Bombay High Court
Municipal Corporation Of Greater ... vs Noshir Shapurji Dhadbhar And Ors. on 17 August, 1990
Equivalent citations: 1991(1)BOMCR53, (1990)92BOMLR462
Author: S.P. Bharucha
Bench: S.P. Bharucha
JUDGMENT C. Mookerjee, C.J.
1. This appeal by the Municipal Corporation of Greater Bombay raises the point whether the Corporation has authority under the law to charge fees for parking of motor vehicles in the city streets.
2. The learned single Judge by his judgment and order under appeal has held that the pay and park scheme impugned in the writ petition filed by the petitioner-respondents was ultra vires the provisions of the Bombay Municipal Corporation Act and has ordered that the Municipal Corporation and its officers be restrained from implementing and/or acting in pursuance of the said pay and park scheme. The learned Single Judge has further made it clear that although the writ petition related to the said scheme introduced at Khodadad Circle, his order will operate throughout the city as the scheme has been found to be without authority of law. The rule obtained by the petitioners has been made absolute.
3. The Greater Bombay Municipal Corporation and the Municipal Commissioner had previously introduced a scheme for pay and parking of cars etc. but the same had been subsequently withdrawn. In the beginning of the year 1988 the Commissioner had reintroduced the scheme under which Khodadad Circle and portions of certain other public streets had been earmarked for the pay and park scheme "with a view to control indiscriminate parking, reduce traffic congestion and misuse of municipal roads" (vide letter dated 4-4-1988 of the Additional Municipal Commissioner Exh. 'G' to the petition). The places earmarked for the pay and park scheme were cordoned of with the boards displaying the rules and regulations for parking of vehicles in the said spaces on payments of prescribed fees per hour between 8 a.m. and 10 p.m. No parking was to be allowed after 10 p.m. It was threatened that vehicles parked after 12 midnight would be towed away to the nearest Municipal dumping house and would be released only after payment of towing charges. Vehicles parked during the parking hours would be at the owner's risk.
4. The writ petition which was in the nature of public interest litigation, has succeeded and as already stated, the learned Single Judge has struck down the pay and park scheme of the appellant Municipal Corporation. Being aggrieved thus the Municipal Corporation and the Municipal Commissioner have filed the present appeals.
5. Mr. Singhavi, the learned counsel for the appellants, submits that the public streets in the city vest in the Corporation and the Corporation is the owner of the public streets. One of the incidents of ownership over as property is the right to charge fees for its use by others. Mr. Singhvi contended that it is basic law that if one is the owner he has all the rights over his property except to the extent such rights have been curtailed or restricted by law. According to Mr. Singhvi, there is no distinction between a living person and juristic person like the Municipal Corporation. Mr. Singhvi would view the Bombay Municipal Corporations Act, 1888 as a limitation upon the exercise of the rights which the corporation to otherwise enjoys because it is a juristic person.
6. We are unable to give any countenance to these arguments of Mr. Singhvi. There is a preponderance of authorities that a statutory Corporation's powers are solely those which the legislature has laid down expressly or impliedly in the constituent act. Beyond these it is legally incapable of doing anything, so that any act which is ultra vires is wholly void in law.
. . . .A statutory authority with statutory powers has,. . . . no common law powers at all : It can legally do only what the statue permits, and what is not permitted is forbidden. This is the strict doctrine of ultra vires, and it applies in full force to most of the organs of Government.
7. "A statutory power will however, be construed as impliedly authorising everything which can fairly be regarded incidental or consequential to the power itself and this doctrine is not to be applied narrowly..." Vide Administrative Law Fifth Edition by H.W.R. Wade. Mr. Andhyarunjina appearing on behalf of the respondents has also relied upon the statement of law in the similar terms contained in paragraphs 1326 and 1333 of Hallsbury Laws of England, 4th Edition, Vol. 9. In the case of Atmaram Harchandrai Bharwani v. The Municipal Corporation of Greater Bombay. 80 Bom.L.R. 128. Tuljapurkar, J., approved the statement of law made in the case reported in A.I.R. 1949 Cal. 20, and expressed almost identical views about the powers of statutory Corporation.
