# Cantonment Board v. Union Of India & Anr

- **Citation:** (2016) 8 ILRA 339
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-24
- **Bench:** Sudhir Agarwal, Dr. Kaushal Jayendra Thaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/cantonment-board-v-union-of-india-anr-44252
- **Pages:** 16

## Text

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8 All. Cantonment Board Vs Union Of India & Anr.
339
(2016) 8 ILRA 339
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.08.2016

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE DR. KAUSHAL JAYENDRA THAKER, J.

Writ Tax No.- 1316 Of 2012

Cantonment Board ...Petitioner
Versus
Union Of India & Anr. ...Respondents

Counsel for Petitioner:
Shakti Dhar Dube

Counsel for Respondents:
Praveen Kumar Srivastava
Held

A writ of mandamus for recovery of "service charges" is not maintainable unless there exists a clear
statutory right in favour of the petitioner and a corresponding statutory obligation upon the
respondents.
Under the Cantonments Act, 1924, there was no provision empowering the Cantonment Board to levy
or recover "service charges" from the Central Government.
The concept of "service charges" was introduced for the first time under Section 109 of the Cantonments
Act, 2006, and therefore such charges can be levied only prospectively and not for periods prior to 2006.
Even under Section 109, liability to pay service charges arises only when:
Proper computation is made, and
Such computation is based on guidelines issued by the Central/State Government.
In absence of such guidelines and computation, no enforceable liability arises.
The petitioner failed to show how the amount claimed was calculated in accordance with statutory
provisions or guidelines, hence the demand was unsustainable.
No agreement or consensus existed between the Cantonment Board and the respondents regarding
payment of service charges, which is relevant in light of judicial precedents.
The claim involved seriously disputed questions of fact (such as nature of services rendered), which
cannot be adjudicated in writ jurisdiction under Article 226.
Recovery of such dues, if any, must be pursued through appropriate civil remedies (e.g., civil suit) and
not through writ proceedings.
Filing the writ petition for recovery of monetary dues without statutory backing was held to be an abuse of
process of law.
Consequently, the writ petition was dismissed with costs of ₹50,000.

CASE LAW CITED

Rajkot Municipal Corporation v. Union of India
Union of India v. State of U.P.
340 INDIAN LAW REPORTS ALLAHABAD SERIES

Cantonment Board Varanasi v. Union of India
Cantonment Board Agra v. Union of India
Oriental Bank of Commerce v. Sunder Lal Jain
Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh
Lekhraj Sathramdas Lalwani v. N.M. Shah
Dr. Uma Kant Saran v. State of Bihar

(Delivered by Hon'ble Sudhir Agarwal, J.
&
Hon'ble Dr. Kaushal Jayendra Thaker, J.)

1. Petitioner before us, Cantonment Board, Kanpur ( hereinafter referred to as "Board") has
filed this writ petition under Article 226 of Constitution of India seeking a writ of mandamus
commanding respondents i.e. Union of India through Ministry of Railway, New Delhi ( hereinafter
referred to as "MOR") and North Central Railway, Allahabad through its General Manager (
hereinafter referred to as "NCR") to pay Rs.40,03,49,545/- towards minimum rate of "Service
Charges" for the period of 1982-83 to 2012-13, along with interest at the rate of 18 per cent per
annum till the date of payment. It is said that property of MOR and NCR is situated in Cantonment
area, Kanpur, enjoying municipal facilities like approach roads, light, environmental and other
facilities, directly as well as indirectly. Therefore, those properties cannot be absolved from
liability of payment of "Service Charges" to petitioner- Cantonment Board.

2. Reliance is placed on Government of India, Ministry of Finance letters dated 10th May,
1954 and 29th March, 1967 wherein it was communicated that properties of Government of India
are exempt from all taxes imposed by local bodies or State but Government of India agrees to pay
tax atleast for service rendered by local body which will be termed as "Service Charge".
Government of India, Ministry of Finance also issued a Circular dated 14th September, 1984
referring to procedure to be followed for computation of "Service Charge". Government of India,
Ministry of Urban Development also issued a circular dated 26th April, 1994 stressing upon
Ministry of Finance's earlier Circulars dated 10th May, 1954 and 29th March, 1967, and reiterating
its general agreement for payment of "Service Charges" for the services rendered by local bodies.

