Judgment Ferdino I. Rebello, J. Petitioner No. 1 is a partnership firm and Petitioner No. 2 is its partner. By the present petition, the Petitioners challenge the levy/charge/imposition of premium by Respondent No. 1 for the area covered by stair case rooms, lift rooms, above the topmost storey, lift wells and stair cases and passages thereto as set out in Regulation No. 35(2)(c) which can be exempted from computation of FSI under the provisions of the D.C. Rules by special permission of the Commissioner as being without the authority of law. In the alternative, to challenge the legality and validity of the letters/orders bearing No. EB/4415/A dated 2.9.1998 issued to the Petitioners by the Assistant Engineer, Building Proposal (City) IV, (Respondent No. 3) in his capacity as Officer of Respondent No. 1 calling on the petitioners to pay additional/enhanced premium for stair case and lift area and open space deficiencies in respect of the building being constructed on the suit property at the revised land rate of Rs.10,270/- per sq. mtr. which has been increased from Rs. 5870 per sq. mtr. 2. The Petitioners are the owners and developers of an immovable property bearing final plot No. 1245, T.P.S. IV of Mahim Division admeasuring 1217.4 sq. mtrs or thereabouts, situated at Old Prabhadevi Road, Prabhadevi, Mumbai 400 025. The Petitioners wanted to redevelop the property and accordingly submitted plans for redevelopment. They paid various amounts by way of scrutiny fees as also other amounts towards deposits that included transit shed deposit, debris deposit, fraudulent deposit, deposit for transplanting tree etc. According to Petitioners they were called upon wrongly to pay a sum of Rs.8,87,978/-towards staircase and lift area premium for 269.90 sq. mtrs. The said premium was charged at the rate of Rs. 3290/-per sq. mtr and they were informed that it was the applicable rate for the year 1995. On the said date, respondents further called upon the Petitioners to pay a sum of Rs.1,89,010/-towards road premium. According to Petitioners, no material was shown which would reveal the basis for charging the said premium. In order not to jeopardize the project, the Petitioners paid to Respondent a sum of Rs.8,87,978/- on or about 10.11.1995 towards premium for stair case and lift room and a sum of Rs. 1,89,010/- towards road premium, thus aggregating to Rs.10,76,988/-. According to Petitioners, no material was shown which would reveal the basis for charging the said premium. In order not to jeopardize the project, the Petitioners paid to Respondent a sum of Rs.8,87,978/- on or about 10.11.1995 towards premium for stair case and lift room and a sum of Rs. 1,89,010/- towards road premium, thus aggregating to Rs.10,76,988/-. The Petitioners were then finally issued a commencement certificate dated 17.2.1997 for construction upto plinth. Before issuance of commencement certificate, Respondent No. 3 wrongly directed the Petitioners to pay a sum of Rs.3,26,110/- towards additional premium for stair case and lift area. According to Petitioners no material was shown to indicate the basis on which the premium was claimed. In order to avoid confrontation and delay, the Petitioners paid the said amount on or about 31.1.1997. In the course of the construction and in pursuance to the representations made by the Petitioners, category A was granted to the structure standing on the property under MH & AD Act, 1976. As a result of which the Petitioners became eligible to consume additional FSI in respect of the property under Regulation 33(7) of the D.C Rules, 1991. Petitioners accordingly submitted amended plans. As per amended plans, FSI of 449.65 sq. mtrs was covered under the stair case and lift as against 269.90 sq. mtrs as per the original plans. The plans were approved by Respondent No. 3. The Petitioners were also called upon to pay sum of Rs.12,14,610/-towards premium for stair case and lift area and Rs.6,04,000/- towards premium for open space deficiency and a sum of Rs.96,000/-towards balcony enclosure charges, thus aggregating to Rs.19,14,610/-. The Petitioners again to avoid confrontation and delay paid the said amount. Petitioners request for issuance for further certificate was pending when they were called upon to pay additional premium on account of revised land rate of Rs.10.270/- per sq. mtrs applicable for the period of 01.01.1998 to 31.12.1997 as against Rs.5870/- per sq. mtrs. Petitioners were called upon to pay sum of Rs.9,10,960/-towards premium for stair case and lift area and a sum of Rs. 4,53,000/-towards premium for open space deficiency, thus aggregating to Rs. 13,63,960/-. The Petitioners have set out various amounts paid by them totaling to Rs.36,28,970/- which included the sum of Rs.24,28,700/- towards stair case and Lift premium. mtrs. Petitioners were called upon to pay sum of Rs.9,10,960/-towards premium for stair case and lift area and a sum of Rs. 4,53,000/-towards premium for open space deficiency, thus aggregating to Rs. 13,63,960/-. The Petitioners have set out various amounts paid by them totaling to Rs.36,28,970/- which included the sum of Rs.24,28,700/- towards stair case and Lift premium. On receipt of the letter dated 2.9.1998, they made enquiries and were informed that the letter was issued based on the internal survey by Respondent No. 2 whereby he had caused to enhance the land rates. According to Petitioners, they called upon the officers to disclose to them the Act/Rules/Policy norms under which the premium was being charged and rates determined/enhanced. Respondent No. 2 declined to furnish any such information to the Petitioners and they were also advised to pay the amount. The Petitioners by letter of 3.9.1998 raised various objections and to review this exorbitant levy/imposition of premium. 3. According to Petitioners, neither the B.M.C. Act nor the M.R.T.P., Act or D.C. Regulations empower and or authorise Respondent No.1 to charge any premium for the areas that can be exempted from computation of F.S.I., by the Commissioner. Under D.C. Regulation 35(2)(c) F.S.I. Can be excluded in the island cities, suburbs and extended suburbs with the special permission of the Commissioner. The word premium reasonably denotes additional charge made for something and or demand made for something. On the areas that can be exempted there is no power to make a demand for exercise of discretion and therefore, the demand is illegal. To single out areas under stair case and lift for charging premium on the basis of the notional land area is illegal and or arbitrary. The demand therefore, by the Respondents is ultra vires, illegal and unauthorized. The Petitioners have prayed for a declaration that Respondents do not have any power and authority to claim or charge or demand or levy in respect of development of properties any premium by whatever name called for the areas exempted from computation of F.S.I. under D.C. Regulation 35(2)(c). 