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2009 DIGILAW 210 (PAT)

Punam Singh v. State Of Bihar

2009-02-09

NAVANITI PRASAD SINGH

body2009
JUDGEMENT Navaniti Prasad Singh, J. 1. The petitioner is a transporter whose public passenger buses passes through the Chapra town and some of the vehicles start from Chapra town itself. She challenges the authority of the Collector-cum-District Magistrate, Saran at Chapra to declare certain area as Chapra town bus stand as that area is at present not only inaccessible but substantially under water and useless or incapable of being used as such. Her further challenge is that the fee that is charged with reference to Rule 191(2)(i) of the Bihar Motor Vehicles Rules. Rule 192 is thus wholly unauthorized till such time a town bus stand is in fact created with facilities therein. 2. State has filed counter-affidavit and this position is not disputed. It is only recently that the area was surveyed and notified for the purposes of town bus stand and as per report of the District Engineer dated 22-11 -2008 (Annexed to the counter-affidavit) the area is a ditch and under water, even approach roads are not there. It is estimated that it will involve an expenditure of about Rs. 1,27,45,000/- (One crore, twenty seven lacs and forty five thousand only) for development of the site s into a bus stand out of which about Rs. 45 lacs is required for earth filling alone. This fact undisputedly establishes that even as late as in the end of year 2008 there was not an iota of any infrastructure let alone town bus stand at Chapra. All that is said that some part of the approach road to the ditches has been made, unfortunately it is not an approach road to the town bus stand. Thus, in fact and in law the town bus stand is non-existent and there is no infrastructure work in its name therein. It is on these undisputed fact that the notification, the settlement, the charging of fee and the liability to pay fee has been challenged before this Court. 3. Motor Vehicle Act, 1988 was enacted by the Parliament in exercise of concrete power conferred on it in terms of entry 35 list III to the 7th schedule of the Constitution. The State Government under the said Act was authorized to frame Rules pursuant to which the Bihar Motor Vehicles Rules, 1992 was enacted for the purposes of the said Act. The State Government under the said Act was authorized to frame Rules pursuant to which the Bihar Motor Vehicles Rules, 1992 was enacted for the purposes of the said Act. One of the purposes of the said Act is for regulation of vehicular traffic on road in town and cities. It is with that object in mind Rule 191 of the Bihar Motor Vehicles Rules, 1992 have been framed, which is quoted hereunder: Rule 191. Parking places and halting stations. - (1) In consultation with local authorities having jurisdiction in the area concerned and in the city where there is Commissioner of Police, in consultation with such Commissioner of Police and elsewhere, with the District Magistrate, the Regional Transport Authority may, by notification in the official Gazette or by the erection of traffic signs which are permitted for the purpose, in consultation with the local authorities having jurisdiction in the area concerned District Magistrate by notification in the official gazette or by the erection of traffic signs for the purpose under Sub-section (1) of Section 116, or both, in respect of picking up or setting down of passengers or both, by public service vehicles or by any specified class of public service vehicle- (i) Conditionally or unconditionally prohibit the use of any specified place or of any place of a specified nature or class, or (ii) require that within the limits of any municipal corporation, municipality, notified area of or cantonment, or within such other limits as may as specified In the notification, certain specified stands of halting places only shall be used: Provided that no place which is privately owned shall be so notified except with the previous consent in writing of the owner thereof. (2) Whether a place has been notified or has been demarcated by traffic signs, or both, as being a stand or halting place for the purpose of this rule, then notwithstanding that the land is in possession of any person, the place shall, subject to the provisions of these rules, be deemed to be a public place within the meaning of the Act; and the Regional Transport Authority may enter into an agreement with or grant a licence to any person for the provision or maintenance of such place including the provision or maintenance of the buildings or works necessary thereto, subject to the termination of the agreement or licence forthwith upon the breach of any condition thereof and may otherwise make rules or give directions for the conduct of such place including rules or direction- (i) Prescribing the fees to be paid by the owners of public service vehicles using the place and providing for the receipt and disposal of such fees; (ii) specifying the public service vehicles, or the class of public service vehicles which shall use the place or which shall not use the place; (iii) appointing a person to be the manager of the place and specifying the powers and duties of the manager; (iv) requiring the owner of the land, or the local authority, as the case may be, to erect other works as may be specified in the rules or in the direction, and to maintain the same in Serviceable, clean and sanitary condition; (v) requiring the owner of the land or the local authority, as the case may be, to arrange for the free supply of drinking water of passengers including intending passengers, (vi) prohibiting the use of such place by specified persons or by other than specified persons. 