Assam Medicine Dealers Association vs Guwahati Municipal Corporation

AM Bujor Barua, J

1. Heard Mr. J. Roy, learned counsel for the appellants as well as Mr. D. Saikia, learned Senior Addl. Advocate General appearing for the

respondents including Guwahati Municipal Corporation.

The appellant No. 1, being an association of the wholesalers and retailers in medicine and theappellant No. 2, who undertakes the business of

wholesaler in medicine, in the name of Bishop Drug Distributors had preferred the WP(C) No.1960/2016 assailing the notification dated 27.04.2015 of

the Guwahati Municipal Corporation (in short GMC) by which, trade license fee of the dealers in medicine had been increased to Rs.8650/- per

annum. In the writ petition, an interim order dated 21.03.2016 was passed by which the respondent GMC was restrained from insisting on the license

fee of Rs.8,650/- for renewal by providing that they can at the best charge Rs.2500/- as the license fee. The said interim order was passed on the

premises that it was the prima facie case of the appellants that the license fee charged under Section 180 of the Guwahati Municipal Act, 1971 (in

short Act of 1971) is in fact a tax and not a fee and therefore, the upper limit of Rs.2500/- provided that under Article 276(2) of the Constitution of

India would be applicable.

       Subsequent thereto, another writ petition being WP(C) No. 5160/2017 was filed by the appellant No. 3 being the association of the

various trading and commercial entities in the State and outside and the appellant No. 4, who was a trader who operates his business in the name of

his firm namely Sri Gopal Bhandar, also assailing the notification dated 27.04.2015, by which trade license fee was increased to Rs.8650/-.

In the writ petitions, the appellants had assailed the notification dated 27.04.2015 by which therespondents authorities had enhanced the license fee

payable for the trade license granted by the respondent GMC to Rs.8650/- per annum. According to the appellants, the annual license fee is payable

under provisions of Section 180 of the Act of 1971, where the levy is described to be a tax. Further, according to the appellants the license fee of

Rs.8650/- had been imposed without there being a reciprocal quid pro quo and therefore it is a tax rather than a fee payable. The appellants had raised

a further issue that prior to such enhancement the traders under the appellant associations were paying a license renewal fee @ Rs.1500 per year,

and hence enhancing the same to Rs.8650 at one go is highly excessive.

The respondent GMC through their affidavit had taken a stand that the annual fees charged forrenewal of the trade licenses were in fact a fee and

not a tax. According to them the trade of operating the wholesaler and retailer business in medicines is required to be regulated by the GMC

authorities and further their business activities on its own involves a high degree of consumption of the various facilities provided by the authorities and

in providing such services a quid pro quo on the part of their GMC authorities is achieved. A stand had also been taken that as per the notification

dated 08.01.2001, the license fee @ Rs. 2500/- per year was payable only in respect of a company or association or body of individuals having a paid

up capital equal or more than Rs.20 lacs and that by the earlier notification dated 01.06.2009, the license fee payable was already enhanced to

Rs.7500/per annum and therefore the enhancement to Rs.8650/- per annum by the notification dated 27.04.2015, as such is not excessive.

In order to substantiate the contention that the fee payable for the trade license u/s 180 of theAct of 1971 is a tax and not a fee, the appellants

submitted that section 180 is included under Part-IV of the Act of 1971, which relates to taxes and therefore, the levy of Rs.8650/- per year as license

fee is also essentially a tax. It was submitted that even the heading of Chapter-XVII under which section 180 is included, also refers the levy to be a

tax on professions, trades and callings and therefore, the levy under section 180 is a tax rather than a fee.   Â

It was also submitted that the levy of Rs.8650/- being a tax, would be subjected to theprovisions of Article 276 (2) of the Constitution of India and

therefore, the levy cannot exceed Rs.2500/- per annum. For the purpose reliance was placed on the pronouncement of the Supreme Court in

Karnataka Bank Limited Vs. State of Andhra Pradesh and others, reported in (2008) 2 SCC 254 to substantiate that levy of professional tax is

subjected to the restrictions under Article 276 (2) of the Constitution of India.

