HIGH COURT OF JUDICATURE AT ALLAHABAD AFR (Judgment reserved on 09.07.2015) (Judgment delivered on 21.09.2015) Court No. - 37 Case :- WRIT TAX No. - 71 of 2012 Petitioner :- Rahat Ali And Another Respondent :- State Of U.P. And Others Counsel for Petitioner :- S.K. Jaiswal Counsel for Respondent :- C.S.C.,Baleshwar Chaturvedi,S.M. Shukla WITH Case :- WRIT TAX No. - 1531 of 2011 Petitioner :- Madan Pal Singh And Another Respondent :- State Of U.P. And Others Counsel for Petitioner :- S.K. Jaiswal Counsel for Respondent :- C.S.C.,P.K.Srivastava,S.D.Kautilya,S.M. Shukla WITH Case :- WRIT TAX No. - 63 of 2012 Petitioner :- Javed Ali And Another Respondent :- State Of U.P. And Others Counsel for Petitioner :- S.K. Jaiswal Counsel for Respondent :- C.S.C.,Baleshwar Chaturvedi,S.M. Shukla WITH Case :- WRIT TAX No. - 64 of 2012 Petitioner :- Mohan Lal And Another Respondent :- State Of U.P. And Others Counsel for Petitioner :- S.K. Jaiswal Counsel for Respondent :- C.S.C.,B. Chaturvedi,S.M. Shukla WITH Case :- WRIT TAX No. - 65 of 2012 Petitioner :- Hareesh Kumar And Another Respondent :- State Of U.P. And Others Counsel for Petitioner :- S.K. Jaiswal Counsel for Respondent :- C.S.C.,Baleshwar Chaturvedi,S.M. Shukla WITH Case :- WRIT TAX No. - 66 of 2012 Petitioner :- Qambyab Khan And Another Respondent :- State Of U.P. And Others Counsel for Petitioner :- S.K. Jaiswal Counsel for Respondent :- C.S.C.,B. Chaturvedi,S.M. Shukla WITH Case :- WRIT TAX No. - 70 of 2012 Petitioner :- Smt. Qamar Jahan And Another Respondent :- State Of U.P. And Others Counsel for Petitioner :- S.K. Jaiswal Counsel for Respondent :- C.S.C.,Baleshwar Chaturvedi,S.M. Shukla WITH Case :- WRIT TAX No. - 72 of 2012 Petitioner :- Azad Ali And Another Respondent :- State Of U.P. And Others Counsel for Petitioner :- S.K. Jaiswal Counsel for Respondent :- C.S.C.,Baleshwar Chaturvedi,S.M. Shukla WITH Case :- WRIT TAX No. - 73 of 2012 Petitioner :- Ajay Kumar And Another Respondent :- State Of U.P. And Others Counsel for Petitioner :- S.K. Jaiswal Counsel for Respondent :- C.S.C.,Baleshwar Chaturvedi,S.M. Shukla WITH Case :- WRIT TAX No. - 76 of 2012 Petitioner :- Irfan Beg And Another Respondent :- State Of U.P. And Others Counsel for Petitioner :- S.K. Jaiswal Counsel for Respondent :- C.S.C.,Baleshwar Chaturvedi,S.M. Shukla WITH Case :- WRIT TAX No. - 77 of 2012 Petitioner :- Rambeer Singh And Another Respondent :- State Of U.P. And Others Counsel for Petitioner :- S.K. Jaiswal Counsel for Respondent :- C.S.C.,Baleshwar Chaturvedi,S.M. Shukla WITH Case :- WRIT TAX No. - 78 of 2012 Petitioner :- Anand Prakash Gupta And Another Respondent :- State Of U.P. And Others Counsel for Petitioner :- S.K. Jaiswal Counsel for Respondent :- C.S.C.,Baleshwar Chaturvedi,S.M. Shukla WITH Case :- WRIT TAX No. - 79 of 2012 Petitioner :- Smt. Kiran Devi And Another Respondent :- State Of U.P. And Others Counsel for Petitioner :- S.K. Jaiswal Counsel for Respondent :- C.S.C.,Baleshwar Chaturvedi,S.M. Shukla WITH Case :- WRIT - C No. - 13795 of 2011 Petitioner :- Rakesh Kumar Vishwakarma And Another Respondent :- State Of U.P. And Others Counsel for Petitioner :- Santosh Kumar Giri Counsel for Respondent :- C.S.C.,Mohd. Arif Khan WITH Case :- WRIT - C No. - 18434 of 2012 Petitioner :- Debi Chandra Garg And Others Respondent :- State Of U.P. And Others Counsel for Petitioner :- Dr. Deepti Tripathi,Randheer Singh Malik Counsel for Respondent :- C.S.C. Hon'ble Tarun Agarwala,J.
