# Bombay v. Uday Singh and others

- **Citation:** (2012) 3 ILRA 1582
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-10-19
- **Case number:** Civil Misc. Writ Petition No. 19014 of 2012
- **Bench:** Ashok Bhushan, Abhinava Upadhya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bombay-v-uday-singh-and-others-42371
- **Pages:** 15

## Headnote

Constitution of India, Article 226-validity
of
notification-inviting
tender-about
charging levy/user charge from Taxi
Tempo parked on stand-challenged as
ultra vires-according to Section 541(12)
corporation
can
frame
by-laws
regulating movement of these tempos
and autos-falling within category of
services-being
under
obligation
to
maintain clearness and hygiene-would
incur expenditure-inviting tenders can
not be faulted.

Held: Para-49, 50 and 54

Section
541
sub-clause(42)
clearly
stipulates
that
the
Corporation
can
frame
bye
laws
for regulating
the
charges for services rendered by it.
Regulating
the
movement
of
these
tempos and autos would, in our view, fall
within the category of services rendered
3 All] Tempo Taxi Sewa Samiti and another V. State of U.P. and others
1583
and the beneficiary of such service is the
tempos/autos operators.

That apart, if places are identified and
specified for halting of these tempos for
the purposes of taking up and setting
down passengers it would mean more
footfalls
on
that
spot
and
the
Corporation being a civic body will also
be
under
obligation
to
maintain
cleanliness and hygiene at such places
which would require deployment of man
power
which
in
turn
would
incur
expenditure and, therefore, that also will
fall under the category of services
rendered.

In the present case, user charge has
been fixed at Rs. 5/- per day as per
vehicle which, we are of the considered
view, is neither arbitrary nor vexatious.
Consequently, the Municipal Corporation
inviting tenders for collection of user
charge from such vehicles cannot be
faulted on this ground, the same in
accordance with law. Thus, the question
No.II is answered in the negative,
against the petitioner.
Case Law discussed:
AIR 1980 SC 1785; AIR 1989 SC 1988; JT
1992 (2) SC 363; AIR 1993 SC 2313; Writ
Petition No. 3119 of 1887 (Sanjay Agarwal and
another Vs. Nagar Mahapalika, Allahabd and
others) dated 20.04.1999; 2007 (4) AWC
3733; 2003 (6) AWC 5245; 2001 (4) AWC
2696; Manju Singh Vs. State of U.P. And
others (supra)

## Text

_Characters 0–39,677 of 49,099. This is a partial read: ask again with offset=39677 for what follows._

1582 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
the learned counsel for the respondents, in
the case of High Court of Judicature at
Bombay vs. Uday Singh and others
(supra) the charge against the officer that
the
officer
demanded
a
sum
of
Rs.10,000/- from the defendant in a suit
for eviction was found proved.

37. From the above discussions, we
are of the view that although the learned
Enquiry Judge held that bail was granted
on account of extraneous consideration but
no extraneous consideration having either
been referred to or proved, the charge of
misconduct against the officer cannot be
said to be proved. Further the opinion of
the
learned
Enquiry
Judge
that
substantially on the same ground first bail
application was rejected is also not a proof
of misconduct by Charged Officer while
allowing the bail application unless the
granting of bail is referred to or found out
on any extraneous consideration which
having not been proved in the present case,
the charge of misconduct against the
Charged Officer cannot be held to be
proved.

38. In view of the foregoing
discussions, we are of the view that
punishment of reversion of the petitioner
cannot be sustained.

39. In result, the writ petition is
allowed. The order dated 17th January,
2006 is set-aside. The petitioner shall be
entitled to all consequential benefits.

40. Parties shall bear their own costs.
---------

 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.10.2012

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE ABHINAVA UPADHYA, J.

Civil Misc. Writ Petition No. 19014 of 2012

Tempo Taxi Sewa Samiti and another

 ...Petitioner
Versus
State of U.P. And others ...Respondents

Counsel for the Petitioner:
Sri U.N. Sharma
Sri Chandra Bhan Gupta
Sri C.B. Gupta
Sri Gavendra Mishra
Sri Neelam Pandey

Counsel for the Respondents:
Sri M.C. Tripathi
Sri Vivek Saran
Sri Vivek Varma
C.S.C.

Constitution of India, Article 226-validity
of
notification-inviting
tender-about
charging levy/user charge from Taxi
Tempo parked on stand-challenged as
ultra vires-according to Section 541(12)
corporation
can
frame
by-laws
regulating movement of these tempos
and autos-falling within category of
services-being
under
obligation
to
maintain clearness and hygiene-would
incur expenditure-inviting tenders can
not be faulted.

