JUDGMENT- Dr. B.P. SARAF, J.:---All these three writ petitions are directed against a Circular issued by the Sr. Ward Officer ( Markets ) Municipal Corporation of Greater Bombay in regard to recovery of service charges from the licensees in the municipal markets. These petitions are, therefore, taken up together for hearing and, for the sake of convenience the facts of Writ Petition No.2420 of 1988 are only stated. The petitioners are holders of stalls owned by the Municipal Corporation of Greater Bombay in a market known as "Dr. D.H. Kharude Market" situated at Adarsh Nagar, Prabhadevi, Bombay-400 025, consisting of 127 stalls. The Municipal Corporation of Greater Bombay ("Corporation") respondents, herein, had published a scheme to let out the stalls in the said market to highest bidders in public auction. That was in the year 1970. The petitioners as well as other stall-holders were allotted the said stalls as highest bidders and since then they are in occupation of the said stalls paying the rent or stallage charges as fixed by the Corporation regularly. 2. On 29-6-1988, the Sr. Ward Officer (Markets) issued a Circular being No. WO/MKT/693/A dated 29-6-1988. By this Circular, all the Dy. Superintendents of Markets and Head Inspectors were informed that the Municipal Commissioner had accored sanction under No. MDG/198 of 16-6-1988 for levying service charges on the licensees in the Municipal Wholesale and Retail Markets at the rates mentioned therein. It is this Circular which has beeen challenged by the petitioners as illegal and without jurisdiction. The Circular reads as under : "CIRCULAR : WO/MKT/793/A of 29-6-1988. Sub. : Recovery of service charges from the licencees in the Municipal Market. All Dy. Supdts. of Markets and Head Inspectors are hereby informed that the Municipal Commissioner has accorded sanction under No. MDG/198 of 16-6-1988 to levy of "service charges" to the licensees in the Municipal Wholesale and Retail Markets at the rates as shown below : 1. 20% of monthly/quarterly stallage charges subject to minimum of Rs. 430/- p.m. from the stall, shop, space, godown, office, pedhi etc. holders. 2. Re. 1/- per squatter per sitting from Fish, veg. and other temporary squatters. 3. 20% of the gate recovery from wholesale Brother (without space). As per orders effect to the recovery of service charges is to be given from 1-7-1988. All are, therefore, informed to effect the recovery at the time of recovery of stallage/space charges. holders. 2. Re. 1/- per squatter per sitting from Fish, veg. and other temporary squatters. 3. 20% of the gate recovery from wholesale Brother (without space). As per orders effect to the recovery of service charges is to be given from 1-7-1988. All are, therefore, informed to effect the recovery at the time of recovery of stallage/space charges. Please treat this most urgent. Sd/- Sr. Ward Officer (Markets). Copy to : H.I.G./S for information and necessary action. You are requested to display one of copy hereof on the Notice Board of each Market in the presence of Panchas and report accordingly. Sd/- Sr. Ward Officer (Markets)". 3. The contention of Shri Paste, learned Counsel for the petitioners is that the Municipal Commissioner has no power under the Bombay Municipal Corporation, Act, ("the Act") to levy any service charge and, as such, any order passed by him levying such service charges or any sanction given by him to any such levy as mentioned in the Circular, is unauthorised and illegal. The counsel, therefore, submits that the above Circular should be set aside and quashed. 4. The learned Counsel for the Corporation, on the other hand, submits that the Commissioner can issue such Circular in exercise of powers under section 64(3) of the Act which vests entire executive power for the purpose of carrying out the provisions of the Act in him. Reference was also made in this connection to the provisions of section 92(cc) of the Act which empowers the Commissioner to fix consideration for transfer without the approval of a Standing Committee. It may be pertinent to mention here that it is an admitted position in this case that the above Circular has been issued by the Commissioner without obtaining the approval of the Standing Committee. It is, in this context, that reliance on the provisions referred to above assumes relevance. The learned Counsel for the Corporation was, however, fair enough to place before me the provisions of section 407 of the Act which deal with the power of the Commissioner to levy stallages, rents and fees in municipal markets and slaughter houses. This section specifically provides that the power vested in the Commissioner is subject to the approval of the Standing Committee in that behalf. This section specifically provides that the power vested in the Commissioner is subject to the approval of the Standing Committee in that behalf. The Corporation has also filed an affidavit dated 28-6-1993 wherein it has been stated that the impugned circular has been issued by the Commissioner under section 64(3) of the Act and it is in exercise of that power that the service charges have been levied by him. It has been further contended that as the service charges have been levied by the Commissioner in exercise of the powers under section 64(3) of the Act, no prior approval of the Standing Committee, as contemplated by section 407(a), was necessary. It is, however, an admitted position that the approval of the Standing Committee has not been taken in this behalf. Therefore, the basic question that falls for determination is, whether the