Amar Pratap Singh v. State of Bihar — 1997 DIGILAW 528 (PAT)

Order Both the writ petitions have been filed with regard to a dispute for settlement of a bus stand within the territorial area of, Rosera Municipality. Petitioner Amar Pratap Singh (CWJC No. 492 of 1997) has moved against the order dated 15.12.1996 (Annexure-9) communicated under the signature of Respondent Sub-Divisional officer, whereby and whereunder, the Collector has restrained him from operating the bus stand. Other writ petition is on behalf of petitioner Kamleshwari Prasad Singh (CWJC No. 12635 of 1996), who is respondent no. 8 in the first writ petition, praying to quash the order of the Special. Officer of the Municipality dated 27.11.1996, whereby and whereunder the bus stand was settled with petitioner Amar Pratap Singh. Since facts of both the cases are common therefore, for the sake of convenience they are disposed of by this order. 2. Common case of petitioner Amar Pratap Singh and respondent Municipality is that after getting approval of tile District Magistrate, vide his letter dated 6.11.1996 (Annexure 2) and the Department of Urban Development, Government at Bihar, vide letter dated 20.11.1996 (Annexure-3); steps were taken to establish the bus stand at Rosera under the control of the Municipality. Since the Municipality had no land of its own to run a bus stand, therefore, with the consent of the District Magistrate, one bigha of land appertaining to khata no. 421, plot no. 1079, 1080, 1084 and 1085 was obtained on lease agreement from the land owner. Thereafter, on 24.11.1996, by the order of the Special Officer, notice was published in a local news paper (Annexure 5) for settling the bus stand through open auction. Accordingly, on the Scheduled day, the bid was finally closed at Rs.1,25,000/- in favour of petitioner Amar Pratap Singh, who was the higher bidder. Thereupon all the necessary formalities like deposit of money, execution of agreement, issuance parwana etc. were completed well within time. But in the meantime, due to certain disturbances, created at the instance of respondent no. 8 Kamleshwari Prasad Singh, who was running a private bus stand, the District Magistrate in order to maintain law and order and to enquire into the dispute, restrained the petitioner from operating the new bus stand until further orders. 3. The case of respondent no. But in the meantime, due to certain disturbances, created at the instance of respondent no. 8 Kamleshwari Prasad Singh, who was running a private bus stand, the District Magistrate in order to maintain law and order and to enquire into the dispute, restrained the petitioner from operating the new bus stand until further orders. 3. The case of respondent no. 8 Kamleshwari Prasad, in short, is since he was already operating another bus stand with effect from 1987, after getting necessary approval of the District Magistrate, and Regional Transport Authority (hereinafter called the Transport Authority), the Special Officer had no jurisdiction to settle another bus stand with the petitioner Amar Pratap Singh without approval of the said Authority. It has been further stated that after having learnt that the settlement in question has been made on a meagre amount of Rs.1,25,000/-, this respondent approached the special officer and offered to pay two lacs but the same was refused. He also pointed out that a title suit as well as a proceeding under Section 48 of the B.T. Act have already been started before the courts below with regard to the land which has been settled with petitioner Amar Pratap Singh. 4. It was next contended by the learned counsel for respondent no. 8 that apart from the aforesaid irregularities, the settlement in question is also bad for want of jurisdiction. Because there is no provision under the Municipal Act or the Motor Vehicles Act conferring power on the Municipal Authority to make settlement of a bus stand. A bare reference to Section 117 of the M.Y. Act would indicate that the State Government or any authority authorised in this behalf in consultation with the local authority of the same area, may determine place or places at which motor vehicles may stand, either for indefinite or for a specified period. Rule 191 of the Bihar Motor Vehicle Rules, 1992, provides that the Regional Transport Authority in consultation with the local authorities shall by a notification in the official gazette notify parking place, halting stations of the motor vehicles. Therefore, in absence of any approval of the Regional Transport Authority steps taken by the Special Officer to settle the• bus stand is quite illegal and without jurisdiction. 5. Therefore, in absence of any approval of the Regional Transport Authority steps taken by the Special Officer to settle the• bus stand is quite illegal and without jurisdiction. 5. On the other hand, learned counsel for petitioner Amar Pratap Singh as well as respondent Municipality contended that steps for settlement of the bus stand was taken after due approval of the District Magistrate and Urban Development Department and a letter in this regard was also sent to the Regional Transport Authority for due approval. It was next contended that a bare reference to the provisions of Section 11A(xviii) of the Municipal Act, will show that it is the exclusive privilege of the municipality to make arrangement for public amenities including street lights, parking places, bus stops etc. for public conveniences. Therefore, it is wrong to say that Special Officer had no jurisdiction to settle the bus stand. It has been further stated that the allegation that there was no proper advertisement etc is false. Because from a bare reference to the copy of the auction bid, dated 27.11.1996, contained in Annexure6, it would appear that at least five persons had participated at the time of bid and the petitioner being highest bidder got the settlement. 