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SUPREME COURT OF INDIA
D.G. PALEKAR AND A. ALAGIRISWAMI, JJ.
Municipal Council, Bhopal, Appellant
Versus
Sindhi Sahiti Multipurpose Transport Co-op. Society Ltd. and another, Respondents.
Civil Appeal No. 1547 of 1967, D/-24-7-1973.
Section 349 (ii) of the Act does not enable the Municipal Council to require that permission should be obtained for any purpose. It deals with levy of fees for permissions which are required to be taken for various purposes under other sections of the Act. Permissions under sections 187 (3), 194 and 223 (4) are such permissions. The words of section 349 (ii) deal with permission granted to individuals to temporarily occupy municipal land. It would be doing violence to that section to hold that it deals with the provision of a bus stand. In the context of that section it is difficult to hold that when people are compelled to use a bus-stand constructed by the Municipal Council it is a permission for temporary occupation of land belonging to the Council. [Para 4
(2) Municipalities Act, 1961 (MP) - S. 358 (f) & (m) - scope of - do not deal with bus-stand - people cannot be compelled to use a particular place as bus stand.
It is not possible to relate the provision of clause (f) of sub-section (7) of section 358 of the Act as having anything to do with the provision of a bus-stand. Clause (m) also cannot be said to relate to the provision of a Municipal bus stand. The power to regulate or prohibit the use of Municipal land as halting place of vehicle cannot be used to compel people to use such land as halting places. [Para 5
(3) Motor Vehicles Act, 1939 - S. 69 (2) (r) - words 'duly notified bus-stand' - meaning of - power to fix bus-stands - what is a bus-stand.
The expression 'duly notified stand' in the Motor Vehicles Act means a 'stand duly notified by the Transport Authority'. The section gives power to the Government to prohibit a specified place from being used for picking up or setting down passengers. 1953 SCR 290 relied on.
A 'bus-stand' means a place where bus-service commenced or terminated. 1963 Supp. 2 SCR 373 relied on. [Para 6
(4) Motor Vehicles Act, 1939 - Ss. 76 & 68 (2) (r) - distinction.
Section 76 of the Act does not deal with a bus-stand in the sense of a place for taking up and setting down passengers, which is dealt with under section 68 (2) (r).
Section 68 confers power on the State Government alone, while section 76 enables a State Government to authorise any authority to take action under it. [Para 7
(5) Municipalities Act, 1961 (MP) - Ss. 358 (7) & 349 (ii) - Bhopal Municipality Bye laws - Bye-law No. 2 - powers of the Municipal Council Bye-law 2 invalid.
While section 358 (7) (m) may enable the Municipal Council to regulate or prohibit the use of any ground under its control it does not enable it to compel anybody to use it as halting place, etc. much less to prescribe chat no place other than the one provided by the Municipal Council shall be used for setting down and taking up of passengers. That can be done only under a provision like the one contained in section 68 (2) (r) and (s) of the Motor Vehicles Act. [Para 7
Bye-law No. 2 framed by the Bhopal Municipality is invalid. 1967 JLJ 47 reversed on this point. [Para 8
(6) Constitution of India - Art. 19 (1) (g) - fundamental right of carrying trade or profession - right to carry passengers by bus - Municipal Council cannot obstruct this right - right does not extend to use Municipal bus-stand without paying any charge.
The person plying a motor bus for hire cannot exercise his trade or profession effectively if he is not allowed to set down or take up passengers within the limits of a town. The Municipal Council' cannot do indirectly what it cannot do directly. It cannot compel buses to go outside the Municipal limits in order to set down or pick up passengers.
No body has a fundamental right to use a land belonging to another without that persons's permission or paying for it if necessary. While the Municipal Council has no power to compel persons plying motor buses for hire to use only the Municipal bus-stand for the purpose of taking up and setting down passengers, there can be no objection to its providing a bus stand for anybody who chooses to use it voluntarily and to such person being required to pay for such use. [Para 10
Judgment
ALAGIRISWAMI, J.:- On 6-11-1964 the Municipal Council of Bhopal made bye-laws under the provisions of Section 358 (7) (f) & (m) read with Section 349 (ii) of the Madhya Pradesh Municipalities Act, 1961 after previous publication in the M. P. Rajpatra as required under Section 357 (4) and confirmation by the State Government under Section 357 (3) in respect of a Municipal bus stand. Bye-law 2 of the bye-laws provided that no person incharge of a motor-bus plying for hire shall for the purpose of taking up or setting down of passengers, park or stop his bus anywhere within the limits of the Bhopal Municipality except at the Municipal Bus Stand. The other bye-laws provided for a levy of a fee of Re. 1/- for every eight hours or part thereof in respect of the use of the bus stand by such buses and for the issue of a permit on such payment. On 13-11-1964 the respondents filed a writ petition in the High Court of Madhya Pradesh challenging the said bye-laws. The High Court held that bye-law 1 (c), which defined the expression Municipal Bus Stand and bye-law 2, which has been set out earlier, were valid but held bye-laws 3 to 7, which provided for the payment of fee and the giving of a permit etc., as invalid, and restrained the Municipal Council from giving effect to those bye-laws in any manner. The Municipal Council was also directed to refund the fee collected from the respondents. This appeal has been filed by the Municipal Council by certificate granted by the High Court.
2. Section 349 (ii) of the Madhya Pradesh Municipalities Act reads:
"The Council may charge such fee as may be prescribed by bye-laws for-
(i)...........................................
(ii) any permission granted under this Act for making any temporary erection or for putting up any projection or for the temporary occupation of any public street or any land or building belonging to the Council; and
(iii)............... "
Section 358 in so far as it is relevant for the purpose of this case reads:
"In addition to any power specially conferred by this Act, the Council may, and if so required by the State Government shall, make bye-laws for
(1).......................................................
(7) Public, Health, Safety, Nuisance and Sanitation-
(f) prohibiting or regulating with a view to sanitation or the prevention of disease, any act which occasions or which is likely to occasion a public nuisance and for the prohibition or regulation of which no provision is made under this heading;
x x x x x
(m) regulating and prohibiting the stationing of carts or picketing of animals on any ground under the control of the Council or the using of such ground as halting place of vehicles or animals or as a place for encampment or the causing or permitting of any animal to stray."
It appears to us that S. 349 (ii) does not apply to this case. The relevant portion of that section reads:
"The Council may charge such fee as may be prescribed.......for any permission granted under this Act.........for the temporary occupation of.......any land............ belonging to the Council."
The section itself does not enable the Municipal Council to require that permission should be obtained for any purpose. It deals with levy of fees for permissions which are required to be taken for various purposes under other Sections of the Act. Section 187 (3) which deals with permission to erect, alter, add to or reconstruct buildings, and Section 194 which deals with permission to the owners or occupiers of buildings in public street to put up verandahs, balconies or rooms, to project from any upper storey thereof are instances in point. The permission mentioned in Section 194 is one of the matters for which fees can be prescribed under Section 349 (ii). Section 223 (4) deals with allowing any temporary occupation or erection in any public street on occasions of festivals and ceremonies, or allowing the occupation of, or temporary erection of structures for any other purpose. Fees can be prescrib
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