Held: Para-49, 50 and 54

Section
541
sub-clause(42)
clearly
stipulates
that
the
Corporation
can
frame
bye
laws
for regulating
the
charges for services rendered by it.
Regulating
the
movement
of
these
tempos and autos would, in our view, fall
within the category of services rendered
3 All] Tempo Taxi Sewa Samiti and another V. State of U.P. and others
1583
and the beneficiary of such service is the
tempos/autos operators.

That apart, if places are identified and
specified for halting of these tempos for
the purposes of taking up and setting
down passengers it would mean more
footfalls
on
that
spot
and
the
Corporation being a civic body will also
be
under
obligation
to
maintain
cleanliness and hygiene at such places
which would require deployment of man
power
which
in
turn
would
incur
expenditure and, therefore, that also will
fall under the category of services
rendered.

In the present case, user charge has
been fixed at Rs. 5/- per day as per
vehicle which, we are of the considered
view, is neither arbitrary nor vexatious.
Consequently, the Municipal Corporation
inviting tenders for collection of user
charge from such vehicles cannot be
faulted on this ground, the same in
accordance with law. Thus, the question
No.II is answered in the negative,
against the petitioner.
Case Law discussed:
AIR 1980 SC 1785; AIR 1989 SC 1988; JT
1992 (2) SC 363; AIR 1993 SC 2313; Writ
Petition No. 3119 of 1887 (Sanjay Agarwal and
another Vs. Nagar Mahapalika, Allahabd and
others) dated 20.04.1999; 2007 (4) AWC
3733; 2003 (6) AWC 5245; 2001 (4) AWC
2696; Manju Singh Vs. State of U.P. And
others (supra)

(Delivered by Hon'ble Abhinava
Upadhya, J.)

1. Heard Sri U.N.Sharma and Sri
Chandra Bhan Gupta, learned counsel
appearing for the petitioners and Sri
M.C.Tripathi and Sri Vivek Varma, learned
counsel appearing for the Nagar Nigam.

2.

The
Kanpur
Municipal
Corporation, within its municipal area, for
the convenience of the public, has allowed
plying of taxi, buses, tempo, auto rickshaws
as well as cycle rickshaws.

3. In this writ petition the dispute
raised by the Tempo and Auto rickshaws
Association is with regard to the bye laws of
the
Corporation
empowering
it
for
realization of user charges from them.

4. It is alleged that the Kanpur
Municipal Corporation does not provide
any facility to charge user fee as such the
bye laws promulgated through notification
dated 29.3.2006 and Gazette publication
dated 22.7.2006 is against the G.O. dated
18.7.1998 (Annexure-6 to the writ petition)
and violative of Section 54 Clause (42) of
the U.P. Municipal Corporation Act, 1959
(in short the Act) and is arbitrary and,
therefore, the same be quashed.

5. Brief facts, as narrated by the
learned counsel for the parties, are that by a
resolution of the Municipal Corporation
being resolution no.1 dated 28.1.2006 it
proposed bye laws for imposition of user
charge within the Municipal Corporation
Limits. A publication was made for
information/ and inviting objection and
suggestion from the public in general
regarding the framing of said bye laws.
Thereafter the bye-laws were framed and
notified by notification dated 29th March,
2006 and were made applicable from the
date of its publication in the official Gazette
which was published on 26.7.2006.

6. In the aforesaid notification in
Clause-5 user charge fee has been defined
to be a charge for use and utilization of any
service and facility of the Corporation
within the municipal limits. The rate, at
which the same has to be charged, has been
indicated in the chart annexed with the bye
laws. It is further provided that the user
1584 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
charge will be levied for use of park land as
well as green belt for providing means of
removing
dustbin
and
other
public
convenience facility, such as toilets, urinals
and for providing other utilities and for the
use of land for such purposes within the
Municipal area.

7. In exercise of the aforesaid power
and for the aforesaid purpose the Municipal
Commissioner issued an advertisement
dated 8.4.2012 specifying the routes and
spots for halting, setting down and picking
up passengers by four thousand tempo and
three thousand auto rickshaws charging Rs.
5/- per day from the aforesaid tempo and
auto rickshaws for plying from one point to
another for the remainder period of financial
year 2012-2013.

8. At this juncture it was pointed out
that pursuant to the aforesaid bye laws
earlier
also
by
advertisement
dated
24.3.2012 tenders were invited but the same
was withdrawn by the Corporation upon
receiving certain complaints and was
directed to be re-advertised.