4. The Petitioners have prayed for a declaration that Respondents do not have any power and authority to claim or charge or demand or levy in respect of development of properties any premium by whatever name called for the areas exempted from computation of F.S.I. under D.C. Regulation 35(2)(c). 4. By an amendment it is specifically prayed that the Respondent do not have any power or authority in law to levy, charge, demand and collect any premium or amounts by whatever name under the D.C. Regulation 35(2)(c) for exclusion of area specified therein for computation of F.S.I. Further prayer clause is to quash and set aside the communication dated 6.7.2009. 5. It may be mentioned that an order came to be issued on 8.7.2009 by way of clarification by the Under Secretary to Government holding that the term “with special permission of the Commissioner” as stipulated in regulation 35(2)(c) entitles the Municipal Commissioner to impose necessary conditions as he may deem fit for allowing such exclusions including the condition for charging of premium. This was issued in view of the various writ petitions that had been filed in this court challenging the charging of premium by the Corporation for grant of special permission of Municipal Commission on lift, stair case room etc. under Regulation 35(2)(c) of D.C.R. 1991. 6. A reply has been filed on behalf of the Corporation. It is set out that the Municipal Commissioner is empowered to condone the deficiencies in stair case and open spaces. These deficiencies can be condoned by the Municipal Commissioner by levying premium as developer is getting free area of FSI. According to Respondents petitioners had also given undertaking to pay difference in premium, if any due to revision of rates. 7. An additional reply has been filed on 23.11.2009. It is set out that the premium was charged not for the entire area covered by the stair case etc. of which exclusion was sought by the builder, premium is sought only of additional area of stair case etc. The concept of charging premium is well recognized by the D.C.R. The State Government has also issued clarification dated 6.7.2009 in pursuance to the powers of the State Government under Regulation No. 62(3) of the D.C.R. The power to approve, sanction, reject building proposals, it is set out flows from M.M.C. Act. Reference is made to various provisions of the M.M.C. Act. Reference is made to various provisions of the M.M.C. Act. For the purpose of approving sanction for building proposals, notice has to be given to the Commissioner under the provisions of Section 337 of the M.M.C. Act. Correspondingly Commissioner under section 338 may call upon the person who has issued notice under section 337 to furnish plans and other documents to the Corporation. Reference is also made to sections 345, 346, 348, 349, 349(b), 349(d), 350 and other provisions. Next reference is made to Chapter IX of the M.M.C. Act which deals with the procedure and licences. Reference then is made to section 479 which sets out licences or written permission may be given for any purpose and for granting such licnece under section 479(2) a fee may be charged at such rate time to time may be fixed by the Commissioner with the sanction of the Corporation. Relying on this, it was sought to be pointed out levying of premium for excluding of area of staircase from F.S.I. Is part and parcel of the permission granted by the Commissioner for construction of the buildings. This it is contended demonstrates that not only Respondents have the power to charge premium under the D.C.R. but also under the M.M.C. Act. At this stage, it may be mentioned that the issue is not charging premium under the M.M.C. Act but under the D.C. Regulations as framed under the M.R.T.P. Act. Levying of premium for exclusion of area of stair case etc. from the FSI is a power specially granted to the Commissioner for exclusion of F.S.I. The nature of FSI is then explained. It is contended that there is a long standing practice of excluding certain areas from FSI by charging premium for the same. Reliance is placed on various documents. These documents show that premium charged from time to time by various circulars. It is also pointed out that Resolution was passed on 14.9.1995 by the Corporation pursuant to the provisions of section 479(2) of the Municipal Corporation Act. 8. The resolution fixing rates for exclusion of the areas for calculation of FSI and levying of premium have been approved by the Improvement Committee on October, 2009. It is also pointed out that Resolution was passed on 14.9.1995 by the Corporation pursuant to the provisions of section 479(2) of the Municipal Corporation Act. 8. The resolution fixing rates for exclusion of the areas for calculation of FSI and levying of premium have been approved by the Improvement Committee on October, 2009. Subsequent documents would show that the Standing Committee on 2.12.2009 recommended to approve the administrative decision taken in the larger municipal interest of charging premium for grant of special permission on Municipal Commissioner of stair case, etc. free of FSI under Regulation 35(2)(c) of D.C.R. 1991 and to approve circular issued by the Municipal Commissioner from time to time and to empower the Municipal Commissioner to fix scale of premium from time to time to be recovered. The resolution further held that the resolution shall be put forth in any ensuing meeting of the Corporation as urgent business. The Corporation passed the resolution on 14.01.2010. 