1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- SPL. APPL. WRIT No. 645 of 1997 SHREE RAJ. SYTEX LTD. V/S STATE & ORS Mr. JL PUROHIT with Mr. SANJEEV JOHARI for Mr. BL PUROHIT, for the appellant / petitioner Date of Order : 19.11.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J. ORDER ----- This appeal has been filed by the appellant to assail the order of the learned Single Judge dt. 22.4.1997, dismissing the writ petition. By the impugned order two writ petitions No. 2924 of 1990 and 2791 of 1991 were dismissed. However, no appeal has been filed in Writ Petition No. 2924 of 1990, and the present appeal seeks to challenge the order, so far as it relates to Writ Petition No. 2791 of 1991. The facts of the case are that the petitioner filed the present writ petition seeking to challenge the notification dt. 16.6.1977, and 10.3.1988, being Annexures 3 and 4 respectively, whereby the fee for electrical inspection was enhanced, and also sought to challenge the consequential demand raised, and notices issued being 2 Annexures 5 and 6. Obviously, it is also prayed that the respondents be directed to continue to charge electrical inspection fees in terms of the notification dated 25.8.1959, read with notification dated 17.4.56. Of course, the reliefs have been formulated in different ways in different paras, but in substance the above are the reliefs claimed. The factual allegations in this regard are, that the petitioner entered into an agreement with the respondent for supply of the electric power to its factory, the connection bearing account no. UC-HT-42. It is then alleged that according to Section 36 of the Indian Electricity Act, 1910, hereafter referred to as the Act of 1910, the State Government is empowered to appoint Electrical Inspector, to exercise powers and functions of an Electrical Inspector under the Act, and under Section 36A of the Central Electricity Board is allowed to be constituted to exercise powers under Section 37. Then, Rule 46 of the Rules of 1956 provides, that where an installation is already connected to the electric supply system, every such installation shall be periodically inspected, and tested, at intervals not exceeding five years, either by the Inspector or by the supplier, as may be directed by the State Government, and by Sub-Rule 2(a) thereof it is provided, that the fees for such inspection and testing shall be determined by the Central or State 3 Government, as the case may be, which shall be payable by the consumer. It is alleged, that earlier vide notification dt. 1.9.1959, the fees for testing and inspecting the consumers’ installations of low voltage was prescribed at Rs. 10/- per installation per phase, while for installation of medium voltage and above, the fees was to be calculated in accordance with the Scales 'A', 'B' and 'C' of the notification dt. 17.4.56. These notifications of 1956 and 1959 have been produced as Annexure 1 and 2. It is then alleged, that Government of Rajasthan issued notification dt. 16.6.77, wherein new scales of fees were prescribed, superseding the previous rates. This notification dt. 16.6.77, and its revision by notification dt. 10.3.88, have been produced as Annexures-3 and 4. It is alleged that over night the scale of fee was changed from power connection and sub division, to each motor installed, and each transformer/generating set installed, which gave rise to abnormally high fees for carrying out inspections of the very same installation. Then, reliance is placed on a judgment of this Court dt. 29.7.88, rendered in D.B. Civil Writ Petition No. 384/78, M/s. National Engineering Industries Jaipur Vs. Electrical Inspector, Rajasthan, and connected bunch of writ petitions, whereby the aforesaid enhancement in the fees for the inspection was held to be invalid, as it was found to be without any quid pro quo, and was thus held to be arbitrary and unreasonable. Then, it is pleaded that one Maharaja Shree Ummed Mills Ltd. did 4 serve a notice for demand of justice, which was replied; conveying that the judgment in National Engineering's case was confined to that particular consumer, and the benefit is not available to Maharaja Shree Umaid Mills Ltd., and therefore, that Mill also filed writ petition no. 2924/90 which was pleaded to be admitted. With making these factual averments, the levy has been challenged on the ground, that it has no co-relation with the cost of service rendered, and is arbitrarily high, and amounts to extortion of money. It is also pleaded, that the imposition of fees is by way of tax in the colourable exercise of jurisdiction under the Act of 1910, as the scale of fees is very high, irrational, and does not co-relate with the expenses to be incurred for rendering the services by the inspecting staff. The fees has been prescribed to be chargeable for each motor or other apparatus, on the basis of its kilowatt capacity, which has no relation or bearing with the amount of the labour and expenses to be incurred in inspecting and testing, which is the basis of charging fees, and brings out the intention to realise undue amounts in the name of fees, which is not authorised by law. Interalia on these grounds the above reliefs have been claimed. A reply to the writ petition has been filed contending interalia, that new rates have been prescribed in supersession of earlier rates, and that, it is not the case of the petitioner that the respondents have been 5 changing these rates every year, or at short intervals, rather these rates were revised after a lapse of more than 21 years and the petitioner did not raise any controversy at the relevant time, and therefore, the writ petition is belated. Then, it is pleaded that the petitioner had paid inspection fee at the increased rates regularly after the year 1990-91, and as such the writ petition is