3. Cantonment Board relied on Sections 108 and 109 of Cantonments Act, 2006 (
hereinafter referred to as "Act, 2006") so as to entitle and empower to demand "Service Charges"
from respondents. It is said that Chief Executive Officer, Cantonment Board, Kanpur sent a letter
dated 5th September, 2011 demanding Rs.33,20,43,460/- from NCR Authorities as "Service
Charge" for the period of 1st April, 1982 to 31st March, 2013. Since respondents failed to pay the
aforesaid amount, Chief Executive Officer requested its Counsel, vide letter dated 14th September,
2012, to file a writ petition for recovery of Rs.40,03,49,545/- being "Service Charges" for the
period 1st April, 1982 to 31st March, 2013. The computation of amount has been demonstrated in
Annexure -3 to writ petition, for the period 1st April, 1982 to 31st March, 2010, i.e. for 28 years, as
under :

Land Revenue
Rs.
2,25,87,99,200.00
8 All. Cantonment Board Vs Union Of India & Anr.
341
Rental Value-9% of Capital Value
Rs.
20,32,91,928.00
Property Tax-17.5% of Rental Value
Rs.
35,57,608.00
Service Charges-33-1/3% of percentage
Rs.
1,18,58,695.00

Total for 28 years = Rs.1,18,58,695 x 28 =Rs. 33,20,43,460/-

4. "Service charge" has been computed as Rs.33,20,43,460/- by multiplying
Rs.1,18,58,695/- with 28 years. When we called upon learned counsel for petitioner to show, how a
writ of mandamus would lie compelling respondents to pay the aforesaid amount, he placed
reliance on Apex Court's order in Rajkot Municipal Corporation and others Vs. Union of India
and others, (2010-CALHN(SC)-3-168) as also a Division Bench judgment of this Court in
Cantonment Board, Varansi through Chief Executive Officer Vs. Union of India and others,
Writ Tax No. 1292 of 2011, decided on 3.10.2013.

5. We also enquired as to how Act, 2006 is referable and applicable in respect to demand
raised for the period before enforcement of the said Act, whereupon, learned counsel for petitioner
stated that it had similar power of demand of "Service Charges" under Old Act also. We have to
first examine authority of petitioners to raise such demand under Law.

6. Earlier, Cantonments Act, 1924 (hereinafter referred to as "Act, 1924") was enacted to
consolidate and amend laws relating to Management of Cantonment. Chapter -V of Act, 1924 deals
with 'Txation' running from Sections 60 to 105. General power of taxation is conferred by Section
60 and reads as under:

"60. General power of taxation .-(1) The Board may, with the previous sanction of
the Central Government, impose in any cantonment any tax which , under any enactment for the
time being in force, may be imposed in any municipality in the state wherein such cantonment is
situated.

(2) Any tax imposed under this section shall take effect from the date of its
notification in the Official Gazette or where any later date is specified in this behalf in the
notification, from such later date."

(emphasis added)

7. There is inbuilt machinery provided in Chapter V as to the manner in which a 'Tax' shall
be imposed, assessment of 'Tax' and redressal or adjudication of dispute in respect of 'Tax', if any.
Section 92 provides the manner of recovery of such 'Tax' and reads as under: -

" Recovery of tax.-(1) If the person liable for the payment of any tax does not,
within thirty days from the service of the notice of demand, pay the amount due, or show sufficient
cause for non-payment of the same to the satisfaction of the Executive Officer, such sum, with all
costs of recovery, may be recovered under a warrant, issued in the form set forth in Schedule II, by
342 INDIAN LAW REPORTS ALLAHABAD SERIES

distress and sale of the movable property, or attachment and sale of the immovable property of the
defaulter:

Provided that the Executive Officer shall not recover any sum the liability for which
has been remitted on appeal under this Chapter:

Provided further that the sale of any immovable property attached under this subsection shall not be made, save under the orders of the Board.

(2) Every warrant issued under this section shall be signed by the Executive Officer.

8. It is not the case of petitioner that any demand of Tax has been raised with reference to
Section 60 of Act, 1924, therefore impugned demand is not in reference to Section 60.