8. We cannot also accept the extreme submissions made on behalf of the respondents that the Municipal Corporation has no authority to make any provision by way of parking spaces, etc., in any part of public streets and that the Bombay Police has conferred such powers exclusively upon the police authorities. The preable of the Bombay Police Act, 1951, inter alia states the object of the said Act is to consolidate and amend the law relating to the regulation of the police force and the exercise of their powers and performance of functions by the State Government and by the members of the police force for the maintenance of public order. Since the Bombay Municipal Corporation Act and the Bombay Police Act are covered by separate legislative entries, we ought to hold that two statutes relate to two separate legislative fields and there could be no question of any repugnancy between these two pieces of legislation. The learned counsel for the appellant has drawn our attention to clauses (b) and (c) of sub-section (1) of section 33 of the Bombay Police Act, 1951, which inter alia confer powers upon the commissioner of Police to make rules or orders for regulating traffic of all kinds in streets and public streets, and to regulate the conditions under which vehicles may remain standing on the streets and public places and the use of streets as halting places for vehicles or cattles. The sub-section (5) of section 33 of the Bombay Police Act enacts that "if any rule or order made or promulgated under this section relates to any matter with respect to which there is a provision in any law, rule or by-law of any municipal or local authority in relation to the public health, convenience of safety or the locality such rule or order shall be subject to such a law, rule or by-law of the municipal or local authority as the case may be". Therefore, the powers given to the Commissioner under different clauses of section 33(1) of the Bombay Police Act are not in derogation of the power of the municipal or local authority to make any law, rule or by-law for convenience of public health convenience of safety of the locality. Thus , sub-section (5) of section 33 of the Bombay Police Act recognises the right of the Municipal Corporation over public streets and also provides that in case of any repugnancy. Municipal law, rules, etc. would prevail.
9. We may proceed to examine wheather the Municipal Corporation has power to reserve parts of public streets as parking area and also the authority to charge fees for parking vehicles in the said parking areas.
10. Mr. Singhvi, the learned counsel for the appellant Corporation has drawn our attention to clause (m) of section 61 of the Bombay Municipal Corporation the construction, maintenance, alteration and improvement of public streets etc. are, amongst others, obligatory duties of the Municipal Corporation. Reliance has also been placed upon clause (k) of section 63 of the Bombay Municipal Corporation Act which empowers the Corporation in its discretion to provide for any measure, not hereinbefore specifically named, which is likely to promote public safety, health, convenience or instruction. In order to contend that the expression instruction in section 63(k) should be given a very wide meaning, Mr. Shinghvi, relied upon the decision of chinani, C.J. and S.T. Desai, J. in the case of the Bombay Municipal Corporation v. Ramchandra Laxman Belosay, reported in 1959 Bombay Law Reporter 1129 upholding the power of the Municipal Corporation to pass a resolution expressing regret and horror at the execution of a foreign dignitary and his associates in a foreign country.
11. Sections 61 and 63 of the Act have no doubt specified the obligatory and the discretionary duties of the Corporation but the said provisions of themselves do not establish that for performance of any of these duties, fees could be charged by the Corporation. No tax including fee can be recovered without the authority of law. Therefore, the appellants must substantiate that the statute has empowered them to levy fees upon those who might use earmarked parking spaces in certain public streets. Provision for parking space in a public streets may promote public safety and convenience by relieving congestion by regulation and road traffic. But the question would still remain , whether fees could be charged for use of parking spaces provided by the Municipal Corporation for safety or convenience of the public.
12. Under sub-section (1) of section 289 of the Bombay Municipal Corporation Act, all streets within Greater Bombay being or which at any time become public streets, and the pavements, stones and other materials thereof shall vest in the Corporation and be under the control of the Commissioner. We must, however, reject the extreme submission made on behalf of the appellants Corporation that the Municipal Corporation enjoy full ownership rights in respect of public streets including power to charges fees from users of parking spaces in the public streets. The public streets only qua streets vest in the Corporation and so far it is necessary for control, protection and maintenance as streets.
