NAGAR PANCHAYAT,KURWAI Vs MAHESH KUMAR SINGHAL .
Bench: K.S. RADHAKRISHNAN,A.K. SIKRI
Case number: C.A. No.-007821-007821 / 2013
Diary number: 21342 / 2008
Advocates: JAGJIT SINGH CHHABRA Vs
MISHRA SAURABH
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7821 OF 2013 (Arising out of SLP(C) No.20997 of 2008)
Nagar Panchayat, Kurwai & Anr. … Appellants
Versus
Mahesh Kumar Singhal and others … Respondents
With
CIVIL APPEAL NO. 7822 OF 2013 (Arising out of SLP(C) No.18332 of 2010)
J U D G M E N T
K.S. RADHAKRISHNAN, J.
1. Leave granted.
2. We are in these cases concerned with the question whether
the appellant, Nagar Panchayat, Kurwai (in Civil Appeal No.7821
of 2013 @ SLP(C) No.20997 of 2008) is justified in demanding any
fee, for the parking of the motor, trucks and buses in the bus
stand, owned and maintained by the Nagar Panchayat.
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3. The High Court held that Nagar Panchayat has no power to
collect that amount and allowed the writ appeal against which the
Nagar Panchayat has come up with this appeal.
4. The appellant in exercise of the powers conferred under
Section 357(3) read with Section 349(2), 357 (5) and 358(4) (b)
and (d) of Madhya Pradesh Municipality Act, 1961, imposed
parking fee on the owners of vehicles, motors, trucks, buses,
matadors etc. Following that a notice was issued by the appellant
demanding Rs.20/- per day or Rs.600/- per month, imposing entry
fees on motors, trucks, buses and matadors parked in the bus
stand. Challenging the same, writ petition was preferred by the
vehicle owners before the High Court of Madhya Pradesh at
Jabalpur, seeking a writ of certiorari to quash the above-
mentioned bye-law and also for a direction to the Nagar
Panchayat not to collect any fees from the petitioners. The
learned Single Judge found no merit in the writ petition and same
was dismissed on 10.07.2007. Aggrieved by the same, writ
petitioners took up the matter in Writ Appeal No.458 of 2007,
which was allowed by the Division Bench, holding that Section
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349 of Act of 1961 does not confer any power to impose the
licence fees for the use of bus stand and the same is not covered
under Sections 358(4)(b) and (d) or (7) (m) of the Act of 1961.
Respondents are merrily using the bus stand owned and
maintained by the Nagar Panchayat, free of cost, not bothering
about its maintenance and upkeep. The question is, can a court,
on the basis of such an interpretation sideline the larger public
interest and deny the right of the Nagar Panchayat to claim
parking fees which can be utilized for the benefit of people?
5. We, before examining the question, shall not forget the basic
fundamental principle that nobody has a fundamental right to use
the land belonging to another without the latter’s permission or
paying for it, if demanded.
6. The respondents are operating their vehicles with the stage
carriage permits granted by the competent authority under the
Motor Vehicles Act. As per the provisions of the Motor Vehicles
Act the State Government or any other authorized authority has
jurisdiction to determine a place at which a motor vehicle be
parked, either indefinitely or for a specified time for taking up and
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alighting passengers. Rule 203 and Rule 204 of the Motor
Vehicles Rules, 1994 provide for maintenance and management
of the parking places and make the concerned local authorities
responsible for the said purpose. As per the conditions of the
permit they are required to commence the journey of their
vehicles from the bus stand or place fixed for getting and
alighting passengers. Such a condition has been imposed on the
licence by the authorities under the Motor Vehicles Act since
operators would commence the journey of their respective
vehicles on the routes from the bus stand only and would not stop
the vehicles on the streets, causing inconvenience to the public.
Since vehicle operators started using the bus stand, Nagar
Panchayat passed the Resolution, as already indicated, charging
the parking fees for the purpose of maintaining of bus stand and
providing other facilities. Bus stand, as already indicated, was
constructed on the land owned by the Nagar Panchayat.
