Karnataka High Court
G.K. Sheygoor And Another vs Corporation Of The City Of Bangalore And ... on 4 September, 1990
Equivalent citations: AIR1991KANT161, 1990(2)KARLJ460, AIR 1991 KARNATAKA 161, (1990) 2 KANT LJ 460
ORDER
1. The first petitioner is a practising Advocate of Bangalore Bar and the second petitioner is a Chartered Accountant. As public spirited persons to espouse public cause they have tiled this writ petition as public interest litigation and have sought for following reliefs in this writ petition :
"(a) Issue a writ in the nature of prohibition or any other appropriate writ or order or direction, prohibiting the respondent from collecting parking fee from the vehicle owners including the petitioners for using the vehicles and parking on the road side of Gandhinagar and Tank Bund road in Bangalore City; and,
(b) Grant such other reliefs to which the petitioner may be found entitled to in the circumstances of the case including the award of the case including the award of the costs of this writ petition in the interest of justice and equity."
2. The grounds on which they seek for relief are : (1) The Corporation has entrusted the second respondent the work to collect parking fee at two places, namely, in Gandhinagar opposite to Syndicate Bank and Tank Bund Road by the side of Bangalore bus station, which is annexed to State Highway Mysore-Bangalore-Kolar. The rates fixed by the Corporation to collect parking fee from different vehicles were notified in the newspaper 'Deccan Herald' dated 5-4-1990. which reads as follows :
"Parking fees fixed :-- The Bangalore City Corporation has fixed parking fees and entrusted several parking lots to contractors in the City.
According to a press note issued by BCC Commissioner S. M. Acharya, collection of parking fee of Re. 1 for four-wheelers and 50 paise for two-wheelers has been introduced from April 1 in the following places : Kempegowda Circle, Gandhinagar Fifth Main Road, Gandhinagar First Cross, Tank Bund Road, Gandhinagar B.V.K. Iyengar Road and Avenue Road.
Parking fees in respect of stands situated near various City Corporation buildings, markets, swimming pools and shopping complexes would be : bicycles -- 10 paise, two-wheelers -- 20 paise and cars -- 50 paise.
The note added that any complaint regarding charging of higher rates may be brought to the notice of the Corporation authorities."
According to the petitioners neither under the Karnataka Municipal Corporations Act, 1976, nor under the bye-laws of the Corporation any power conferred on the Corporation to collect such a lee from the owners of the vehicles of different types who park their vehicles on these places or other places; (2) No doubt it is mentioned, as seen, lee to be collected from the owners of the vehicles, but strictly speaking it is in the form of a tax and unless special service or powers are conferred neither the Corporation nor its agents will get an authority to collect fee or tax whatever it is called from the owners of the vehicles; (3) Though the halting place earmarked as a Tank Bund Road annexed to Mysore-Bangalore-Kolar State Highway, the Corporation or its agents will not get an authority to collect fee or tax from the vehicles as according to the petitioners it is a highway and not a road belonging to the Corporation that too ear stands are not provided. When, once it is an highway the provisions of the Karnataka Highways Act. 1964, are applicable, particularly S. 48A of the Act. Under the said Act, the owner of a vehicle who makes use of the said road will be liable to pay tax or fee. Now the Corporation says that such an owner is also liable to pay tax or fee whenever he parks his vehicle and as such it amounts to collecting tax twice which is not permissible under the Act.
3. As far as regulation of traffic is concerned, it is the duty of the police and not the concern of the Corporation. Merely because it earmarked certain place where the owners of the vehicles can park their vehicles, it cannot be said that the Corporation has a right to collect fee or tax from the owners of the vehicles. But, according to the petitioners, it is one of the services of the Corporation to see that there shall not be any traffic hazards. According to the petitioners it is a social service just to help another authority, namely, the police of the city in regulating or controlling the traffic so that the accident could be prevented.