9. Certain communications received from the Government may now be referred to. The first of such communication is the letter dated 14.5.1992 from Urban Development Department addressed to the Municipal Commissioner pointing out that it had been represented to the Government that the areas of lift wells, stair cases area for FSI computation are specifically exempted under D.C. Regulations with special permission of the Commissioner, and as such the question of charging any premium by the B.M.C. should not arise and the Commissioner was requested to ensure that no premium be charged since the Regulation has specifically provided for the same. This was followed by another letter dated 10.6.1992 to the same effect. The Municipal Commissioner on 25.5.1992 addressed a communication to the Secretary, Urban Development Department Government of Maharashtra with a request to look into the matter personally and arrange to withdraw the letter of Mr. N.S. Kulkarni, Under Secretary to the State Government. The Government ultimately on 6.7.2009, which is also one of the interim orders noted the exclusion of FSI with special permission of the Commissioner for computing the total FSI under Regulation 35(2)(c) and the fact of the Municipal Commissioner was charging premium. Various petitions had been filed and the Corporation had sought clarification from the Government with respect to interpretation of the term “special permission of the Corporation”. Various petitions had been filed and the Corporation had sought clarification from the Government with respect to interpretation of the term “special permission of the Corporation”. In these circumstances, it was set out that the letters dated 13.5.1992 and 10.6.1992 have been withdrawn and clarification of the said regulation is issued. By the clarification it is set out that term “with special permission of the Commissioner” as stipulated in sub regulation (2)(c) entitles the Municipal Commissioner to impose necessary conditions as he may think fit for allowing such exclusions including condition for charging of premium. 10. At the outset we make it clear that the power to charge fee under the M.M.C. Act as a licencing Authority is different than the power to charge premium by the Planning Authority under M.R.T.P. Act. It may be that authority under the M.M.C. Act, may also happen to be the Development Authority under the M.R.T.P. Act. The scope and purpose of two Acts however, is different. Though both the legislations are State legislations, there is no incorporation of the provisos of the M.M.C. Act into the M.R.T.P. Act and vice versa and on the contrary section 124(L) (2) of M.R.T.P. Act makes it clear that subject to the provisions of sub section (1) which states that the provisions of the chapter shall have effect notwithstanding anything inconsistent therewith contained in this Act or any other law for the time being in force, the provisions of Chapter 6A shall be in addition to and not in derogation of any of the provisions of that Act or any law relating to Municipal Corporation, Municipal Council or any local authority of any urban area. Thus the M.R.T.P. Act itself makes it clear that the provisions of M.R.T.P. Act in the matter of development charges will have to be read in conjunction with the B.M.C. Act. Further as noted earlier, there is no incorporation or incorporation by reference and on the contrary, fees/charges payable under the two Acts are independent of each other and payable when a party seeks to put up construction/buildings and seeks permission under each of the Act, though for convenience, the Respondent No. 1 as the licensing authority under the M.M.C. Act and authority for granting development permission under the M.R.T.P. Act may have prepared a common form for application. As it is the authority under both the Acts. 11. As it is the authority under both the Acts. 11. Having set out the facts, we now proceed to consider the arguments advanced. On behalf of the Petitioner, their main submission is that the power conferred on the Commissioner under D.C. Regulation 35(2)(c) to exempt areas set out therein with special permission of the Commissioner does not confer power on the Commissioner to charge premium or fee. The M.R.T.P. Act and or D.C. Regulations has not conferred any express power on Respondent No. 2 to charge any fee by way of premium for exempting FSI under D.C.R. 35(2)(c). The expression “with permission of the Commissioner” at the best can be read to mean that the Commissioner cannot grant permission or disallow it, if that would result or found to be inconsistent with the provisions of D.C. Rules. D.C. Regulation 35(2)(c) which empowers the Commissioner to exclude FSI by special permission does not contemplate charging of premium. At any rate it is submitted that there is no power conferred on the Commissioner to levy premium either under the provisions of the M.R.T.P. Act, rules or D.C. Regulations. Reliance for that purpose is placed in the judgment of the Supreme Court in Ahmedabad Urban Development Authority Vs. Sharadkumar Jay Antikumar Pasawalla and others (1992) 3 S.C.C. 285 and the judgment in Bharti Tele-Ventures Ltd. And another Vs. State of Maharashtra and another, 2007 (4) Mh. L.J. 105. It is also submitted in the alternatively that the premium charged is exhorbitant and even if premium can be charged what would be applicable is the rate applicable in the year 1995 when the plans were submitted and I.O.D. issued by Respondents. 12. On the other hand on behalf of the Respondent Corporation it is submitted that clarification has been issued by the State Government dated 6.7.2009. The expression “with special permission of the Commissioner” has been clarified that sub regulation 2(c) of Regulation 35 empowers the Commissioner to impose necessary conditions as he may deem fit. This would clearly show that the Commissioner has the power to charge premium under the development control regulations. Apart from that it is set out that the power to approve, sanction, reject flows primarily from the M.M.C. Act, various provisions of the M.M.C. Act have been brought to our attention. This would clearly show that the Commissioner has the power to charge premium under the development control regulations. Apart from that it is set out that the power to approve, sanction, reject flows primarily from the M.M.C. Act, various provisions of the M.M.C. Act have been brought to our attention. In the course of considering the application for permission to grant permission for construction of the building, the Commissioner has to take into consideration FSI sought to be consumed. In that context, it is set out that section 479 in clear terms states that any other licence and permission granted under the M.M.C. Act for any purpose, fee may be charged at such rates as from time to time be fixed by the Commissioner with sanction of the Corporation. Thus levy of premium for excluded area for stair case etc. from FSI is a part and parcel of the permission granted by the Commissioner for the construction of the building. Reliance is placed on the sample copy of the application and permission granted. It is next submitted that excluding certain areas from calculation of FSI upon charging premium has been a long standing