S.B.Sinha, J. - (1.) The vires of Calcutta Corporation (Taxation) Regulations, 1989 hereinafter referred to as the said regulation published in Calcutta Gazette on 1st February, 1990 is in question in these appeals. The relevant clauses of the said Regulation read thus :- " Fees for recording of transfer or devolution of title of any land or building under sub-section (5) of section 183 of the Act shall be as per Schedule below :- Schedule (1) In the case of transfer/agreement for sale or cost of acquisition or in the case where there is certificate or in the case of testamentary succession- Amount of fee in rupees (a) If the price-value of the property declared, does exceeded rupees fifty thousand 0.5% of the price value (b) Where such price/value exceeds rupees fifty thousand but does not exceed rupees one lakh 1% of the price value (c) Where such price-value exceeds one lakh but does not exceed three lakh 1.5% of the price value. (d) Where such price/value exceeds rupees three lakhs but does not exceed rupees five lakhs 2% of the price value (e) Where such price-value exceeds five lakhs 2.5% of the price value (2) In the case of transfer by a deed of lease/sub-lease/assignment or such other similar instrument, the amount to be paid will be at the same rates as at (1) above, on the value shown in the document for Stamp Duty: Provided that in calculating the amount of free to be paid under (1) or (2) above any fraction of a rupee amounting to fifty paise or more shall be rounded off to the nearest rupee. (3) In the case of intestate succession- Amount of fee (a) If the last decided annual valuation does not exceed rupees three thousand Rs. 25 (b) If such valuation exceeds rupees three thousand but does not exceed rupees six thousand Rs. 50 (c) If such valuation exceeds rupees six thousand but does not exceed rupees ten thousand Rs. 100 (d) If such valuation exceeds rupees ten thousand but does not exceed rupees fifteen thousand Rs. 200 (e) If such valuation exceeds rupees fifteen thousand Rs. 250 (4) In case of thika tenant but owner in a Bustee hut premises."
(2.) The learned trial Judge in the judgment under appeal held :- "Mutation, simply put, is the process of change of the name of the owner in the books of the Municipal Authorities. Under the aforesaid section notice of transfer of ownership is to be given, and if notice is not given, the erstwhile owner will be liable for order as owner notwithstanding transfer of ownership"
(3.) Keeping in view the distinction between a tax and a fee, the learned trial Judge held that in view of the Constitution Bench decision in the case of Ratilal Panachand Gandhi & Ors. v. State of Bombay & Ors. reported in AIR 1954 SC 388 and Sri Jagannath Ramanuj Das & Anr. v. State of Orissa & Anr. reported in AIR 1954 SC 400, the subsequent two Bench judgments in Sreenivasa General Traders v. State of A.P. reported in AIR 1983 SC 1246 and P. Kannadasan & Ors, v. State of T.N and Ors. reported in 1996(5) SCC 670 cannot be said to be a good law. The learned trial Judge also relied upon a decision of the apex Court in Secunderabad Hyderabad Hotel Owners Assocn. v H.M.C. reported in AIR 1999 SC 635 and held that mutation fee cannot be said to be a tax of some nature and that the impugned regulation has failed to satisfy the requirements to levy fee vis-a-vis the doctrine "Quid Pro Quo".;