time barred and liable to be rejected being barred by res-judicata. Then, it is pleaded that the revision has been made after a long period time, during which overhead administrative and general expenses have increased manifold, therefore, the revision in the rates was necessitated, as otherwise it would have amounted to unnecessary extra burden on the public exchequer. With passage of time, and inflation, the rates have to be revised, and sources of income have to; be regularly increased, so as to bear the extra burden of inflation and raising costs. Then, Annexure R/1 has been produced to show comparative figures of income and expenses of the office of Assistant Electrical Inspector, Udaipur for the period 1986-87 to 1990-91 to show the allegedly correct picture. Then, regarding judgment in National Engineering's case, it was pleaded, that judgment was rendered in 1988, while the present writ petition has been filed in the year 1991, and therefore also, it is liable to be dismissed. Replying the grounds, it is pleaded, that since 1956 the rates have been increased only twice, to meet the increase in cost, due to rise in cost of 6 administration, and over head expenses of the Department. It was pleaded, that scales of fees is not high, rather it is rational; as is clear from Annexure R/1. Obviously it is not arbitrary, and not a colourable exercise of jurisdiction. Then, it is pleaded that while inspecting every meter has to be checked, and the consumers like the petitioners were paying the less amount of inspection charges, and paying maximum fees of Rs. 450/-, therefore, in order to remove this disparity, rates have been revised. It is pleaded that there is a lot of difference in inspecting and testing high and low kilowatt capacity machines. Interalia with this, it is prayed, that the writ petition be dismissed. No rejoinder was filed on behalf of the petitioner. Learned Single Judge observed that in National Engineering Industries Ltd.'s case it was held, that the increase cannot be upheld merely on the ground of fall in money value during the period, rather the fees should be co-related to the expenses incurred, for rendering the service, and therefore, at least some co-relation between the amount of fees and the service rendered must be shown, when challenge is made on this ground, and since there was no material placed to show any quid pro quo, and the enhancement was found to be arbitrary. The learned Single Judge went through that judgment, and noticed, that no reply affidavit was filed in those matters, while in the 7 present matter affidavit had been filed, pointing out, that the rates were not changed every year, or at short intervals, rather the they were revised for the first time after 21 years, and subsequently they were further revised after 11 years, which revision was not challenged till 1990 or 1991. It was also considered, that it is deposed in the affidavit, that with passage of time, and inflation, the rates have to be revised, and source of income have to be regularly increased, so as to bear the extra burden of inflation, and rising cost. Then the learned Single Judge proceeded to take into account the comparative figure of income and expenses of the office of Assistant Electrical Inspectorate, as given in Annexure R/1, along with the affidavit. Then, the delay in filing the writ was also considered. Then, the judgment of the Hon'ble Supreme Court, in the District Council of the Jowai Autonomous Distt. Jowai Vs. Dwet Singh Rymbai, reported in (1986) 4 SCC-38 was considered. Then, it was noticed that the petitioners have never challenged that fees for inspection was illegal, rather it is challenged, only on the ground of unjust enhancement, in the fees for inspection. Therefore, the judgment of the Hon'ble Supreme court in Om Parkash Agarwal Vs. Giri Raj Kishore reported in (1986) 1 SCC-722, and District Council of Jowai Autonomous's case were found to be having no application. Then it was considered, that of course once the Division Bench has held that the aforesaid Supreme Court decisions are applicable, then the 8 learned Single Bench is bound by that. Then, it was considered that since the Division Bench proceeded on the basis, that since there was no material placed before it to justify the enhancement, the vast difference in the amount is by itself sufficient to indicate, that there is no quid pro quo, and the enhancement was arbitrary. It was observed, that at least some co-relation between the amount of fees and the service rendered must be shown, when challenge is made on this ground; while in the present case Annexure R/1 has been produced, therefore, it was held that Division Bench judgment will not be applicable here. Then, after going through the reply affidavits, the learned Judge felt satisfied that there was enough material to justify the enhancement. It was noticed that there was vast difference in the amount, but that itself would not be a ground to hold, that the enhancement was arbitrary, particularly when the prices are going up like a rocket speed. Then, the delay in filing the writ petition was also considered. Interalia with this the writ petitions were dismissed. Arguing the appeal, learned counsel referred to and relied upon the aforesaid two judgments in Om Parkash Agarwal's case, and District Council of Jowai Autonomous's case. He also referred to and relied upon the judgment of the Hon'ble Supreme Court in Jindal Stainless Ltd. & Anr. Vs. State of Haryana reported in (2006) 7 SCC-241, apart 9 from the judgment in Kewal Krishan Puri Vs. State of Punjab, reported in (1980) 1 SCC-416, A.P. Paper Mills Ltd. Vs. Govt. Of A.P., reported in (2000) 8 SCC-167, Hingir Rampur Coal Co. Ltd. Vs. The State of Orrisa, reported in AIR 1961 SC-459, State of U.P. Vs. Vam Organic Chemicals Ltd., reported in (2004) 