JUDGMENT P.K. Palli, J.:- This second appeal has been filed by the defendants, i.e state of Himachal Pradesh & ors. 2. The plaintiffs had prayed for declaration that notification issued by the State fixing the registration fee on documents be declared illegal and ultra vires and being against the provisions contained in Section 78 of the Indian Registration Act Admittedly, the plaintiffs, were allotted a site in the industrial area, Parwanoo on lease and on recommendation by the State functionaries, a term loan was granted by the Financial Corporation and another loan was granted by the Mineral Industrial Development Corporation for setting of the Industrial Unit by the plaintiffs. This loan was to be secured by execution of a simple mortgage well as an equitable mortgage by deposit of title deeds with the above-said Corporations. It is further not disputed that the deed was compulsorily required to be registered and for that purposes an amount of Rs. 27,760/- was calculated at the mortgage amount and vide impugned notification the same was charged from the plaintiffs. This payment was made by the plaintiffs under protest. 3. Challenge was, consequently, made to this notification being against the spirit of Section 78 and 79 of the Registration Act and the plaintiffs are aggrieved against the charging of the registration fee and it is said that the Stats was not entitled to charge it irrationally as well as on discriminatory basis and it is not in consonance with the services rendered as well as privileges provided in registration of such deeds and the value given has no .co-relation with the services rendered for these deeds and the amount merges in the genera revenue of the State as tax and forms part of the consolidation funds. The grievance made by the plaintiffs is that these amounts are used by the administration and the amount charged is disproportionate for the services rendered. In short, the registration fee has been said to be a tax by the plaintiffs and offends Article 265 of the Constitution of India. 4. The State in its defence has justified the imposition of registration fee being rational and not discriminatory. The exercise of powers is said to flow from statutes and being the sovereign function of the state cannot be challenged. 5. 4. The State in its defence has justified the imposition of registration fee being rational and not discriminatory. The exercise of powers is said to flow from statutes and being the sovereign function of the state cannot be challenged. 5. Both the learned courts below on appreciation of the material placed on record by the parties and after going through the questions raised have granted decree to the plaintiffs to the effect that the impugned notification dated 14th April, 1969 prescribing the registration fee is not in tune with the provisions contained in Section 78 of the Registration Act and the same has been declared to be null and void The fee paid by the plaintiffs has been ordered to be refunded. 6. Mrs. Shyama Dogra, learned counsel appearing for the State, laying challenge to the impugned judgments and decrees, contends that the dispute could not be entertained by the Civil Court and there was inherent lack of jurisdiction. It is further contended that as the question pertained to the validity of the provisions only High Court had the exclusive domain to declare it so or a reference could be made by the civil court under Section 113 of the code of Civil Procedure for the purpose. 7. It is further sought to be agitated that the notification has the force of an Act and the courts below were wrong in holding it otherwise. It is further being argued that the courts below have wrongly held the registration fee as tax, whereas it was not so. 8. Learned counsel appearing for the plaintiffs in reply has adopted the same line of reasonings as projected by the courts below in the impugned judgments. 9. After hearing learned counsel for the parties at length and on careful perusal of the record and law on the point, I am of the considered opinion that there is no merit in this appeal and the same is liable to be rejected. 10. As said above, the facts are not in dispute. The defendants have, admittedly charged registration fee from the plaintiffs to the tune of Rs .27, 760/-. The impugned notification is said to have been passed by the State deriving powers from Sections 78/79 of the Indian Registration Act. All what the plaintiffs agitate is-that the fee charged besides being highly excessive, is also against the spirit of above said provisions. The impugned notification is said to have been passed by the State deriving powers from Sections 78/79 of the Indian Registration Act. All what the plaintiffs agitate is-that the fee charged besides being highly excessive, is also against the spirit of above said provisions. The fee has to be not only reasonable but should confirm to the services rendered for the purposes of registration of the deeds. The fee is said to have been realized from the plaintiffs under coercion. Before proceeding further in the matter, it may be noticed that the plaintiffs had earlier filed writ petition No. 105/1979, wherein challenge was made to the vires of the impugned notification. Prayer for refund of the registration fee was also made. 11. Vide order dated 22nd May, 1979, the Writ Petition was disposed of with these observations:- "We do not want to express anything on the merits of the case and presuming that the decisions on which the reliance is placed apply to the facts of the case, the question is whether the petitioners have got an alternate efficacious remedy for getting the same type of redress as contemplated by sub-article (3) of Article 226 of the Constitution. It is evident that the prayer which is made by the petitioners in this writ petition is for the recovery of a specific amount which is said to have~ been illegally recovered This prayer is evidently based on the contention that a notification under which the registration fees have been charged is illegal as it amounts to charge of tax and not the charge of fees. In our opinion, this plea can be effectively raised by instituting a civil Suit, and by challenging the validity of the concerned notification in the suit. The remedy which is available to the petitioners by filing the suit is obviously efficacious and effective." 12. It deserves to be noticed that review petition filed against the above-said order was dismissed by this court on 24th July, 1979. It was in the aforesaid situation that the present suit came to be filed by the plaintiffs laying challenge to the impugned notification. 13. Under Section 78 of the Indian Registration Act, 1908, the State Government has the authority to prepare a table of fees for the purpose of registration of documents and in certain situations extra or additional fees can also be prescribed. 14. 