Municipal Council, Bhopal Vs. Sindhi Sahiti Multipurpose Transport Co-Op. Society Ltd. [1973] INSC 123 (24 July 1973)

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.