Judgment : PRANAB KUMAR CHATTOPADHYAY, J. This appeal has been preferred at the instance of the Kolkata Municipal Corporation and its different functionaries assailing the judgment and order dated 14th May, 2009 passed by a learned Judge of this Court whereby and whereunder the said learned Judge allowed the writ petition on merits and also imposed cost to the tune of Rs. 10,000/- on the appellants herein. The material facts leading to the present appeal may be summarised thus :- The respondents/writ petitioners applied for reconstruction of the four storied tenanted dilapidated building at premises No. 1 Mir Bahar Ghat St. within Borough – IV of Kolkata Municipal Corporation by submitting a plan under Rule 3 (2) (e) and (k) of the Kolkata Municipal Corporation Building Rules 1990 read with Section 410 of the Kolkata Municipal Corporation Act, 1980. The competent authority of the Kolkata Municipal Corporation thereafter on 8th October, 2005 allowed the respondents/writ petitioners to reconstruct the aforesaid four storied tenanted dilapidated building by sanctioning the building plan being B. S. Plan No. 50, Borough – IV. On inspection of the premises on 13th July, 2007 it was found by the Kolkata Municipal Corporation that the respondents/writ petitioners in course of repair/reconstruction work at the premises in question carried on unauthorised construction in violation of the sanctioned plan and therefore, a notice under Section 400 (1) of the Kolkata Municipal Corporation Act, 1980 was served in order to stop any further construction. The Kolkata Municipal Corporation Authority thereafter initiated a demolition proceeding being Demolition Case No. 49-D/IV/07-08. The said demolition case was heard by the Special Officer (Building) of the Kolkata Municipal Corporation and an order was passed on 31/01/2008 for retention of the unauthorised construction of the said building on certain terms and conditions upon considering the fact that the premises in question is in occupation of several tenants. The respondents/writ petitioners received the said order on 12th May, 2008 by hand. Pursuant to the aforesaid order, Kolkata Municipal Corporation Authority demanded retention charges to the tune of Rs. 78,00,940/- on the basis of the schedule of charges fixed for the year 2008-09 which was effective from April, 2008. The respondents/writ petitioners being aggrieved by the aforesaid demand filed the writ petition. Pursuant to the aforesaid order, Kolkata Municipal Corporation Authority demanded retention charges to the tune of Rs. 78,00,940/- on the basis of the schedule of charges fixed for the year 2008-09 which was effective from April, 2008. The respondents/writ petitioners being aggrieved by the aforesaid demand filed the writ petition. Initially on the said writ petition another learned Judge of this Court passed an order directing the Kolkata Municipal Corporation Authorities to calculate the charges as per circular of 2007-08 and in compliance with the said order a demand for Rs. 31,80,379.00 was raised towards the retention charges of the said unauthorized construction. In course of hearing of the writ petition learned Single Judge passed an order directing the Kolkata Municipal Corporation Authorities to file an affidavit stating the manner on the basis whereof the aforesaid calculations amounting to Rs. 31,80,379.00 were arrived at. In compliance with the aforesaid direction an affidavit were filed by the Kolkata Municipal Corporation Authority wherein the details of the calculations were mentioned as hereunder :- i) Charges for sanction of Mercantile Building for an area of 428.102 sq. meter = 112.6x6x428.102 (Normal sanction fee Rs. 112.6) per sq. meter Rs. 2,89,225.70 Retention charges for sanction of unauthorised construction for the area 428.102 sq. meter = 2,89,225.70 Rs. 28,92,257.00 ii) 5% extra for ‘C’ zone area (i.e. Rs. 28,92257 x 5/100 Rs. 1,44,6122.00 iii) Surcharge @ Rs. 140/- per sq. meter 140 x 420.102 Rs. 59,934.00 iv) Sketch fees @ Rs. 2000 x 2 ( for Rs. 4,000.00 mercantile Building) v) Violation of Rule 56 : Area 226.44 sq., 5,467 Sq. m 231.907 Sq. m. Violation of Rule 57 : 23,085 Sq. m. 10.26” 33.345 Total area of violation Of Rule576 & 57 (231 . 907) Sq. M. + 33 . 