1 SCC-225, and submitted, that for sustaining, or upholding the levy, as fee, there should be quid pro quo, and there should be reasonable co-relation between the services rendered, and the amount sought to be charged, may be, that such co-relation may not be required with mathematical exactitude. It was submitted that since in the present case from bare reading of the pleadings it is clear, that respondents have not pleaded any co-relation of the amount levied, with the services to be rendered to each of the consumer, it cannot be upheld as a fee, more so when the levy is calculated on the basis of kilowatt, as for undertaking inspection, irrespective of kilo wattage of the apparatus, the expenditure to be incurred in the inspection remains the same, and therefore, the levy is not sustainable. We have considered the submissions, and have gone through the pleadings, and various judgments cited at the Bar. Coming to the cases cited; In Hingir Rampur Coal Co. Ltd.'s case the Constitution Bench of the Hon'ble the 10 Supreme Court laid down a distinction between the tax and fee, and held, that between the two there is no generic difference. Both are compulsory exactions of money by public authorities; but whereas a tax is imposed for public purposes, and is not, and need not be, supported by any consideration of service rendered in return, a fee is levied essentially for services rendered, and as such there is an element of quid pro quo between the person who pays the fee, and the public authority imposing it. If specific services are rendered to a specific area, or to a specific class of persons, or trade or business in any local area, and as a condition precedent for the said services, or in return for them cess is levied against the said area, or the said class of persons, or trade or business, the cess is distinguishable from a tax, and is described as a fee. Tax recovered by public authority invariably goes into the consolidated fund, which ultimately is utilised for all public purposes, whereas a cess levied by way of fee is not intended to be, and does not become, a part of the consolidated fund. It is earmarked, and set apart, for the purpose of services, for which it is levied. There is, however, an element of compulsion in the imposition of both, tax and fee. When the Legislature decides to render a specific service to any area or to any class of persons, it is not open to the said area, or to the said class of persons to plead, that they do not want the service, and therefore they should be exempted from the payment of the 11 cess. Though there is an element of quid pro quo between the tax-payer and the public authority, there is no option to the tax-payer in the matter of receiving the service determined by public authority. In regard to fees, there is, and must always be, co-relation between the fee collected and the service intended to be rendered. Whether or not a particular cess levied by a statute amounts to a fee or tax would always be a question of fact, to be determined in the circumstances of each case. It has also been held, that it is true, that when the Legislature levies a fee for rendering specific services, to a specified area, or to a specified class of persons, or trade or business, in the last analysis such services may indirectly form part of services to the public in general. If the special service rendered is distinctly and primarily meant for the benefit of a specified class or area, the fact that in benefiting the specified class or area the State as a whole may ultimately and indirectly be benefited, would not detract from the character of the levy as a fee. Where, however, the specific service is indistinguishable from public service, and in essence is directly a part of it, different considerations may arise. In such a case, it is necessary to enquire, as to what is the primary object of the levy, and the essential purpose which it is intended to achieve. Its primary object and the essential purpose must be distinguished from its ultimate or incidental results or consequences. That is the true 12 test in determining the character of the levy. Then, in Kewal Krishan Puri's case again, the Constitutional Bench of the Hon'ble Supreme Court laid down test for validity, and held, that element of quid pro quo for the special services rendered must exist with the payer of the fee. In that case the market fees levied was upheld. It was further held in this judgment, that the literal meaning of the phrase quid pro quo is 'one for the other' meaning thereby 'you charge the fee for the service'. But the element of quid pro quo may not be possible, or even necessary, to be established with arithmetical exactitude, even broadly and reasonably it must be established, with some amount of certainty, reasonableness or preponderance of probability, that quite a substantial portion of the amount of fee realised, is spent for the special benefit of its payers. It was also held, that each case has to be judged from a reasonable and practical point of view, for finding out the element of quid pro quo. Then, in Om Parkash Agarwal's case cess was levied for constituting Haryana Rural Development Fund, and it was found, that the money credited could be spent by the Government on any object, which the State Government considers to be the development of rural areas. The definition of expression 'rural area' was found to be vague, so much so that any geographical area the population 13 of which does not exceed 20,000 persons can be conveniently brought within the scope of rural area. It was also found, that there is no specification in the Act that the amount, or a substantial part of the amount, collected by way of cess, will be spent on any public purpose, within the market area, where the dealer is carrying on his business. Interalia