VERMA, J. - (1.) THE petitioners in the present case are praying to declare the Notification F2 (8) FD/tax Div. /96 dated 14. 3. 1997 and Notification No. F2 (3)FD/gr. IV/93/1/98 dated 7th of March, 1994 (Annexure 5 and 6), issued by the State of Rajasthan in exercise of powers conferred under Section 78 of the Indian Registration Act, 1908 (hereinafter referred to as the `act'), as ultravires with further direction to the State to refund the amount of Rs. 10,24,280. 00, recovered from the petitioners as registration charges vide receipt dated 15. 05. 1997, alongwith interest and further a direction to the respondents not to charge the registration fee as per Notification dated 14th of March, 1997, on the document which has been submitted for the purposes of registration before the registering authority.
(2.) THE petitioners had purchased the property known as Food Catering Institute Building, M. I. Road, Jaipur, from the State of Rajasthan by way of auction held under the Rajasthan Nazul Building (Disposal by Public Auction) Rules, 1971. Being the highest bidders of the property in question for the bid of Rs. 22,601/- per sq. meter, the petitioners' bid was accepted. THE sale was confirmed by the Government on 14th of December, 1996. THEy are said to have deposited the amount of Rs. 10,24,27,732. 00 with the Government Treasury. In pursuance of the said auction and in consideration as purchasers, a sale deed was executed on 15. 05. 1997, between the Governor of the State of Rajasthan and the petitioners vide Annexure 1. THE petitioners has also got a stamp affixed worth Rs. 61,45,670/- on the registered deed. THE deed was presented for registration. A demand was made by the Sub-Registrar for a sum of Rs. 10,24,280/- as registration charges and Rs. 270/- as other charges, totalling to Rs. 10,24,555. 00. THE amount was paid by the petitioners vide receipt Annexure 2. THE Sub-Registrar had demanded the said amount as registration charges at the rate of 1% of the total sale consideration as per notification dated 14th of March, 1997, issued by the State of Rajasthan (Annexure 6 attached with the writ petition), exercising the powers conferred under Sec. 78 of the Act w. e. f. 1. 4. 1997. THE petitioners are aggrieved against collection of the said registration charges to the tune of Rs. 10,24,280. 00 on the said sale deed being violative of Article 265 of the Constitution of India and the Act and Rules framed thereunder by the Government of Rajasthan and pray that the same be declared ultravires by powers conferred under Section 78 of the Act. It is submitted that the registration fee is the fee under Article 265 of the Constitution of India and there is a clear distinction between a tax and a fee. A tax is a compulsory extraction of money by public authority for purposes enforceable by law and not a payment for services rendered, whereas, a fee is charged for special service rendered to individuals by some government agency as such a charge has an element of Quid Pro Quo. It is submitted that for purposes of levy of fee, two essential elements are necessary, firstly it must be levied in consideration of certain services and secondly the amount collected must be earmarked to meet the expenses of rendering services and must not go to the State's General Revenue to be spent for general public purposes. The registration of the document is consolidated in the Indian Registration Act, 1908 as amended by the Act of 1953. Rules are also framed under the Act. In exercise of the powers conferred under Section 78 of the Act the State Government prepares tables of Registration Fee and other fees from time to time. Initially in the year 1976, the State Government published a Table of Fee payable under the Act for the registration of documents and other matters enumerated in Section 78 of the Act as per Annexure-3. The maximum registration fee on the document was prescribed as Rs. 250/- and different registration fees were provided in the said table Annexure 3 as fee for various types of documents. In the case of an instrument of lease, registration fee was required to be calculated on the amount on which stamp duty was payable, whereas on Will and certain other documents, the registration fee was chargeable as per Article 9. However, the maximum, registration fee at that time was Rs. 250/- only. Another Notification was issued on 28. 03. 