4. In the statement of objections filed by the Corporation nowhere it is asserted that these two places where the vehicles are being parked and its agent is collecting fee from the owners of the vehicles are vested in the Corporation. The allegation that the place annexed to Mysore-Bangalore-Kolar Highway is an highway not denied by the Corporation. Sri Subbanna, learned Counsel for the petitioners, argues that nowhere in the Act the word 'fee' has been defined. The Corporation will not get jurisdiction to levy any kind of fee. According to him, S. 2(41) of the Karnataka Municipal Corporations Act, 1976 (herein-after referred to as 'the Act') only deals with the tax normally fees, which reads as follows :
"S. 2(41) -- "tax" includes toll, rate cess, fee or other impost leviable under this Act."
The definition of 'public street' as defined in S. 2(31) of the Act cannot he extended to the present two places which are under dispute. S. 103 of the Act deals with enumeration of taxes. The relevant portion of the section reads as follows :
"Taxes which may be imposed.-- Subject to the general or special orders of Government, a Corporation shall,
(a) xx xx xx xx xx
(b) with the sanction of the Government and at rates not exceeding those specified in Schedules III, IV, V. VII and VIII levy any one or more of the following taxes :
(i) to (iv) xx xx xx xx xx
(v) a toll on vehicles other than motor vehicles paying vehicles tax under the Karnataka Motor Vehicles Taxation Act, 1957 (Karnataka Act 35 of 1957) entering the Corporation limits;"
According to him, the said section does not authorise the Corporation to levy fee. It authorises the Corporation only when the vehicle entering the Corporation limits and not otherwise. According to Sri Subbanna, no doubt, a provision under S. 148 has been made for halting places and cart-stands. Section 348 reads as follows :
"Section 348 Provision of halting places, cart-stands, etc. (1) The Commissioner may construct or provide public halting places, cart-stands, cattle-sheds and cow-houses and may charge and levy such fees for the use of the same as the standing committee may fix.
Explanation.--A cart-stand shall, for the purposes of this Act, include a stand for carriages including motor vehicles within the meaning of the Motor Vehicles Act, 1939 (Central Act IV of 1939) and animals.
(2) A statement of the fees fixed by the standing committee for the use of each such place, shall be put up in Kannada and English in a conspicuous part thereof.
(3) The Commissioner may farm out the collection of such fees for any period not exceeding three years at a time on such terms and conditions as he may think fit."
Section 349 prohibits use of public places. Section 351 deals with issuing of licence for private cart-stand etc. Section 265 which deals with vesting of public streets and their appurtenances in Corporation, reads as follows :
"Vesting of public streets and their appurtenances in Corporation. (1) All public streets in the corporation reserved under the control of the Government, with the pavements, stones and other materials thereof and all work materials, implements and other things provided for such streets, all sewers, drains, drainage works, tunnels and culverts whether made at the cost of the corporation fund or otherwise, in or along side or under any street, whether public or private, and all works, materials implements and other things appertaining thereto and all trees not being private property growing on public streets or by the side thereof, shall vest in the corporation.
(2) The Government may, alter consulting the corporation, by notification withdraw any such street, sewer, drain, drainage work, tunnel, culvert or tree from the control of the corporation."
5. In view of these provisions including the pleadings of both sides. Shri Subbanna, learned Counsel for the petitioners submits that the present system of collecting fee from the owners of the different types of vehicles at two places, namely, opposite to Syndicate Bank, Gandhinagar and lank Bund Road without an authority of law. In support of his contention, he relies upon a decision of the Supreme Court rendered in the case of the State of Maharashtra v. Shri Lohana Maha Parishad, , wherein at para 14 the Supreme Court has held as follows : (at pages 850 & 851; AIR 1975 SC.