It was also submitted by the appellants that the essential requirement of a fee would be theexistence of a quid pro quo, but in the case of imposition

of license fee of Rs.8650/- per year, there is no service of equivalent value being provided by the GMC authorities so as to bring the imposition within

the realm of a fee. The submission was that the services referred to be the quid pro quo are all general services provided by the authorities to all and it

has nothing to do with any specific service being provided to the license holders against the license fee imposed on them.

       To substantiate the submission, reliance was placed on the decision of the Supreme Court in Pratibha Processors Vs. Union of

India and others, reported in (1996) 11 SCC 101, wherein it was held that a tax is the amount payable as a result of the charging provision and that it is

a compulsory exaction of money by a public authority for public purpose and the payment of which is enforced by law.

       Reliance was also placed in the decision of the Supreme Court in Kewal Krishan Pury Vs. State of Punjab and others, reported in

(1980) 1 SCC 416, wherein it was held that quid pro quo for the service rendered to the payer is a must for levy of fees.

A further submission of the appellants was that under section 180 (4) of the Act of 1971, theliability of any person to take out a license and the

class under which he shall be deemed bound to take out the license be determined in accordance with the Rules that may be made by the GMC. It

was submitted that in the instant case, no such Rules had been made and as such, in the absence of any such Rules, the appellants cannot be classified

under a particular class, so as to impose a license fee of Rs.8650/- per year and any such classification requiring the appellants to pay a license fee of

Rs.8650/- per annum would be a violation of Section 180 (4) of the Act of 1971.

On the other hand, it had been submitted on behalf of the respondent GMC authorities that thelevy of Rs.8650/- per annum as the license fee under

section 180 of the Act of 1971 is essentially a fee and not a tax. For the purpose, reliance was placed on the decision of the Supreme Court in

Sreenivasa General Traders and others Vs. State of Andhra Pradesh and others, reported in (1983) 4 SCC 353, wherein it was held that the law laid

down in Kewal Kishan Pury’s case (supra) does not lay down any legal principles of general applicability and that the element of quid pro quo in a

strict sense is not always a sine qua non for a fee.

       Reliance was also placed on the decision of the Supreme Court in case of Dhenkanal Municipal Council and another Vs. A Raja

Rao and others, reported in (1993) Supp (3) SCC 543, wherein it was accepted that the services in the nature of construction of compound wall

around the market place, leveling of the ground and construction of road leading to the market place, maintenance of a well and construction of tin

shedsfor the vendors were some of the amenities provided by the municipal authorities, which constituted the quid pro quo against the fee imposed.

The learned counsel for the appellants sought to distinguish the applicability of the decision ofthe Supreme Court rendered in Dhenkanal Municipal

Council’s case (supra) by taking a stand that in the instant case, no such service specific to the appellants are being provided justifying the

imposition of the license fee and hence, the quid pro quo could not be established.

With regard to the submission of the appellants that they cannot be classified so as to impose alicense fee of Rs.8650/- per annum in the absence

of framing any Rules as required under section 180 (4) of the Act of 1971, reliance was placed on behalf of the respondent GMC on the decision of

the Supreme Court rendered in Jantia Hill Truck Owners Association Vs. Shailang Area Coal Dealer and Truck Owner Association and others,

reported in (2009) 8 SCC 492, wherein it was held that if a statute is workable even without framing of the Rules, the same has to be given its effect

and accordingly submitted that in the instant case, the provisions of the Act of 1971 along with its schedules and annexures included therein makes it

workable for imposing the license fee of Rs.8650/per annum.

       A further submission was made that the increase in the rate of license fee was made in exercise of the power under section 180(5)

of the Act of 1971 and that such power can be exercised independent of the provisions of Section 180(4).

In the aforesaid premises, the leaned Single Judge in the Judgment and Order dated 27.11.2017took the view that the writ petitions are devoid of

any merit and accordingly dismissed the same.

