{"id":98748,"date":"2004-09-14T00:00:00","date_gmt":"2004-09-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-himachal-pradesh-ors-vs-ms-shivalik-agro-poly-products-on-14-september-2004"},"modified":"2015-11-14T23:46:57","modified_gmt":"2015-11-14T18:16:57","slug":"state-of-himachal-pradesh-ors-vs-ms-shivalik-agro-poly-products-on-14-september-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-himachal-pradesh-ors-vs-ms-shivalik-agro-poly-products-on-14-september-2004","title":{"rendered":"State Of Himachal Pradesh & Ors vs M\/S. Shivalik Agro Poly Products & … on 14 September, 2004"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Himachal Pradesh & Ors vs M\/S. Shivalik Agro Poly Products & … on 14 September, 2004<\/div>\n
Author: G Mathur<\/div>\n
Bench: Cji., G. P. Mathur, C. K. Thakker.<\/div>\n
           CASE NO.:\nAppeal (civil)  2122 of 1999\n\nPETITIONER:\nState of Himachal Pradesh & Ors.\n\nRESPONDENT:\nM\/s. Shivalik Agro Poly Products & Ors\n\nDATE OF JUDGMENT: 14\/09\/2004\n\nBENCH:\nCJI., G. P. MATHUR & C. K. THAKKER.\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
G.P. MATHUR, J.\n<\/p>\n
1.\tThis appeal, by special leave, has been preferred by the defendants
\n(State of Himachal Pradesh and three others) against the judgment and
\ndecree dated 10.12.1997 of the High Court of Himachal Pradesh by which
\nthe Second Appeal filed by the appellants was dismissed and the judgment
\nand decree passed by the District Judge and also Senior Sub-Judge, Solan
\ndecreeing the plaintiff’s suit were affirmed.\n<\/p>\n
2.\tM\/s. Shivalik Agro Poly Products Ltd. and others filed the  suit
\nseeking a declaration that the notification dated 14.4.1969 issued by the
\nState of Himachal Pradesh under section 78 of the Registration Act be
\ndeclared  void and ultra vires and for recovery of Rs.27,771\/- paid by them
\nas registration fee for registering the mortgage deed dated 30.10.1978.   The
\ncase of the plaintiffs, in brief, was that they were allotted an industrial plot in
\nParwanoo by the Himachal Pradesh Housing Board for establishing an
\nindustrial unit.  They were sanctioned two loans of Rs. 30 lacs and Rs.27.76
\nlacs by Himachal Pradesh Financial Corporation and Himachal Pradesh
\nMineral and Industrial Development Corporation respectively and in order to
\nsecure the loan, they were required to mortgage and hypothecate the fixed
\nassets  of their leasehold rights in the industrial plot and the machinery
\ninstalled therein with the aforesaid Corporations for which a deed of simple
\nmortgage was required to be executed.  At the time of the execution of the
\nmortgage deed, the plaintiffs were required to pay stamp duty of Rs.45,804\/-
\nand registration charges amounting to Rs.27,760\/- in accordance with the
\nnotification issued under sections  78  and 79 of the Registration Act by the
\nState of Himachal Pradesh.  The plaintiffs challenged the vires of the
\nnotification fixing the registration fee by filing Civil Writ Petition No. 105
\nof 1979 which was summarily dismissed by a Division Bench of the High
\nCourt on 22.5.1979 on the ground that the plaintiffs had an equally
\nefficacious alternative remedy of filing  a civil suit wherein the validity of
\nthe notification could be challenged.  After dismissal of the writ petition, the
\nsuit was instituted claiming the reliefs mentioned above.  The defendant-
\nappellants contested the suit on the grounds, inter alia, that the impugned
\nnotification had been issued by the  State Government in exercise of the
\nstatutory power  conferred by Sections 78 and 79 of the Registration Act
\nand, therefore, it was a sovereign function of the State for which no suit was
\nmaintainable; that the notification was perfectly legal and valid; that the
\nregistration fee had been charged in accordance with the schedule of fee
\nfixed by the State Government in the notification for the registration of
\ndocuments and that the registration fee charged was perfectly justified.\n<\/p>\n
3.\tThe Senior Sub-Judge, Solan, decreed the suit and declared the
\nnotification dated 14.4.1969 issued by the State Government prescribing the
\nregistration fee to be null and void and also passed a decree for refund of Rs.