"A tax is a compulsory exaction of money by a public authority for a public purpose enforceable by law and is not a payment for any specific service rendered. The levy of a tax is for the purpose of general revenue which when collected forms part of the public revenues of the State. There is no element of quid pro quo between the tax payer and the public authority. Fees are ordinarily uniform but absence of uniformity is not a criterion on which alone it can be said that a levy is in the nature of tax. As a fee is regarded as a sort of return or consideration for services rendered, it is necessary that the levy of fees should be correlated to the expenses incurred by the agency in rendering the services. Thus, two elements are essential in order that a payment may be regarded as a fee. In the first place, it must be levied in consideration of certain services which the individuals accept either willingly or unwillingly and in the second place, the amount collected must be earmarked to meet the expenses of rendering these services and must not go to the general revenue of the State to be spent for general public purposes."
Shri Subbanna contends that whenever the police in an area undertakes work to regulate and control the traffic, in the absence of any specific provision, cither the Municipality or the Corporation will not get jurisdiction to levy fee on parking of vehicles. In support of this contention he relics upon a decision of the Bombay High Court rendered in the case of Noshir Shapurji Dhabhar v. The Municipal Corporation of Greater Bombay , wherein the Bombay-High Court, while deciding about the parking lee beyond the parking scheme etc; including the traffic control, has held as follows : (at page 389 of AIR 1989 Bom).
"There is no authority given to the Municipal Corporation either to regulate the traffic or to charge a fee for the purpose of parking of vehicles. The said function has been specifically given to the police under the Bombay Police Act and the said function has been advisedly kept out of the purview of the Municipal Corporation. Use of public streets in modern limes is for the vehicular traffic. Regulation of vehicular traffic is the necessary ingredient of the use of the vehicles on public street. The function of regulating the traffic and the parking of vehicles is that of the police and not of the Municipal Corporation. Unless there is a specific provision which authorises the Municipal Authorities to collect the parking charges, such a charge will have to be characterised as unauthorised.
In fiscal matters, it is not permissible to give powers to the authorities to impose a tax or fees by implication. There has to be a specific legislation authorising the levying of either tax or lee. Such a provision being absent in the present enactment, it will have to be held that the action on the part of the respondents in enforcing the impugned Pay and Park Scheme is unlawful and without the authority of law.
Merely because the public streets vest in the Corporation, the same cannot he treated as an individual's private property. The same vest in the Corporation for the benefit of its user by the citizens. An essential user of the streets is for passage of vehicular traffic. Parking is an incident of the user of vehicle on public streets. As long as the said parking is incidental to the user of the public streets, the same cannot be objected to by the Municipal Authorities in the manner they have sought to do by introducing the impugned Pay and Park Scheme."
6. Sri Suhhanna, learned Counsel for the petitioners also relies upon a Division Bench decision of this Court in the case of Rajasekaharaiah v. Tiptur Agricultural Produce Market Company, reported in 1979(1) KLI 43. While dealing with the scope of S. 65(1) and (2) of the Karnataka Agricultural Produce Marketing (Regulation) Act, 1966, regarding fixing of market fee and defining the fee etc; this Court has held that in regard to a fee there must always be a broad correlation between the fee collected and the services intended to be rendered. Defining scope of S. 65, including the definition fee, this Court has held as follows : at pages 47 & 48; 1979(1) KLJ.
"We may now turn to the validity of the market fee levied on the sellers under sub-s. (1) of S. 65. For a proper decision on this question, it will be necessary to remember the well accepted distinction between a tax and a fee. Without parading the all familiar learning on the subject and the long line of decisions thereon, we may briefly refer to the main distinguishing features. In Commr, HRE. Madras v. Lakshmindra Thirtha Swamiar , B. K. Mukherjea, speaking for the Supreme Court, summarised the principles in the following terms :
".... A 'fee is generally defined to be a charge for a special service rendered to individuals by some governmental agency. The amount of lee levied is supposed to be based on the expenses incurred by the Govt. in rendering the service, though in many cases the costs are arbitrarily assessed.... Of course, in some cases whether a man would come within the category of a service receiver may be a matter of his choice, hut that by itself would not constitute a major test which can be taken at the criterion of this species of imposition. The distinction between a tax and a fee lies primarily in the fact that a tax is levied as a part of a common burden, while a fee is a payment for a special benefit or privilege."
