Pradyot Kumar Banerjee, C.J.
1. In this rule the petitioner challenges the levy on the buses of the petitioner plying between Makrana to Ajmer, via-Parbatsar and in between the Municipality has levelled fees for entry into the bus stand constructed by the Municipalities.
2. I have heard the argument of both the sides. The petitioner does not say that he is not to pay anything if he uses a property, may be a bus stand constructed by the Municipality. The case of the petitioner is that even if he does not use the bus stand the municipalities are charging their fees and levy of the buses for every trip and in some cases in a lump sum for a month. On these facts primarily the parties came to trial.
3. On behalf of the petitioners, private owners, Mr. B.L. Maheshwary, followed by Mr J.G. Chhangani, contended inter alia that they had paid tax under the Rajasthan Motor Vehicles Taxation Act, 1951 and under Section 21 of the said Act, notwithstanding anything to the contrary in any law for the time being in force, no other tax is leviable. Once such tax is paid, it is argued, the petitioners can ply there buses through out Rajasthan without paying anything as a levy for the use of the roads and bus stands of the Municipality.
4. Mr. Calle, followed by Mr. Singhvi, on behalf of the respondents, however, contended that as the petitioners are using the bus stand constructed by the respondents, they are to pay fees as leviable. In fact they are in nature of fee and in their affidavit the respondents have stated that what amenities are being provided for the bus owner or passengers in the bus, when they stop at the bus stand. It is argued that in that view of matter the respondents are within the rights to realise the licence fee under the Rajasthan Municipalities Act, in particular under Section 104, Sub-section (2). It has further been argued that under Section 138 of the Rajasthan Municipalities Act, this fee is leviable.
5. Before we deal with this question, it is better to refer to these provisions which are reproduced below:
104. Obligatory Btaxes - (1) Every oard shall levy, at such rate and from such date as the State Government may in each case direct by notification in the official Gazette and in such manner as is laid down in this Act and as may be provided in the rules made by the State Government in this behalf, the following taxes, namely:
2. an octroi on goods and animals brought within the limits of the Municipality for consumption, use or sale therein, and
(b) the tax under Clause (2) shall not be on a motor vehicle as defined in the Motor Vehicles Act, 1939 (Central Act IV of 1939) or any other mechanically propelled Vehicle, and
Section 138. Board may charge fee for certain licences,-
(1) When any licence is granted by the Board under this Act or when permission is given by it for making any temporary erection or for putting up any projection, or for the temporary occupation of any public street or other land vested in the Board, the Board may charge a fee for such licence or permission.
(2) The Board may charge a higher fee by way of penalty for an errection or projection, or for the use or occupation of any public street or other land vestad in the Board by any person without its permission or licence. Such fee shall be leviable irrespective of any other penalty or liable to which the person liable to pay the same may be subject under any other provision of this act or any other law for the time being in force. The rates of such higher fees shall be determined by rules.
6. Section 21 of the Rajasthan Motor Vehicles Taxation Act makes it clear that notwithstanding anything to the contrary in any law for the time being in force in any part of the State of Rajasthan, it shall not be lawful for any authority to levy any tax or toll in the respect of any motor vehicle.
7. Section 104 of the Act in particular provides that it is possible to levy octroi on goods and animals within the limits of the Municipality for consumption, use or sale therein. But proviso (b) inter alia provides that the tax under Clause (2) shall not be on a motor vehicle as defined in the Motor Vehicles Act, 1959, or any other mechanically propelled vehicles. It is also provided in Section 138 that if any person uses any property they have to pay some licence fee. But in my opinion, reading Section 21 of the Rajasthan Motor Vehicles Taxation Act of 1951 and Rajasthan Municipal Act, in particular 104 and Section 138, it is not possible to hold that any public stage carriage permit holder, plying their buses between two points and there by passing through three or four Municipalities, they are to pay taxes for the use of Municipal road. In |my opinion that is not correct looking to the provisions of Municipalities Act vis-a-vis Section 21 of the Motor Vehicles Taxation Act of 1951.
8. It is argued vehmently that the petitioners are using the bus stand constructed by the Municipality and in support of that argument references were made to the Supreme Court decision in Bhopal Municipality v. S.S.M.T. Co-op. Society : 1SCR274 . In the said judgment the Supreme Court held that the Municipalities are within the right to ask for payment of any fee for the use and occupation of the Municipal land. In the present case, at least in two cases, such contract was there. The petitioners now, however contends that they are not using the bus stands for their buses, owned by the Municipality and therefore, they are not liable to pay any thing or the entry and exit of the stage carriages into and from the Municipal area. It they do not use the bus stand and which it is stated, they do not use, by the petitioner, they are not liable to pay the tax or any fee. But in case they do use it, it is the right of the Municipality to refuse to allow them to use the bus stand unless they come to an agreement with the Municipality for payment of fee which may be agreed upon between the parties.
9. With this observation, I make the rule absolute and restrain the respondents from realising any fee for the use of the public roads maintained and owned by the Municipalities but not the bus stands which are constructed and maintained by the Municipality for the convenience of the bus passengers and the bus owners.
10. The rule is, therefore, made absolute to the extent indicated above. There will be no order as to costs.
11. If they have used the bus stand in the mean time, the respondent-Municipality will be entitled to realise their fee in accordance with law.