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SHRI NIWAS BUDHAULIA AND OTHERS versus THE SECRETARY, REGIONAL TRANSPORT AUTHORITY AND OTHERS

High Court of Judicature at Allahabad

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Shri Niwas Budhaulia And Others v. The Secretary, Regional Transport Authority And Others - WRIT - A No. 25946 of 2003 [2005] RD-AH 4080 (5 October 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Reserved

Civil Misc. Writ Petition No.   25946  of  2003.

Shri Niwas Budhaulia and others.     ..... ...... .... Petitioners.

Versus

The Secretary, Regional Transport Authority,

Chitrakoot Dham, Banda and others.  ..... ...... .... Respondents.

----------

Present:

   (Hon'ble Mr. Justice Amitava Lala and Hon'ble Mr. Justice Sanjay Misra)

Appearance:

For the Petitioners : Sri H.P. Dubey.

For the Respondents : Sri R.K. Awasthi, Standing Counsel.

----

Amitava Lala, J.-- These writ petitioners stated that the resolution dated 26th March, 2002 was passed by the Regional Transport Authority extending the permits of the petitioners on various dates on the condition that they shall pay additional tax at the enhanced rate. It is stated that the petitioners have been paying additional tax at the enhanced rate for the portion, for which they have been granted extension, and they are operating their vehicles continuously for the last about one and half years uninterruptedly without any hindrance.

On 31st May, 2003 the petitioners received demand notes dated 24th May, 2003 issued by the respondent no. 1, whereby the petitioners have been directed to deposit Rs. 4800/-, as fee for extension of the route, latest by 31st May, 2003. It was also mentioned in the demand notes that in the event of failure to deposit the said amount, the grant of extension in favour of the petitioners shall be stand cancelled automatically. Demand notes are impugned hereunder. According to the petitioners, no fee can be imposed as against any operators as there is no such provision in the statute. They have jointly submitted a representation and sought extension of time to deposit the sum but the Divisional Commissioner, Kanpur Division, Kanpur/ Chairman, Regional Transport Authority declined to entertain the same.  

The petitioners made the writ petition showing urgency because of time bound programme on the part of the respondents. The petitioners had also no other alternative but to deposit the sum under threat. According to the petitioners, the operation of vehicles on public route is regulated under the provisions of Motor Vehicles Act, 1988. Section 80 (3) of the said Act is as follows:

"80 (3). An application to vary the conditions of any permit, other than a temporary permit, by the inclusion of a new route or routes or a new area or by altering the route or routes or area covered by it, or in the case of a stage carriage permit by increasing the number of trips above the specified maximum or by the variation, extension or curtailment of the route or routes or the area specified in the permit shall be treated as an application for the grant of a new permit:

Provided that it shall not be necessary so to treat an application made by the holder of stage carriage permit who provides the only service on any route to increase the frequency of the service so provided without any increase in the number of vehicles:

Provided further that,--

(i)  in the case of variation, the termini shall not be altered and the distance covered by the variation shall not exceed twenty-four kilometres;

     

(ii)  in the case of extension, the distance covered by extension shall not exceed twenty-four kilometres from the termini,

and any such variation or extension within such limits shall be made only after the transport authority is satisfied that such variation will serve the convenience of the public and that it is not expedient to grant a separate permit in respect of the original route as so varied or extended or any part thereof."