There are three essential elements in the levy of a fee although the distinction between a fee and a tax is not always observed with nicety in judicial decisions. First, the levy must be in consideration of certain services which the individuals accept either willingly or unwillingly. Second, the amount collected must be earmarked to meet the expenses for rendering services and must not go to the general revenue of the State to be spent for general public purposes. (See State of Maharashtra v. The Salvation Army, ). Thirdly, the levy must clearly confer special benefit to the person on whom it is imposed. (See Corporation of Calcutta v. Liberty Cinema. ). A fee is thus a payment for special benefit or privilege which the individual receives. It is also regarded as a sort of return or consideration for services rendered. It should therefore be correlated to the expenses incurred in rendering the services. See State of Rajasthan v. Sajjanlal Panjawat, . With all these principles, the legislature, however, is not competent to make the public to contribute by way of fees to the increase of general public revenue. See Govt. of Madras v. Zenith Lamps. AIR 1973 Mad 724 (sic). "The payment would he a tax, if it is exacted by the State or its municipal sub-divisions as a contribution benefits derived from their performance is merged in the general benefit,"
On the grounds mentioned hereinabove, drawing sustenance from the law laid down in three decisions relied upon by him, Sri Subbanna wants that a writ of mandamus be issued to the Corporation and the second respondent prohibiting them from collecting any fee from the petitioners and others also.
7. As against the said argument of Sri Subbanna. Sri Ramaswamy Shastry, learned Counsel for respondent-2 and Sri K. L. Manjunath, learned Counsel for the Corporation submitted that there is no merit in any one of the contentions raised by the petitioners. According to them, it is not in dispute the places under dispute are within the Corporation and under S. 265 of the Act they are vested in the Corporation, and respon-dent-2 is collecting fee pursuant to the permission granted by the Corporation by accepting his bid. Collection of such fee is not only authorised one but special benefit is conferred to those who have parked their vehicles in that area. "The vehicles so parked will be free from being stolen as a watch-and-ward is kept to serve the intention of the owners of the vehicles who parked their vehicles. It is not a compulsion that every owner shall park his vehicle at the halting place earmarked by the Corporation. Fee will be collected only from those who keep their vehicles in the places earmarked for halting and not elsewhere. In addition to giving some special benefits to the owners of the vehicles who parked their vehicles, the Corporation is also helping the concerned police in regulating and controlling the traffic. Thus indirectly helping the police authorities in regulating and controlling the traffic and preventing accidents. According to them, whatever fee that is levied is not only reasonable but authorised one, and it is permissible to collect under the provisions of the Act, particularly under S. 348 of the Act. In support of their contention, they also rely upon the decision of the Supreme Court in the case of Municipal Corporation of Delhi v. Mohd. Yasin, . The Supreme Court while dealing with definition between tax and fee under S. 412 of the Delhi Municipal Corporation Act, has held as follows : at pages 620 & 621 AIR 1983 SC.
"There is no generic difference between a tax and a fee, though broadly a tax is a compulsory exaction as part of a common burden, without promise of any special advantages to classes of tax payers whereas a fee is a payment for services rendered, benefit provided or privilege conferred. Compulsion is not the hallmark of the distinction between a tax and a fee that the money collected does not go into a separate fund but goes into the consolidated fund does not also necessarily make a levy a tax. Though, a fee must have relation to the services rendered, or the advantages conferred, such relation need not be direct; a mere causal relation may be enough. Further, neither the incidence of the fee nor the service rendered need be uniform. That others besides those paying the fees are also benefited does not detract from the character of the fee. In fact the special benefit or advantage to the payers of the fees may even be secondary as compared with the primary motive of regulation in the public interest. Nor is the Court to assume the role of a cost accountant. It is neither necessary nor expedient to weigh too meticulosly the cost of the services rendered etc: against the amount of fees collected so as to evenly balance the two. A broad correlationship is all that is necessary. Quid pro quo in the strict sense is not the one and only true index of a fee; nor is it necessarily absent in a tax."