9. Learned counsel for the petitioners
further points out that the petitioners have
been agitating this issue earlier also
pursuant to the tender invited for user
charge for the year 2008-2009 in which the
petitioners were also granted contract.
However, with regard to dispute relating to
parking fee the petitioners filed Writ
Petition No. 53357 of 2008 and another writ
petition being Writ Petition No. 42177 of
2008. Both these writ petitions are said to
be still pending. The petitioners are said to
have filed another writ petition being Writ
Petition No. 15902 of 2012 challenging the
earlier advertisement dated 24.3.2012 but
once the advertisement itself was withdrawn
the said writ petition was dismissed as
withdrawn with liberty to file afresh writ
petition. Consequently, the present writ
petition has been filed challenging the said
advertisement. It is further stated that
another writ petition being Writ Petition No.
66059 of 2011 was filed challenging the
earlier tender granted in favour of other
persons relating to the year 2011-2012
which published on 8.4.2012 but has been
dismissed as infructuous on account of
subsequent
advertisement,
namely,
advertisement
dated
24.3.2012
and
8.4.2012.

10. Petitioner no.1 is an association of
Tempo Taxi Owners, a registered society
and petitioner no.2 is the President of
petitioner no.1.

11. In this writ petition the petitioners
have challenged the validity of the bye laws
notified vide Notification dated 29.3.2006
(Annexure-2 to the writ petition) and have
prayed for quashing of the advertisement
inviting tenders dated 8.4.2012 published by
the
Municipal
Commissioner,
Kanpur
(Annexure-18 to the writ petition) on the
ground that the bye laws empowering the
Corporation to levy/user charge from the
members of its association for plying the
autos and tempos within the Corporation
limit is illegal, arbitrary in view of the fact
that no service or facility is provided by the
Corporation to impose such a charge.

12. Learned counsel for the petitioners
submits that the autos, tempos have already
paid road tax to the Regional Transport
Authority and have also paid registration fee
and since no facility or service is provided
by the Municipal Corporation, no extra user
charge can be demanded from its members.

13. According to the learned counsel
for the petitioners Section 542 Clause (42)
3 All] Tempo Taxi Sewa Samiti and another V. State of U.P. and others
1585
of
the
Act
specifically
provides
for.........."regulating charges for service
rendered by any Municipal Authority."
According to him, the tempos and the autos
plying within the city limits on the streets
which are maintained by the PWD and
merely pick up and settle down passengers
from point to point and only for halting
briefly for the said purpose on the street, no
user charge in the shape of parking fee can
be imposed by the Corporation as no
services are rendered by the Corporation to
demand any charge where off.

14. Sri Sharma, learned Senior
Counsel
has
placed
reliance
on
a
Government
Order
dated
18.7.1998
(Annexure-6 to the writ petition) to assert
that the current bye laws framed by the
Corporation is contrary to the said G.O. and,
therefore, deserves to be set-aside. He
submits that in paragraph-3 of the G.O. it is
clearly provided that any bye laws framed
by the local body with regard to charging of
parking fee will be valid only if two
conditions are fulfilled:

(A) The parking area should be clearly
specified and no parking fee shall be
charged from vehicles other than in the
parking area. It is further provided in the
G.O. that no parking fee will be charged
from the vehicles for briefly halting on the
PWD roads.

(B) Where parking fee is charged the
local body will provide the facilities of
drinking water, waiting sheds and ladies
toilets.

15. The said G.O. further authorizes
the District Magistrate to decide whether the
local body for charging parking fee have
complied with the conditions mentioned
above and in case of any dispute regarding
the same, the District Magistrate of the area
would be the competent authority to decide.

16. It is submitted that since the auto
and tempo owners are already paying
annual licence fee to the Nagar Nigam, they
cannot be restricted in plying their vehicles
on any route, especially when the RTO
itself has not fixed any route for plying the
vehicle.

17. The contention of the learned
counsel for the petitioners is that for the
realization of user charge, the appointment
as agents by inviting tenders for the purpose
by
the
impugned
advertisement
is
colourable exercise of power as the bye
laws itself do not provide for any route and
as such the bye laws as well as the
advertisement dated 8.4.2012 deserve to be
set aside. It has further been alleged that
none of the municipalities or the municipal
corporation within the State are charging
such user charge but only the Kanpur
Municipal Corporation is charging the same
without any authority of law.