9. Every "Cantonment Board" is declared to be a Municipal Committee for the purposes of
Municipal Taxation Act, 1881 ( hereinafter referred to as "Act, 1881") by virtue of Section 97 of
Act, 1924. Chapter XIII talks of water supply, lighting and drainage. Section 217 places an
obligation upon Cantonment Board to provide or arrange for sufficient supply of pure water for
domestic use where it does not already exist and reads as under : -

"217. Maintenance of water supply. -(1) In every cantonment where a sufficient
supply of pure water for domestic use does not already exist, the Board shall provide or arrange
for the provision of such a supply.

(2) The Board shall, as far as possible, make adequate provision that such supply
shall be continuous throughout the year, and that the water shall be at all times pure and fit for
human consumption."

10. In Section 222, Cantonment Board also have power to enter into an agreement for
supply of water to owner, lessee or occupier of any building or land, on such terms and conditions
as are consistent with Act, 1924 and Rules and Bye-laws, framed made thereunder, and reads as
under: -

" 222. Supply of water under agreement. - (1) The Board may, by agreement,
supply, from any source of public water-supply, the owner, lessee or occupier of any building or
land in the cantonment with any water for any purpose, other than a domestic purpose, on such
terms and conditions, consistent with this Act and the rules and bye-laws made thereunder, as may
be agreed upon between the Board and such owner, lessee or occupier.

(2) The Board may withdraw such supply or curtail the quantity thereof at any time
if it should appear necessary to do so for the purpose of maintaining sufficient supply of water for
domestic use by inhabitants of the cantonment."
8 All. Cantonment Board Vs Union Of India & Anr.
343
11. Section 232 empowers Cantonment Board to fix rate of charges for supply of water and
to levy such charges. For ready reference we may quote Section 232 as under :

"232. Power to fix rates and charges.- A Board may fix the charges to be made for
the establishment by them or through agency of communications from, and connections with, mains
or pipes for the supply of water, or gas, or for meters or other appliances for measuring the
quantity, or testing the quality thereof supplied, and may levy such charges accordingly."

12. Besides above, no provision has been brought to our notice which authorized petitioner
- Cantonment Board to demand any charge from respondents towards alleged water supply etc.
under the heading of 'Service Charges' under Act, 1924. Even charges for water supply are subject
to condition that an agreement has been executed by Board with owner, lessee or occupier of any
building or land for such supply under Section 222. In the present case, it is not a case of petitioner
that there existed any such agreement between petitioner and respondents whereunder respondents
have agreed to have any water supply from petitioner and it is supplying water to respondents
under such agreement. Similarly no provision under Act, 1924 has been shown to us empowering
petitioner to demand any amount towards its obligation on maintenance of drainage and lighting in
Cantonment Board.

13. Act, 1924 has been substituted by Act, 2006 which has come into force on 18th
December, 2006. Therein also Chapter V deals with 'Tax' as also 'Fees'. Therefore, for the first
time, concept of 'Fees' has been inserted in Act, 2006. The nature or kinds of fees which can be
charged by Board is contained in Section 67 which reads as under : -

"67. Charging of fees.- The Board shall, for the purposes of this Act, charge the
following fees, namely:-

(a) licence fee on vehicles and animals;

(b) licence fee on advertisements other than advertisements in newspapers;

(c) fee relating to maintenance of property records;

(d) processing fee on buildings payable along with application for sanction of the
building plan;

(e) licence fee on entry of vehicles;

(f) betterment fee on the increase in land value caused by the execution of any
development work; and
344 INDIAN LAW REPORTS ALLAHABAD SERIES

(g) such other fee which the Board may by Regulation specify: Provided that the fee
charged under clause (g) of this section shall not be less than the cost incurred by the Board for or
in connection with the specific service to which the fee relates."

14. Section 66 deals with general power of 'Taxation' and it is the admitted case of
petitioner that no tax on property of respondents is chargeable in view of Article 285 of
Constitution of India. Procedure for recovery of 'Tax' has been prescribed under Section 101 of
Act, 2006 which reads as under :-

"101. Recovery of tax.-(1) If the person liable for the payment of any tax does not,
within thirty days from the service of the notice of demand, pay the amount due, or show sufficient
cause for non- payment of the same to the satisfaction of the Chief Executive Officer, such sum,
with all costs of recovery, may be recovered under a warrant, issued in the form set forth in
Schedule II, by distress and sale of the movable property or attachment and sale of the immovable
property of the defaulter: Provided that the Chief Executive Officer shall not recover any sum the
liability for which has been remitted on appeal under this Chapter: Provided further that the sale
of any immovable property attached under this sub- section shall not be made save under the
orders of the Board.

