G.P. Singh, C.J.
1. By this petition under Article 226 of the Constitution, the petitioner challenges the notification dated 29th April, 1978 issued by the District Magistrate, Surguja, under Rule 239 121 (i) of the Madhya Pradesh Motor Vehicles Rules, 1974, prescribing the fees to be paid in respect of motor vehicles halting in the bus-stand at Manendragarh.
2. Section 68 (1) which occurs in Chapter IV of the Motor Vehicles Act, 1939 authorises the State Government to make rules for the purposes of carrying into effect the provisions of the said chapter. Without prejudice to the generality of this power, Section 68 (2) authorises the State Government to make rules on certain enumerated matters. Clauses (r) and (s) of Section 68 (2) read as follows:
'(r) prohibiting the picking up or set-ting down of passengers by stage or contract carriages at specified places or in specified areas or at places other thanduty notified stands or halting places and requiring the driver of a stage carriage to stop and remain stationary for a reasonable time when so required by a passenger desiring to board or alight from the vehicle at a notified halting place;
(s) the requirements which shall be complied with in the construction or use of any duly notified stand or halting place, including the provision of adequate equipment and facilities for the convenience of all users thereof, the fees, if any, which may be charged for the use of such facilities, the records which shall be maintained at such stands or places, the staff to be employed thereat, and the duties and, conduct of such staff, and generally for maintaining such stands and places in serviceable and clean condition.'
Section 75, which occurs in Chapter VI of the Act, deals with the power of the State Government or any authority authorised by it to erect traffic signs. Section 76 refers to parking places and halting stations and reads as follows;
'76. Parking places and halting stations. -- The State Govt. or any authority authorised in this behalf by the State Government, may in consultation with the local authority having juris-diction in the area concerned, determine places at which motor vehicles may stand either indefinitely or for a specified period of time, and may determine the places at which public service vehicles may stop for a longer time than is necessary for the taking up and setting down of passengers.'
Section 91 (1) empowers the State Government to make rules for carrying into effect the provisions of Chapter VI. Section 91 (2) empowers the Government to make rules on certain enumerated matters. Clause (e) of Section 91 (2) being one of these matters reads as follows:
'(e) the maintenance and management of parking places and stands and the fees, if any, which may be charged for their use:'
Rule 239 of the Rules with which we are concerned in this petition is as under; '239. Stands and halting places,--(1) The District Magistrate by notification in the official gazette, or by the erection of traffic signs which are permitted for the purpose under Sub-section (1) of Section 75 of the Act or both.may in respect of the taking up or set-ting down the passengers or both, by public service vehicle or by specified class of public service vehicles:--
(a) conditionally or unconditionally prohibit the use of any specified place or of any place of a specified nature of class, or
(b) require that within the limits of any Municipal Corporation, Municipality, Notified Area or Cantonment, or within such other limits as may be specified in the notification, certain specified stands or halting places only shall be so used;
Provided that no place privately owned shall be so notified except with the previous consent in writing of the owner thereof.
(2) Where a place has been notified or has been demarcated by traffic, signs or both, as being a stand or halting place for the purpose of this rule, then notwithstanding that the land is in possession of any person, the place shall subject to the provisions of these rules, be deemed to be a public place within the meaning of the Act and the District Magistrate may enter into an agreement with, or grant a licence to any person or local body or State Transport Undertaking for the provision or maintenance of such place including the provision or maintenance of the buildings, or works necessary thereto, subject to the termination of the agreement or licence forthwith upon the breach, of any condition thereof and may otherwise make rules or give directions for the conduct of such place including rules or directions:--
(i) prescribing the fees to be paid by the owners of public service vehicles using the place and providing for the receipt and disposal of such fees:--
(ii) specifying the public service vehicles or the class of public service vehicles which shall use the place or which shall not use the place;
(iii) appointing a person to be the manager of the place and specifying the Dowers and duties of the manager;
(iv) requiring the owner of the land, or the local body or the States Transport Undertaking as the case may be, to erect such shelters, lavatories and latrines and to execute such other works as may be specified in the rules or in the direction and to maintain the same in a serviceable, clean and sanitary condition.
(v) requiring the owner of the land or the local body or the State Transport undertaking as the case may be, to arrange for the free supply of drinking water for passengers including intending passengers;
(vi) prohibiting the use of such place, by specified persons or by other than specified persons.
(3) Nothing in Sub-rule (2) shall require any person owning the land, which has been appointed as a stand or halting place, to undertake any work or incur any expenditure in connection therewith without his consent and, in the event of any such person declining to carry out such work or to incur such expenditure or failing to comply with any rule or direction made or given to him under this rule, the District Magistrate may prohibit the use of such a place for the purposes of this rule.'
3. Section 68 (2) (r) and (s) and Sections 76 and 91 have been the subject-matter of interpretation by the Supreme Court in a number of cases. In T. B. Ibrahim v. Regional Transport Authority, AIR 1953 SC 79 and Municipal Board, Pushkar v. State Transport Authority, Rajasthan, AIR 1965 SC 458 it was held that notified stands or halting places referred to in Section 68 (2) (r) and (s) meant a bus-stand i. e. the place where the buses stand for commencing their transport services or whore they stand after terminating their services. It was further held that Section 76 dealt with parking places for all vehicles and halting stations for public service vehicles and it did not cover a bus-stand dealt with in Section 68 (2) (r) and (s), In Municipal Board Pushkar's case, the Supreme Court was concerned with Rule 134 of the Rajasthan Motor Vehicles Rules which reads as follows: (at p. 463).
