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Sanjay Tyagi & Another v. Municipal Board & Another - WRIT - A No. 15105 of 1998  RD-AH 2798 (13 September 2005)
Civil Misc. Writ Petition No.15105 of 1998
Sanjay Tyagi & Anr.
The Municipal Board, Thakurdwara & Anr.
Hon'ble Dr. B.S. Chauhan, J.
Hon'ble Shishir Kumar, J.
The present petition has been filed for a writ in the nature of certiorari calling for the record of the case and quashing the Bye-Laws framed by Nagar Palika Thakurdwara, filed as Annexure-2 to the writ petition. Further a writ in the nature of mandamus commanding the respondents not to realize the parking fee on the basis of the impugned Bye-Laws. The respondent no.1 is charging the fee which is permissible in view of the provisions. The petitioners are operating on the inter-regional route and they have to pass through the limits of the Nagar Palika, Thakurdwara everyday. The respondents are charging Rs. 5 for passing and repassing through Nagar Palika Parishad. It has also been stated that the respondents have not given any place for parking of the vehicles of the petitioners nor provided any other facility.
We have considered the rival submissions made by learned counsel for the parties and perused the record.
The case is squarely covered by the judgment of the Hon'ble Supreme Court in Kamaljeet Singh & Ors Vs. Municipal Board, Pilkhwa & Ors, 1987 UPLBEC 211 and of this Court in Om Prakash Vs. Municipal Board, Debai, Bulandshahr, 1987 UPLBEC 562. In the first case it has been held by the Hon'ble Supreme Court that unless the Municipal Board provides certain facilities it cannot impose a tax on the vehicles merely for passing through its limit/roads etc.
In the second case a Division Bench of this Court has held as under:
"In the two cases referred to above, notifications had been issued under Section 298 (2) List H (b), whereas in the instant case, the bye-law was made under Section 298 (2) List I E (b). There is a difference in between the two provisions. However, under clause (b) of List E as well no fees could be charged for entry on stage carriages for setting down and picking up passengers. Section 265 of the Act also view the stay of a vehicle for the period longer than necessary for picking up or setting down passengers as not amounting to obstruction".
In Municipal Council Bhopal Vs. Sindhi Sahiti Multi Purpose Co-operative Society Ltd., 1973 SC 2420 it was held that a Municipal Board could not compel the persons plying the motor buses for hire to park buses at place specified by it. The Court held as under:-
"However if a municipality provides for a bus stand without compelling everybody to use it, a fee can be charged on bus operators using it voluntarily."
In view of the above as the case is squarely covered by the said judgments, the petition succeeds and is allowed in terms of the interim order passed by this Court earlier on 30/4/1998 which provides that no fee shall be charged in the form of parking fee unless the vehicles are voluntarily parked on the parking place maintained by the respondents.
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