WRIT PETITION NO.2547 OF 2007

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2547 OF 2007
Mr Premnath R. Pandey and others ...Petitioners
v/s
The State Transport Authority
and ors. ...Respondents
Mr M.S. Doctor with Mr Ranjit Shetty and Mr
Shailesh Poria i/b M/s Hariani and Co. for
Petitiioners.
Mr S.K. Nair, AGP for Respondents.
CORAM : D.K. DESHMUKH AND R.S. MOHITE JJ.
DATE : 29TH JUNE 2009.
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ORAL JUDGMENT (PER D.K. DESHMUKH J.) :-
1] By this petition, the petitioners who hold
contract carriage permits issued under the Motor
Vehicles Act 1988, challenge the legality and
validity of resolution No.136/2002 dated 12th
September 2002 issued by the Regional Transport
Authority. Paragraphs 1 and 2 are relevant and
they read as under :-
The Authority has seen the applications of
permit holders for extending time limit for
renewal as well as replacement of vehicle
which have been forwarded after due
recommendations of RTO (Central, West,
East).
As the reasons given by permit holders for
delay caused for renewal of permit and
replacement of vehicle were found to be
satisfactory and considering the
recommendations of the concerned RTO, the
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Authority has decided to extend the time
limit for renewal of permit and for
replacement of vehicle by three months
after charging Rs.200 per month as
compounding fees as per the decision taken
in the meeting held on 31.01.2001 of RTA.
Thus, by this resolution, fee is prescribed
for condoning delay in making application for
renewal of contract carriage permit at the rate of
Rs.200/- per month as also fee is to be charged at
the same rate for condoning delay in making an
application for replacement of a vehicle. The
last paragraph of the resolution gives the period
and rates of fees which are termed as
compounding fees to be charged for condoning
delay in making an application for renewal of
permit or delay in making application for
replacement of a vehicle in relation to the
autorickshaw and taxi. The short challenge of the
petition is that there is no power given by the Act
or the Rules to the Regional Transport Authority to
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levy compounding fees for condoning delay in making
an application for renewal of permit. It is also
the case of the petitioners that under the law,
there is no time limit fixed for replacing a
vehicle and therefore there is no question of there
being delay in replacing a vehicle and therefore,
there is no question of charging compounding fee in
relation thereto. The learned counsel appearing
for petitioners submits that the provisions of the
Act and the Rules show that there is power to levy
fees while granting permit as also for renewal of
permit. There is power vested in the Authority for
condoning delay in making an application for
renewal of permit but there is no provision made in
the Act or the Rules authorising the Authority to
levy fees while condoning delay in making an
application for renewal of permit. The learned
counsel submits that under the Act, power to levy
fees is vested in the rule making authority only
and that rule making authority is vested by the Act
only in the State Government. In other words, in
the scheme of the Act, fees can be levied validly
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only by the State Government by framing rule which
is subject to the condition of previous
publication. The learned counsel submits that the
Regional Transport Authority does not have power
firstly to frame Rules and secondly to levy fees in
the absence of any rule framed by the State
Government.
2] The learned counsel appearing for
respondents, on the other hand, relies on the
provisions of rule 63 of the Maharashtra Motor
Vehicles Rules 1989 and the provisions of rule 64
to say that power is vested in the Authority to
grant permit, to renew permit, to condone delay in
making application for renewal of permit as also
for replacement of the vehicle. The learned
counsel submits that these powers imply authority
in these Authorities to levy fees for condoning
delay in making an application for renewal of a
permit. The learned counsel for respondents relied
on two judgments of the Supreme Court, one in the
case of The Quarry Owners Association v/s The State
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of Bihar and others, reported in AIR 2000 SC 2870
and other in the case of Dr (Mrs) Sushma Sharma and
others v/s State of Rajasthan and others, reported
in AIR 1985 SC 1367.