345 265.252 Sq. M. Retention Charges for 265.252 Sq. M. @ Rs. 300/- per sq. m. (265.252 x 300) Rs. 79,576.00 Total : Rs. 31,80,379.00 It was argued before the learned Single Judge on behalf of the respondents/writ petitioners that the Kolkata Municipal Corporation Authorities are not entitled to charge penalty. The learned senior counsel of the appellant categorically submitted before the learned Single Judge that the writ petitioners are liable to pay all the charges, as claimed by the Kolkata Municipal Corporation Authorities save and except the amount arrived at by applying the multiplier of ten i.e. the sum of Rs. 28,92,257/-. The learned senior counsel of the appellant categorically submitted before the learned Single Judge that the writ petitioners are liable to pay all the charges, as claimed by the Kolkata Municipal Corporation Authorities save and except the amount arrived at by applying the multiplier of ten i.e. the sum of Rs. 28,92,257/-. The learned Single Judge upon hearing the submissions of both the parties upheld the contentions of the writ petitioners and allowed the writ petition with costs. Assailing the said judgment and order passed by the learned Single Judge Kolkata Municipal Corporation Authorities preferred the instant appeal. The real issue which is to be decided in this appeal is whether the Kolkata Municipal Corporation Authority was justified in demanding the retention charges for the unauthorised construction and for sanction of application the same on the basis of plan of a penal multiplier to the usual fees. Mr. Bimal Chatterjee, learned senior counsel representing the appellant Kolkata Municipal Corporation submitted that the Kolkata Municipal Corporation Authorities are entitled to claim retention charges for permitting retention of unauthorised construction at a higher rate than the normal charges for sanction. Mr. Chatterjee also submitted that Rules 38, 39 and 40 of the K.M.C. Building Rules, 1990 confer power on the Corporation to charge fees on the basis of Budget Estimate as resolved by the House of the Corporation under Section 131 of the K.M.C. Act, 1980, with regard to sanction of a new building plan, revised plan, reconstruction and/or repair works. On the basis of the said power and/or authority the charges, fees are decided and resolved and/or passed by the House of the Corporation giving the statutory force and the same are published in the Budget Estimate and thereafter a Circular is issued by the Head of the Department for the respective Department. Accordingly, the Department calculates and charges the fees in respect of the cases under different heads. Mr. Chatterjee submitted that the circular so issued as per the decision and resolution of the Corporation is to be treated as statutory and valid and legal which empowers the Municipal Authorities to levy and collect fees, charges, rates and taxes. According to Mr. Accordingly, the Department calculates and charges the fees in respect of the cases under different heads. Mr. Chatterjee submitted that the circular so issued as per the decision and resolution of the Corporation is to be treated as statutory and valid and legal which empowers the Municipal Authorities to levy and collect fees, charges, rates and taxes. According to Mr. Chatterjee, the charges, fees, rates, taxes decided and resolved by the House of the Corporation as per Section 131 of the K.M.C. Act, 1980 through a process and the circular issued thereafter as per the said decision and/or resolution taken by the House of the Corporation and charged as such under heading unauthorised construction is valid, legal and enforceable under law. Mr. Chatterjee further submitted that the circular approved and resolved by the House of Corporation cover various items of charges of various departments of the appellants and one of those department is the Building Department. The Building Department is entitled to charge usual normal sanction fees for sanction of a new building plan and different fees for the retention of unauthorised construction. In the instant case, since the area is more than 300 sq.m., the penal rate of charges were imposed 10 times of the normal fees in order to retain the unauthorised construction as provided in the Circular and the amount to the tune of Rs. 28,92,257/- was claimed which according to the appellants is just and proper and the writ petitioners are liable to pay. Mr. Chatterjee submitted that only upon payment of the aforesaid amount writ petitioners will get the sanctioned plan and not otherwise. Mr. Chatterjee specifically urged before this Court that the Kolkata Municipal Corporation Authorities are entitled to charge the retention fees as fixed in the Circular of 2007-08 particularly when the circular was not challenged and on the contrary the writ petitioners/respondents themselves admitted and agreed to make payment on the basis of the said circular of 2007-08 which will appear from the pleadings made in paragraph 28 of the writ petition and also from the prayers made in