(2) Every warrant issued under this section shall be signed by the Chief Executive
Officer."

(emphasis added)

15. Section 108 declares that Cantonment Board will be 'Municipal Committee' for the
purposes of 'Taxation' as per Municipal Taxation Act, 1881. Then there is Section 109 which reads
as under :-

"109. Payment to be made to a Board as service charges by Central Government
or State Government.- The Central or the State Government, as the case may be, shall pay to a
Board annually service charges for providing collective municipal services or development work
in a cantonment where the Central or the State Government properties are situated as worked
out by the Board based on the guidelines issued in this behalf by the Central Government or the
State Government."

(emphasis added)

16. Section 109 of Act, 2006 for the first time empowered Cantonment Board to realise
"Service Charges" from Central Government or State Government if their property is situated
within the area of Cantonment Board and it is providing collective municipal services or
development work in such Cantonment area. The aforesaid provision makes it obligatory on the
part of Central Government or State Government to pay "Service Charges" annually to Cantonment
Board but quantum of such "Service Charges" shall be worked out by Cantonment Board on the
8 All. Cantonment Board Vs Union Of India & Anr.
345
guidelines issued in this behalf by Central Government or State Government. We are informed that
similar provision did not exist in earlier Statute i.e. Act, 1924, and for the first time, it has been
incorporated in Act, 2006. Secondly this provision shows that Central Government or State
Government are liable to pay "Service Charges" annually to Cantonment Board where property is
situated within the area of Board, in respect to municipal services or development work rendered
by Cantonment Board, but such liability cannot be fastened upon two Governments, unless
computation of liability is made by Cantonment Board, founded on the guidelines issued in this
behalf by Central Government or State Government. Circulars issued by Central Government
which are referred to in the writ petition i.e. dated 10th May, 1954, 29th March, 1967, 14th
September, 1984 and 26th April, 1994 only say that "Service Charges" shall be paid by Central
Government Department to Cantonment Board but in what manner such "Service Charges" shall be
computed and what shall be services in respect whereto the same shall be computed, is not stated in
those Circulars. If there is any other guidelines issued by Central Government or State Government
entitling or empowering Cantonment Board to compute "Service Charges" payable by Central
Government or State Government, as the case may be, in respect of municipal services or
development work rendered by petitioner, atleast none has been brought to our notice and in the
demand notice also there is no such reference. Not only respondents but even Court has not been
taken into confidence to tell as to how and on what basis computation has been made consistent
with requirement of Section 109 of Act, 2006. Unless such computation is made, question of
payment of "Service Charges" by respondents, would not arise.

17. We reiterate at this stage that even otherwise, Section 109 of Act, 2006, cannot be
stretched retrospectively so as to demand "Service Charges" from respondents for a period when
Act, 2006 was not in existence or operative and there was no similar provision like Section 109 in
existence in Act, 1924. Thus service charge under Section 109 is leviable prospectively.

18. Further Chapter IX deals with Water Supply, Drainage and Sewage Collection and
contains Sections 186 to 232. Section 193 provides for supply of water under agreement and reads
as under : -

"193. Supply of water under agreement.- (1) Subject to the guidelines made by the
Board in this regard, the Chief Executive Officer may, by agreement, supply, from any source of
public water- supply, the owner, lessee or occupier of any building or land in the cantonment with
any water for any purpose, other than a domestic purpose, on such terms and conditions, consistent
with this Act and the rules and bye- laws made thereunder, as may be agreed upon between the
Chief Executive Officer and such owner, lessee or occupier.

(2) The Chief Executive Officer may withdraw such supply or curtail the quantity
thereof at any time if it should appear necessary to do so for the purpose of maintaining sufficient
supply of water for domestic use by inhabitants of the cantonment."