18. Learned counsel has relied upon
various judgments of the Hon'ble Apex
Court with regard to vesting of streets and
pavements in the municipalities and the
right of the user qua the municipalities,
namely, AIR 1980 SC 1785 (State of U.P.
Vs. Ata Mohd.), AIR 1989 SC 1988 (Sodan
Singh
Vs.
New
Delhi
Municipal
Committee and another), JT 1992 (2) SC
363 (Ahmedabad Municipal Corporation
Vs.
Dilbagsingh
Balwantsingh
and
others), AIR 1993 SC 2313 (M/s. Gobind
Pershad Jagdish Pershad Vs. New Delhi
Municipal Committee) and the judgment of
this Court passed in Writ Petition No. 3119
of 1987 (Sanjay Agarwal and another Vs.
Nagar Mahapalika, Allahabad and others)
dated 20.4.1999.
1586 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

19. On the strength of the aforesaid
judgments it has been emphasized that the
streets can not be encroached by any one
including the Corporation, inasmuch as, the
tempo stands cannot be allowed to be made
either on the road or on the pavement/foot
path as the same is impermissible in law as
such no user charge can be demanded for
use of such streets and land.

20. All these judgments have
elaborately dealt with vesting of streets and
encroachment upon the same and regulation
of parking as well as the rights of the traders
using pavements of the streets for such
trading. Since there can be no dispute with
the aforesaid pronouncements of this Court
as well as the Apex Court, it is not
necessary to quote the relevant portion of
the aforesaid decisions. Therefore, upon the
aforesaid assertions the pleadings in the writ
petition and the aforesaid judgments, the
claim of the petitioners is that the Municipal
Corporation was not within its right to
promulgate the bye laws and charge user
charge from the auto and tempo vehicles for
plying in the State of U.P. within the limits
of Municipal Corporation, Kanpur.

21. Sri M.C.Tripathi, learned counsel
appearing for the Corporation, on the other
hand,
submits
that
the
petitioners'
association itself was involved in collection
of user charge in the earlier year and was
also granted contract for the same which is
the subject matter of Writ Petition No.
53357 of 2008 for the year 2008-2009 and
Writ Petition No. 42177 of 2008 filed by the
petitioners.

22. It is submitted by the learned
counsel for the respondents that when the
petitioners did not deposit the amount under
the contract for realization of user charge,
the recovery proceedings were initiated
which is subject matter of Writ Petition No.
1415 of 2011. Therefore, now his challenge
is to the very imposition of user charge for
which he himself was agent appointed by
the Nagar Nigam for collection is not
justified as on one hand he has drawn
benefit from imposition of user charge and
now on the other hand having not
participated in the tender he is precluded
from challenging the same. In order to
demonstrate that the petitioners were
themselves agents of the Corporation for
collection of user charges, Annexure-13 of
the writ petition has been relied upon by the
learned counsel for the respondents which is
a list of various operators and fee collected
by the petitioner no.2 from them and
deposited with Corporation.

23.

Learned
counsel
for
the
Corporation further submits that by virtue of
Section 272 of the Act the streets within the
municipal limits have vested in the
Corporation and is under control of the
Municipal Commissioner. Under Sections
273,
274
and
277,
the
Municipal
Commissioner has been fully empowered to
manage, maintain the streets and can also
regulate vehicular traffic thereon.

24. It is submitted that in the already
congested Kanpur city there are more than
8000 autos/ tempos and in order to maintain
smooth traffic flow the Corporation has to
regulate the movement and parking of these
autos/tempos. For convenience of the public
their routes have been assigned from point
to point and at the terminal of each route
parking areas has been assigned. In some
place facilities for public convenience like
shed, Benches Urinals etc. have been
provided and in other places they are being
installed and it is an on going process. In
order to maintain the upkeep and for further
providing facility, 'user charge' @ Rs. 5/-
3 All] Tempo Taxi Sewa Samiti and another V. State of U.P. and others
1587
per day is levied as per bye laws of the
Corporation promulgated in exercise of
power under Section 541 (42) of the Act.

25. It has been alleged by the learned
counsel for the respondents that by a recent
decision of this Court in the case of Manju
Singh Vs. State of U.P. and others,
2007(4)AWC 3733 vide decision dated
16.7.2007 this Court has given elaborate
direction for regulating traffic within the
local areas of the municipalities and have
directed that the Regional Transport Officer
and the Additional Regional Transport
Officer shall prepare a scheme for
respective districts in the State of Uttar
Pradesh to provide parking slots, halting
places for buses, taxis and other vehicles in
consultation with the local body, like Nagar
Nigam, Nagar Palika and other authorities
expeditiously preferably within a period of
two months and the competent authority
shall take appropriate and effective steps to
enforce the same.