Likewise they also rely upon another decision of the Supreme Court rendered in the case of The City Corporation of Calicut v. Thachambalath Sadasivan . The Supreme Court while dealing with levy of licence fee for use of premises and land for soaking coconut husk has held as follows : .
"It is well settled by numerous recent decisions of the Supreme Court that the traditional concept in a fee of quid pro quo is undergoing a transformation and that though the fee must have relation to the services rendered, or the advantages conferred, such relation need not be direct, a mere casual (cousal?) relation may be enough. It is not necessary to establish that those who pay the fee must receive direct benefit of the services rendered for which the fee is being paid. If one who is liable to pay receives general benefit from the authority levying the fee the element of service required for connecting fee is satisfied. It is not necessary that the person liable to pay must receive some special benefit or advantage for payment of the fee.
As soaking coconut husks emit foul odour and contaminates environment and the corporation by rendering scavenging services, carrying on operations for cleanliness of city, to make habitation tolerable renders general service of which amongst other users of premises for soaking coconut husk are beneficiaries, levy of licence fee by Corporation on use of premises and land for soaking coconut husk is justified as fee."
8. After hearing both sides and going through carefully the derisions relied upon by both sides. I am of the opinion that levy of fee as per the stab prescribed on the vehicles parked at different places earmarked by the Corporation including the two places which are now in dispute in no-way illegal or ultra vires. If one goes through the provisions, which in fact learned counsel for the petitioners took me to the said provisions, makes to believe that both the places are vested in the Corporation, maintained and improved by the Corporation, (i) Power of levying parking fee on halting places and cart-sheds is authorised under S. 348 of the Corporation Act. Even S. 103(v) of the Act also deals about tax and fee. (ii) Earmarking a particular place as halting place, keeping watch and ward either by the Corporation or by its agents, assuring a person who desires to park his vehicle that his vehicle will be safeguarded from being stolen, is itself a service that is going to be rendered either by the Corporation directly or through its agents. The fee which the Corporation collects or (from) the owners who park their vehicles may be utilised for other purposes also. But that cannot be a grievance for any person to say that such a fee shall be earmarked only to improve the halting place and not otherwise. Since there is no compulsion on a person to park his vehicle at the place earmarked, it cannot be said the fee has been collected by extraction or by compulsion. It is purely voluntarily expecting service from the Corporation to such a person and his vehicle. Hence, levy of lee by the Corporation either by itself or through its agents in view of S. 348 read with S. 265 of the Act are well within its authority and jurisdiction.
(iii) Regarding the second contention that Corporation cannot levy any fee to park the vehicles when the vehicles are parked near the Tank Bund area as the said area is annexed to Mysore-Bangalore-Kolar Highway. Seeondly, under the Karnataka Highways Act, 1964, the authorities will be collecting tax at different places. If the respondents are allowed to collect fee for the same vehicles near the Tank Bund Road, it amounts to double levying of tax. According to me this contention has no merit. The petitioners failed to understand the difference between the charges that arc going to be collected by the authorities on the highways or the national highways as the case may be and the tax or fee that is going to be collected by the Corporation. The Corporation which is collecting the tax or fee is a local self Government and it will have its own set of rules and regulations and it has to raise its own revenue to discharge its functions as long as a property is situated within its limits. It has got powers to make regulations and bye-laws and to levy tax or fees or other charges unless it is shown levying of such tax, fee or charges are ultra vires and unconstitutional. Since levying of fee on the vehicles parked in the earmarked place comes within the limits of the Corporation, merely because the State highway is passing through that itself in no way prevents the Corporation from collecting parking fee (from) whoever desires to park their vehicles on such halting places.
