Municipal Council, Bhopal Vs. Sindhi
Sahiti Multipurpose Transport Co-Op. Society Ltd. [1973] INSC 123 (24 July
1973)
ALAGIRISWAMI, A.
ALAGIRISWAMI, A.
PALEKAR, D.G.
CITATION: 1973 AIR 2420 1974 SCR (1) 274 1973
SCC (2) 478
CITATOR INFO:
F 1987 SC1339 (6)
ACT:
Madhya Pradesh Municipalities Act,
1961-Bye-laws made under provisions s. 358 (7) (f) and (m) read with s. 349
(ii) of Act-Bye-law 2 providing for motor-buses Plying for hire to be
compulsorily parked at Municipal bus stand Bye-laws 3 to 7 providing for fee
payable for parking-Bye-law 2 does not fall under s. 349(ii) or s. 358(7) (f)
or (m) of Act and is invalid-Consequently bye-laws 3 to 7 providing for levy of
fee also invalid.
Motor Vehicles Act 4 of 1939 s. 68(2)-Power
to specify place of Bus-stand under section rests with State Government and not
with Dist. Magistrate-Cannot he delegated to District Magistrate.
HEADNOTE:
The Municipal Council of Bhopal made bye-laws
under the provisions of s. 358(7)(f) and (m) read with section 349(ii) of the
Madhya Pradesh Municipalities Act, 1961.
Bye-law 2 provided that no person inching 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
municipality ,except at the municipal Bus Stand. The other bye-laws provided
for a levy of a fee of Re. 1 /for every 8 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. The respondent filed a writ 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 byelaw 2 were valid but held bye-laws 3 to 7. which provided for the
payment of fee and the giving of permit etc., as invalid and restrained the
Municipal Council from giving effect to those bye-laws in any manner.
Dismissing the appeal by certificate filed by
the Municipal Council.
HELD : (i) Section 349(ii) was not applicable
to the case.
The section itself does not enable the
Municipal Council to require that permission should be obtained for any
purpose.
It deals with levyof fees for permissions
which are required to be taken for various purposes under other sections of the
Act such as sections 187(3), 194 and 223(4).
The relevant words in the section deal with
permissions 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 was difficult to hold that when people were compelled to use the bus
stand constructed by the Municipal Council it was a permission for temporary
occupation of land belonging to the Council. [276F] (ii) It was not possible to
relate the provision of clause (f) of sub-section 7 ,of section 358 as having
anything to do with the provision of a bus-stand. As regards clause (m) of
sub-section 7, "the regulating and prohibiting the stationing of
carts..... on any ground under the control of the Council or the using of such
ground as halting place of vehicles cannot be said to relate to the provision
of Municipal bus stand. The power to regulate or prohibit the use of Municipal
land as halting place of vehicles cannot be used to compel people use such land
as halting places.
Such a power must be specifically given. The
power to compel persons in charge of motor buses to stop only at certain places
for the purpose of taking up or setting down of passengers is a matter which
relates to motor traffic and there is a specific provision in section 68 (2)
(4) and (s) of the Motor Vehicles Act for this specific purpose. [277H] 2 75 T.
B. Ibrahim v. S.T.C. Tanjore, [1953] S.C.R. 290. and Municipal Board, Pushkar
v. State. Transport Authority, Rajasthan, [1963] Supp. 2 S.C.R. 373, referred
to.
(iii) The bye-laws compel persons in charge
of motor buses to use the Municipal bus stand, which the Municipality had no
power to do. Consequently it must be held that byelaw 2 is not valid and with
it must go the other bye-laws.
(iv) Further, in the present case the
District Magistrate had admittedly declared the Bhopal Municipal Bus Stand as
bus stand. Power to specify the place under section 68(2) (r) and (s) vests in
the State Government. It has not been shown that the State Government had any
power to delegate their power under this section to the District Magistrate,.
It has also not shown that the District
Magistrate issued any notification specifying the' Bhopal Bus Stand as one
under the provisions of section 68(2)(r) and (s) of the Motor Vehicles Act. If
at all the District Magistrate had taken any action it could only be under s.
76. But that section does not enable him to specify places for setting down or
picking up of passengers.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1547 of 1967.