Being aggrieved by the Judgment and Order dated 27.11.2017, the present appeal has beenpreferred.

Mr. J. Roy, learned counsel for the appellants while reiterating the submissions made by theappellants before the learned Single Judge, has also

raised a contention that the increase of the license fee to Rs.8650/- per annum was excessive.

Mr. J. Roy submits that the essential characteristic of a fee being the existence of a quid pro quo,the same is absent in respect of the license fee

payable under section 180 of the Act of 1971 and hence the imposition is not a fee, but a tax. The learned counsel submits that the services referred

by the GMC authorities are general services which can be enjoyed by anyone and they are not specific for the benefit of the license holders who pay

the license fee. Therefore, the imposition is more of a compulsory exaction by a public authority, which in view of the definition of tax, as enunciated

by the Supreme Court in paragraph-10 of the decision in Secunderabad Hyderabad Hotel Owners Association and Others Vs. Hyderabad Municipal

Corporation, Hyderabad and another, reported in (1999) 2 SCC 274, wherein tax is defined to be a compulsory exaction of money by public authority

for public purpose and not a payment for the services rendered, the imposition of a licence fee of Rs.8650/- per year is a tax rather than a fee. Mr.

Roy also submits that as a corollary, if the imposition is a tax and not a fee, the provisions of Article 276(2) of the Constitution of India would be

applicable and the imposition cannot exceed Rs.2500/-.

Mr. Roy by further referring to paragraph-9 of the Judgment rendered in SecunderabadHyderabad Hotel Owners Association and Others (supra)

submits in the alternative that even if quid pro quo for the levy of fees is not required, but still such fees cannot be excessive. To substantiate the

submission, Mr. Roy states that although by the notification dated 01.06.2009, the license fee was enhanced to Rs.7500/- per license per annum, but

the same was not given effect by the GMC authorities and the members of the appellant association continued to pay a license fee @ Rs.1500/per

annum. Accordingly, it is the submission that there is an enhancement of 400%, which according to the learned counsel is nothing but excessive.

Mr. D Saikia, learned Senior Additional Advocate General appearing for the respondent GMC onthe other hand, also by relying upon paragraph-9

of the pronouncement of the Supreme Court in Secunderabad Hyderabad Hotel Owners Association and Others (supra) submits that a license fee

may be regulatory or compensatory and the fee charged for the regulation would still be classifiable as a fee, although no service may be rendered and

the element of quid pro quo for levy of such fees is not required.

       Mr. D. Saikia, learned Senior Addl. Advocate General also raises a contention that as per the definition of tax under Section

2(78)of the Act of 1971, a tax includes any toll, rate, cess, fees and other imposts leviable under the Act. Therefore merely because the heading of

Section 180 refers the annual license fee to be a tax, it cannot by itself lead to a conclusion that the license fee provided under Section 180 is also a

tax.

       Mr. Saikia also submits that by the nature of the business conducted by the members of the appellant association, more than a

normal amount of garbages are generated, which are required to be cleared by the GMC authorities and adverse affects are also caused to the

drainage and sewerage system. Further, the roads maintained by the GMC authorities also undergoes wear and tear beyond normal due to plying of

the commercial vehicles related to the business of the members of the appellant association, incurring a further maintenance cost on the GMC

authorities. In view of the aforesaid, more rigorous services are required to be provided by the GMC authorities specific to the business conducted by

the members of the appellant association and the same results in a quid pro quo being provided.Â

With regard to the submission that the levy of Rs.8650/- per annum is excessive and that therewas an enhancement of 400% from the rate of

Rs.1500/- which had prevailed from the year 2009, Mr. Saikia states that the levy of license fee was Rs.2500/- per annum as per the notification dated

08.01.2001 and thereafter enhanced to Rs.7500/- as per notification dated 01.06.2009. Therefore, enhancement of the license fee to Rs.8650/- is an

enhancement of only Rs.1150/- per annum and hence it cannot be said to be excessive.

