JUDGMENT P. R. RAMACHANDRA MENON :- Constitutional validity of sub-section (5A) of section 14 of the Act 15 of 1963 as amended by the Kerala Finance Bill, 2004, whereby the dealers having registered "under the Kerala General Sales Tax Act, 1963" and those having registered under "both the Kerala General Sales Tax and Central Sales Tax Acts" are required to pay a fee of Rs. 500 and Rs. 1,500, respectively, for the purpose of renewal of registration, is the basic issue involved herein. The first petitioner, an association registered under the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act 12 of 1958, is stated as representing the dealers/members, whose particulars have been given in exhibit P2. The second petitioner is stated as the Secretary of the first petitioner - association and a dealer/member as well. The third petitioner is one of the members of the first petitioner - association. The writ petition was filed, challenging the proposed amendment vide Kerala Finance Bill, 2004, to have effect from April 1, 2004. Subsequently, the enactment came, when the petitioner got the writ petition amended by filing I.A. No. 12687 of 2005, challenging the concerned provisions in "the Act". In the opening paragraph itself, it is stated that the first petitioner is presenting the writ petition "for and on behalf" of the members in a "representative capacity"; simultaneously giving the list of the members as per exhibit P2. It is also stated that the second petitioner, who is the Secretary of the first petitioner - association, is maintaining the writ petition, both in his individual capacity, as well as in his capacity as Secretary of the first petitioner - association. The third petitioner has joined the proceedings in his individual capacity and also as a member of the first petitioner - association. The case put forth by the petitioners is that undue loss and hardships have been resulted by virtue of the amendment brought in vide sub-section (5A), whereby the fees for "renewal of registration" have been enhanced to "Rs. 500" and "Rs. The case put forth by the petitioners is that undue loss and hardships have been resulted by virtue of the amendment brought in vide sub-section (5A), whereby the fees for "renewal of registration" have been enhanced to "Rs. 500" and "Rs. 1,500" in the case of dealers having "Kerala general sales tax" registration alone and those having both the "Kerala general sales tax and Central sales tax" registration, respectively, which is beyond the legislative competence of the State, particularly in view of the law declared by this court vide exhibit P3 judgment (Kerala Electric Trades Association v. State of Kerala [2004] 12 KTR 114 (Ker)), whereby sub-section (1A) and sub-section (5) of section 14, providing for additional fee for registration under the Kerala General Sales Tax Act, in respect of a person who is having Central sales tax registration and further providing for "renewal fee" payable at the same rate as required for the purpose of initial registration, were set aside as ultra vires the Constitution. It is contended by the petitioners that the same logic and reasoning, as applied in exhibit P3 verdict passed by the Division Bench of this court, is squarely applicable to the situation resulted herein, because of the introduction of sub-section (5A) to section 14, as well. The main grounds of challenge raised by the petitioners are : (i) Renewal fee, though labelled as a "fee", is actually a "tax" in disguise, which hence is not liable to be acted upon. (ii) By virtue of the principle of "quid pro quo", no such levy is possible, as absolutely no service is being rendered by the State in connection with the registration or renewal of registration. (iii) There is a clear finding rendered by a Division Bench of this court in exhibit P3 judgment that no service is being rendered by the State with regard to the registration of the dealers and as such, no registration fee can be sought to be realised under sub-section (5A). (iv) The same logic and reasoning given by the Division Bench of this court in exhibit P3 judgment, while setting aside sub-sections (1A) and (5) of section 14, are very much applicable in respect of sub-section (5A) as well. (iv) The same logic and reasoning given by the Division Bench of this court in exhibit P3 judgment, while setting aside sub-sections (1A) and (5) of section 14, are very much applicable in respect of sub-section (5A) as well. (v) The course pursued by the State, by bringing in sub-section (5A) to the statute book immediately on setting aside sub-section (5) of section 14 vide exhibit P3 judgment, is not correct or sustainable in view of the binding judicial precedents as referred to in paragraphs 5 to 23 of the writ petition. The respondents have filed a counter-affidavit mainly contending that the legislative competence of the State for enacting sub-section (5A) is no more res integra, particularly in view of the specific observations made by this court in exhibit P3 judgment and the stipulations enabling such exercise in the manner and to the extent as specified therein. It is also contended that the petitioners' idea and understanding as to the scope and ambit of exhibit P3 judgment is thoroughly wrong and misconceived; simultaneously asserting that the erstwhile principle of "quid pro quo" has been watered down as on date, by virtue of declaration of law by the apex court and there is no generic difference between "tax" and "fee". The respondents further contend that the prescription of renewal fee under sub-section (5A) is rather regulatory in nature and the "service" being rendered by the State in general, including to the petitioners, with regard to the various steps involved in connection with the registration and other incidental aspects, very much justifies imposition of renewal fee. The State