# Ramesh Chandra Sharma v. The Punjab National Bank and others

- **Citation:** (2006) 1 ILRA 420
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-09-12
- **Case number:** Civil Misc. Writ Petition No. 30281 of 2003
- **Bench:** R.K. Agrawal, Mrs.) M. Chaudhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramesh-chandra-sharma-v-the-punjab-national-bank-and-others-40862
- **Pages:** 9

## Headnote

Sri W.H. Khan
Sri A. Singh
1 All] Ramesh Chandra Sharma V. The Punjab National Bank and others
421
C.S.C.

U.P.
Kshetriya
Punchayat
&
Zila
Punchayat Adhiniyam 1961-
Section 239 (2) E (a) (iv)-Enhancement
of licence fee-to run the bricks kilnsfrom Rs.2000/- to 19000/-challenged on
the ground of highly excessive-without
any justification as supervising, checking
and
issuing
licence-not
within
the
managing of service rendered-rather in
nature of Tax-considering the escalation
in price, cost of living, hike in salary and
maintenance
of
establishment
of
enfareing regulation held-enhancement
cannot be said to be excessive.

Held: Para 21

Applying the principles laid down in the
aforesaid cases to the facts of the
present case, i.e., services are not
required to be rendered where the fee
has been imposed to regulate the trade,
we are of the considered opinion that the
present is a case where the fee has been
imposed to regulate the brick-kiln trade.
On behalf of the contesting respondents,
Sri Rakesh Kumar Verma has stated in
paragraph 10 of the counter affidavit
that the Parishad has to spend a sum of
Rs.30,00,000/- every year in connection
with
the
establishment
regarding
collection of tax and licence fee, which
amount goes on increasing every year.
Thus, from the facts brought on record
we are of the considered opinion that the
enhancement of the licence fee in 10
years by 5 times from Rs.2,000/- to
Rs.10,000/-
cannot
be
said
to
be
excessive taking into consideration the
escalation in prices, cost of living, hike in
salary and maintenance of establishment
for enforcing the regulations. It is in the
nature of regulatory fee for which no
services are required to be rendered.
Case law discussed:
PIR 1980 SC 1008
W.P. NO. 43220/02 Decided on 7.2.03
1974 A.L.S. 37, 1980 UPLBEC-148
1999 (2) SEE 274, 2001 (3) UPLBEC - 2483
1996(5) SCC-670, 1997 (2) SCC 715
1997 (3) SCC 665,2002(4) SCC 566
2004(1) SCC-225, 2005(2) SCC-345

## Text

420 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
punishment of dismissal or removal
cannot be imposed and the only option
left to the employer is to continue with the
enquiry initiated earlier when he was in
service, to reach its logical conclusion and
pass an order of withholding the retiral
benefits fully or to certain extent as per
the facts of the case applying the Rules
involved therein.

15. In the present case, admittedly, it
was not permissible for the respondents to
pass the order of dismissal after the
petitioner
had
reached
the age of
superannuation. Question of such an order
does not arise as the employee is no more
in service. He gets pension and other
retiral benefits for the services rendered
by him. However, in the counter affidavit,
the respondents have explained the order
by contending that the punishment of
dismissal results in legal consequences,
i.e. the punished employee is deprived of
pension, gratuity and leave encashment as
per the provisions of Punjab National
Bank
(Officers)
Service
Regulations
1977. The respondents have also filed a
copy of the Circular dated 5th March,
1999, though subsequent to the order
imposing punishment and the order of the
Appellate
Authority
is
relevant
to
determine
the
controversy.
Learned
counsel for the petitioner has insisted that
his case is to be considered under the said
circular. The said circular provides that
where the departmental proceedings are
instituted while a person is in service and
the said proceedings are continuing after
he has reached the age of superannuation,
then none of the penalties as provided
under Regulation 4 of the Bank Officers
Employees
(Discipline
and
Appeal)
Regulations can be imposed at the
conclusion of the proceedings but the
Bank can make recoveries in the event the
officer have been found guilty of causing
monetary loss to the Bank and also
deprive him of retiral benefits to the
permissible extent.

