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Mewa Ram Vs. Municipal Board - Court Judgment

LegalCrystal Citation
Subject Motor Vehicles
CourtAllahabad
Decided On
Reported inAIR1939All466
AppellantMewa Ram
RespondentMunicipal Board
Excerpt:
- - distinction was drawn in that case between bye-laws framed by railway companies, dock companies, or other like companies, which carry on their business for their own benefit, although incidentally for the advantage of the public, and bye-laws framed by bodies of a public representative character entrusted by parliament with delegated authority. ' it was further observed in that case that courts of justice ought to be slow to condemn as invalid any bye-law' made by public representative bodies clothed with ample authority 'on the ground of supposed unreasonableness. 6. this definition though wide in its scope clearly differentiates between those portions of the streets over which 'the public has right to pass' and the other portions of the streets, viz. but this provision can have.....iqbal ahmad, j.1. in the year 1931 the municipal board of muttra purporting to act in exercise of the powers vested in it under sections 293 and 298(2)h(b) & j(d), municipalities act (2 of 1916) framed certain bye-laws 'for the regulation of stands for motor vehicles and hackney carriages within the muttra municipality' and the question of the validity or otherwise of those bye-laws has occasioned the present reference to this full bench. by bye-law no. 1, seven specified places within municipal limits were 'fixed as stands for motor cars, lorries and hackney carriages' and bye-law no. 2 enjoined thatno motor oar or lorry plying for hire shall be allowed to halt or run for the purpose of searching passengers at any public street or place other than the stands fixed for the purpose.2......
Judgment:

Iqbal Ahmad, J.

1. In the year 1931 the Municipal Board of Muttra purporting to act in exercise of the powers vested in it under Sections 293 and 298(2)H(b) & J(d), Municipalities Act (2 of 1916) framed certain bye-laws 'for the regulation of stands for motor vehicles and hackney carriages within the Muttra Municipality' and the question of the validity or otherwise of those bye-laws has occasioned the present reference to this Full Bench. By bye-law No. 1, seven specified places within Municipal limits were 'fixed as stands for motor cars, lorries and hackney carriages' and bye-law No. 2 enjoined that

no motor oar or lorry plying for hire shall be allowed to halt or run for the purpose of searching passengers at any public street or place other than the stands fixed for the purpose.

2. Bye-law No. 3 provided about the maximum speed limit of a lorry or car within the Municipal limits and then the following provision was made by bye-law No. 4:

The places cited in Rule 1 above will not be used as a stand for any motor vehicle or hackney carriages unless the following charges fixed are paid; Daily MonthlyFor each motor lorry ... 0-4-0 6-0-0For each motor car ... 0-2-0 3-0-0For each hackney carriageof 1st and 2nd class in-cluding tonga ... 0-1-0 1-8-0For each ekka& camel cart ... 0-0-6 0-12-0

3. After having framed these bye-laws the Municipal Board sold by public auction on 10th June 1931, the right of collecting charges from public vehicles occupying Municipal stands at various places, and the right of collecting such charges at one of those stands was knocked down to Mewa Ram, appellant. The suit in which the questions referred to this Bench have arisen was to enforce payment of the amount for which Mewa Ram had purchased the right to collect the said charges. Mewa Ram contested the suit inter alia on two grounds, viz. : (1) that bye-laws Nos. 2 and 4 were ultra vires of the Municipal Board, and (2) that the Municipal Board was not competent to transfer the right to collect the charges fixed by bye-law No. 4. These contentions of Mewa Ram were overruled by the Courts below and the claim of the Municipal Board was decreed. Mewa Ram filed a second appeal in this Court and the Bench hearing the appeal referred the following questions for decision to a Full Bench:

(1) Whether the Municipal Board of Muttra was competent to make a bye-law that 'no motor car or lorry plying for hire shall be allowed to halt or run for the purpose of searching passengers at any public street or place other than the stands fixed for the purpose?' (2) Whether the levy of any charge for the use of stands within the municipal limits of Muttra was within the competence of the Municipal Board or not? (3) Whether the right to the said charge and the right to collect it can be transferred and whether the contract for such a transfer is valid.

4. In the adjudication of the first two questions noted above one has first to consider the extent of the statutory power which the Municipal Board purported to exercise by making bye-laws 1, 2 and 4 and then to consider the bye-laws themselves and to determine whether they are or are not in excess of the power conferred by the statute. If it be found that the bye-laws are within the limits of the statutory power of the Board, the further question will arise whether they are void for unreasonableness and in the consideration of this question the principle laid down in Kruse v. Johnson (1898) 2 Q.B.D. 91 by Lord Russell C.J. will have to be kept in view. Distinction was drawn in that case between bye-laws framed by railway companies, dock companies, or other like companies, which carry on their business for their own benefit, although incidentally for the advantage of the public, and bye-laws framed by bodies of a public representative character entrusted by Parliament with delegated authority. It was held that in the case of bye-laws framed by companies carrying on business for their own bonefit, 'it is right that the Courts should jealously watch the exercise of these powers' vested in them 'and guard against their unnecessary or unreasonable exercise to the public disadvantage. But, when the Court is called upon to consider the bye-laws of public representative bodies clothed with ample authority...the consideration of such bye-laws ought to be approached from a different standpoint. They ought to be supported if possible. They ought to be, as has been said, 'benevolently' interpreted, and credit ought to be given to those who have to administer them that they will be reasonably administered.' It was further observed in that case that Courts of justice ought to be slow to condemn as invalid any bye-law' made by public representative bodies clothed with ample authority 'on the ground of supposed unreasonableness.' Power to make bye-laws is conferred on Municipal Boards by Section 298, Municipalities Act, which provides that:

(1) A Board by special resolution may, and where required by the Local Government shall, make bye-laws applicable to the whole or any part of the municipality, consistent with this Act and with any rule, for the purpose of promoting or maintaining the health, safety and convenience of the inhabitants of the municipality and for the furtherance of municipal administration under this Act. (2) In particular, and without prejudice to the generality of the power conferred by Sub-section (1), the Board of a municipality, wherever situated, may, in the exorcise of the said power, make any bye-law described in List I below....

5. List I deals with a number of subjects with respect to which bye-laws may be, made by a Board, but in considering the question of the validity or otherwise of bye-laws 1 and 2 referred to above we are concerned only with Clause H(b) of that list which empowers a Board to make bye-law 'providing for the regulation or prohibition of any description of traffic in the streets, where such regulation or prohibition appears to the Board to be necessary.' Bye-laws 1 and 2 purport to have been made by the Municipal Board of Muttra; in exercise of the power conferred on it by Clause H(b) of List I quoted above and counsel for the Municipal Board did not appeal to any other provision of the Act in support of these bye-laws. The decision of the first question referred to this Bench must therefore depend on the answer to the question whether bye-laws 1 and 2 provide 'for the regulation or prohibition of any description of traffic in the streets.' If they do, they are intra vires, and if they do not, they are ultra vires of the Municipal Board. It is clear that these bye-laws do not provide for the 'prohibition of any description of traffic in the streets,' and they can therefore be justified only on the ground that they make provisions 'for the regulation of any description of traffic in the, streets.' Now, I find it impossible to hold that the fixing of stands or the provision, about motor car or lorry plying for hire being allowed to halt only at the stands fixed amounts to the 'regulation of traffic in the streets' within the meaning of the provision quoted above. The phrase 'traffic in the streets' connotes the act of passing to and fro in the streets and not the standing of vehicles at a particular place fixed as stand. 'Street' is defined by Section 2(23) of the Act as meaning

any road, bridge, footway, lane, square, court, alley or passage which the public or any portion of the public has right to pass along and includes, on either side, the drains or gutters and the land upto the defined boundary of any abutting property, notwithstanding the projection over such land or any verandah or other superstructure.