Hon'ble Surya Prakash Kesarwani,J.
(Per: Surya Prakash Kesarwani, J.)
1. Heard Sri S.K. Jaiswal, learned counsel for the petitioners, Sri S.M. Shukla, learned counsel for the respondent No.2-Nagar Nigam, Ghaziabad and the learned standing counsel for the State-respondents. No one appeared on behalf of respondent No.4 in the revised call.
2. In this group of cases, the petitioners have prayed for a writ, order or direction in the nature of certiorari to quash the bye-laws dated 12th August 1998 and 7th September, 1999 published in the U.P. Gazettee dated 01.11.1999 and 25.11.1999 framed by the Nagar Palika Parishad, Dankaur, Gautam Buddh Nagar and Nagar Nigam, Ghaziabad respectively. They have also prayed for a writ in the nature of mandamus commanding the respondents not to realize parking fees from the petitioners. Since common issues are involved in these writ petitions and as such, with the consent of the learned counsel for the parties, these writ petitions have been heard together and are being decided accordingly. For the sake of convenience, the facts of Writ Tax No.71 of 2012, Rahat Ali and others Vs. State of U.P. and others are being noted below:
3. The petitioners are registered owner of buses registered in the office of Regional Transport Officer, Ghaziabad. They are operating their buses under valid permits on Ghaziabad-Dadri-NOIDA and allied routes. During the course of journey, they pass through the limits of Nagar Palika Parishad, Dankaur, District Gautam Buddh Nagar. In paragraph-5 of the writ petition, it is alleged that the petitioners do not utilize any portion of land belonging to the Nagar Nigam, Ghaziabad or the Nagar Palika Parishad, Dankaur for any purpose including for taking up or setting down the passengers. In the counter affidavit of Sri Anil Kumar, Executive Officer Nagar Panchayat, Dankaur, the aforesaid averments of paragraph-5 of the writ petition have not been denied and it is stated in paragraph-3 of the counter affidavit that the contents of paragraph-5 of the writ petition need no comment. In paragraph-13 of the counter affidavit of Sri A.K. Singh filed on behalf of Ghaziabad Nagar Nigam, it is stated in reply to pargraph-5 of the writ petition that the answering respondents are charging parking fees only from those motor vehicle owners, who used to park their vehicle to pick up or set down the passengers at the parking place. It has further been stated that no stage carriage permit holder will use any place for the purpose of halting, picking up and setting down of passengers other than a place notified as per provisions of the Motor Vehicles Act.
4. The Nagar Nigam, Ghaziabad framed the bye-laws dated 07.09.1999 for realization of licence fees on certain activities. Nagar Palika Parishad, Dankaur has also framed a bye-laws dated 12th August, 1998 in exercise of powers conferred under Section 298 of U.P. Municipalities Act, 1916, whereunder tehbajari on the vehicles in the limits of Nagar Palika Parishad Dankaur has been provided. In the garb of these bye-laws, the respondents No.2 and 4 are realising entry fee/ parking fee from petitioners' vehicles entering in the territorial limits of Nagar Nigam, Ghaziabad and Nagar Palika Parishad, Dankaur. Being aggrieved, the petitioners have filed these writ petitions.
Submissions on behalf of petitioners:
5. Learned counsel for the petitioners submits that the aforesaid two bye-laws of the respective local bodies provide for licence fees, and not for parking fees and as such, the realization in the name of parking fees @ Rs.30/- per vehicle by the aforesaid two local bodies at the entry point without the authority of any bye-laws, is wholly without authority of law. The realization in the name of parking fees by the aforesaid two local bodies is nothing but a realization of tehbajari. The vehicles of the petitioners merely pass through the territorial limits of the aforesaid local bodies from the roads owned and maintained by the U.P. Public Works Department. The aforesaid respondents-local bodies are realizing tehbajari in the name of parking fees, while tehbajari has already been abolished by the State Government.
Submissions on behalf of respondents:
6. Learned counsel for Nagar Nigam, Ghaziabad submits that the fees in question is being realized since the petitioners are doing their business within limits of aforesaid local bodies. He further submits that the facility of parking place has been provided by the Nagar Nigam, Ghaziabad and therefore, the petitioners are liable to pay parking fees.