practice followed by the first respondent Corporation. The documents referred to demonstrate long standing practice. It is pointed out that since 1973 the first respondent has been exempting stair case lift wells from ground floor onwards from computation of FSI. The resolution of first respondent has been relied upon as also the circulars. Reliance is placed on circular dated 10.7.1974 issued by the first respondent which demonstrates that as far back as 1974, premium was being charged for excluding the area of stair case, lift wells from computation of FSI. Various other circulars have been referred to including resolution of 14.9.1995 passed by the Corporation approving revised fees pursuant to provisions of section 479(2) of the M.M.C. Act. If two interpretations are possible, the court should be reluctant to accept that interpretation which would upset and reverse the long standing practice. Reliance is placed in the judgment of the Supreme Court in Dr. Umakant Vs. Dr. Bhikalal Jain and other (1992) 1 SCC 105 as also in M/s. Jetha Bai and Sons, Jew Town, Cochin and Others Vs. M/s. Sunderdas Rathjenai and Others, (1988) 1 SCC 722 . Reliance is placed in the judgment of the Supreme Court in Dr. Umakant Vs. Dr. Bhikalal Jain and other (1992) 1 SCC 105 as also in M/s. Jetha Bai and Sons, Jew Town, Cochin and Others Vs. M/s. Sunderdas Rathjenai and Others, (1988) 1 SCC 722 . It is next submitted that the letter dated 10.6.1992 by the State Government is not clarification from the State Government rather the letter is a clarification under D.C. Regulations. It is further submitted that premium charged by the respondent is in the nature of regulatory fee and hence the concept of quid pro quo does not apply in the strict sense. The use of the word premium does not necessarily mean a fee in return of services. The levy of premium is to defray the costs of administration and to increase the general fee of the Corporation. Reliance is placed in the judgment of the Supreme Court in Sona Chandi Oal Committee and Others Vs. State of Maharashtra (2005) 2 S.C.C. 345 and Vam Organics Vs. State of U.P. (1997) 2 SCC 715 . In the alternative it is submitted that premium levied by excluding certain areas from computation of FSI is in respect of the various services provided by the Corporation and substantial expenses incurred in respect of the same. Reference is made to the provisions of section 337 to 350 of M.M.C. Act with regard to receiving applications for consideration, approval, appliance etc. Lastly it is submitted that only in the alternative if this court is not inclined to accept the earlier submissions, the premium charged is within the limits set out under section 124A read with schedule II of the M.R.T.P. Act and would be justified. It is set out that no development charge is made by the Corporation when sanctioning building plans in respect of the areas excluded from FSI calculations. 13. After hearing the parties and their counsel and considering the various judgments cited at the bar, the following questions will emerge for our consideration: (1) Considering the language of D.C. Regulation 35(2)(c), can the Commissioner charge premium for granting special permission to exclude from computation of F.S.I., areas set out therein? 13. After hearing the parties and their counsel and considering the various judgments cited at the bar, the following questions will emerge for our consideration: (1) Considering the language of D.C. Regulation 35(2)(c), can the Commissioner charge premium for granting special permission to exclude from computation of F.S.I., areas set out therein? (2) Was the Respondent Corporation authorized to pass a resolution to levy premium for exercise of the powers by the Commissioner under D.C. Regulations 35(2)(c) when the regulations confer powers specifically on the Commissioner and not on the Corporation? (3) Can the premium charged be said to be a regulatory fee, and if so can it be charged without there being any specific provision under the provisions of the M.R.T.P. Act. (4) Does Section 479 of the M.M.C Act which confers powers to grant licence and also provides for charging fees by the Commissioner, can be said, to be the power to charge premium for granting special permission by the Commissioner under D.C. Regulation 35(2)(c). In other words, is the power to levy premium referable to the provisions of the M.M.C. Act. (5) Considering the long standing practice and the fact that the premium is being charged from 10.7.1974, can it be submitted that it is not open to an applicant who applies for special permission to the Commissioner to challenge the charging of premium and in that context if two views are possible should this court accept the interpretation which would result in not upsetting the long standing practice. (6) Is the premium referable to any services performed by the Corporation. And in the alternative: (7) Is the premium within the limits set out under section 124A read with Schedule II of the M.R.TP. Act as no development charge is levied by the Corporation for sanctioning, building plans in respect of the areas not excluded from FSI restrictions. 14. D.C. Regulation 35(2)(c) reads as under: “35. Floor Space Index Computation (1) ...................................... (2) Exclusion from FSI computation.- The following shall not be counted towards FSI : (a)............. (b) ............ Act as no development charge is levied by the Corporation for sanctioning, building plans in respect of the areas not excluded from FSI restrictions. 14. D.C. Regulation 35(2)(c) reads as under: “35. Floor Space Index Computation (1) ...................................... (2) Exclusion from FSI computation.- The following shall not be counted towards FSI : (a)............. (b) ............ (c) Areas covered by stair-case rooms, lift rooms above the topmost storey, lift-wells and stair-cases and passages thereto, architectural features, chimneys and elevated tanks of permissible dimensions in respect of buildings in the Island City, Suburbs and extended suburbs with the special permission of the Commissioner: Provided that in the wards of the Island City such exclusion from FSI computation will be available in respect of buildings to be constructed or reconstructed only, the same being not available for existing buildings or proposals decided by the Corporation prior to the coming into the force of these Regulations, Provided further that where the permissible FSI has not been exhausted in the case of existing buildings and cases decided by the Corporation prior to coming into force of these Regulations, the exclusion from FSI computation as in these Regulations will be available for construction of the balance potential. Provided further that the reconstruction scheme with FSI exceeding 2.00 under Development Control Regulations Nos. 33(6) such exclusion will be permissible as per guidelines here under: - i. While working out total existing built up area, the built-up area of existing staircase will, not be taken into account. ii. Inredevelopment / reconstruction schemes, the staircase and lift-well areas as per the provisions of said Regulations will be permitted free of FSI. iii. The premium for the area of the staircase and lift-well will be recovered after working out the area of the staircase and lift-well in the proposed building minus area of the existing staircase, lift-well etc., if any.” On a construction of the language, it becomes clear that it is the Commissioner who can grant a special permission in respect of the areas covered by Regulation 35(2)(c). D.C. Regulation by themselves or for that matter, M.R.T.P. Act or Rules framed thereunder do not confer any power on the Commissioner to charge premium whilst granting special permission. The language of the Regulation itself does not permit charging of premium for granting special permission. D.C. Regulation by themselves or for that matter, M.R.T.P. Act or Rules framed thereunder do not confer any power on the Commissioner to charge premium whilst granting special permission. The language of the Regulation itself does not permit charging of premium for granting special permission. As argued on behalf of the Petitioners, the power conferred to grant permission is the power of the Commissioner. This discretionary power to grant special permission cannot be read to mean to disallow such exemption, unless it be contrary to the Act, rules and Regulations. The special permission contemplated at the highest can be read to mean that while granting permission it ought not to be inconsistent with the provisions of the Act, rules or D.C. Regulations. Once the D.C. Regulation themselves confer power to exclude, it would mean excluding those areas from F.S.I., computation, is not contrary to the Act, rules or regulations. Sub Regulation (2) itself sets out what shall not be counted towards F.S.I. The proviso sets out that such exclusion in the island city is only in respect of the buildings to be constructed or reconstructed and not existing buildings. At the highest this can be read to mean that ordinarily the Commissioner will grant permission. There is no power of quid pro quo in the Commissioner to demand premium for exercise of the power. We have earlier referred to documents by which the Improvement Committee and the Standing Committee as also the Corporation passed Resolution empowering the Commissioner to charge premium. Nothing has been shown or brought to our attention which confers power either on the Corporation or its committees to control the exercise of powers of the Commissioner while granting a special permission or conferring power on him to charge premium or fix the rate of premium. That exercise therefore, of the Improvement Committee and Standing Committee or by the Corporation for that matter would be clearly ultra vires the provisions of the aforementioned regulations. In our opinion, therefore, the demand by the Commissioner for premium for granting special permission to exclude areas covered by the D.C. Regulation No. 35(2)(c) is without jurisdiction. The demand on this count itself must be liable to be set aside. While answering Question No. 1, we have also answered Question No. 3. 15. It was sought to be contended that the premium charged has to be as a regulatory fee. The demand on this count itself must be liable to be set aside. While answering Question No. 1, we have also answered Question No. 3. 15. It was sought to be contended that the premium charged has to be as a regulatory fee. A similar issue came up for consideration in Amit Maru and Others Versus State of Maharashtra and Others in PIL No. 94 of 2008 decided by us today. In that case, the issue was of charging premium for additional FSI in the suburbs and extended suburbs. After considering the provisions of the Act and Rules and D.C. Regulations, though reliance was sought on Section 22(m) of the M.R.T.P. Act to charge the fee, we have held that there is no power to charge premium. Reliance was placed in the Judgment in Ahmedabad Urban Development Authority Vs. Sharadkumar Jay Antikumar Pasawalla and Others (supra) where the Supreme Court held that in fiscal matters it will not be proper to hold that even in the absence of express provisions, delegated authority can impose tax or fee. The court further observed that the power of imposition of tax and or fee, by delegated authority must be very specific and there is no scope of implied authority in imposition of such tax or fee and further observed that the delegated authority must act strictly within the parameters of authority delegated to it under the Act and it will not be proper to bring the theory of implied intent or the concept of incidental and ancillary power in the matter of exercise of fiscal power. The learned Division Bench of this court in Bharati Tele Ventures Ltd. (supra) in the matter of charging premium for erection of tower for cellular mobile had also taken a view that there is no power under the Act to charge premium. We may reproduce some observations from Ahmedabad Urban Development Authority (supra). "in a fiscal matter it will not be proper to hold that even in the absence of express provision, a delegated authority can impose a fee or a tax. In our view, such power of imposition of tax and/or a fee by a delegated authority must be very specific and there is no scope for implied authority for imposition of such tax or fee. In our view, such power of imposition of tax and/or a fee by a delegated authority must be very specific and there is no scope for implied authority for imposition of such tax or fee. It appears to us that the delegated authority must act strictly within the parameters of the authority delegated to it under the Act and it will not be proper to bring the theory of implied intent or the concept of incidental and ancillary power in the matter of exercise of fiscal power.” “It has been constantly held by this Court that whenever there is compulsory exaction of any money, there should be specific provision for the same and there is no room for intendment. Nothing is to be read and nothing is to be implied and one should look