16. In view of the above, it may be
desirable that the matter be remanded to
the respondent authorities to pass an
appropriate
order
setting
aside
the
impugned orders. However, considering
the fact that the matter is pending since
long and in order to bring the litigation to
an end and considering the gravity of the
charges and financial loss suffered by the
Bank, we substitute the order of dismissal
by the order of withholding all retiral
benefits as has been explained in the
counter affidavit. However, no recovery
of the loss to the Bank to the tune of
Rs.1,14, 87,164.76 shall be made from
him.

Petition is disposed of accordingly.
---------
ORIGINAL JURISDICION
CIVIL SIDE
DATED: ALLAHABAD 12.09.2005

BEFORE
THE HON'BLE R.K. AGRAWAL, J.
THE HON'BLE (MRS.) M. CHAUDHARY, J.

Civil Misc. Writ Petition No. 30281 of 2003

Sangam
Eent
Nirmata
Samiti
and
another

 ...Petitioners
Versus
Zila panchayat Allahabad and others

 ...Respondents

Counsel for the Petitioner:
Sri R.N. Singh
Sri Vishnu Behari Tewari

Counsel for the Respondent:
Sri W.H. Khan
Sri A. Singh
1 All] Ramesh Chandra Sharma V. The Punjab National Bank and others
421
C.S.C.

U.P.
Kshetriya
Punchayat
&
Zila
Punchayat Adhiniyam 1961-
Section 239 (2) E (a) (iv)-Enhancement
of licence fee-to run the bricks kilnsfrom Rs.2000/- to 19000/-challenged on
the ground of highly excessive-without
any justification as supervising, checking
and
issuing
licence-not
within
the
managing of service rendered-rather in
nature of Tax-considering the escalation
in price, cost of living, hike in salary and
maintenance
of
establishment
of
enfareing regulation held-enhancement
cannot be said to be excessive.

Held: Para 21

Applying the principles laid down in the
aforesaid cases to the facts of the
present case, i.e., services are not
required to be rendered where the fee
has been imposed to regulate the trade,
we are of the considered opinion that the
present is a case where the fee has been
imposed to regulate the brick-kiln trade.
On behalf of the contesting respondents,
Sri Rakesh Kumar Verma has stated in
paragraph 10 of the counter affidavit
that the Parishad has to spend a sum of
Rs.30,00,000/- every year in connection
with
the
establishment
regarding
collection of tax and licence fee, which
amount goes on increasing every year.
Thus, from the facts brought on record
we are of the considered opinion that the
enhancement of the licence fee in 10
years by 5 times from Rs.2,000/- to
Rs.10,000/-
cannot
be
said
to
be
excessive taking into consideration the
escalation in prices, cost of living, hike in
salary and maintenance of establishment
for enforcing the regulations. It is in the
nature of regulatory fee for which no
services are required to be rendered.
Case law discussed:
PIR 1980 SC 1008
W.P. NO. 43220/02 Decided on 7.2.03
1974 A.L.S. 37, 1980 UPLBEC-148
1999 (2) SEE 274, 2001 (3) UPLBEC - 2483
1996(5) SCC-670, 1997 (2) SCC 715
1997 (3) SCC 665,2002(4) SCC 566
2004(1) SCC-225, 2005(2) SCC-345

(Delivered by Hon'ble R.K. Agrawal, J.)

1. By means of the present writ
petition filed under Article 226 of the
constitution of India, the petitioners,
Sangam Eent Nirmata Samiti, Allahabad
through its President Sri Uma Shanker
Ailwani and Pratap Eent Udyog, Andawa
Village, Phoolpur, Allahabad through its
partner Devendra Pratap Singh, seek the
following relief :-

"(i) a writ, order or direction in the
nature
of
mandamus
declaring
the
enhancement
of
licence
fee
from
Rs.2000/- to Rs.10,000/- vide notification
dated 01.10.2002 (Annexure -1) as ultra
vires and unconstitutional;
(ii) a writ, order or direction in the
nature of prohibition restraining the
respondents from realizing enhanced
licence fee of Rs.10,000/- instead of
Rs.2000/- for renewal of petitioners
licence for running its brick kiln vide
notification dated 01.10.2002 published in
U.P. Gazette dated 12.10.2002 (Annexure
- 1)
(iii) any other suitable writ order or
direction which this Hon'ble Court may
deem fit and proper in the circumstances
of the case.
(iv) Award the cost of writ petition to
the petitioners."