(emphasis added)
346 INDIAN LAW REPORTS ALLAHABAD SERIES

19. For the purposes of supply of water or gas, Cantonment Board is conferred with the
power to charge which it may levy from the occupier or owner of the building of land and it reads
as under :

"206. Recovery of charges.- In any case in which the provisions of section 204
apply and in which the Board is not receiving a bulk supply of water under section 207, the
water- tax, if any, imposed in the cantonment and all other rates arising out of the supply of
water which may be imposed under the provisions of this Chapter as applied by section 204 shall
be recovered by the Board, and all monies so recovered, or such proportion thereof as the Central
Government may in each case determine, shall be paid by the Board to the Officer."

(emphasis added)

20. The impugned demand is not claimed to be under Section 193 or 206 of Act, 2006.

21. Learned counsel for petitioner however relied on the judgment of Supreme Court in
Rajkot Municipal Corporation & others Vs. Union of India and others, Civil Appeal No(s).
9458-9463 of 2003 decided on 19.11.2009. We have gone through the aforesaid judgment at
length. It was a bunch of appeals decided by Supreme Court, wherein appeals were filed by several
Municipal Corporations of State of Gujrat, namely, Rajkot Municipal Corporation, Ahmedabad
Municipal Corporation and Vadodara Municipal Corporation (hereinafter referred to as "Municipal
Corporation"). These Municipal Corporations are statutory local municipal authorities under
Bombay Provincial Municipal Corporation Act, 1949 ( hereinafter referred to as "BPMC Act,
1949"). Under the provisions of BPMC Act, 1949, these Municipal Corporations were discharging
duties of supplying water, conservancy / sewerage disposal and other general services like
approach roads with street lighting, drainage etc. and in accordance with the provisions of BPMC
Act, 1949, Rules and bye-laws framed thereunder, service charges payable by persons availing said
benefit were determined. They were already raising bills according to the provisions under BPMC
Act, 1949, Rules and Bye-laws framed thereunder to the Union of India including Railways and
who were paying demand raised by Municipal Corporation.

22. In respect of some bills raised by Municipal Corporation, payments were not made, as
result whereof Municipal Corporations proceeded to recover the dues as arrears of land revenue,
exercising power under the aforesaid Act and property of Union of India and its departments were
attached. This recovery as arrears of land revenue by adopting coercive method was challenged by
Union of India and its Departments, filing several writ petitions before Gujarat High Court,
claiming that property of Union of India is exempt from imposition of any tax by any local body or
State under Article 285 of Constitution of India and, therefore, aforesaid recovery was illegal. The
writ petitions were allowed and Gujarat High Court held that demand of service charges was in the
nature of property tax and barred by Article 285(1) of Constitution of India.

23. In appeal, Supreme Court found that similar matter was already considered by it in
Union of India and other Versus State of U.P. and others, 2007 (11) SCC 324, wherein it was
8 All. Cantonment Board Vs Union Of India & Anr.
347
held that demand of charges for expenses incurred in supply of water or other services rendered
under any statutory obligation, if raised, is a fee and not tax. Hence such charges are not exempt
under Article 285 of the Constitution of India. Thereafter Court required Government of India to
consider the matter and come to broad consensus so that any confrontation / dispute between
Government and local statutory body may not arise. In furtherance thereof, Government of India
filed an affidavit placing its agreement, in principles, for payment of "Service Charges" to
Municipal Corporation, which provides services like water supply etc. in the following manner:-

" (i) It is liable to pay service charges to the municipal corporations for providing
services like supply of water, conservancy/sewerage disposal, apart from general services like
approach roads with street lights, drains etc.

(ii) It will pay service charges to the Municipal Corporations, for the services, as
stated in its circulars dated 10.5.1954, 29.3.1967 and 26.8.1986, but will not pay any taxes.

(iii) Having regard to the fact that only service like supply of water could be
metered and other services like drainage, solid waste management, approach roads, street lighting
etc., could not be metered, the percentage of property tax will be worked out as service charges, on
the basis of instructions issued by the Ministry of Finance.

(iv) The concerned Ministry of the Union to which the property belongs will enter
into separate contracts with the respective Municipal corporation of services and payment of
service charges and pay the bills for annual service charges regularly.

(v) Union of India and its departments will periodically review the arrangements
with the respective municipal corporations or revisions in the rates of service charges.