levy of service charges by the Commissioner without the approval of the Standing Committee, can be sustained by reference to the powers of the Commissioner under section 64(3) of the Act. 5. I have carefully considered the rival submissions. I find it difficult to accept the contention of the learned Counsel for the Corporation. The contention, on the face of it, goes counter to the clear provisions of the Act. I asked the learned Counsel for the Corporation : what is the nature of the service charge which has been levied by the Commissioner by the impugned Circular. The counsel was fair enough to state that being charge for the services rendered by the Corporation, it was in the nature of fees and it cannot be termed as enhancement of stallages or rents. The question that falls for determination, therefore, is whether "fees", by whatever name it may be called, which had been specifically mentioned in section 407 of the Act, can be levied by the Commissioner without complying with the requirements thereof by referring to his powers under section 64(3) of the Act. 6. Section 64 of the Act deals with the respective functions of the several Municipal Authorities. Sub-section (3) deals with special functions of the Commissioner. This sub-section reads as under : "64(3). 6. Section 64 of the Act deals with the respective functions of the several Municipal Authorities. Sub-section (3) deals with special functions of the Commissioner. This sub-section reads as under : "64(3). Subject, whenever it is in this Act expressly so directed, to the approval or sanction of the Corporation or the Standing Committee or the Improvements Committee or the Education Committee and subject also to all other restrictions, limitations and conditions imposed by this Act, the entire executive power for the purpose of carrying out the provisions of this Act vests in the Commissioner, who shall also--- (a) perform all the duties and exercise all the powers specifically imposed or conferred upon him by this Act; (b) prescribe the duties of, and exercise supervision and control over, the acts and proceeding of all Municipal Officers and servants, other than the Municipal Secretary and the Municipal Officers and servants immediately subordinate to him, and subject to the regulations at the time being in force under section 81 dispose of all questions relating to the service of the said officers and servants and their pay privileges and allowances;" (Emphasis supplied) 7. A bare reading of the above provision makes it clear that it has vested the executive power for the purpose of carrying out the provisions of the Act in the Commissioner. "Levy of service charge" cannot be said to be a part of the executive power though realisation of the same may be so. Moreover, this section also provides in no less clear terms that the power given to the Commissioner under this sub-sections is subject to the approval or sanction of the Corporation or the Standing Committee and subject also to all other restrictions, limitations and conditions imposed by the Act. Thus, this sub-section, instead of relieving the Commissioner from the restrictions imposed by any other provisions of the Act on the exercise of his powers, makes specifically clear that his powers are subject to the approval of the Standing Committee and/or any other restrictions, limitations and conditions imposed under the Act. In this context, it may be expedient to refer to section 407 of the Act which confers on the Commissioner the power to levy stallages, rents and "fees" in municipal Markets. It reads thus: 407. In this context, it may be expedient to refer to section 407 of the Act which confers on the Commissioner the power to levy stallages, rents and "fees" in municipal Markets. It reads thus: 407. The Commissioner may.--- (a) charge for the occupation or use of any stall, shop, standing shed or pen in a municipal market or slaughter-house, and for the right to expose goods for sale in a municipal market, and for weighing and measuring goods sold in any such market and for the right to slaughter animals in any municipal slaughter-house such stallages, rents and fees as shall from time to time be fixed by him, with the approval of the standing committee, in this behalf, or (b) with the approval of the standing committee, form the stallages, rents and fees leviable as aforesaid or any portion thereof for any period not exceeding one year at a time; or (c) put up to public auction, or, with the approval of the standing committee, dispose of, by private sale, the privilege of occupying or using any stall, shop, standing shed or pen, in a municipal market or slaughter-house for such term and on such conditions as he shall think fit." (Emphasis supplied) 8. From a reading of the above section, it is absoultely celar that the power of the Commissioner to fix stallages, rents and fees is subject to the approval of the Standing Committee. The use of the expression `in this behalf makes it still more categorical that the approval must be for the particular fixation. 