has got a further contention that absolutely no material has been produced by the petitioners to show that the petitioners have been authorised to file the proceedings in a "representative capacity" for and on behalf of the members enlisted in exhibit P2; nor have they paid separate court fee in respect of each member, unlike the course pursued by the Division Bench of this court in W.A. No. 1164 of 2002 and connected cases (CDJ [2008] Ker HC 803). Various decisions rendered by the apex court as well as this court, as referred to in the counter-affidavit, are also pressed in, to substantiate the above contentions. Various decisions rendered by the apex court as well as this court, as referred to in the counter-affidavit, are also pressed in, to substantiate the above contentions. The learned counsel for the petitioners argued the matter at length, mainly with reference to the various decisions rendered by the apex court and also by this court, besides placing reliance on exhibit P3 verdict passed by the Division Bench, asserting that sub-section (5A) of section 14 is liable to be set aside as ultra vires the Constitution; having been legislated without any competence or authority, but just as a measure to generate funds/revenue, without any regard to the service to be rendered. A great measure of emphasis is laid on the specific observation made by the Division Bench of this court while passing exhibit P3 verdict setting aside sub-sections (1A) and (5) of section 14 and contended that in view of the clear finding therein, the provisions incorporated by the State as per exhibit P5 to collect "renewal fee" stand rather forbidden. But this court does not consider it necessary to go into the various decisions cited by the learned counsel for the petitioners, but for confining the discussion to the specific observations made by this court in exhibit P3 judgment, which was a case filed by the first and third petitioners themselves and where almost the same nature of contentions was taken, challenging the sustainability of sub-sections (1), (1A) and (5) of section 14 of the Kerala General Sales Tax Act, 1963. Obviously section 14(1) of the Kerala General Sales Tax Act provides for collections of fees for granting registration at different levels based on the turnover. Sub-section (1A) of section 14 stipulated as follows : "Notwithstanding anything contained in sub-section (1) every dealer registered under sub-section (3) of section 7 of the Central Sales Tax Act, 1956 (Central Act 74 of 1956) shall in addition to the fee specified in sub-section (1) pay a fee of rupees one hundred." Sub-section (5) of section 14 stipulated that the certificate issued under sub-section (2) would be valid for one year and was to be renewed from year to year, on payment of fees specified in sub-section (1) and continued to be valid on such renewal. After discussing the facts and figures and also the judicial precedents cited from both the sides, it was held in paragraph 4 as follows : "In this case there is no dispute between the parties that what is levied in the form of licence fees is a fee and not a tax. The learned Government Pleader submitted that what is collected is a fee. In the counter-affidavit also Government justifies the imposition of licence fees as fee and not as tax. Therefore, we need not go at length as to whether the levy is tax or fee." After discussing the legislative competence in imposing levy of fees, it was specifically held in the very next paragraph as follows : "Therefore, Kerala General Sales Tax Act was enacted within the powers of the State, as can be seen from article 246(3) of the Constitution of India. Item 66 of List II of the Seventh Schedule also provides as follows : '66. Fees in respect of any of the matters in this List, but not including fees taken in any court'." It was further observed that since the Act itself was passed with legislative competence, "fees" also can be charged under the Act under item 66 of List II, as it was one of the matters covered in the List. Accordingly, it was held that there was legislative competence for the State to impose "fees" and that sections 14(1) and (5) were enacted with legislative competence. But while coming to the legislative competence to enact section 14(1A) imposing levy of additional fees on the registered dealers under the Central Sales Tax Act, it was held by the court that by virtue of section 13(1)(a) and (b) of the Central Act, the power is vested only with the Central Government to prescribe the fees payable for registration and it was not a matter for the State Government to impose registration fees from dealers under the Central Sales Tax Act. Accordingly, as observed in paragraph 6 of exhibit P3 verdict, sub-section (1A) of section 14 was declared as unconstitutional. In paragraph No. 7 of exhibit P3 verdict, the Division Bench reiterated the legislative competence of the State for enacting section 14(1) (prescribing fees for registration) and section 14(5) (prescribing fees for renewal of registration). Accordingly, as observed in paragraph 6 of exhibit P3 verdict, sub-section (1A) of section 14 was declared as unconstitutional. In paragraph No. 7 of exhibit P3 verdict, the Division Bench reiterated the legislative competence of the State for enacting section 14(1) (prescribing fees for registration) and section 14(5) (prescribing fees for renewal of registration). However, considering the contentions taken from the part of the petitioners as to the necessity to have "quid pro quo" and exorbitant nature of the charges for renewing registration at the same rate as payable for the purpose of initial registration and also taking note of the contentions raised from the part of the State as to why such imposition of renewal fee was sought to be justified, notwithstanding sub-section (5), in the light of