\n27,771\/- in favour of the plaintiffs, which was affirmed in appeal by the
\nDistrict Judge and also in Second Appeal by the High Court.   The main
\nground on which the plaintiffs’ suit has been decreed is that there is a
\ndistinction between tax and fee.  Fee is levied for certain services given to
\nindividuals and the amount realized has to be earmarked to meet the
\nexpenses incurred in rendering the services and the amount should not go to
\nthe general pool nor should be spent for  any other purposes.  The State had
\nnot led any evidence to show that the amount realized by way of registration
\nfee is deposited under a separate head and that it is exclusively utilized for
\nthe maintenance of the registration department.  In absence of any evidence,
\nthe conclusion was inevitable that the amount realized was put in the
\nConsolidated Fund of the State Government and was being utilized by the
\ngovernment for general purposes.   Placing reliance upon Commissioner
\nHindu Religious Endowments Madras vs. Sri Lakshmindra Thirtha Swamiar
\nof Sri Shirur Mutt AIR<\/a> 1954 SC 282, (for short ‘Shirur Mutt case’) a
\nconclusion has been drawn that it is a tax and not a fee and consequently the
\nimpugned notification is ultra vires the Registration Act.\n<\/p>\n
4.\tThe principal question which requires consideration in the present
\nappeal is whether the notification issued by the State Government on
\n14.4.1969 prescribing the registration fee on a graduated form on the basis
\nof value of subject matter of the instrument is in accordance with the spirit
\nof section 78 of the Registration Act and is valid in law.\n<\/p>\n
5.\tBy the very nature of things recognition of rights or title over
\nimmovable property and transactions therein give rise to manifold problems.
\nMovable property, depending upon its size or dimension, can be kept in
\nabsolute control in possession of its owner and a third party may not be in a
\nposition even to know where the same has been kept.  But this is not so for
\nan immovable property which lies in the open attached to the earth at a
\nparticular place and the owner may be residing at a far away place.   The
\nowner may give the property on lease or licence to someone else who may
\nget physical possession thereof and enjoy the usufruct thereof.  In order to
\nget over this difficulty, a system of registration of title to immovable
\nproperty  has been evolved  which is followed in many countries.  In the
\nUnited States the legal position has been  described as under in Vol. 76
\nCorpus Juris Secundum Page 525:\n<\/p>\n
“Systems looking toward the registration of titles to
\nland, as distinguished from the practice under recording acts
\ngenerally of recording or registering the evidence of such title,
\nare in effect by virtue of statute in several of the United States,
\nand the courts are bound by such provisions rather than by any
\ndoctrine of the common law which is in contravention thereof.
\nThese systems are quite generally known as “Torrens
\nsystems” and the statutes providing therefore as “Torrens
\nacts” from the name of the author of the Australian Act of
\n1857, the underlying principle of which they follow.  These
\nsystems are limited in their application to titles to land.\n<\/p>\n
The predominant object of such legislation is the
\nestablishment of a method whereby the title to a particular
\ntract or parcel of real estate will always be ascertainable by
\nreference to a register of conclusive veracity, maintained by
\nthe designated public official.  In other words, the purpose of
\nthese laws is to simplify the transfer of real estate, and to
\nrender titles thereto safe and indefeasible through the
\nregistration of such titles, the bringing together  in one place
\nof all of the facts relative to the title to each particular tract
\nwhich is registered, and the use of certificates which shall
\nconclusively show at all times the state of such title and the
\nperson in whom it is vested.  The Torrens system serves a
\nbroader purpose than merely to notify the record owner of
\ninstruments  affecting the title; it is notice to all the world of
\nthe condition of the title.\n<\/p>\n
.”\n<\/p>\n
6.\tThe position in the United Kingdom has been described in Vol.26
\nHalsbury’s Laws of England  Paras 701 and 705  as under:
\n“701.  Legislation referable to centrally maintained
\nregister. The legislation relating to registration of the title is
\ndirected to the manner in which the law and practice of
\nconveyancing are to be adapted  to the use of a centrally
\nmaintained register of title to land.  As the use of the register
\nhas been extended, so the successive statutes mark the
\nhistorical development of a system of conveyancing,
\ncommonly known as registered conveyancing , which
\napproached maturity as part of the real property legislation of
\n1925.\n<\/p>\n
The result of that legislation, as respects registered
\nland, is to produce on first registration a state insured record
\nof entitlement to legal estates in land, open to public
\ninspection, which is to be kept up to date in respect of
\nsubsequent transactions in accordance with the conveyancing
\ntechnique for which the legislation provides.\n<\/p>\n
Indirect reference to the earlier legislation is found at
\nthe commencement of the Land Registration Act 1925 in the
\nprovision that requires the Chief Land Registrar to continue to
\nkeep a register of title to freehold and leasehold land.\n<\/p>\n
705. The Land Registry Act 1862. The Land Registry Act
\n1862 marked the first attempt to introduce registration of title
\nas distinct from registration of deeds by memorial.\n<\/p>\n
