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. Section 349(ii) of the Madhya Pradesh Municipalities Act reads
’The Council may charge such fee as may be
prescribed by bye-laws for-
(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
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.
(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 any body 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 any body 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 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 bye-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.