6. This definition though wide in its scope clearly differentiates between those portions of the streets over which 'the public has right to pass' and the other portions of the streets, viz. drains or gutters, etc. which for obvious reasons cannot be used [by the public as a highway. The word 'streets' in the phrase 'traffic in the streets' must therefore mean those portions of the streets over which the public has right to pass and Municipal Boards are authorized to regulate traffic over such portions. It is manifest that stands for vehicles cannot be provided over the portions of streets open to traffic and the fixing of stands therefore cannot amount to regulation of traffic in the streets.' The statutory authority conferred on Municipal Boards by Section 298(2)H(b) of the Act is limited to the regulation of traffic in the streets and does not extend to the regulation of vehicles not in traffic in the streets. The fixing of stands and the direction to halt vehicles at those stands is not regulation of traffic in the streets but regulation of vehicles while not in traffic in the streets.

7. This conclusion becomes irresistible when one compared the provisions of Section 298(2)II(b) of the Act with the provisions of Section 3, Hackney Carriage Act (14 of 1879) which provides about 'rules for the regulation and control of hackney carriages.' The words 'regulation and control of hackney carriages' used in this Section stand in special contrast to the words 'for the regulation or prohibition of any description of traffic in the streets' used in the Municipalities Act and conclusively show that the regulation of traffic is something distinct from the regulation and control of vehicles. There is yet another reason in support of the interpretation that I have put on the phrase 'regulation of traffic in the streets' used in the Municipalities Act. The Hackney Carriage Act (14 of 1879) and the Motor Vehicles Act (8 of 1914) were passed before the present Municipalities Act. The Hackney Carriage Act provides 'for the regulation and control of hackney carriages lin certain municipalities and cantonments' and by Section 3 of the Act, any municipality to which the Act has been applied by the Lieutenant-Governor of the United Provinces of Agra and Oudh is authorized to make rules for the regulation and control of hackney carriages within the limits of such municipality in the manner in which, under the law for the time being in force. It makes rules or bye-laws for the regulation and control of other matters within such limits.' Section 6 of the Act enumerates various matters with respect to which a municipality may 'among other matters' make rules. Clause (c) of Section 6 provides about the issue of licences for hackney carriages let to hire and to persons acting as drivers of such carriages and by Clause (1) of that Section authority is conferred to 'appoint places as stands for hackney carriages and prohibit such carriages waiting for hire except at such places.' Elaborate draft rules have been framed to serve as a guide to Boards drafting rules under the Act, and Boards are enjoined to generally adopt those rules. These rules are to be found at p. 516 of the Municipal Manual printed in the year 1937. An examination of the Act and of the draft rules puts it beyond doubt that exhaustive provisions for the regulation and control of hackney carriages have been made by the Act and by those rules and I find that the Municipal Board of Muttra has, in pursuance of the authority vested in it by Section 6(i) of the Act, made the following bye-law in the year 1903:

19. The Municipal Board shall appoint places where hackney carriages may be allowed to wait for hire; and no hackney carriage shall wait for hire except at the stands so appointed (vide p. 276 of Muttra Municipality Rules, Regulations, Bye-laws).

8. Similarly the Motor Vehicles Act which consolidates and amends the law relating to motor vehicles in British India and applies to the whole of the United Provinces contains exhaustive provisions for the regulation and control of motor vehicles. Elaborate rules were framed by the Local Government under the Act in the year 1928 and the rule about parking places is Section 95 which runs as follows:

95. In concurrence with local authority, the registering authority may determine places where public motor vehicles shall stand for hire at which they shall commence and terminate their journeys.

9. Unlike these Acts the Municipalities Act does not contain provisions about the regulation and control of hackney carriages and motor vehicles and there is certainly no provision in the Act about the fixing of stands or parking places. I am not over-looking the provisions of Section 298(2)H(c) which empowers Municipal Boards to make bye-laws 'imposing obligation of taking out licences on the proprietors or drivers of vehicles...kept or plying for hire...within the limits of the municipality, and fixing the fees payable for such licences and the conditions on which they are to be granted and may be revoked.' This provision is similar to the provisions of Section 6(c), Hackney Carriage Act, and has been incorporated in the Municipalities Act with the sale object of empowering such municipalities to which the Hackney Carriage Act may not have been applied by the Lieutenant-Governor of the United Provinces to issue licences for vehicles plying for hire on such conditions as they may deem fit and to charge fee for issuing the licence. But this provision can have no application to municipalities like Muttra to which the Hackney Carriage Act has been applied for the simple reason that the same municipality could not have been empowered under two separate enactments to do one and the same thing. It may be that under this provision a municipality to which the Hackney Carriage Act has not been applied is empowered to fix stands for hackney carriages, but that is not the question before us and I refrain from expressing any opinion on the point. A comparison of the scheme and scope of the Hackney Carriage and the Motor Vehicles Acts with the scheme and scope of the Municipalities Act loads one to the conclusion that the authority to fix stands or parking places is to be sought within the former Acts and not within the Municipalities Act. It has been stated above that provision for the fixing of stands and parking places has bean made by the former Acts. That being so, the same power could not have been conferred on Municipal Boards by the Municipalities Act, as the conferment of such power would make the provisions of one or the other enactments redundant. Moreover, as shown above, it is the registering authority which, according to the rules framed under the Motor Vehicles Act, is authorized to provide stands for motor vehicles, and to hold that a Municipal Board is under the Municipalities Act vested with the power to fix stands for motor vehicles would be to render the provisions of the two Acts contradictory to each other and this is not permissible. For the reasons given above, I hold that the Municipal Board of Muttra was not empowered by Section 298(2)H(b) to make bye-law No. 1 fixing stands nor was authorized to frame bye-law No. 2 and both the said bye-laws are ultra vires of the Board.