Registration was on a voluntary basis and subject to
\nconditions, which included conditions (1) that a marketable
\ntitle should be shown; (2) that the boundaries of the land
\nshould be officially determined and defined as against
\nadjoining owners; and (3) that partial interests should be
\ndisclosed and registered.  The Act continues to apply to
\nestates registered under it as if the Land Registration Act 1925
\nhad not been passed, until such time as those estates are
\nregistered pursuant to the Act of 1925.  The intention that the
\nregistration of such estates is to be transferred to the modern
\nregister is confirmed by power given to the Lord Chancellor to
\nprovide by order that all titles registered under the Land
\nRegistry Act 1862 should be registered under the Land
\nRegistration Act 1925 without cost to the parties interested.”\n<\/p>\n
7.\tThe law relating to transfer of immoveable property in India is
\ncontained in the Transfer of Property Act 1882.  Section 54 of this Act
\ndefines “sale” and it provides that transfer of ownership in the case of
\nintangible immoveable property of the value of one hundred rupees and
\nupwards can be made only by a registered instrument.  Section 107 provides
\nthat a lease of immoveable property from year to year, or for any term
\nexceeding one year or reserving a yearly rent, can be made only by a
\nregistered instrument.  Similarly, section 123 provides that a gift of
\nimmoveable property must be effected by a registered instrument.  Section
\n17 of the Registration Act gives a long list of instruments for which
\nregistration is compulsory and clause (b) of sub-section (1) provides that
\nnon-testamentary instruments which purport or operate to create, declare,
\nassign, limit or extinguish, whether in present or in future, any right, title or
\ninterest, whether vested or contingent, of the value of one hundred rupees
\nand upwards, to or in immoveable property must be registered.  These
\nstatutory provisions indicate the importance of registration of documents.  In
\nfact, it will be impossible to have any transaction relating to immoveable
\nproperty in any manner like transfer, gift, giving on lease or creating a
\nmortgage, etc. without a system of registration of documents.  For smooth
\nfunctioning  of the system, the Registration Act has cast certain duties and
\nobligations upon the State Government.  Section 3  enjoins that the State
\nGovernment shall appoint an officer to be called the Inspector General of
\nRegistration.  Section 5 enjoins that for the purpose of the Act, the State
\nGovernment shall form districts and sub-districts and the districts and sub-
\ndistricts so formed together with the limits thereof, and also every alternation
\nof such limits, shall be notified in the Official Gazette. Section 7 enjoins that
\nthe State Government shall establish in every district an office to be styled
\nthe office of the Registrar and in every sub-district an office or offices to be
\nstyled the office of the Sub-Registrar.  Section 6 enjoins the State
\nGovernment to appoint Registrars and Sub-Registrars.  Section 16 enjoins
\nthe State Government to provide for every registering officer the books
\nnecessary for the purposes of the Act and further in each district suitable
\nprovision for the safe custody of the records connected with the registration
\nof documents in such districts.    By amending Act No. 48 of 2001, section
\n16A (1)  has been inserted in the Act.  This section provides that
\nnotwithstanding anything contained in section 16, the books provided under
\nsub-section (1) of that section may also be kept in computer floppies or
\ndiskettes or in any other electronic form in the manner and subject to the
\nsafeguards as may be prescribed by the Inspector General with the sanction
\nof the State Government.  The office of Sub-Registrar has naturally to be
\nprovided with other staff  like clerks and other persons for carrying on
\nvarious kinds of works which are associated with the registration of
\ndocuments, which involve recording the contents thereof in the register
\nmaintained for the purpose, issuing  certified copies and giving replies to the
\nsearch applications.  The State Government has to incur considerable
\nexpenditure in maintaining the offices of Sub-Registrars which are normally
\nlocated at the headquarters of a sub-division in a district and in payment of
\nsalaries to the staff functioning therein.\n<\/p>\n
8.\tThe District Court and also the High Court have decreed the suit on
\nthe finding that the registration fee charged for registration of the documents
\nis a tax and not fee and, therefore, it is ultra vires Section 78 of Registration
\nAct and for holding so reliance has been placed upon the decision of this
\nCourt rendered in Shirur Mutt case (AIR 1954 SC 282).\n<\/p>\n
 In the said decision the indicia of fee was explained as under in paras
\n44 and 45 of the reports :\n<\/p>\n
\t“A fee is generally defined to be a charge for a special service
\nrendered to individuals by some governmental agency.  The
\namount of fee levied is supposed to be based on the expenses
\nincurred by the Government in rendering the service, though
\nin many cases the costs are arbitrarily assessed.  Ordinarily,
\nthe fees are uniform and no account is taken of the varying
\nabilities of different recipients to pay.”\n<\/p>\n
And the distinction between a tax and fee was stated in the following
\nmanner in para 45 of the reports :\n<\/p>\n
\t“The distinction between a tax and a fee lies primarily
\nin the fact that a tax is levied as a part of a common burden,
\nwhile a fee is a payment for a special benefit or privilege.