6. From the submissions of the learned Advocates for the parties and the facts brought on the record, there appears no dispute that respondent no. 8 Kamleshwari Prasad Singh was running a bus stand since the year 1987. According to him, at that stage, provisional approval of the Transport Authority was also obtained. But admittedly no revenue was being paid either to the State Government or to the Municipal Authority. The District Magistrate in his letter dated 4.3.1997, to the Commissioner of the Division, (as contained in Annexure I) informed that no approval was granted for such settlement by the Transport Authority at that time. 7. Therefore, a question may arise whether in order to gain revenue and raise municipal fund, it was open to the Special Officer to take steps for settlement of a fresh bus stand, either on the land of the municipality or a land which was obtained on lease. It is well known that by virtue of the amendment brought by the Constitution (73rd Amendment) Act, 1992, which came into force with effect from 20.4.1993, certain fresh responsibilities have been statutorily imposed on the municipalities. It is well known that by virtue of the amendment brought by the Constitution (73rd Amendment) Act, 1992, which came into force with effect from 20.4.1993, certain fresh responsibilities have been statutorily imposed on the municipalities. Article 243P(d) defines 'Municipal Area' to mean the territorial area of a municipality as notified by the Governor. Article 243W(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 or authority as may be necessary to enable them to function as institutions of self Government. It further says that the Municipality shall. prepare plans for economic development etc. It has to be further noticed that Entry 17 of the 12th Schedule of the Constitution provides public amenities of street light, parking slots, bus stops. It is, therefore, evident that it is the duty of the municipality to provide public amenities including bus stops. Undisputedly on such public amenities being provided by a municipality, it will be duty of the user enjoying such amenities to pay revenue for services rendered by the municipality. Therefore, while providing such amenities, it will be a prerogative of the municipal authorities to collect revenue to raise municipal fund. To strengthen such a views. It would be useful to quote a relevant finding of the apex court in the case of Municipal Board, Hapur and ors. vs. Jassa Singh and others (1996) 10 SCC 377 in these words :- "6... 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 such public amenities including bus stops having been provided by the municipalities, as a statutory duty, it is the duty of the user thereof to pay fee for service rendered by the municipality..." 8. Learned counsel appearing for Kamleshwari Prasad Singh (respondent no. 8 in the other case) submitted that bus stop as indicated in sub-section (xxxiii) of Section 11A of the Municipal Act is quite different to that of parking places and halting stations as mentioned under Rule 191 of the M.V. Rules. Learned counsel appearing for Kamleshwari Prasad Singh (respondent no. 8 in the other case) submitted that bus stop as indicated in sub-section (xxxiii) of Section 11A of the Municipal Act is quite different to that of parking places and halting stations as mentioned under Rule 191 of the M.V. Rules. It was contended since the State Government by virtue of the aforesaid rule has vested such pf1wers with the Transport Authority, therefore, unless and until due approval of the said Authority is obtained, no settlement of a bus stand can be made. Because under the municipal laws, no provision has been prescribed to make settlement of bus stand. It was submitted that by virtue of different decisions of the apex Court as well as this Court, it has already been settled that bus stand means a place from where bus services commence or term hate. Such a place is popularly known as bus stand. 9. In my view, a bare reference to a decision of this Court in the case of Baldeo Chaudhary & ors. Vs. The District Magistrate, Muzaffarpur & ors. (C.W.J.C. No. 44 of 1988 disposed of on 19.4.1989) will serve the purpose. In that case, it was already held that a 'bus stand' means place from where bus services commence or terminate. It was clarified that the term 'bus stand' is different from 'bus stop'. Therefore, until and unless due approval is granted by the Transport Authority as required under rule 191 of the Rules, no settlement can take place. 10. Apart from the said judgment, the Supreme Court also while explaining the term 'bus stand' in the case of Municipal Board, Pushkar Vs. State Transport Authority ( AIR 1965 SC 458 ) observed in these words :- "While the word "bus stand" has not been defined in the Act, we have no hesitation in accepting the contention of the respondents that a bus stand means a place where bus services commence or terminate. It is the place where the buses stand for commencing its transport service or where they stand after terminating their service, that is popularly known as a bus stand. It is the place where the buses stand for commencing its transport service or where they stand after terminating their service, that is popularly known as a bus stand. We do not think the words 'places at which motor vehicles may stand either indefinitely or for a specified period of time' can be reasonably interpreted to include a bus stand in the above sense." Yet a reference can also be made to another decision of the apex Court in the case of Hari Om Gautam Vs. District Magistrate ( AIR 1987 SC 1339 ) where similar views to that of the case of Municipal Board, Pushkar was taken. This was a case where the District Magistrate had declared certain area as bus stand. The Court quashed the said order holding that a bus stand can only be notified by the Regional Transport Authority. The power of the District Magistrate was confined to the question of determination of parking place and halting place, which are not the same as bus stand which can only be notified by the Regional Transport Authority. 