(vi) Wherever, properties of state government are exempted, such exemption shall
apply to properties of central government also. Under no circumstances, the service charges
payable by the Union of India will be more than the service charges paid by the state government.

(vii) The arrangement will not affect the legal rights conferred by the appropriate
laws, in regard to any property held by the Union."

24. Government of India also proposed the rate at which such "Service Charge" would be
paid, and same are quoted in para 7 of judgment in Rajkot Municipal Corporation and others
Versus Union of India (supra) which reads as under:-

"The Union of India has also stated that taking note of the relevant circumstances, it
has decided to pay service charges at the following rates: (a) 75% of the property tax levied on
private owners, where the properties of the Union are provided by the municipal corporations with
all services/facilities as were provided to other areas within the municipal corporation: (b) 50% of
the property tax levied on private owners, in regard to properties of the Union, where only some of
348 INDIAN LAW REPORTS ALLAHABAD SERIES

the services/facilities were availed; an (c) upto a maximum of one-third (33 and 1/3%) of the
property tax levied on private owners in regard to properties which did not avail any of the
services provided by the municipal corporation, as they were self-sufficient on account of all
services being provided by the Union itself.

25. Government of India also clarified, where no Services were availed from municipal
corporation, rate within the ceiling of 33-1/3% of property tax, will be negotiated and settled,
having regard to relevant circumstances. With respect to Railway, it was said that since it owns
properties virtually in every municipal corporation in India and normally, all its properties do not
utilize services provided by municipal corporations, Railways proposed to pay only a token
"Service Charge" of 5% or such other rate as may be agreed by mutual negotiation.

26. Municipal Corporations before Supreme Court submitted that they broadly agree to
proposal submitted by Government of India. The stand taken by municipal corporations, quoted in
para 9 of judgment in Rajkot Municipal Corporation and others Versus Union of India (supra)
is as under:-

"9. Learned counsel for the appellants submitted that the appellant municipal
corporations submitted that they were broadly in agreement with what has been stated and agreed
by Union of India in the said affidavit. The appellant-Municipal Corporations also confirmed and
agreed:

(i) that they will not levy or demand any "property tax" in respect of the properties
belonging to Union of India and used for the purposes of the government;

(ii) that the demands will relates only to service charges for direct services like
supply of water and conservancy/sewerage disposal services, and other general services such as
approach roads with street lighting, drainage etc.;

(iii) that they broadly agreed to the rates of service charges agreed by Union of
India; and

(iv) that if there is defaults or it negotiations with the concerned departments for in
regard to service charges fail they will not take any coercive steps for recovery proceedings, but
will take recourse to other remedies available to them in law for recovery.

27. Municipal Corporations however had reservation with regard to the proposal of
Railways that it will pay only nominal "Service Charges" at 5 per cent of the property tax. Supreme
Court disposed of all these appeals by giving following directions contained in Para 11 of judgment
in Rajkot Municipal Corporation and others Versus Union of India (supra) :-
8 All. Cantonment Board Vs Union Of India & Anr.
349
"11. In view of the above, there is no need to consider the appeals on merits. We
dispose of appeals and pending applications by recording the following broad agreement between
the parties:

(i) The Union of India and its departments will pay service charges for the services
provided by the appellant's municipal corporations. They will not pay any property tax. The service
charges will be paid at 75%, 50% and 33 1/3% respectively of the property tax levied on private
owners, depending upon whether Union of India or its department is utilizing the full services, or
partial services or nil services. The Union of India represented by its concerned department will
enter into agreements/ understandings in regard to service charges for each if its properties, with
the respective municipal corporations.

(ii) The above arrangement is open to modification of periodical revisions by
mutual consent. In the event of resolution mechanism by reference to a three Member Mediation
Committee consisting of a representative of the Central Government, a representative of the
concerned municipal corporation and a senior representative (preferable the Secretary in charge
of the department of municipal administration) of the State of Gujarat.

(iii) If Railways or any other department of Union of India owning a property
changes the agreement/understanding unilaterally, or fail to reach a settlement through the
Mediation Committee in regard to any disputes, or fails to clear the dues, it is open to the
concerned Municipal Corporation to initiate such action, as it deems fit in accordance with law by
approaching the jurisdictional courts/tribunal for final and interim reliefs.

