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2008 Supreme(MP) 561
2008(2) JLJ 296
A.K. Gohil and Rajendra Menon, JJ.
Mahesh Kumar Singhal and others v. State of M.P. and others
Writ Appeal No.458 of 2007 (Gwalior) : against the order of Single Bench, passed in Writ Petition No.157 of 2004; Decided on 1.5.2008.
Arvind Dudawat for appellants;
Vivek Khedkar, Government Advocate, for State;
Akhil Sinha for respondents No.2 & 3.
Headnote:Municipalities Act, 1961 (M.P.) -- Ss.349 and 358(4)(b), 358(4)(d) and 358(7)(m) -- M.P. Motoryan Karadhan Adhiniyam, 1991 -- S.6 -Municipal Council/Nagar Panchayat -- cannot impose any fees on Motor Vehicles for use of motor stand -- no fees can be charged from operators of vehicles using bus stands -- bye-laws and resolution are not applicable.
The appellants are the bus operators. They are registered owners of the vehicles and are residents of Kurwai, district Vidisha. They have challenged the bye-laws framed by the Nagar Panchayat Kurwai (Annexure P-1) dated 27.12.2003 which came into force w.e.f. 1.2.2004. Bye-laws have been framed exercising powers under sub-section (3) of section 357 as well as exercising the powers under sections 349(2), 357(5) and 358(4), sub-clauses (b) and (d) of the Madhya Pradesh Municipalities Act, 1961 (in short the "Act of 1961"), by which they have imposed parking fees on the owners of the vehicles, i.e., motor, truck, buses and matador, which are parked at the bus stand, at the rate of Rs.20/- per day (Rs.600/- per month) and they prayed that resolution number 157 dated 27.12.2003 (Annexure P-2), by which bye-laws are adopted and notification issued (Annexure P-3), be quashed. [Para 2
Held : Section 349 of the Act of 1961 does •not provide any power to impose the licence fee for the use of bus stand and the same is also not covered with the help of section 358(4)(b) and (d) or (7)(m) of the Act of 1961. Though section 6 of the M.P. Motoryan Karadhan Adhiniyam, 1991 makes express provision that no licence fee can be levied on a motor vehicle but that does not debar to the Municipal Council to impose a fee for the use of bus stand, but there is no power in the Act of 1961 to impose any fees on motor vehicles for the use of bus stand by the Municipal Council/Nagar Panchayat Kurwai. Under section 358(7)(m), if any property is under the control of Council, its use can be regulated and time frame can be fixed for the use of bus stand, but as held by the Supreme Court in the case of Municipal Council Bhopal (supra), no fees can be covered from the owner of motor vehicle for the use of bus stand under the aforesaid provisions of Act of 1961. Therefore, we hold that the resolution passed by the Municipal Council, Nagar Panchayat Kurwai as well as the byelaws framed are not applicable and for the vehicles parked at the bus stand, no fees can be recovered from the owner of motor vehicle. 1967 JLJ 47 relied on. 1974 JLJ 119 (SC) and (1997)11 SCC 640 followed. 2008(1) JLJ 341, Writ Petition No.321 of 1996 and 1989 JLJ 641 referred to. [Para 18
