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2002 DIGILAW 1123 (PAT)

Naresh Yadav v. State Of Bihar

2002-10-22

S.K.KATRIAR

body2002
Judgment 1. Heard Mr. B.P. Pandey for the petitioner, and Mr. R.K. Dutta, learned S.C. No. 4, for the respondents. This writ petition is directed against the order bearing memo no. 678, dt. 11.7.2001, issued under the signature of respondent no. 3 (District Magistrate, Nalanda at Biharsharif), in purported exercise of powers under section 117 of the Motor Vehicles Act, 1988 (hereinafter referred to as the Act), read with Rule 214 of the Bihar Motor Vehicles Rules, 1992 (hereinafter referred to as the Rules), whereby and whereunder parking charges have been imposed on the buses and other modes of road transport carrying tourists and pilgrims at Rajgir. 2. According to the writ petition, the petitioner is the holder of a permanent stage carriage permit no. 186/2001 for the period 5.6.2001 to 4.6.2001 with respect to bus no. BR-25/7194 for the route photo copy of the permit is marked Annexure-1 to the writ petition issued by the Magadh Regional Transport Authority, Gaya. It appears from a perusal of the same that the petitioner has been allotted the route Gaya to Biharsharif via four stations including Rajgir to & fro. It further appears from a perusal of the time table annexed to the permit that the petitioner has been allowed another trip to and fro in the second half of the day. Respondent no. 3 has issued the impugned order in purported exercise of powers under section 117 of the Act read with Rule 214, whereby a parking fee at Rajgir for the buses/vehicles carrying tourists and pilgrims as per the details mentioned therein. 3. The petitioner complains before this court that in view of the terms and conditions of the permit granted in favour of the petitioner, he is not covered by the terms of the impugned order and, therefore, cannot be compelled to park his vehicle at the parking space created by the impugned order. In his submission, holders of stage carriage permit stand on a different footing than the buses/ vehicles carrying tourists and pilgrims. He relies on the following reported judgments of this Court : (i) 1989 (Vol-1) BLJ 273 : 1988 PLJR 1009 (Hari Shankar V/s. Lodging House Committee) and (ii) 2002 (3) PLJR 426 (Mitrynjay Kumar V/s. State of Bihar) 4. Mr. R.K. Dutta, learned S.C. No. 4, has illumined the position by his submissions. He relies on the following reported judgments of this Court : (i) 1989 (Vol-1) BLJ 273 : 1988 PLJR 1009 (Hari Shankar V/s. Lodging House Committee) and (ii) 2002 (3) PLJR 426 (Mitrynjay Kumar V/s. State of Bihar) 4. Mr. R.K. Dutta, learned S.C. No. 4, has illumined the position by his submissions. His submission, in substance, is that the provisions with respect to parking of vehicles can be divided into two parts, namely, the parking space meant for setting down and taking up passengers which is covered by Rule 191. The other category of cases is covered by Rule 214 which, in his submission, is the relevant provision in the present context which provides for parking of buses/ vehicles and where no public service vehicle shall be allowed to pick up or set down any passenger. In his submission, the impugned order has been issued in terms of Rule 214. He further submits that the distinction sought to be made out by the petitioner, namely, that of a bus/ vehicle carrying tourists and pilgrims, on the one hand, and the rest on the other, has no sanction in law and is not borne out by the provisions of the Act and the Rules. 5. I have carefully considered the submissions of the learned counsel for the parties. Learned Standing Counsel is right in his submission that section 117 is the generic provision providing for parking places and halting stations with respect to all kinds of buses/ vehicles covered by the Act and the Rules thereunder. Section 117 reads as follows : "117. Parking places and halting stations.The State Government or any authority authorised in this behalf by the State Government may, in consultation with the local authority having jurisdiction in the area concerned, determine places at which motor vehicles may stand either indefinitely or for a specified period of time, and may determine the places at which public service vehicles may stop for a longer time than is necessary for the taking up and setting down of passengers." Chapter-V of the Act is headed "Control of Transport Vehicles". Section 96 is part of chapter-V which is headed" Power of State Government to make rules for the purposes of this Chapter". Section 96 is part of chapter-V which is headed" Power of State Government to make rules for the purposes of this Chapter". Chapter-VIII is headed "Control of Traffic", section 138 of which is headed "Power of State Government to make rules" for the purposes of carrying into effect the provisions of this chapter other fhan the matters specified in Sec. "I37. Section 137 of the Act provides for powers of Central Government to make rules with respect to the limited items mentioned therein. For the purpose of disposal of the present writ petition, there is no need to go into the question whether Rule 191 and Rule 214 have been framed in exercise of powers under section 96 and/ or section 138. The powers of the State Govt, to make appropriate rules for creation, maintenance and management of parking places is undoubtedly to be found in the Act. 6. This takes me on to two of the provisions under the Rules which should be considered carefully in juxtaposition. Rule 191 is headed "Parking places and halting stations" which, inter alia, provides that the Regional Transport Authority in consultation with the authorities mentioned therein may notify places in respect of picking up