fairly to the language used” Some further observations from the Judgment in Amit Maru and Others (supra). “44. Section 22(m) of the MRTP Act deals with the “contents of a development plan" and stipulates that a development plan shall contain "provisions for permission to be granted for controlling and regulating the use and development of land within the jurisdiction of a local authority.” Intervenors (MCHI) has contended as although Section 22(m) does not specifically authorize the levy or collection of “premium” the levy/ recovery of "premium" was permissible in law as a regulatory fee. Reliance is placed on the decision of the Supreme Court in "State of West Bengal vs Kesoram Industries " (2004) 10 SCC 201 . In State of West Bengal vs Kesoram Industries (supra) it is stated that it is well settled that the power to regulate & control is separate and distinct from the power to tax. The issue before the Supreme Court was in fact the powers of the State to levy tax on 'land' and power of the Union to regulate and control industries. Although a "regulatory fee" can be levied in exercise of the power to regulate, it is well settled that " in the garb of exercising the power to regulate, any fee or levy which has no connection with the cost of or expenses of administering the regulation cannot he imposed". See State of West Bengal vs Kesoram Industries: This position has been reiterated in the decision in the case of State of Uttar Pradesh Vs Yarn Organic Chemicals, AIR 2003 SC 4650 . See State of West Bengal vs Kesoram Industries: This position has been reiterated in the decision in the case of State of Uttar Pradesh Vs Yarn Organic Chemicals, AIR 2003 SC 4650 . In that case the Supreme Court considered the earlier decisions including in BSE Brokers Forum Vs SEBI , (2001) 3 SCC 482 which has been relied on by the Intervenors, and then reiterated that a regulatory fee " is required to be justified with reference to the cost of such regulation.” 45. The Premium levied is ex facie not a "regulatory fee”. The premium is not for the purpose of meeting the cost or expenses of administering the regulation. We have earlier dealt with Sections 124A and 124J. The Government has in its affidavits contended that it is to meet the costs of infrastructure. The Premium levied is linked to the Ready Reckoner value of the FSI and ranges from Rs.4,900/per sq. meters in Manori / Gorai to Rs.23,000/- per sq. meters and more in Bandra. The costs or expenses of administering regulation cannot vary according to the value of the land / location. As per the impugned Notification the premium is not for meeting the costs of or expenses of administering the regulation. The amount recovered by way of premium is to be shared 50:50 between the State Government and the MCGM. The MCGM is to utilize its 50% for implementation of the Development Plan & infrastructure”. Charging a premium to raise funds for implementation of the Development Plan and for creating Infrastructure, is clearly beyond the permissible scope/ purpose of a regulatory fee i.e. to meet the costs & expenses of administering the regulation, if that can be urged. Moreover the 50% collected by Government is not earmarked for any specific purpose on the contrary the whole intent is to garner resources for extraneous purposes of Minority Welfare Fund and other general expenses to meet the budgetary deficit. 46. As already noted by Maharashtra Act 16 of 1992 Chapter VIA was inserted to provide for the levy of a Development Charge to enable local authorities to raise funds "for effective implementation of the provisions of the Act and to provide for proper amenities and facilities for the healthy growth of these cities and town.' as the MRTP Act did not contain any provisions for levy and collection of development charges by such Authority. Under Chapter VI (A) of the Act read with the 2nd Schedule thereto, the permissible levy of Development charges ranges only from Rs.40/Rs. 250/- per sq meters in Mumbai. 47. We may once again refer to the judgment in the case of State of West Bengal v/s Kesoram Industries Ltd. (supra) to understand its true impact. In paragraph 104 and 106 of the said Judgment, it is set out as under: “104. There is nothing like an implied power to tax. The source of power which does not specifically speak of taxation cannot be so interpreted by expanding its width as to include therein the power to tax by implication or by necessary inference. States Cooly in Taxation (Vol. 1, 4th Edn.) “There is no such thing as taxation by implication. The burden is always upon the taxing authority to point to the act of assembly which authorizes the imposition of the tax claimed.” “106. The judicial opinion of binding authority flowing from several pronouncements of this Court has settled these principles; (i) in interpreting a taxing statute, equitable considerations are entirely out of place. Taxing statues cannot be interpreted on any presumption or assumption. A taxing statute has to be interpreted in the light of what is clearly expressed; it cannot imply anything which is not expressed; it cannot import provisions in the statute so as to supply any deficiency; (ii) before taxing any person it must be shown that he falls within the ambit of the charging section by clear words used in the section; and (iii) if the words are ambiguous and open to two interpretations, the benefit of interpretation is given to the subject. There is nothing unjust in the taxpayer escaping if the letter of the law fails to catch him on account of the legislature's failure to express itself clearly.” Thus clearly whether the fee be regulatory or compensatory, there must be specific express power to charge a fee. In the absence of specific provision to charge fee including a regulatory fee, the demand is illegal. The said contention therefore, raised on behalf of the Respondents will have to be rejected. 16. In so far as Question No. (4) is concerned, we may note firstly the provisions of the M.R.T.P. Act have not been incorporated in the M.M.C. Act and vice versa. These are two independent statutes enacted by the State Legislature. The said contention therefore, raised on behalf of the Respondents will have to be rejected. 