13. Recently, a Bench of six learned Judges of the Supreme court in the case of Sodan Singh v. New Delhi Municipal Committee and anr., A.I.R. 1989 S.C. 1988 have quoted with approval the views expressed by the Madras High Court in C.S.S. Motor Service, Tenkasi and Ors. v. The State of Madras represented by the Secretary to the Government of Madras, Home Department and Anr., and in the Supreme Court decision in the case of Saqhir Ahmed v. State of U.P., . In the said reported Madras decision, Venkatarama Aiyar, J., had pointed out that the true position was that all public streets and roads vest in the State but that the state holds them as trustee on behalf of the public. The members of the public are entitled as beneficiaries to use them as a matter of right and this right is limited only by the similar rights possessed by every other citizen to use the pathways. Limitations on the character and extent of the user may be placed as may be requisite for protecting the rights of the public generally. In the case of Sodan Singh v. New Delhi Municipal Committee (supra) reference was made it the earlier decision in Olga Tellis v. Bombay Municipal Corporation, which had upheld the validity of section 314 of the Bombay Municipal Corporation Act. In Olga Tellis's case (supra), it was held that removal of encroachments on the foot paths and pavements over which the public has the right of passage or access cannot be regarded as unreasonable, unfair or unjust. In Sodan Singh's case the Court held that right to carry on trade or business guaranteed by Art. 19(1)(g), on streets and pavements, if properly regulated can not be denied on the ground that the streets are meant exclusively for passing or repassing and for no other use. If the said right is properly regulated according to the exigency of the circumstances, the small traders on the side walks can considerably add to the comfort and convenience of general public by making available ordinary articles of every day use for a comparatively lesser price. The hawkers, however could not claim right to carry on business of their choice and therefore, reasonable restriction could be imposed for managing the traffic for carrying on business or for prohibiting hawking near hospitals, etc.
14. It has not been very seriously disputed on behalf of the respondent that right to travel over the public streets does not mean that a vehicle cannot stop for a reasonable time in a public streets so long as the same does not constitute an obstruction. In volume 64 of Corpus Juris Secundum paragraph 1766 it has been stated "Parking of vehicles on the streets for a responsible time an incident of the right to travel and a privilege to be exercised with due to the primary right of the public to unobstructed passages and subject to reasonable regulation. Ordinarily, in the absence of contrary regulation, a person riding or driving in a vehicle may stop or park for a responsible time at any point on a street where he chooses, such as at the curb.." It is further stated in paragraph 1766 of corpus Juris Secundum (Volume 64) ".. The parking of vehicles in the streets is subject to reasonable regulation by Municipal Corporations. A Municipal Corporation , under its general powers to control and protect its streets, may enact ordinances to secure unobstructed passage thereon by vehicles, and, with this end in view, in the exercise of the police powers conferred on it, it may regulate or prohibit parking, according to the decision on the question, in its discretion, as long as such regulation is reasonable and necessary for public safety and does transcend constitutional bounds, or conflict with a satute".
15. We find no merit whatsoever in the appellants contention that the impugned fee is chargeable for enjoyment of facility of parking in a part of a public streets and not by way of a regulatory measure and that therefore no express statutory provision authorising recovery of such fees was needed. Because Article 265 of the Constitution would be attracted in this case and therefore, the Corporation must satisfy the Court that it is authorised by law to recover the fees. For same reasons the Municipal Corporation can not also succeed by merely claiming that charging of parking fees was incidental and consequential to the Corporations power to maintain and improve public streets and to take measure for promoting public safety, health, convenience, etc., Taxing power by local authorities cannot be a matter of mere implication. A local authorises like the Municipal Corporation must point out the statutory provision which authority it to levy the impugned fees. The decision in the case of Khargnum Panchayat Samiti v. State of West Bengal and others, is clearly inapplicable to the present case. Because power to collect fees cannot be fairly and reasonably regarded as incidental or consequential to Corporations power to provide parking zone.
16. Mr. Singhvi, the learned Counsel for the appellant Corporation, in support of his submission that the Municipal Corporation can levy parking fees has also relied upon sub-section 1(a) of section 313 and section 479 of Bombay Municipal Corporation Act.
Section 313 is in following terms:
" 313. (1) No person shall, except with the written permission of the Commissioner,-
(a) place or deposit upon any street or upon any open channel, drain or well in the street or in any public place any stall, chair, bench, box, ladder, bale or other thing so as to form an obstruction thereto or encroached thereon;
(b) project, at a height of less that twelve feet from the surface of the street, any board, or shelf, beyond the line of the plinth of any building , over any street or over any open channel drain, well or tank in any street;
(c) attach to, or suspend from, any wall or portion of a building abutting on a street, at a less height than aforesaid, anything whatever. (2) Nothing in clause (a) applies to building -materials."
