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Madhya Pradesh High Court · body

2008 DIGILAW 698 (MP)

Rakesh Sethi v. State of M. P.

2008-05-15

R.S.GARG, RAJENDRA MENON

body2008
ORDER :- Challenging the validity of R. 55-A inserted in the M.P. Motor Vehicles Rules, 1994 (hereinafter referred to as 'Rules of 1994') vide Notification (Annexure P/1) dated 15-2-2001, petitioner has filed this petition seeking a declaration to the effect that the aforesaid rule is ultra vires to S. 64 read with S. 41 of the Motor Vehicles Act, 1988 (hereinafter referred to as 'Act of 1988') and is also violative of Art. 14, of the Constitution of India. 2. Petitioner claims to be owner of a motor-cycle purchased by him sometime in May, 2004 and for the registration of which the requisite application, in Form No. 20, prescribed under the Rules of 1944 was submitted on 25-5-2004 before respondent No. 4. Vide order dated 27-5-2004, respondent No. 4 rejected the aforesaid application on the ground that prayer made by the petitioner for allotment of registration number 'MP-KL-4646' cannot be accepted, as the petitioner has not paid the requisite fee prescribed for allotment of the aforesaid number. It is the case of the petitioner that instead of allotting the aforesaid number prayed for, petitioner has been allotted number MP20-KL-5100, against his wishes. Inter alia contending that allotment of a particular number on payment of the prescribed fee as provided in Rule 55-A is contrary to and inconsistent to the provisions of S. 41 and the powers conferred on the State Government to frame Rules under S. 65 of the Act of 1988, challenge is made to the amendment incorporated in the Rules of 1994 by the aforesaid notification. 3. Shri Rajendra Tiwari, learned senior Advocate for the petitioner, placing reliance on the provisions of S. 41(2) of the Act of 1988, emphasised that the power to prescribe fee for registration of a motor vehicle is conferred on the Central Government, prescribing a higher fee for registration with an option to seek reservation of a particular number, is beyond the competence of the State Government. Learned senior counsel argued that under S. 64 of the Act of 1988, power to fix the fee and formulate rules for the purposes of registration of motor vehicle is conferred on the Central Government and the State Government under S. 65 of the Act of 1988 is not empowered to fix any fee to be paid for registration of a motor vehicle. It is emphasised by him that the State Government can only make provision with regard to the amount to be recovered under sub-section (13) of S. 41 and not under subsection (1) of S. 41. It is argued that the impugned Notification issued exercising powers under S. 65 read with S. 211 of the Act of 1988 is unsustainable. Shri Rajendra Tiwari, learned senior Advocate, argued that the power under S. 211 can be exercised only for levy of such fee in respect of the various items contemplated therein only when the State Government is empowered under the Act to frame Rules to give effect to the provision for levy of such fee. It was submitted that when the power to levy fee for registration is conferred on the Central Government and when fee is already fixed under R. 81 of the Central Motor Vehicles Rules, 1989, the State Government is not empowered to fix any further fee for the purpose of registration of a motor vehicle by exercising powers under S. 211. Inter alia contending that the fee fixed for allotment of registration mark by permitting reservation of a particular number is unsustainable and beyond the powers vested in the State Government, Shri Rajendra Tiwari, learned senior Advocate, prays for interference into the matter. Further contention is that the guidelines prescribed and the procedure contemplated for reservation of registration numbers is arbitrary and would result in granting undue benefit to certain class of persons and denying benefit to others similarly situated. Accordingly on these grounds learned senior counsel prays for interference into the matter. 4. Shri V.K. Shukla, learned Dy. Advocate General, supports the Notification issued and argued that the same is issued by the State Government by virtue of the powers conferred under S. 65 of the Act of 1988, which empowers the State Government to make Rules with regard to issue or renewal of certificate of registration so also the amounts to be charged for such registration. Inter alia contending that under S. 211, State Government is entitled to levy fee with respect to applications that may be submitted for issuance of certificates, licenses or registration and as the State Government has fixed the procedure for allotment of registration mark by reservation exercising powers under S. 211, Shri Shukla argues that the same is in accordance with law and does not warrant any interference in these proceedings. It was emphasised by Shri V.K. Shukla, learned Dy. Advocate General, that under sub-section (6) of S. 41, the Registering Authority is empowered to assign to any vehicle for display thereon, a distinguishing mark which is known as the registration mark and in this particular case, as R. 55-A only empowers the registering authority to give a particular registration mark, on demand to a person concerned, the power exercised being permissible under sub-section (6) of S. 41, the arguments advanced are refuted and it is submitted by Shri Shukla that the power is properly exercised and the same does not warrant any interference. 