Discussions and Findings:
7. We have carefully considered the submissions of the learned counsel for the parties and perused the record.
8. In paragraphs-6, 10, 18, 19, 20 and 21 of the writ petition, the petitioners have stated as under:
"6. That the vehicles of the petitioners only pass and repass on the road owned and maintained by the public works department of the State of Uttar Pradesh.
10. That the respondents are realizing the parking fees without framing the bye-laws and charging the parking fees on the basis of bye-laws, which relates to licence fees.
18. That the State Government of U.P. had already abolished the realization of Tehbazari from Nagar Nigam, Nagar Palika Parishad, Nagar Panchayat or any local bodies within the state in the year 1999 itself. The present realization of the parking fee from the petitioner is nothing but a realization of Tehbazari only by changing on its nomenclature. The controversy as to whether the Tehbazari can be realized from the operators has already been concluded by this Hon'ble Court as well as Hon'ble Supreme Court and it has been held that the realisation of Tehbazari from the bus operators is not permissible.
19. That it is also enumerated that the State Government itself has taken cognizance in respect of the illegal realization of the money from the motor operators - by the local bodies in the name of Tehbazari or in the name of parking fee by putting its barriers at the place of entry of such local arrears. The State Government issued notification dated 26.02.1998, 18.07.1998 and 15.04.1999 directing all the Divisional Commissioners and District Magistrates of the State of Uttar Pradesh that such realization of money from the motor owners in the name of Tehbazari or Parking fee by putting barrier at the Entry Places be stopped and no bye laws should be framed by the local bodies for imposition of such fee on the Motor Vehicles as such bye laws are not in public interest.
20. That it is pertinent to mention here that the impugned bye-laws dated 07.09.1999 relates to licence fee but respondent authorities to parking fee, illegally realizing the parking fee Rs.30/- per vehicle, per trip, per day, on the basis of aforesaid bye-laws, which is illegal, arbitrary, bad in law.
21. That despite of prohibitory order issued by the State Government the respondents framed their own bye-laws and have imposed parking fee on the Motor Vehicle Rs.30/- per trip per day."
9. In the counter affidavit filed on behalf of Nagar Nigam, Ghaziabad, the reply to the aforesaid paragraphs of the writ petition have been submitted in paragraphs-14, 18, 25, 26, 27 and 28 as under:
"14. That the contents of paragraph no.6 of the writ petition it is stated that as per provision of Section 182 of the Municipal Corporation Act, the Vehicle regularly used without the limit of Corporation are liable to be taxed, petitioners are not paying any tax U/s 1 of the Municipal Corporation Act, even after using limits of the Corporation.
18. That in reply to the contents of para no.10 of the writ petition, it is submitted that the realization of parking fees are issued by the order of Municipal Commissioner, Nagar Nigam and the same is realized by the Nagar Nigam in respect of the facility provided by the Nagar Nigam.
25. The the contents of paragraph no.18 of the writ petition are absolutely misconceived and have no relevance at all, that the present controversy in as much as being a local body it is the duty of Nagar Nigam, Ghaziabad to make the provision for enhancing its income in order to make out the expenditure.
26. That the contents of paragraph no.19 of the writ petition are misconceived, hence denied. In its reply it is stated that the government has issued direction restraining the authorities not to put barrier for the purpose of realizing any type of transit fee or parking from the vehicle. It is not the case of that any type of barrier erected by the answering respondent.
27. That in reply to the contents of paragraph No.20 of the writ petition it is submitted that the authority realizes the parking fee only in respect of giving several facilities viz. Rainbasera, Sulabh Complex, facility of water, high mask lights etc.
28. That the contents of paragraph no.21 of the writ petition being matter of records need no comment."
10. In the counter affidavit filed on behalf of Nagar Palika Parishad, Dankaur, the aforesaid paragraphs of the writ petition have been replied in paragraphs-3, 7, 14, 15 & 16 as under:
"3. That the contents of paragraph nos.1, 2, 3, 4, 5 and 6 of the writ petition need no comments.
7. That the contents of paragraph no.10 of the writ petition are not admitted as stated and as such, are denied. In reply thereto, it is stated that Nagar Panchayat Dankaur is realizing the parking fee as per the statutory provision incorporated in the Nagar Palika Adhiniyam, 1916.
14. That the contents of paragraph no.18 of the writ petition are not admitted as stated as misleading and as such, are denied. In reply thereto, it is submitted that the respondent No.4 is not realizing any Tehbazari but only parking fee which has been realized under the statutory provisions.