10. I now proceed to consider question 2, viz. whether the levy of charge for the use of stands within the municipal limits of Muttra was within the competence of the Municipal Board or not. In the consideration of this question certain principles which I take to be well-settled and of universal application must be kept in view. Statutes which authorize the imposition of taxes on or the levy of fees from the public must always be strictly construed and unless a subordinate Legislature or a statutory body is in express and unambiguous terms given authority by a competent Legislature to impose taxes or to levy fees such authority must be denied to it. In other words an authority to impose a tax or to levy fees cannot be deduced from provisions of doubtful import and when the words used in a statute are capable of two interpretations, one in favour of the taxing authority and the other in favour of the subject the latter interpretation must hold the field. The reason for these rules is that it is opposed to the well-recognized conceptions governing a progressive state of society to permit statutory bodies to assume by inference from the words of an enactment the authority to impose taxes or to levy fees, as nothing is more liable to abuse than such supposed authority. Bye-law No. 4 quoted above purports to have been made under the authority vested in the Board by Sections 293 and 298(2)J(d), Municipalities Act. Section 293 provides:

(1) The Board may charge fees to be fixed by bye-law or by public auction or by agreement for the use or occupation (otherwise than under a lease) of any immovable property vested in, or entrusted to the management of, the Board, including any public street or place or on which it allows the use or occupation whether by allowing a projection thereon or otherwise.

(2) Such fees may either be levied along with the fee charged under Section 291 for the sanction, licence or permission or may be recovered in the manner provided by Chap. 6.

11. Section 294 lays down:

The Board may charge a fee to be fixed by bye-law for any licence, sanction or permission which it is entitled or required to grant by or under this Act.

12. Section 298(2)J(d) empowers a Board to make a bye-law 'fixing any charges, or fees, or any scale of charges or fees...to be paid under Section 293(1) or Section 294 of the Act...' Sections 293 and 294 read together show that a Municipal Board is authorized to charge fees for 'licence, sanction or permission' granted by it and along with such fees it is entitled to levy charge for the use or occupation of immovable property vested in it or entrusted to its management. In particular the provisions of Clause (2) of Section 293 put it beyond doubt that the use or occupation of immovable property referred to in Clause (1) of that Section must be incidental to or in consequence of 'sanction, licence or permission' granted by the Board. By numerous sections in the Act the Legislature has made provision about the cases in which a board is entitled or required to grant 'licence, sanction or permission,' e.g. Sections 237, 241 and 298(2)H(c) provide about the gran of 'licence' and Sections 180 and 205 provide about the giving of 'sanction' by a Board. Similarly, provision about the 'permission' with respect to various matters being given by the Board is made by Sections 191, 194, 209, 213, 220, 222(4), 256, 265, 266 and 298(2)I(g). This list is by no means exhaustive, but I have mentioned these Sections with a view to show that Section 294 is confined in its operation to cases with respect to which specific provision has been made in the Act. The Act does not make any provision about 'license, sanction or permission' being granted for the use of stands and it therefore follows that the fees referred to in Section 293(1) of the Act can have no reference to the use or occupation of stands by vehicles plying on hire. Apart from this the phraseology of Clause (1) of Section 293 points to the conclusion that the fees chargeable under that clause must be referable to permissive and not compulsory user of immovable property belonging to the Board. The words used in Clause (1) are of which it allows the use or occupation.' The word 'allows' excludes from the scope of the clause cases of compulsory user or occupation of immovable properties of the Board. It follows that the fees contemplated by that clause must Ibo fees payable with respect to optional user or occupation of immovable properties vested in the Board.

13. Now the Municipal Board of Muttra by bye-law 19 framed under the Hackney Carriage Act has made it compulsory for hackney carriages not to wait for hire except at the stands fixed by it and similarly by bye-law 2 made under the Municipalities Act motor cars or lorries plying on hire are forbidden to halt or run for the purpose of searching passengers at any public street or place other than the stands fixed for the purpose. These two bye-laws make the user and occupation of the stands by hackney carriages and cars and lorries compulsory and not optional. That being so it was not within the competence of the Municipal Board to charge fees for such compulsory user and bye-law 4 was therefore) ultra vires of the Board. Reliance was placed on behalf of the Board on Section 256, Municipalities Act, which makes it penal for any land vested in the Board being 'used as a halting place for any vehicle or animal or as a place of encampment' without the written permission of the Board. It was urged that this section presupposes the existence of authority in Municipal Boards to grant permission for the user of land vested in it as halting place for vehicles and that therefore the Municipal Board can charge fees for such permission. In my judgment, the argument is without force. In the present case we are not concerned with any permission being granted by the Board for the user of some land as stands. On the other hand we are concerned with a bye-law making it compulsory to halt hackney carriages and motor vehicles at particular places. There is yet another and a more grave objection to the validity of bye-law 4. By Section 6, Hackney Carriage Act, a municipality is authorized to charge fees for granting licences referred to in Clause (c) of that Section, but no such authority is given by Clause (i) of that Section which deals with the appointment of places as stands for hackney carriages. The omission of any mention of fees in Clause (i) shows, that the Legislature intended that no fee should be charged for stands for hackney carriages and the reasons for this was that the Legislature thought it fit to make it obligatory on municipalities to appoint places as stands for hackney carriages as a condition precedent to framing a rule prohibiting such carriages from waiting for hire at any place other than the stands. It is therefore manifest that a municipality has no authority under the Hackney Carriage Act to charge fees for stands. Similarly, by the Motor Vehicles Act one fixed tax is leviable from motor vehicles and Rule 95 quoted above does not empower the registering authority to charge tax or fees for stands. To allow a Municipal Board to charge fees for stands under the cover of the authority supposed to be vested in it by Clause (1) of Section 293 would in effect be to allow it to circumvent the provisions of the Hackney Carriage and Motor Vehicles Acts and this, for obvious reasons, cannot be allowed.

14. Apart from the grounds set forth above, I am prepared to hold that bye-law 4 is void for unreasonableness. In the first place you cannot make it compulsory for a person to use your property and then make him liable to pay fees for such compulsory of forced user unless an authority to charge fees in such cases is expressly given by some statute. In the second place you can not charge fees for discharging a statutory obligation, when the statute imposing the obligation does not expressly authorize the levy of fees for the discharge of that obligation. When the Municipal Board of Muttra decided to frame a bye-law preventing hackney carriages from waiting for hire at any place other than the appointed stands it was obligatory on it to appoint stands for the use of those carriages and that free of any charge. Similarly, the power vested in the registering authority to fix stands is unaccompanied by any corresponding right vested in Municipal Boards to charge fees for such stands. It follows that bye-law 4 would defeat the provisions of the two Acts referred to above and must therefore be held to be unreasonable.

15. Before parting with question 2 I must observe that the device adopted by the Board to augment its income by framing bye-law 4 is too patent to escape notice. It knew that it could not charge fees for stands fixed by bye-law 19 made under the Hackney Carriage Act. It therefore made no provision for fees as to stands in the bye-laws framed under that Act. It must have been aware that it had no right to fix stands for motor cars or lorries and therefore could not charge fees for the user of stands by motor vehicles. It therefore proceeded under the cover of the authority vested in it 'to regulate traffic in the streets' first to frame bye-law 2 prohibiting motor vehicles from halting at any place except the stands and then bye-law 4 lumped up the hackney carriages and motor vehicles together and made provision for fees for the compulsory user of the stands. The answer to question 3 must in my judgment be in favour of the Municipal Board. If the Municipal Board was authorized to levy fees for the use of the stands this right was, in the absence of any statutory prohibition, transferable. There is no provision in the Municipalities Act forbidding the transfer of the right vested in the Board to collect fees to which it is entitled. The answer to the third question must therefore be in the affirmative.