Appeal by certificate from the judgment and
order dated October 18, 1966 of the Madhya Pradesh High Court at Jabalpur in
Misc. Petition No. 557 of 1960.
M. C. Chagla, Rameshwar Nath and Seeta
Vaidialingam, for the appellant.
M. N. Phadke and A,. G. Ratnaparkhi, for
respondent No. 1.
I. N. Shroff and R. P. Kapur, for respondent
No. 2.
The Judgment of the Court was delivered by
ALAGIRISWAMI, J.-On 6-11-1964 the Municipal Council of Bhopal made bye-laws
under the provisions of s. 356.(7) (f) & (x) read with s. 349(ii) of the
Madhya Pradesh Municipalities Act, 1961 after previous publication in the M. P.
Rapatra as required under s. 357(4) and confirmation by the State Government
under s. 357(3) in respect of a Municipal bus stand. Bye-law 2 of the bye-laws
provided that no person 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 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 by 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.
276 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;
(n) 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 Story 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.
2 7 7 Fees can be prescribed under section
349(ii) in respect of these matters. The words above mentioned in that section
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 busstand. 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.
Let us now consider if under the provisions
of section 358, already extracted, the Municipal Council can validly make the
present bylaws. It is not possible to relate the provision of clause (f) of
subsection (7) as having anything to do with the provision of a bus stand. As
regards clause (in) of sub-section (7) "the regulating and prohibiting the
stationing of carts...... on any ground under the control of the Council or the
using of such ground as halting place of vehicles" 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 vehicles cannot be used
to compel people use such land as halting places. Such a power must be
specifically given. Compare this section with sections 270-B and 270-C of the
Madras District Municipalities Act, 1920, which read as follows "270-B.
(1) The municipal council may construct or provide and maintain public landing
places, halting places and cart stands and may levy fees for the use of the
same.
(1-A)............................
(2)...A statement in English and a vernacular
language of the district of the fees fixed by the council for the use of such
place shall be put up in a conspicuous part thereof.
Explanation:A cart stand shall be for the
purposes of this Act includes a stand for carriages including motor vehicles
within the meaning of the Indian Motor Vehicles Act, 1914 and animals."
"270-C. Where a municipal council has provided a public landing place,
halting place or cart-stand, the executive authority may prohibit the use for the
same purpose by any person within such distance thereof, as may be determined
by the municipal council, of any public place or the sides of any public
street." Even these sections deal with use of landing places, halting
places and cart-stands outdo not deal with places for setting down or taking up
of passengersIt is well to keep clear in one's mind the distinction between
halting places which would be the equivalents of garages of private persons and
places where passengers may be set down and taken up which can properly be
called bus stands. The power to compel persons in charge of motor buses to stop
only at certain places for the purpose of taking up or setting down of passengers
is a matter which relates to motor traffic and there is a specific provision in
section 68 (2) (r) & (s) of the Motor Vehicles Act for this specific purpose.
They read as follows :
"68. (2) Without prejudice to the generality
of the' foregoing power, rules under this section may be made with respect to all
or any of the following matters, namely (r) prohibiting the picking up or setting
down of passengers by stage or contract carriages at specified places or in specified
areas or at places other than duly notified stands or halting places and requiring
the driver of a stage carriage to stop and remain stationary for a reasonable time
when so required by a passenger desiring to board or alight from the vehicle at
a notified halting place;
(s) the requirements which shall be complied with
in the construction or use of any duly notified stands or halting place, including
the provision of adequate equipment and facilities for the convenience of all users
thereof, the fees, if any, which may be charged for the use of such facilities,
the records which shall be maintained at such stands or places, the staff to be
employed thereat, and the duties and conduct of such staff, and generally for maintaining
such stands and places in a serviceable and clean condition." This Court in
T. B. Ibrahim v. R.T.C., Tanjore () held that the expression 'duly notified stand'
in the Motor Vehicles Act means 'a stand duly notified by the Transport Authority'.