the writ petition. Mr. Chatterjee referred to and relied on a decision of the Division Bench of this Court in the case of Wo Bros. Vs. Commissioner, Corporation of Calcutta, reported in ILR 1977 (1) Cal 613. Mr. Chatterjee referred to and relied on a decision of the Division Bench of this Court in the case of Wo Bros. Vs. Commissioner, Corporation of Calcutta, reported in ILR 1977 (1) Cal 613. In the aforesaid decision, the Division Bench of this Court held :- “This policy of laying down the fees cannot be said to be arbitrary and it applies in all cases where unauthorised construction is allowed to stand. In that view of the matter, in our opinion, it must be held that the order of the Building Tribunal to the effect that the offending structure will be allowed to stand if the petitioners pay the penalty fees and sketch fees for all the unauthorised constructions within one month from the date of the order, is not arbitrary.” Mr. Shaktinath Mukherjee, learned senior counsel representing the respondents/writ petitioners, however submitted that the Corporation has no power to impose any penalty for allowing retention of the unauthorised structure. According to Mr. Mukherjee, Kolkata Municipal Corporation Authorities can only claim normal sanction fees for granting sanction to the unauthorized construction of the building in question. Since the Special Officer (Building) of the Kolkata Municipal Corporation by the order dated 31st January, 2008 allowed retention of the unauthorised construction subject to payment of erection/reerection charges as per Rule 40 (1) of the Kolkata Municipal Corporation Building Rules, 1990. Mr. Mukherjee also submitted that the Special Officer (Building) consciously did not impose any penalty on the writ petitioners while allowing retention of the unauthorised construction, since there was no provision in the Kolkata Municipal Corporation Act and Rules framed thereunder to charge penalty in this regard. On behalf of the writ petitioners it has also been submitted that there is no legal provision in the statute to charge penal rate on the basis of penal multiplier for allowing retention of the unauthorized construction. The appellant, Kolkata Municipal Corporation in its turn, however, relied upon an administrative circular containing the schedule of fees and charges which were approved by the Kolkata Municipal Corporation under Section 131 of the Kolkata Municipal Corporation Act. The said Section 131 of the Kolkata Municipal Corporation Act deals with the Annual Budget of the Corporation. The appellant, Kolkata Municipal Corporation in its turn, however, relied upon an administrative circular containing the schedule of fees and charges which were approved by the Kolkata Municipal Corporation under Section 131 of the Kolkata Municipal Corporation Act. The said Section 131 of the Kolkata Municipal Corporation Act deals with the Annual Budget of the Corporation. Section 131 (3) reads as follows :- “Annual Budget of the Corporation :- The budget estimate shall state the rates at which various taxes, surcharges, cesses and fees shall be levied by the Corporation in the year next following.” On behalf of the respondents/ writ petitioners it was submitted that fixation of rates of taxes and fees can arise only where there is a charging Section creating the liability to pay taxes and fees. It has also been submitted that on behalf of the respondents/writ petitioners that Section 170 of the Act provides for the imposition of different taxes including a tax on lands and buildings. Sub-Section 2 of Section 170 provides that the Assessment and collection of taxes mentioned in Sub-Section 1 shall be in accordance with the provisions of this Section and the rules and regulations made thereunder. The learned counsel of the respondents/writ petitioners also submitted that having regard to the charging provision of Section 170 the rates can be determined by the Corporation but not otherwise. Learned senior counsel of the respondents/writ petitioners submitted that Section 199 of the Act while dealing with certificate of enlistment in Profession, Trade and Calling creates a liability for payment of fees and leaves the rate to be determined under Section 131 and further submitted that Section 210 (B) provides for levy of Special conservancy charges and leaves the rate to be determined by the Corporation. The learned senior counsel of the respondents/writ petitioners urged before this Court that in the instant case there is no provision whatsoever for imposition of any penal rate while allowing the retention of unauthorized construction. It has also been submitted