7. The Constitution (74th Amendment) Act, 1992 Part IXA which
deals with Municipality, came into force on 20.04.1993. Article
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243P(e), 243Q and Article 243W(a)(1)(4) are relevant and hence
extracted below:
“243P(e): “Municipal” means an institution of self- government constituted under Article 243Q.
243Q. Constitution of Municipalities.-(1) There shall be constituted in every State,-
(a) a Nagar Panchayat (by whatever name called) for a transitional area, that is to say, an area in transition from a rural area to an urban area;
(b) a Municipal Council for a smaller urban area; and
(c) a Municipal Corporation for a larger urban area,
in accordance with the provisions of this Part:
243W – Powers, authority and responsibilities of Municipalities, etc. – Subject to the provisions of this Constitution, the Legislature of a State may, by law, endow –
(a) The Municipalities with such powers and authority as may be necessary to enable them to function as institutions of self-government and such law may contain provisions for the devolution of powers and responsibilities upon Municipalities, subject to such conditions as may be specified therein, with respect to –
(i) the preparation of plans for economic development and social justice;
(ii) the performance of functions and the implementation of schemes as may be entrusted to them including those in relation to the matters listed in the Twelfth Schedule.
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(b) The Committees with such powers and authority as may be necessary to enable them to carry out the responsibility conferred upon them including those in relation to the matters listed in the Twelfth Schedule.”
Twelfth Schedule was inserted w.e.f. 01.06.1993. Entry 17 therein
reads as follows:
“Entry 17 – Public amenities including street lighting, parking lots, bus stops and public conveniences.”
8. Nagar Panchayat is, therefore, a unit of self-government,
which is a sovereign body having both constitutional and
statutory status. Article 243Q and 243W(a)(i) and (ii) read with
Entry 17, confer considerable powers on the Nagar Panchayat to
carry out various schemes for economic development and social
justice. Municipalities need funds for carrying out the various
welfare activities and for the said purpose, it can always utilize its
assets in a profitable manner to its advantage so that various
welfare activities entrusted to it under law could be properly
addressed and implemented. Bus stand has been provided by the
Nagar Panchayat for the benefit of all vehicle owners and the
passengers, spending public money. Nagar Panchayat has to get
a reasonable return for its upkeep and maintenance.
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9. We may, in this connection, refer to the decision of this Court
in Municipal Board, Hapur and others v. Jassa Singh and
others (1996) 10 SCC 377, wherein this Court while interpreting
the provisions of U.P. Municipalities Act, 1916 in the light of the
Constitutional (73rd Amendment) Act, 1992 (actually 74th
Amendment Act) upheld the right of the Municipality in levying
the bus stand fee in respect of stage carriage. The operative
portion of the same reads as follows:
“Even under the recent amendment brought by the Constitution (73rd Amendment) Act, 1992 which came into force w.e.f. 20-4-1993, it imposes the statutory responsibilities on the municipalities. Article 243-P(d) defines “municipal area” to mean the territorial area of a municipality as is notified by the Governor. Article 243-W(a)(i) envisages that subject to the provisions of the Constitution, the legislature of a State may, by law, endow the municipalities with such powers and authority as may be necessary to enable them to function as institutions of self-government and such law may contain provisions for the devolution of powers and responsibilities upon municipalities, subject to such conditions, as may be specified therein, with respect to the preparation of plans for economic development and social justice. Entry 17 of the Twelfth Schedule provides for public amenities including street lighting, parking lots, bus-stops and public conveniences. Thus, the Constitution enjoins the appropriate legislature to provide for preparation of the plans for economic development and social justice including power to provide public amenities including street lighting, parking lots, bus-stops and public conveniences. On
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such public amenities including bus-stops having been provided by the municipalities, as is a statutory duty, it is the duty of the user thereof to pay fee for service rendered by the municipality.”
10. Vehicle owners placing reliance on the Judgments of this
court reported in Municipal Council, Bhopal v. Sindhi Sahiti
Multipurpose Transport Co-op. Society Ltd. and another
(1973) 2 SCC 478 and Municipal Council, Manasa v. M.P.
