Board, Hapur Vs. Jassa Singh & Ors  INSC 1072 (4 September 1996)
K. Ramaswamy, K. Faizan Uddin (J)
O R D
IN C.A. NO. 472/80 This appeal by special leave arises from
the judgment of the Division Bench of the Allahabad High Court made on November 8, 1979 in CMWP NO.13/78. The admitted
position is that all the respondents are transport operators using for their
stage carriages the bus stand set up by the appellant- Board in Hapur. When the
appellant-Board demanded payment of the fee at the rate of Rs.0.75 per day,
though they had been paying fee earlier at the rate of Rs. 0.50 per day, they
contended that the municipality was devoid of power.
High Court in the impugned judgment relying upon Jagdish Prasad Bindla vs.
Municipal Board Atroli & Anr. CMWP No.3976 of 1973 decided on July 18, 1979
had allowed the appeal and quashed the demand without the municipality has the
power to levy fee demand the payment thereof for use of the bus stand ? The
Government in their order dated June 13, 1959 had directed the appellant and all other municipalities as
am therefore to request that you may kindly advise all the municipal bodies in
your districts to take steps to establish bus-stands within their municipal limits
in accordance with the Government Orders so that no inconvenience for parking
motor vehicles." The same direction was reiterated in their further letter
dated August 23, 1960 impressing upon the municipality to
establish the bus stand urgently and report the action taken in that behalf. In
furtherance thereof, the municipalities had set up bus stand at a considerable
expenditure and fee was levied for the use of the bus at varied rates by the
owners of the motor vehicles.
regards the rates payable in respect of the stage carriages, it was resolved
that each stage carriage should pay at the rate of Re 0.75 per day. The
resolution dated February
25, 1961, Item No. 1
of the bye-laws says that all motor vehicles which run on fare shall be parked
only at places specified by Nagar Palika and not at any other place.
No. 4 envisages that no private stand shall be made for any parking of any
motor vehicle within the limits of Nagar Palika. In Schedule A to the said
Resolution, Item No.3 levy of fee has been imposed for parking vehicles. viz,
public private bus carrying vehicles, viz, public and private bus carrying
passenger at the rate of Re.0.75 per day or part of the day. It would, thus, be
seen that pursuant to the directions issued by the Government, the bus stands
have been set up for the convenience of the travelling public at a great
expenditure and for use of the parking places the fee has been prescribed.
question is : whether the municipality has such power to levy the fee? Section
293 of the Act empowers the Board to charge fee to be fixed by bye-laws or by
public auction or by agreement, for the use of occupation (otherwise than under
a lease) of any immovable property vested in, or entrusted to the management of
the Board including any public street or place of which it allows the use or
occupation whether by allowing a projection thereon or otherwise. Such fee may
either be levied along with the fee charged under Section 294. Section 298
provides thus :
Board by special resolution may and where required by the State Government
shall, make bye-laws applicable to the whole or any part of the municipality,
consistent with this Act and with any rule, for the purpose promoting or
maintaining the health safety and convenience of the inhabitants of the
municipality and for the furtherance of municipal administration under this
Act." Sub-section (2) thereof, provides that in particular, and without
prejudice to the generality of the power conferred by sub-section (1), the
Board of a municipality, wherever situated, may, in the exercise of the said
power, make any bye-law described in list I and the Board of a municipality
wholly, or in part situated in a hilly tract may further make, in the exercise
of the said power, any bye-law described in list II below.
(b) thereof provides for the regulation or prohibition of any description of
traffic in the streets where such regulation or prohibition appears to the
Board to be necessary. It would, thus, be seen that the Board has been
empowered statutorily to prescribe the fee for use of the public property
vesting in or belonging to the municipality. Even under the recent amendment
brought by the Constitution [73rd Amendment] Act, 1992 which came into force w.e.f.
April 20, 1993, it imposes the statutory
responsibilities on the municipalities. Article 243 - p(d) defines
"municipal area" to mean the territorial area of a Municipality as is
notified by the Governor. Article 243(a)(i) envisages that subject to the
provisions of the Constitution, the Legislature of a State may, by law, endow
the municipalities powers and authority as may be necessary to enable them to
function as institutions of self- government and such law may contain
provisions for the devolution of powers and responsibilities upon municipalities,
subject to such conditions, as may specified therein, with respect to the
preparation of plans for economic development and social justice .Entry 17 of
the 12th Schedule provides for public amenities including street lighting,
parking lots, bus stops and public conveniences.
the Constitution enjoins the appropriate Legislature to provide for preparation
of the plans for economic development and social justice including power to
provide public amenities including street lighting, parking lots, bus stops and
public conveniences. On such public amenities including bus stops having been
provided by the municipalities, as a is statutory duty, it is the duty of the
user thereof to pay fee for service rendered by the municipality. The
municipality had prescribed the minimum fee to the user at the rate of Re. 0.75
per day or part thereof, for use of any transport vehicle, as mentioned
hereinbefore. The High Court is clearly in error in striking down the demand of
fee power holding that it is ultra vires their power.
appeal is accordingly allowed, the order of the Division Bench of the High
Court is set aside but, in the circumstances, without costs.
IN C.A. NO. 12299/96 (@ SLP (C) NO. 4006/80) Leave granted.
appeal is allowed in terms of the above observations made in C.A. NO. 472 of