\nFees confer a special capacity, although the special advantage,
\nas for example in the case of registration fees for documents
\nor marriage licences, is secondary to the primary motive of
\nregulation in the public interest, vide Findlay Shirras on
\n‘Science of Public Finance’, Vol I, page 202.  Public interest
\nseems to be at the basis of all impositions, but in a fee it is
\nsome special benefit which the individual receives. As
\nSeligman says, it is the special benefit accruing to the
\nindividual which is the reason for payment in the case of fees;
\nin the case of a tax, the particular advantage  if it exists at all
\nis an incidental result of State action.”\n<\/p>\n
Later, in paragraphs 46 and 47, it was observed that there is really no
\ngeneric difference between the tax and fees and as said by Seligman, the
\ntaxing power of a State may manifest itself in three different forms known
\nrespectively as special assessments, fees and taxes.  Since a fee is regarded
\nas a sort of return or consideration for services rendered, it is absolutely
\nnecessary that a levy of fee should, on the face of the legislative provision,
\nbe correlated to the expenses incurred by Government in rendering the
\nservices.  If the money thus paid is set apart and appropriated specifically for
\nthe performance of such work and is not merged in the public revenues for
\nthe benefit of the general public, it could be counted as fees and not a tax.\n<\/p>\n
9.\tAfter independence of the country the Governmental functions
\nincreased manifold and various legislations were enacted and schemes were
\nintroduced for upliftment of the society.  Many measures were introduced
\nwhich contained provisions for imposing compensatory and regulatory fees.
\nIt was realized that the indicia of fee indicated in Shirur Mutt case was too
\ntechnical and rigid and was not in tune with the requirement of the prevailing
\nsocial conditions. The characteristics of tax and fee were then examined in
\nconsiderable detail by a three Judge Bench in Sreenivasa General Traders.
\nvs. State of  Andhra Pradesh  AIR<\/a> 1983 SC 1246 and in paragraphs 30 and
\n31 of the judgment, the Court held as under:\n<\/p>\n
“The traditional view that there must be actual quid pro
\nquo for a fee has undergone a sea of change subsequent to
\ndecision in AIR 1980 SC 1008.  Correlationship between the
\nlevy and the services rendered\/expected is one of general
\ncharacter and not of mathematical exactitude.  All that is
\nnecessary is that  there should be a “reasonable relationship”
\nbetween the levy of the fee and the services rendered.