As regards the submission of the appellants that the levy of license fee under section 180 of the Act of 1971 is a tax rather than a fee, the law as

regards a tax and that of a fee may be examined. In Secunderabad Hyderabad Hotel Owners Association and Others (supra), in paragraph-8, the

Supreme Court had taken note of the fact that in respect of a license for a hotel, several aspects are required to be regulated by the municipal

authorities and also additional services are required to be provided for scavenging the additional garbage created and as such, the authorities have the

power to fix special rates in respect of hotels, clubs etc. Such fixation of special rates by itself does not turn a license fee into a tax.Â

In paragraphs-9, 10 and 12 thereof, it has been held as under:-

       “9. It is, by now, well settled that a licence fee may be either regulatory or compensatory. When a fee is charged for rendering

specific services, a certain element of quid pro quo must be there between the service rendered and the fee charged so that the licence fee is

commensurate with the cost of rendering the service although exact arithmetical equivalence is not expected. However, this is not the only kind of fee

which can be charged. Licence fees can also be regulatory when the activities for which a licence is given require to be regulated or controlled. The

fee which is charged for regulation for such activity would be validly classifiable as a fee and not a tax although no service is rendered. An element of

quid pro quo for the levy of such fees is not required although such fees cannot be excessive.â€​

       “10. This Court reproduced the definition of what ‘tax’ means, given by Latham, C.J of the High Court of Australia in

Matthews v. Chicory Marketing Board2 (CLR at p.276) (see at p.1040). A tax according to the learned Chief Justice, is a compulsory exaction of

money by public authority for public purposes enforceable by law and is not payment for services rendered.â€​

       “12.In the present case, however, the fees charged are not just for services rendered but they also have a large element of a

regulatory fee levied for the purpose of monitoring the activity of the licensees to ensure that they comply with the terms and conditions of the licence.

Dealing with such regulatory fees, this Court in Vam Organic Chemicals Ltd. v. State of U.P8 (SCC at p.726) observed that in the case of a

regulatory fee, no quid pro quo was necessary but such fee should not be excessive. The same distinction between regulatory and compensatory fees

has been made in the case of P. Kannadasan v. State of T.N9 (SCC in para 36) as well as State of Tripura v. SudhirRanjan Nath10 (SCC at

p.673).â€​

In paragraph-40 of the Judgment of the Supreme Court rendered in BSE Brokers’ Forum v. Securities and Exchange Board of India, reported

in (2001) 3 SCC482, it has been held thus:-

       “Once we come to the conclusion that the fee in question is primarily a regulatory fee then the argument that the service

rendered by the Board should be confined to the contributories alone, cannot be accepted. What the court has to investigate while examining a

challenge of this nature is to see what is the primary object of the Regulations for which the fee is being collected and find out whether the

Regulations in question are in public interest or not. Once the levy is in public interest and connected with the larger trade in which the contributories

are involved then confining the services only to the contributories does not arise, as has been held by this Court in City Corpn. of Calicut8.â€​

In paragraphs-31 and 32 of the Judgment rendered by the Supreme Court in Sreenivasa General Traders (supra), it has been held thus:-

       “31. The traditional view that there must be actual quid pro quo for a fee has undergone a sea change in the subsequent

decisions. The distinction between a tax and a fee lies primarily in the fact that a tax is levied as part of a common burden, while a fee is for payment

of a specific benefit or privilege although the special advantage is secondary to the primary motive of regulation in public interest if the element of

revenue for general purpose of the State predominates, the levy becomes a tax. In regard to fees there is, and must always be, correlation between

the fee collected and the service intended to be rendered. In determining whether a levy is a fee, the true test must be whether its primary and

essential purpose is to render specific services to a specified area or class; it may be of no consequence that the State may ultimately and indirectly be

benefited by it. The power of any legislature to levy a fee is conditioned by the fact that it must be ‘by and large’ a quid pro quo for the services

rendered. However, correlationship between the levy and the services rendered (sic or) expected is one of general character and not of mathematical

exactitude. All that is necessary is that there should be a ‘reasonable relationship’ between the levy of the fee and the services rendered. If

authority is needed for this proposition, it is to be found in the several decisions of this Court drawing a distinction between a ‘tax’ and a

‘fee.’

