JUDGMENT :

A.K. RATH, J.

This is a plaintiff’s appeal against confirming judgment. The suit was for declaration that the levy of parking fees on the vehicles of the plaintiff within the limits of Notified Area Council, Khurda-defendant no.2 is illegal, permanent injunction and recovery of Rs.312/-collected by the defendants from it towards the parking fees of the vehicle.

2. The case of the plaintiff is that plaintiff is a Public Limited Company having its Principal Office at Kakinada in the State of Andhra Pradesh. It carries on business of transportation of goods for hire. It has branches all over the country including Khurda within the Notified Area Council. The defendants 1 and 3 are the auction holders of parking place of Notified Area Council-defendant no.2. They claim to have a right to collect the parking fees from the owners of the vehicles parked within the N.A.C. pursuant to the resolution dated 30.7.1983, Ext.A, passed under Section 309 of the Orissa Municipal Act, which came into force from 1.9.1983. According to the plaintiff, the vehicles are parked by the side of the road for loading and unloading. Parking place has never been used. The N.A.C. has not tendered any service for collecting parking fees. The entire N.A.C. area cannot be construed to be a parking place under Section 309 of the Orissa Municipal Act. Collection of fees from the plaintiff is unauthorized. The resolution, Ext.A, dated 30.7.1983 is in excess of jurisdiction and not within the powers contemplated under Section 309 of the Orissa Municipal Act. With this factual scenario, the suit was filed seeking the relief mentioned supra.

3. The defendants 1 and 2 filed written statement stating inter alia, that the plaintiff has no permanent office at Khurda. Defendant no.1 was the auction holder for collecting parking fees from the owners of the different vehicles who are doing their business within Khurda N.A.C. The N.A.C., Khurda in its resolution dated 30.7.1983 fixed the place as “road side’ beginning from Godipokhari Chhak on the east to T.L.C. Check Gate on the west and from Bhaliabadi Check gate on the south to Farm Chhaka on the north and the vehicles parked for business purposes are to pay fees as provided by the N.A.C. as per the list pasted on different places on the road side. Under Section 309 of the Orissa Municipal Act, the N.A.C. has constructed parking place. The resolution dated 30.7.1983 is not beyond the scope of the council. The same is in conformity with the provisions of Section 309 of the Orissa Municipal Act. Defendant no.1 has not forcibly collected any fees @ Rs.3/-per vehicle. Defendant no.2 has specified the parking place and maintained the same. The defendant no.2 by its subsequent resolution dated 28.4.1986, Ext.B, has specified the places on the road side for keeping the vehicles in order to transact the business.

4. Stemming on the pleadings of the parties, the learned trial court struck four issues. The parties led evidence. The learned trial court held that collection of parking fees from the vehicles of the plaintiff under the resolution of N.A.C. was within the provisions of Section 309 of the Orissa Municipal Act. The same was legal and valid. Held so, it dismissed the suit. The unsuccessful plaintiff filed appeal before the learned Sub-judge, Khurda in T.A.No.4 of 1988, which was eventually dismissed.

5. The Second Appeal was admitted on the following substantial question of law :

“Whether the conclusions of the two courts below that the place which has been provided and maintained for public landing place by the municipality would come within the ambit of Section 309 of the Orissa Municipal Act ?”

6. Heard Mr. Srikar Kumar Rath, Advocate for the appellant and Mr. Yeeshan Mohanty, Sr. Advocate along with Mr. S.K. Beura, Advocate for the respondents 1 & 3 as well as Mr. Jitendra Kumar Mishra, learned Senior Advocate for respondent no.2.

7. Mr. Rath, learned Advocate for the appellant submitted that the impugned resolution