3] Now, in the light of these rival
submissions if the record of the case is perused,
it becomes clear that by the impugned resolution,
fee is being charged at the rate of Rs.200/- p.m.
in relation to contract carriage permit for
condoning delay in making an application for
renewal of a permit as also for replacement of
vehicle. Perusal of the provisions of the Act
shows that it is section 81 which deals with
duration of a permit. Sub-section (1) lays down
that a permit issued, which is not a temporary or a
special permit, shall be effective for a period of
five years. Sub-section (2) deals with an
application for renewal of permit which is to be
made at least 15 days before the date of its
expiry. Sub-section (3) deals with power of the
Regional Transport Authority or the State Transport
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Authority to entertain an application for renewal
of permit after the period specified in sub-section
(2) of section 81 is over. Sub-section (3)reads as
under :-
Notwithstanding anything contained in subsection
(2), the Regional Transport
Authority or the State Transport Authority,
as the case may be, may entertain an
application for the renewal of a permit
after the last date specified in that subsection
if it is satisfied that the
applicant was prevented by good and
sufficient cause from making an application
within the time specified.
Sub-section (4) of section 81 deals with as
to how power for renewal of permit is to be
exercised. Perusal of provisions of section 81
shows that there is no provision made for levy of
any fee for entertaining an application for renewal
of permit which is made beyond the time specified
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in section 81(2). Section 96 deals with rule
making power of the State Government. Clause (vii)
of sub-section (2) of section 96 empowers the State
Government to frame rules prescribing the fees to
be paid in respect of application for permits,
duplicate permits and plates. Section 211 and subsections
(1) and (2) of section 212, in our
opinion, are relevant, they read as under :-
211. Power to levy fee - Any rule which
the Central Government or the State
Government is empowered to make under this
Act may, notwithstanding the absence of any
express provision to that effect, provide
for the levy of such fees in respect of
applications, amendment of documents, issue
of certificates, licences, permits, tests,
endorsements, badges, plates,
countersignatures, authorisation, supply of
statistics or copies of documents of orders
and for any order purpose or matter
involving the rendering of any service
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by the officers or authorities under this
Act or any rule made thereunder as may be
considered necessary;
212. Publication, commencement and laying
of rules and notifications (1) The power
to make rules under this Act is subject to
the condition of the rules being made after
previous publication.
(2) All rules made under this Act shall be
published in the Official Gazette and shall
unless some later date is appointed, come
into force on the date of such
publication.
Perusal of the above quoted two provisions
makes it clear that the fees can be levied under
the Act only by framing rule either by the Central
Government or by the State Government and any rule
framed under the Act is subject to the requirement
of previous publication as also to the condition of
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publication in the Official Gazette after it is
framed. Perusal of rule 75 of the Maharashtra
Motor Vehicles Rules 1989 shows that the fees can
be levied under the Act in relation to permits.
Rule 75 reads as under :-
75. Permit fees (1) Subject to the
provisions of this Rule, the fees in this
respect of an application, shall be
(a) for the grant and renewal of a permit
or a countersignature for the Metered Motor
Cab one hundred rupees;
(b) for the grant and renewal of a permit
or a countersignature for non Metered Motor
cab one hundred and fifty rupees;
(c) for the grant and renewal of a permit
or a countersignature for maxi Cab one
hundred and fifty rupees;
(d) for the grant and renewal of a permit
or a countersignature for contract carriage
other than mentioned in clauses (a), (b)
and (c) of this rule rupees two hundred;
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(e) for the grant and renewal of a permit
or a countersignature for stage carriage
two hundred rupees;
(f) for the grant and renewal of a permit
or a countersignature for goods carriage
two hundred rupees;
(g) for the grant and renewal of a permit
or a countersignature for private service
vehicle two hundred rupees.
(2) The fees in respect of an application
for a permit, for a tourist vehicle shall
be (three hundred rupees) and the fee for
the renewal of such permit shall be (three
hundred rupees).
(3) The fees in respect of an application
for a national permit shall be (three
hundred rupees) and the fee for the renewal
of such permit shall (three hundred
rupees).
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(4) The fee in respect of an application
for a temporary permit or countersignature
on a temporary permit shall be (hundred
rupees) for each calendar month or part
thereof in respect of each vehicle.
(5) The fee in respect of an application
for replacement of a vehicle covered by a
stage carriage permit, goods carriage or a
contract carriage permit, to which the
provisions of sub-rule (3) of Rule 88
apply, shall be (hundred rupees).