16. In so far as Question No. (4) is concerned, we may note firstly the provisions of the M.R.T.P. Act have not been incorporated in the M.M.C. Act and vice versa. These are two independent statutes enacted by the State Legislature. The repealing provisions would indicate that on coming into force of M.R.T.P. Act, it is the Bombay Town Planning Act, 1954 and certain provisions of the Maharashtra Zillla Parishad and Panchayat Samiti Act, 1861 which were repealed. The M.R.T.P. Act, 1966 has its object clause to make provision for planning the development and use of land in Regions established for that purpose and for the constitution of Regional Planning Boards therefor, to make better provision for the preparation of Development plans with a view to ensuring that town planning schemes are made in a proper manner and their execution is made effective, to provide for the creation of new towns by means of Development Authorities, to make provision for the compulsory acquisition of land required for public purpose in respect of the plans etc. Whereas M.M.C. Act was a consolidating Act relating to Municipal Government of Brihan Mumbai. The M.R.T.P. Act no doubt by express provisions provides for Planning Authority which means Local Authority. The powers on the Local authority are conferred by the M.R.T.P. Act and not by the provisions of the M.M.C. Act. Section 479 (1) and (2) of the M.M.C. Act reads as under: “479. Licences and written permission to specify condition etc. on which they are granted : (1) Whenever it is provided in this Act that a licence or a written permission may be given for any purpose, such licence or written permission shall specify the period for which, and the restrictions and conditions subject to which, the same is granted, and shall be given under the signature of the Commissioner or of a municipal officer empowered under section 68 to grant the same. (2) Fees to be chargeable : For every such licence or written permission a fee may be charged at such rate as shall from time to time be fixed by the Commissioner, with the sanction of the Corporation.” Therefore, clearly under Section 479(2) for the licence to be granted under Section 479, a fee has to be charged at such rate as may be fixed by the Commissioner with sanction of the Corporation. Therefore, it is fee in respect of the licence to be issued under the M.M.C. Act and not under the provisions of M.R.T.P. Act. Merely because the Local Authority which is Planning Authority is also an authority under the M.M.C. Act does not result in holding that the authorities under the M.M.C. Act are conferred with the powers to levy fees under the M.R.T.P. Act. When an Act confers power and provides the manner of exercise of such power, then that exercise must be done in conformity with those provisions. For issuing licences under the provisions of M.M.C. Act, rules have been made for charging fees, and it is those fees alone which would be payable under the M.M.C. Act, irrespective of the provisions of the M.R.T.P. Act. No rules at least have been shown to us under the M.M.C. Act which enables Municipal Commissioner to charge fees while granting special permission under Regulation 35(2)(c) of the D.C. Regulations under M.R.T.P. Act. In our opinion, therefore, it is not possible to accept the contention as urged on behalf of the Respondents that the power to charge fee is referable to the provisions of section 479 of the M.M.C. Act. That contention must be rejected. 17. We thencome to the next question that considering the long standing practice of charging premium, this court ought not to interfere. For that purpose reliance was placed on various judgments. In the first instance, as pointed out D.C. regulations are of the year 1991. If any fee has to be charged, it is to be charged in terms of the M.R.T.P. Act, Rules and D.C. Regulations. The concept of long standing practice is no answer in the matter of demand or levy of fees. In the first instance, as pointed out D.C. regulations are of the year 1991. If any fee has to be charged, it is to be charged in terms of the M.R.T.P. Act, Rules and D.C. Regulations. The concept of long standing practice is no answer in the matter of demand or levy of fees. In other words, merely because a party has paid the premium will not estop the party from contending that the demand was illegal and has been paid wrongly or under a mistake of law and or that they are not liable to pay if grievance is made within reasonable time. There can be no promissory estoppal in the case of D.C. Regulations as observed by the Supreme Court in the case of Pune Municipal Corporation and Others (supra) it being delegated legislature. The respondents have relied upon the judgment of the Supreme Court in the case of Dr. Umakant (supra) to the following observations: “9. If we examine the matter from another angle, it would be clear that according to the university such a procedure is in vogue in all the universities of Rajasthan that a reserve list is used for the appointment on a vacant post caused during the validity period of the reserve list, and i numerous appointments had been made in the last decade from the reserve list. The university has also submitted that if the view taken by the High Court is held to be correct, it will create chaotic situation in the university as all appointments so far made from the reserve list will become assailable. It is well settled that in matters relating to educational institutions, if two interpretations are possible, the courts would ordinarily be reluctant to accept that interpretation which would upset and reverse the long course of action and decision taken by such educational authorities and would accept the interpretation made by such educational authorities.” In that case what was being considered was the maintenance of the reserve list in the matter of appointments to post. This was not an issue of fiscal legislation. It is on the facts there that the court made those observations as to when two interpretations are possible. In our opinion that ratio is clearly distinguishable. Reliance was also placed in the case of M/s. Jetha Bai and Sons. Jew Town Cochi and Others Vs. This was not an issue of fiscal legislation. It is on the facts there that the court made those observations as to when two interpretations are possible. In our opinion that ratio is clearly distinguishable. Reliance was also placed in the case of M/s. Jetha Bai and Sons. Jew Town Cochi and Others Vs. M/s. Sunderdas Rathenai and Others (1988) 1 Supreme Court Cases 722 to the following observations: “32. One more circumstance which I think has a bearing on the interpretation to be placed on this procedural problem is this. In the State of Kerala, as early as in Varid v. Mary , a view was taken that the High Court can entertain a second revision and, though Shri Potti suggested that this view has been often challenged, the above Pull Bench decision