BALRAJ SURI Vs. CITY BOARD MUS

JUDGEMENT

(1.) THIS petition under Article 226 of the Constitution has been filed by the petitioners challenging the validity of the bye-laws Nos. 4, 6 and 7 of the Bye-laws framed by the City Board/Nagar Palika, Mussoorie (hereinafter referred to as the City Board' dated August 2, 1976, published in the official gazette of the" State of Uttar Pradesh on August 21, 1972. The petitioners also seek the relief of mandamus directing the City Board not to realise the fee at the rate of Rs. 30/- per trip per vehicle and to refund the amount realized under the aforesaid notification. Briefly stated the facts are that the petitioner No. 1 was granted a mining lease by the State of U.P. commencing from May 29, 1972 in the area known as Hathi Paon-Clounded, Mussoorie and petitioner No. 2 was also granted a similar lease in the said area. The area of petitioner No. 1 is 30 acres while that of petitioner No. 2 is 70 acres. The mining areas of the petitioners are within the municipal limits of Mussoorie. These mines are connected with two metalled roads from Gandhi Chowk. These metalled roads are Motilal Nehru Road and Tulla More Board/Harnam Singh Road. The trucks of the petitioners carrying lime stone from the mines have to pass in the course of transit through the limits of the City Board and in doing so they used to go by Motilal Nehru Road and Harnam Singh Road. According to the allegations made in the writ petition although in the beginning city Board permitted the petitioners 1 and 2 to use the roads for plying their vehicles for transporting the quarried materials from Hathipaon to Dehradun but subsequently the City Board started placing several hindrances. The City Board, in fact, closed the Motilal Nehru Road and Harnam Singh Road which led to the filing of a writ petition in this Court. The writ petition was ultimately decided with the observation that the City Board could close the roads temporarily for the purposes of repairs. The petitioner were thereafter permitted to take their trucks carrying quarried materials on payment of monthly fee of Rs. 100/- on the Motilal Nehru Road and Harnam Singh Road. THIS fee of Rs. 100/-per month used to be charged by the City Board under bye-law No. 467/XXIII-12-(2)-68-70 dated June 21, 1969, it, however, seems that the City Board amended the aforesaid bye-laws dated June 21, 1969 by passing another resolution and substituted the old bye-laws dated June 21, 1969 by the one published in the official Gazette of August 21, 1976, the number of that Notification being 2933/XXI-(2). By this amended bye-law the City Board provided that for the use of public carriers/Gattas, the fee payable would be Rs. 30/- per vehicle per trip for using Motilal Nehru Road and Harnam Singh Road. The petitioners thereafter filed the present writ petition challenging the validity of the aforesaid bye-laws asserting that that the bye-laws are ultravires the act, inasmuch as the same have been framed without any authority or power conferred on the City Board by the U. P. Municipalities Act, 1916 (hereinafter) referred to as the Act). The petitioners also alleged that the levy of the fee was liable to be declared invalid also on the ground that the City Board did not render any service, amenity or facility to the petitioners or others similarly situated. Therefore, as there being no correlation between the fee and the service rendered, the fee was liable to be declared invalid. The petitioner was contested by the City Board and the allegation made relating to the invalidity of the bye-laws have been refuted. The City Board pleaded that the Board had the power to impose licence fee in pursuance of the powers conferred it by subsection (2) of Section 298 of the Act and also under Section 293 of the Act. Petitioners challenges the validity of the bye-laws mainly on the ground that considering the amount that was being levied, what should have been only a fee was really a tax which the City Board had no authority to levy. It was contended on their behalf that a licence fee could be levied only for the services rendered or benefits provided and the imposition must be commensurate with 'the services and advantages so rendered. Counsel contended that so far as the trucks that were being used by the petitioners for carrying the limestone from the mines to Dehradun through the roads mentioned above are concerned, the City Board did not provide any benefit or render any service which could justify the levy of fee at such a rate. In order to examine the arguments of the learned counsel for the petitioners, we may make a brief reference to the relevant provisions of the Act. The relevant provisions with which we are concerned in the present case are to be found in Chapter VIII of the Act. Chapter VIII deals with powers in respect of markets, slaughter houses, sale of food, public safety, sanitation and prevention of disseases, inspection, entry, search, rent and charges etc. Section 293 falls within this Chapter. It reads as under:- "293. Fees for use otherwise than under a lease, of Municipal Property- (1) The Board may charges fees to be fixed by bye-laws or by public auction or by agreement for the use of occupation (otherwise than under a lease) or any immovable property vested in, or entrusted to the management of the Board, including any public street or place of which it allows the use or occupation whether by allowing a projection thereon or otherwise. (2) Such fees may either be levied along with the fee charged under Section 294 for the sanction licence of permission or may be recovered in the manner provided by Chapter VI." By Government notification No. 2433/21-3 (2) dated August 2, 1976 the bye-laws framed by the City Board under Section 298(2), List I-H(b) of the Act confirmed by the