There is no generic difference between a tax and a fee. Both are compulsory exactions of money by pubic authorities. Compulsion lies in the fact

that payment is enforceable by law against a person in spite of his unwillingness or want of consent. A levy in the nature of a fee does not cease to be

of that character merely because there is an element of compulsion or coerciveness present in it, nor is it a postulate of a fee that it must have direct

relation to the actual service rendered by the authority to each individual who obtains the benefit of the service. It is now increasingly realized that

merely because the collections for the services rendered or grant of a privilege or licence are taken to the consolidated fund of the state and not

separately appropriated towards the expenditure for rendering the service is not by itself decisive. Presumably, the attention of the Court in the Shirur

Mutt case was not drawn to Article 266 of the Constitution. The Constitution nowhere contemplates it to be an essential element of fee that it should

be credited to a separate fund and not to the consolidated fund. It is also increasingly realized that the element of quid pro quo in the strict sense is not

always a sine qua non for a fee. It is needless to stress that the element of quid pro quo is not necessarily absent in every tax.â€​

From the aforesaid pronouncements of the Supreme Court, the following can be culled out tounderstand the concept of quid pro quo in respect of a

license fee..

(i) A license fee may either be regulatory or compensatory and for the element of itbeing compensatory, quid pro quo must be there between the

service rendered and the fee charged, although an exact arithmetical equivalence is not expected;

(ii) But when the license fee is regulatory, the fee imposed would still be classified asa fee and not a tax although a corresponding service is not

required to be rendered. In other words, in case of a regulatory fee, no quid pro quo was necessary, but such fee should not be excessive;

(iii) In the event, a levy of a regulatory fee is in the public interest, it is not necessarythat the services provided in lieu of the fees thereof be limited

only to the contributories upon whom such regulatory fees is imposed. Although both tax as well as fee are compulsory exactions of money by public

authorities, a levy in the nature of a fee does not cease to be of that character merely because there is an element of compulsion of coerciveness

present in it and nor does a fee must have a direct relation to the actual service rendered by the authority and that the correlation between the levy of

the fee and the services rendered be of mathematical exactitude.Â

Considering the aforesaid interpretation of the concept of levying a license fee, the stand of theGMC authorities that additional services towards

removal of garbage, maintenance of drainage and sewerage as well as maintenance of roads and other infrastructural facilities were rendered by

them to facilitate the business of the appellants, cannot be wholly unacceptable. The services rendered in such manner is not required to be evaluated

with a mathematical exactitude in terms of the amount of license fee payable by the members of the appellant association and the mere fact that

additional services are required to be rendered by itself can be construed to be the existence of quid pro quo. Further, the stand of the GMC

authorities that the requirement of a license and the levy of the license fee is to incorporate a regulatory measure upon the businesses conducted by

the members of the appellant association is also acceptable inasmuch as, a maintenance of a municipal discipline is a requirement in the public

interest.Â

It is also taken note of that although the imposition under Section 180 of the Act of 1971 refersit to be a tax on professions, trades and callings, but

the definition of tax as provided under Section 2(78) of the Act defines tax to include any toll, rate, cess, fee and other imposts leviable under the Act.

As fee is also included under the definition of tax, therefore, the provisions of Section 180, where the imposition is referred as a tax, by itself would not

lead to a conclusion that the imposition is a tax and not a fee.

The other issue raised by the appellants that the levy of license fee @ Rs.8650/- per annum isexcessive, would also have to be examined from the

aspect as to what would constitute for an amount to be called excessive and as to whether in the facts and circumstance of the present case, the levy

of Rs.8650/- per annum is excessive.

