Mohd. Kasim And Others vs State Of U.P. And Others
2015 Latest Caselaw 2628 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
(Judgment reserved on 04.09.2015)
 
(Judgment delivered on 24.09.2015)
 

 
Court No. - 37
 
Case :- WRIT TAX No. - 109 of 2013
 
Petitioner :- Mohd. Kasim And Others
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- S.K. Jaiswal
 
Counsel for Respondent :- C.S.C,G.M. Tripathi
 

 
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 and the learned standing counsel for the State respondents. No one appeared on behalf of respondents No.2, 3 & 6.

2. This writ petition has been filed praying for the following reliefs:

"(i) issue a writ, order or direction in the nature of certiorari calling for the record of the case and quash the impugned Bye-laws dated 24.06.2006 published in Official Gazette dated 22.07.2006 and letter dated 04.04.2012 issued by Tax Superintendent Nagar Palika Parishad, Hapur.

(ii) issue a writ, order or direction in the nature of mandamus directing the respondents not to realize parking fee from the petitioner."

3. Learned counsel for the petitioners submits that the impugned bye-laws providing for parking fee is invalid and is in conflict with the government orders dated 26.02.1998, 18.07.1998, 15.04.1999 and 11.08.2003, copies of which have been filed as Annexures No.6, 7, 8 and 10. He submits that the action of the respondent Nagar Palika Parishad, Hapur realising the parking fee is wholly arbitrary and without authority of law and as such, a mandamus may be issued to them not to realise the parking fee.

4. Learned standing counsel submits that the petitioners have not challenged the bye-laws, which are in existence from a long time but have only challenged the amendment dated 24th July, 2006, whereby parking fee has been enhanced by 50%, i.e. from Rs.20/- to Rs.30/- per day per vehicle.

5. We have carefully considered the submissions of learned counsel for the parties and perused the record.

6. From the perusal of the impugned amendment dated 24th June, 2006, it appears that the bye-laws were framed by the Nagar Palika Parishad, Hapur under Section 298 (j)/ (d) of the U.P. Municipalities Act, 1916 published in the Gazette dated 16th February, 1961 as amended by the amendment published in the Gazette dated 25th June, 1994, which provided for parking fee with respect to different classes of vehicles including heavy vehicles. The rates of parking fee provided in the aforesaid bye-laws has been amended by the impugned amendment dated 24th June, 2006, whereby the parking fee for heavy vehicles with seating capacity of more than 30 passengers was increased. It was also provided that on expiry of every five years rates may be increased by 50% by a special resolution. In exercise of powers conferred by the aforesaid amendment, the Nagar Palika Parishad, Hapur has increased the rates of parking fee by 50% by the impugned order dated 04.04.2012. Through the said order, enhancement of parking fee of vehicles was intimated to the petitioners' association. The petitioners have not challenged the bye-laws but have merely challenged the enhancement of fees by amendment dated 24th June, 2006, after about seven years. Even copy of the bye-laws dated 16.02.1961 as amended by the amendment dated 25.06.1994 has not been filed with the writ petition. Large numbers of other operators or the petitioners' association have not raised any grievance against the aforesaid enhancement of parking fee. The petitioners have also not assigned any reasons in the writ petition for belated challenge to the amendment dated 24th June, 2006.

7. In paragraphs No.10, 11 and 12, the petitioners have stated as under:

"10. That in pursuance of letter dated 04.04.2012 issued by Tax Superintendent Nagar Palika Parishad Hapur, Officials/ Tax Collector are charging Rs.30/- per day per vehicle as Entry Tax without using any bus stand maintained by Nagar Palika Parishad Hapur since 04.04.2012.

11. That it is pertinent to mention here that the Officials/ Tax Collector Nagar Palika Parisahd Hapur forcibly charging parking fee at "Hapur Tiraha" which is situated before Two Kilometers from the Meerut-Delhi Route Buas stand.

12. That it is also pertinent to mention here that bus stand in question namely "Private Bus Stand Meerut Delhi Route". Petitioners have no concern because petitioners path of route turned Two Kilometer before the bus stand in question at the place of "Ambedkar Tiraha Hapur" to Meerut Via Kharkhoda."

8. The afore-quoted paragraphs of the writ petition have been replied by the Nagar Palika Parishad, Hapur in their counter affidavit in paragraphs 7 & 8 as under:

"7. That the statements contained in paragraph nos. 10 and 11 of the writ petition are not accepted as stated. It is further stated that the petitioners have been charged the parking fee for using the Bus stand belonging to Nagar Palika Parishad, hapur.

8. That the statements contained in paragraph no. 12 of the writ petition are not accepted as stated. It is further stated that the petitioners may have obtained the permit for the route Meerut to Bulandshahar Via Hapur, Gulawati but they have been using Bus stand for picking up and sitting down the passengers as such they have been charged parking fee."

9. The petitioners have not filed any rejoinder affidavit. Thus, the stand taken by the Nagar Palika Parishad, Hapur that they are charging parking fee for using the bus-stand of Nagar Palika Parishad, remains undisputed.

10. Once the petitioners do not dispute that the parking place has specifically been provided by the Nagar Palika Parishad, Hapur and they are using it for parking their buses, the petitioners have no right to oppose the parking fee. In paragraph-10 of the counter affidavit, it has specifically been stated that the respondents are not realising entry tax or tehbazari by putting barriers at entry place. It has further been stated that the respondents are realising the parking fee after fully complying with the guidelines of the government order dated 26.02.1998.

11. There is no allegation in the writ petition that the enhancement of parking fee from Rs.20/- to Rs.30/- after a lapse of more than five years is either arbitrary, excessive or unreasonable. In the absence of any such allegation, it cannot be said that the enhancement of the parking fee by the impugned amendment is invalid. That apart, it is settled law that there is always a presumption in favour of constitutional validity of a provision. No material has been placed by the petitioners on record to rebut this presumption. Under the circumstances, we do not find any illegality in the impugned amendment.

12. 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. "

13. In view of the above discussion, we do not find any merit in this writ petition. The writ petition is wholly misconceived and therefore, deserves to be dismissed.

14. In result, the writ petition fails and is hereby dismissed.

Order Date :- 24.09.2015

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