4. From a perusal of the aforesaid rule two things which are material for the present case arise. Firstly that the Regional Authority in consultation with the District Magistrate and the Superintendent of Police is to notify a place meant for parking and halting for public carrying vehicles. Once such a place is notified certain consequences flow. Firstly, once such a place is notified then owner of commercial vehicle cannot park or halt their vehicles at any other place in the said town except as notified. Once such a place is notified certain consequences flow. Firstly, once such a place is notified then owner of commercial vehicle cannot park or halt their vehicles at any other place in the said town except as notified. Once an obligation has been cast to use only a specified place for parking and halting then the law enjoins providing infrastructure at that place for the convenience of vehicle owners and passengers for establishing and maintaining that infrastructure. Rule 191(2)(i) provides for fee to be paid by the owner of public service vehicle using the place. Thus, seen it is a fee for special services which are to be rendered at the place which is to be paid by the vehicle owners. It is not a tax which is usually de hors the concept of quid pro quo. The authorization to realize fee flows from entry 47 of list III of the 7th schedule to the Constitution, read with entry 35 thereof. Both tax and fee are of the same genus inasmuch as both are compulsory exaction of money under authority of law payable by citizens to the State or its nominee. The essential difference between the tax and a fee of the nature as contemplated under Rule 191 of the Rules is that tax is not realized to be spent in any manner pre-de-signed, whereas or a fee to be realized in terms of Rule 191, it is a compensation for the cost of maintenance of the infrastructure facility at the bus stand. This fee being compensatory in nature and in lieu of services to be provided cannot at all be charged in absence of any services in this regard, otherwise it loses the character of fee and becomes a tax outright. Legislature while enacting rule have used the expression fee knowing fully well the legal import of the said word as fee is nomen juris. A term nomen juris and the Legislature have accordingly used the said term. 5. In the present case, the facts would show that there is no town bus stand in existence at the moment. It is something still in contemplation but still fee is sought to be collected from every vehicle that is crossing the town on the pretext that they are using the parking and halting facility of the town bus stand, which as noted above repeatedly, is non-existent. It is something still in contemplation but still fee is sought to be collected from every vehicle that is crossing the town on the pretext that they are using the parking and halting facility of the town bus stand, which as noted above repeatedly, is non-existent. Such collection of fee without even there being commensurate services capable of being rendered, even to the group of people possessing commercial vehicle would render the realization not only contrary to the provision of the Motor Vehicles Act and the Rules framed thereunder but would render the same ultra vires the Constitution itself. Rule 191 authorizes levy of fee for services to be rendered. The presumption is that there is infrastructure for services to be rendered and services are being rendered. Here, there is no dispute that no services whatsoever are being rendered. Merely the right of collecting the fee has been settled with private parties, who have been noticed but chosen not to appear in these proceedings, those parties are incapable of providing any service but merely collecting fee, out of the fee so realized by them they have to give to the State, the minimum commitment they have made and the rest they appropriated to themselves as their profit. Thus, State is the main beneficiary of the fee so collected and as such it was the responsibility of the State to provide services. There being no dispute that no services are even capable of being provided, the realization of fee becomes ipso facto unauthorized, then the settlement for realization thereof has no legs to stand on, the settlement thus is rendered void. 6. Learned Counsel for the State states that substantial funds have been allocated for development of the town bus stand, this Court should not thus interfere otherwise the revenue that is to come would stop and so would the development of the infrastructure. In my view, Court cannot act against the spirit and intent of the rules. The rules do not authorize realization of fee in anticipation of setting up of infrastructure in near future and services to be rendered at a future date. The provision of Rule 191(2) is clear that fee is to be paid for services rendered in present time and not in future. The rules do not authorize realization of fee in anticipation of setting up of infrastructure in near future and services to be rendered at a future date. The provision of Rule 191(2) is clear that fee is to be paid for services rendered in present time and not in future. That being so till the infrastructure is developed and ready for use no fee can be charged in the name of the non-existent infrastructure and facility. If what is submitted by the Respondents is to be accepted it would be like selling railway tickets for todays journey with train to be provided next week. A contradiction in terms and impermissible. 7. In that view of the matter, I am left with no option but to hold that the settlement for collection of fee in terms of Rule 191 of the rules aforesaid was wholly unauthorized and the vehicle owners for passing through the town of Chapra cannot be charged with any fee as contemplated under Rule 191 of the rules till such time the place notified as Chapra bus stand is not functional and operative. The Respondent Authorities are accordingly restrained. With the aforesaid observations and directions, the writ application is allowed.