JUDGMENT Satish Chandra, J. - This petition under Article 226 of the Constitution challenges the validity of the notification dated 9th January, 1969, issued by the Municipal Board, Kairana, district Muzaffarnagar, imposing a fee for entry or plying of motor vehicles in the municipal limits. 2. The impugned notification purports to have been issued under Section 298-H (b) and Section 298-J (d) of the U. P. Municipalities Act, 1916. It seeks to frame bye-laws for the regulation and control of motor traffic within the limits of Kairana Municipality. Bye-law No. 1 says that no loaded motor truck, motor lorry, motor bus, tractor or taxi car shall be allowed to enter into or ply in the municipal limits without the written permission of the executive officer of the Municipal Board, Kairana. Bye-law No. 3 says that the following fee shall be levied for the permission granted : (a) For the entry of loaded motor truck or tractor. Rs. 2.50 per trip (b) For the entry of loaded motor bus or motor lorry. Rs. 2.00 per trip (c) For the entry of loaded taxi car. Rs. 1.00 per trip. 3. The petitioner holds a permanent stage carriage permit for Muzaffar nagar-Kairana-Jamuna Bridge route. He plies his bus on this route under the permit. This route passes through the municipal limits of Kairana for about our furlongs. The road running from Muzaffarnagar to Jamuna Bridge via Shamli and Kairana including the portion which runs within the municipal limits of Kairana is owned and maintained by the Public Works Department of tale State of C. P. It appears that the Municipal Board of Kairana provides sanitary and lighting facilities on this road. The Municipal Board, Kairana has fixed a parking area for vehicles using this road and charges a parking tax of Rs. 0.50 P. per vehicle per day from any vehicle using the parking area. 4. Mr. Khare, appearing for the petitioner, submitted that Section 298-H (b) of the U. P. Municipalities Act does not apply to motor vehicles. Consequently the impugned levy was without jurisdiction. Under Section 298 a municipal hoard can frame bye-laws. List I mentions the various matters upon which the bye laws can be framed. Sub-list H deals with public safety and convenience. Khare, appearing for the petitioner, submitted that Section 298-H (b) of the U. P. Municipalities Act does not apply to motor vehicles. Consequently the impugned levy was without jurisdiction. Under Section 298 a municipal hoard can frame bye-laws. List I mentions the various matters upon which the bye laws can be framed. Sub-list H deals with public safety and convenience. Clause (b) under which the impugned bye-laws purport to have been framed states: "Providing for the regulation or prohibition of any description of traffic in the streets where such regulation or prohibition appears to the board to be necessary." This clause deals with the traffic in the streets which the Board may consider necessary to be regulated or prohibited. It really does not touch the subject- matter of entry of vehicles into the municipal areas, which is the basis for the levy of the fee. Under the impugned bye-laws the mentioned fee is chargeable at the point of entry of the vehicle into the municipal area. The bye-laws are not at all related to traffic in the streets of the municipal area, much less for regulating or prohibiting the same. They do not contemplate that motor vehicles of the kind mentioned in the impugned bye-laws would not enter the streets, in stated periods of time, when the traffic may he unusually heavy on the streets, without paying the requisite fee. The fee is chargeable at any time without consideration of the condition of the traffic on the streets. The bye-laws in my opinion do not deal with the subject-matter mentioned in Clause (b) and cannot be sustained by it. Prima facie, therefore, the impugned bye-laws do not appear to be within the purview of Clause (b) . 5. The other related provisions of the U. P. Municipalities Act also lead to the same inference. Clause (c) of sub-list H authorises the making of bye- laws for imposing the obligation of taking out licences on the proprietors or drivers of vehicles other than motor vehicles. The vehicles within Clause (c) ale those which are kept or ply on hire. Clause (c) also authorises the levy of fee for such licences. It is obvious that no licence fee can be charged in respect of motor vehicles, even though motor vehicles may be kept or plied on hire. The vehicles within Clause (c) ale those which are kept or ply on hire. Clause (c) also authorises the levy of fee for such licences. It is obvious that no licence fee can be charged in respect of motor vehicles, even though motor vehicles may be kept or plied on hire. Section 128 authorises