in law. The said resolution is also bad for the reason that it acts retrospectively even to those plans which were sanctioned between the period 1979-1980 to the date of resolution in 1990 and authorises the Chief Officer to make recoveries of development charges from the various landholders at that rate. The petitioners, therefore, pray for a writ quashing and setting aside the Resolution No. 148 dated 11th November 1990 as well as for a writ quashing and setting aside the demand of betterment charges made from the 1st petitioner vide letter dated 13th February 1991, Exhibit ‘A’ to the Petition, and for other consequential reliefs.

2. The 1st respondent-Municipal Council, while contesting this Petition, has contended that the Municipal Council as the planning authority under the Maharashtra Regional Town Planning Act is authorised to prepare its own Building Bye-laws and collect betterment charges. The 1st respondent further pointed out that the experience of the Municipal Council was that no sooner the lay out plans are sanctioned, the owners immediately dispose of the open plots and the transferes proceed to carry out construction of residential houses, etc. on such plots without anybody bothering about the required development of such lay out. No care whatsoever is taken for neatly constructing internal roads, making provision for draining out the waste water and storm water and ensuring the availability of proper place for the net-work of water supply or electric supply. It was found that the Municipal Council as the planning authority was required to shoulder the tremendous financials burden in majority of cases. According to Shri N.B Shah, learned Advocate for the 1st respondent, since the services are required to be provided by the Municipal Council, the 1st respondent is entitled to levy fees such as betterment charges and in particular as per the State Government, Urban Development Department's letter dated 21st October 1989 Bearing No. MCN. 1639.CR 569/8912. It was the contention of the 1st respondent that on that basis of the said letter, the Municipal Council is authorised to levy and collect betterment charges at the rate not less than Rs. 20/- per square metre. This letter is annexed as Annexure ‘A’ to the reply-affidavit dated 6th June 1991. Lastly, the 1st respondent relies on oral information of the Chief Officer from the Government to collect betterment charges at the rate not less than Rs. 20/- per square metre. On these points, the 1st respondent opposes the petition. By additional affidavit-in-reply filed by the 1st respondent, it was reiterated that as authorised by the Government of Maharashtra, the Municipal Council was entitled to recover betterment charges at the stage of sanction of lay out plan itself. Briefly stated, the additional reply-affidavit in paragraph 5 says as follows:—

“……I say that under section 328 of the Maharashtra Municipalities Act, the Municipal Council is entitled to recover the cost of the work which the Municipal Council is required to execute on failure on the part of the land-owners. Recovery provisions provided under the said provision take longer time and, therefore, as per the sanction of the State Government, the Municipal Council decided that at the time of the sanction of the plan one of the conditions should be that a person applying for the sanction of the lay out plan should be asked to deposit the amount as one of the conditions which the Municipal Council in the capacity of the Planning Authority is entitled to put under the provisions of section 45(2) of the Maharashtra Regional Town Planning Act.”

3. Having heard the learned Counsel Shri C.J Sawant for the petitioners, Shri N.B Shah for the 1st respondent and the learned Government Pleader Shri R.D Soni for the 2nd respondent, we are of the opinion that the petition will have to be allowed.

4. It need not be stated that the statutory body like the Municipal Council must act within the four corners of the Act under which it is established and the rules and bye-laws made thereunder. Section 183 of the Maharashtra Municipalities Act, 1965, reads as under:—

“183. (1) Every person intending to lay out or make a new street, shall give notice thereof in writing to the Chief Officer and shall furnish along with such notice plans and sections showing—

(a) the intended level, direction and width of the street;

(b) the situation and the boundaries of any buildings or plots abutting on such street or likely to be served by such street;

(c) the position of any public street or streets which the new street may have an accoss to;

(d) the arrangements to be made for the levelling, paving, metalling, flagging, channelling, draining, lighting or cleansing of the street;

and shall also furnish such other particulars as may be required by the by-laws, if any, made in this behalf.

(2) If such person fails to furnish all the information and documents required by sub-section (1), or if the Council deems it necessary to call for any further information or documents, the Chief Officer may, within thirty days of the receipt of the said notice, by a written notice require such person to furnish the required information or documents.

(3) Within sixty days after the receipt by the Chief Officer of the notice and the information in documents specified in sub-section (1), or if any further information or documents have been called for under sub-section (2), then within sixty days of the receipt of such further information and documents, the Council may—

(a) sanction the laying out or making of the new street subject to such modifications or conditions as it may think fit; or

(b) disallow it for reasons which shall be commnicated to the applicant in writing.

