RAJAGOPALA PRABHU Vs. COMMR MUNICIPAL COUNCIL IRINJALAKUDA

JUDGEMENT

(1.) The writ petitioner is operating a stage carriage service on the route Kottappuram - Trichur via Irinjalakuda. He has come up with this writ petition challenging the validity of the order Ext. P3 dated 21-10-1978 passed by the Commissioner of Irinjalakuda Municipality calling upon the petitioner to pay to the municipality the prescribed fee of Re. 1/per day in respect of the petitioner's vehicle KLH 1024 plying on the aforementioned route Kottappuram - Trichur for using the facilities of the bus stand provided by the municipality. The said demand has been made in purported exercise of the power conferred on the municipality under sub-s.(1) of S.309 of the Kerala Municipalities Act which provides that the municipal council may, subject to the provisions of sub-s.(4) thereof, construct or provide public landing places, halting places and cart stands and may levy fees for the use of the same. The explanation to the said section states that a cart stand shall, for the purpose of the Act include a stand for motor vehicles as defined in the Motor Vehicles Act.

(2.) The petitioner contends that what has been provided by the municipality in the present case is not a 'bus stand' and hence he cannot be compelled to take his vehicle to the said place and pay any fee to the municipality. The aforesaid contention put forward by the petitioner is fully supported by the ruling of a Division Bench of this Court in State of Kerala v. The Elappara Panchayat ( ILR 1978 (1) Ker. 431 ) where the Division Bench had occasion to consider the provisions of S.91 of the Kerala Panchayats Act, 1960 which are exactly similar to those contained in S.309 of the Kerala Municipalities Act. The counsel appearing for the municipality sought to distinguish that decision by pointing out that in S.91 of the Kerala Panchayats Act there is no provision corresponding to sub-s.(4) of S.309. But this, in our opinion, does not make any material difference at all in regard to the position. Under the scheme of the Motor Vehicles Act the power to fix the location of such halting places and bus stands for motor vehicles can be exercised only by the concerned authorities of the motor vehicles department. Sub-s.(4) merely lays down that for the purposes of the Municipalities Act the said restriction contained in the Motor Vehicles Act will not operate or preclude the municipal council from exercising the power conferred under S.309.

(3.) In the aforementioned decision in State of Kerala v. The Elappara Panchayat (ILR 1978 (1) Ker. 431) the Division Bench followed the dictum laid down by the Supreme Court in T. B. Ibrahim v. Regional Transport Authority (AIR (40) 1953 SC 79), Municipal Board v. State Transport Authority, Rajasthan ( AIR 1965 SC 458 ) and Bhopal Municipality v. S.S.M.T. Cooperative Society ( AIR 1973 SC 2420 ) and held that the expression 'bus stand' connotes only a place where bus services commence and terminate their operation and that places where bus services are to halt merely for setting down or taking up passengers cannot be regarded as bus stand. We are in respectful agreement with the said view and accordingly we hold that the municipality was not justified in insisting that the petitioner's bus should be taken to the 'bus stand' provided by the municipality and the petitioner should pay fees to the municipality at the rate of Re. 1/- per day for the use of the facilities provided at the said place by the municipality.