15. That the contents of paragraph no.19 of the writ petition are matter of record to the extent of notification and Government orders.
16. That the contents of paragraph nos.20 and 21 of the writ petition do not pertain to the respondent No.4, hence need no comments."
11. From the pleadings as aforequoted, it is undisputed that no bye-laws has been framed either by the Nagar Nigam, Ghaziabad or by the Nagar Palika Parishad, Dankaur, which authorizes them to realize parking fees and that they are realizing Rs.30/- per vehicle on entry within their local limits from each bus as tehbajari in the name of parking fee/ entry fee, which has been abolished by the State Government. Thus, realization in the name of parking fees @ Rs.30/- per vehicle by the Nagar Nigam, Ghaziabad or by Nagar Palika Parishad, Dankaur from the petitioners' vehicles, is illegal and wholly without authority of law. However, we make it clear that where a parking place has been provided by a local body, and vehicle owners park their vehicles on the designated parking place, then the realization of parking fees for the parking of vehicles shall be valid.
12. We further find that vide government order dated 26th February 1998 (Annexure-7), the State Government has issued directions to all the local bodies directing to remove the barriers and not to realize any amount in the name of vehicle entry fees/ vehicle entry charges/ vehicle entry stand etc. The said G.O. was followed by another government order dated 18th July, 1998 (Annexure-8) prohibiting to levy vehicle entry fees/ vehicle entry stand/ parking fees etc. as this could amount to realization of octroi. However, the said G.O. permitted to realize parking fees or vehicle stand fees if a particular place for parking/ stand has been provided with necessary facilities. For the sake of convenience, the said government order dated 18th July, 1998 is reproduced below:
"i= la[;k% [email protected]&9&98&[email protected] izs"kd] ts0,l0 feJ lfpo] mRrj izns'k 'kkluA lsok esa] 1&leLr e.Myk;qDr mRrj izns'kA 2&leLr ftykf/kdkjh mRrj izns'kA uxj fodkl vuqHkkx&9 fnukWd 18 tqykbZ 1998 fo"k;%&uxjikfydk vf/kfu;e ds varxZr okgu izos'k '[email protected] Qhl mifof/[email protected];e ds laca/k esa Li"Vhdj.kA egksn;] mijksDr fo"k;d 'kklu ds vkns'k la[;k 1 ,e,y,@ukS&9&98&[email protected]] fnukWd 26&02&1998] dk d`i;k lanHkZ xzg.k djsa] ftlesa ;g Li"V dj fn;k x;k Fkk fd LFkkuh; fudk;ksa }kjk mifof/k;kW cukdj okgu izos'k&'[email protected] izos'k LVS.M @ikfdZx Qhl mifof/[email protected];e vkfn ds uke ls izkjEHk dh xbZ olwyh pqaxh dk gh ,d :i gSA vr% ;g O;oLFkk