Commissioner were published on August 21, 1976. The main paragraphs of the aforesaid Bye-laws are 4 and 6. These bye-laws are to the following effect: - Hindi@ As stated above, a fee of Rs. 30/- is chargeable from every person who desires to take his public carrier on Motilal Nehru Road and Harnam Singh Road per trip. Shri B.D. Agarwal, the learned Advocate-General appearing on behalf of the City Board tried to justify the aforesaid bye-laws on two grounds. The first submission made by him was that the same having been made in pursuance of the powers under Section 293, was valid irrespective of the fact that the imposition was not commensurate with the services and advantages rendered or provided. The second argument, however, was that since the levy of fee was commensurate with the services rendered therefore, the imposition of the licence fee at the rate of Rs. 30/- per trip could not be held to be invalid. It according to his submission correlated with the services rendered. These arguments of the learned Advocate-General were counted by Shri R.N. Bhalla, counsel appearing for the petitioners. The first question that we may consider is whether the framing of the bye-laws could be justified under Section 293 above. There are two parts of Section 293. The first part deals with the power of the Board to levy fee to be fixed by the Bye-law or by public auction or agreement for the use and occupation of any immovable property vested in or entrusted to the management of the Board. The second part deals with the power to levy fee fixed by bye-law or by public auction or by agreement for the use and occupation of any immovable property vested in or entrusted to the Board. The Second part deals with the power to levy fee fixed by bye-law or by public auction or by agreement for the use and occupation of any public street or place of which the Board allows the use of occupation, whether by allowing a projection thereon or otherwise. It would be found that the Board is entitled to levy fee under this section for the use or occupation of the property either belonging to it or entrusted to it for the purposes of management or otherwise. The question is as to what is the in-port of the phrase 'use and occupation'. It appears to us that the expression 'use and occupation' has been used in this section in the sense of holding possession. It applies to a person where he exercises physical control over the land with the intention of holding it. In order to fall to a particular use or occupation within the provisions of this Act, it would be one which is not generally permissible to the public at large but which requires a permission from the Municipal Board. Another aspect of the matter which needs to be considered is that every person has right to use a road for passing or repassing. THIS was recognised by the Supreme Court in Saghir Ahmad v. State of U. P. A.I.R. 1954 S.C. 728 where it was held that the members of public have a right of passing or repassing over a highway. THIS right of passage is not confined to the use of passage by pedestrains but the right exists in all forms to the members of the public. Accordingly, where a person only uses the road for plying his motor vehicle or carries goods on a truck, he does not use or occupy the public street within the meaning of Section 293 of the Act. Such a user is not covered by it. Reference may also be made here to Section 220 of the U.P. Municipalities Act which deals with the permission of the Municipal Board in certain matters. A perusal of this provision would show only certain types of user alone are covered by it and for that purpose permission of the Municipal Board is required. But where, as here a person uses the public street for passing and repassing over it, no permission would be needed. Such a use would not, fail within the ambit of Section 293 of the Act inasmuch as there is no intention on the part of the person passing over the road to hold its possession and to exercise any other right other than the right of passing and repassing over it. 'The scope of Section 293 of the Act was considered by a learned Single Judge of this court in Ch. Attar Singh v. State of U.P. 1970 A.L.J. 49. In this case the learned Single Judge held that the right of passing and repassing by vehicle is a right which vests in pubic under the general law of the land and it is not. a right which inherits in the public because the Municipal Board allows it. We are in respectful agreement with the view taken in that case and hold that merely passing and repassing on a public street would not attract Section 293. Bearing in mind the scope of Section 293 it appears to us that it is not possible to accept he submission of the learned Advocate General that the impugned bye-laws could be justified on its basis. The petitioners only exercise their right of passage and repassage when they take their trucks through the roads in question, in doing so, they did not fall within the clutches of Section 293. Hence the submission made by the respondents does not appear to be correct. Before we deal with the second argument, we may mention that Sri R.N. Bhalla contended before us that the power to regulate conferred by Section 298 of the Act does not entitle the City Board to impose any fee on plying of that truck on the roads in question, hence the fee travelled beyond the scope of sub-section (2) of Section 298 List I-H(b) and was thus liable to be declared invalid. In the alternative he contended that as the City Board did not spend anything on the petitioner or other similarly situated, therefore the levy of fee even if it could be justified under this provision, is liable to be declared ultra vires because being not commensurate with the advantages and services rendered. Since we are inclined to accept the alternative