2. Briefly stated, the facts giving rise
to the present petition are as follows:-
According to the petitioners, the
petitioner no. 1 is an association of brickkiln owners of Allahabad and is registered
under the provision of the Societies
Registration Act, 1860. It has been
formed with an object to promote and
422 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
safeguard the legitimate interest and
privilege
of
brick-kiln
owners
of
Allahabad and to take steps that may be
for the general good of the trade. The
petitioner no. 2 is a partnership firm duly
registered under the Indian Partnership
Act. The members of the petitioner no. 1
association as also the petitioner no. 2 are
carrying on the business of manufacture
and sale of bricks. Their brick-kilns are
situate within the limits of the Zila
Parishad, Allahabad (hereinafter referred
to as "the Parishad"). The Parishad had
framed the bye laws on 28.11.1992 in
which it had prescribed for a licence fee
of Rs.2,000/- per annum for running the
brick-kiln. The bye laws had been framed
under Section 239(2)(E)(a)(iv) of the U.P.
Kshettra Panchayats and Zila Panchayats
Adhiniyam, 1961 (hereinafter referred to
as "the Adhiniyam"). The bye laws have
been amended on 1.10.2002 whereby the
licence fee has been increased from
Rs.2,000/- to Rs.10,000/- per annum the
increase of licence fee from Rs.2,000/- to
Rs.10,000/- is under challenge in the
present writ petition.

3. We have heard Sri R.N. Singh,
learned Senior Counsel, assisted by Sri
Vishnu Bihari Tiwari, Advocate, on
behalf of the petitioner, and Sri W.H.
Khan, learned Senior Counsel, assisted by
Sri A. Singh, Advocate, on behalf of the
Parishad.

4. Sri R.N. Singh, the learned Senior
Counsel, submitted that the Parishad is
not spending any amount for the purpose
of rendering any service for which they
could
charge
the
licence
fee
and
enhancement has been made without any
reason. According to him supervising,
checking and issuing of licence cannot be
said to be the service rendered. In the
circumstances, the amount of licence fee
being realized from the members of the
petitioner no. 1 association or the
petitioner no. 2 is in the nature of a tax
and not a fee. He further submitted that if
the fee is held to be regulatory in nature, it
is highly excessive and the Parishad has
not justified it by placing sufficient
material and evidence on record so as to
enable
the
Court
to
uphold
the
enhancement of licence fee. He has
referred to a decision of the Apex Court in
the case of Kewal Krishan Puri and
another v. State of Punjab and others,
AIR 1980 SC 1008. Relying upon
paragraphs 54 and 55 of the judgment, he
submitted that enhancement of the licence
fee from Rs.2,000/- to Rs.10,000/- is
wholly illegal and unjustified. He also
relied upon a Division Bench decision of
this Court in Civil Misc. Writ Petition
No. 43220 of 2002, Uttar Pradesh
Udyog Vyapar Pratinidhi Mandal and
others v. State of U.P. and others,
decided on 7.2.2003, wherein this Court
has declared bye-law no. 19 framed by the
Zila
Parishad,
Agra,
providing
for
imposition of charge paid on every trip of
the vehicle from Agra district to outside
and from outside the district to Agra
carrying Gitti, Patthar Boulder, Coal,
Marble, Yamuna sand and Balu etc.
which were to be utilized for providing
drinking water facility to the vehicle
owners and drivers and medical facilities
at the point of loading or any other
specified place. Sri Singh submitted that
these facilities, as held by this Court in
the aforesaid case, is the statutory duty of
the Parishad to provide and for incurring
expenditure on these facilities the impost
of the present levy cannot be justified.

5. Sri W.H. Khan, on the other hand,
submitted
that
the
licence
fee
of
1 All] Sangam Eent Nirmata Samiti & another V. Zila Panchayat Allahabad & others
423
Rs.10,000/- levied by the parishad is, in
fact, in the nature of a regulatory fee for
which no services are required to be
rendered. In the alternative, he submitted
that if it is held to be a fee co-related with
the services rendered, the Parishad is
spending huge amount towards facilities
being offered by way of maintenance of
road, approach road, allowing parking,
providing drinking water etc. and also for
maintaining sufficient staff to regulate the
trade. He, thus, submitted that the
enhancement of licence fee to Rs.10,000/-
is perfectly justified. He further submitted
that out of the about 271 brick-kiln
owners operating within the limits of the
Parishad, 218 brick-kiln owners have
already deposited the licence fee and the
renewal fee and, therefore, the plea that
the petitioner no. 1 is espousing the cause
of its members, is not correct. For
justifying the levy of the licence fee, Sri
Khan has relied upon the following
decisions: -