O;kid yksdfgr ds izfrdwy ,oa LFkkuh; fudk;ksa dks iznRr 'kfDr;ksa ds nq:i;ksx dh Js.kh esa vkrh gSA vr% bl izdkj dh mifof/k;[email protected];e iks"k.kh; ugh gSA 2&'kklu }kjk le;≤ ij ;g Hkh Li"V fd;k tk pqdk gS fd pqaxh VSDl dks fdlh Hkh :i esa iquthZfor djus dh 'kklu dh dksbZ ea'kk ugh gSA 3& 'kklukns'k fnukWd 26 Qjojh] 1998 ds ifjizs{; esa dfri; LFkkuksa ls Li"Vhdj.k dh ekWx dh xbZ gS fd D;k LFkkuh; fudk;ksa }kjk ikfdZax Qhl ds laca/k esa cuk;h x;h mifof/k;[email protected];e bl 'kklukns'k dh ifjf/k esa vk;saxs vFkok ughaA ;g Li"V fd;k tk jgk gS fd ikfdZax [email protected] LVS.M ds uke ij cukbZ xbZ mifof/k;ksa dksa rc gh iks"k.kh; ekuk tk;sxk tc bl laca/k esa LFkkuh; fudk;ksa }kjk fuEu nks vkSipkfjdrk;sa iw.kZ dj yh xbZ gksa%& ¼d½ ftl LFkku ij ¼LVS.M ij½ okgu ikfdZax dh tk; mldk {ks= lqifjHkkf"kr ,oa Li"V gksuk pkfg,A bl LFkku ds vfrfjDr vU; LFkkuksa ij ikfdaZx 'kqYd ugha fy;k tk ldsxk] yksd fuekZ.k foHkkx dh lM+dks ds fdukjs FkksM+s le; ds fy, ikdZ fd;s x;s okgu ij Hkh ;g 'kqYd olwyus dh vuqefr ugh gksxhA ¼[k½ ftl LFkku ij ikfdaZx 'kqYd dh olwyh dh tk; ogkW ij LFkkuh; fudk; }kjk is;ty o efgyk Vk;ysV ,oa ukxfjdksa ds foJke gsrq 'ksM dh O;oLFkk dh tk;A 4& ;g fu.kZ; ysuk fd uxjh; LFkkuh; fudk;ksa }kjk mijksDr ^^d^ ,oa ^^[k^ ds vuqlkj vkSipkfjdrk,a iw.kZ dj yh x;h gS] dk vf/kdkj ftykf/kdkjh esa fufgr fd;s tkrs gSaA vr% ftykf/kdkjh bl laca/k esa ;fn dksbZ fookn mRiUu gksrk gS] rks mldk fujkdj.k djsaxsA 5& ftl LFkku ij ikfdZax dh olwyh dh tk; ogkW ij ,d cksMZ yxkdj fo'ks"k izdkj ds okguksa ds olwy fd;s tkus okys ikfdZax 'kqYd dh nj iznf'kZr dh tk;A fofHkUu izdkj ds okguksa ls olwy dh tkus okyh ikfdZax 'kqYd dh nj lacaf/kr uxjh; LFkkuh; fudk; r; djasxsA ikfdZax 'kqYd ls dh tkus okyh ikfdZax 'kqYd dh olwyh ftl O;fDr }kjk dh tk;sxh mls lacaf/kr ftykf/kdkjh vFkok ijxukf/kdkjh ds gLrk{kjksa ls QksVks;qDr ifjp; i= fn;s tk;A blls ;g lqfuf'pr gksxk fd dksbZ vukf/kd`r O;fDr ikfdaZx 'kqYd dh olwyh u djsaA 6& fofHkUu izdkj ds okguksa ds fy, ikfdZax 'kqYd dk fu/kkZj.k bl gsrq fn;s tkus okys Bsds dh uhykeh ds iwoZ uxjh; LFkkuh; fudk; }kjk fu/kkZfjr fd;s tk;saxsA uxjh; LFkkuh; fudk; ;g lqfuf'pr djsaxs fd muds }kjk fu/kkZfjr fd;s x;s ikfdZax 'kqYd ds vfrfjDr vkSSj dksbZ /kujkf'k dh olwyh u dh tk;A bl laca/k esa izkIr fdlh Hkh izdkj dh f'kdk;r dk fujkdj.k ftykf/kdkjh ;k ftykf/kdkjh }kjk ukfer vf/kdkjh }kjk fd;k tk;sxk ,oa buds }kjk fy;k x;k fu.kZ; LFkkuh; fudk;ksa ds fy, ck/;dkjh gksxkA 7& lHkh uxuh; LFkkuh; fudk; mijksDrkuqlkj ;g lqfuf'pr djasxs fd ikfdZax esa fd;s tkusokys Bsdksa ds fu;e o 'krksZ esa mijksDrkuqlkj la'kks/ku dj fy;k tk, ,oa tgkW izfdz;k viuk yh xbZ gks