9. A conjoint reading of section 64(3) and section 407 of the Act makes it abundantly clear that the power of the Commissioner to levy fees is subject to the approval of the Standing Committee. Admittedly, no approval has been obtained in the instant case. The levy, therefore, cannot be sustained. Reliance on the provisions of section 92(cc) of the Act, in my opinion, is totally misplaced because that provision has nothing to do with the levy of fees for the service rendered. Section 92 deals with the power of the Commissioner in regard to the disposal of the municipal property. It is, in that context that in Clause (c) thereof power has been given to the Commissioner with the sanction of the Corporation, to lease, sell or otherwise convey any immoveable property belonging to the Corporation. Section 92 deals with the power of the Commissioner in regard to the disposal of the municipal property. It is, in that context that in Clause (c) thereof power has been given to the Commissioner with the sanction of the Corporation, to lease, sell or otherwise convey any immoveable property belonging to the Corporation. It is also in that very context, that in sub-section (cc), which was inserted later in the year, 1933, it is provided that "the consideration for which any immovable property or any right belonging to the Corporation may be sold, leased or otherwise transferred shall not be less than market value of such premium, rent or other consideration". This clause, thus, has nothing to do with the power of the Commissioner to levy fees by way of service charges. The power of the Commissioner to lease, sell or otherwise convey the immovable property under Clause (c) of section 92 is also subject to sanction of the Corporation. Clause (cc) has not removed that restriction. It has been inserted only to make it clear that while dealing with the properties of the Corporation under Clause (c), the consideration should not be less than the amount specified therein. Clause (cc), in my opinion, has nothing to do with the power of the Commissioner to levy any fees under section 407 or even to fix the amount of consideration for transfer etc., without the sanction of the Corporation. 10. From the aforesaid discussion, it is clear that the Commissioner has no power to levy any fees on the stall holders for the services rendered by the Corporation, whether termed as "service charge" or otherwise without the approval of the Standing Committee. Such levy squarely falls within the purview of section 407 of the Act and the power to levy the same can be exercised by the Commissioner only with the approval of the Standing Committee. In the instant case, the admitted position is that it has been levied by the Commissioner without the approval of the Standing Committee. That being so, the levy, on the face of it, is in violation of the mandatory requirement of section 407(a) of the Act and hence the same cannot be sustained. The order of the Municipal Commissioner being No. MDG/198 of 16-6-1988 and the Circular being No. WO/MKT/693/A of 29-6-1988 issued on the basis thereof by the Sr. That being so, the levy, on the face of it, is in violation of the mandatory requirement of section 407(a) of the Act and hence the same cannot be sustained. The order of the Municipal Commissioner being No. MDG/198 of 16-6-1988 and the Circular being No. WO/MKT/693/A of 29-6-1988 issued on the basis thereof by the Sr. Ward Officer (Markets) are, therefore set aside and quashed. 11. It is stated by the learned Counsel for the petitioners that during the pendency of these writ petitions, the petitioners have been paying service charges levied by the respondents on the basis of the impugned Circular. My attention was drawn in this connection to the order of the Division Bench of this Court (Sawant and Mrs. Sujata Manohar, JJ.) dated 28-9-1988 on appeal by the petitioners against the order of the Single Judge refusing to grant interim order of stay of realisation of service charges, wherein it was made clear that the respondent-Corporation will refund the charges which were being collected by them with such rate of interest as might be fixed by the Court at the time of passing the final order, if the petitioners succeeded in the petition. The learned Counsel, therefore, submits that this Court should direct refund of service charges recovered from the petitioners with interest at the rate of 18% from the date of payment till the date of refund. 12. In reply, the learned Counsel for the respondents submits that to enable them to refund the amounts, the petittioners should be directed to make applications furnishing requisite particulars of payments. The learned Counsel also submits that the rate of interest of 18% claimed by the petitioners is on the higher side. 13. Considering the rival submissions, I direct the petitioners to submit applications showing the amounts paid by them as service charges in pursuance of the impugned Circular to the Sr. Ward Officer (Markets) who shall scrutinise the same within one month from the date of filling and the respondent-Corporation shall refund the amounts within six weeks from the date of the application with interest from the date of payment till the date of refund at the rate of 15% per annum. 14. In the result, all the three writ petitions are allowed. The Rules are made absolute in the above terms. 14. In the result, all the three writ petitions are allowed. The Rules are made absolute in the above terms. The impugned order of the Commissioner being No. MDG/198 of 16-6-1988 and Circular No. WO/MKT/693/A dated 29-6-1988 issued on the basis thereof by the Sr. Ward Officer (Markets) are set aside and quashed. 15. The learned Counsel for the Corporation prays for stay of this order for four weeks. It is evident from discussion made above that it is not a fit case for grant of stay as the impugned Circular, on the face of it, is without jurisdiction. The prayer for stay is, therefore, rejected. 16. Under the facts and circumstances of the case, there will be no order as to costs. 17. Certified copy expedited. Petitions allowed.