Judgment

G. N. RAY, J.:- This appeal is directed against the judgment of the High Court of Gujarat dated August 22, 1983 in Special Civil Application No. 3494 of 1980: (reported in AIR 1984 Guj 60). The said Special Civil Application No. 3494 of 1980 arose out of a writ petition moved in the High Court of Gujarat by the respondents Nos. 1, 2, 3 inter alia for declaration that the provisions of Sections 119(1) and 119(2)(c) of the Guiarat Town Planning and Urban Development Act 1976 (hereinafter referred to as the Town Planning Act) are ultra vires and tlfe impugned regulations purported to have ben made under the Town Planning Act are ultra vires Articles 14, 19 and 21 of the Constitution and the said regulations are also ultra vires the Town Planning Act itself. The writ petitioners also made a prayer before the High Court for appropriate writ, order or direction directing the Ahmedabad Urban Development Authority (hereinafter referred to as the Development Authority) not to enforce or implement the said regulations and not to levy or recover any amount as development fee under the said regulations. A prayer was also made for appropriate writ order or direction directln2 the Development Authority to refund the amount of development fees realised from the writ petitioners.

It was contended by the Writ Petitioners that;

(a) Levy of development fee is not authorised by the statute and therefore the action of respondent No. 1 in collect rig various amounts from the petitioners in the form of development fee was not authorised.

(b) No development fee could be charged even by the State Government because there is no provision in any Entry in the List II of Schedule 7 to the Constitution.

(c) The levy of development fee is ultra vires as the same does not fall under Section 119 of the Town Planning Act and the impugned regulations made by the Development Authority are unauthorised, illegal and void.

(d) Even if there is any power to levy such fee by the State Legislature in the absence of delegation of such power, the Development Authority could not impose any development fee.

2. The High Court of Gujarat has held that Entry 66 of List 11 of Vllth Schedule to the Constitution deals with fees in respect of any of the matters in the said List but not including any fee taken in any Court. Entry 5 of List 11 of that Schedule refers to Constitution and powers of improvement trust and other local authorities for the purpose of local self-government or village administration. The High Court has held that under entry 66, the State Legislature has legislative competence to make provisions for fees to be imposed by the Development Authority constituted under Section 31 of the said Act. The High Court has, however, held that simply because there is legislative competence for the State Government to charge fees for the Urban Development Authority, it cannot be held that demands for the development fee and/ or imposition of the same by the Development Authority under the impugned regulations is legal and valid. The High Court has indicated that it is to be seen whether under the Town Planning Act, a specific power has been given to the Development Authority to impose such development fee. After scrutinising the provisions of the Town Planning Act, the High Court has come to the finding that the Development Authority or as a matter of fact any other authority under the Act has not been vested with the power to charge betterment or the development fee.

3. The High Court has referred to the decisions of this Court in Hingir Rampur Coal Co. Ltd. v. State of Orissa, AIR 1961 SC 459 and Sri Jagannath Ramanuj Das v. State of Orissa, AIR 1954 SC 400. This Court has held that between a tax and a fee there is no generic difference because in a sense both are compulsory exactions of money by public authority but in a tax imposed for public purpose, no service need be rendered in return of such tax. A fee is however levied essentially for services rendered and as