(4) If the Council fails to issue any order under sub-section (3) within the period specified in that sub-section, the person giving notice shall be entitled to lay out and make the proposed street in such manner as may have been specified in the notice under sub-section (1) and as is not inconsistent with any provision of this Act or of any by-law for the time being in force thereunder.

(5) If any person who is entitled to proceed with any work under sub-section (3) or (4) fails to carry out such work within one year from the date on which he becomes so entitled, his right to proceed with such work shall lapse.

(6) Whoever lays out or makes any such street either without giving the notice required by sub-section (1) or otherwise than in accordance with the instructions issued by the Council under clause (a) of sub-section (3), or in any manner contrary to the provisions of this Act, or of any bye-law in force thereunder shall, on conviction, be punished with fine which may extend to one thousand rupees, and the Council may cause any street so laid out or made, to be altered and any building constructed in such street to be altered or removed and the expense thereby incurred shall be paid to the council by the offender, and shall be recoverable in the same manner as an amount due on account of a property tax.

(7) Save as otherwise provided by or under the Act, the provisions of this Act and of any rules or bye-laws made thereunder as to the level and width of public streets and the height of buildings abutting thereon, shall apply also in the case of new private streets referred to in sub-section (1); and all particulars referred to in that sub-section shall be subject to the approval by the Council.”

Section 328 of the said Act enables the Municipal Council to execute certain works and recover the expenses and in default of the owner not executing such works. Section 328 reads as under:—

“328. (1) Where by or under this Act, any person is required to execute any work or do anything and default is made in the execution of such work or the doing of such thing, the Council, whether any penalty is or is not provided for such, default may cause such work to be executed; and the expenses thereby incurred shall, unless otherwise expressly provided in this Act, be paid to the Council by the persons by whom such work ought to have been executed, and shall be recoverable in the same manner as an amount claimed on account of a property tax, either in one sum or by instalments, as the council may deem fit:

Provided that—

(a) except as otherwise provided by or under this Act, a notice shall be issued to such person requiring him to execute such work or to do such thing;

(b) where any drainage scheme or water works scheme has been commenced by any council, it shall be lawful for the council, without prejudice to its powers under section 202 or any other provision of this Act, to make a special agreement with the owner of any building or land as to the manner in which the drainage or water-connection thereof shall be carried out and the pecuniary or other assistance, if any, which the council shall render; and any payment agreed upon by the owner shall be recovered in accordance with the terms of such agreement or in default in the manner described in sub-sections (2) and (3);

(c) where an order or requisition has been passed under sub-s. (1) of S. 175, S. 183, sub-sec. (4) or (12) of S. 189, or under Ss. 200, 202, 207 or 208, or where permission has been given under S. 204 or where an arrangement has been made under proviso (b) of this sub-section, the Council may, without prejudice to any other powers under this Act, if it thinks fit, declare any expenses incurred by the Council in the execution of such order or in the carrying out of such requisition, permission or arrangement to be improvement expenses. Improvement expenses shall be a charge upon the premises or land, and shall be levied in such instalments as the Council may decide, including interest at the rate of seven and a half per cent per annum, and shall be recoverable in the manner described in sub-sections (2) and (3).

(2) If the defaulter be the owner of any building or land in respect of which he is required to execute any work or do anything the Council may, by way of additional remedy, whether a suit or proceeding has been brought or taken against such owner or not, require, subject to the provisions of sub-section (3), the payment of all or any part of the expenses payable by the owner for the time being from the person who then, or any time thereafter, occupies the building or land under such owner; and in default of payment thereof by such occupier on demand, the same may be levied from such occupier, and every amount so leviable shall be recoverable in the same manner as an amount claimed on account of any property tax; every such occupier shall be entitled to deduct from the rent payable by him to his landlord so much as has been so paid by or recovered froms such occupier in respect of any such expenses.

(3) No occupier of any building or land shall be liable to pay more money in respect of any expenses charged by this Act on the owner thereof, than the amount of rent which is due from such occupier for the building or land in respect of which such expenses are payable, at the time of the demand made upon him or which at any time after such demand and notice not to pay rent to the landlord has accrued and become payable by such occupier, unless he neglects or refuses, upon application made to him for that purpose by the Council, truly to disclose the amount of his rent, and the name and the address of the person to whom such rent is payable but the burden of proof that the sum demanded of any such occupier is greater than the rent which was due by him at the time of such demand, or which has since accrued, shall be upon such occupier:

“Provided that, nothing herein contained shall be taken to affect any special contract made between any such occupier and the owner respecting the payment of any such expenses as aforesaid.”

