M.KARPAGA VINAYAGAM, C.J. - (1.) THE Tata Engineering and Locomotive Company Ltd. (TELCO), the petitioner herein has filed this writ petition seeking for the three reliefs: (i) For declaration that demand and realization of surcharge over tern porary registration fee of motor vehicle (Chassis) through the notification dated 7.10.1996 are beyond the competence of the State Government as there is no power conferred either in the Motor Vehicles Act, 1988 or in the Bihar Motor Vehicles Rules, 1982. (ii) For further declaration that the surcharge cannot be realized on the temporary registration fee of the chassis through the notification dated 7.10.1996 as it makes addition in Rule 74 of Rules which relates to Chapter V of the Act and not Chapter IV of the Act containing Section 43 of the Act, 1988. (iii) For refund of the surcharge already paid by the petitioner.
(2.) THE background of the facts in this case are as follows: (i) The petitioner is a manufacturer of Chassis at Jamshedpur. The Chassis/vehicles so manufactured by the petitioner at Jamshedpur are sent outside to different destinations for sale. (ii) The Motor Vehicles Act, 1988 requires registration/temporary registration of motor vehicles/ chassis before going on public Road. (iii) Section 39 of the Act and Section 43 of the Act provide for necessity of registration and temporary registration of the motor vehicles. (iv) Section 65 of the Act empowers the State Government to frame Rules in relation to the provisions of Chapter IV of the Motor Vehicles Act. (v) Section 211 also empowers the Government to frame rules to levy fee. (vi) In pursuance of the above provisions of Motor Vehicles Act, Rules were framed by the then State of Bihar, known as Bihar Motor Vehicles Rules, 1992. (vii) Under Rule 46 in Chapter IV deals about grant of temporary registration. (viii) Rule 44(v) provides for prescribed fee for temporary registration. (ix) Rule 52 -A deals with the grant of temporary registration on the application being filed for a certificate of temporary registration along with the fee prescribed under Rule 43. (x) Rule 74 deals with the fee payable under Chapter V of the Act. (xi) On 7.10.1996, a notification was issued about addition of two schedules at the end of Rule 74. The present case is concerned with Schedule II. Under the said heading Rule 44, Chapter IV at Serial No. 4. Rate of 'surcharge' for temporary registration and its each extension under Rule 53(1) has been fixed at Rs. 20/ -. (xii) In pursuance of the above notification dated 7.10.1996, two letters were issued by the District Transport Officer, Jamshedpur, Singhbhum East, the respondent No. 2. The first letter is dated 3.11.1997. Through this letter, the respondent No. 2 asked the petitioner to pay 'surcharge' on temporary registration at the rate of Rs. 20/ - for each temporary registration certificate claiming it with effect from 1.10.1996. Similarly, a demand was also made by respondent No. 2 through letter dated 26.12.1997. (xiii) Aggrieved by these demands, the present writ petition has been filed. (xiv) In the meantime, the amount of surcharge demanded by the authority have been deposited. During the pendency of this writ petition, this Court ordered on 9.8.1999 that the payments of surcharge made during the pendency of the case would be subject to the result of this case. The case of the petitioner is that: (i) The State Government has the authority under the relevant provisions of the Act and the Rules only to levy fee and has no authority to demand surcharge. (ii) There is no provision either in the Act or in the Rules, empowering the State Government for demanding 'surcharge' over temporary registration fee. (iii) Section 211 empowers only for levy of fee and not 'surcharge'. 'Fee' and 'surcharge' are two different things. The fee is for services rendered and therefore, 'surcharge' becomes 'tax'. (iv) If this is allowed to be charged by the State, it will become a tax and will be violative of Article 265 of the Constitution of India. (v) The tax is compulsory extraction of money by the public authority for public purpose whereas 'fee' is charged for specific services rendered to individuals by Government. Levying surcharge would be beyond the power of the State Government because the Statute does not confer power to the State Government for the same either specifically or by giving necessary implications. Thus, the exercise of power of the State Government in issuing the impugned notification is ultra vires because imposition of surcharge is penal and hence invalid.
(3.) THE case of the respondents, the State Government is as follows: (i) The State Government is empowered under different sections of Motor Vehicles Act including Section 211 of the Motor Vehicles Act to make rules for levying the fee. Therefore, Bihar Motor Vehicles Rules, 1992 has been framed and enforced from 5.12.1992. (ii) The temporary registration fee is registration charge under the provisions of the said Rules. As the cost of stationary has increased, the notification for surcharge has been issued after previous publication to realize the charges. (iii) The surcharge on temporary registration fee is nothing but additional fee. Therefore, the notification is valid and consequently the demand through the letters are perfectly justified. ;