# Court in Ganesh Trivedi v. Sundar Devi

- **Citation:** (2005) 3 ILRA 1039
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-10-05
- **Case number:** Civil Misc. Writ Petition No. 25946 of 2003
- **Bench:** Amitava Lala, Sanjay Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/court-in-ganesh-trivedi-v-sundar-devi-40577
- **Pages:** 6

## Headnote

1040 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
S.C.

Motor Vehicle Act 1988-Section-80 (3)-
demand of additional tax-for the portion
of rout granted extension-in absence of
statutory provision-state can not charge
any tax or fee, particularly where the
proposed distance of the extension of
rout are within 24 kms.-fee can be
collected on the principle of "quid pro
quo" explained.

Held Para 7, 8 & 9

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
kilometers
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.

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, 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.
Case law discussed:
AIR 1971 SC-517
AIR 1984 SC-9
AIR 1992 SC-2038
1997 (1) UPLBEC-99
2005 (4) SCC-245

(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.-1. 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.

## Text

3 All] Shri Niwas Budhaulia & ors. V. The Secretary, Regional Transport Authority & ors. 1039
dispute and deponent was residing with
her grand-father hence after his death she
became valid tenant of the house in
dispute.
Para-9 of the affidavit is
translated below:

"That as Shamim Hussain neither
ever resided in the house in dispute nor he
was ever tenant thereof nor he ever gave
possession of the said house to any other
person"

8. After this clear admission of the
petitioner there romaine no doubt that the
house was rightly deemed to be vacant by
R.C. & E.O.

9. Absolutely no fault can be found
with the residence of the petitioner in the
house in dispute along with her grant
father who was the tenant as every tenant
is fully authorized to keep with himself
such of his relations which may not be his
family members. However, after the death
of the tenant, tenancy devolves only on
such heirs who normally resided with
him. Any other relation who may be
legally entitled to reside with the tenant in
the tenanted house during the life time of
the tenant does not become tenant after
the death o the original tenant unless he or
she is tenant's legal heir also. Supreme
Court in Ganesh Trivedi Vs. Sundar Devi
A.I.R. 2002 S.C. 676 held that real
brother was not included in the definition
of family as provided under Section-3 (g)
of U.P. Act No. 13 of 1972 however, he
could very well reside with his brother
tenant in the tenanted accornmodation. It
has further been held in the said authority
that in case such brother is heir of the
tenant then after the death of the tenant he
becomes tenant by virtue of the definition
of the tenant given under Section3 (a) of
the Act. In the instant case petitioner not
being the heir of original tenant she could
therefore reside along with tenant during
his life time but she did not become tenant
after the death of the original tenant Abid
Hussain, petitioner's grand father.

10. As the averments made by the
petitioner
herself
in
her
affidavit
completely prove vacancy hence no fault
can be found with the order passed by the
R.C. & E.O. The said affidavit is like a
self goal'.

11. Accordingly, there is not merit
in the wit petition hence it is dismissed

12. Tenants-petitioner is granted six
months time to vacate provided that
within one month from today she files an
undertaking before R.C.& E.O. that on or
before that expiry of six months she will
willingly vacate and handover possession
of the properly in dispute to the landlordrespondent no.2.
 Petition dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.10.2005

BEFORE
THE HON'BLE AMITAVA LALA, J.
THE HON'BLE SANJAY MISRA, J.

Civil Misc. Writ Petition No. 25946 of 2003

Shri Niwas Budhaulia and others

 ...Petitioners
Versus
The
Secretary,
Regional
Transport
Authority, and others
 ...Respondents

Counsel for the Petitioners:
Sri H.P. Shukla

Counsel for the Respondents:
Sri R.K. Awasthi
Ms. Nand Prabha Shukla
1040 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
S.C.

Motor Vehicle Act 1988-Section-80 (3)-
demand of additional tax-for the portion
of rout granted extension-in absence of
statutory provision-state can not charge
any tax or fee, particularly where the
proposed distance of the extension of
rout are within 24 kms.-fee can be
collected on the principle of "quid pro
quo" explained.

Held Para 7, 8 & 9

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
kilometers
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.

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, 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.
Case law discussed:
AIR 1971 SC-517
AIR 1984 SC-9
AIR 1992 SC-2038
1997 (1) UPLBEC-99
2005 (4) SCC-245

(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.-1. 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.

2. 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
3 All] Shri Niwas Budhaulia & ors. V. The Secretary, Regional Transport Authority & ors. 1041
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.

3. 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."

4. 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
1042 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
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."

5.

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.

6. 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
3 All] Shri Niwas Budhaulia & ors. V. The Secretary, Regional Transport Authority & ors. 1043
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.

7. 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
1044 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
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.

8. 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).

9. 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
Petition allowed.
---------