Perusal of rule 75(1) shows that for the
grant and renewal of a permit for contract carriage
, Rs.200/- can be charged as fees. Sub-rule (5) of
Rule 75 deals with charging of fees in respect of
an application for replacement of a vehicle in
certain categories. In other words, rule 75 does
not contemplate a fee being charged for making an
application for replacement of a vehicle in all
cases. Rule 85 makes a specific provision in
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respect of renewal of permits and provides for
payment of fees alongwith the application. Rule 85
reads as under :-
85. Renewal of permits (1) An
application for the renewal of permit shall
be made in writing to the State Transport
Authority or the Regional Transport
Authority, as the case may be, by which the
permit was issued and shall be accompanied
by the permit. The application shall state
the period for which the renewal is desired
and shall be accompanied by the fee
prescribed in Rule 75.
Thus, neither in rule 75 nor in rule 85,
fee is prescribed for entertaining the application
for renewal of a permit beyond the period laid down
in section 81(2) of the Act.
Though it was not argued, the learned
counsel appearing for petitioners pointed out that
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in the reply filed on behalf of the respondents,
reliance has been placed in support of their power
to levy compounding fees on the provisions of
section 86(5). It reads as under :-
86(5) Where a permit is liable to be
cancelled or suspended under clause (a) or
clause (b) or clause (e) of sub-section (1)
and the Transport Authority is of opinion
that having regard to the circumstances of
the case, it would not be necessary or
expedient so to cancel or suspend the
permit if the holder of the permit agrees
to pay a certain sum of money, then
notwithstanding anything contained in subsection
(1), the Transport Authority may,
instead of cancelling or suspending the
permit, as the case may be , recover from
the holder of the permit the sum of money
agreed upon.
Perusal of the provisions of section 86(5)
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shows that the Transport Authority can instead of
cancelling or suspending the permit, recover from
the holder of the permit the sum of money agreed
upon. Therefore, this provision contemplates an
agreement between the permit holder and the
Authority in relation to the sum to be charged.
This will not give authority to the Regional
Transport Authority to issue a resolution laying
down uniform fees to be charged in case of delay.
What is further to be seen here is that the
provisions of section 86(5) comes into play when a
licence is to be cancelled or suspended. It
contemplates a live licence. In case of renewal,
when an application is made beyond the time limit
prescribed by section 81(2) of the Act and the
permit itself is not in force and what is done
under section 81(3) is delay in making application
for renewal of permit is condoned. Therefore,
section 86(5) does not at all apply for application
of renewal which is made beyond the time specified
under section 81(2) of the Act. Rule 88 deals
with replacement of a vehicle covered by a permit.
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It reads as under :-
88. Replacement of a vehicle covered by a
permit - (1) If a holder of permit
desires at any time to replace any vehicle
covered by the permit by another vehicle,
he shall forward the permit and apply in
Form M.V. Rep. A of the First Schedule to
the Transport Authority by which the permit
was granted, stating the reasons why the
replacement is desired and shall also
simultaneously -
(i) if the replacer vehicle is in his
possession, forward the certificate of
registration of that vehicle; or
(ii) if the replacer vehicle is not in his
possession, state any material particulars
in respect of which the replacer vehicle
shall differ from the vehicle to be
replaced.
(2) On receipt of an application under
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sub-rule (1) the Transport Authority may,
subject to the provisions of sub-rule (3)
and after ensuring that the other
conditions for granting a permit are
fulfilled, grant permission for such
replacement.
(3) The Transport Authority may, for
reasons to be recorded and communicated to
the applicant, reject any application made
to it under sub-rule (1) if the holder of
the permit has contravened any provisions
thereof or has been deprived of possession
of the vehicle proposed to be replaced
under any hire purchase agreement.