the Municipal Board to impose taxes of the kinds mentioned in its various clauses. Clause (iv) speaks of a tax on vehicles anal other conveyances plying for hire or kept within the municipality. The last proviso to sub-Sec. (2) of Section 128 says that no tax under Clause (iv) of sub- Sec. (1) shall be levied in respect of any motor vehicle. Thus, even a tax cannot he levied on motor vehicles plying on hire. Clause (viii) of Section 128 (1) speaks of an octroi on goods or animals brought within the municipality for consumpion, use or sale therein. The impugned bye-laws do not purport to impose any octroi on goods or animals. They do not refer to such things which may enter the municipal limits for consumption, use or sale therein. This clause, therefore, will not sustain the impugned levy. 6. Mr. Kacker, appearing for the Municipal Board, urged that the levy of the impugned fee was justified by Section 293 of the U. P. Municipalities Act read with Section 298-E. Section 293 states : "293. Fees for use, otherwise than under a lease, of municipal property.- (1) The Board may charge fees to be fixed by bye-law or by public auction or by agreement, for the use or occupation (otherwise than under a lease) of 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 Sec. X44 for the sanction, licence or permission or may be recovered in the manner provided by Chapter VI." This section applies to the use or occupation of any immoveable property vested in or entrusted to the management of the Board. (2) Such fees may either be levied along with the fee charged under Sec. X44 for the sanction, licence or permission or may be recovered in the manner provided by Chapter VI." This section applies to the use or occupation of any immoveable property vested in or entrusted to the management of the Board. The petitioner had alleged that the portion of the road upon which he passes in the course of his transport business under the permit, and which runs through the municipal limits of Kairana, was owned and managed by the Public Works Department of the Government. This allegation has not been denied in the counter affidavit filed by the Municipal Board. It, therefore, cannot be said that this road was either vested in or entrusted to the management of the Board. Consequently, Section 293 will not apply to such a road. The user of such a road could not be subjected to the charge of any fee under Section 293. 7. Further, the immoveable property, the use or occupation whereof is covered by Section 293, includes public streets; but, it is significant that about public streets the section states : "public street or place of which it allows the use or occupation whether by allowing a projection thereon or otherwise." Therefore, in relation to a public street the charge can be made only on such use or occupation which the Board can allow; that is to say, the use or occupation is one which is not generally permissible to the public at large but which under the provisions of the U. P. Municipalities Act requires a permission from the Municipal Board. In Saghir Ahmad v. State of U. P., A.I.R. 1954 S.C. 728, the Supreme Court emphasised that according to English Law, which has been applied all along in India, a highway has its origin, apart from statute, in dedication, either express..ss or implied, by the owner of land of a right of passage over it to the public and the acceptance of the right by the public. The members of public have a right of passage and repassage over a highway. This does not mean that the right extends to the members of the public for foot passage only, but the right extends to all forms of traffic which have been usual and accustomed and also to ail which are reasonably similar and incidental thereto. The members of public have a right of passage and repassage over a highway. This does not mean that the right extends to the members of the public for foot passage only, but the right extends to all forms of traffic which have been usual and accustomed and also to ail which are reasonably similar and incidental thereto. It was further held that the right of the public to use motor vehicles on the public road cannot, in any sense, be regarded as a right created by the Motor Vehicles Act. The right exists anterior to any legislation on this subject as an incident of public rights ever a highway. It is thus clear that the right of passing and repassing through a :rotor vehicle is a public right which vests in the public under the general law of the land and is not a right which inheres in the public because the Municipal Board allows it. The creation of a public street carries with it such a right in the public. The question, therefore, arises whether the Municipalities Act makes