\nMoreover, there is no generic difference between a tax and a
\nfee.  Both are compulsory exactions of money by public
\nauthorities. Compulsion lies in the fact that payment is
\nenforceable by law  against a person in spite of his
\nunwillingness or want of consent.  A levy in the nature of a
\nfee does not cease to be of that character merely because there
\nis an element of compulsion or coerciveness present in it, nor
\nis it a postulate of a fee that it must have direct relation to the
\nactual service rendered by the authority to each individual
\nwho obtains the benefit of the service.  It is now increasingly
\nrealized that merely because the collections for the services
\nrendered or grant of a privilege of licence are taken to the
\nconsolidated fund of the State and not separately appropriated
\ntowards the expenditure for rendering the service is not by
\nitself decisive.  It is also increasingly realized that the element
\nof quid pro quo in the strict sense is not a sine quo non for a
\nfee.”\n<\/p>\n
It is necessary to mention here that the observation made in para 47 of
\nthe judgment in the Shirur Mutt case that “If the money thus paid is set apart
\nand appropriated specifically for the performance of such work and is not
\nmerged in the public revenues for the benefit of the general public, it could
\nbe counted as fee and not a tax” may not be very accurate at least where the
\nfee is being realized by the Government, Central or State, in view of a
\nconstitutional provision.   Article 266 of the Constitution provides that all
\nrevenues received by Government of India, all loans raised by that
\nGovernment by the issue of treasury bills, loans or ways and means advances
\nand all moneys received by that Government in repayment of loans shall
\nform one consolidated fund to be entitled “the Consolidated Fund of India”,
\nand all revenues received by the Government of a State, all loans raised by
\nthat Government by the issue of treasury bills, loans or ways and means
\nadvances and all moneys received  by that Government in repayment of
\nloans shall form one consolidated fund to be entitled  “the Consolidated Fund
\nof the State”.  In view of this specific provision any amount realized by way
\nof fee by the Central Government or State Government has to be credited to
\nConsolidated Fund of India or of the concerned State, as the case may be,
\nand will thus necessarily get merged in the public revenues and cannot be set
\napart.\n<\/p>\n
10.\tIn Sreeniwasa General Traders (supra) the Court took note of the fact
\nthat presumably the attention of the Bench hearing Shirur Mutt case was not
\ndrawn to Article 266 of the Constitution.  It was further observed therein that
\nthe Constitution nowhere contemplates it to be an essential element of fee
\nthat it should be credited to a separate fund and not to a consolidated fund.\n<\/p>\n
11.\tIn Municipal Corporation of Delhi and others vs. Mohd. Yasin  AIR<\/a>
\n1983 SC 617, it was held that compulsion is not the hallmark of the
\ndistinction between a tax and a fee.  That the money collected does not go
\ninto a separate fund but goes into the consolidated fund does not also
\nnecessarily make a levy a tax.   Though a fee must have relation to the
\nservices rendered, or the advantages conferred, such relation need not be
\ndirect; a mere casual relation may be enough.  It was further held that it is
\nneither necessary nor expedient to weigh too meticulously the cost of the
\nservices rendered etc., against the amount of fees collected so as to evenly
\nbalance the two.  A broad correlationship is all that is necessary.  Quid pro
\nquo in the strict sense is not the one and only true index of a fee; nor is it
\nnecessarily absent in a tax.\n<\/p>\n
12.\tThe same question was again examined in considerable detail in Krishi
\nUpaj Mandi Samiti and others vs. Orient Paper & Industries Ltd.<\/a> 1995 (1)
\nSCC 655.  Here, it was held that it is not always possible to workout in
\nmathematical precision the amount of fee required for the services to be
\nrendered each year and to collect just that amount which was sufficient for
\nmeeting the expenditure in that year.   Every correlationship between the
\nlevy and the services rendered is one of general character and not a
\nmathematical exactitude.  All that is necessary is that there should be a
\nreasonable relationship between the levy of fee and the services rendered.
