Madhya Pradesh High Court
Municipal Council vs M.P. State Road Transport Corporation on 14 December, 1990
Equivalent citations: 1991(0)MPLJ910
JUDGMENT A.G. Qureshi, J.
1. This is a first appeal Under Section 96 of the Code of Civil Procedure against the judgment and decree passed by the District Judge, Rajgarh in C. S. No. 4-B of 1979 dated 6-8-1979.
2. The facts of the case, in brief, are that the defendant-appellant is the Municipal Council a Corporate Body formed under the M. P. Municipalities Act, 1961. The plaintiff-respondent is also a Corporate Body formed under the Road Transport Corporation Act of 1950. The plaintiff-respondent operates buses for hire on various routes in different parts of M. P. and other States. In the course of the operation the buses of the Road Transport Corporation also halt at Rajgarh. It is undisputed that at Rajgarh the bus stand is established and maintained by the defendant, appellant. The defendant Municipal Council, Rajgarh imposed a bus stand fee at the rate of Re. 1/- per day, per bus and per halt for using the bus-stand for the purpose of taking up and setting down the passengers. This fee was recovered by the respondent-plaintiff between 3-1-1968 to 28-9-1973 amounting to Rs. 21,088/-. However, in the year 1973, M. P. No. 109 of 72 was decided on 13-7-1973 by the M. P. High Court wherein it was held that the levy of the fee by the Municipal Council from the bus operators is ultra vires. Therefore, the plaintiff served a notice to the defendant on 1-3-1976 demanding the refund of the amount paid under a mistake of law to the Municipal Council. However, the MUnicipal Council refused to refund the amount. Therefore, on 27-4-1976 the respondent M. P. Road Transport Corporation filed a suit against the Municipal Council, Rajgarh.
3. The defence of the appellants before the lower Court was that their action in recovering the fee is not illegal and they have a right to claim the said fee. It was also averred that the suit is time barred.
4. The lower Court on the aforesid pleadings raised as many 9 issues and held that the suit is within time and the Municipal Council, Rajgarh is under an obligation to refund the amount as claimed by the plaintiff in view of the fact that the Nagar Palika has no authority to recover the same from the MPSRTC. Aggrieved by the aforesaid judgment and decree, the defendant has filed this appeal.
5. The learned counsel for the plaintiff Shri Kutumbale has confined his arguments against the judgment and decree of the lower Court mainly on the ground that even if the recovery of the fee under any bye-laws has been held to be ultra vires by the Court, still independent of the bye-laws the Municipal Council is entitled to recover the fee in lieu of the services rendered by the Municipal Council for maintaining a bus stand where the buses of the respondent halt for the boarding and getting down of the passengers.
6. On the other hand the learned counsel for the respondent Shri Kemkar states that the Corporation has not used the bus stand voluntarily, but the Municipal Council compelled the Corporation to use the bus-stand and thereafter has charged the fee in accordance with the bye-laws, which have been held to be ultra vires by the High Court. Therefore, the defendant-appellant is under a legal obligation to refund the amount of fee recovered illegally and as such there is no such error in the judgment and decree of the lower Court which may call for an inteference by this Court.
7. In view of the aforesaid arguments, the first point which has to be decided is whether the Municipal Council, Rajgarh compelled the respondent to make a halt of their buses at the bus-stand in accordance with any bye-law and has, thereafter charged there. In this respect although the plaintiff has pleaded that the Municipal Council had compelled the Corporation to make a halt of the buses at the bus stand only, but the Municipal Council has denied this fact in its written statement. In view of this denial the onus was on the Corporation to prove that the buses of the Corporation did not make a halt voluntarily at the bus-stand but they were compelled to do so. However, no evidence has been adduced before the trial Court on this point and, therefore, before there is no evidence on record to come to a conclusion that the Muncipal Council had compelled the Corporation to make a halt of its buses at the bus-stand. Therefore, prima facie the element of compulsion in respect of the halt of the buses of the Corporation at the bus-stand is not proved and, therefore, the only conclusion which can be drawn is that the buses of the Corporation halted at the bus stand constructed and maintained by the Municipal Council, Rajgarh and paid a fee in accordance with the bye-laws.