(iv) The municipal corporations shall not resort to coercive steps (such as
stoppage of supplies/services) nor resort to revenue recovery proceedings for recovery of any
service charge dues from Union of India or its departments.

(v) The service charges payable by Union of India will under no circumstances be
more than the service charges paid by state government for its properties. Wherever exemptions or
concessions are granted to the properties belonging to the state government, the same shall also
apply to the properties of Union of India.

(vi) If the Railways does not to abide by the four general circulars of the Union of
India dated 10.5.1954, 29.3.1967, 28.5.1976 and 26.8.1986 and the general consensus set out
above, it is open to municipal corporation to take such action as is permissible in law."

28. It is not the case of petitioner that it entered into an agreement with MOR and NCR for
payment of any charges with respondents as contemplated in the aforesaid judgment in Rajkot
Municipal Corporation and others Versus Union of India (supra).

29. We have also gone through various Circulars of Government of India which have been
referred by petitioner in the present writ petition. The first circular of Government of India,
350 INDIAN LAW REPORTS ALLAHABAD SERIES

Ministry of Finance is dated 10th May, 1954 says that Government of India in principle has
decided that w.e.f. 1st April, 1954, in respect of Central Government properties, "Service Charge"
shall be payable to the local bodies for services provided in respect of such properties of
Government of India. Specific services would include not only water and electric supply, sewerage
etc., but also general services such as street lighting, drainage, approach road and connecting road
etc. Where water, electric supply and meter is metered, same shall be paid accordingly, but where it
is not so metered or such services are not charged separately, a suitable consolidated percentage
representing element of specific services will be paid by Government of India who will also enter
into separate connection with concerned local authority for supply of water, electricity and/or any
other services.

30. Then next circular is dated 29th March, 1967, and para 2 thereof containing decision of
Government of India reads as under:-

"(2) The procedure for arriving at the quantum of service charges payable to the
local bodies has been further examined by the Government of India and it has now been decided
that the service charges should be calculated in the following manner ; -

(i) In respect of isolated Central Government properties where all services are
availed of by the Central Government in the same manner as in respect of private properties, the
Central Government will pay service charges equivalent to 75% of the property tax realized from
private individuals service are being provided by the Central Government Departments themselves,
the service charges will be calculated in the following manner :

(a) In the case of colonies which do not directly avail of civic services within the
areas and are self-sufficient in all respects, the payment of service charges will be restricted to 331\3% of the normal rate of property tax applicable to private properties.

(b) In respect of colonies where only a partial use of the services is made, service
charge will be paid as 50% of the normal property tax rate.

(c) In respect of colonies where all the services normally provided by the
municipal body to the residents of other areas within its limits are being availed of, service charges
will be paid as 75% of the property tax rate realized from private individuals.

(iii) The net ratable value/annual value for the purpose of these instructions shall
be 9% of the ''capital value' of the property concerned, both in respect of residential and nonresidential properties. The ''capital value' shall include the cost of acquiring or constructing the
buildings including the cost of site, its preparation and any other capital expenditure incurred after
acquisition or construction or when this is not known, the present value of the building including
the value of site, as borne on CPWD records or those of the Department concerned.
8 All. Cantonment Board Vs Union Of India & Anr.
351
(iv) The existing arrangements arrived at between the Railway authorities or any
Central Government Department and local bodies in respect of property tax/service charges
including the arrangements envisaged regarding central Government properties in Calcutta and as
regards the properties in Delhi will not be disturbed by this decision. This decision of the
Government of India conveyed in this letter may kindly be intimated to the local authorities within
State.