'A Regional Transport Authority by notification in the Rajasthan Gazette, or by the erection of traffic signs which are permitted for the purpose under Sub- Section (1) of Section 75 of the Act. or both, may, in respect of the taking up or selling down of passengers or both, by public service vehicles or by any specified class of public service vehicles.....requirethat within the limits of any municipality, or within such other limits as may be specified in the notification, certain specified stands or halting places only shall be so used.'
In construing the aforesaid rule, the Supreme Court held that the rule empowered the fixation or alteration of bus-stand under Section 68 (2) (r) and did not refer to parking places or halting stations or stands dealt with in Section 76 and Section 91 (2) (e). In T. B. Ibrahim's case, while referring to the expression 'duly notified stand' as used in Section 68 (2) (r), the Supreme Court observed that the expression is not defined in the Act 'hut it is reasonable to presume that a duly notified stand must be one which is notified by the Transport Authority and by none other.'
4. Rule 239 (1) of the M. P. Motor Vehicles Rules, which has been quoted above, is almost identical with Rule 134 of the Rajasthan Motor Vehicles Rules which was considered by the Supreme Court in Municipal Board, Pushkar's case, (AIR 1965 SC 458) except for this difference that the power under Rule 239 of our rules is conferred on the District Magistrate whereas the power under Rule 134 of the Rajasthan Rules is conferred on the Regional Transport Authority. This difference, however, cannot make any distinction as to their construction. As already pointed out, Rule 134 of the Rajasthan rules was held to be dealing with notified bus-stands and halting places under Section 68 (2) (r). We have, therefore, to hold that Rule 239 (1) also deals with notified bus-stands or halting places referred to in Section 68 (2) (r). Rule 239 does not relate to parking places and halting stations or stands referred to in Section 76 or Section 91 (2) (e). There is no power under Section 76 or under Section 91 (2) (e) to direct that no other parking place or stand except, that determined under Section 76 shall be used. Such a power exists only in respect of a notified bus-stand referred to in Section 68 (2) (r). Rule 239 empowers the District Magis-trate to enforce such a prohibition which makes it clear, apart from other indications, that the rule deals with notified bus-stands or halting places referred to in Section 68 (2) (r) and not with parking places and halting stations or stands referred to in Section 76 or Section 91 (2) (e).
5. Now that we have referred to the relevant statutory provisions and the decisions of the Supreme Court, we can take up the point urged by the learned counsel for the petitioner. The argument of the learned counsel is that asthe bus-stand has not been notified as a stand under Section 68 (2) (r) and Rule 239 (1), the District Magistrate had no jurisdiction to fix the fee under Rule 239 (2). In our opinion, this contention must be accepted. The notification on which reliance is placed by the respondent is Annexure B/I. This was issued by the District Magistrate under Section 76 declaring the place as a motor-stand. As already seen, Section 76 relates only to parking places or stands in the nature of parking places. The District Magistrate could not under Section 76 declare any place as a bus-stand under Section 68 (2) (r) or under Rule 239 (1). The notification issued by the District Magistrate therefore, cannot be construed as a notification of a bus-stand. It can only be construed as notification of a parking place under Section 76. There is yet another reason why the notification cannot be construed to be a notification declaring a bus-stand. We have already stated that in T. B. Ibrahim's case (AIR 1953 SC 79) it was held that the expression 'duly notified stand' in Section 68 (2) (r) meant a stand notified as such by the Transport Authority and none else. Further, in Bhopal Municipality v. S. S. M. T. Co-op. Society. AIR 1973 SC 2420. it was observed that there was no power in the State Government to delegate the power under Section 68 (2) (r) and (s) to the District Magistrate. A reading of these two cases goes to show that in a rule made by the State Government under Section 68 (2) (r) and (s) the power to notify any place as a bus-stand can be conferred only on a Transport Authority as was done in T. B. Ibrahim's case or in Municipal Board Pushkar's case and that the power cannot be conferred on the District Magistrate. Thus, Rule 239 (1) which empowers the District Magistrate to notify stands and halting places and to prohibit the use of any other place as a stand or halting place for public service vehicles goes beyond the rule making power. Rule 239 (2) on its own terms can apply only when a stand or halting place has been notified under Rule 239 (1). As the notification relating to the Manendragarh motor-stand cannot be construed to be a notification under Section 68 (2) (r) or Rule 239 (1), it has to be held that the District Magistrate had no jurisdiction to act under Rule 239 (2). It is under this provision that the District Magistrate issued theimpugned notification fixing fees pay-able in respect of buses halting in he bus-stand Manendragarh. The notification, therefore, cannot be upheld.
6. Before parting with the case, we would like to draw the attention of the Government to consider the question of amending Rule 239. We may in this connection suggest that instead of vesting the power in the District Magistrate under the rule, the power should be vested in the Regional Transport Authority. We may also suggest that instead of authorising the District Magistrate or any other authority to make rules prescribing the fee to be paid for the use of the bus-stand, the State Government should itself fix the fees in exercise of its power under Section (58 (2) (s).
7. The petition is allowed. The impugned notification is quashed. There shall be no order as to costs. The security amount be refunded to the petitioner.