1. The appellant, the United Motors (Coimbatore), Ltd., was the plaintiff in O.S. No. 37 of 1937, in the Court of the Subordinate Judge of Palghat. The suit was for the recovery of Rs. 10,000 as damages for wrongful attachment of a bus and was brought in these circumstances. The appellant Company owned a number of buses, which plied between Palghat and Coimbatore and back again. The Company had a garage in Palghat and, it would appear, waiting rooms and other conveniences for passengers adjoining the garage. Up to the latter part of 1936, the buses started from the garage where passengers got on to them and returned to the garage where the passengers alighted. This was the position until the end of 1936. Under Rule 27(D) of the Motor Vehicles Rules the Commissioner of Police in the-City of Madras and the District Superintendent of Police, elsewhere may fix starting places and termini between which motor buses shall be permitted to ply for hire within their respective jurisdictions. The rule further provides that when such places have been fixed every motor bus shall start on its forward and return journeys only from such places and that the departure of motor buses from the places shall be regulated in accordance with the directions of the police officers at such places. Correspondence between the District Superintendent of Police of Malabar and the Municipal Council, Palghat, shows that as early as 1930, the District Superintendent of Police, Malabar, had formed the opinion that owing to the increase of traffic in Palghat a starting place and starting times should be fixed. The correspondence also shows that the police authorities were of opinion that the fixing of starting times and of a particular place from which the buses were required to start necessitated a common stand, and in his letter Ex. I, dated 12th April, 1930 the District Superintendent of Police suggested the vacant site to the north-east of the Palghat Railway station as a suitable place for the proposed stand. The Council agreed with the District Superintendent of Police, that the starting place and a stand were desirable. Under Section 270-B, of the Madras District Muncipalities Act, a Municipal Council may construct or provide public landing places, halting places and cart stands and may levy fees for the use of the same. In the explanation to Section 270-B, it is stated that 'a cart-stand shall, for the purposes of this Act, include a stand for carriages (including motor vehicles within the meaning of the Indian Motor Vehicles Act, 1914)'. By the end of 1936, the Municipality had acquired the necessary land and had the stand ready. It consisted of an enclosed space in which buses could stand and turn round and a roofed shed which had room for seven or eight buses and contained a waiting room for passengers and a latrine. On the 27th of October, 1936, the District Superintendent of Police, Malabar, under the provisions of the Motor Vehicles Rules 27-D, prescribed stopping and starting places and routes for motor buses plying to and from Palghat. All buses entering and leaving Palghat were required to proceed to and start from the Municipal bus stand with certain exceptions. The Temmalapuram Bus Transport Company Limited, for instance, was allowed to start from and arrive at the Temmalapuram Bus Transport private bus stand provided that the company paid to the Municipality such fees as might be arranged. The appellant bus company sought the same privilege as was accorded to the Temmalapuram. Bus Transport Company Limited, and in a letter, dated 29th September, 1936 [Ex. XXIX (c)] the District Superintendent of Police informed the appellant that he was prepared to allow the company's buses to start from and arrive at a private stand so long as that stand was on the site of the present U.M.S. Office provided that the Municipal authorities were agreeable. The Municipal authorities however, were not agreeable and on the 22nd December, 1936, refused the request of the appellant company for exemption from the obligation to use the municipal bus stand on the ground ,that the starting place for the buses had been fixed by the District Superintendent of Police and could not be altered by the Council. Whether the reason given for the refusal by the Municipal Council was good or bad is not material. On the 2nd December, 1936, the council prescribed a fee of two annas per day for use of the municipal stand by each bus to take effect from the 1st January, 1937.
2. The position, therefore, was that the appellant had to start from the stand at the specified time and he was also obliged tinder the rules to take up there any passengers who wished to travel in any one of his buses. From the 6th January to the 10th March, 1937, the appellant's buses, apparently some seventeen in number, used the municipal stand but under protest and they did not pay the prescribed fee of two annas per diem per bus. Payment was demanded on many occasions and in the end, one of the appellant's buses was seized under the provisions of Section 270-D of the District Municipalities Act and sold. Hence the suit out of which this appeal arises.