31. Government of India, Ministry of Defence also issued a circular dated 21st May, 1984
with regard to computation of "Service Charges" and in this regard, taking reference to Section 64
of Act 1924, it is said that "Service Charge" shall be worked out, in the manner, stated therein and
an illustration given in para 5 thereof reads as under:-

"(I) Area of land to be taken into account for adding to the capital cost of building,

(i)
Total area of Class A-1 land
=
A
(ii)
Deduct areas of forests, parade grounds, MEs
roads (outside enclosed area on which public has a
right of way), play ground, and rifle ranges on A-1
lands
=
B
(iii)
Net area of land to be taken into consideration
=
A-B=C
(II)(i) Cost of buildings including cost of additions and
alterations (permanent and temporary as per MES
Register No. IAFWZ. 2168) including cost of
electrification/water supply/sanitary arrangements.
=
P
(ii)
Cost of land-Area of land as arrived at above I.E. C
multiplied by 40 times the current STR rate (or
where the STR has not been prepared, present
market value as certified by the DEO concerned)
=
Q
(iii)
Total cost of assets
=
P+Q=R
(iv)
Annual letting value
=
9% of R
(v)
Service charges to be claimed per annum

S x rate of property/
house Tax

/Divided by 3

GOI, Min. of Def. (DG, DL&C) letter No. 9/5/C/L &C/72/Vol. II dated 21.5.1984."

32. A division Bench judgment of this Court in Cantonment Board Varanasi through
Chief Executive Officer Vs. Union of India & Others rendered on 3rd October, 2013 in Writ Tax
No. 1292 of 2011 is also relied by petitioner. Therein Cantonment Board, Varanasi and NCR
entered into an agreement with respect to Services rendered by Cantonment Board according to
which determination of "Service Charges" was admitted and not disputed. The question with
reference to Cantonment Act, 1924 and 2006 was not examined therein.
352 INDIAN LAW REPORTS ALLAHABAD SERIES

33. There is another judgment of this Court in Cantonment Board Agra Vs. Union of
India and others, (2015) 2 ADJ 256, wherein Court examined provisions of Act, 2006 and found
that no recovery procedure has been prescribed under Act, 2006. Therefore, there was no statutory
obligation on the part of respondents to make any payment. Hence, Court held that writ petition
seeking mandamus for recovery will not lie and instead Cantonment Board may take resort to
recover its dues, if any, by taking recourse to common law i.e. civil suit.

34. In the present case, in 2011, for the first time, impugned demand in respect of last 28
years and more has been raised by petitioner in relation to "Service Charge" which are not
governed by Act, 1924. No computation was made as per Act, 2006.

35. In Rajkot Municipal Corporation and others Vs. Union of India and others (
supra), "Service Charges" were payable under provisions of BPMC Act, 1949 and there was no
dispute about the same. In the case in hand, neither any agreement has been executed between
petitioner and respondents as contemplated in Rajkot Municipal Corporation and others Vs.
Union of India and others (supra) nor determination of alleged charges has been made by having
a consensus between the petitioner and respondents. Moreover, there is a serious dispute as to what
are the services which are being rendered by petitioner to respondents and whether any service at
all, is being rendered or not. These are seriously disputed questions of fact and without adjudicating
them, it is not permissible for petitioner to simply raise such a huge demand, that too, in respect of
last several decades, for the first time in 2011, and thereafter by sending a simple letter to counsel
to file writ petition before this Court. In order to seek a writ of mandamus, it is necessary to show
that there exists a statutory right of petitioner to enforce the same and there must be corresponding
statutory obligation to do something which the respondent(s) has failed or has done wrongly.

36. A writ of mandamus would not lie unless petitioner has a statutory right and
corresponding statutory obligation upon respondents. In Oriental Bank of Commerce Vs. Sunder
Lal Jain and another, (2008) 2 SCC 280, Court after referring to its earlier judgements in Bihar
Eastern Gangetic fishermen Cooperative Society Ltd. Vs. Sipahi Singh, (1977) 4 SCC 145;
Lekhraj Sathramdas Lalwani Vs. N.M. Shah, AIR 1966 SC 334 and Dr. Uma Kant Saran Vs.
State of Bihar, 1973 (1) SCC 485, observed as under:

"There is abundant authority in favour of the proposition that a writ of mandamus
can be granted only in a case where there is a statutory duty imposed upon the officer concerned
and there is a failure on the part of that officer to discharge the statutory obligation. The chief
function of a writ is to compel performance of public duties prescribed by statute and to keep
subordinate Tribunals and officer exercising public functions within the limit of their jurisdiction.
It follows, therefore, that in order that mandamus may issue to compel the authorities to do
something, it must be shown that there is a statute which imposes a legal duty and the aggrieved
party has a legal right under the statute to enforce its performance........"
8 All.