5. Shri O. P. Namdeo, learned counsel representing the Union of India, submits that the question of registration of vehicle falls under the purview of the State Government and as the dispute is between the State Government and the petitioner, it is stated in the return that the matter pertains to Government of Madhya Pradesh, and as the petitioner has not sought any relief from the Central Government no direction can be issued to the Central Government. However, in paragraph 5.3 of the return, the following averments are made on behalf of the Union of India : "Every application for registration of motor vehicles should be accompanied with the fees as specified by the Central Government. The Central Government has already specified fees for registration of vehicles under R. 81 of the Central Motor Vehicles Rules, 1989." 6. We have heard the learned counsel for the parties and have considered the rival contentions. 7. Before adverting to consider the same, it would be appropriate to take note of the various statutory provisions which require consideration for determination of the dispute in question. 8. Section 41 of the Act of 1988 contemplates a provision for registration of a motor vehicle and how the same is to be done. Under sub-section (1), an application by or on behalf of the owner of the motor vehicle for registration is to be submitted in such form and is to be accompanied by such documents," particulars and information which the Central Government may prescribe and the application is to be submitted within such period as may be prescribed by the Central Government. Proviso to this subsection provides for submitting an application by one of the owners in case of joint ownership of a motor vehicle. Proviso to this subsection provides for submitting an application by one of the owners in case of joint ownership of a motor vehicle. Sub-section (2) of S. 41, which is relevant for deciding the dispute in question, reads as under : "(2) An application referred to in sub-section (1) shall be accompanied by such fee as may be prescribed by the Central Government." Thereafter, sub-section (6) of S. 41, reliance on which was placed by Shri V.K. Shukla, learned Dy. Advocate General, reads as under : "(6) The registering authority shall assign to the vehicle, for display thereon, a distinguishing mark (in this Act referred to as the registration mark) consisting of one of the groups of such of those letters and followed by such letters and figures as are allowed to the State by the Central Government from time to time by notification in the Official Gazette, and displayed and shown on the motor vehicle in such form and in such manner as may be prescribed by the Central Government." 9. Section 64 confers power on the Central Government to make Rules for matters provided in Cls. (a) to (p) of the said section, and similarly S. 65 empowers the State Government to make Rules for carrying out and giving effect to the provisions of Chapter IV of the Act of 1988, and the matters on which the State Government is empowered to make Rules are contemplated in sub-clauses (a) to (p) of sub-section (2) of S. 65. Clauses (d) and (k) thereof which are relevant for the case in hand read as under : "xxx xxx xxx xxx (d) the issue of renewal of certificates of registration and fitness and duplicates of such certificates to replace the certificates lost, destroyed or mutilated; xxx xxx xxx xxx (k) the amount or amounts under subsection (13) of S. 41 or sub-section (7) of S. 47 or sub-section (4) of S. 49 or sub-section (5) of S. 50. xxx xxx xxx xxx" 10. xxx xxx xxx xxx" 10. Power to levy fee is provided for under S. 211 of the Act of 1988 and according to this section any Rule which the Central Government or the State Government is empowered to make under the Act of 1988 may notwithstanding the absence of any express provision provide for levy of such fee in respect of applications, amendment of documents, issue of certificates, license permits and various other items provided therein. 11. A complete reading of the aforesaid provisions would indicate that the application seeking registration of a motor vehicle has to be made under sub-section (1) of S. 41, and the said application has to be accompanied by such fee as may be prescribed by the Central Government. It is clear from a reading of this provision that the fee to be prescribed for registration of a motor vehicle under sub-section (1) of S. 41 is to be prescribed by the Central Government under sub-section (2). Sub-section (6) of S. 41 only contemplates a provision empowering the registering authority to assign to the motor vehicle, seeking registration, a right to display on the vehicle a distinguishing mark which is known as a registration mark and this distinguishing mark is to consist of one of the group of such of those letters and is to be followed by such letters and figures as are allotted to the State by the Central Government from time to time by notification in the Official Gazette. This provision does not, in any manner, whatsoever confer any authority on the State Government the power to levy any fee for the purpose of registration of a motor vehicle over and above the one already prescribed by the Central Government under sub-section (2) of S. 41, that being so, arguments advanced by Shri V. K. Shukla, learned Dy. Advocate General, with regard to power conferred on the State Government under sub-section (6) of S. 41 is wholly misconceived. Advocate General, with regard to power conferred on the State Government under sub-section (6) of S. 41 is wholly misconceived. That apart, a perusal of the notification impugned in this petition dated 15-2-2001 (Annexure P/1) indicates that the notification is not issued on the basis of power conferred under this sub-section, but is issued on the basis of power conferred under S. 211 read with S. 65 of the Act of 1988, that being so, it would Be appropriate to consider the nature of power conferred on the State Government by S. 211 and S. 65 of the Act of 1988. 