Allsop, J.

16. The Municipal Board of Muttra in the year 1931 set apart certain places as stands for motor cars, lorries and hackney carriages and purporting to act under the provisions of Section 293, Municipalities Act fixed a scale of fees for the use of these stands. Thereafter in order to facilitate the collection of these fees they put up to public auction the right to collect them. The arrangement was that some person should pay them a fixed amount yearly for each stand and should collect and apply to his own use the fees which he collected. The appellant Mewa Ram bid for the stand at Dig Darwaza and his final bid of Rs. 1115 was accepted by the Board. He paid a sum of Rs. 278-12-0 immediately and contracted to pay the balance of Rs. 836-4-0 by monthly instalments of Rs. 139-6-0 each. He did not pay any of these instalments-and the result was that the Municipal Board again put the stand up to auction. The highest bid they secured was Rs. 360. They claimed that they were entitled to the balance of Rs. 476-4-0 from Mewa Ram? and in order to recover it they instituted the suit which has given rise to the reference to this Bench. The defence put up by Mewa Ram was that the Municipal Board was not entitled to levy fees for the use of these stands, and even if they were so entitled, they were not competent to transfer the right of levying the fees to him. His contention was that the contract entered into with him was therefore void. The Courts below decided in favour of the Municipal Board. In second appeal a Bench of this Court has referred three questions for decision to this Full Bench. The questions are:

It Whether the Municipal Board of Muttra was competent to make a bye-law that 'no motor car or lorry plying for hire shall be allowed to halt or run for the purpose of searching passengers at any public-street or place other than the stands fixed for the purpose? 2. Whether the levy of any charge for the use of stands within the municipal limits of Muttra was within the competence of the Municipal Board or not? 3. Whether the right to the said charge and the right to collect it can be transferred and whether the contract for such a transfer is valid?

17. I have had the advantage of seeing the judgment of my brother, Iqbal Ahmad. I regret that I am unable to agree with him that the first two questions should be answered in the negative. Section 298, Municipalities Act, is in the following terms:

(1) A Board by special resolution may, and where required by the Local Government shall, make bye-laws, applicable to the whole or any part of the municipality, consistent with this Act and with any rule, for the purpose of promoting or maintaining the health, safety, and convenience of the inhabitants of the municipality and for the furtherance of the municipal administration under this Act. (2) In particular, and without prejudice to the generality of the power conferred by Sub-section (1), the Board of a municipality, wherever situated, may, in the exercise of the said power, make any bye-law described in list I below and the Board of a municipality, wholly, or in part, situated in a hilly tract may further make, in the exercise of the said power, any bye-law described in list II below.

18. This list I is divided into a number of parts. Part H(b) is as follows:

Providing for the regulation or prohibition of any description of traffic in the streets, where such regulation or prohibition appears to the Board to be necessary.

19. A 'street' means any road, bridge, foot-way, lane, square, court, alley or passage which the public or any portion of the public has a right to pass along and includes, on either side, the drains or gutters and the land up to the defined boundary of any abutting property, notwithstanding the projection over such land of any verandah or other superstructure. It is obvious to me that the powers given to municipalities are extremely wide. Apart from the particular powers mentioned in list I, there are the general powers given in Sub-section (1) of Section 298. It is clearly laid down in Sub-section (2) that the powers described in the lists mentioned in Sub-section (2) are granted without prejudice to the generality of the power conferred by Sub-section (1), but I do not think it is necessary for us to go beyond the powers granted in list I H (b). My brother Iqbal Ahmad is of the opinion that the fixing of stands or the provisions about motor cars or lorries plying for hire being allowed to halt only at the stands fixed does not amount to the regulation of traffic in the streets. The term traffic is not defined in the Act and must be deemed to be used in its ordinary sense. Even if it does not include in Its denotation the vehicles themselves it certainly means the coming and going of vehicles.

20. I have no doubt at all that to the ordinary man in the street the right to regulate traffic would appear to include the right to stop vehicles at certain places and to prevent them from stopping. My brother Iqbal Ahmad would also draw a distinction between those parts of a street which are intended for the passage of people or vehicles from that part such as drains, etc. which is not so intended. The word 'street' however is used in Section 298, List I H (b) and the term must have the meaning according to the definition. It certainly includes the verges of the carriage way. The meaning of the bye-law that no motor car or lorry plying for him shall be allowed to halt or run for the purpose of searching passengers at any public street or place other than the stands fixed for the purpose is, apart from the provision about running with which we are not concerned, that vehicles of this type shall not stop in any part of the public streets except the stands fixed for the purpose, that is, they must not stop on the carriage way or on the verges except at the stands. The municipality could surely make a rule that no vehicle of this nature should stand in the middle of the carriage way or at a corner or at a cross-road or something of that kind on the ground that it would, if it did so, impede other traffic. If it can do that, it can also prohibit such vehicles from standing anywhere else in a public street either in the carriage way or on the verges. It could, as far as I can see, prevent any such vehicle from stopping anywhere at all on the public streets including verges within the municipal area and therefore if it makes an exception to its general prohibition by allowing these vehicles to stop in certain areas described as stands I cannot see how a prohibition of that kind is beyond its powers. As hackney carriages are defined in the Hackney Carriage Act as wheeled vehicles drawn by animals we are not concerned with them at all in considering the answer to the first question which has been put to us.

21. A reference has been made to the rules under the Motor Vehicles Act which provide that the registering authority may fix stands for motor vehicles. I do not see how these rules can affect the statutory provisions given to a municipality under the Municipalities Act. If two different statutes allow different authorities to forbid certain acts for different purposes it does not appear to me that the provisions of the two statutes are necessarily inconsistent. There might be an inconsistency if the statutes allowed different authorities positively to permit certain acts, but this contingency is provided for in the rules under the Motor Vehicles Act because stands are to be fixed by the registering authority only in consultation with the municipality. The registering authority therefore cannot permit any place to be used as a stand without the consent of the Municipality and it seems to me that this provision has been made for the very reason that the Municipality is entitled to forbid the use of any place as a stand for motor vehicles. For these reasons I think the first question should be answered in the affirmative. It would in my opinion be very harmful to the safety and convenience of the public if it were held that a municipality could not prohibit the parking of motor vehicles except at certain appointed places. I now come to the second question. The municipality purported to act, as I have already said, under the provisions of Section 293, Municipalities Act. This Section is in the following terms:

(1) The Board may charge fees to be fixed by bye-law or by public auction or by agreement for the use or occupation (otherwise than under a lease) of any immovable property vested in, or entrusted to the management of, the Board including any public street or place of which it allows the use or occupation whether by allowing a projection thereon or otherwise.