any provision in respect of allowing the use or occupation of public streets. Section 220 of the U. P. Municipalities Act is significant. It reads : "Notwithstanding any right or privilege (previously) acquired, accrued, or enjoyed, in a municipality for which bye-laws under sub-head (b) of heading E of Section 298 have been made and are in force, no itinerant vendor, or any other person, shall be entitled to use or occupy any public street or place for the sale of articles or for the exercise of any calling or for the setting up of any booth or stall without the permission of the board given in accordance with such bye-laws." So, the kind of user or occupation specified in Section 220 requires permission of the Municipal Board. Such kind of user or occupation would, in my opinion, be within Section 293 and for allowing such user or occupation the Board call charge a tee. Section 220 contemplates the existence or enjoyment of rights and privileges in relation to public streets. The enjoyment of rights or privileges which are restricted are only like using the street for sale of articles or for set- ting up of booths or stalls etc. The other kinds of privileges like passing and repassing do not require any permission by the Municipal Board. The enjoyment of rights or privileges which are restricted are only like using the street for sale of articles or for set- ting up of booths or stalls etc. The other kinds of privileges like passing and repassing do not require any permission by the Municipal Board. The Municipal Board, therefore, cannot say that it allows the use or occupation of a public street for passing and repassing over it. The public at large is entitled to use the public street for passing and repassing without any permission of the Municipal Board. Consequently the Board cannot charge a fee for such user. 8. Section 298-E provides for the making of bye-laws for inter alia permitting, prohibiting or regulating the use or occupation of any or all public streets or paces by itinerant vendors, or by any person for the sale of articles, or for the exercise of any calling or for the setting up of any booth or stall, and providing for the levy of fees for such use or occupation, vide Clause (b) . This is co- related to Section 220 and provides the ambit of the operation of Section 293. In view of these related provisions, Section 293 cannot be extended to authorise the Board to charge fee merely for the user of a public street by way of passing and re- passing. In Sardar Jagdish Singh v. State of U. P., Civil Misc. Writ No. 4037 of 1966, decided on 09.08.1967. I held that the Town Area Committee had no authority to levy Tahebazari tax on vehicles merely for passing and repassing over public streets within the town area limits. Under Section 1-i (b) of the Town Area Act a tax in the nature of Tahebazari could be levied. It was held that Tahebazari not having been defined in the Town Areas Act or the Municipalities Act, was a compendious term used for the kinds of taxes which could be levied under Section 298-E (h) of the Municipalities Act. As we have even above, Clause (b) of list E of Section 298 is in terms similar to Section 293. In the case of Sardar Jagdish Singh, it was held that Section 298-E (b) does not author the levy of toll-stallage. As we have even above, Clause (b) of list E of Section 298 is in terms similar to Section 293. In the case of Sardar Jagdish Singh, it was held that Section 298-E (b) does not author the levy of toll-stallage. According to the decision of the Supreme Court Hardwar Municipaliity v. Raghubir Singh, A.I.R. 1966 S.C. 1502, there are many kinds of tolls and all must be taken to be comprehended by the entry relating to tolls. It was held that the term toll-stallage meant the levy of tax or fee for user or occupation of public streets for purposes of trade or calling or for putting stalls and booths. In Jagdish Singh's case I held that on no conceivable construction of the tern. toll-stallage would the use of public places or roads for mere passing and repassing, be within its ambit. 9. It is noticeable that the bye-laws impugned in the present case do not co-relate the levy of the fee with the user of the public street for any such purpose. A person who may not use the public street for any such purpose would also be liable to pay the fee on entry of a motor vehicle into the municipal area. 10. The impugned levy of fee is, in my opinion, not authorised either by section 293 or by Section 298-E (b) of the U. P. Municipalities Act and is without the authority of law. 11. The petition, therefore, succeeds and is allowed. The impugned notification dated 9th January, 1969, is quashed. The petitioner will be entitled to his costs.