Petitioners contended that due to the need of travelling public they have applied for grant of extension of their routes so as to cover the portions from Rath to Khera and Orai to Jalaun. According to the petitioners, necessary fee can be charged from the operators only in view of the provisions contained under Rule 125 of the Uttar Pradesh Motor Vehicles Rules, 1998. There is no other provision under the Act or Rules, under which fee can be levied for grant of extension of the route. Whenever extension was granted permitting the petitioners to run the vehicles on the extended route, nowhere it was mentioned that any fee shall be imposed and realised from the respective petitioners in lieu of grant of such extension. As per Article 265 of the Constitution of India no tax can be collected except under the authority of law. Expression of "law" is given under Article 13 therein. Numerous decision of the Supreme Court and High Courts expressed clear opinion that a tax within the tax under Article 265 of the Constitution includes "fee" as well. Unless and until there is expressed provision in the statute, no levy of fee can be imposed for extension of such permit, therefore, the impugned demand is totally arbitrary and patently illegal. In AIR 1971 SC 517 (Bimal Chandra Banerjee Vs. State of Madhya Pradesh etc.) it has been held that no tax can be imposed by any bye-law or rule or regulation unless the statute, under which the subordinate legislation is made, specially authorises the imposition even if it is assumed that the power to tax can be delegated to the executive. The basis of the statutory power conferred by the Statute can not be transgressed by the rule-making authority. A rule-making authority has no plenary power. It has to act within the limits of the power granted to it. In AIR 1984 SC 9 (M/s. Shiv Chand Amolak Chand Vs. The Regional Transport Authority and another) we find that in discussing similarly placed section as available earlier under Sub-section (8) of Section 57 of the Motor Vehicles Act, 1939 the Supreme Court held that where an application merely seeks a short extension of the route specified in the permit, it would not be appropriate to say that it is an application for grant of a new permit, though technically the extended route may not be regarded as the same as the original route and where such is the case, it would not be necessary to comply with the procedure. Such Sub-section (8) of Section 57 is quoted hereunder:

"(8)  An application to vary the conditions of any permit, other than a temporary permit, by the inclusion of a new route or routes or a new area or, in, the case of a stage carriage permit, by increasing the number of trips above the specified maximum or by altering the route covered by it or in the case of a contract carriage permit or a public carrier's permit, by increasing the number of vehicles covered by the permit, shall be treated as an application for the grant of a new permit:

Provided that it shall not be necessary so to treat an application made by the holder of a stage carriage permit who provides the only service on any route or in any area to increase the frequency of the service so provided, without any increase in the number of vehicles."

In AIR 1992 SC 2038 (Ahmedabad Urban Development Authority Vs. Sharadkumar Jayantikumar Pasawalla and others) the Supreme Court held that in a fiscal matter it will not be proper to hold that even in the absence expressed provision, a delegated authority can impose tax or fee. Such power of imposition of tax and/or fee by the delegated authority must be very specific and there is no scope of implied authority for imposition. Delegated authority must act 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 ancillary power in the matter of exercise of fiscal power.    

The respondents contended that as per Section 80(3) of the aforesaid Act for extension or curtailment of route/routes or the area specified in the permit shall be treated as an application for grant of a new permit. Section 80 (3) is the substantive provision, which permits the extension and the application has to be treated as an application for grant of new permission. Law deems that the extension of existing route amounts to grant of a new permit. The ratio of AIR 1984 SC 9 (supra) can not be applicable in the case since there was no controversy before the Supreme Court regarding payment of fee. Thus, the proposition to hold that the extension of an existing permit would not be a new permit is available therein. The respondents contended that by (1997) 1 UPLBEC 99 (State of U.P. and others, etc. Vs. Smt. Malti Kaul and another, etc.) a Division Bench judgement of our High Court reported in (1995) 2 UPLBEC 974 (Smt. Malti Kaul and another Vs. Allahabad Development Authority, Allahabad and another) was overruled. According to us, the Supreme Court overrided in such judgement the decision of our High Court to the extent that State in exercise of its executive power can not impose any tax or fee in absence of specific statutory provisions authorising such a charge. In such Division Bench judgement the ratio of AIR 1992 SC 2038 (supra) was effectively considered. The Supreme Court held it is settled law that levy of fee is a compulsory exaction for services rendered as quid pro quo. Relying upon a Constitution Bench judgement of the Supreme Court, it was held that fee is levied essentially for the services rendered. In distinguishing AIR 1971 SC 517 (supra) he contended that in such case duty was imposed by means of a notification not by law, therefore, it has exceeded legislative competence of the State. Ultimately, the respondents finished their argument by saying that there is a substantive provision that the extension of a permit is to be deemed as new permit. All formalities of a new permit including the payment of fee has to be completed. The demand is fee not a tax and the same is being charged as a regulatory fee on quid pro quo basis. The learned Standing Counsel relied upon a judgement reported in 2005 (4) SCC 245 (Calcutta Municipal Corpn. and others Vs. Shrey Mercantile (P) Ltd. and others). In paragraph-13 therein the Supreme Court said that the Central point in the entire controversy is whether the impugned imposition is in the nature of "fee" or "tax". The Supreme Court further explained in paragraph-14 that according to Words and Phrases, Permanent Edn., Vol. 41, page 230, a charge or fee, if levied for the purpose of raising revenue under the taxing power, is a "tax". Similarly, imposition of fees for the primary purpose of "regulation and control" may be classified as fees as it is in exercise of "police power", but if revenue is the primary purpose and regulation is merely an incidental then imposition is a "tax". The tax is an enforced contribution expected pursuant to a legislative authority for the purpose of raising revenue to be used for public or governmental purposes and not as payment for a special privilege or service rendered by a public officer, in which case it is a "fee". Generally speaking, "taxes" are burdens of pecuniary nature imposed for defraying the cost of governmental functions, whereas charges are "fees" where they are imposed upon a person to defray the cost of particular services rendered to his account.