The expression ‘excessive’ means beyond any given degree, measure or limit. The very meaning of the expression ‘excessive’ that it

is beyond any given degree, measure or limit, by itself is an indication that ‘excessive’ is a relative term which has to be in relation to something,

which is in existence and is accepted. The concept of excessive cannot exist on its own without it being compared with something already existing.

Mr. J. Roy, learned counsel for the appellants seeks to justify the contention that the rate oflicense fee of Rs.8650/- per annum to be excessive by

referring that prior to such enhancement, the license fee was Rs.1500/-. The learned counsel states that Rs.1500/- per annum was the license fee

prevalent prior to the present enhancement and the same continued even in the year 2009 and thereafter, inspite of the rate being enhanced to

Rs.7500/- through an appropriate notification in the year 2009. The learned counsel submits that although in the year 2009, the license fee was

enhanced to Rs.7500/- per annum, but the said decision was not implemented and the members of the appellant association continued to pay Rs.1500/-

. According to the learned counsel, the basis for comparing the enhancement would have to be taken to be Rs.1500/- per annum and not the enhanced

figure of Rs.7500/-, as was sought to be done in the year 2009.

On the other hand, Mr. D. Saikia, learned Senior Additional Advocate General produces anotification dated 08.01.2001, which provides that the

license fee per annum was Rs.2500/- and thereafter by the notification dated 01.06.2009, it was enhanced to Rs.7500/-. What is noticeable is that the

notification dated 01.06.2009 was also published in the Assam Gazette dated 01.06.2009. It is further stated that although the license fee was

enhanced to Rs.7500/-, but because of some political extraction, the members of the appellant association may have paid Rs.1500/- per annum.

The implication of a notification providing for any provision of law being published in the officialGazette is that such provisions contained in the

notification be thereafter construed to be a provision of law. In any view of the matter, it is also taken note of that by the notification dated 01.06.2009,

the provisions of the Fourth Schedule to the Act of 1971 stood amended. The provisions of the Fourth Schedule being a provision of law and the same

being notified in the official Gazette, all such provisions contained therein, including the provision that the license fee would be Rs.7500/- per annum,

would also have to be construed to be a provision of law.

If any question arises as to what was the license fee payable after the publication of thenotification dated 01.06.2009, the provision of law to that

regard, as contained in the notification, would prevail over any other factual aspect as to what was the license fee being accepted by the GMC

authorities. On a factual basis, the members of the appellant association may have paid a license fee of Rs.1500/- per annum by extracting some

political concession from the authorities, but such political concession cannot substitute the provision of the law to compel a conclusion that the license

fee payable was Rs.1500/- per annum and not Rs.7500/- as provided in the notification dated 01.06.2009.

Further, it is also taken note of that as the license fee was fixed at Rs.2500/- per annum by thenotification dated 08.01.2001 itself, therefore, it can

further not be construed that the license fee payable prior to the enhancement by the notification dated 27.04.2015 would have to be taken as

Rs.1500/- per annum.

In view of the above and more so in view of the factor that both the notifications dated08.01.2001 and 01.06.2009, levying the license fee @

Rs.2500/- and Rs.7500/-, respectively are statutory notifications issued under section 180(5) of the Act of 1971, having provided for an amendment to

the provisions of the Fourth Schedule to the Act of 1971, the license fee payable prior to the enhancement by the notifications dated 27.04.2015 would

have to be accepted to be Rs.7500/per license per annum and not Rs.1500/- as sought to be projected by the appellants.

If the license fee payable is accepted to be Rs.2500/- as per the notification dated 08.01.2001and Rs.7500/- as per the notification dated

01.06.2009, and the same be taken to be the basis for arriving at a conclusion whether the enhancement to Rs.8650/- per license per annum is

excessive, the obvious conclusion would have to be that such enhancement is not excessive.