ogkW Hkh mijksDrkuqlkj la'kks/ku fd;s tk;saxsA 8& mijksDr 'krsZa iwjh u dj ikfdZax 'kqYd olwy fd;k tkuk vfu;fer gksxk vkSj blds fy, lacaf/kr fudk; ds fo:) dBksj dk;Zokgh lapkfyr dh tk;sxhA Hkonh; [email protected]& ¼ts0,l0feJ½ lfpo la[;k ,oa fnukWd rnSo izfrfyfi fuEufyf[kr dks lwpukFkZ ,oa vko';d dk;Zokgh gsrq izsf"kr gS%& 1& funs'kd] LFkkuh; fudk; funs'kky;] y[kuÅ dks bl funsZ'k ds lkFk fd os d`i;k lHkh LFkkuh; fudk;ksa dks bl vkns'k dh nks&nks izfr;kW fHktokuk lqfuf'pr djsxsA 2& uxj fodkl foHkkx ds leLr vf/[email protected] A vkKk ls] g0 ¼ts0,l0feJ½ fo'ks"k lfpo"
13. The aforesaid G.O. was followed by another government order dated 15th April, 1999 providing as under:
"i= la[;k% [email protected]&9&98&[email protected] izs"kd] ts0,l0 feJ lfpo] mRrj izns'k 'kkluA lsok esa] 1&leLr e.Myk;qDr mRrj izns'kA 2&leLr ftykf/kdkjh mRrj izns'kA uxj fodkl vuqHkkx&9 fnukWd 15&04&99 fo"k;%& uxjh; fudk;ksa] }kjk cSfj;j yxkdj okgu izos'k '[email protected] Qhl dh olwyh fu"ks/k fd;s tkus ds laca/k esaA egksn;] mDr fo"k;d uxj fodkl vuqHkkx&9 }kjk fuEu nks 'kklukns'k izlkfjr fd;s x;s gS%& ¼d½ la[;k 1&,e ,y ,@ukS&9&98&[email protected]] fnukWd 26&02&98 ¼[k½ la[;k&[email protected]&9&98&[email protected] fnukWd&18&07&98 2& mijksDr nksuksa 'kklukns'kksa dh ;g ea'kk gS fd fdlh Hkh ifjfLFkfr esa fdlh Hkh uxjh; fudk; }kjk cSfj;j yxkdj okgu izos'k '[email protected] Qhl dh olwyh ugha dh tk;sxhA 'kklu ds laKku esa ;g rF; vk;k gS fd dfri; uxjh; fudk;ksa }kjk [email protected]'kgj ds izos'k }kj ij cSfj;j yxkdj izos'k 'kqYd vFkok ikfdaZx Qhl dh olwyh dh tk jgh gSA uxjh; fudk;ksa dk ;g dk;Z voS/kkfud gSA 3& vr,o vkils vis{kk dh tkrh gS fd lacaf/kr uxjh; fudk;ksa dks vius Lrj ls cSfj;j yxkdj okgu izos'k '[email protected] Qhl dh olwyh fu"ks/k djus ds funsZ'k izlkfjr dj nsaA ;fn blds ckotwn Hkh cSfj;j yxkdj okgu izos'k 'kqYd ikfdZax Qhl fdlh Hkh uxjh; fudk; ds }kjk olwy dh tkrh gS rks blds fy, izFke n`"V;k lacaf/kr uxjh; fudk; ds v?;{k mRrjnk;h gksaxs rFkk ,slh fLFkfr esa muds fo:) dk;Zokgh Hkh dh tk;sxhA 4& d`i;k bl 'kklukns'k dh izkfIr Lohdkj djus dk d"V djsaA rnuqlkj vuqikyu lqfuf'pr fd;k tk;A Hkonh;
[email protected]& ¼ts0,l0feJ½ lfpo i`0la0 1239 rn~fnukWd mijksDr dh izfrfyfi fuEufyf[kr dks lwpukFkZ ,oa vko';d dk;Zokgh gsrq izsf"kr %& 1& funs'kd] LFkkuh; fudk;] m0iz0 y[kuÅ dks leLr foHkkxksa dks funsZf"kr @izzsf"kr djus gsrqA 2& uxj fodkl foHkkx ds leLr vf/[email protected] A g0 ¼jktho dqekj½ fo'ks"k lfpo"
14. From the facts afore-noted, it is clear that parking fees cannot be realized in violation of the afore-quoted two government orders and without framing appropriate bye-laws.