It was contended before this Court that section 68(2) (r) of the Motor Vehicles
Act did not confer the power upon the transport authority to direct the fixing or
the alteration of a bus-stand. This Court rejected that contention. It pointed out
that the section gives power to the Government to prohibit a specified place from
being used for picking up or setting down passengers. This Court held that section
270-B, 270-C and 270-E of the Madras District Municipalities Act do not affect the
power of the Transport Authority to regulate traffic control or impose restrictions
upon the licence of any such cart-stand. In Municipal.
Board, Pushkar v. State Transport Authority, Rajasthan
(2) this Court pointed out that a 'bus stand' meant a place where bus service commenced
or terminated and that section 86 dealt with _parking places referred to in section
91(2) (c) of the Motor Vehicles Act. The fixation of bus stands was held to be within
section 68 (2) (r) of the Act and the power to issue the necessary notification
was held to be implied in that clause.
Under section 76 of the Motor Vehicles Act the
State Government or any-authority authorized in this behalf by the State Government
may in consultation with the local authority having jurisdiction in the area concerned,
determine places at which motor vehicles may stand either indefinitely or for a
specified period of time, and may determine the places at which public service vehicles
may stop for a longer time than is necessary for the taking up and setting down
of passengers. Unlike section 68 which confers power on the State Government alone
this (1)[1953] S.C.R. 290.
(2) (1963) Supp. (2) S.C.R. 373.
27 9 section enables the State Government to authorize
any authority to take action under it. As is clear from a reading of section 76,
it does not deal with a bus stand in the sense of a place for taking up and setting
down of passengers, which is dealt with under section 68 (2) (r).
While section 258(7)(n) 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
that 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) & (s) of the Motor Vehicles Act.
It is interesting to note that in this case the
respondents as well as the Municipal Council had stated that the District Magistrate
had declared the Bhopal Municipal Bus Stand as a bus stand. Power to specify the
place under section 68 (2) (r) & (s) vests in the State Government.
Neither party has been able to show us that there
is any power in the State Government to delegate their power under this section
to the District Magistrate nor have we been shown any notification by the District
Magistrate specifying the Bhopal Municipal Bus Stand as one under the provisions
of section 68(2) (r) & (s) of the Motor Vehicles Act.
Apparently both the parties proceeded on a misapprehension.
If at all the District Magistrate had taken any
action it could only be under section 76. But that section does not enable him to
specify places for setting down or picking up of passengers as we pointed out earlier.
Therefore, we must hold that the Madhya Pradesh High Court was in error in holding
bye-law 2 valid.
Mr. M. C. Chagla, appearing for the Municipal
Council, made those four points
1. There is no compulsion on anybody to park his
bus within the municipal limits and that he can park it outside the municipal limits
for the purpose of picking up and setting down passengers.
2. That if he parks the bus in the municipal bus
stand he is using municipal land.
3...... That this is with the permission of the
Municipality.
4. That for this permission a permit is issued
and a fee is charged.
The first proposition has only to be stated to
be rejected.
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. This argument is as
fallacious as the one put forward by Mr. Phadke on behalf of the respondent that
he had a fundamental right to use the Municipal bus stand. Nobody has a fundamental
right to use a land belonging to 280 another without that persons permission or
paying for it if necessary. While the Municipal Council has no power to compel persons
plying motor buses for hue 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. In that sense propositions 2 and 3 put forward by
Mr. Chagla are unexceptionable. If for this permission the formality of the issue
of a permit is followed and a fee is charged it cannot be said to be objectionable.
In that case the charges may be such as may be agreed upon between the parties,
i.e. if the Municipality charges a certain rate only people who are prepared to
pay at that rate would resort to that place. Nobody can be compelled to go to that
place. Such a provision is permissible not under any provisions of the Madhya Pradesh
Municipalities Act but arises out of the right which the Municipal Council, like
the owner of any other property has, to permit people to use any property belonging
to it only on certain conditions.
The bylaws compel persons in charge of motor buses
to use the Municipal bus stand, which the Municipality has no power to do. Consequently
we hold bye-law 2 as not valid and with it go the other bye-laws. As we have held
by-laws not valid we do not consider it necessary to deal with the argument advanced
by Mr. Phadke based on section 6 of the Madhya Pradesh Motor Vehicles Taxation Act,
1947.
In the result the appeal is dismissed; the appellant
win pay the respondents' costs.
G.C.
Appeal dismissed.
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