Reference is brought to the principles laid down by the Supreme Court in SecunderabadHyderabad Hotel Owners Association and Others (Supra)

and Sreenivasa General Traders (Supra) that a license fee can also be regulatory and in such event, a reciprocal quid pro quo may not be necessary,

but in doing so, the levy of the license fee should not be excessive. As the conclusion hereinabove is that enhancement of the levy to Rs.8650/- is not

excessive, therefore, the notification dated 27.04.2015 incorporating such enhancement also satisfies the requirement of the principles laid down by the

Supreme Court in the aforementioned judgments.

The further issue raised by the appellants that in view of the provisions of Section 180(4) of theAct of 1971, the respondent authorities could not

have enhanced the license fee to Rs.8650/- per license per annum, would also have to be examined in the perspective of the law laid down by the

Supreme Court in that respect and also with regard to the provisions of the Act of 1971 as well as the specific provisions of Section 180 (4) itself.

Section 180 (4) inter-alia provides that the liability of any person to take out a license and the class under which he shall be deemed bound to take out

the license, shall be determined in accordance with the Rules that may be made by the Corporation in that behalf. The expression ‘may’

appearing in Section 180 (4) itself gives the indication that it is the discretion of the GMC authorities to frame the Rules for the purpose, meaning

thereby that in the event no such Rules are framed, it cannot be construed that a person who is otherwise liable to take out a license, would not be so

liable until such Rules are framed. Although the word ‘may’ can be read as ‘shall’ under certain given circumstances, but in the present

case, such circumstances requiring the word ‘may’ to be read as ‘shall’ is not present.

It is more so, as the provisions of the Act of 1971 read as a whole by itself provides for all therequired provisions providing for the procedure and

requirement of taking out a license is present in the Act itself. The Fourth Schedule to the Act read along with Annexure-1 thereof provides for the

specific class under which licenses are required to be obtained and therefore, such provisions by itself makes the requirement under the Act of

obtaining a license workable.

The law in this respect has been settled by the Supreme Court in Jantia Hill Truck Owners Association (supra), wherein in paragraph-23 it has

been held as under:-

       “23.The provisions of the Act mandate that the unladen weight and laden weight must be determined. Indisputably, weighing

devices had to be provided for the said purpose. It is true that for the said purpose rules may have to be framed. It is, however, a well-settled principle

of law that even in a case where the stature provides for certain things to be done, subject to rules, any action taken without framing the rules would

not render any (sic that) action invalid. If a statute is workable even without framing of the rules, the same has to be given effect to. The law itself

except in certain situations does not envisage vacuum. Non-compliance with the provisions relating to laden weight and unladen weight being penal in

nature must be held to be imperative in character.â€​

In view of the aforesaid proposition of law, and also considering the aspect that the provisions ofthe Act of 1971 read as a whole makes it

workable for obtaining a license at the prescribed rate of license fee, non-framing of the Rules as provided under section 180 (4), would not negate

any requirement of the members of the appellant association to obtain a trade license as required under section 180(1) by paying the prescribed license

fee as provided under the Fourth Schedule, as amended.

An issue has also been raised that the license fee of Rs.8650/- per annum being more of a tax,rather than a fee, the limitations imposed on the rate

under Article 276(2) of the Constitution of India would be applicable. But in view of the conclusion of this Court, as indicated above, that the fee of

Rs.8650/- per annum imposed is a fee and not a tax, the limitations imposed under Article 276(2) would be inapplicable in the present case.

A contention has also been raised by Mr. D Saikia, learned Additional Senior Advocate Generalthat the enhancement of the license fee payable is

a statutory provision under the Fourth Schedule to the Act of 1971, which was brought in by an amendment of the Schedule itself and therefore, any

challenge to the rate of license fee would essentially amount to assailing the vires of the Act, also finds sufficient force in the view of this Court. But,

the said aspect is not gone into any further as the implication of accepting the same would amount to arriving at a conclusion that the writ petition itself

was not maintainable in its present form. Even otherwise as all such issues raised had been adequately gone into and adjudicated upon, it would be

futile at this stage to conclude that the writ petition itself was not maintainable in its present form.

In view of the above, this appeal is found to be devoid of any merit and accordingly the samestands dismissed.