(iv) Regarding Annexure-C, Shri Subhanna submitted that the Corporation or its agents is not entitled to collect halting fee on each entry. Secondly, when once it is collected parking fee, it is bound to assume the owner of the vehicle that the vehicle will be safeguarded from being stolen, so also articles. Whereas, the argument of the respondents that the Corporation is entitled to collect fee on every entry of the vehicle cannot be accepted as correct. There is no such authorisation that any fee to be levied on parking of a vehicle shall be against each entry. It shall be presumed that it will hold good for the entire day as otherwise it will be oppressive in nature and amounts to extraction of money by adopting tactics which are not permissible under law.
(v) Regarding another contention of the petitioner that the Corporation shall also take responsibility of safeguarding the vehicles parked from being stolen to. It is needless to say when it is collecting fee from the owners of the vehicles it is the bounden duty of the Corporation to see that the vehicles so parked are safe, otherwise, they will be responsible to make good the value of the vehicle, if stolen. As far as the articles are concerned, nowhere in the Act it is said the vehicles include the articles kept in the box fixed or attached to the vehicle. Hence, it is left to the owner to lake care of the articles.
In this connection. Corporation Advocate Sri Manjunatha fairly submitted the duty of the Corporation or its agents is to see the vehicles are not being stolen. So also the parts of the vehicles and not the other articles kept by the owners of the vehicles without the permission of the Corporation or its agents.
(vi) Regarding the last contention of Sri Subbanna that some of the conditions which regulate parking of vehicles, steps have not been taken either by the Corporation or its agents to notify the public at halting places, particularly regarding the safety of the vehicles including its parts and the timing hours. When the corporation collects fee, it is, its duty that timing hours and such other conditions shall be displayed at a conspicuous place of a parking place so that the person who intends to make use of the parking services of the Corporation or its agents, may come to know such conditions.
9. In my view the two decisions relied upon by Sri Subbanna, learned Counsel for the petitioners, namely, and , (cited supra) have no application to the case on hand, Whereas the principles laid down in Rajasekharaiah's case (1979(1) KLJ 43) are general in nature and on the other hand it supports the case of the respondents and not the petitioners. According to me, the decisions relied upon by Sri Manjunath, learned Counsel for the Corporation and Shri Ramaswamy Shastry, learned Counsel for respondent-2, namely, (1) (Municipal Corporation of Delhi v. Mohd. Yasin) and (The City Corporation of Calicut v.
Thachambalath Sadasivan and others) supports their case,
10. It is needless to say, merely earmarking a parking place is not sufficient for the Corporation when it collects so much of fees from the owners of the vehicles as parking fee, it must also provide better facilities like shelter etc., so that the vehicles be protected from hot sun or heavy rains. In future, it is hoped the Corporation will definitely make such provision. When the Corporation says that it has got a right to collect halting fee from the owners of the vehicles, mere earmarking a place by colouring it with white stripes and keeping urchins as their watch and ward is not sufficient. It shall provide better facilities like temporary shelters including employing either by itself or by its agents persons suitable to discharge their duties and not urchins. Another allegation of Sri Subbanna is that the Corporation which is an authority has to follow strictly the collecting of fees on parking of vehicles at all important centres of the city instead of restricting collecting of fee only at Gandhinagar and Tank Bund area ignoring other places like, M.G. Road, Commercial Street, Brigade Road etc., which according to him is nothing but a clear case of discrimination. Classifying areas to collect fee on parking of vehicles must be reasonable one. It is incorrect and improper for the Corporation to pick only a few areas and allow other areas to avail of ail the benefits without paying any fee as it amounts to discrimination.
For the reasons stated above, this Writ Petition is dismissed. No order as to costs.
11. Petition dismissed.