5. The above provisions do not authorise the Municipal Council to levy advance betterment charges as a condition precedent for sanction of a lay out plan. Refusal to consider the lay out plan on failure to pay such advance amount, in our opinion, is totally illegal.

6. Under Section 322 of the Maharashtra Municipalities Act, the Council can make bye-laws with the previous sanction of the Collector or the State Government under the procedure laid down therein. However, the Municipal Council, Dhule, is ‘A’ Class Municipal Council. It has adopted standardised Building Bye-laws. Bye-law 6.4 prescribes fees as one of the conditions under S. 45(1)(ii) of the Maharashtra Regional Town Planning Act and Section 338 of the Maharashtra Municipalities Act. In the face of these bye-laws and provisions, the Municipal Council cannot make any demand contrary to the said bye-laws.

7. The petitioners in paragraph 4 of the Petition have pointed out a resolution of the Municipal Council dated 11th Nov. 1990 which is at Exhibit ‘C’ to the Petition. This Resolution No. 148 inter alia lays down that development charges should be recovered at the rate of Re. 1/- per square foot in respect of all lay out plans sanctioned or pending for sanction from 1979-1980 and also in respect of those lay out plans which were sanctioned without recovery of charges. The said resolution is also challenged.

8. We have already pointed out that the Municipal Council is not authorised to act contrary to the provisions of the Maharashtra Municipalities Act and bye-laws. The 1st respondent-Municipal Council is taking shelter under one letter, Annexure ‘A’ to the reply-affidavit dated 6th June, 1991. The said letter dated 21st October, 1989 is addressed by the Secretary to the Government, Urban Development Department, to the Chief Officer, Dhule Municipal Council. In paragraph 3 of the said letter, it is stated as follows:—

“(3) It was reported that the Municipal Council is not recovering cost of development of roads, drains, water supply, street lighting from original owners while approving the layout. The Municipal Engineer has stated that such recovery is now proposed at a rate of Rs. 12/- per sq. mt. The basis for such recovery related to construction of single carriage W.B.M with open drains. He has been instructed to revise the estimates so as to include cost of black topping, water supply and street lighting and such recovery should not be at a rate of less than Rs. 20/- persq. mt.

9. A reading of the said letter would indicate that it relates to the visit by the Secretary, Urban Development Department, to the Dhule Municipal Council on 18th October, 1989 and some of the instructions relating to the Municipal Administration conerning Dhule Municipal Council are paraphrased in the said letter. One may read the letter in any way. It certainly does not amount to an order of the Government. Even the Government must act and use its executive power only under law. A.D.O letter of the type relied upon by the 1st respondent from the Secretary, Urban Development Department, to the Chief Officer, cannot be construed as an order of the Government. The orders of the Government are required to be issued in the name of the Governor and are required to be authenticated under Art. 166 of the Constitution. Therefore, the action taken by the Municipal Council in pursuance of the said letter is totally illegal and liable to be quashed and set aside.

10. There are enough provisions under the Maharashtra Municipalities Act such as Sections 183 and 328 reproduced above, which provide that in default by the owner in executing the development work, the Council can execute the said work and can recover the cost from the owner. The owner is not only liable to pay the expenses incurred by the Council but if he fails to pay such amount, the same can be recovered in the same manner as amounts claimed on account of property tax.

11. We have no doubt that the present demand is in the nature of tax and has no sanction under law. The Municipal Council's resolution giving retrospective effect is also totally illegal. The demand made by the Chief Officer vide Exhibit ‘A’ to the Petition is also illegal and without authority of law. Even the contention of the Municipal Council that such advance deposit demanded towards future development would be treated as deposit also suffers from the same infirmities as the impugned demand.

12. Considering all these aspects, we have come to the conclusion that the Petition deserves to be allowed.

13. In the result, the Petition is allowed. Resolution No. 148 dated 11th Nov. 1990 passed by the 1st respondent-Municipal Council is hereby quashed and set aside and we direct the 1st respondent not to act upon the same. We also quash and set aside the demand of betterment charges made in the letter dated 13th February, 1991 issued to the 1st petitioner and such similar demands issued to other plot-holders. It follows therefore that the 1st respondent will approve the lay out plans according to the existing rules and bye-laws without making demand for betterment charges.

Rule is made absolute as above. In the circumstances of the case, there shall be no order as to costs.

Certified copy to be issued on priority basis.

Rule made absolute.