Allahabad High Court
Smt. Julekha Khatoon & Others vs State Of U.P. & Others on 27 November, 2013
Bench: Sunil Ambwani, Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 32
Case :- WRIT TAX No. - 1120 of 2009
Petitioner :- Smt. Julekha Khatoon & Others
Respondent :- State Of U.P. & Others
Counsel for Petitioner :- S.N. Jaiswal
Counsel for Respondent :- C.S.C.,Devendra Kumar,S.N.Dwivedi
Hon'ble Sunil Ambwani,J.
Hon'ble Surya Prakash Kesarwani,J.
1. We have heard Sri S.N. Jaiswal for the petitioner. Learned standing counsel appears for the State respondents. No one appears for Nagar Panchayat, Kithore, Meerut. Sri Devendra Kumar has filed counter affidavit on behalf of respondent Nos. 2 and 3.
2. The petitioners are mini bus owners, and they are operating their vehicles on the city route namely Ganohi Ashram (Meerut) to Kithore via Medical College, under the permits obtained by them from the Regional Transport Authority, Meerut. By this writ petition, the petitioners have prayed for a writ of mandamus commanding the respondents not to realize parking fee from them.
3. In the counter affidavit of Sri Sushil Kumar, as Executive Officer, Nagar Panchayat, Kithore, District Meerut, it is stated that the Nagar Panchayat, Kithore, District Meerut invited objections, and has made by laws, which has been approved by the State Government on 26.11.2001, authorizing all the Nagar Nigam/Nagar Palika Parishad//Nagar Panchayat, to charge parking fee from the vehicles, which enter into the limits of local bodies and thereafter use the stand, or parking places, to pick-up and drop the passengers within the said Nagar Nigam or Nagar Panchayat. The relevant bye-laws provide that the parking fees shall be realized by the local body only for parking the vehicle at a place, which has been identified by the local body, and that where the facility of parking is provided; the local body will notify the name of the contractor, period of contract and parking rate on the notice board fixed, and where the parking facility is not provided, parking fee shall not be charged.
4. It is submitted by Sri S.N. Jaiswal that despite express prohibition in the bye laws from charging parking fee unless arrangements at notified place of parking are made, the respondents through their contractors are forcibly charging parking fee.
5. We find that the issue is squarely covered by judgment of the Court in Writ Tax No. 1084 of 2008 - Indra Mohan Goel and others vs. State of U.P. and others decided on 27.05.2009. Following the judgment of Supreme Court in Kamaljeet Singh Others vs. Municipal Board, Pilkhwa and others [1987 UPLBEC 211] and judgment of the Court in Om Prakash Vs. Municipal Board, Debai, Bulandshahar [1987 UPLBEC 562], the Court held as follows:-
In the two cases referred to above, notifications had been issued under Sections 298 (2) List H (b), whereas in the instant case, the bye-law was made under Section 298 (2) List IE (b). There is a difference in between the two provisions. However, under clause (b) of List E as well as 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 no amounting to obstruction."
6. In Municipal Council, Bhopal Vs. Sindhi Sahiti Multi Purpose Cooperative Society Ltd [1973 SC 2420], it was held by the Supreme court that a Municipal Board can not compel the persons plying the motor buses for hire to park buses at place specified by it. The Supreme Court held that "however if a municipality provides for a bus stand without compelling every body to use it, a fee can be charged on bus operators using it voluntarily".
7. We do not find any distinct feature in the present case.
8. The writ petition is consequently allowed with directions that the parking fee will not be charged by the Nagar Panchayat, Kithore, Meerut, or by its contractors, and agents unless the vehicles of the petitioners are parked voluntarily at a place, which is earmarked for parking by the Nagar Panchayat with facilities, including fixation of notice board containing the name of contractor, period of contract, and rate of parking fee. The parking fee will be charged only at the parking place. This order will not authorize , collection of parking fee on road or public land used by the vehicles for picking-up passengers and dropping them. In such case, the vehicles will be only allowed to pick-up or drop the passengers, without waiting for passengers at a place or on the road, causing congestion and disturbing general public.
Order Date :- 27.11.2013
nethra