and/ or setting down of passengers by public service vehicles or by any specified class of public service vehicles on payment of prescribed fee. On the other hand, Rule 214 is headed "Public parking place and stand" which reads as follows : "The District Magistrate, may, in consultation with the local authorities having jurisdiction in the area concerned notify (i) any place as a parking place or a stand, (ii) the class of motor vehicle that can be parked, (iii) maximum period of time for which a motor vehicle can be parked, (iv) the fee that can be levied and collected by the local authority for such parking, and (v) the manner in which such parking place or stand shall be managed and maintained, by publication in the local newspaper and by creating appropriate traffic signs. (2) On the parking places and stands so notified under sub-rule (1), no public service vehicle shall be allowed to pick up or set down any passengers". (2) On the parking places and stands so notified under sub-rule (1), no public service vehicle shall be allowed to pick up or set down any passengers". It is thus manifest from a comparative study of Rules 191 and 214 that the power under the former has to be exercised by the Regional Transport Authority in consultation with the authorities mentioned therein only in respect of picking up and/ or setting down of passengers on payment of prescribed fee. On the other hand, Rule 214 vests the District Magistrate with the power to be exercised in consultation with the local authorities to notify any place as a parking place or stand, for a class of public service vehicle which shall not be allowed to pick up or set down any passenger. 7. It is manfiest from a plain reading of the impugned order that the same has been issued by the District Magistrate of the District of Nalanda at Biharsharif, in purported exercise of powers under Rule 214 to park a class of buses/ vehicles carrying tourists and pilgrims on the rates mentioned therein, it is manifest from the tenor of the impugned order that the same is meant for parking such buses/ vehicles for fairly long durations, and is not meant for buses/ vehicles allowed to pick up or set down passengers. On the other hand, it is manifest from a plain reading of the bus permit in favour of the petitioner that a rigorous time schedule for the two trips of the bus journey from Gaya to Biharsharif and vice-versa, i.e. involving altogether four journeys, has to be observed/ maintained to pick up and set down passengers. The irresistible conclusion, therefore, is that the petitioners case is covered by Rule 191, whereas the impugned order has been issued in exercise of powers under Rule 214. Obviously, therefore, he is beyond the scope and ambit of operation of the impugned order. In other words, the respondent authorities cannot charge any fee from the petitioner in terms of the impugned order. 8. Obviously, therefore, he is beyond the scope and ambit of operation of the impugned order. In other words, the respondent authorities cannot charge any fee from the petitioner in terms of the impugned order. 8. Learned counsel for the petitioner is, therefore, right in placing reliance on the judgment of this Court in Hari Shankar (supra) paragraph-14 of which lays down to the effect that "it is a well settled principle of law that the tax can be imposed or fee can be levied only when a power therefor is vested in the authority concerned. It is a well settled principle of law that a person can be subjected to a fiscal liability only in accordance with law and not otherwise..."The judgment of this court in Mitrynjay Kumar (supra) also in spirit supports the contention adanced on behalf of the petitioner. The same dealt with the scope and ambit of Rule 191. It is stated in the judgment that the Rule 191 is not an empty formality, and has the force of law. When an order is to be passed by the Regional Transport Authority, then it has to be passed by the said authority and the Zila Parishad cannot assume any jurisdiction. 9. Learned counsel for the petitioner has next submitted that once it is held that the petitioner is not covered by the impugned order, then the collections made so far should be refunded to him. He has placed before me the documents marked Annexure-3 series which are the money receipts collected by the notified area committee, Rajgir (Nalanda), from the petitioner in terms of the impugned order. He further invites my attention to the order dt. 9.11.2001, passed on this writ petition the relevant portion of which is set out hereinbelow for the facility of quick reference : "... In view of the petitioners contention that he has to pay parking fee as per the order dated 11.7.2001 (Annexure-4), issued (under the signature of the District Magistrate, Nalanda, without justification, the respondent authorities must maintain accounts so that, in the event of success in this writ petition, the money can be refunded to the petitioner." As found hereinabove, the respondent authorities have no power or jurisdiction to collect any levy or parking fee from the petitioner in terms of the impugned order. They are, therefore, liable to refund the entire amount collected thereunder from the petitioner. They are, therefore, liable to refund the entire amount collected thereunder from the petitioner. The District Magistrate, Nalanda, at Biharsharif, is hereby directed to refund the entire amount collected from the petitioner in terms of the impugned order within a period of two months of the date of receipt/ production of a copy of this order. 10. in the result, this writ petition is allowed. The impugned order survives unscathed, but is hereby declared inapplicable to the petitioner in the facts and circum stances of the present case.