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High Court Of Madhya Pradesh
P. V. Dixit, C. J. and R. J. Bhave, J.
SINDHI SAHITI MULTIPURPOSE TRANSPORT CO-OPERATIVE SOCIETY LTD. - Appellant
Versus
MUNICIPAL COUNCIL - Respondents
Misc Petn 557 Of 1964
Decided On : 10/18/1966
Under sub-clause (m) of clause (7) of section 358 of the Madhya Pradesh Municipalities Act, 1961, the Municipal Council has clearly the power under sub-clause (m) of the clause (7) of section 358 of regulating and prohibiting the use of any ground under its control as a halting place for vehicles. In exercise of this power it can declare that motor vehicles or buses shall be parked or shall stop for picking up or setting down passengers only at a certain place within the Municipal limits and nowhere else.
As the land which has been declared to be Municipal Bus Stand belongs to the Municipal Council, both byelaw No. 1 (c) and byelaw No. 2 have been validly made by the Municipal Council in exercise of the power conferred on it by sub-clause (m) of clause (7) of section 358. [Para 6
(2) Motor Vehicles Act, 1939 - S. 68 (2) (r) - power of the competent authority to fix Bus Stand - is over-riding - not controlled by the Municipal Council - Municipal Council declares the same place as Bus Stand as declared by the competent authority - declaration not invalid - Municipalities Act, 1961 (M.P.) - S. 358 (7).
The power under section 68 (2) (r) of the Motor Vehicles Act to fix or alter the location of a Bus Stand is an overriding power and is in no way controlled by the power of the Municipal Council to construct or provide halting places. AIR 1953 SC 79 relied on.
But where the competent authority under the Motor Vehicles Act declares the same place as Bus Stand which is declared by the Municipal Council, there is no conflict in the two declarations and the declaration by the Municipal Council cannot be declared as in valid. [Para 7
(3) Municipalities Act, 1961 (M.P.) - Ss. 358 (7) (m) and 349 - Municipal Council has no power to impose fees for the use of Bus Stand - Bhopal Municipality Bye-laws, published on 6-11-64 Bye-law Nos. 3 to 7 - are invalid.
Sub clause (m) of clause (7) of section 358 does not empower the Municipal Council to impose any fees for the purposes mentioned in that sub-clause. It is pertinent to note that where the Legislature thought fit that the Municipal Council Should have the power to impose fees by by-laws, it has specifically so provided in section 358.
In the absence of any specific provision in sub-clause (m) of clause (7) of section 358 empowering the Municipal Council to impose fees for the use of a halting place for vehicles, the Council cannot claim the power to impose such fees merely because it has the power under that sub-clause of regulating the use of the halting place. That the power to impose fees must be specifically conferred on the Council cannot now be doubted. [Para 8
The power to impose fees for the use of the Bus Stand cannot also be claimed under section 349 of the Act. [Para 9
Neither sub-clause (m) of clause (7) of section 358 nor section 349 empowered the Municipal Council to prescribe by bye-laws any fees for the use of the Motor Stand declared by the bye-laws. 1960 JLJ 340 and 1963 JLJ 276 referred to. [Para 9
The bye-laws Nos. 3, 4, 5, 6 and 7 which deal with the imposition of a fee for the use of the Bus Stand, the collection and payment of the fees, the issue of a permit on payment of fees and inspection of the permit, are all invalid. [Para 12
(4) Municipalities Act, 1961 (M.P.) - Ss. 127 and 129 - taxes under section 127 - should be levied after strictly following the procedure laid down under section 129.
The taxes enumerated in section 127 which a Municipal Council can impose can be levied only after following strictly the procedure laid down in section 129. Where the procedure for imposing a tax has not been strictly complied with, the liability to pay the tax cannot be said to arise. 1965 JLJ 237 (SC) relied on. [Para 10
(5) Motor Vehicles Taxation Act, 1947 (M.P.) - S. 6 - scope of - fees imposed for use of a Bus Stand - not prohibited.
(Obiter) What is prohibited by section 6 of the Madhya Pradesh Motor Vehicles Taxation Act, 1947, is the imposition of a tax, toll or licence fee in respect of a motor vehicle, that is to say a tax toll or licence fee which is in reality and substance a tax, toll or licence fee on a motor vehicle as subject-matter of taxation. The fee purported to have been imposed by the impugned bye-laws is a fee for the use of the Bus Stand. The measure of the fee has no doubt been fixed with reference to the hours and per bus But that does not make the Bus Stand fee, a fee in respect of a motor vehicle. It remains a fee for the user of the Bus Stand. [Para 11
( 1 ) BY this application under Article 226 of the Constitution the petitioner, Sindhi sahiti Multipurpose Transport Co-operative Society Ltd. , challenges the validity of the bye-laws of the Bhopal Municipal Council issued in the Gazette dated 6th november 1964 prohibiting all persons in charge of motor buses plying for hire from taking up or setting down passengers, or parking, or stopping their buses anywhere within the limits of the Bhopal Municipality except at a Bus Stand situated on Hamidia Road. Bhopal, and prescribing fees for the use of the Bus stand. The petitioner prays that the aforesaid bye-laws be declared invalid and the respondents be restrained from giving effect to the bye-laws in any manner.
( 2 ) THE impugned bye-laws were published in the Madhya Pradesh Gazette dated 6th November 1964. The preamble to the bye-laws recites that in exercise of the powers conferred by Section 357 (3) of the Madhya Pradesh Municipalities Act, 1961 (hereinafter referred to as the Act), the State Government confirms the byelaws made by the Municipal Council, Bhopal, under Sub-clauses (f) and (m) of clause (7) of Section 358 read with Section 349 (ii) and Section 357 (5) of the Act. Clause (c) of bye-law 1 defines "municipal Bus Stand" as meaning "the Municipal bus Stand situated on the Hamidia Road. Bhopal as described in the Schedule" to the bye-laws Bye-law 2 is in the following terms:
"no persons in charge 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 al the municipal Bus Stand: provided that the Chief Municipal Officer or the Superintendent of Police, Bhopal, or any person authorised by such superintendent, may, on special occasion, allow the parking or stoppage of a motor bus at a place other than the Municipal bus Stand for the taking up or setting down of passengers" By bye-law No. 3 a fee for the use of the Municipal Bus Stand has been imposed "at the rate of rupee one for every eight hours or part thereof for each Bus". This fee is payable by the person in charge of the motor bus. Bye-laws Nos. 4. 5, 6 and 7 deal with the payment of the fee by the person in charge of a bus, the collection thereof by the authorized employee of the municipal Council, the issue of a permit on payment of the fee and inspection of the permit. The last bye-law, namely No. 8. makes the person in charge of a motor bus committing a breach of any of the bye-laws liable to the punishment prescribed by that bye-law.
( 3 ) IN order to appreciate the contentions put forward on behalf of the petitioner challenging the legality of the bye-laws, it is first necessary to refer to the material provisions of the Act. Section 357 lays down the procedure for the making of the bye-laws. Section 358, in so far as it is material here, is as follows:
"358. 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 x x x x x x 7. Public Health, Safely. Nuisance and Sanitation-x x x x x x (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 x (m) regulating and prohibiting the stationing of cards 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; x x x x x x" section 349 empowers the Municipal Council to charge fees as may be prescribed by the bye-laws, inter alia, for: " (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 th
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