8. Now, it is undisputed before me that the Bye-laws have been held to be ultra vires, which leads to a question whether in the absence of the Bye-laws, could the Municipal Council, Rajgarh legally recover the amount of fee for the halt of the buses. In this respect a reference may be made to the judgment of the Supreme Court in C.A. No. 2838 of 1986 decided by the Supreme Court in the case of Municipal Corpoation, Khandwa (MP) v. Madhya Pradesh State Road Transport Corporation and Ors., on 19th August, 1986, wherein the Supreme Court has held as under :
"If the Corporation takes its vehicle into the bus stand which is owned and maintained by the Municipality it has got to pay either the fees fixed by the Regional Transport Authority of the sum agreed upon between the parties. If no such fees are validly fixed or agreed upon, a reasonable amount for the non-gratuitous services rendered by the Municipality would be payable by virtue of the principle contained in Section 70 of the Indian Contract Act."
In view of the aforesaid dictum of the Supreme Court it is plain that if bus-stand fee is fixed by the Municipal Council or the Regional Transport Authority for use of a bus-stand, then it has to be paid by the vehicle owner or such fee may be paid which may be mutually agreed between the vehicle owner and the Municipality. But in case no fee is mutually fixed or agreed upon a reasonable amount for non-gratuitous services rendered by the Municipal Committee is payable to the Municipal Committee in view of principles contained in Section 70 of the Indian Contract Act.
9. In the light of the aforesaid authority if we look to the facts of the present case, we find that although a fee was fixed by the Municipal Council in accordance with the bye-laws, but the High Court and the Supreme Court were of the view that the Municipal Council is not entitled to charge any fee under the Bye-laws. However, the fact remains that the bus-stand was used by the Corporation for the stoppage of its buses and it is also not disputed that a bus-stand was constructed and maintained by the Municipal Council, Rajgarh. It has also not been proved that there was any element of compulsion compelling the MPSRTC to stop its buses only at the bus stand. Therefore, in view of the provisions contained in Section 70 of the Indian Contract Act, the Municipal Council is entitled to get a reasonable amount in lieu of the services which the Municipal Council has provided by constructing and maintaining a bus-stand and that service being non-gratuitous.
10. Therefore, in view of the aforesaid judgment of the Supreme Court in Municipal Corporation ,Khandwa v. MPSRTC and Ors. (supra) it has to be held that the irrespective of the legality of the byelaws framed by the Municipality, the Municipal Council, Rajgarh was entitled to get a reasonable amount from the MPSRTC for the services rendered by the Municipal Council to it by constructing a bus stand and maintaining it. It has not been stated before the lower Court or before me that the amount charged by the Municipal Council for the services it rendered is unreasonable. In Municipal Corporation, Khandwa v. MPSRTC and Ors. (supra) the Supreme Court was of the view that an amount of Rs. 3/- per bus paid to the Municipal Corporation, Khandwa by the MPSRTC was reasonable compensation Under Section 70 of the Indian Contract Act. The amount paid by the Corporation to the Municipal Council, Rajgarh is much less than the amount of Rs. 3/- per bus charged by the Khandwa Municipal Corporation. As such there in absence of any evidence or any comparative chart, to come to a conclusion that the amount so charged by the Municipal Council, Rajgarh is unreasonable, it has to be held that the fee charged by appellant Municipality is reasonable.
11. In the result I am of the opinion that the learned trial Court has erred in passing the impugned judgment and decree against the Municipal Council, Rajgarh directing it to refund the amount realised by the Municipal Council, Rajgarh by way of bus-stand fee from the respondent-Corporation. Consequently the appeal filed by the appellant is allowed. The judgment and decree impugned passed against the appellant by the trial court are set aside. The suit filed by the M.P.S.R.T.C. is accordingly dismissed. The parties shall bear the costs of this appeal and also that of the trial Court respectively as incurred by them.