15. In the case of Kamaljeet Singh and others Vs. Pilkhwa and others, AIR 1987 SC 56, Hon'ble Supreme Court held as under:
"1. The short question that arises in these appeals by special leave is as to the validity of the imposition of a toll tax by the Municipal Board, Pilkhwa on vehicles and other conveyances, animals and laden coolies entering the municipal limits under S.128(1)(vii) of the U.P. Municipalities Act, 1916. The High Court has upheld the levy of the toll tax relying upon the decision of this Court in Automobile Transport (Rajasthan) Ltd. v The State of Rajasthan (1963) 1 SCR 491 : (AIR 1962 SC 1406) as being compensatory in nature. In Automobile Transport's case, the majority held that regulatory measures imposing compensatory taxes for the use of trading facilities do not hamper trade, commerce or intercourse, but rather facilitate them and therefore are not hit by the freedom of trade and commerce guaranteed by Article 301 of the Constitution. The toll tax in question however cannot be treated to be a compensatory tax for the use of trading facilities. The Municipal Board provides no facilities whatever to the owners of vehicles like stage carriages making use of National Highway No. 24. The township of Pilkhwa is off the National Highway and is quite at some distance. It is connected by a road and a part of the National Highway has been included within the municipal limits. Merely because stage carriage operators like the appellant ply their stage carriages on permits issued on the interstatal route Delhi-Garhmukteshwar which falls on the National Highway and stop their buses for the facility of passengers going to and coming from Pilkhwa, or that the Municipal Board has set up two electric poles at the toll barriers for facility of collection of the toll tax, does not justify the imposition of a toll tax. Usually, the consideration for a toll is some amenity, service, benefit or advantage which the person entitled to the toll undertakes to provide for the public in general, or the persons liable to pay the toll. The National Highway is being maintained by the Government and the approach road built by the Public Works Department. There is a nallah constructed by the Municipal Board for flow of the sewage water from the town of Pilkhwa, but that does not entitle the Board to levy a toll tax on stage carriage operators like the appellants as a compensatory tax. Even assuming that the Municipal Board has to incur expenditure on maintenance of the connecting road and the nallah, but they are facilities provided for the residents of the town for which it recovers various taxes. Furthermore, maintenance of roads, bridges etc. are statutory duties of the Municipal Board under S. 7 of the Act. The levy of the toll tax by the Municipal Board must therefore be struck down as ultra vires.
2. We are informed by learned Counsel for the respondents that the State Government by notification dated 4/04/1979 has withdrawn the transit tax on vehicles and other conveyances, animals and laden coolies who are merely passing through the municipal limits. Our attention has been drawn to a letter dated 25/04/1979 which shows that the State Government has taken a decision that all passenger vehicles like buses, cars, taxis and tempos etc., shall not be made to pay the transit tax.
3. The result therefore is that the appeals must succeed and are allowed with costs. The judgment and order of the High Court are set aside and the impugned notification dated 1/05/1970 levying the toll tax is struck down as ultra vires. Appeal allowed."
16. In the case of Mukhtar Ahmad and others Vs. Nagar Panchayat, Shishgarh, Bareilly and another, Writ Petition No.777 of 2001 decided on 26th October 2006, a Division Bench of this Court followed the law laid down by the Hon'ble Supreme Court in the case of Kamaljeet Singh (supra) and also another Division Bench judgment of this Court in the case of Om Prakash Vs. Municipal Board Debai, 1987 UPLBEC 562, and held as under:
"In view of the above as the case is squarely covered by the said judgments, the petitioner succeeds and is allowed in terms of the interim order passed by this Court earlier on 24.05.2001 which provides that no parking/ tajbazari tax shall be charged from the petitioner no.1 and members of the petitioner no.2 unless they voluntarily park their vehicles at the parking place provided by the respondents."
17. In the case of Loni Border Shamli Mini Bus Operators Association Baraut Bagpat and another Vs. State of U.P. and others in C.M.W.P. No.689 of 2004, decided on 12.08.2008, a Division Bench of this Court again followed the law laid down by Hon'ble Supreme Court in the case of Kamaljeet Singh and others (supra) and a Division Bench of this Court in Om Prakash ((supra)), and held as under:
"In view of the above as the case is squarely covered by the said judgments, the petitioner succeeds and is allowed in terms of the interim order passed by this Court earlier on 21.05.2004 which provides that no fee shall be charged in the form of parking fee unless the vehicles are voluntarily parked on the parking place maintained by the respondents."
18. In the case of Smt. Nirmala Devi Vs. Nagar Palika, Auraiya and others, in Writ-C No.12566 of 2003, decided on 15.11.2010, a Division Bench of this Court held has under:
"The case is squarely covered by the judgment of the Hon'ble Supreme Court in Kamaljeet Singh & Ors. Vs. Municipal Board, Pilkhwa & Ors. 1987 UPLBEC 211 and of this Court in Om Prakash Vs. Municipal Board, Debai, Bulandshahr, 1987 UPLBEC 562. In the first case it has been held by the Hon'ble Supreme Court that unless the Municipal Board provides certain facilities it cannot impose a tax on the vehicles merely for passing through its limit/roads etc. In the second case a Division Bench of this Court has held as under :-
"In the two cases referred to above, notifications had been issued under Section 298(2) List H(b), whereas in the instant case, the bye-law was made under Section 298(2) List 1 E(b), there is a difference in between the two provisions. However, under clause (b) of List E as well no fees could be charged for entry on stage carriages for setting down and picking up passengers. Section 265 of the Act also view the stay of a vehicle for the period longer than necessary for picking up or setting down passengers as not amounting to obstruction".