(2) Such fees may either be levied along with the fee charged under Section 294 for the sanction, license or permission or may be recovered in the manner provided by Chap. 6.

22. Section 294 provides that the Board may charge a fee to be fixed by bye-law for any license, sanction or permission which it is entitled or required to grant by or under the Act. It seems to me that the meaning of this Section read by itself is perfectly clear. The stands fixed by the Board are on immovable property vested in or entrusted to the management of the Board and the Board allows hackney carriages and public motor vehicles to occupy and use these stands. I should say therefore that there is no doubt whatsoever that the municipality is authorized to charge a fee for this use and occupation. At least in so far as motor vehicles are concerned, the Board is not bound to allow them to use or occupy any part of the Board's property as a stand. In so far a hackney carriages are concerned, the argument is that the Board was not entitled under the Hackney Carriage Act to forbid them to use any part of the street as a stand without appointing particular places as stands. I will consider this objection presently, but I may say at once that I do not see how it can be held that the wider powers given under the Municipalities Act cannot be used because narrower powers have been given under some other Act which had been previously passed. It may be that the Municipality could not sunder the Hackney Carriage Act have forbidden the use of its land to hackney carriages as stands without providing stands for them, but it does not follow that it could not have done this under the provisions of the Municipalities Act. The Hackney Carriage Act lays down in Section 6 that rules may be made to appoint places as stands for hackney carriages and to prohibit such carriages waiting for hire except at such places. The argument addressed to us was that the term 'appoint'1 was equivalent to the term 'provide.' I dc not think that this is so. It may be that there are municipalities where the Municipal Board could not appoint private places as stands for hackney carriages because such places are not available, but it is possible to conceive that there may be other municipalities where private persons or Corporations may allow hackney carriages to stand upon their property, viz. at railway stations or outside theatres or other places of public entertainment or refreshment or at some convenient places for the purpose of acquiring profit and if the municipality appointed such places as stands I do not see that they would be bound to provide other stands upon their own properties.

23. In the present case, it happens that the municipality has appointed stands on municipal land so that it has complied with the provisions of Section 6, Hackney Carriage Act. The argument was that the municipality was bound to provide stands for hackney carriages and that therefore it was bound to provide them free of charge. It seems to me to be stretching the meaning of the words used in Section 6, Hackney Carriage Act, to say that stands must be provided and still further to say that they must be provided free of charge. If that had been the intention of the Legislature, it would have been easy to lay down distinctly in the Act that there might be rules for providing stands free of charge and that when such rules were made there could be further rules prohibiting the use of other places in this manner. I should say further that although it is true that the municipality has chosen to make its rules under the Hackney Carriage Act it could just as well have made a bye-law under the provisions of Section 298(2)H(b), Municipalities Act, in the same sense and that it would be importing undue technicality into our decision to hold that the rule was invalid because the municipality purported to act under one Section rather than under the other. It seems to me that there are other Sections in the Municipalities Act which imply that the municipality would have a power of this kind. It is laid down in Section 256 of the Act that the owner of any vehicle may be fined if he uses any land vested in the Board without the permission in writing of the Board as a halting place for any vehicle. There was a good deal of argument about the exact meaning of the term halting place, but I think that this term should be interpreted as conveying the meaning which it ordinarily conveys, i.e. as a place where Homebody halts or rests or stops for some time. A stand for hackney carriages is to my mind a place where such carriages stop in the intervals of being employed upon their business of conveying passengers from one place to another. When a hackney carriage goes to a stand, the intention of the owner of it is to stay there for some time till he is employed again. It seems to me that he uses the stand as a halting place in the intervals of going about his business. Then there are the provisions of Section 220 of the Act which are in the following terms:

Notwithstanding any right or privilege previously acquired, accrued, or enjoyed, in a municipality for which bye-laws, under sub-head (b) of heading E of Section 298 have been made and are in force, no itinerant vendor, or any other person, shall be entitled to use or occupy any public street or place for the sale of articles or for the exercise of any calling or for the setting up of any booth or stall without the permission of the Board given in accordance with such bye-laws.

24. List I E of Section 298 provides for bye-laws to be made for streets. It includes in (b) a provision for permitting, prohibiting or regulating the use or occupation of any or all public streets or places by itinerant vendors or by any person for the sale of articles or for the exercise of any calling or for the setting up of any booth or stall, and providing for the levy of fees for such use or occupation. Bye-laws have been made under this heading in the Muttra Municipality and therefore the provisions of Section 220, Municipalities Act, would apply. It may be that it was intended generally that these provisions should apply to the use of public streets for the sale of articles, but the provisions include a right to forbid the use of the streets for the exercise of any calling and I think it would be impossible to say that a person who owns and uses a vehicle as a hackney carriage is not engaged in a calling. It seems to me that a person who halts his hackney carriage at a stand so that it may be available for any person who wishes to hire it is using the stand in exercise of his calling. The Municipality has not purported to act under these Section and I do not think that it is necessary to decide definitely whether they would apply to the charging of fees for stands for hackney carriages, but I mention the Sections merely to show that the Legislature intended that the municipality should charge fees from any person who occupies a part of the street to the exclusion of others for some time in order to make profit for himself. It has been suggested that the bye-laws fixing these charges should not be upheld on the ground that they are unreasonable even if they come within the powers conferred upon the Board. My brother Iqbal Ahmad has quoted the remarks of Lord Russell in Kruse v. Johnson (1898) 2 Q.B.D. 91 and I need not repeat them. There can be no doubt that the Courts should be very careful not to arrogate to themselves the right to supervise the activities of public authorities in exercise of the powers conferred upon them especially when these public authorities are popularly elected and where, as in this case, these powers are subject to the control of the Local Government.

25. There was in the arguments it seems tome an underlying suggestion that the Municipal Board had acted in a most tyrannous and improper manner and it is therefore very necessary to guard against any emotional reactions in considering the questions which are to be answered. I think we should not forget that this is not a case in which any proprietor of any hackney carriage or motor vehicle has questioned the power of the Board to make these bye-laws and fix these fees. The appellant before us is a man who voluntarily bid at public auction and then repudiated his contract on technical pleas with which he was not immediately concerned. It does not appear that any attempt was made to show that the appellant had any difficulty in collecting fees from those who were immediately concerned. I do not think that it can really be said that the Municipal Board compelled the owners of hackeny carriages or motor vehicles to use these stands and then made them pay fees for the use of them. Nobody is bound to own a hackney carriage or motor vehicle or use it for the purpose of conveying passengers from one place to another. It has been suggested that in so far as hackney carriages are concerned the rules of the Board were such that they could not be kept even upon private land. It has not been shown that the Board ever prevented any person from keeping his vehicle upon such land and I do not see why we should interpret the rules in a very wide sense and then proceed to decide that the intention of the municipality was unreasonable. If these hackney carriages were not prevented from standing upon private land I cannot see how it can be said that they were compelled to use the municipal stands. I cannot conceive that the municipality ever intended that no person should keep his hackney carriage on his own premises if he wished to do so. If he was allowed to do that it was entirely a matter for himself whether he chose or did not choose to use the stands provided on the public streets. As Lord Russell has said, these bye-laws should be interpreted in a 'benevolent' manner. I would therefore hold that the rules for charging fees were not unreasonable.

