H. G. BALAKRISHNA, J.

( 1 ) THE petitioners have sought for a declaration that Rule 8 of the Bangalore Development Authority (Allotment of Sites) Rules, 1984 providing for levy of Registration fee is ultra vires and unconstitutional and for a declaration that the Bangalore Development Authority has no authority of law to collect application fee for allotment of sites. They have also sought for a direction to respondent-1 to refund to the concerned general public all the amounts received by it in the form of registration fee and application fee under the impugned rule.

( 2 ) UNDER Section 69 of the Bangalore Development Authority Act, 1976 (hereinafter referred to as 'the Act'), respondent-2 which is the State of Karnataka has framed rules called the Bangalore Development Authority (Allotment of Sites) Rules, 1984 (hereinafter referred to as 'the Rule' ). Rules 8 and 9 of the Rules read as follows:- "8. REGISTRATION:- (1) Every applicant for a site shall register his name on payment of registration fees as specified in the table below. If an applicant withdraws the registration the Authority shall refund to such applicant the entire registration fee paid by him after deducting ten per cent of the registration fee towards service charges. The Registration shall be done in Form No. I. TABLE area of the Site in Sq. Metres registration fee (a) 350 and above rs. 2000 (b) 225 and above but below 350 rs. 500 (c) Below 225 rs. 100 (2) Registration made shall be valid for subsequent allotments unless the applicant has withdrawn the registration. 9. APPLICATION:- (1) A person so registered as above has to apply in the prescribed Form II for allotment of a site along with the initial deposit of 121/2% of the notified cost of the site. The initial deposit shall be 5% in the case of persons applying for sites under the categories of Scheduled Castes, Scheduled Tribes and Backward Tribes. (2) The applications shall be presented in person or sent by registered post so as to reach the office of the Authority before the date and time fixed for the receipt of such applications. Applications received after the date and time fixed or which are defective and incorrect shall be rejected. (3) In a case where applications have already been made for allotment of sites in response to a Notification already issued by the Authority and where the applications are still pending without a decision as to their disposal and fresh applications have been called for, for allotment of further sites, the applicant who has already applied for allotment of a site and paid the initial deposit in response to the first Notification, need not pay once again the initial deposit. However, he should make application in response to the second Notification in Form-II (A) which is appended to these rules. "

( 3 ) THE petitioners state that ever since the establishment of the Bangalore Development Authority ('b. D. A. ' for short) until rules were framed in 1982, respondent-1 was not insisting upon registration and payment of registration fee. The 1982 rules also did not contain any provision for payment of registration fee and for compulsory registration. The petitioners are aggrieved because Rule 8 envisages not only registration of applicant but also payment of registration fee and application fee.

( 4 ) IT is contended by the petitioners that levy of fee or tax should be within the ambit of the 7th Schedule of the Constitution of India. According to the petitioners, List-I of 7th Schedule does not provide for levy of fee in respect of any of the matter in the list. But Lists-I, II and III do not refer to levy of fee for registration and therefore the State Legislature has no power to pass any enactment or frame any rules providing for levy of registration fee. The second contention is that taxes are specifically distributed between the Union and the State Legislature by various entries in Lists-I and II and the residuary power to levy a tax which is not enumerated in any of t

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