Section 479. Bombay Municipal Corporation Act reads as follows:
"479(1). Whenever it is provided in this Act that a licence or a written permission may be given for any purpose, such licence or written permission shall specify the period for which, and the restrictions and conditions subject to which, the same is granted, and shall be given under the signature of the Commissioner or of a Municipal Officer empowered under section 68 to grant the same.
"(2) For every such licence or written permission a fee may be charged at such rate as shall from time to time be fixed by the Commissioner, with the sanction of the Corporation.
(3) Subject to the provisions of clauses (d) and (dd) of section 403 any licence or written permission granted under this Act may at any time be suspended or revoked by the Commission, if any of its restrictions or conditions is infringed or evaded by the person to whom the same has been granted, or if the said person is convicted of an infringement of any of the provisions of this Act or of any regulation or by-law made hereunder in any matter to which such licence or permission relates.
(4) When any such licence or written permission is suspended or revoked or when the period for which the same was granted has expired the person to whom the same was granted shall for all purposes of this Act, be deemed to be without a licence or written permission until the Commissioner's order for suspending to revoking the licence or written permission is cancelled by him or until the licence or written permission is renewed, as the case may be.
(5) Every person to whom any such licence or written permission has been granted shall at all reasonable times while such written permission or licence remains in force, if so required by the Commissioner produce such licence or written permission."
The appellants submission is that in view of the above powers the parking fee is lawfully payable for grant of licence i.e. permission to park vehicles in parking zones.
17. We are of the view that charging of fees for parking of vehicles in parking zones is not covered by section 313 read with section 479 of the Bombay Municipal Corporation Act. The object of section 313 is to prohibit encroachment or obstruction by placing or depositing upon any streets etc. or public place any stall, chair, bench, box, ladder, bale, board or shelf or other thing without permission of the Commissioner. We are not prepared to accept that the word other thing in section 313(1)(a) includes a vehicle which is parked in a street. Parking a vehicle in a parking area cannot amount to placing or depositing therein in the same sense placing of stall, chair, bench, box, etc. would do. A right to ply a vehicle in public street includes right to stop the vehicle for a responsible period provided the same does not result in violation traffic rules.
18. Mr. Chagla who has appeared on behalf of the petitioners in a companion writ petition relied upon the decision of Beaumont, C.J. and Wassoodew, J. Emperor v. Hasan Manad, 42 Bombay Law Reporter 785 at page 787 regarding the interpretation of the word any other thing in section 152(1)(b) of the Bombay Municipal Boroughs Act, 1925. The said section provided.
"(1) Whoever in any area after it has become a municipal district, or borough:
(a).....
(b) shall deposit or cause to be placed or deposited any box, bale, package or merchandise or any other thing, in any public place or street ....shall be punished ....."
The Division Bench observed:
" I think the real question is whether the case can be brought within section 152, sub-section (1)(b). In my opinion the words "or any other thing" must be read ejusdem generis as the words "box, bale, package or merchandise". Those words seem to cover merchandise, and things in which merchandise can be packed, and any other thing must be of the same kind or genus and does not include a vehicle. In my view a motor car or a motor lorry or a horse drawn or hand-propelled vehicle, though containing merchandise and left standing in a street, cannot be said to come within the section. The hand lorry of the accused clearly falls within the definition of vehicle contained in section 3, sub-section (21), of the Bombay Municipal Boroughs Act".
19. Section 152(1)(b) and section 313 of the Bombay Municipal Corporation Act, use almost similar expression and both prohibit obstruction or placing of the articles specified therein. However, in case of the Bombay Municipal Corporation, a written permission could be obtained for doing so. In the above view, we respectfully adopt the same meaning of the word "any other thing " and hold that section 313(1) does not cover any vehicle which might be parked in a public street. The term vehicle has been also defined in section 3(9) of the Bombay Municipal Corporation Act. Secondly, we have already pointed out that right to use a public street includes a right to stop in a public street for a reasonable period provided the same did not cause any obstruction or did not violate traffic rules. If it is held that section 313 of the Bombay Municipal Corporation Act would be attracted in case a vehicle stops in a public street then in the absence of the written permission, such stoppage or parking would be always illegal and become liable to penalty. We ought not to interpret section 313 in a manner which would make parking in the public streets illegal in the absence of written permission of the Commissioner. Further, section 313 deals with cases of obstruction or encroachment caused by stall, chair, bench, box, ladder, bale, board or shelf or any other thing. Parking a vehicle in a parking zone or area obviously could not constitute obstruction or trespass in the manner in which placing or deposit of a stall, chair, bench, box, ladder, bale, etc., would do.