hold the field till Aundal Ammal was decided. In Karnataka, the maintainability of a second revision appears to have been taken for granted until a doubt was raised in view of certain observations made in a decision under the Cooperative Societies Act. This doubt was dispelled and it was held in Krishnaji's case that the High Court could maintain a second revision. This view was sought to be reversed by the subsequent Full Bench in Yaragatti's case, in the light of the decision in Aundal Ammal, but that attempt was overruled in Shyamaraju's case. In the result, the position has been that, right through in the State of Karnataka and for atleast for a period of almost twenty years in the State of Kerala, the prevalent view has been in favour of the maintainability of a second revision by the High Courts. I think that in a matter of procedure such a long standing practice should not be disturbed unless the statutory indication is quite clear to the contrary.” The contention therefore, on behalf of the Respondents of long standing practice of levying premium and that has the force of law will have to be rejected. Once again reiterating that principle in Ahmedabad Urban Development (supra) in the matter of fiscal legislation there has to be specific power. In the absence of that express power, no authority can demand tax, fee or any other charge. That will clearly be violative of Articles 19(1)(g) and or 300-A of the Constitution of India. That contention therefore, will have to be rejected. 18. In the absence of that express power, no authority can demand tax, fee or any other charge. That will clearly be violative of Articles 19(1)(g) and or 300-A of the Constitution of India. That contention therefore, will have to be rejected. 18. It was also sought to be contended that the letter dated 10.6.1992 by the State Government is not the clarification from the State Government on the D.C. Regulation but letter dated 6.7.2009 is the clarification for the D.C. Regulations. We have earlier referred to two communications dated 13.5.1992 and 10.6.1992 by which Under Secretary to Government had held that any premium ought not to be charged for counting of F.S.I. in terms of D.C. Regulation 35(2). It is only pursuant to the representation by the Corporation of 22nd June, 1992 that clarification has been sought to be given by the State Government under Regulation 62(3) of the Regulations. Regulation 62(3), provides that if any question or dispute arises with regard to interpretation of any of these regulations, the matter would be referred to the State Government which after considering the matter and if necessary, after giving hearing to the parties, shall give its decision on the interpretation of the provisions of these regulations. The decision shall be final and binding on the concerned party or parties. It is not the case of the Respondent that Petitioner herein was given hearing. Apart from that the question which is raised is, whether there is any dispute in the matter of interpretation of D.C. Regulation 35(2)(c). In our opinion, considering the express language of the Regulations which do not provide for charging premium, the question of any dispute warranting the State Government to give clarification was uncalled for. The exercise of power under Regulation 62(3) apart from the fact that it is arbitrary, discloses total non application of mind on the part of the State Government while issuing the clarification. In addressing the issue, the first question that the State Government ought to have asked itself is considering the law declared by the Supreme Court and this court, is there power to charge fee under the Act. Secondly was there power to charge a fee under D.C. Regulation 35(2)(c) in the Commissioner for granting special permission. Thus the State Government did not address itself to the same. Secondly was there power to charge a fee under D.C. Regulation 35(2)(c) in the Commissioner for granting special permission. Thus the State Government did not address itself to the same. In our opinion, therefore, the clarification is clearly illegal and consequently liable to be struck down. 19. That leaves us with the last question as to whether this can be said to be development fee under Section 124A read with schedule II of the M.R.T.P. Act. It is not the case of the respondents that the Petitioner has not paid development charges in terms of Section 124A. Petitioner, does not dispute the same. Section 124A is a power conferred to charge fee by the local authority at the rates specified in the schedule pursuant to an amendment as inserted by Maharashtra 16 of 1992. The issue is not in respect of the Development charge but in respect of the premium which were claimed for excluding from computation of FSI. In our opinion, this argument has to be rejected at the threshold. 20. We may however, point out that various other petitions have been filed in this court which were withdrawn. We must clarify that such petitioners will not be entitled to avail of the benefit of this judgment. All that we have held is that the Commissioner had no power to charge premium. We have not held the D.C. Regulation 35(2)(c) to be ultra vires the Act. The finding is that there was no power. As such, it is only in those cases where a party had paid the amount and protested the collection of premium within reasonable time and has challenged the demand within the limitation period allowed by law by taking legal steps for recovery, would such person/persons alone be entitled to the benefit of this judgment. 21. In the light of that the following order: It is declared that Respondents in the absence of any express provisions in the Act or regulations, do not have any power and or authority to levy, charge, demand or collect any premium or amounts by whatever name under D.C. Regulation No. 35(2)(c) for grant of special permission by the Commissioner and consequently such demand is illegal. It is further declared that the clarification by order/communication dated 6.7.2009 is ultra vires Regulation No. 35(2)(c) and or provisions of the Act and the Rules. It is further declared that the clarification by order/communication dated 6.7.2009 is ultra vires Regulation No. 35(2)(c) and or provisions of the Act and the Rules. Consequently respondents are directed to refund the premium to the Petitioners in so far as those lands are covered. If the amounts are refunded within two months from today, it shall not carry any interest failing which the same will carry interest at the rate of 8% per annum from today till final payment.