\nThere is no postulate of a fee that it must have a direct relation to the actual
\nservices rendered by the authority to each individual to obtain the benefit of
\na service.  It was further observed that it is now increasingly realized that
\nmerely because the collections for the services rendered or for grant of a
\nprivilege or licence are taken to the Consolidated Fund of the State and not
\nseparately appropriated towards the expenditure for rendering the service, is
\nnot by itself decisive of the nature of the levy whether it is a fee or a tax.\n<\/p>\n
13.\tSecretary to Government of Madras and another vs. P.R. Sriramulu
\nand another  1996 (1) SCC 345 is a decision rendered by a Bench of three
\nlearned Judges  and the appeal was directed against the judgment of the High
\nCourt of Madras wherein Schedule (1) to the Tamil Nadu Court Fees and
\nSuits Valuation Act, 1955 and sub-rule (1) of Rule 1 of Order II of the High
\nCourt Fees Rules, 1956 based on Article (1) of Schedule (1) of Madras Act
\nNo. XIV of 1955 were held to be invalid in so far as they related to the levy
\nof court fees on ad valorem scale.   The Court observed that the
\nadministration of justice is one of the main functions of the State.  It is also a
\nfact that the function of the State in the modern time has become too
\nexpensive in encompassing a large area of activity.  The State has not only to
\nmaintain a system of administration of justice, but also the maintenance of
\nlaw and order.  It has also to provide a system to enable its citizen to canvass
\ntheir rights against the wrong done to them as well as to the State itself.  It is
\nfor these reasons that the State came forward to levy fee by legislative
\namendments in order to cover up the expenses towards pay, allowances and
\npensions of judicial officers and establishment staff, their residential
\naccommodations, court buildings, repairs and maintenance as well as other
\nexpenses under various heads mainly engaged and employed for the
\nadministration of justice.  After taking note of the observation in Om Prakash
\nAgarwal vs. Giri Raj Kishori  1986 (1) SCC 722, that in determining a levy
\nas fee the true test must be whether its primary and essential purpose is the
\nrendering of specific services to a specified area or class, it being of no
\nconsequence that the State may ultimately and indirectly be benefited by it, it
\nwas held that if a broad and general correlation between the totality of the fee
\non the one hand and the totality of the expenses of the services on the other is
\nestablished, the levy will not fail in its essential character of a fee on the
\nground alone that the measure of its distribution on the persons or incidence
\nis disproportionate to the actual services obtainable by them.  The test of the
\ncorrelationship is not in the context of the individual contributors, the test is
\non the comprehensive level of the value of the totality of the services, set off
\nagainst the totality of the receipts.  Accordingly, it was held that the test of
\ncorrelation is to be reckoned at the aggregate level and not at the individual
\nlevel.  On these principles the appeal was allowed and the judgment of the
\nHigh Court was set aside.\n<\/p>\n
14.\tIn a recent judgment rendered in Bombay Stock Exchange Brokers’
\nForum vs. Securities and Exchange Board of India<\/a>  2001 (3) SCC 482 by a
\nBench of three learned Judges, the challenge levelled against the registration
\nfee levied by the Securities and Exchange Board of India on Stock Brokers
\ncame up for consideration.  The Bench after review of a number of earlier
\ndecisions, including Constitution Bench decision in Shirur Mutt case (supra),
\ntook note of the fact that in determining whether a levy is a fee or not,
\nemphasis must be on whether its primary and essential purpose is to render
\nspecific services to a specified area or a class and if in that process it is found
\nthat the State ultimately stood to benefit indirectly from such levy, the same
\nis of no consequence.   After examination of the relevant Act and the
\nRegulations, the Court held that since the amount collected under the levy
\naccount in the said case was being spent by the Board on various activities of
\nthe Stock and Securities market with which the petitioners are directly
\nconnected, the fact that the entire benefit of the levy does not accrue to the
\ncontributors i.e. the petitioners, would not make the levy invalid.\n<\/p>\n
15.\tIt will be thus seen that the statement of law made in Shirur Mutt case
\n(supra) regarding the attributes of fee has undergone a sea change.  The
\nconsistent view now is that there is no generic difference between a tax and a
\nfee which are both compulsory exaction of money by public authorities. The
\ncorrelationship between the levy and the services rendered should be one of
\ngeneral character and not of mathematical exactitude.  Further, the broad and
\ngeneral correlationship between the totality of the fee on the one hand and
\nthe totality of the expenses of the services on the other, will be sufficient to
\njustify the levy.  The levy will not fail only on the ground that the measure of
\nits distribution on the persons or incidence is disproportionate to the actual
\nservices rendered by them.  The true test being the comprehensive level of
\nthe value of the totality of the services set off against the totality of the