(i) Commissioner,
Agra
Division,
Agra and another v. Durgesh
Prasad Bhargava and another,
1974 ALJ 37;
(ii) Zila Parishad, Budaun v. Shiv Lal
and others, 1980 UPLBEC 148;
(iii) Secunderabad Hyderabad Hotel
Owners' Association and others v.
Hyderabad
Municipal
Corporation,
Hyderabad
and
another, (1999) 2 SCC 274; and
(iv) Dr. Chandresh Kumar Jain and
others. V. State of U.P. and others,
(2001) 3 UPLBEC 2483.

6. It is not necessary to go into the
question as to whether the petitioner no. 1
represents the interest of its members or
not, viz., the stand taken by the Parishad
that 218 brick-kiln owners have already
deposited the licence fee and renewal fee.
We find that the petitioner no. 2 who is a
partnership firm and is engaged in brickkiln trade and since brick-kiln has
challenged the levy of licence fee,
therefore the Court has to adjudicate upon
the questions raised in the writ petition.

7. Having given our anxious
consideration to the various pleas raised
by the learned counsel for the parties on
the question as to whether any services
are required to be rendered or there
should be an element of quid pro quo
where the fee charged is regulatory in
nature, we find that the Apex Court in the
case of P. Kannadasan and others v.
State of T.N. and others, (1996) 5 SCC
670, in paragraph 36, has held as under :-

"36 ....... Even in the matter of fees,
it is not necessary that element of quid pro
quo should be established in each and
every case, for it is well settled that fees
can be both regulatory and compensatory
and that in the case of regulatory fees, the
element of quid pro quo is totally
irrelevant. (See Corpn. Of Calcutta v.
Liberty Cinema, AIR 1965 SC 1107)."

8. In the case of Vam Organic
Chemicals Ltd. and another v. State of
U.P. and others, (1997) 2 SCC 715, the
Apex Court has held as follows:-
"18. The High Court in the impugned
judgment has drawn a distinction between
fees charged for licences, i.e. regulatory
fees and the fees for services rendered as
compensatory
fees.
The
distinction
pointed out by the High Court can be seen
in clause (2) of Article 110:

"110(2) A Bill shall not be deemed
to be a Money Bill by reason only that it
provides for the imposition of fines or
other pecuniary penalties, or for the
424 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
demand or payment of fees for licences or
fees for services rendered, or by reason
that it provides for the imposition,
abolition,
emission,
alteration
or
regulation of any tax by any local
authority or body for local purpose.
The High Court quoted from this Court's
decision in Corpn. Of Calcuttal v.
Libertyu Cinema, AIR 1965 SC 1107,
which was based on a Privy Council
judgent in George Walkem Shannon v.
Lower Mainland Dairy Products Board,
1938 AC 708. This Court said in Corpn.
Of Calcutta v. Liberty Cinema, AIR 1965
SC 1107:

"In fact, in our Constitution fee for
licence and fee for services rendered are
contemplated as different kinds of levy.
The former is not intended to be a fee for
services rendered. This is apparent from a
consideration of Article 110(2) and
Article 199(2) where both the expressions
are used indicating thereby that they are
not the same.
The High Court has taken the view that in
the case of regulatory fees, like the
licence fees, existence of quid pro quo is
not necessary although the fee imposed
must not be, I the circumstances of the
case, excessive. The High Court further
held that keeping in view the quantum
and nature of the work involved in
supervising the process of denaturation
and the consequent expenses incurred by
the state, the fee of 7 paise per litre was
reasonable and proper. We see no reason
to differ with the view of the High Court.