11. It has to be remembered that Chapter VIII, Section 117 of the M.V. Act is enabling provision for State Government or any authority authorised in this behalf, in consultation with the local authority, having jurisdiction in the area concerned, to deal with the control of traffic. Therefore, an argument can safely be advanced that in order to have control of traffic, it would be essential, to determine the place at which motor vehicles may stand either indefinitely or for a specified period of time including determination of parking places where public vehicles may stop for a longer time than is necessary for the taking up and setting down of passengers means halting stations for public service vehicles. Thus having regard to such authoritative pronouncements, I have no option but to accept that "bus stand" is different from "parking slots" or "bus stops". 12. Therefore for the reasons stated above, it has to be held that in the facts and circumstances of the case, until and unless, due approval of the Transport Authority is granted as required under rule 191, the settlement in question cannot be treated final. 13. 12. Therefore for the reasons stated above, it has to be held that in the facts and circumstances of the case, until and unless, due approval of the Transport Authority is granted as required under rule 191, the settlement in question cannot be treated final. 13. But this cannot be ignored that having regard to the financial bankruptsy of the municipality and constitutional mandate, by virtue of recent amendment brought by Constitution (73rd Amendment) Act, 1992 imposing statutory responsibilities on the municipalities to prepare plans for economic development and social justice as also having regard to the statutory obligation under Section 11A of the Municipal Act, the Special Officer after observing all the required formalities and due approval of the District Magistrate and Urban Development Department, had taken steps for settlement of the bus stand. It would appear from the letter of the District Magistrate addressed to the Commissioner, Darbhanga Division on 4.3.1997 (Annexure I) that previous settlement was made with Kamleshwari Prasad Singh (respondent no. 8) on 13.5.1987. The letter further indicates that no approval was granted by the Transport Authority. Though in paragraph 8 of the second writ petition, respondent no. 8 has claimed that approval was granted by such an authority but no document has been annexed. It would further appear from Annexure-A attached with the reply of respondent no. 8 to the counter affidavit filed on behalf of respondent nos. 3, 4 and 7 that approval of the District Magistrate was also provisional. Even the Regional Transport Authority, Darbhanga, in his letter dated 31.12.1996, contained in Annexure 'J' addressed to the District Magistrate, Samastipur had noticed that approval of the District Magistrate in favour of Kamleshwari Prasad Singh was purely provisional. 14. It is equally useful to notice that from the letter of the District Magistrate it, would appear that no approval or consent of the Municipality was ever obtained for setting up the bus stand with respondent no. 8. That apart, this also cannot be ignored that no material has been produced nor claimed that any revenue was never paid by respondent no. 8 either to the respondent municipality or the authority of the State Government. 15. Therefore, having regard to the facts noticed cPC" as also since the settlement with respondent no. 8. That apart, this also cannot be ignored that no material has been produced nor claimed that any revenue was never paid by respondent no. 8 either to the respondent municipality or the authority of the State Government. 15. Therefore, having regard to the facts noticed cPC" as also since the settlement with respondent no. 8 is continuing with effect from 1987, I am constrained to hold that any attempt of the authorities to allow this respondent to continue with the previous settlement would be highly improper and unjust. Certain materials have been brought by this respondent and the State authority that a Title Suit no. 104 of 1996 as also a proceeding under Section 48E of the B.T. Act have been filed by Sanjay Singh and others, raising a dispute with regard to the land on which the settlement of the bus stand was made by the Special Officer of the Municipality. The stand of petitioner Amar Pratap and Special Officer of the Municipality is that such cases have been filed after execution of the agreement and settlement of the bus stand. That apart, such persons have no right, title and interest in the property. Therefore, pendency of such disputes cannot stand in the way of the respondent Special Officer to take steps for settlement of the bus stand. 16. Be that as it may, as would appear from the letter dated 31.12.1996 (Annexure-5) that approval of the Transport Authority, as required under rule 191 of the Rules, is yet to be accorded, therefore, it would not be essential for this Court to examine whether the land in question is a suitable place to establish the bus stand. 17. Therefore, in the facts and circumstances of the case, the concerned authority shall certainly go into the details of such questions including whether the land in question is free from dispute. 