3. The issues substantially for decision in the suit were two-(1) whether the plaintiff used the municipal stand within the meaning of the Act, and (2) whether the distraint of the bus was in accordance with law. The learned Subordinate Judge found that the appellant had used the stand within the meaning of the Act and was liable to pay the fees fixed by the Municipality for its use. On the other issue he found that the distraint was not in accordance with law but gave no damages on the ground that, as the plaintiff was bound to pay the levy made by the defendant, he could not claim damages for the consequences of his own act in not obeying the law.
4. The first question is whether the buses of the appellant company used the municipal stand within the meaning of Section 270-B of the District Municipalities Act so as to render the company liable to pay the fees fixed. It is unnecessary, and indeed undesirable, to attempt any general definition of what is meant by 'use of a bus stand or park' such as is in question in this case. What is to be decided is whether on the facts found in this case the stand was used by the appellant's buses so as to render the appellant liable to pay the fees. The argument advanced by Mr. Rajah Aiyar for the appellant is that in order to justify a levy of the fees there must be a use of the cart-stand as a cart-stand and that a stopping or starting place is a different thing from a cart-stand. He has also argued that this is a taxing statute which must be strictly construed in favour of the subject and that consequently the user must be a voluntary and not an involuntary user. Now the facts as set out in paragraph 3 (c) of the plaint are that because of the police directions the plaintiff's buses went to the open space ('viz., the municipal stand) only to give the timings to the police constable. The plaintiff, it is averred, 'never picked up nor dropped any passengers in the open space nor even stopped the engine; the conductor would get down, run up north to the constable seated in the shed, give him the timing and run back; and this was done in a few seconds. Plaintiff's buses never entered into the bus stand nor otherwise used it'. Mr. Rajah Aiyar has had to concede that scarcely one of those allegations is true. The plaint seems to set out what the appellant company would like to have been the facts on which they could have based a test case, and it may well be that in the first instance they directed their drivers to act in the manner set out in the plaint. It was however, impossible for the drivers to refuse to pick up or drop passengers since the rules required that they should do so, and it is now admitted that in fact they did pick up and drop passengers. It was also impossible for the plaintiff's buses not to enter the bus stand. The stand clearly includes the whole area enclosed and not merely the shed and the buses had to enter this area; and it is now conceded that they did so both in order to report the time of their starting to the police constable in charge and in order that they might pick up any passengers who were entitled to travel in the bus, if there was room in it. Mr. Rajah Aiyar's argument, therefore, has not to be tested against the facts as set out in the plaint but against the facts that the bus did enter the stand or motor bus park, turned round there, stood there and took up passengers there. He argues, therefore, in effect that the appellant did not, even on these facts, use the stand because he did not intend to use it as a stand. He went there, it is said, because he had to report to, the police man in charge who stood inside the park and was there compelled to pick up passengers. In support of the argument several cases have been cited but only one is at all in point.
5. Mr. Rajah Aiyar, relied on certain observations of Lord Hobhouse in delivering a dissenting judgment in the well-known case of Powell v. Kempton Park Race Course Company (1899) A.C. 143 Lord Hobhouse, said that 'the phrase 'use for a purpose', necessarily implies a deliberate use, a designed choice of the thing used for the purpose in hand'. Mr. Rajah Aiyar argues that the use of the municipal stand by the appellant was not a deliberate use, a designed choice by the company of the stand but an involuntary use, a use made under compulsion. What Lord Hobhouse was considering however was not quite the question which is in issue now. He was considering what kind of use will make a place a place used for the purpose of betting, and he concluded that the statute struck at places the use of which for the purpose of betting was deliberate, designed and repeated. The question was not whether a certain course of conduct constituted use of a place used for betting. In the present case it is not in dispute that the Municipal stand is a cart stand within the meaning of Section 270-B of the Municipalities Act. It has not to be considered whether the use of the stand by the appellant's buses makes it a cart stand within the meaning of the Act, but whether the appellant has used a cart stand which is a cart stand within the meaning of the Act as such, The argument advanced for the appellant seems to us to amount to no more than this-that the appellant did not use the municipal stand as a cart stand because he would rather not have used it at all.