13. Under Section 78 of the Indian Registration Act, 1908, the State Government has the authority to prepare a table of fees for the purpose of registration of documents and in certain situations extra or additional fees can also be prescribed. 14. Under Section 79, the fees payable under Section 78 are to be published in the official gazette and made known to the public. 15. The impugned notification is Ex. PE and is said to have come on the surface in the exercise of powers derived from statute or being sovereign function of the State. Interestingly, issue No.4 in this respect was framed by the trial court in the light of the pleas raised by the State of their written-statement. Most surprisingly, this issue was not pressed from the side of the State before the trial Court. Grievance was raised before the first appellate Court and has been dealt within para -12 of the impugned judgment. I am in complete agreement with the reasonings given by the first appellate Court. The defendants cannot be permitted to raise this plea in second appeal before this court, in view of the admitted position. 16. A perusal of the order passed by this court in the writ petition further demonstrates that the learned Judges constituting the bench opined that the questions raised can be effectively adjudicated upon in a civil Suit by laying challenge to the validity of the notification. It was further observed that the remedy of suit is obviously efficacious and effective. It is rather strange that arguments are still being raised by the State that the matter could not be challenged before the Civil Court and the Civil Court had no jurisdiction to entertain the suit further. 17. I am further of the view that reference under Section 113 of the Code of Civil procedure can only be made where it relates to the validity- of an Act Ordinance or Regulation. For better understanding, Section 113 of the Code Civil Procedure is re-produced here under:- "S. 113. 17. I am further of the view that reference under Section 113 of the Code of Civil procedure can only be made where it relates to the validity- of an Act Ordinance or Regulation. For better understanding, Section 113 of the Code Civil Procedure is re-produced here under:- "S. 113. Reference to High Court Subject to such conditions and limitations may be prescribed, any court may state a case and refer the same for opinion of the High Court, and the High Court may make such order thereon as it thinks fit: (Provided that where the court is satisfied that a case pending before ii involves a question as to the validity of any Act, ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by the High Court to which that court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefore, and refer the same for the opinion of the High Court. Explanation.—In this section "Regulation" means any Regulation of the Bengal, Bombay, or Madras Code or Regulation as defined in the General Clauses Act, 1897 (10 of 1897), or in the General Clauses Act of a State)". The court while making reference is also required to give an opinion that the provisions is in -valid or in—operative. It is further necessary for the exercise of this power that the provisions challenged has not been declared invalid by the High Court or by the Supreme Court. 18. I am further of the view that the reference should be made only where it is deemed absolutely necessary for the purpose of the decision of the-suit. 19. The impugned notification is, admittedly, neither an Act nor it is an Ordinance. The word "Regulation" as given in the proviso is to be given the meaning as defined in the General Clauses Act, 1897. 20. Under the General Clauses Act the word "Regulation" means a Regulation made by the President under Article 240 of the Constitution of India. It would also include a Regulation made by the Central Government under the Government of India Act, 1935. 20. Under the General Clauses Act the word "Regulation" means a Regulation made by the President under Article 240 of the Constitution of India. It would also include a Regulation made by the Central Government under the Government of India Act, 1935. In view of the aforesaid definitations given to the word "Regulation" it, thus, would not come within the ambit of Section 113 of the Code of Civil Procedure. 21. It may be noticed that the provisions contained in the Registration Act, are not impugned by the plaintiffs. Arguments, thus, raised on behalf of the State is rejected. The distinction between a "tax" and a "fee" has come up for consideration before the Honble Supreme Court of India large number of cases as well as before several High Courts of the country. This judgment need not be burdened further as to what has been said in the case law as tax is levied on persons and properties and is not imposed for conferring any benefit upon a citizen. The Collections made are put in the general revenue for the purposes of its application for public purposes. 22. So far as "fee" is concerned, it is levied for certain services given to individuals and the collection has to be ear-marked so as to meet the expenses required to render these services and do not go to the general pool nor to be spent t other public purposes. The distinction drawn between these two terms can be read with advantage from the law laid down in Hindu Religious Endorsements vs. Sri Lakshmindra Thirtha Swamiar (AlR1954 SC, page 282). There is no evidence pointed out from the record to show that the collections made by charging registration fee are deposited under a separate head and are further being used for the maintenance of the Registration Department of the State. In the absence of this vital piece of evidence, it follows that the collections realised are put in the general revenue of the State in the consolidated fund to be utilized by the Government and its functionaries for general public purposes. 23. I have, thus, no hesitation to hold that there is no reasonable nexus between the fee imposed and the expenditure required for it. The fee levied through impugned notification, thus, can safely be termed to be a tax and, therefore, the impugned notification is certainly ultra-vires the Registration Act. 23. I have, thus, no hesitation to hold that there is no reasonable nexus between the fee imposed and the expenditure required for it. The fee levied through impugned notification, thus, can safely be termed to be a tax and, therefore, the impugned notification is certainly ultra-vires the Registration Act. I am further supported in my view with the observations reported in Escorts Ltd. vs. State of Punjab, (1974 Current Law Journal, Page 134) and State of Uttar Pradesh vs. District Registrar (AIR 1971 Allahabad, page 390). Notifications almost identical were held to be ultra- vires - the Act and were further held to be inoperative as being "tax" and not "fee". 24. In view of the what has been said above, the appeal calls for no interference by this court and is, consequently, ordered to be dismissed. There shall, however, no order as to costs.