20. Once it is held that section 313 has no application in case of parking of vehicles in public street section 479 of the Bombay Municipal Corporation Act can no longer be realised upon for justifying levy of licence fees upon parking of vehicles. Unless there is a provision in the Bombay Municipal Corporation Act requiring that a licence or written permission must be obtained for parking vehicles in the road, the Corporation cannot charge fee under sub-section (2) of section 479 of the Act.
21. In the instant case, when the licence fees were initially imposed for parking vehicles in the parking zones earmaked by the Municipal Corporation, no sanction of the Corporation in terms of sub-section (2) of section 479 had been obtained. Since we have held that in the Bombay Municipal Corporation Act there is no provision authorising levy of fees for parking of a vehicle, we need not decide the effect of the sanction subsequently granted by the Corporation Resolution No. 216 dated 26th June, 1990 which has been marked Exhibit '5' to the affidavit of Mr. M.K. Paradia, Executive Engineer of the Corporation dated 2nd July, 1990. Mr. Singhvi, submitted that section 479(2) of the Bombay Municipal Corporation Act did not require any prior sanction to the imposition of fees for grant of licence under section 479(1) of the Act. Secondly, provisions for such licence fee having been made in the budget prepared for the Corporation, the Corporation must be deemed to impliedly sanction the levy of the fees. Mr. Singhvi further submitted that in any case after the said a sanction was granted by the Corporation Resolution dated 26th June, 1990, challenge to levy of licence fees under pay and parking scheme no longer survives.
22. It is interesting to note that in the Exhibit 'I' to the said affidavit of Mr. Paradia dated 2nd July, 1990, extract from a letter of the Commissioner dated 11th December, 1989 has been set out. The Commissioner in his letter no where had mentioned that a Single Judge of this Court by his judgement and order dated 16th and 17th March, 1989 had already held that the recovery of pay and parking charges by the Corporation and Commissioner lacked the authority of law and had restrained them from recovering the said dues. The learned Single Judge had also directed refund of all the fees already recovered. We have held that section 313 read with section 479 were not applicable to the present case. When the Municipal Corporation had no authority to charge parking fees, the sanction of the Corporation under section 479(2) of the Act is of no avail. It is also well settled law, where the Court strikes down an executive or legislative act as ultra vires, unless the infirmity or lacunae pointed out by Court is removed, a mere validating provision would be ineffectual.
23. The decision of Natarajan, J., in the case of J. Rama Moorthy v. Corporation of Madras, reported in 1985 Madras Law Journal page 158 is really in favour of the respondents. The Madras Corporation's power to levy charge and for parking of vehicles in parking lots was upheld because section 285(1) of Madras City Municipal Corporation Act, 1919 empowered the Commissioner of Corporation to construct or provide public parking places, cart stands, cattle stand and cow houses and to charges levy such fees for use of the same as the Standing Committee might fix. The explanation to section 285 (1) of the said Act included a stand for carriages including Motor Vehicles.
24. The Bombay Municipal Corporation Act does not contain provision similar to section 285(1) of the Madras City Municipal Corporation Act. No doubt the State Legislature is competent to enact a legislative provision empowering the Municipal authorities to impose or charge fees for exercise of its powers and performance of duties vested by the Bombay Municipal Corporation Act (vide Entry 5 read with Entry 67 List 2 Schedule VII of the Constitution of India). But when such power to levy fees has not been authorised by legislation, the Municipal authorities cannot claim such taxing power as incidental and consequential to its power to promote public safety and convenience. We accordingly conclude that the learned Single Judge has rightly restrained the appellants from collecting parking fees and has directed them to refund the fees collected.
25. The appeal is accordingly dismissed. In the circumstances of this case, there would be no order as to costs.
26. On the oral application of Mr. Singhvi, the operation of this judgement is stayed and the interim order already granted in the appeal is extended for 8 weeks.