the binding judicial precedents rendered by the apex court, relied on by either side, it was observed in paragraph No. 12 that all the petitioners were registered dealers; that when a person applies for registration, the State may have to incur expense for verification depending upon the turnover; that the initial registration fees charged have some relation with the expenses incurred for verification; that maximum registration fee was Rs. 10 in 1963, Rs. 250 in 1983, Rs. 7,500 in 1992 and Rs. 10,000 in 1993 and later enhanced to Rs. 20,000 in 1996; that the petitioners were already registered dealers and the amount of registration fee "depending upon the turnover" cannot be said to be exorbitant, it was a one-time affair and hence that there was no ground for setting aside section 14(1) charging initial registration fee; especially when section 13 of the Act was not challenged, simultaneously adding that once a dealer was registered depending upon the turnover, security also could be increased. After sustaining the provision under section 14(1) providing for payment of requisite fees for initial registration, the Division Bench of this court held in the subsequent paragraph that the stipulation contained in sub-section (5) of section 14 for remitting the "same fee" for renewal of the registration, which was required to be made on an year-wise basis, did not have any rationale in relation to the "service" to be rendered. It was accordingly, that sub-section (5) of section 14 was set aside, holding it as unreasonable, in so far as it required the registered assessee to pay renewal fee payable from year to year at the same rate of initial registration fee, under sub-section (1) of section 14, since collection of fees to such extent was without any "quid pro quo" and unconstitutional. Simultaneously, it was added that there was nothing wrong in the provisions incorporated for renewing the licence as year-wise registration can be given and further that the State will be free to charge nominal fees for covering up the expenses, if any incurred for renewal of registration. From the above, it is clear that the challenge, raised by the petitioners as to the legislative competence of the State to impose fee for renewal of registration, was rather negated by the Division Bench of this court, except to the extent of holding that the stipulation under sub-section (5), providing for realisation of fees "at the same rate" as payable at the time of initial registration (subject to a maximum of Rs. 20,000 as amended in 1996 depending upon the turnover) as unsustainable and unconstitutional. It is for the very same reason, that, it was explicitly made clear in paragraph No. 13 of exhibit P3 verdict that there was nothing wrong for renewing licence as year-wise registration could be given and that the State was free to charge nominal fees for covering up expenses, if any, incurred for renewal of registration. This being the position, the challenge raised by the petitioners in the present writ petition as to the legislative competence of the State to impose fees on renewal of registration is no more open to be considered, but for the quantum. With regard to the quantum of renewal of registration fees, the respondents have sought to sustain the stipulation in sub-section (5A) referring to the course and events pursued, as explained in paragraphs 7, 8, 9 and 11 of the counter-affidavit which are extracted below : "7. It is submitted that for renewal of registration the dealer has to file application under rule 5(16) in the prescribed form 1B of the Kerala General Sales Tax Rules along with the proof of payment of fee. The registering authority has to verify the entire records relating to the dealer and has to decide his eligibility to get the registration renewed. The registering authority has to verify the entire records relating to the dealer and has to decide his eligibility to get the registration renewed. In appropriate cases, the authority can even refuse renewal after affording a reasonable opportunity of hearing to the dealer as envisaged under sub-section (8) of section 14. Further the authority has to verify the sufficiency of the security initially furnished for proper payment of tax and demand additional security if required under sub-section (4) of section 14. Thus virtually granting renewal under section 5A is granting a new registration after expiry of the old one. However, the renewal fee is fixed at the minimum keeping in view of the observations of this honourable court in Kerala Electric Trades Association v. State of Kerala reported in [2004] 12 KTR 114 (Ker). 8. The general co-relationship between the totality of the fee on the one hand and the totality of the expenses of the services on the other, would justify the levy of renewal fee in terms of section 14(5A). 9. It is submitted that the petitioners have placed no materials before this honourable court to show that the total levy on account of renewal of registration exceeds the expenses. 10. ... 11. The arbitrariness alleged in distribution of burden of renewal fee among dealers falling under (a) and (b) categories specified in section 14(5A) is illusory. The renewal fee contemplated under the said section is confined only with regard to the registration under the Kerala General Sales Tax Act. The classification made out is on cost-wise analysis. It is submitted that multiplicity of records to be verified in the case of categories (b) dealers would justify the higher rate of renewal fee payable by them in comparison to the category (a) dealers." It is also very much relevant to note that while enacting sub-section (5A) stipulating renewal fees to an extent of Rs. 500 in the case of dealers registered under the "Kerala General Sales Tax Act" and Rs. 1,500 in the case of dealers registered under "both the Kerala General Sales Tax and Central Sales Tax Acts", the rationale and distinction between the two classes have been clarified by the respondents in paragraph No. 11 (as multiplicity of records to be verified in the latter case). 