JUDGMENT C. S. P. Singh, J. - The petitioners who are four in number, own a number of public service transport vehicles registered with the State Transport Authority at Allahabad. They challenge a set of three Transit Fee Rules framed in 1971. These rules have been framed by the State Government under the purported exercise of powers under Sec. 540 of the U. P. Nagar Mahapalika Adhiniyam, 1959, Sec. 296 of the U. P. Municipalities Act, and Sec. 39 of the U. P. Town Areas Act respectively. The occasion for challenging these rules by the petitioners arose thus. The petitioners transport goods within the State as also outside the State. When the vehicles owned by them pass through local areas falling within a Nagar Mahapalika, Municipality or a Town Area, they are required to pay an amount of Rs. 2.50 per vehicle irrespective of the fact as to whether or not til goods are unloaded in the local limits of the local bodies. It is averred by the petitioners that where goods are carried over long distances, the petitioners have to pay transit fee to 20 to 30 local bodies, and this charge is levied as soon as the vehicles reach the check post of a local authority, and is made for merely passing through the limits of the local area. No service of any particular kind is rendered by these local authorities and the charge is only for passing through the area or areas falling within the jurisdiction of these authorities. 2. Sri B. N. Asthana, learned counsel for the petitioner has contended that the State Government does not have any power either under the Nagar Mahapalika Act or the Municipal Act or the Town Areas Act to frame the impugned rules, and as such, the levy is violative of law. It is also contended that the various Acts under which the various local authorities have been constituted, do not confer any power on the local authorities to impose the impugned tax. The last contention is that in any event the impugned tax offends Art. 301 of the Constitution of India. 3. We propose to embark firstly upon the enquiry as to whether the impugned rules could have been framed by the State Government. The impugned rules qua the Nagar Mahapalikas, the Municipalities and the Town Areas are respectively annexures A, B, and C to the petition. 3. We propose to embark firstly upon the enquiry as to whether the impugned rules could have been framed by the State Government. The impugned rules qua the Nagar Mahapalikas, the Municipalities and the Town Areas are respectively annexures A, B, and C to the petition. These rules in the said annexures are similar. The Transit Fee Rules qua the Nagar Mahapalikas have been framed by the State Government in the purported exercise of powers conferred under Sec. 227 read with Sub-sec. (1) of Sec. 540 of the U. P. Nagar Mahapalika Adhiniyam, 1959. The rules regarding the Municipalities have been framed in the purported exercise of powers conferred by Sec. 296 of the U. P. Municipalities Act, and those under the Town Areas Act under Sec. 39(2) of that Act. In order to resolve this controversy, it is necessary to extract these provisions. 4. Sec. 227 of the U. P. Nagar Mahapalika Adhiniyam runs as follows :- "227. Power to make rules. (1) The State Government may make rules for the purpose of carrying into effect the provisions of this Chapter. (2) Without prejudice to the generality of the foregoing power such rules may provide for - (a) matters referred to in Sec. 219; (b) maintenance and inspection of register regarding taxes on vehicles, oat and animal; (c) table of rates of octroi and toll and their application, maintenance and inspection ; (d) the examination of articles liable to octroi; (e) advance payment of taxes ; (f) summary disposal of objections to distress and attachment; (g) the condition on which exemption and refunds of taxes shall be allowed. Sec. 540(1) of the Adhiniyam is as follows ;- "540. Making of rules by State Government. (l) In addition to the power conferred upon the State Government under the preceding Chapters of this Act to make rules the State Government may make rules to carry out the purposes of the Act and may also make model rules for the guidance of a Mahapalika in any matter connected with the carrying out of the provisions of this or any other enactment. Explanation. The power conferred by this sub-section includes the power to make rules regulating the holding of meetings of the Mahapalika and its Committees and the conduct of business as such meetings till bye-laws are framed under the Act for the purpose. Explanation. The power conferred by this sub-section includes the power to make rules regulating the holding of meetings of the Mahapalika and its Committees and the conduct of business as such meetings till bye-laws are framed under the Act for the purpose. Section 296 of the U. P. Municipalities Act runs as follows:- "296. Obligation and Power of State Government to make rules - (l) The State Government shall make rules consistent with this Act in respect of the matters described in Secs. 95, 127, 153 and 235. (2) The State Government may make rules consistent with this Act. (a) providing for any matter for which power to make provision is conferred expressly or by implication, on the State Government by this or any other enactment in force at the commencement of this Act, and (b) generally for the guidance of a board or any Government officer in any matter connected with the carrying out of the provisions of this or any other enactment relating to municipalities. (c) for the appointment of an ad hoc committee to advise the Board on the preparation of master plan for the municipality and its execution ; and (d) providing for the layout of public streets residential and non-residential areas." Section 39 (2) of the Town Areas' Act is as follows :- "In particular and without