uxjikfydk vf/kfu;e] 1961 ¼e-iz-½ && /kkjk 349 rFkk 358¼4½¼[k½] 358¼4½¼?k½ rFkk 358¼7½¼M½ && e-iz- eksVj;ku djk/kku vf/kfu;e] 1991 && /kkjk 6 && uxjikfydk ifj"kn~@uxj iapk;r && eksVj LVSaM ds mi;ksx ds fy, eksVj ;kuksa ij dksbZ ‘kqYd vf/kjksfir ugha dj ldrh && cl LVSaMksa dk mi;ksx djus okys ;ku lapkydksa ij dksbZ ‘kqYd izHkkfjr ugha fd;k tk ldrk && mifu;e vkSj ladYi ykxw ugha gksrsA
vihykFkhZx.k cl lapkyd gSaA og ;kuksa ds jftLVªhd`r Lokeh gSa rFkk dqjokbZ] ftyk fofn‘kk ds fuoklh gSaA mUgksaus uxj iapk;r dqjokbZ }kjk fojfpr mifu;e fnukad 27-12-2003 ¼mikca/k ih&1½ ij vk{ksi fd;k gS tks 1-2-2004 ls izHkkoh gq, gSaA mifu;e e/; izns‘k uxjikfydk vf/kfu;e] 1961 ¼la{ksi ds fy, ^^lu~ 1961 dk vf/kfu;e**½ dh /kkjk 357 dh mi/kkjk 3 ds v/khu ‘kfDr iz;qDr djus ds lkFk&gh /kkjk 349¼2½] 357¼5½ vkSj 358¼4½ ds mi[kaM ¼[k½ vkSj ¼?k½ ds v/khu ‘kfDr iz;qDr dj fojfpr fd, x, gSaA buds }kjk uxj iapk;r us muds vFkkZr~ eksVj] Vªd] cl vkSj eSVkMksj tks ml LVSaM ij [kM+s fd, tkrs gSa] Lokfe;ksa ij :-20@& izfrfnu ¼:-600@& izfrekl½ dh nj ls ikfdZax ‘kqYd vf/kjksfir dh gS] rFkk mUgksaus izkFkZuk dh gS fd ladYi Øekad 157 fnukad 27-12-2003 ¼mikca/k ih&2½] ftlds }kjk mifu;e vaxhdkj fd, x, gSa vkSj vf/klwpuk ¼mikca/k ih&3½ tkjh dh xbZ gS] vfHk[kafMr fd;k tk,A ¼iSjk 2
vfHkfu/kkZfjr % lu~ 1961 ds vf/kfu;e dh /kkjk 349 esa cl LVSaM ds mi;ksx ds fy, vuqKfIr ‘kqYd vf/kjksfir djus dh dksbZ ‘kfDr micaf/kr ugha gSa rFkk ;g lu~ 1961 ds vf/kfu;e dh /kkjk 358¼4½¼[k½ vkSj ¼?k½ ;k ¼7½¼M½ dh lgk;rk ls Hkh vkPNkfnr ugha gksrhA ;|fi e-iz- eksVj ;ku djk/kku vf/kfu;e dh /kkjk 6 eas lqO;Dr mica/k fd;k x;k gS fd eksVj ;ku ij dksbZ vuqKfIr ‘kqYd mn~x`ghr ugha fd;k tk ldrk] rFkkfi blls uxjikfydk ifj"kn~ cl LVSaM ds mi;ksx ds fy, ‘kqYd vf/kjksfir djus ls fooftZr ugha gksrh] ijarq] lu~ 1961 ds vf/kfu;e esa uxjikfydk ifj"kn~@uxj iapk;r dqjokbZ }kjk eksVj ;kuksa ij cl LVSaM ds mi;ksx ds fy, dksbZ ‘kqYd vf/kjksfir djus dh dksbZ Hkh ‘kfDr ugha gSA /kkjk 358¼7½¼M½ ds v/khu] ;fn dksbZ laifÙk ifj"kn~ ds fu;a=.kk/khu gS rc mldk mi;ksx fofu;fer fd;k tk ldrk gS vkSj ml LVSaM ds mi;ksx ds fy, le;&lhek fu;r dh tk ldrh gS] ijarq tSlk mPpre U;k;ky; }kjk uxjikfydk ifj"kn~ Hkksiky ¼iwoksZDr½ ds ekeys esa vfHkfu/kkZfjr fd;k x;k gS] lu~ 1961 ds vf/kfu;e dh iwoksZDr mica/kksa ds v/khu cl LVSaM ds mi;ksx ds fy, eksVj ;ku ds Lokeh ls ‘kqYd olwy ugha fd;k tk ldrkA vr% ge vfHkfu/kkZfjr djrs gSa fd uxjikfydk ifj"kn~] uxj iapk;r dqjokbZ }kjk ikfjr ladYi ds lkFk&gh fojfpr fd, x, mifu;e ykxw ugha gksrs rFkk cl LVSaM ij [kM+s fd, x, ;kuksa ds fy, eksVj ;ku ds Lokeh ls dksbZ ‘kqYd olwyh ugha fd;k tk ldrkA 1967 ts ,y ts 47 voyafcrA 1974 ts ,y ts 119 ¼mPpre U;k-½ rFkk ¼1997½11 ,l lh lh 640 vuqlfjrA 2008¼1½ ts ,y ts 341] fjV ;kfpdk Ø-321 lu~ 1996 rFkk 1989 ts ,y ts 641 fufnZ"VA ¼iSjk 18
Gohil, J. -- 1. Appellants have filed this writ appeal under section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005 against the order dated 10.7.2007 passed by Single Judge in Writ Petition No. 157/2004.