1,500 in the case of dealers registered under "both the Kerala General Sales Tax and Central Sales Tax Acts", the rationale and distinction between the two classes have been clarified by the respondents in paragraph No. 11 (as multiplicity of records to be verified in the latter case). The State has also incorporated another provision as sub-section (5B) which stipulates that every registered dealer shall be issued an "electronic identity card", subject to such conditions as may be notified by the Government in this behalf. The position as it stood earlier while passing exhibit P3 verdict, has come a long way and the Government is providing various service to the dealers as above, the existence of which aspect has rather been conceded by the petitioners as well, in paragraphs 4A and 9 of the amended writ petition, though they dispute the actual expense for issuance of the electronic identity card. This is more so, in view of the law declared by the apex court in State of H.P. v. Shivalik Agro Poly Products [2004] 8 SCC 556 holding that there is no generic difference between a "tax" and "fee" as on date and the dictum in City Corporation of Calicut v. Thachambalath Sadasivan AIR 1985 SC 756 holding that the principle of "quid pro quo" has been watered down and that there is no question of any mathematical exactitude with regard to the "fees" and "service". Further, it has also been made clear by the apex court that the "fee" collected does not contemplate any service to the particular dealer and that the service provided by the State in general, will definitely constitute "quid pro quo". As discussed hereinbefore, the Division Bench of this court, while sustaining section 14(1) of the Kerala General Sales Tax Act prescribing fees for registration at different levels, on the basis of the turnover (the maximum of which was Rs. 10,000 in 1993 and Rs. 20,000 in 1996), had only observed that there was no rationale in demanding the very same extent of fees for the purpose of renewal also, to be done on yearwise basis and it was accordingly, that sub-section (5) as it existed earlier for collecting such amount was set aside as unreasonable and unconstitutional. 10,000 in 1993 and Rs. 20,000 in 1996), had only observed that there was no rationale in demanding the very same extent of fees for the purpose of renewal also, to be done on yearwise basis and it was accordingly, that sub-section (5) as it existed earlier for collecting such amount was set aside as unreasonable and unconstitutional. Unlike this, the position as it stands now, it only such that the fees payable for renewal, under sub-section (5A) in respect of Kerala general sales tax registration is Rs. 500; whereas in the case of dealers having "Kerala general sales tax and Central sales tax" registration, it is Rs. 1,500. This court does not find it as exorbitant, arbitrary or shockingly disproportionate to the extent of service being provided in connection with the steps for renewal of registration and as such, no interference is called for. With regard to the maintainability of the writ petition, even though it has been stated in the opening paragraph of the writ petition that the same has been preferred in a "representative capacity" (for and on behalf of more than 800 dealers enlisted in exhibit P2), absolutely no document has been produced before this court to show that the petitioners have been authorised by all such persons to file the proceedings on their behalf as well. Similarly, the petitioners have also not paid the requisite court fee on behalf of all such members, but for having effected a sum of Rs. 300 in respect of the three petitioners. Schedule II, 11(1)(iii) under the Kerala Court Fees and Suit Valuation Act clearly stipulates that the court fee payable in respect of the writ petition filed before the High Court is Rs. 100 per petitioner. If any relief is claimed by several persons, the court fee payable shall be Rs. 100 by each such person. In the instant case, the specific contention of the respondents is that, while challenging the legislative competence behind sub-section (5A) to demand fee for renewal of registration, admittedly since the writ petition has been filed on behalf of all the members of the first petitioner - association, who are enlisted in exhibit P2, the proceedings cannot be held as legally maintainable in respect of all such persons, unless requisite court fee is paid by all the members as aforesaid. The legal position in this regard has already been made clear by this court in Mathew v. Edathua Panchayat [1988] 2 KLT 329. It becomes more clear from the verdict passed by a Division Bench of this court in W.A. No. 1164 of 2002 and connected cases reported in [2008] CDJ 803 (Ker), where the matter was entertained only after collecting the requisite court fee from all the members, who were stated as the beneficiaries and pursuant to the order granting permission to prosecute the writ petition in a representative capacity on behalf of all such persons. Since the petitioners have not chosen to produce the requisite materials authorising them to file the writ petition in a representative capacity, nor have they filed any proceedings for obtaining permission in this regard and further since no separate court fee in respect of all the members enlisted in exhibit P2 has been paid, the writ petition is not at all maintainable in respect of all other members, who are enlisted in exhibit P2 and the matter is being dealt with and confined to the petitioners alone. Merits having already been answered against the petitioners, the writ petition fails and it is dismissed accordingly.