26. It is submitted that pursuant to the
aforesaid direction elaborate plan was
drawn and to regulate the tempos and autos
etc. 31 places were identified for the said
purpose which included existing 21 places
which were already in use since 2001. The
said identification of places was in
consultation with all the relevant authorities
which included the District Magistrate and
Executive Engineer of Public Works
Department
and
vide
letter
dated
27.12.2007 no objection certificate was also
granted by the Public Works Department
and as such the places have been identified
for parking and halting of the aforesaid
tempos and routes have also been allocated
to streamline their movement. Learned
counsel has relied upon Annexure-6 to the
writ petition which is a letter of the
Assistant Regional Transport Authority,
Kanpur Nagar being letter dated 4.1.2008
for submitting that the aforesaid proposal
was drawn after meeting with the various
association in which the petitioner and his
association also participated and the same is
also accepted by the petitioner himself in
paragraph-12 of the rejoinder affidavit. It is
submitted by the learned counsel for the
respondents that the documents filed by the
petitioner as Annexure-7 to the writ
petition, which is in response to the
information sought by the petitioner under
RTI Act vide letter dated 12.9.2008
discloses that various facilities have been
provided at various places. However, there
are still places where work is in progress for
providing required facilities and as such,
upon the own showing of the petitioner it
cannot be said that the Corporation does not
provide any facility to entitle it to charge
user charge from the tempos and taxi
operators.

27.

Learned
counsel
for
the
respondents has relied upon a Division
Bench decision of this Court in the case of
Tika Ram Yadav and another Vs. State
of U.P. and others, reported in 2003 (6)
AWC 5245 in which the Division Bench
has quoted certain decisions of the Hon'ble
Supreme Court wherein it was observed that
there is no need for any element of quid pro
quo in a regulatory fee. It is submitted that
in order to regulate the traffic of city of
Kanpur and also in pursuance of the
direction of this Court in the case of Manju
Singh (supra) fee being charged is in fact
for regulating the traffic and movement of
8000 tempos and taxis plying in the city and
therefore,the principles of quid pro quo
would not apply although the Nagar Nigam
do provide certain facilities at the places
identified.
1588 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

28. According to the learned counsel
for the respondents, similar view was also
taken by another Division Bench of this
Court in the case of Dr. Chankresh
Kumar Jain and others Vs. State of U.P.
and others, reported in 2001 (4) AWC
2696. According to him, there is no
illegality in framing of the bye laws which
is in consonance of the statutory provisions
and have been framed in accordance with
the due procedure prescribed and since the
Nagar Palika provides for facility and has
also to continuously improve the facility
inviting tenders for collection of user charge
by way of advertisement dated 8.4.2012 is
totally justified and does not call for any
interference by this Court and the writ
petition deserves to be dismissed.

29. From the aforesaid submissions,
the question that arises for consideration is
that (I) whether the Municipal Corporation
was within its capacity to frame its bye
laws? (II) whether the action of the
respondents-corporation in issuing the
advertisement for calling for tender from the
agents so appointed for realizing user
charge from the tempos, taxis plying within
the limits of Kanpur is illegal and arbitrary
and the same is contrary to Government
Order dated 18.7.1998.

30. The city of Kanpur being larger
area is covered by the provisions of U.P.
Municipal Corporation Act, 1959. The
power to make bye laws is referable to
Section 541 (42) which lays down that the
corporation may from time to time make
bye laws with respect to the matters, apart
from others, fixing of fees for any licence,
sanction or permission to be granted under
the Act. So the statute itself provides for the
corporation to have power to make bye
laws. Section 541 of the Act is quoted
herein below:

"541. Bye laws for what purpose to be
made.- The Corporation may from time to
time make bye-laws, not inconsistent with
this Act and the rules, with respect to the
following matters, namely:

...............

...............

...............

31. Sub-clause (42) of Section 541 is
quoted herein below:

"regulating the charges for services
rendered by any municipal authority;"

Sections 542 to 545 provide for
procedure for making the bye laws. The
aforesaid provisions are quoted herein
below:

"542. Municipal Commissioner to lay
draft bye-laws before the Corporation for
its consideration.-- It shall be the duty of
the Municipal Commissioner from time to
time to lay before the Corporation for its
consideration a draft of any bye-law which
he shall think necessary or desirable for the
furtherance of any purpose of this Act.