18. Learned counsel for the respondent municipality however, pointed out that a Bench of this Court having examined more or less identical question in C.W.J.C. No. 7426 of 1996, disposed of on 17.11.1996, has held that with regard to the settlement of a bus stand within the Municipal or notified area committee, it is the Chairman or in his absence the Special Officer who shall be competent authority to execute agreements in terms of the provisions of Section 64(2) of the Bihar & Orrisa Municipal Act. It has to be noticed that this was a case where the order of the Commissioner-cum-Secretary, Government of Bihar, directing that Barbigha Bus Stand shall function at its old place, was under challenge. The Court held that such a decision was illegal, both for want of jurisdiction and principles of audi alteram partem. There is no doubt that from the facts of the said case, it would appear that a bus stand at Barbigha was settled by the Chairman of the Municipality. But in that case, such a question was not raised whether the settlement was made after approval of the Transport Authority as required under rule 191 of the Rules. 19. A grievance was also made by the learned counsel for the petitioner that though this Court had by the order dated 16.5.1997, stayed the operation of the impugned order of the Collector but because of misleading certificate of the learned lawyer and a publication in the daily newspaper known as "Hindustan" on 26.6.1997, the compliance of the interim order was not given effect by the District Magistrate. But the learned, lawyers as well as Mr. Arbind Ujjawal, a representative of the "Hindusthan" expressed regret and stated that such events took place due to lack of understanding and it was not deliberate. The District Magistrate has also appeared in person and filed a show cause on 1.7.1997. He has also expressed regret and tendered unqualified apology for the inconvenience and stated that delay in compliance of the Court's order was not deliberate but because of the letter of the learned lawyer and opinion of the Government Pleader. 20. Be that as it may, since all the concerned persons have expressed regret and the order of this Court has already been complied with, I feel in the interest of justice to drop the matter. 21. Learned counsel for petitioner Amar Pratap Singh then submitted that in any view of the matter, since the settlement in question was made through open auction bid with the highest bidder and agreement etc. has also been executed, it was not proper for the authorities to cancel such settlement at this stage particularly when huge expenditure was made for development of the approach road and construction of the bus stand. The petitioner has also deposited money for settlement as required by the respondents. has also been executed, it was not proper for the authorities to cancel such settlement at this stage particularly when huge expenditure was made for development of the approach road and construction of the bus stand. The petitioner has also deposited money for settlement as required by the respondents. Therefore, he would suffer irreparable injury if the settlement in question is cancelled at this stage. 22. Be that as it may, having regard to the authoritative pronouncements of the apex court as well as this Court, undisputedly the settlement of the bust stand can only be made on due approval of the Transport Authority as required under rule 191. In this case, as would appear from the letter of the Transport Authority dated 31.12.1996 (Annexure-J) that certain queries were made from the District Magistrate with regard, to the decision of the Special Officer for the settlement in question but no material was placed before me to show that final decision has been taken by the authority to accord approval. Undisputedly, as per the strict interpretation of Section 117 read with rule 191 of the Rules, such steps are to be taken before the settlement of the bus stand. But having regard to the peculiar development which had taken place in this case and particularly when respondent no. 8 cannot be allowed to continue with the settlement of the year 1987, it would be in the interest of general public to maintain status quo until provisional or final approval is granted by the Regional Transport Authority. But it has to be clarified that in case as per the opinion of the Regional Transport Authority, the land in question is not suitable for bus stand then a fresh bus stand shall be notified by the said authority in consultation with the local authorities, having jurisdiction in the area so that steps can be taken by the Special Officer for fresh settlement after due publication of notice and auction etc In that case, the settlement with the petitioner Amar Pratap Singh shall be case celled. But in the case "lpproval of the present place, the Jnorl'ent already made with him sha banpue for the period such an approva granted by the Transport Authority. 23. But in the case "lpproval of the present place, the Jnorl'ent already made with him sha banpue for the period such an approva granted by the Transport Authority. 23. I further direct that having regard to the urgency of the matter, the Transport Authority is, therefore, required to take final decision positively within a period of four weeks from the date of receipt/production of a copy of this order. 24. With the aforesaid direction to the concerned authorities, C.W.J.C. No. 492 of 1997 is partly allowed but C.W.J.C. No. 12635 of 1996 filed by petitioner Kamleshwari Prasad Singh is hereby dismissed. 25. Let a copy of this order be given to the learned Additional Advocate General for necessary communication to the concerned Authority.