on behalf of the respondents/writ petitioners that the Kolkata Municipal Corporation being a creature of the statute cannot impose taxes or fees unless so authorised by the statute. Mr. Mukherjee, learned senior counsel of the respondents/writ petitioners relied on Article 265 of the Constitution of India which provides “no tax shall be levied or collected except by authority of law.” Mr. Mr. Mukherjee, learned senior counsel of the respondents/writ petitioners relied on Article 265 of the Constitution of India which provides “no tax shall be levied or collected except by authority of law.” Mr. Mukherjee, referred to and relied on a decision of this Court in the case of Asian Leather Limited & Anr. Vs. Kolkata Municipal Corporation & Ors., reported in 2007 (3) CHN 476 wherein the Division Bench of this Court observed :- “11. At the very outset, we should bear in mind the provision contained in Article 265 of the Constitution of India according to which no tax shall be levied or collected except by authority of law. 12. At this juncture, it will be profitable to refer to the well-known proposition of law that a natural person has the capacity to do all lawful things unless his capacity has been curtailed by some rule of law. It is equally a fundamental principle that in case of a statutory corporation, it is just the other way. The Corporation has no power to do anything unless powers are conferred on it by the statutes, which creates it. (See : Maniruddin Bepari Vs. Chairman of Municipal Commissioners, Dacca, reported in 40 CWN 17). 13.In the subsequent case of Ahmedabad Urban Development Authority vs. Sharad Kumar Jayant Kumar passawalla, reported in AIR 1992 SC 2038 , the Supreme Court made the following observation: “..it appears to us that in a fiscal matter it will not be proper to hold that even in the absence of express provision, a delegated authority can impose tax or fee. In our view, such power of imposition of tax and/or fee by delegated authority must be very specific and there is no scope of 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.” 14. Bearing in mind the aforesaid principles and after going through the various provisions of the Act, the Rules and the Regulations framed thereunder, referred to by Mr. Bearing in mind the aforesaid principles and after going through the various provisions of the Act, the Rules and the Regulations framed thereunder, referred to by Mr. Mitra, the learned Senior Advocate appearing on behalf of the appellant, we do not find that either in the Act or the Rules or the Regulations framed thereunder, any right or authority has been given to the Corporation to realise Drainage Development Fees from the owners of the land or the building at the time to the sanction of the building-plan as condition precedent for grant of permission to raise building. In the aforesaid case legality of imposition of Drainage Development Fees was called into question and the Division Bench of this Court held that the Corporation has no power to impose such fees in the absence of any legal sanction. The aforesaid Division Bench upon placing reliance on the judgment of the Supreme Court in the case of Ahmedabad Urban Development Authority vs. Sharad Kumar Jayant Kumar passawalla, reported in AIR 1992 SC 2038 held that no fees can be imposed without sanction of law. Mr. Bimal Chatterjee, learned senior counsel of the appellants relied on a Division Bench judgment of this Court in the case of The Kolkata Municipal Corporation & Ors. Vs. Hallmark Consultants (P.) Ltd. & Ors., reported in 2007 (1) CLJ (Cal) 143, wherein the said Division Bench following the earlier Division Bench judgment of this Court in the case of Wo Bros. Vs. Commissioner, Corporation of Calcutta, reported in ILR 1977 (1) Cal 613 (supra) held that the Corporation can allow retention of illegal construction on payment of penalty. Mr. Mukherjee, learned senior counsel of the respondents/writ petitioners submitted that the aforesaid decisions of this court in the case of The Kolkata Municipal Corporation & Ors. Vs. Hallmark Consultants (P.) Ltd. & Ors. (supra) reported in 2007 (1) CLJ (Cal) 143 and the earlier Division Bench judgment in the case of Wo Bros. Vs. Commissioner, Corporation of Calcutta, reported in ILR 1977 (1) Cal 613 (supra) Wo Bros. Vs. Vs. Hallmark Consultants (P.) Ltd. & Ors. (supra) reported in 2007 (1) CLJ (Cal) 143 and the earlier Division Bench judgment in the case of Wo Bros. Vs. Commissioner, Corporation of Calcutta, reported in ILR 1977 (1) Cal 613 (supra) Wo Bros. Vs. Commissioner, Corporation of Calcutta, reported in 1977 (1) Cal 613 (supra) are affected by