12. Section 211 as already indicated hereinabove contemplates that if by any Rule, the Central Government or the State Government is empowered to make under the Motor Vehicles Act, then the Central Government or the State Government as the case may be, notwithstanding the absence of any express provision, are empowered to provide for levy of such fees in respect of various items like applications, applications for amendment to the issue of certificates and other matters provided therein. The precondition requisite for exercising powers prescribing Rule for levy of fee under S. 211 is that under the Act of 1988, a provision exists empowering the Central Government or the State Government to make Rule. This power cannot be exercised in connection with the matter for which the Act itself does not give power to the State Government to make Rules. As already indicated herein-above, the power to prescribe fee for registration of a motor vehicle is conferred on the Central Government by virtue of subsection (2) of S. 41, that being so, the power to levy fee under S. 211 can be exercised by the State Government only if it is empowered under the Act of 1988 to prescribe fee for the purpose of registration of a motor vehicle. If the Motor Vehicle Act does not confer or empower the State Government to levy fee for registration of a vehicle, no fees can be prescribed for allotment of a registration mark for a motor vehicle exercising powers under S. 211. 13. Even otherwise S. 211 only enables the State Government to prescribe fee to be submitted along with applications or applications for amendment to the issuance of certificate and various other matters. 13. Even otherwise S. 211 only enables the State Government to prescribe fee to be submitted along with applications or applications for amendment to the issuance of certificate and various other matters. Prescribing a fee to be paid along with an application is different from prescribing a fee for grant of registration of a motor vehicle with a particular registration number. In the present case, in the garb of prescribing fees on the application the amount indicated in the notification are in fact a separate registration fee to be paid for allotment of a particular registration number. It is, therefore, clear that what is charged by the impugned notification under R. 55-A is nothing but a fee for registration of a motor vehicle. 14. By incorporating Rule 55-A, the State Government has prescribed a separate procedure for allotment of registration mark and for the said purpose has also prescribed the fees to be charged. Even though the fees prescribed is for seeking reservation of a particular number along with an application the Rule infact incorporates a provision for charging registration fees as per choice of the applicant. The number as per choice is allotted on deposit of this fee, which is nothing but a fee for registration of motor vehicle with a particular number. In the case of Ahmedabad Urban Development Authority v. Sharadkumar Jayantikumar Pasawalla ( (1992) 3 SCC 285 ) : ( AIR 1992 SC 2038 ), a provision imposing development fee by the Ahmedabad Urban Development Authority was challenged and while dealing with the question of imposition of development fee by way of a Regulation, the Supreme Court has so observed in paragraph 6 of the aforesaid judgment : "The imposition of development fee by framing the impugned Regulations was wholly unauthorised and as such illegal and void. In a fiscal matter it will not be proper to hold that even in the absence of express provision, a delegated authority can impose tax or fee. Whenever there is compulsory exaction of any money, there should be specific provision for the same and there is no room for intendment. Nothing is to be read and nothing is to be implied and one should look fairly to the language used. Whenever there is compulsory exaction of any money, there should be specific provision for the same and there is no room for intendment. Nothing is to be read and nothing is to be implied and one should look fairly to the language used. 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 ancillary power in the matter of exercise of fiscal power." 15. Power to frame Rules is conferred on the State Government under S. 65 of the Act of 1988. The State Government is empowered to make Rules, providing for issuance or renewal of certificate of registration and fitness, duplicate of registration, to replace registration certificate lost destroyed or mutilated and also provide for the amounts or amount that may be charged under sub-section (13) of S. 41. Reading S. 211 along with S. 65(d) and (k) would clearly indicate that the State Government is only empowered to make Rule with regard to the subjects on which the State Government is specifically empowered to make Rules and as far as registration of motor vehicles and prescribing the fees for registration are concerned, power is only conferred on the State Government to make Rules for the purpose of providing the procedure for issue or renewal of certificate or recovery of amount or amounts under sub-section (13) of S. 14 i.e., to prescribe the amount to be paid for delay on the part of owner to file an application for registration of motor vehicle under sub-section (1) of S. 41 or under sub-section (8) of S. 41 for renewal of vehicles. None of these provisions empower the State Government to make a Rule fixing the fee to be charged for registration of a motor vehicle. It is, therefore, clear that under the Act of 1988 the power to prescribe fee for registration of motor vehicle is only conferred under the Central Government and in exercise of the aforesaid power Central Government has already fixed the fee under Rule 81 of the Central Motor Vehicle Rules, 1989. It is, therefore, clear that