prejudice to the generality of the powers conferred by Sub-sec. (1) of this section, such rules may relate to all or any of the following matters or be for all or any of the following purposes:- (a) to regulate and control the powers conferred by this Act or by any rule made under this section on any servant of the Government or on the committee ; (b) to prescribe for any such officer or for the committee any duty in addition to those prescribed by this Act; (l) to regulate the imposition, assessment and collection of any tax imposed under this Act, and to prevent the evasion of the same ; 5. At the outset we may point out that in considering the question as to whether the State Government has the power to make the impugned rules under the provisions set out above, it is necessary to keep in mind the limitations regarding the imposition of tax by a subordinate legislative body. At the outset we may point out that in considering the question as to whether the State Government has the power to make the impugned rules under the provisions set out above, it is necessary to keep in mind the limitations regarding the imposition of tax by a subordinate legislative body. In the case of Bimal Chandra Banerji v. State of Madhya Pradesh, A.I.R. 1971 S.C. 517, their Lordships of the Supreme Court observed on page 529 as under :- "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 conferred by the Statute cannot 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." 6. Rules under Sec. 227 of the Nagar Mahapalika Adhiniyam can be made only for purposes of carrying into effect the provisions of Chapter IX. So far as rules under Sec. 540 are concerned, they confer additional power on the State Government to make rules for carrying out the purposes of the Act. Now even if it be assumed that the Nagar Mahapalika could impose the impugned levy, it could do so only by following the procedure set out in Sec. 199 to Sec. 203 of the Act. There is nothing on the record to indicate that the Mahapalikas concerned had imposed the transit fee, and rules were made to give effect to such a proposal. This being so, the State Government could not make the impugned rules by the exercise of its powers under Sec. 227 read with Sec. 540 of the Act. It is also noticeable that the Nagar Mahapalika Adhiniyam confers power on the State Government to impose a tax in case the Mahapalika does not do so after being required to impose a particular tax. This power is to be found in Sec. 205(3) of the Adhiniyam. Before, however, resort to that provision can be made, the State Government must first require the Mahapalika to impose the particular levy. It is only in case it fails to do so that the State Government may pass orders imposing the tax. This power is to be found in Sec. 205(3) of the Adhiniyam. Before, however, resort to that provision can be made, the State Government must first require the Mahapalika to impose the particular levy. It is only in case it fails to do so that the State Government may pass orders imposing the tax. No such request appears to have been made by the State Government in the case and, as such the tax cannot be justified under Sec. 206 of the Nagar Mahapalika Adhiniyam, 1959. Mr. N. D. Pant appearing for one of the Mahapalika sought to justify the levy under Sec. 219 of the. Adhiniyam. Sec. 219, however, does not confer any power on the rule making authority to impose a tax or to fix the rate thereof. All that it is concerned with is to prescribe the mode for assessment, collection, or imposition of the taxes, and the determination of octroi or toll limit. Sec. 219 (b), the other clause of this section, relied upon by Mr. N. D. Pant relates to rules for dealing with evasion of taxes. The present rules go far beyond this. They create the charge itself. In the face of specific provision in the Adhiniyam for imposition of the tax and the procedure to be followed before such imposition is made, it is not possible to read either Sec. 219 or Sec. 227 as conferring power on the State Government to impose a levy in the exercise of its rule making power. The learned Advocate General appearing on behalf of the State Government urged that the imposed rules are rules relating to the assessment and collection of octroi or toll, and transit fee is nothing but an octroi, or a toll. There is considerable controversy between the parties about the true nature of the levy. It was contended for the petitioner that the impugned levy is neither an octroi nor a toll. It is not necessary to resolve this controversy, for even if it be taken that the levy is an octroi or a toll, it is, nevertheless, a fresh levy. This being so before rules on the subject could be made by the State Government a valid imposition in accordance with the provisions of Secs. 199 to 203 of the Mahapalika Adhiniyam had to be made before rules on the subject could be made by the State Government. This being so before rules on the subject could be made by the State Government a valid imposition in accordance with the provisions of Secs. 199 to 203 of the Mahapalika Adhiniyam had to be made before rules on the subject could be made by the State Government. It was also suggested by the learned Advocate General that the rules in any event, would be covered by Sec. 219 (b). The power conferred by Sec. 219(b) is only for the purpose of framing such rules as would prevent a person liable to tax to evade it. That is to say, such rules as would act as a check against the evasion of taxes. The content of rules framed under Sec. 219(b) would, for instance, provide for setting up of barriers and check posts, within the area under the jurisdiction oF the local authority for seeing that the necessary taxes have been paid; or for filing of returns etc. in relation to the taxes; or the adoption of all such measures as would be conducive to this result. No independent power of taxation can be read into this provision. Coming, however, to Sec. 296 of the Municipalities Act, it will be noticed that under this provision also the rules have to be made consistent with the Act. Under Sec. 296 (1) rules consistent with the Act can be made in respect of matters set out in Sec. 95. 