submission made by the learned counsel for the petitioner, we do not feel it necessary to deal with the first question. It is true, as urged by the learned Advocate-General, that the specific provision contained in the several clauses of Section 298(2) are merely illustrative and they cannot be read as restrictive of the generality of the power conferred by sub-section (1) of Section 298. These clauses merely illustrate and do not exhaust all the powers conferred on the Board so that any case not covered by sub-section (2) of Section 298 can also be justified by sub-section (1) of Section 298, provided of course, the impugned bye-laws can be justified by reference to the requirements of Section 298(1). In the instant case the allegations made by the petitioners are that the City Board does not incur any expenditure on the petitioners and, therefore the levy is unjustified. Relevant allegations in this regard have been made by the petitioners in paragraphs 21, 22, 23, 24, 25 and 26. In reply to these allegations in writ petition the respondents stated in the supplementary counter affidavit that the City Board employed sweepers to maintain the cleanliness of the road and paid a sum of Rs. 780/- per month as their salary apart from the sum of Rs. 21.54 - as Provident Fund per month. City Board has further averred that 5 employees have been kept by it for realising the fee in dispute from the petitioners end the expenditure on this head comes to Rs. 1,438/-per month by way of their salary. The next item of expenditure alleged was that the City Board posted gangman required to maintain the disputed roads and other roads of the City Board on this head 'the expediture alleged was Rs. 7.880.49 p. per month. Apart from requiring expenditure the City Board further asserted that the reported cost of the construction and maintaining the disputed roads was Rs. 3 lack. The question that arises now for consideration is whether these items of expenditure could be considered to have been incurred in rendering services to the petitioners and others who pay the fee for using the roads in question. It does not appear to be so. The reason was that under Section 7 of the Act it is a statutory duty of the Municipal Board to arrange for cleanliness of public streets and places, remove public nuisance and to provide lighting facilities etc. The expenditure under these items was thus incurred by the City Board in the discharge of its statutory duty and as held by the Supreme Court in Nagar Mdhapalika. Varanasi v. Durgadas A.I.R. 1968 S.C. 1119 the expenditure incurred by the Municipal Board in the discharge of its statutory duties could not be reimbursed by imposition of licence fee. In fact, although the City Board admitted that for the period from September 4, 1976 to March 31, 1977, it realised a sum of about Rs. 74,000/- from the fee imposed on the petitioners and others under the present bye-laws but it could not show that even a single shell was spent by it on the petitioners or others from whom the same was realised, rendering them any special service. The expenditure mentioned are from, the general budget of the City Board. These expenditures, in fact, cannot be taken into account for justifying the levy of the fees under Section 298(1) of the Act. Fees is a sort of return or consideration for services rendered which makes it necessary that there should be an element of quip pro quo in the imposition of a fee. There has to be a corelation between the fee levied by an authority and the services rendered to the person who is required to pay. The true legal position as stated by Mukherjee, J. (as he then was in the Commissioner, Hindu Relipious Fodowments, Madras v. Shri Lakvhmindra Tirtha Swamiar of Shri Chirur Mutt A.I.R. 1954 S.C. 282 is that it is absolutely necessary that the levy of fee should on the face of the legislative provision be corelated to the expenses incurred by Government in rendering the services. In the present case as there is total absence of correlationship, the fee is bound to fail. Reference may also be marie to a decision of the Supreme Court in the Government of Andhra Pradesh and others v. Hindustan Machine Tools Ltd A.I.R. 1975 S.C. 2037, where the Supreme Court held that: - "The laying of roads and drainage or the supply of street lights are statutory functions of public authorities and it is difficult to hold in the absence of any material, that any such services as had been mentioned to us, have, in fact, been rendered to the respondents. The very acceptance that the permission fee is levied at a certain percentage of the capital value of the buildings shows that the Gram Panchayat itself never intended to correlate the fee with the services rendered or intended to be rendered by it." The law enunciated by the Supreme Court in the above case clinches the controversy against the Municipal Board. Accordingly, the items of expenditure stated by the City Board in justification of the levy of the licence fee cannot be taken into account. Before we close the judgment, we wish to mention that the learned Advocate General has admitted before us candidly that the fee in the instant case levied could be upheld only when the element of quip pro quo was established. For the reasons mentioned above, we hold that the levy of licence fee in the instant case is liable to be struck down as being illegal. In the result, the writ petition succeeds and is allowed. The Bye-laws Nos. 4 and 6 are struck down as being illegal. The City Board, Mussoorie, is directed not to impose or realise any licence fee from the petitioners under the impugned bye-laws and to refund the amount realised by it from the petitioners within three months from today. The petitioners shall also be entitled to their costs of this petition from the City Board, Mussoorie.