9. In the case of State of Tripura
and others v. Sudhir Ranjan Nath,
(1997) 3 SCC 665,the Apex Court has
held as follows

"14. We next take up the validity of
the levy of application fee and licence fee
of Rupees one thousand and Rupees two
thousand respectively. In our opinion, the
High Court was not right in holding that
the said fee amounts to tax on the ground
that it has not been proved to be
compensatory within the meaning of
clause (c) of sub-section (2) of section 41.
it is regulatory fee and not compensatory
fee.
The
distinction
between
compensatory fee and regulatory fee is
well established by several decisions of
this Court. Reference may be had to the
decision of the constitution Bench in
Corpn. Of Calcutta v. Liberty Cinema
AIR 1965 SC 1107. It has been held I the
said decision that the expression "licence
fee" does not necessarily mean a fee in
lieu of services and that in the case of
regulatory fees, no quid pro quo need be
established. The following observations
may usefully be quoted: -

"This contention is not really open to
the respondent for Section 548 does not
use the world 'fee'; it uses the words
'licence fee' and those words do not
necessarily mean a fee in return for
services. The former is not intended to be
a fee for services rendered. In fact, in our
Constitution fee for licence and fee for
services rendered are contemplated as
different kinds of levy. This is apparent
from a consideration of Article 110(2) and
Article 199(2) where both the expression
are used indicating thereby that they are
not the same. In George Walkem Shannon
v. Lower Mainland Dairy Products Board,
1938 AC 708, it was observed (at pp. 721722 of AC):

"if licences are granted, it appears to
be no objection that fees should be
charged in order either to defray the costs
of administering the local regulation or to
increase the general funds of the Province
or for both purposes..... it cannot, as their
Lordship think, be an objection to a
1 All] Sangam Eent Nirmata Samiti & another V. Zila Panchayat Allahabad & others
425
licence plus a fee that it is directed both to
the regulation of trade and to the
provision of revenue.'
It
would,
therefore, appear that a
provision or the imposition of a licence
fee does not necessarily lead to the
conclusion that the fee must be only for
services rendered."
15. This decision has been followed in
several decisions, including the recent
decisions of this Court in Vam Organic
Chemicals Ltd. v. State of U.P., (1997) 2
SCC 715 and Bihar Distillery v. Union of
India, (1997) 2 SCC 727. The High Court
was, therefore, not right in proceeding on
the assumption that every fee must
necessarily satisfy the test of quid pro quo
and in declaring the fee levied by subrules (3) and (4) of Rule 3 as bad on that
basis. Since we hold that the fees levied
by the said sub-rules is regulatory in
nature, the said levy must be held to be
valid
and
competent,
being
fully
warranted by Section 41."

10. In the case of Secunderabad
Hyderabad Hotel Owners' Association
(supra), the Apex Court has held in
paragraph 9 as under: -
"9. It is, by now, well settled that a
licence fee may be either regulatory or
compensatory. When a fee is charged for
rendering specific services, a certain
element of quid pro quo must be there
between the service rendered and the fee
charged so that the licence fee is
commensurate with the cost of rendering
the service although exact arithmetical
equivalence is not expected. However,
this is not the only kind of fee which can
be charged. Licence fees can also be
regulatory when the activities for which a
licence is given require to be regulated or
controlled. The fee which is charged for
regulation for such activity would be
validly classified as a fee and not a tax
although no service is rendered. An
element of quid pro quo for the levy of
such fees is not required although such
fees cannot be excessive."

11. The Apex Court has further held
that in the case of regulatory fee, no quid
pro quo was necessary but such fee
should not be excessive.

12. In the case of State of U.P. v.
Sitapur
Packing
Wood
Suppliers,
(2002) 4 SCC 566, the Apex Court has
held that the question of quid pro quo is
necessary when a fee is compensatory, for
every fee paid quid pro quo is not
necessary. In the case of regulatory fee it
is not necessary to establish the factum of
rendering of service. Therefore, there is
no question of regulatory fee being
invalidated on the ground that quid pro
quo has not been established.

13. In the case of State of U.P. and
another v. Vam Organic chemicals Ltd.
and others, (2004) 1 SCC 225, the Apex
Court
has
considered
the
question
regarding the distinction between a fee
and a tax and correlation ship or
correspondence for upholding the fee in
paragraph 35 as under: -
"35. This test of correlation ship or
"correspondence" has been repeatedly
used by this Court either to uphold the fee
holding that it was reasonable for the
requirement of the authority for fulfilling
its statutory obligations [B.S.E. Brokers"
Forum v. Securities and Exchange Board
of India, (2001) 3 SCC 482 (505);
Secunderabad Hyderabad Hotel Owners'
Assn.
v.
Hyderabad
Municipal
Corporation. (1999) 2 SCC 274 (286);
State of Tripura v. Sudhir Ranjan Nath,
(1997) 3 SCC 665; Shri Vileshwar Khand
426 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
Udyog Khedut Shahakari Mandali Ltd. v.
State of Gujarat, (1992) 2 SCC 42 and
Gujchem Distillers India Ltd. v. State of
Gujrat (1992) 2 SCC 399] or to strike it
down on the ground that the fee charge
was
not
established
to
be
so
commensurate. (See Indian Mica and
Micanite Industries v. State Of Bihar,
(1971) 2 SCC 236 (243) and A.P. Paper
Mills Ltd. v. Govt. of A.P. (2000) 8 SCC
167)."