the Rule of sub-silentio since the Division Bench of this Court in the aforesaid decisions did not consider the constitutional prohibitions as contained in Article 265 of the Constitution of India which categorically provides that no tax shall be levied or collected except by authority of law. Mr. Mukherjee also relied on another judgment of this Court reported in 79 CWN 883, Scotts (P) Ltd. & Ors. Vs. Corporation of Calcutta & Ors. wherein Justice A. N. Sen quoted the following observations of R.C. Mitter, J. in the case of Maniruddin Bepari vs. The Chairman of the Municipal Commissioner, Dacca, reported in 40 CWN 17 :- “It is a fundamental principle of law that a natural person has the capacity to do all lawful things unless his capacity has been curtailed by some rule of law. It is equally a fundamental principle that in the case of a statutory corporation it is just the other way. The Corporation has no power to do anything unless those powers are conferred on it by the statute which creates it………” Mr. Chatterjee, also submitted before this Court that this court should pass appropriate order for demolition of the unauthorised construction of the building in question. Mr. Mukherjee, learned senior counsel of the respondents/writ petitioners, however, submitted that the aforesaid question was not an issue in the writ petition and, therefore, cannot be allowed to be raised for the first time in the appeal. Mr. Mukherjee also submitted in this regard that the Corporation cannot challenge its own decision as a respondent in the writ petition. There is no dispute that the Special Officer (Building) of Kolkata Municipal Corporation by the order dated 31/01/2008 permitted the writ petitioners to retain unauthorised construction on payment of erection/re-erection charges and, therefore, no order can be passed at the instance of the Kolkata Municipal Corporation for demolition of the unauthorised construction of the building at this stage specially when the same was not an issue in the writ petition decided by the learned Single Judge. The decision of this court in the case of The Kolkata Municipal Corporation & Ors. Vs. Hallmark Consultants (P.) Ltd. & Ors., reported in 2007 (1) CLJ (Cal) 143 (cited by Mr. Bimal Chatterjee, learned senior counsel of the appellants) cannot be held to be a binding precedent since in the aforesaid decision Division Bench of this Court did not consider the provisions of Article 265 of the Constitution of India and also the judgment of the Hon’ble Supreme Court in the case of Ahmedabad Urban Development Authority vs. Sharad Kumar Jayant Kumar passawalla, reported in AIR 1992 SC 2038 (supra). A very relevant decision of the Hon’ble Supreme Court in the case of Andhra Pradesh vs. B. Satyanarayana Rao, reported in 2000 (4) SCC 262 can be relied upon in this regard wherein the Hon’ble Supreme Court observed :- “The rule of per incuriam can be applied where a court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue.” We find sufficient merits in the aforesaid arguments advanced on behalf of the respondents/writ petitioners. The learned Single Judge, in our opinion, has rightly disallowed the imposition of penal rates by application of penal multiplier in calculating the retention charges for sanction of the unauthorised construction of the building in question as there is no provision whatsoever in the Kolkata Municipal Corporation Act and/or Rules framed thereunder for imposition of such penal rate for the purpose of allowing the retention of unauthorised construction. For the reasons discussed hereinabove we hold that the learned Single Judge has correctly decided the issues raised in the writ petition and therefore, we find no scope to interfere with the same. However, we do not approve the direction of the learned Single Judge regarding imposition of costs upon the appellant Corporation and accordingly, we set aside the aforesaid direction regarding imposition of costs upon the appellant Corporation. With the aforesaid modification, we affirm the judgment and order under appeal passed by the learned Single Judge and dismiss the appeal as we do not find any merit in the same. In the facts of the present case, there will be, however, no order as to costs. With the aforesaid modification, we affirm the judgment and order under appeal passed by the learned Single Judge and dismiss the appeal as we do not find any merit in the same. In the facts of the present case, there will be, however, no order as to costs. Let urgent xerox certified copy of this judgment and order, if applied for, be given to the learned Advocates of the parties on usual undertaking.