123, 127 and 225. Sec. 123 of the Municipalities Act relates to rules of assessment, collection of taxes and other matters. Thus, under Sec. 296(1) rules could be framed in respect of matters set out in Sec. 123 of the Municipalities Act. Sec. 123 (a) and (b) of the Municipalities Act are in pari materia with Sec. 219 of the Nagar Mahapalika Adhiniyam. The Transit Fee Rules framed for the Municipalities are in pari materia with the rules framed for the Mahapalikas. This being so, the reasons given for holding that the impugned levy would not be justified under Sec. 219 of the Adhiniyam holds good for rules framed for the municipalities. The provisions for the imposition of levies set out in Sec. 128 of the Municipalities Act is similar to the provisions contained in the Adhiniyam, and is set out in Secs. 131 to 135 of the Municipalities Act. The provisions for the imposition of levies set out in Sec. 128 of the Municipalities Act is similar to the provisions contained in the Adhiniyam, and is set out in Secs. 131 to 135 of the Municipalities Act. Under the Municipalities Act as in the Adhiniyam, the State Government can impose a tax only in case the Board does not comply with an order of the State Government under Sec. 130-A to impose a tax. As in the case of Mahapajikas, there is no allegation that the State Government had asked the Municipalities to impose the present levy and they had refused to do so. The position under the Town Areas Act also appears to be similar. The rules under Sec. 39 can be made only for carrying out the purpose of the Act. Sec. 14 of the Town Areas Act sets out the tax which can be imposed by the Town Areas. Secs. 15 to 15-A and 15-B set out the procedure for imposition of taxes. None of these sections confers power on the State Government to levy the tax set out in Sec. 14 of the Act, independently of the Town Area Committee. The impugned levy, as is apparent, has been made by the State Government on its suo motu. Thus, the transit fee for Town Areas cannot also be justified under Sec. 39 (2) of the Act, for the rules cannot be said to have been made for carrying out the purposes of the Town Areas Act. 7. It was also urged that the present levy is nothing but the octroi or toll tax, as the amount of the levy is regulated by the amount of octroi or toll tax chargeable by the Nagarpalikas. It is undoubtedly true that under the rules, the quantum of transit fee varies with the amount of octroi or toll tax charged by the local authorities; but that by itself cannot convert the fee into an octroi or a toll tax. Clause (2) of the Rules imposes the transit fee only in those local authorities where toll tax or octroi tax is being charged. This indicates that the levy is something apart from these two impositions. The provision that it will be equal to the octroi or the toll tax, is for quantifying the levy. 8. Clause (2) of the Rules imposes the transit fee only in those local authorities where toll tax or octroi tax is being charged. This indicates that the levy is something apart from these two impositions. The provision that it will be equal to the octroi or the toll tax, is for quantifying the levy. 8. The learned counsel for the respondents has also urged that the Transit Fee Rules were framed because of the fact that various municipalities were charging different rates of toll tax and the procedure for collection of octroi and toll tax was such that it led to evasion of tax and that was the main reason for framing uniform rules for all the municipalities. Counsel for the respondent urged that the rules were framed because complaints were received that some municipalities were levying a heavy toll tax on goods which merely passed through the municipalities, and further, that the procedure for collection of octroi and toll tax was such that it led to evasion. It was stated that the rules were framed after inviting objections and with a view to fixing uniform rate for all municipalities. The object may be laudable, but in these petitions we are primarily concerned with the legality of the levy, which we are unable to find. We are, therefore, of the view that the impugned levy could not be imposed by the State Government in exercise of its rule -making powers. 9. The levy cannot also be sustained on the ground that it is a fee firstly, because even if it is a fee, it has to be imposed by the local authority itself, and it is only then that appropriate rules can be framed by the State Government. Secondly, there is no element of quid pro quo for the charge. In fact, no serious attempt was made to justify it as a fee. In view of these conclusions it is not necessary for us to examine as to whether the rules infringes Art. 301 of the Constitution. It is also not necessary to consider the question as to whether they can be imposed by the local authorities where the local authorities have not imposed the levy. 10. The petition is accordingly allowed. The impugned Transit Fee Rules are quashed. It is also not necessary to consider the question as to whether they can be imposed by the local authorities where the local authorities have not imposed the levy. 10. The petition is accordingly allowed. The impugned Transit Fee Rules are quashed. The local authorities arrayed as respondents and the State Government of Uttar Pradesh are restrained from collecting any Transit Fee on the strength of these rules. The petitioners are entitled to their costs.