14. In the case of Sona Chandi Oal
Committee and others v. State of
Maharasthra, (2005) 2 SCC 345, the
Apex Court has held that the traditional
concept of quid pro quo in a fee has
undergone considerable transformation.
So far as the regulatory fee is concerned,
the service to be rendered is not a
condition precedent and the same does not
lose the character of a fee provided the fee
so charged is not excessive. It has further
held that the fee charged in respect of
renewal under the Bombay Money
Lenders Act, 1946 is regulatory in nature
to control and supervise the functioning of
the money lending business to protect the
debtors, the vast majority of which are
poor
peasants,
tenants,
agricultural
labourers and salaried workers who are
unable to repay their loans. The object of
the Act is to control the money lending
business and protect the debtors from the
malpractices in the business by detecting
illegal money lending. This exercise is a
must to carry out the object of the Act for
which a lot of infrastructure is required.
The duty of the staff and the officers of
the department is to visit the places of
money lending business, inspect the
accounts and other matters relating to the
business, to find out illegal money
lending, carry out raids in suspicious
cases and do regular inspection as
provided in the Act. The Act serves a
larger public interest.

15. In the case of State of Bihar
and
others
v.
Shree
Baidyanath
Ayurved Bhawan (P) Ltd. and others,
(2005) 2 SCC 762, the Apex Court has
held that in the case of regulatory fees,
like licence fees, existence of quid pro
quo is not necessary although such fees
must not be excessive. It has upheld the
levy of licence fee under the Bihar and
Orissa Excise Act, 1915 in view of the
quantum of nature of work involved in
supervising the activities under the said
Act.

16. We find that in the counter
affidavit filed by the Parishad it has been
stated that the trade of brick-kiln comes
within an offensive trade as mentioned in
clause E(iv) of sub-section (2) of Section
239 of the Adhiniyam and the Parishad is
fully empowered to impose licence fee for
regulating and controlling the trade. It has
to maintain a big establishment and to
employ
different
persons
such
as
Inspectors, Tax Collectors, Overseers,
Engineers etc. for maintaining road,
construction of road, approach road and
making for inspections and collecting
licence fee etc. The Parishad has to spend
a huge amount of Rs.30,00,000/- every
year in connection with the establishment
regarding collection of tax and licence fee
which goes on increasing every year and,
therefore, the enhancement of the licence
fee from Rs.2,000/- to Rs.10,000/- after
more than 10 years cannot be said to be
excessive.

17. In the case of Kewal Krishan
Puri (supra) the Apex Court was
considering
the
question
about
the
validity of market fee of Rs.2/- levied by
1 All] Sangam Eent Nirmata Samiti & another V. Zila Panchayat Allahabad & others
427
the Market Committees under the Punjab
Agricultural Produce Market Act on the
touchstone of services rendered. The
question of fee being regulatory in nature
was not up for consideration before the
Apex Court.

18. In the case of Durgesh Prasad
Bhargava (supra) this Court has upheld
the levy of licence fee of Rs. 250/- for
running the brick-kiln. This amount was
levied in the year 1974.

19. In the case of Shiv Lal (supra)
this Court has upheld the imposition of
licence fee for brick-kiln on the ground
that it cannot be challenged that there was
no quid pro quo between the licence fee
charged and the services rendered a s the
impost in question was not fee simpliciter.

20. In the case of Dr. Chandresh
Kumar Jain (supra) this Court has
upheld the levy of licence fee imposed on
the nursing homes, Private Clinics,
Pathology Centres and Maternity Homes
etc. on the ground of being regulatory in
nature. This Court has laid down the
broad distinguishing features between
compensatory and regulatory fee as
follows:-
"24.
The
broad
distinguishing
features
between
compulsory
and
regulatory fee are -
In compensatory fee, the element of quid
pro quo is necessary while in regulatory
fee it is not necessary;
1.
In compensatory fee the amount
realized is to be spent for the services
to be rendered for which the fee has
been
realized
but
this
is
not
necessary in the case of regulatory
fee;
2.
In compensatory fee the amount
realized is to be spent for the services
to be rendered for which the fee has
been
realized
but
this
is
not
necessary in the case of regulatory
fee;
3.
The regulatory fee is realised to
regulate the activities of the persons
who are to obtain licence under a bye
law, rules, regulations or statute. The
amount realised as regulatory fee is
to be spent for regulating their
activities."

