Mutation fees are fees properly so-called and not taxes. The Municipal Corporation cannot impose a tax in the garb of mutation fees. The State Government cannot delegate its power to impose a tax to the Municipal Corporation.

( 1 ) THIS is a writ petition challenging the imposition of mutation fees upon the writ petitioner by the Calcutta Corporation.

( 2 ) BEFORE the introduction of the impugned Regulations of 1989, the Municipal Authorities charged nominal mutation fees. These fees have been provided for since 1980, (which is the year of the currently operative Municipal Act in Calcutta) in Section 183 of the Act.

( 3 ) MUTATION, simply put, is the process of change of the name of the owner in the books of the Municipal Authorities. Under the aforesaid Section notice of transfer of ownership is to be given, and if notice is not given, the erstwhile owner will be liable for rates as owner notwithstanding transfer of ownership.

( 4 ) SECTION 193 of the Act provides that the primary liability for payment of rates and taxes for buildings vests with the owner.

( 5 ) THE Municipal Authorities, by the process of mutation, have the advantage of keeping their books and records upto-date and of serving notice upon the person primarily liable for the payment. The owner of the property, in his turn, gets the benefit of having notice of the owner's liability and by making punctual payment can keep his property clear of all Corporation dues.

( 6 ) APART from these the mutation of name in the books of the Municipal Authorities hardly serves any other or different purpose. It is well-known that the Municipal records are not such records as affect title to immoveable property.

( 7 ) IN 1989, in exercise of the power conferred by Section 602 of the said Act, after approval of the State Government as per Section 604, the Municipal Corporation made the impugned Regulations published under Notification dated 29-12-89, terming those"the Calcutta Municipal Corporation (Taxation) Regulations 1989".

( 8 ) THE Regulations would be found set out at pages 73 and 74 of the writ petition.

( 9 ) THE Scheme of the introduction of mutation fees as per these Regulations is, however, very simple, in so far as the arithmetic is concerned. If the ownership changes because of intestate succession, the maximum fees, as per these Regulations is Rs. 250/- only, as per item 3 of the Schedule of the said Regulations.

( 10 ) HOWEVER, as per items 1 and 2 of the said Schedule, in cases of sale, testamentary succession or such transfers as by Deed of Lease, the mutation fees are scaled on the price/value of the property.

( 11 ) THE scale ranges from half percent of the price for property valued under Rs. 50,000/- to two and a half percent of the price if the property goes above Rs. 5 lac.

( 12 ) IN the case of the writ petitioners, if their challenge falls, they would have to pay mutation fees of the order of Rs. 3 lac.

( 13 ) THE contrast between the mutation fees as in the case of intestate succession and in case of purchase by Deed is very stark. The difference is the difference between a few hundreds of rupees and several lacs of rupees.

( 14 ) MR. Ghosh appearing for the writ petitioner challenged the Regulations and the incidence of the mutation fees upon his clients on primarily this ground that the mutation fees are in the nature of fees only. According to him such fees cannot be given, by the Regulations of the Municipal Authorities the status of a tax. Mr. Ghosh drew a distinction, basing it upon a long line of decisions, between tax and fees. He submitted that taxation is a cumpulsory levy, as permitted by the Constitution, to be imposed by or by authority of the Central or the State legislature, as the case may be, for which there is not necessarily a specific return made by the imposing Government to the very same class of persons from whom the tax is taken. On the basis of taxation the Country and the State run.

( 15 ) HOWEVER, fees are different. There is not so much vigil to be kept about the power of imposition of fees as is to be kept in the matter of the power of imposition of tax; this is because fees are charged by the Government in return