26. It has been suggested that the Board was not entitled to charge fees under Section 293, Municipalities Act, because it did not so much allow as compel the use and occupation of the stands. I have already given my reasons for holding that the Board cannot be said to have compelled hackney carriages and motor vehicles to use these stands. Tie argument was that it did compel the use of the stands for all practical purposes because no owner of a public motor vehicle or hackney carriage could carry on his business without using the stands, but I do not think that it necessarily follows, even if it was inconvenient for the owners of hackney carriages and public motor vehicles not to use the stands, that it could be outside the competence of the Board to charge for the use of them. I will refer by way of analogy again to the provisions of Section 220 of the Act. It might equally well be said that many ignorant vendors could not carry on their trades without making use of public streets and still it is quite clear that they would require the permission of the Board for such use and that the Board could charge for the use of their land. Where in the ordinary course of nature land must be used as in the case of burial grounds, a special provision is made under 3. 285 which requires a Board where it doses a burial place, to provide another fitting place for the purpose of burial. This is an instance of statutory compulsion upon the Board. It does not seem to me that there is any statutory compulsion in the Municipalities Act or in the Hackney Carriage Act that the Board shall provide stands for hackney carriages. The word used in the Hackney Carriage Act, as I have already mentioned, is 'appoint' which means to indicate or point out and not necessarily 'to provide.' If the Board had under the Municipalities Act forbidden public motor vehicles or hackney carriages to stand about the streets waiting to be engaged, this would not have been in my judgment outside its powers. Learned counsel for the appellant did suggest that the more particular provisions of Section 265 of the Act would affect the general right of the Board to prevent vehicles from standing about the streets. This Section is in the following terms:

(1) Whoever without the written permission of the Board (a) causes or allows any vehicle, with or without an animal harnessed thereto, to remain or stand so as to cause obstruction in any street longer than may be necessary for loading or unloading or for taking up or setting down passengers, or (b) leaves or fastens any vehicle or animal so as to cause obstruction in any street, or (c) exposes any article for sale, whether upon a stall or booth or in any other manner, so as to cause obstruction in any street, or; (d) deposits, or suffers to be deposited, any building materials, box, bale, package or merchandise in any street, or (e) erects or sets up any fence, rail, post, stall or any scaffolding or any other such fixture in any street, or (f) in any manner wilfully obstructs or causes obstruction to the free passage of any street, shall be liable upon conviction to fine which may extend to Rs. 50.

27. In my judgment there is no force in this argument because there is no inconsistency between the provisions of Section 265 which impose a penalty for obstruction and the other provisions of the Act which enable Municipal Boards to make bye-laws to prevent such obstruction. Section 265 is obviously intended to apply to those cases where! obstruction is in fact caused although no bye-law has been framed to prevent the obstruction. It does not prevent the Board from preventing by a bye-law any act which would normally cause obstruction and inconvenience to the public although in a particular instance it might be that the act would not cause such obstruction or inconvenience. If the Board can prohibit the use of its land as a stand for a motor vehicle or hackney carriage and if it provides stands on particular parts of its land I do not see how anybody can doubt that it has permitted the use of that part of its land for this purpose. If it does permit the use of its land it is entitled under the provisions of Section 293, Municipalities Act, to charge for such use. It has been suggested that rules for taxation should be construed to the benefit of the public, but the charges with which we are concerned are not a form of taxation. They are charges for the use of property which vests in the Municipal Board. In my judgment the Board was entitled to charge fees for the use of its land and I would answer the second question in the affirmative.

28. I agree with my brother Iqbal Ahmad that the third question should be answered in favour of the Board. There are no rules about the farming of taxes in the Municipalities Act of this Province and therefore no conclusion can be drawn as has been drawn in other provinces that certain charges are not transferable by way of farm because there is a specific provision for farming other charges. The municipality if it had a right to charge for the use of its land was entitled to recover the money from the person using the land and as soon as he used the land that person became liable. The charge was one for the use of immovable property and the right to recover the money once it became due was in itself immovable property which could be transferred by the Board to the person who was given authority to collect. It is also by no means clear that the Board Intended that the legal right to demand a charge should be transferred to persons in the position of the appellant. The appellant was to collect the money due but if he failed to collect it he was to bring the matter to the notice of the Board which would take legal steps to enforce its claim. It seems to me that a person who is entitled to money can authorize somebody else to collect it for him and he can make such contract as he chooses with the Collector for the remuneration of the latter. It does not appear to me that there is anything in law which prevented the Board from entering into the contract to transfer the right to collect these dues to the appellants. I would answer the third question in the affirmative.

Mohammad Ismail, J.

29. The points formulated in the referring order have been set out elsewhere and need not be repeated. In view of the importance of the points involved in this reference I consider it necessary to state briefly the reasons for my answers to the questions referred to us.

30. Point No. 1. - The bye-law in question has been framed under the provisions of Section 298-H(b) which empowers the Board to provide for the regulation or prohibition of any description of traffic in the streets where such regulation or prohibition appears to the Board to be necessary. It will be observed that it is for the Board alone to decide whether necessity for such a regulation or prohibition exists. Street trader Sec, 2, Sub-clause 23 means any road, bridge, foot-way, lane, square, court, alley or passage which the public or any portion of the public has a right to pass....' Public street under Sub-clause 19 of the aforesaid Section moans 'street.' From the wording of bye-law 2 it will appear that the prohibition is limited to public streets or places and has no concern with private property of the residents of the municipality or the motor or lorry owners. By a comparison of language of bye-law 2 with that of Section 298-H(b) it will be manifest that the bye-law in no way travels beyond the limits provided by the statute. It has been urged that under Section 298-H(b) bye-laws can be made only to safeguard public safety and to provide for the convenience of the public. It is not suggested that in the present case the bye-law will not be conducive to public safety and convenience. It is obvious that to allow a large number of vehicles to halt or run for the purpose of searching passengers will result in causing inconvenience to the public using such streets and may even endanger their safety. Such power is provided in other Acts and is commonly exercised all over the world by the authorities appointed by the statute. It is contended that the Board may regulate or prohibit traffic but has no authority to fix stands. In my judgment this argument proceeds on a misconception of the scope of the bye-law. The Board has undoubtedly the discretion to exclude any public street or place from the application of the prohibition imposed by the bye-law. It is immaterial whether the street or place so excluded from the operation of the bye-law is styled as 'stand' or any other name. Whenever any description of traffic is regulated or prohibited it will affect either pedestrians or vehicles or both. The dictionary meaning of the word 'traffic' is 'goods or persons passing to and fro along a road, railway, canal, steam boat route or the like, viewed collectively as the street traffic, the railway traffic, etc.' (see the Imperial Dictionary). The Act empowers the Board to regulate or prohibit any description of traffic in the street. Motor cars and lorries plying for hire when passing to and fro along a road may be described as 'traffic.' Under Section 298-H(b) it is within the competence of the Board to prohibit any description of traffic. The language of the sub-rule in my judgment is wide enough to include the traffic of motor cars and lorries plying for hire.