In Municipal Council Bhopal Vs. Sindhi Sahiti Multi Purpose Co-operative Society Ltd. 1973 SC 2420, it was held that a Municipal Board could not compel the persons plying the motor buses for hire to park buses at place specified by it. The Court held as under :-
" However, if a municipality provides for a bus stand without compelling everybody to use it, a fee can be charged on bus operators using it voluntarily."
In view of the above as the case is squarely covered by the said judgments, the petition succeeds and is allowed and it is provided that no parking/tahbazari tax shall be charged from the petitioner unless she voluntarily parks her vehicles at the parking place provided by the respondents."
19. In the case of Virendra Singh Yadav and others Vs. State of U.P. and other in Writ-C No.39180 of 2002, decided on 28.02.2011, another Division Bench of this Court considered similar controversy and following the decision of the Hon'ble Supreme Court in the case of Kamaljeet Singh (supra) and various Division Bench judgments of this Court, held that no parking/ tehbajari tax shall be charged from the petitioners unless they voluntarily park their vehicles at the parking place provided by the respondents.
20. Similar view was taken by another Division Bench of this Court in the case of C/m C.L. Gupta World School Vs. State of U.P. and others in Writ-C No.58656 of 2010, decided on 01.10.2010.
21. In the case of Smt. Amrit Kaur and others Vs. State of U.P. and others in C.M.W.P. No.22277 of 2003, decided on 2nd April, 2007, a Division Bench of this Court considered the legality of the demand of licence fees imposed by Municipality, Nakur in exercise of powers under Section 298 of the U.P. Municipalities Act, 1916 and the bye-laws framed by the Nagar Palika, Nakur, and held that there is nothing in the regulation as for how respondents are going to regulate the traffic and in such an eventuality neither licence can be imposed nor licence can be recovered. It was further clarified that in case the petitioners used parking place owned and possessed by respondent Nagar Nigam and accept the services rendered by the Nagar Palika, then they should be liable to pay parking fees in accordance with law.
22. In the case of Sri Vineet Kaushik and others Vs. State of U.P. and others, in C.M.W.P.(Tax) No.368 of 2010, decided on 08.08.2014, a Division Bench in which one of us (Hon'ble Tarun Agarwala, J.) was a member, held as under:
"In the instant case we find that a parking stand has been provided, but, the petitioners are deliberately not using it and are parking their vehicles elsewhere in order to avoid payment of parking fee. In the rejoinder affidavit, the petitioners have admitted that they are parking their vehicles on the roadside to drop and pick up passengers. This admission clearly indicates that the petitioners are illegally stopping at points, which are not designated for parking. By stopping at places other than the notified bus stand and parking the bus on the land belonging to the Municipal Board, the authorities would be justified in charging the petitioner.
In the light of the aforesaid, since we find that the petitioners are violating the provisions of the Motor Vehicles Act and are stopping their vehicles on the roadside for picking and dropping the passengers and are not parking their vehicles at the designated bus stand, the petitioners are not entitled for any writ of mandamus. "
23. In view of the above discussions and also in view of the undisputed facts that the realization in question in the name of parking fees by the Nagar Nigam Ghaziabad and Nagar Palika Parishad, Dankaur is undisputedly without authority of law. The impugned bye-laws of the Nagar Palika Parishad, Dankaur provides for tehbajari and the manner in which the contract for tehbajari shall be given. Clause-4 of the impugned bye-laws of Nagar Nigam, Ghaziabad provides for yearly charges/ prescribed fees of licences to be realized on certain business activities as specified in the schedule given under the heading "LICENCE SHULK KI VARSHIK DARE". This contains 11 items, which do not include business activity of plying of vehicles. The aforesaid bye-laws provides for penalty for violation of the bye-laws to the maximum of Rs.500/- and for continuous default, Rs.20/- per day. Thus, the impugned bye-laws dated 07.09.1999 relied by the Nagar Nigam, Ghaziabad does not authorize it to realize parking fees from vehicle owners on entry of their vehicles within their territorial limits.
24. In view of the above discussions, we are of the view that in the absence of appropriate bye-laws, the action of the Nagar Palika Parishad, Dankaur and the Nagar Nigam, Ghaziabad in realizing parking fees from the petitioners is wholly arbitrary, illegal and without authority of law, and therefore, a mandamus is issued to them not to realize parking fees from the petitioners' vehicles.
25. In result, all the writ petitions succeed and are hereby allowed to the extent indicated above with the directions aforementioned.
Order Date :- 21.09.2015 NLY