Perusal of rule 88 shows that an
application for replacement of a vehicle which is
mentioned in a permit can be made at the volition
of the permit holder. The rule shows that there is
no provision made for payment of any fee for making
an application for replacement of a vehicle. It
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does not show that any time limit is fixed for
replacing the vehicle in relation to which an
application for replacement is made. The learned
counsel appearing for respondents was also not able
to point out any provision which lays down that
after replacement of vehicle is permitted, the
replacement should take place within a specified
time. The learned counsel appearing for
petitioners rightly submitted that if there is no
provision of law obliging the person who has
secured an order for replacement of a vehicle to
replace the vehicle within a specified time, then
there is no question of condoning delay in
replacing the vehicle and charging fees for it. So
fa as reliance placed by the learned counsel
appearing for respondents on the provisions of Act,
those provisions confer power on the Authority to
grant permits, to renew permits, to condone delay
in making application for renewal of permit. They
also empower the Authority to permit replacement of
vehicle. But, under the provisions of the Act,
power to levy fees is vested in the State
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Government and the State Government can exercise
that power only by framing a rule. Article 265 of
the Constitution of India lays down that no tax
shall be levied or collected except by authority of
law. It is settled law that what is said about the
tax in Article 265 is applicable with equal force
in relation to the fees. The authority given by
the Motor Vehicles Act 1988 for levy of fees is to
the State Government, to be exercised by framing a
rule. By any other method, a fee under the Act
cannot be levied. The observations made by the
Supreme Court in paragraphs 7 and 8 of its judgment
in the case of Ahmedabad Urban Development
Authority v/s Sharadkumar Jayantikumar Pasawalla
and others, reported in (1992) 3 SCC 285 are
relevant. They read as under :-
7.After giving our anxious consideration
to the contentions raised by Mr Goswami, it
appears to ujs that in a fiscal matter it
will not be proper to hold that even in the
absence of express provision, a delegated
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authority can impose tax or fee. In our
view, such power of imposition of tax and /
or fee by delegated authority must be very
specific and there is no scope of implied
authority for imposition of such tax or
fee. It appears to us that the delegated
authority must act strictly within the
parameters of the authority delegated to it
under the Act and it will not be proper to
bring the theory of implied intent or the
concept of incidental and ancilary power in
the matte of exercise of fiscal power. The
facts and circumstances in the case of
District Council of Jowai are entirely
different. The exercise of powers by the
Autonomous Jaintia Hills Districts are
controlled by the c onstitutional
provisions and in the special facts of the
case, this Court has indicated that the
realisation of just fee for a specific
purpose by the autonomous District was
justified and such power was imploied. The
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said decision cannot be made applicable in
the facts of this case or the same should
not be held to have laid down any legal
proposition that in matters of imposition
of tax or fees, the question of necessary
intendment may be looked into when there is
no express provision for imposition of fee
or tax. The other decision in Khargram
Panchayat Samiti case also deals with the
exercise of incidental and consequential
power in the field of administrative law
and the same does not deal with the power
of imposing tax and fee.
8. The High Court has referred to the
decisions of this Court in Hingir case and
Jagannath Ramanuj case and Delhi Municipal
Corporation case. It has been consistently
held by this Court that whenever there is
compulsory exaction of any money, there
should be specific provision for the same
and there is no room for intendment.
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Nothing is to be read and nothing is to be
implied and one should look fairly to the
language used. We are, therefore, unable
to accept the contention of Mr Goswami.
Accordingly, there is no occasion to
interfere with the impugned decision of the
High Court. The appeal, therefore fails
and is dismissed with no order as to
costs.
In our opinion, therefore, the Regional
Transport Authority had no power to issue the
Resolution which is challenged in the petition
levying compounding fee for entertaining
application for renewal of permit after expiry of
the period mentioned in section 81(2) of the Act or
for permitting replacement of the vehicle after
expiry of the time.
4] In the result therefore, the petition
succeeds and is allowed, rule is made absolute in
terms of prayer clause (b). If the petitioners are
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entitled to refund of any compounding fees paid by
them under the Resolution, which is set aside by
this order, the petitioners shall be free to make
application to the appropriate authority who has
recovered the fees and in case such application is
made, it shall be dealt with in accordance with law
and decided within a period of six weeks from the
date of receipt of the application.
Parties to act on the copy of this order
duly authenticated by the Associate / Private
Secretary of this Court.
Certified copy expedited.
( JUSTICE D.K. DESHMUKH )
( JUSTICE R.S. MOHITE )