31. In course of argument reference was made to Rule 95 framed under the Motor Vehicles Act and it was contended that the power to fix stands is vested only in the registering authority appointed by the Act. There is no reason to believe that the rules appended to the Motor Vehicles Act have the effect of nullifying or amending the statutory provisions of the U.P. Municipalities Act. It is true that under the rules the registering authority may fix stands in concurrence with the local body concerned. It may possibly be within the power of the registering authority to disagree with the Board in the selection of places as stands. There is nothing to show that such a situation has arisen nor has such a plea been taken in the written statements. I have therefore no hesitation in holding that the Municipal Board was fully competent to make the bye-law that no motor-car or lorry plying for hire shall be allowed to halt or run for the purpose of searching passengers at any public street or place other than stands fixed for the purpose. My answer to question 1 is in the affirmative.

32. Point No. 2. - It is argued that levy of any charge for the use of stands in bye-law 4 was not within the competence of the Municipal Board. As stated above, the stands fixed by the bye-law are the property of the Board. It cannot be disputed that a private owner is entitled to charge for the use of his land. It is however contended that the Board does not enjoy the same rights with respect to the properties vested in it. In the absence of a clear provision to that effect, it seems to me that there is no reason to deprive the Board of the elementary rights enjoyed by other owners of property. The argument in support of the above contention advanced by the learned Counsel for the appellant is that the Board has no right to force the motor, lorry and hackney carriage owners to use its land and then charge them for the same. Bye-law 2 is limited in its operation to motor care and lorries plying for hire and it is directed that such cars and lorries should not halt or run for the purpose of searching passengers at any public street or place other than stands fixed by the Board. There is no reference to hackney carriages in this bye-law. Hackney carriages are regulated by Hackney Carriage Act 14 of 1879. Section 6(i) of the said Act empowers the Municipalities and Cantonments to make rules under Sections 3 and 4, among other matters to appoint places and stands for hackney carriages and prohibit such carriages waiting for hire except at such places. In my opinion, under the above sub-section it is open to the Board to prohibit the use as stands of places owned by private individuals. It has been argued with some force that the board is not entitled to levy a charge if it compels the hackney carriages to use its own land. There is no mention of the terms on which such stands are to be provided. We have therefore to examine-relevant Sections of the Act to find out the authority of the Board to demand compensation for the use and occupation of its property. Several Sections have been cited by counsel in support of their respective contentions. It is not necessary to discuss all of them. I proceed to notice only such. Sections as appear to me appropriate. Section 256 of the Act provides that where any land vested in the Board is, without the permission in writing of the Board, used as a halting place for any vehicle or animal or as a place of encampment, the owner or a keeper of the vehicle or animal or a person encamping, as the case may be, shall beliable on conviction to a fine. It is not disputed that the stands notified in the bye-law are vested in the Board.

33. It follows that no one has a right to utilize such places without the written permission of the Board. It has been argued that the expression 'halting place' means a parao and does not apply to a stand. A halting place may be any place where vehicles, animals or human beings halt either temporarily or permanently. It will no doubt be doing violence to the spirit of the. Section if a place where vehicles halt even for a minute or two is called a halting place but there appears no justification for restricting it to 'paraos' only. In my opinion the stands enumerated in bye-law 1 may properly be described as halting places. It is manifest that the Board had the power to withhold or give permission for the use and occupation of the land to be used as stands. In the present case instead of giving written permission a bye-law has been framed by the Board. Section 293 of the Act provides:

The Board may charge fees to be fixed by bye-law or by public auction or by agreement for the use or occupation (otherwise than under a lease) of any immovable property vested in, or entrusted to the management of the Board, including any public street or place of which it allows the use or occupation whether by allowing a projection thereon or otherwise.

34. Learned Counsel for the appellant contends that this Section is wholly inapplicable, as the expression 'use or occupation' finding place in the Section has got a technical meaning. It is argued that the carriages or cars standing on Municipal stands have not been given any permanent right in any portion of the land that has been offered as a stand, and therefore it cannot be said that the vehicle or lorry owners are in use and occupation of any portion of the land. In my judgment the Board may allow use and occupation of the land vested in it to a class of persons or to an individual. It may further allow the land to be occupied either permanently or for a temporary period. Any hackney carriage or motor owner on payment of the requisite fee will be entitled to make use of the stands. If there is no room available at the time it is possible that a claim for refund of the fee so paid may be entertainable. Such a contingency however has not occurred and we are not called upon to decide hypothetical questions. I see no reason for limiting the scope of Section 298 in the manner suggested by learned Counsel for the appellant. Again it is urged that in the present case the owners of hackney carriages and lorries are not given any option but are forced to use the municipal land as a halting place. It is therefore contended that Section 293 will not apply as it pre-supposes a voluntary use of the land by a party on payment of requisite charges. Learned Counsel for the respondent however contends that the hackney carriage and lorry owners are at liberty to use the stands or not. There is no obligation imposed by law on them to use the stands. Our attention has not been drawn to any Section of the Act under which the Board is placed under a statutory duty to provide stands. It was within the competence of the Board to frame bye-law 2, without offering any places as stands. Now that stands have been provided, it cannot be said that the owners of hackney carriages and lorries, etc. have been placed in a disadvantageous position. It is for their convenience and I that of the public that bye-law 1 has been made and in my opinion it is permissible for the Board to levy a charge for, the use and occupation of its property.

35. The validity of the bye-law is challenged on another ground. It is said that the bye-law is unreasonable and is therefore inoperative. There are certain essentials for the validity of a bye-law. It must be : 1. Intra vires of the authority who makes it. 2. Not repugnant to the law of the country. 3. Certain in its terms and positive. 4. Reasonable (see Halsbury's Laws of England Edn. 2, para. 26, p. 604). It is strenuously argued that the bye-law in question is unreasonable because the Board having charged fee for licence had no right to do anything which would have the effect of virtually withdrawing the licence. I am not prepared to accept that the grant of licence assumes an undertaking on the part of the Municipal Board concerned to provide land to the licensees as stands. What is reason, able is in many cases a question of opinion. A Court of law has to be very cautious in interfering with the authority of a local body on the ground of unreasonableness. There are means provided in the Act for preventing abuse of power by local bodies and it is the duty of the party aggrieved to have recourse to such remedies as are provided in the Act for rectifying mistakes of the local bodies.

