IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JUDGMENT The State of Rajasthan & Others Vs. Shivani Enclaves Pvt. Ltd. & Another (DB Civil Special Appeal (Writ) No.673/2000) D. B. Civil Special Appeal under Ordinance 18 of the Rajasthan High Court Ordinance,1949 against the judgment dated 10-12-1999 of learned Single Judge in SB Civil Writ Petition No.4223/1998. Date of Judgment: September 01, 2008. PRESENT HON'BLE MR. JUSTICE SHIV KUMAR SHARMA HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. M.S.Raghav ] Addl. Advocate General for the State. Mr. Arvind Pareek] Mr. Kamlakar Sharma, for the respondents. BY THE COURT:(PER HON'BLE Shiv Kumar Sharma,J.) The question emerges for consideration in the instant appeal is- Whether a person, who has received benefit under a Notification, is entitled to challenge its constitutional validity? 2. The respondents in this appeal filed writ petition challenging the Notification dated March 14, 1997, issued by the State of Rajasthan, appellant herein, under section 78 of the Indian Registration Act,1908 (for short `the Act') as ultravires and for the refund of the amount of Rs.10,24,280/- recovered from the respondents as registration charges vide receipt dated May 15, 1997. Learned Single Judge allowed the writ petition vide order dated December 10, 1999, which is under challenge in this appeal. 3. The respondents participated in auction- sale of building known as `Food Catering Institute Building', MI Road Jaipur. The highest bid of the respondents was accepted and sale was confirmed by the State on December 14, 1996. The respondents deposited consideration amount to the tune of Rs.10,24,27,732/- and the sale-deed for execution was presented for registration before the Sub Registrar-II and registration charges in the sum of Rs.10,24,280/- were paid by the respondents. On August 18, 1998 the respondents filed writ petition challenging the validity of notification dated March 14, 1997 and claimed refund of Rs.10,24,280/- paid by the respondents as registration charges. 4. Learned Single Judge in the impugned order held that Notification dated March 14, 1997 was not in consonance with the service to be rendered on registering documents. Since levy @ 1% could not be related to the element of quid pro quo it was arbitrary. Learned Single Judge while quashing Notification directed to refund registration charges, after adjustment of Rs.5000/- maximum registration fee as per earlier Notification dated March 7, 1994. 5. We have heard learned counsel for the parties. 6. In exercise of powers conferred by Section 78 of the Act and in supersession of all previous Notifications, prepared, approved and published the registration fees payable under the said Act. In Schedule I which was made effective from April 1, 1997, it was provided that in respect of specific document or class of documents, fees for the registration of all documents shall be charged at the rate of one percent of the value of consideration. 7. Pursuant to the Notification dated March 14, 1997 respondents paid registration fee at the time of execution of sale-deed without any protest. It appears to us that after having sat on the fence and allowed the State Government to charge registration fee on the basis of Notification dated March 14, 1997, the respondents attacked the Notification on August 18, 1998 i.e. after one year and five months on the grounds which were available at the time when the Notification was published. 8. The Constitution Bench of Hon'ble Supreme Court in Aflatoon Vs. Lt. Governor of Delhi (1975)4 SCC 285, indicated in para 11 thus:- “... To have sat on the fence and allowed the Government to complete the acquisition proceedings on the basis that the Notification under section 4 and the declaration under section 6 were valid and then to attack the Notification on the grounds which were available to them at the time when the notification was published would be putting a premium on dilatory tactics.” 9. The respondents, who participated in auction-sale and got the sale-deed executed after paying the registration fee without any protest and thus received benefit, are not entitled to challenge the constitutional validity of Notification. Relief based on dilatory tactics cannot be granted under Article 226 of the Constitution of India. 10. For these reasons, we set aside the order of the Single Bench and allowed the appeal but make no order as to costs. (Mahesh Bhagwati),J.(Shiv Kumar Sharma)J. arn/