The court upheld the validity of the drainage development fee imposed by the Corporation and confirmed its entitlement to appropriate the fee paid by the respondent.

I.P. MUKERJI, J.

APO No.344 of 2009

1. The issues involved in these appeals are about imposition and recovery of drainage development fee by the Kolkata Municipal Corporation (hereinafter “the appellant Corporation”), on sanction of building plans by them. The respondents (hereinafter “the respondent writ petitioners” and referring to the writ petitioner company only) herein filed a writ application in this court (WP 2332 of 2003) against inter alia the appellant Corporation seeking quashing of the decision imposing this fee. The respondent writ petitioner also claimed refund of a sum of Rs.22,08,178/- paid by them in this behalf for the building numbered as E/1, Circular Garden Reach Road, Kolkata- 24.

2. The learned single Judge in delivering the impugned judgment on 17th November, 2009 felt himself bound by the judgment of a division bench of this court made on 14th May, 2007 in the case of Asian Leather Limited and Anr. v. Kolkata Municipal Corporation and Ors. reported in 2007 (3) CHN 476. In that judgment of this court presided over by Mr. Justice Bhaskar Bhattacharya had quashed the circular making this demand and directed refund of the fee paid by the appellants before that Court.

3. Following this judgment, by the said impugned judgment dated 17th November, 2009 this court directed refund of the sum of Rs. 22,08,172/- by the appellant Corporation to the respondent petitioner within eight weeks of communication of the order.

4. The Kolkata Municipal Corporation appeals to us against this judgment. Now, it is necessary to set out the background.

5. The building plan for the said premises was held up by the appellant Corporation. Their point of view was, that it could be considered for sanction once the drainage development fees were paid in full.

6. Initially the amount claimed by the respondent corporation towards drainage development fee was Rs.1,47,21,187/-. On a consideration of the letter of the respondent/writ petitioner dated 20th February, 2002 the appellant Corporation reduced the demand to Rs.22,08,178/-.

7. On 30th January, 2003, the appellant Corporation wrote to the respondent/writ petitioner acknowledging receipt of Rs.88,900/- as part payment towards fee of Rs.22,08,178/-. The latter was asked to pay the balance amount of Rs.21,19,278/-. On 6th February, 2003, the respondent/writ petitioner replied that without prejudice to “the legality of the drainage charges levied” they were making payment of Rs.21,19,278/-in full payment of the claimed fee “under protest”.

8. Mr. Ashok Kumar Banerjee learned senior counsel appearing for the appellant Corporation argued that the respondent/writ petioner was always ready and willing to bear the drainage development fee. Having once agreed to pay the drainage development fee, they could not resile from that promise and set up the defence of illegality.

9. We are unable to appreciate this line of argument. If a demand is illegal, it is void ab initio. Even if it is acted upon, it has no consequences. The respondent was within their rights to pay the sum of Rs.22,08,172/-and get their work done, saying that this amount was being paid without prejudice. Sometime in 2003, to be more precise on or about 28th November, 2003 the respondent writ petitioner filed the instant writ application in this Court seeking a declaration that the recovery of drainage fees by the appellant corporation was invalid in law. Furthermore, they claimed refund of the sum of Rs.22,08,172/- from them.

10. Now, when this writ came up for hearing before the Hon’ble Mr. Justice Girish Chandra Gupta on 17th November, 2009, his lordship observed that since the decision of the appellant Corporation imposing the said fee had been quashed in the earlier writ of Asian Leather, there was no necessity to pass a second quashing order. However, the only contention which seems to have been made before the learned trial Judge by the appellant Corporation was that a writ was not the appropriate remedy for the respon