21. Applying the principles laid
down in the aforesaid cases to the facts of
the present case, i.e., services are not
required to be rendered where the fee has
been imposed to regulate the trade, we are
of the considered opinion that the present
is a case where the fee has been imposed
to regulate the brick-kiln trade. On behalf
of the contesting respondents, Sri Rakesh
Kumar Verma has stated in paragraph 10
of the counter affidavit that the Parishad
has to spend a sum of Rs.30,00,000/-
every year in connection with the
establishment regarding collection of tax
and licence fee, which amount goes on
increasing every year. Thus, from the
facts brought on record we are of the
considered opinion that the enhancement
of the licence fee in 10 years by 5 times
from Rs.2,000/- to Rs.10,000/- cannot be
said
to
be
excessive
taking
into
consideration the escalation in prices, cost
of living, hike in salary and maintenance
of
establishment
for
enforcing
the
regulations. It is in the nature of
regulatory fee for which no services are
required to be rendered.

22. The law laid down by the
Division Bench of this Court in the case
of
Uttar
Pradesh
Udyog
Vyapar
Pratinidhi
Mandal
(supra)
is
not
428 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
applicable to the facts of the present case
inasmuch as in the present case the fee is
being justified on the ground of being
regulatory in nature, which question was
not up for consideration in the said case.

23. No other point has been pressed.

In view of the foregoing discussions,
we do not find any merit in this petition. It
is dismissed with costs which we assess at
Rs.10,000/-.
Petition dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.01.2006

BEFORE
THE HON'BLE S. RAFAT ALAM, J.
THE HON'BLE SUDHIR AGARWAL, J.

Special Appeal No. 141 of 2005

Secretary, Board of High School and
Intermediate Education, U.P., Allahabad

...Appellant/Respondent
Versus
Ram Jatan ...Respondent/Writ Petitioner

Counsel for the Appellant:
S.C.

Counsel for the Respondent:
Sri Kamlesh Kumar
Sri S.D. Shukla

U.P.
High
School
&
Intermediate
Education Board-Chapter-III Regulation
7-Correction of entry made in High
School certificate-Petitioner appeared in
High School Examination in the year
1967-In examination form given the
particulars of his date of Birth as
1.7.1982-applied for rectification of the
date of Birth after 28 years-Board
refused that the same particular are
there in the Concerned college record
also-under writ jurisdiction High Court
can not interfere on assumption that the
correction sought by the petitioner shall
made to retire 3 years earlier-hence the
correction is not bonafide.

Held: Para 7 & 8

The said amended provision clearly
prescribe
that
the
correction
of
certificate of the Board is permissible
only within two years from the date of
issuance of such certificate if there is
mistake or omission occurred due to
carelessness in the record of the Board
or in the record of the institution.

The learned counsel for the petitioner
respondents submits that the aforesaid
amendment came in 1983 and therefore,
will not apply to his case since the
petitioner
respondents
passed
High
School examination in 1967. We do not
agree with the aforesaid submission for
the
reason
that
the
petitioner
respondents sought correction of date of
birth in the records of the appellant
respondent in the year 1995, i.e. after 12
years from the date the Regulation 7
Chapter III was already amended. Thus
even if the period of two years if not
counted from 1967 yet, the respondent
at the best could have applied within two
years from 1983 i.e. upto 1985.

(Delivered by Hon'ble S. Rafat Alam, J.)

1. This special appeal is preferred
against the order of Hon'ble single Judge
of this Court dated 6.4.1999 whereby the
writ petition of the petitioner respondents
was disposed of with the direction to the
Board to issue a fresh and corrected
certificate changing the date of birth of
the respondent as 12.7.1949 instead of
1.7.1952 within a period of two months
from the date of receipt of the certified
copy of this order.

2. The brief facts are that the
petitioner respondent appeared in the
High School examination in the year 1967