2. The brief facts of the case are that the appellants are the bus operators. They are registered owners of the vehicles and are residents of Kurwai, district Vidisha. They have challenged the bye-laws framed by the Nagar Panchayat Kurwai (Annexure P-1) dated 27.12.2003 which came into force w.e.f. 1.2.2004. Bye-laws have been framed exercising powers under subsection (3) of section 357 as well as exercising the powers under sections 349(2),357(5) and 358(4), sub-clauses (b) and (d) of the Madhya Pradesh Municipalities Act, 1961 (in short the "Act of 1961 "), by which they have imposed parking fees on the owners of the vehicles, i.e., motor, truck, buses and matador, which are parked at the bus stand, at the rate of Rs.20/ - per day (Rs.600/- per month) and they prayed that resolution number 157 dated 27.12.2003 (Annexure P-2), by which bye-laws are adopted and notification issued (Annexure P-3), be quashed. In the petition, notice was issued to the respondents and return was filed by them. In the return the respondents have justified their action. After hearing the arguments learned Single Judge dismissed the writ petition holding therein, that in view of various provisions as contained under section 358(4)(a) and (b), section 357(3) and section 349(ii) of the Act of 1961. Nagar Panchayat has power to frame such bye-laws as contained in bye-laws No.4, 6, 7 and 8 and dismissed the writ petition, against which the appellants have filed this writ appeal.
3. We have heard the learned counsel for the parties and perused the documents and the finding recorded by the learned Single Judge.
4. In nut-shell, the submission of the learned counsel for the appellants is that under section 349(ii) of the Act of 1961 fees cannot be levied because it is a special provision which provides to charge fees for licences and permissions. It was further submitted that section 349 is not applicable to the place, which is marked as but stand, but the fees is only chargeable when some special or individual licences and permissions shall be obtained for parking the vehicles at the place other than the bus stand. Learned counsel for the appellant vehemently argued and submitted that the byelaws are also contrary to the provisions of section 117 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act of 1988"). It was further submitted that the case of the appellant is covered by the decision of the Division Bench of M.P. High Court in the case of Sindhi Sahiti Multipurpose Transport Cooperative Society Ltd. v. Municipal Council, Bhopal [1967 JLJ 47], which was subsequently affirmed by the Supreme Court in the case of Municipal Council, Bhopal v. Sindhi Sahiti Multipurpose Transport Cooperative Society Ltd. [1974 JLJ 119 (SC)=1974 MPLJ 362 (SC)], and the appeal filed by the Municipal Council, Bhopal was dismissed and it was held by their Lordship of the Supreme Court that:
"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 execution 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 prescribed under section 349(ii) in respect of these maters. The words above mentioned in that section deal with permission granted to individuals to temporarily occupying 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 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 t