State Road Transport Corpn. And another (1997) 11 SCC
640, questioned the powers of the Nagar Panchayat in demanding
the parking fee, while using the bus stand and enjoying the
facilities.
11. Noticeably both the above-mentioned Judgments were
dealing with demands made prior to the Constitutional (74th
Amendment) Act, 1992 by which Part IXA was incorporated.
12. This Court in Municipal Council, Bhopal (supra), held that
M.P. Municipal Council Act does not empower a municipality to
pass a bye law declaring certain place as a Municipal bus stand
and cannot compel the persons plying motor buses or for hire to
park the buses anywhere within the municipal limits except at the
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municipal bus stand for the purpose of taking up or setting down
of passengers. Court further held that if a Municipality provides
for a Bus stand without compelling anybody to use it, a fee can be
charged on bus operators using it voluntarily. In Municipal
Council, Manasa, the question which came up for consideration
was whether a municipal council is competent to levy toll tax on
motor vehicles in view of the provisions contained in Section 6 of
the M.P. Motor Vehicles Taxation Act, 1947, which has been
extended to the whole of M.P. by the Madhya Pradesh Taxation
Laws (Extension) Act, 1957. The Court took the view that Madhya
Pradesh Motor Vehicles Taxation Act is a special enactment while
the Madhya Pradesh Municipalities Act is a general enactment
and that the provisions of Section 127(1)(iii) and Section 6 are to
be read in a way that both can stand together. Consequently, the
words
“tax on vehicles” used in Section 127(1)(iii) of the Madhya
Pradesh Municipalities Act was held to mean vehicles other than
motor vehicles.
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13. Above-mentioned Judgments, on facts as well as on law, do
not apply to the facts of the present case, especially in view of to
the 74th Constitutional Amendment and in view of Section 358(7)
(m) of the M.P. Municipality Act, which was not properly addressed
in those cases.
14. We have already dealt with the scope of the 74th
Constitutional Amendment Act. Section 358(7)(m), has to be read
in the light of the Constitutional Amendment Act. Clause 7(m) of
Section 358 of the Madhya Pradesh Municipalities Act, 1961,
empowers the municipality to regulate or prohibit the use of any
ground under its control and it does not compel anybody to use it
as halting place of vehicles. Section 358(7)(m) of the Madhya
Pradesh Municipalities Act, 1961 is extracted hereinbelow:
“358(7)(m) : 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 enactment or the causing or permitting of any animal to stay and imposition of fee for such use.”
Article 243W(a)(i) and (ii) read with Entry 17 of the Twelfth
Schedule and clause (7)(m) of Section 358 and the general
principle that nobody has a fundamental right to use the land
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belonging to another without the latter’s permission or paying for
it, if demanded, in our view, give ample powers to the Nagar
Panchayat to impose parking fee for parking the vehicles in the
Bus stand owned and maintained by it. Needless to say, if the
Nagar Panchayat is demanding exorbitant or unreasonable
parking fee without any quid pro quo, the same can always be
challenged in accordance with law.
15. The High Court of Madhya Pradesh at Jabalpur disposed of
the Writ Appeal No.147 of 2010 placing reliance on the Judgment
of this Court in Municipal Council, Bhopal (supra). The facts of
Civil Appeal No.7822 of 2013 @ SLP(C) No.18332 of 2010 are also
identical. Since we have found no illegality in demanding the
parking fee in using the Bus stand in Civil Appeal No. 7821 of
2013 @ SL(C) No.20997 of 2008, Civil Appeal No.7822 of 2013 @
SLP(C) No.18332 of 2010 is liable to be allowed. Consequently,
both the appeals are allowed. The judgments of the High Court
are accordingly set aside and the Resolution passed by the
appellants imposing the bus stand fee is upheld. However, there
will be no order as to costs.
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…………………………….J. (K.S. Radhakrishnan)
………………………………J. (A.K. Sikri)
New Delhi, September 6, 2013.