1986, when the maximum registration fee was subject to a maximum of Rs. 500/- only. This Notification was again substituted by another Notification dated 7th of March, 1994, when the maximum fee fixed was Rs. 5,000/- by enhancing it to ten times from the earlier notification. Attention is invited to Annexures 4 and 5 in this regard. Vide Annexure 6 - Notification dated 14th of March 1997, the table of registration fee has been provided on the basis of which registration fee is payable under the Act, wherein it is mentioned that except as otherwise provided in the table in respect of specific document or class of documents, fee for the registration of all documents is charged @ 1% of the value of consideration. It further provides that the value of consideration shall be deemed as being equal to the market value of the property except for leases for a period of less than five years. For the purposes of instrument lease, the registration fee is to be calculated on the amount on which stamp duty is payable. On the sale deed presented by the petitioners, registration fee was charged @1% and the petitioners had to deposit an amount of Rs. 10,24,280/ -. It is the submission that the levy of registration fee @ 1% of the value or consideration of the sale deed is too exorbitant, highly excessive and disproportionate to the service rendered by the Registration Department to the petitioners and as a matter of fact it amounts to a tax, whereas it is not disputed that the registration fee as a matter of fact is a "fee". The petitioners have also narrated the history of levy of the registration fee on the sale deeds to the fact that initially the registration fee was Rs. 100/- only and thereafter the maximum was raised to Rs. 250/- and again to Rs. 500/- and then to Rs. 5,000/- in various years are reproduced as under:- Year of levy of fee Maximum registration fee for sale deed Prior to 1976 Rs. 100. 00 1976 Rs. 250. 00 1986 Rs. 500. 00 1994 Rs. 5000. 00 1997 onwards @ 1% of the value or consideration
(3.) IT is the submission of the counsel that there is no difference in the service which the registration office renders in the matter of lease deeds or sale deeds or other deeds which are compulsorily registerable and, therefore, the registration fee at the rate of 1% on the value is discriminatory, arbitrary and in violative of the Article 14 of the Constitution of India. IT is also one of the submission that as a matter of fact, there is neither substantial increase in the man power nor there is any substantial increase in the office establishments, rather, there is a substantial increase in number of documents which are presented for registration and more revenue has to be paid to the State Exchequer than the entire expenses of the registration establishment and in the year 1997, the registration charges far exceeded the expenses incurred in the registration department. The petitioners submit that Notification No. F. 2 (8)Tax. Div/96 dated 14. 03. 1997 and Notification No. F/2 (3) FD/gr. IV/93 dated 7th of March, 1994, are ultravires the provisions of the Registration Act 1908 and are violative of Article 265 of the Constitution of India on the ground that as per the provisions of Section 78 of the Registration Act, the fee must have an element of quid pro quo. In the written statement filed on behalf of respondents, it is submitted that the petitioners had deposited the charges as per the provisions of Notification dated 14. 03. 1997, without any protest or objection and therefore, the petitioners can not challenge the same in the writ petition. It is submitted that the impugned Notifications are neither violative of Article 265 of the Constitution of India nor Section 78 of the Act. It is admitted that the fee had not been imposed under Article 265 but has been levied under the provisions of Section 78 of the Act. It is further submitted that the fee is uniform and at present it is being charged on all the documents of sale deeds to meet the expenses of the registration department. The respondents also stated that Notification dated 14. 03. 1997, was further amended by Notification dated 21st of March, 1998, by flxing the maximum fee upto 25,000/- vide Annexure R/1. From the discussions and pleadings, the following points are required to be determined:- (1) That the registration fee is in the nature of fee and, therefore, there has to be an element of quid-pro-quo between the fee and the services rendered by the department. The element of quid-pro-quo is sort of justifying the imposition of fee. (2) It must be levied in consideration of certain services and should be in the nature of quid-pro-quo and must be collected and earmarked to meet the expenses of rendering the services and can not been levied for the purposes of levying general revenue. (3) Fee can not be charged on advolorem basis for the reason that the registration of the documents involve the same services irrespective of the value of the deed/document to be registered. (4) The fee can not be excessive, exorbitant and disproportionate to the services rendered and in case there is any increase in the fee, it has to be proved that due to the increase in the charges, the fee has been increased and it has to be in proportion of increase in the cost of service. It can not be increased without any basis. (5) That the provisions are to be laid down by the Legislature and power to levy a fee/tax should exist under the Act and both the sources are to flow from the authority of statute as mandated in Article 265 for levy/collection; no fee can be levied by way of administrative decision. (6) That in regard to the registration of other type of documents, there can not be discrimination for sale deeds. All kinds of documents i. e. sale-deed, gift, will or adoption deed, there is no difference in the services which are to be rendered by the registration document. ;