\nreceipts.  The character of the fee is thus established. The vagaries in its
\ndistribution amongst the class do not detract from the concept of a fee as
\nsuch.\n<\/p>\n
16.\tThe subject matter of challenge in the present case is registration fee
\nwhich has been fixed by the State Government in exercise of power
\nconferred by Section 78 of the Registration Act.   The said provision reads as
\nunder:\n<\/p>\n
“78. Fees to be fixed by State Government.  The State
\nGovernment  shall prepare a table of fees payable —\n<\/p>\n
\t(a)\tfor the registration of documents;\n<\/p>\n
          (b)\tfor searching the registers;\n<\/p>\n
(c)\tfor making or granting copies of reasons, entries
\nor documents, before, on or after registration;\n<\/p>\n
and of extra or additional fees payable —\n<\/p>\n
(d)\tfor every registration under section 30;\n<\/p>\n
\t\t(e)\tfor the issue of commissions;\n<\/p><\/blockquote>\n
\t\t(f)\tfor filing translations;\n<\/p><\/blockquote>\n
\t\t(g)\tfor attending at private residences;\n<\/p><\/blockquote>\n
(h)\tfor the safe custody and return of documents; and\n<\/p>\n
(i)     \tfor such other matters as appear to the State
\nGovernment necessary to effect the purposes of
\nthis Act”.\n<\/p>\n
17.\tThe fixation of registration fee under Sub-section (a) on a graduated
\nscale depending upon the value or consideration for which the instrument
\nhas been executed may be on the higher side.  However, the fee for various
\nother items enumerated  in sub-sections (b) to (i) is very small, though the
\nState has to incur a considerable amount of expenditure for the same.     The
\nhigh value transactions are generally in big cities where the value of the
\nproperty is high and not in small towns or in rural areas.   Nevertheless, the
\nState Governments have to maintain offices of Sub-Registrars in small sub-
\ndivisional towns and post staff which has to be paid salaries. Rules have
\nbeen framed by various State Governments which lay down elaborate
\nprocedure for maintenance of Books and Registers wherein copies of
\nregistered documents have to be kept.  This necessarily requires trained
\nmanpower entailing expenditure in payment of their salary.\n<\/p>\n
18.\tThere is no material on record to show that the overall amount
\nreceived by the Government by way of fee from the Registration department
\nfar exceeds the overall expenditure incurred in maintaining the said
\ndepartment.  The High Court and also the District Court merely took into
\nconsideration the registration fee paid by the plaintiffs and did not at all
\nexamine whether there was any substantial discrepancy between the total
\namount of fee realized by the registration department and the total amount of
\nexpenditure incurred by the government in the maintenance and functioning
\nof the department.  The notification issued by the State Government could
\nnot be struck down merely by taking into consideration the registration fee
\npaid by the plaintiffs and quantification of the value of services rendered to
\nthem.\n<\/p>\n
19.\tLearned counsel for the respondents has placed reliance upon The
\nDelhi Cloth and General Mills Co. Ltd. and others vs. the Chief
\nCommissioner, Delhi and another AIR 1964 Punjab 492,  State of Uttar
\nPradesh vs. The District Registrar, Meerut and<\/a> another AIR 1971 Allahabad
\n390 and The Chief Commissioner, Delhi and another vs. The Delhi Cloth
\nand General Mills Co. Ltd. and others AIR 1978 SC 1181 (which is a
\ndecision by a bench of two learned Judges in appeal preferred against the
\njudgment reported in AIR 1964 Punjab 442)  in support of his contention
\nthat the notification issued by the State Government prescribing the
\nregistration fee in tabulated form is illegal.  It is not necessary to examine
\nthese cases in detail as in all these cases reliance has been placed upon
\nShirur Mutt case (supra) for holding that there must be an element of quid
\npro quo and that the fee realized must be correlated and must be spent for the
\npurposes of imposition.  As discussed above, the view taken in Shirur Mutt
\ncase (supra) has undergone a considerable change by subsequent decisions
\nof this Court.  Moreover, having regard to the express language used in
\nArticle 266 of the Constitution, it is not possible for the State Government to
\nkeep the fee realized in a separate fund other than the Consolidated Fund of
\nthe State.  In view of the subsequent decisions of this Court, the view taken
\nin the decisions relied upon by learned counsel for the plaintiff-respondents
\ncannot be considered to be good law and they are hereby overruled.\n<\/p>\n
20.\tFor the reasons discussed above, the appeal is allowed with costs.
\nThe judgment and decree passed by the High Court and also by the District
\nJudge and Senior Sub-Judge, Solan, are set aside and the suit filed by the
\nplaintiff-respondents is dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Himachal Pradesh & Ors vs M\/S. Shivalik Agro Poly Products & … on 14 September, 2004 Author: G Mathur Bench: Cji., G. P. Mathur, C. K. Thakker. CASE NO.: Appeal (civil) 2122 of 1999 PETITIONER: State of Himachal Pradesh & Ors. RESPONDENT: M\/s. Shivalik Agro Poly Products & Ors […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-98748","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Himachal Pradesh & Ors vs M\/S. 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