under the Act of 1988 the power to prescribe fee for registration of motor vehicle is only conferred under the Central Government and in exercise of the aforesaid power Central Government has already fixed the fee under Rule 81 of the Central Motor Vehicle Rules, 1989. By various Gazette notifications, Central Government has already fixed the fee from time to time to be charged for the purposes of issue or renewal of certificate of registration and for assignment of new registration mark to various classes of vehicles. A notification bearing No. GSR-221(E), dated 28-3-2001 has been made available for perusal of this Court and the said notification and the table annexed thereto indicates that under Serial No. 4 to the said table, amount of fee to be levied for the purpose of issuing, renewal of certificate of registration and assignment of new registration mark is provided for. It is, therefore, clear that the power to prescribe fee for registration and assignment of new registration mark to various classes of motor vehicles is conferred on the Central Government and the Central Government has fixed the fee in this regard. Section 65 and S. 211 of the Act of 1988 only empowers the State Government to levy fee in respect of various matters indicated in S. 211 provided the State Government is empowered to make Rule in that regard under the Act of 1988. When the State Government is not empowered to prescribe the fee for registration under the Act of 1988, S. 211 cannot be made use of for levying fee for the purpose of granting a particular registration mark by means of reservation. 16. Similarly, sub-section (2) of S. 65 also does not confer any power on the State Government to make Rule fixing the fee to be charged for allotment of a registration mark. The power to charge extra fees or additional fees for allotment of a particular registration number is beyond the legislative competence of the State Government. 17. Under sub-rule (4) of Rule 55, the amount to be paid in cases of delay in submitting the application beyond the period prescribed under sub-section (1) of S. 41 is contemplated. This is by virtue of the power conferred on the State Government under S. 65(2)(k). 17. Under sub-rule (4) of Rule 55, the amount to be paid in cases of delay in submitting the application beyond the period prescribed under sub-section (1) of S. 41 is contemplated. This is by virtue of the power conferred on the State Government under S. 65(2)(k). As the said provision empowers the State Government to prescribe the amount that may be levied in case of delay in submitting the application within the time stipulated and the period indicated under sub-section (1) or sub-section (8) of S. 41. However, by incorporating Rule 55-A by the impugned notification, a further provision is incorporated for charging registration fees @ Rs. 15,000/-, Rs. 12,000/-, Rs. 10,000/-and Rs. 2000/- respectively for the purposes of allotment of a particular registration mark by adopting mode of reservation. Allotment of registration mark even by reservation is nothing but a process of registration of a vehicle under S. 41 of the Act of 1988. The State Government may be empowered to formulate Rules for the purpose of issuance or renewal of registration certificate, fitness certificate or duplicate service, but the State Government is not empowered to fix any fees for the purpose of registration of a motor vehicle. This power is exclusively conferred on the Central Government by virtue of subsection (2) of S. 41 and in the absence of any power being conferred on the State Government to levy any fee for the purpose of registration of motor vehicle, a notification issued prescribing the fee is clearly beyond the legislative competence of the State Government. 18. A provision made statutory in nature in respect of a matter beyond the competence of the State is null and void. The validity of the notification issued impugned in this petition is required to be tested on the basis of the power conferred on the State Government to prescribe the fee to be charged for registration of a motor vehicle. As the fee prescribed is beyond the legislative competence of the State Government, this Court cannot uphold the same. No fee can be imposed by any Rule unless the Act under which the Rule is made specifically authorises such imposition. 19. In our opinion neither S. 211 nor S. 65 of the Act of 1988 empowers the State Government to formulate a rule for the purpose of imposition of registration fee. No fee can be imposed by any Rule unless the Act under which the Rule is made specifically authorises such imposition. 19. In our opinion neither S. 211 nor S. 65 of the Act of 1988 empowers the State Government to formulate a rule for the purpose of imposition of registration fee. The power to prescribe registration fee as indicated hereinabove, is clearly conferred on the Central Government under sub-section (2) of S. 41, that being so, the notification issued impugned in this petition fixing registration fee for allotment of registration mark by reservation has to be declared as ultra vires and unsustainable, being beyond the legislative competence of the State Government. 20. Accordingly, this petition is allowed. Impugned notification dated 15-2-2001 (Annexure P/1), prescribing fee to be charged for registration of motor vehicle by means of reservation is declared ultra vires to S. 41(1) read with S. 64 of the Motor Vehicles Act, 1988 and is hereby quashed to that extent. 21. Respondents are directed to reconsider the claim of the petitioner for grant of registration number without insisting upon payment of any extra fee over and above the one prescribed by the Central Government. 22. Petition stands allowed without any order so as to costs. Petition allowed.