on these considerations, the levy was found to be a measure of tax, and was struck down. Then, in District Council of the Jowai Autonomous's case a purported royalty was levied on the purchases of private forest, which was also not found to be fee, and was struck down. In A.P. Paper Mills Ltd.'s case, licence fee charged was found to be a regulatory fee, and not fee for any special services rendered, rather it was found that there is no mention of special services to be rendered to the payer of the licence fee in the provision. It was held, that the purpose of licence is to enable the authorities to supervise, regulate and monitor the activities relating to factories with a view to secure proper enforcement of the statutory provisions, and thus it was found, that from the nature of provisions it is clear that for proper enforcement of statutory provisions persons possessing considerable experience and expertise are required. It was also held, relying upon another judgment of the Hon'ble 14 Supreme court, in Vam Organic Chemicals Ltd. Vs. State of U.P., reported in (1997) 2 SCC-715, that in the case of regulatory fee, like the licence fee, existence of quid pro quo is not necessary, although the fee imposed must not be, in the circumstances of the case, excessive. In the present case, the fee imposed is not a regulatory fee, and therefore, this judgment is of no assistance. Then, in Vam Organic Chemicals Ltd.'s case again, the justification of levy of fees was examined, and it was found, that the State Government is competent to levy fee for the purpose of ensuring that industrial alcohol is not surreptitiously converted into potable alcohol so that the State is deprived of revenue on the sale of such potable alcohol, and the public is protected from consuming such illicit liquor. Then, the earlier judgment of the Hon'ble Supreme Court in Synthetics and Chemicals Ltd. Vs. State of U.P., reported in (1990) 1 SCC-109 was also considered, and then it was held, that the word “service” in the context of fee could, therefore, include a levy for a compulsory measure undertaken vis-à-vis the payer, in the interest of the public. This 'coercive' measure has been subsequently judicially clarified to mean a “regulatory measure”, and it was held, that the co-relationship between the levy and the services rendered is one of general character, and not of mathematical exactitude, and all that is necessary is, that there should be a reasonable “relationship” between levy of 15 the fee and the service rendered. Then, in Jindal Stainless Ltd.'s case again, which was a case relating to compensatory tax i.e. the entry tax. It was found, that compensatory tax is a sub-class of fees. Then, the principles of equivalence were highlighted. For the present purpose this judgment is not of much relevance, and therefore, need not detain us. Thus, from the above judgments the established legal principles, which could be deduced are, that for sustaining levy there should be quid pro quo. Quid pro quo need not be with mathematical exactitude. There should be reasonable relationship with the levy and the services rendered, and the substantial part of levy should be spent for the services rendered. We may add, that it is also established law, that quid pro quo need not directly be qua the actual person paying cost, where certain class of persons are intended to be served, and if any specific rate is charged from each of the persons, then in that process it would be enough, if each of the person from whom levy is effected is served, and it may not be necessitated that service rendered to each such person should be commensurate to the levy effected from each such individual. Examining the present case from that stand point; Firstly, we may make it clear, that power to levy fee flows 16 from Rule 46(2)(a), and the power to levy fee is not under challenge. Thus, the question remains only about reasonableness of the increase in fees, as affected vide Annexures 3 and 4. In National Engineering's case as noticed above, no factual datas were made available, rather no factual basis was placed before the Court to enable the Court to find, as to whether there is any quid pro quo. As against this, in the present case Annexure R/1 has been produced, which relates to the area where the petitioner's unit is located, and does show the figures of income generated from the levy of the inspection fee by the office of the Assistant Electric Inspectorate, and the expenditure incurred. The figures for the years 1986-87 to 1990-91, as given in Annexure R/1 read as under:- Year Income Generated Amount Spent 1986-87 310341.50 230386 1987-88 365474.50 299752 1988-89 474722.00 297787 1989-90 528722.50 339816 1990-91 567751.00 329727 It is not shown on the side of the petitioners, that these figures are in any manner incorrect. Thus, on the face of it, it is clear, that there is a reasonable co- relation, albeit quid pro quo between the levy/amount 17 received, and the expenditure incurred in the inspection. Another argument was raised on the basis, that the rate has been prescribed on kilowatt basis, while in undertaking inspection, the inspection undertaken is of apparatus, and kilowatt capacity thereof is wholly irrelevant, in the sense, that if the apparatus is of higher kilowatt, no additional expenditure is incurred in undertaking inspection or testing. In our view, it would suffice to say, that even in Annexure-2, inspection fee is prescribed to be levied on medium and above, as per Schedule A, B, and C of Annexure-1, and a look at Scales A, B and C of Annexure-1 shows, that therein the fees was prescribed at kilowatt basis. Of course, an upper cap was also prescribed, but then the fact does remain, that under the upper ceiling the inspection fees was on the basis of kilowatt. Then, in the reply it