543. Hearing by Corporation of
objections to proposed bye-laws.- No byelaw shall be made by the Corporation
unless:

(a) a notice of the intention of the
Corporation to take such bye-law into
consideration or on after a date to be
specified in the notice shall have been given
in the official Gazette and in the Bulletin of
the corporation, if any, before such date;

(b) a printed copy of such bye-law
shall have been kept at the chief
Corporation office and make available for
public inspection free of charge by any
3 All] Tempo Taxi Sewa Samiti and another V. State of U.P. and others
1589
person desiring to peruse the same at any
reasonable time from the date of the notice
given under clause(a);

(c)printed copies of such bye -law shall
have been delivered to any person requiring
the same on payment of such fee for each
copy as shall be fixed by the Municipal
Commissioner;

(d) all objections and suggestions
which may be made in writing by any
person with respect thereto before the date
of the notice given under clause (a) shall
have been considered by the Corporation.

544. Bye-laws to be published.- The
bye-laws made under Section 541 shall be
published in the Official Gazette.

545. Printed copies of bye-laws to be
kept
on
sale.-(1)
The
Municipal
Commissioner shall cause all bye-laws from
time to time in force to be printed, and shall
cause printed copies thereof to be delivered
to any person requiring, the same, on
payment of such fee for each copy, as he
may fix.

(2) Printed copies of the bye-laws for
the time being in force shall be kept for
public inspection in some part of the
municipal office to which the general public
has access and in such other places, if any,
like places of public resort, markets,
slaughter-houses and other works or places
affected
thereby,
as
the
(Municipal
Commissioner) thinks fit, and the said
copies shall from time to time be renewed
by the (Municipal Commissioner)."

32. From the bye laws annexed as
Annexure-2 to the writ petition, it appears
that the same has been framed in exercise of
the power vested in the corporation under
Sections 296, 298, 302 and 541 (42) of the
Act for levy of user charge. By Resolution
no.1, after the approval of the Municipal
Commissioner dated 28.1.2006, draft bye
laws were framed and the notice of the
intention of the corporation to make such
bye laws was made public for its
consideration, suggestions and objections
were invited after due publication. By a
resolution
of
the
corporation
being
resolution no.2 on 11.3.2006 the said draft
bye laws were approved and were sent for
publication in the official gazette which was
to be enforced from the day of its
publication in the official gazette. The said
bye laws were finally published in the
official gazette on 22.7.2006 and are
enforced since then.

33. Considering the provisions of the
Act, the procedure prescribed for framing
bye laws to our view, appears to have been
complied with and we hold that the
corporation was well within its rights to
frame the aforesaid bye laws. Therefore, the
first question is answered in affirmative.

34. Now having held that the
Municipal Corporation was competent to
frame the aforesaid bye laws, we have to
see whether imposition of user charge under
the aforesaid bye laws is valid and the
advertisement
inviting
tenders
for
appointment of agents for collection of the
said user charge is justiciable in law or not.

35. Chapter XII of the Municipal
Corporation
Act
is
with
regard
to
construction,
maintenance
and
improvement of streets. Section 272 of the
Act provides for vesting of the public streets
in the Corporation. Section 273 of the Act
further
empowers
the
Municipal
Commissioner to manage the aforesaid
streets and Section 274 of the Act
1590 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
empowers the Municipal Commissioner to
make new public streets. For ready
reference provisions of Sections 272,273
and 274 of the Act are quoted herein below:

"272. Vesting of public streets in
Corporation.-(1) Subject to any special
reservation made by the State Government
from time to time all streets within the City
being, or which at any time become, public
streets, excepts streets which on the
appointed
day
vested
in
the
State
Government or the Central Government or
after the said day may be constructed and
maintained by an authority other than the
Corporation, with the soil, sub-soil and the
side drains, footways, pavements, stones
and other materials thereof, shall vest in the
Corporation and be under the control of the
Municipal Commissioner.

(2)The State Government may after
consulting the Corporation by notification
withdraw any such street with the soil, subsoil, and the side drains, footways,
pavements, stones and other materials
thereof from the control of the Corporation.

273.Power
of
Municipal
Commissioner in respect of public streets.-
(1) the Municipal Commissioner shall from
time to time cause all public streets vested
in the Corporation to be levelled, metalled
or paved, channelled, altered and repaired,
as occasion shall require, and may also
from time to time widen, extend or
otherwise improve any such street or cause
the soil thereof to be raised, lowered or
altered and may place and keep in repair
fences and posts for the safety of
pedestrians:

Provided that no widening, extension
or other improvement of a public street, the
aggregate cost of which will exceed five
thousand rupees or such higher amount as
the Corporation may, from time to time fix,
shall be undertaken by the Municipal
Commissioner
unless
or
until
such
undertaking has been authorised by the
Corporation.