According to us, Section 80 (3) of the Act is to be carefully read. First part of such section is making a provision in permitting extension or curtailment of the route as a grant of new permit, but proviso says that if variation is not exceeding 24 kilometres from the terminus then the authority, on an application, will find out whether variation or extension will serve the convenience of the public or not and then allow without treating the same as separate permit. In the instant case, factually 8 Kms. to 22 Kms. are the distances extended on the basis of the applications of the petitioners, therefore, by virtue of such distance being within the 24 Kms. from the terminus the petitioners' cases are squarely covered by the proviso but not by the original part of the provision. In such case question of levy of fees does not arise.

That apart the further question is whether the levy is levy of fees or levy of tax? According to us, the route tax has already been imposed and the authority either recovered or recovering from the respective owners of the transports. Therefore, there can not be further question of tax. The collection of levy has to be treated as fees. Admittedly "fees" can be collected following the principles of quid pro quo, meaning thereby the recovery of fees for the service rendered by the authority. In the present case, no such situation arose. Therefore, "fees", if any, levied by the authority upon the petitioners is nothing but "tax". Hence, the petitioners are victim of double taxation. The same is not permissible under the law. In case of fiscal statute, authority has to be much more careful in connection with imposition of fees, tax, etc. otherwise the same will be treated to be unjust enrichment. In AIR 1984 SC 9 (supra) Section 57 (8) of the old law was exhaustively considered by the Supreme Court and held that short extension of  route can not be construed as a new permit. Section 57 (8) of the old Act is pari materia with Section 80 (3) of the present Act. Therefore, interpretation of the Supreme Court is fully applied in this case. Moreover, this is not a case, whereunder the notice of imposition of levy has been challenged beforehand without payment of the sum. It is a case where the petitioners were forced to make such payment. Therefore, without going into the other controversy whether the essential fiscal provision is inbuilt under the Act in respect of recovery of such fees, we have to hold and say that the authority has no power to levy "fees" over and above tax without quid pro quo as explained by the Supreme Court in AIR 1984 SC 9 (supra).

Hence, we declare that the authority has unjustly enriched themselves by levying fees upon the petitioners. The State has no authority to collect or withhold the said sum. Therefore, the note/ notice of demand to deposit such sum is cancelled. If any one deposited the sum under threat of such notice, the same is refundable and the concerned respondent authority is hereby directed to refund the same at the earliest but not beyond the period of three months from this date. However, since the public exchequer will be affected, no interest is imposed on such refund, if made within the period. But if not, the same will be refunded with the interest at the rate of 12% per annum being simple rate as this Court found reasonable. Thus, the writ petition is allowed.

However, no order is passed as to costs.

(Justice Amitava Lala)

     I agree.

(Justice Sanjay Misra)

Dated: 05.10.2005  

SKT/25946-03.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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