36. In Kruse v. Johnson (1898) 2 Q.B.D. 91 at page 99 Lord Russell of Killowen C.J. observed:

But, when the Court is called upon to consider the bye-laws of public representative bodies clothed with the ample authority which I have described, and exercising that authority accompanied by the checks and safeguards which have been mentioned, I think the consideration of such bye-laws ought to be approached from a different standpoint. They ought to be supported if possible. They ought to be as has been said, 'benevolently' interpreted, and credit ought to be given to those who have to administer them that they will be reasonably administered.... Notwithstanding what Cockburn C.J. Said in Bailey v. Williamson (1973) 8 Q.B. 118, at p. 124 an analogous case, I do not mean to say that there may not be cases in which it would be the duty of the Court to condemn bye-laws, made under such authority as these were made, as invalid because unreasonable. But unreasonable in what sense? If, for instance, they were found to be partial and unequal in the operation as between different classes if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the Court might well say, 'Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires.' But it is in this sense, and in this sense only, as I conceive, that the question of unreasonableness can properly be regarded. A bye-law is not unreasonable merely because particular Judges may think that it goes further than is prudent or necessary or convenient, or because it is not accompanied by a qualification or an exception which some Judges may think ought to be there.

37. Applying the principles laid down in the above case I hold that the bye-law is not unreasonable. I have given my very serious consideration to the question before us and in my opinion there is no ground for holding that it is beyond the competence of the Board to levy a charge for the use of stands within the municipal limits. My answer to question No. 2 is in the affirmative.

38. Point No. 3. - It hag been contended that the right to collect dues for the use of stands is not transferable and the Board had no power under the Act to enter into a contract with the appellant to recover money from the licensees. If this contention is sound, the consideration for the contract between the appellant and the Municipal Board will fail and the suit brought for the recovery of the money by the Board must be dismissed. It is conceded that the dues claimed from the licensees do not come within the category of 'tax.' The charge levied of the use of the land may properly be described as 'fees.' Under Section 293(1) of the Act, the Board is empowered to charge fees and under Clause 2 of the Section such foes may be recovered in the manner provided by Chap. 6. I have already held that Section 293 of the Act is applicable. It follows therefore that it was within the competence of the Board to recover fees payable under the bye-law in the manner prescribed in Chap. 6. It is manifest that the special powers conferred on the Board under Chap. 6 to realize any sum payable to it by issue of warrant, etc. could not be transferred to anyone else. It is not suggested that the Board purported to transfer any such powers. The Board merely authorized the contractor to realize the fees payable to itself by the licensees. In other words, the contractor was allowed to receive money on behalf of the Board from the licensees. There is nothing in the Act to prevent the Board from entering into such a contract with a third party. If the licensees declined to pay, it was open to the contractor to refer the matter to the Board for taking such action as it deemed fit. From a perusal of the draft agreement which was never executed it appears that the Board reserved to itself the right to bring suits for the recovery of arrears. The U.P. Municipal Act has given very wide powers to the Municipal Board to enter into contracts. Section 6 of the Act provides:

In every Municipality there shall be Municipal Board and every such Board shall be a body comported by the name of the Municipal Board of the place by reference to which the Municipality is known, having perpetual succession and a common seal, and subject to any restriction or qualification imposed by this or any other enactment vested which the capacity of suing and being sued in its corporate name, of acquiring, holding and transferring property, moveable and immovable, and of entering into contracts.

39. Oar attention has not been drawn to any restriction or qualification imposed by this or any other enactment prohibiting the Board from entering into a contract for the collection of the fees of the description under consideration. Section 124 of the Act deals with the power of the Board to transfer property vested in it by sale, mortgage, lease, gift, exchange or otherwise. This power is subject to the restrictions imposed by or under the Act. The U.P. General Clauses Act, Section 4(23) defines immovable property as follows:

Immovable property shall include land, benefits to arise out of land and things attached to the earth....

40. It would appear from the above definition that the income from the land to be used by licensees as stands is immovable property and therefore may be transferred or leased like any other immovable property vested in the Board. It cannot be denied that the method of collection adopted by the Board leads to convenience and economy. The collections on behalf of the Board are not actually made by the Chairman or the Executive Officer. Subordinate servants of the Board are usually entrusted with the duty of collecting dues of all kinds. The position of the contractor is more or less that of an agent of the Board. It will make no difference in the status of the nominee of the Board empowered to receive money on its behalf, if he is remunerated on percentage basis instead of being paid a fixed monthly salary. In my judgment there is no legal bar in the Act against the appointment of a contractor for the collection of money due to the Board. The contractor may not be able to enforce payment through a Court of law because no one is authorized to sue on behalf of the Board except persons authorized by the Act and a contractor is not one of them. In the present case however, we have to confine our answers to the questions referred to us, and the only matter covered by question No. 3, is whether the right to collect charge for the use of the stand can be transferred. Any subsidiary matter connected with this question will have to be considered by the Bench concerned, and we should not express any opinion with regard to them.

41. Learned Counsel for the appellant has cited several authorities in support of his contention. I now proceed to consider some of them. It may be mentioned that no case decided by this Court has been referred to us on this point. In Municipal Council Kumbakonal v. Abbahs Saheb (1913) 36 Mad. 113 the Municipal Council sued the respondent to recover the balance due by him under a lease which he had taken of the right to collect fees on the slaughter of animals which the Council were entitled to levy under Section 191, District Municipalities Act, Madras Act 4 of 1884. The suit was dismissed. The learned Judges gave two rain reasons for dismissing the suit. The first was that the right of farming out was not necessary to the exercise of the right of levying, as such fees should be collected, find are usually collected, by the Municipal subordinates. With great respect I do not think that this is a matter which should influence the Court. The members of the Board know best what is the most convenient method of collection. The second reason was that while there was an express grant of the power to farm out tolls in the Act there was no such power to transfer right to levy fees on the slaughter of animals. This distinction however does not exist in the U.P. Municipalities Act as there is no specific power given under the Act to farm out the right to collect any kind of fees. The learned Judges in the case mentioned above had to interpret the District Municipalities Act, Madras. That decision is no guide for the interpretation of the provisions of the U.P. Municipalities Act, specially as the wordings of the relevant Suctions of the two Acts are not identical. In the above case an earlier decision of Wallis J. in C.S. No. 244 of Corporation of Madras v. Masthan Saib Reported in (1913) 21 M.L.J. 788 was followed.

42. Learned Counsel has also cited Saundatti Yellama Municipality v. Shripadbhat Seshbhat (1933) 20 A.I.R. Bom. 132 and Sholapur Municipality v. Shrivaram Bhagwant (1928) 15 A.I.R. Bom. 282. These cases also follow the reasoning in Municipal Council Kumbakonal v. Abbahs Saheb (1913) 36 Mad. 113. I do not think that the rulings cited above afford any help in deciding questions arising out of the U.P. Municipalities Act. I regret I am unable to follow them. In my opinion there is no ground to restrict the powers of the Board given under Section 6 of the Act. My answer to question No. 3 is in the affirmative.

43. The answer by the majority of the Judges constituting this Bench to all the three questions referred is in the affirmative.


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