1 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. 2 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 3 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 4 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 5 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 6 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 7 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 sub- section (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 sub- section 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 8 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 sub- sections (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 9 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 10 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; 11 (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). 12 (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 13 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 14 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 sub- section (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) 15 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. 16 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 17 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 18 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 19 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 20 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 21 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. 22 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 23 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 )