(2)
With
the
sanction
of
the
Corporation given in accordance with the
rules and bye-laws in force in that behalf,
the Municipal Commissioner may turn,
divert, discontinue the public use of, or
permanently close the whole or any part of
a public street vested in the Corporation
and upon such closure may, subject to the
previous sanction of the State Government
and the Corporation dispose of the site of
such street, or of the portion thereof which
has been closed, as land vesting in the
Corporation.

274. Power to make new public
streets.- The Municipal Commissioner,
when authorised by the Corporation in this
behalf, may at any time-

(a) lay out and make a new public
street;

(b)agree with any person for the
making of a street for public use through the
land of such person, either entirely at the
expense of such person or partly at the
expense of such person and partly at the
expense of the Corporation, and may
further agree that such street shall, on
completion, become a public street and vest
in the Corporation;

(c)construct
tunnels,
bridges,
causeways and other works subsidiary to
the layout and making of a new public
street;
3 All] Tempo Taxi Sewa Samiti and another V. State of U.P. and others
1591

(d) divert or tun an existing public
street vested in the Corporation or a portion
thereof."

36.

Considering
the
aforesaid
provisions it is clear that the streets within
the Municipal Area
vests with the
Corporation
and
the
Municipal
Commissioner has power to manage the
said streets.

37. Section 277 refers to the power of
the Municipal Commissioner to prohibit use
of public streets for certain kinds of traffic
which is quoted herein below:

"277. Power to prohibit use of public
streets for certain kinds of traffic.- (1) It
shall
be
lawful
for
the
Municipal
Commissioner with the sanction of the
Corporation to-

(a) prohibit vehicular traffic in any
particular public street vesting in the
Corporation so as to prevent danger,
obstruction or inconvenience to the public
by fixing up posts of both ends of such street
or portion of such street;

(b) prohibit in respect of all public
streets, or particular public streets, the
transit of any vehicle of such form,
construction weight, or size or laden with
such heavy or unwieldy objects as may be
deemed likely to cause injury to the
roadways or any construction thereon, or
risk or obstruction to other vehicles or to
pedestrians along or over such street or
streets, except under such conditions as to
time, mode of traction or locomotion, use of
appliances for protection of the roadways,
number of lights and assistants and other
general precautions and the payment of
special charges as may be specified by the
Municipal Commissioner generally or
specially in each case.

(2) Notices of such prohibitions as are
imposed under sub-section (1) shall be
posted up in conspicuous places at or near
both ends of the public streets or portions
thereof to which they relate, unless such
prohibitions apply generally to all public
streets."

38. Sections 292 and 293 of the Act
deal with the power of the Municipal
Commissioner with respect to prohibition
and imposition of projection upon the
streets etc. Sections 294, 295 and 296 of the
Act provide for power to the Municipal
Commissioner in regulating and managing
the streets which has vested in the
Municipal
Corporation.
From
these
provisions it is clear that the Municipal
Commissioner also has the power to
manage, regulate and control vehicular
traffic on the streets.

39. Section 117 of the Motor Vehicles
Act, 1988 provides for the power of the
State
Government
or
any
authority
authorized by it for providing parking
places and halting stations. Section 117 of
the Motor Vehicles Act is quoted herein
below:

"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."
1592 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

40. Rule 195 of the U.P. Motor
Vehicles Rules, 1998 empowers the District
Magistrate with the authority of the State
Government in consultation with the local
authority to specify places for parking and
halting and for prescribing fee for the said
purpose. Provision of Rule 195 of the Motor
Vehicles Rules, 1998 is quoted herein
below:

"195. Stands and halting places.-(1)
District Magistrates are authorised by the
State Government to take action under
Section 117 of the Act and may, in
consultation with the local authority having
jurisdiction in the area concerned, by the
creation, of traffic signs or notices-

(a) specify places within the territorial
area of a municipality or Cantonment
Board or within such other limits as he may
define where alone public service vehicle or
any specified class or classes of public
service vehicles and /or goods carriages
may stand indefinitely or for such period as
may be specified or public service vehicle
may stop for a longer time than is necessary
for the taking up and setting down of
passengers: or

(b) conditionally or unconditionally
prohibit the use of any specified place, or
any place of a specified nature or class as a
stand or halting place:

Provided that no place which is
privately owned shall be specified as a
stand or halting place without the previous
consent in writing of the owner thereof.

(2)When a place has been specified by
traffic signs or notices, as being a stand or
halting place for the purpose of this rule,
then, notwithstanding that the land is in
possession of any person the place shall,
subject to the provisions of these rules, be
deemed to be a public place within the
meaning of the Act and the District
Magistrate may enter into an agreement
with or grant a licence to any person for the
provision or maintenance of such place
including the provision or maintenance of
the buildings or works necessary thereto,
subject to the termination of the agreement
licence forthwith upon the breach of any
condition thereof and may otherwise make
rules or give directions for the conduct of
such place including rules or directions:-

(a) prescribing the fees to be paid by
the owners of public service vehicle using
the place and providing for the receipt and
disposal of such fees;

(b) specifying the public service
vehicles or the class or classes of public
service vehicles which shall use the place or
which shall not use the place;

(c) appointing a person to be the
manager of the place and specifying the
powers and duties of the manager;

(d) requiring the owner of the land, or
the local authority, as the case may be, to
erect such shelters, lavatories, and latrines
and to execute such other works as may be
specified in the rules or in the direction and
other works as may be specified in the rules
or in the direction and to maintain the same
in a serviceable, clean and sanitary
condition;

(e) prohibiting the use of such place by
specified persons or by other than specified
persons.

(3) Nothing in sub-rule (2) shall
require any person owing the land, which
has been appointed as a stand or halting
3 All] Tempo Taxi Sewa Samiti and another V. State of U.P. and others
1593
place, to undertake any work or to incur
expenditure in connection therewith without
his consent and in the event of any such
person declining to carry out such work or
to incur such expenditure or failing to
comply with any rule or direction made or
given to him under this rule, the competent
authority may prohibit the use of such a
place for the purpose of this Rule."

41. The aforesaid provision empowers
the District Magistrate in consultation with
the local authority to identify and specify
places where public vehicle which is
primarily used for transportation or carrying
passengers from one place to another can be
allowed to stand or halt on the footpath.
From the aforesaid provision it is also clear
that it is the obligation of the corporation to
maintain
the
streets,
pavements
and
footpath and also to restrict and regulate
vehicular traffic on the same.

42. This Court vide its judgment in the
case of Manju Singh Vs. State of U.P. and
others (supra) dated 16.7.2007 has given
elaborate directions for regulating and
identifying
places
for
parking
and
regulating vehicular traffic within the
municipal area in a planned and streamlined
manner.

43. The relevant direction contained in
the judgment are quoted herein below:

"XIX. XIX. The State shall ensure that
in every city, places should be earmarked
for the bus and tempo-taxi stand. The
drivers of buses and tempo-taxi should not
be permitted to stop their vehicles at the
place of their choice creating hindrance to
traffic movement. The bus and tempo-taxi
stand should be made disabled-friendly. No
encroachment should be permitted adjacent
to the place near tempo-taxi and bus stand
for keeping a water trolley or other radies.

XX The State shall immediately
remove
the
hazardous
boards,
neon
signboards and other fixtures keeping in
view the Supreme Court's judgment in M.C.
Mehta's case (supra).

XXII. The State authorities are further
directed
to
constitute
a
Committee
consisting of members of the local bodies
like Nagar Nigam or Nagar Palika,
Transport Department, Traffic Department,
Developmental Authority and Lok Nirman
Vibhag and if necessary, a nominee of the
District Magistrate in every district of the
State to monitor the removal of roadside
encroachment, hazardous boards, new neon
light etc. and also find out the places to
earmark parking slots, tempo and taxi, busstand and create prohibited parking zone,
one way driving etc. keeping in view the
necessity for smooth vehicular movement.

So far as State capital, Lucknow is
concerned, let a Committee, headed by Mr.
D.S. Bhatnagar, Former Director General
of
Police,
Municipal
Commissioner,
Lucknow or his nominee, Secretary,
Lucknow
Development
Authority,
Superintendent of Police (Traffic) and
Regional
Transport
Officer,
Lucknow
(R.T.O.) be constituted. Mr. Farid Ahmad,
an advocate of this Court shall be member
of the Committee and shall also be an
amicus curiae to assist the Court and he
shall be entitled for fee and expenses in
accordance with rules. The Committee may
hold its meeting minimum once in a month
either in the premises of Lucknow Nagar
Nigam or Lucknow Development Authority
after mutual discussion. Lucknow Nagar
Nigam or Lucknow Development Authority,
as the case may be, shall provide necessary
1594 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
assistance to convene and regulate the
meeting. In the absence of Sri D.S.
Bhatnagar, Municipal Commissioner shall
preside the meeting of the Committee."

44. It has been alleged that pursuant to
the aforesaid direction and in consultation
with the District Magistrate, PWD, RTO,
Municipal Corporation, Traffic Department
as well as Associations of Tempo and Taxi
Owners, certain places were identified for
halting, setting down and taking up
passengers by tempos and taxi drivers.

45.