6. It is quite an untenable proposition that a person cannot be said to use a cart-stand or car park because he is compelled to use a certain place for that purpose and not allowed to park his cart or car where he pleases. The whole object of the powers of this kind conferred on local bodies is that they should be able to secure that certain places and no others should be used for certain purposes. The appellant, of course, does not quite say that he does not use the stand Within the meaning of the section because, if he wants his buses to stand anywhere, he must go to this stand and not elsewhere. He says that in order to do what he is enjoined to do, viz., start from and return to a certain place, he has to go to and stand in a car park quite unnecessarily. This, however, is a point of view adopted to suit the argument and in our opinion, not the correct point of view at all. The transport of passengers by bus is subject to rules and the bus company can only carry passengers in conformity with the rules. A company for instance has to use certain routes, ply only between certain places and have on the road only a certain number of buses. Among these rules is the rule now in question that buses must start from and return to a certain place, at certain times, and there is a further rule that a bus must take up any passengers at these places, provided there is room, for those who wish to travel in the bus. Once that rule has been made and has to be conformed to, it is obviously convenient to the bus company that there should be a place in which buses can stand and maneuver. What the appellant is really objecting to is not the parking place but the rule which necessitates it. Moreover the parking place and shed with waiting rooms and other conveniences are not merely intended for the convenience of buses but also for the convenience of passengers; and if in order to pick up passengers a bus has to go to and stand in a certain place, it clearly uses that place for the purpose of its; business, viz., the transportation of passengers. The argument that Section 270-B is a taxing section and must be strictly construed is beside the point. There is no question of voluntary or involuntary use of the parking space. If the appellant wishes to ply his bus for hire he must conform to the rules. If he does not wish to conform to the rules he need not ply his buses for hire.
7. The learned Subordinate Judge referred to the decision of Burn, J. in In re M.S. Ponnuswami Aiyar : AIR1938Mad535 . In that case it was held that where buses went in order to pick up and put down passengers there, stopping no longer than was necessary for that purpose, they did stand there for the purpose of their own business and the shed was a cart shed within the meaning of Section 270-B. We can have no doubt that in the present case by standing in the municipal stand or bus park, however it be named, for the purpose of taking up and putting down passengers, the appellant used the stand within the meaning of Section 270-B and is so liable to pay the fee fixed by the Municipality for its use.
8. With regard to the question whether the seizure and sale of the appellant's bus was in accordance with law, the facts were these. The municipality had sold by auction or, in other words, had farmed the right to collect the fees fixed for the use of the stand, to a certain Migael. When the appellant company refused to pay the fees for the use of the cart stand, there was correspondence between the contractor and the Municipal Council, and in the end on the 2nd March, 1937, the Commissioner wrote to Mr. Migael, a letter Ex. XXXVI (a) which ended 'the contractor is directed to seize, detain, and immediately send to me any of the buses belonging to the United Motors Service which use the stand.' The actual seizure was made by the contractor's agent, a man named Mandody. The learned Subordinate Judge did not decide whether the power to order the seizure of the motor bus was in the Municipal Council or in the contractor; but on a construction of the Act he held that the person appointed to make the seizure could only be an officer of the Municipality and that Mandody was not such an officer. On this finding, namely, that the distraint was not in accordance with law, it is clear that the learned Subordinate Judge should have awarded some measure of damages to the appellant however small. In our opinion, however, his finding was not correct and the distraint made was in accordance with law.
9. Section 270-D (1) of the District Municipalities Act provides that:
If the fee leviable tinder Sub-section (1) of Section 270-B in respect of a vehicle or animal is not paid on demand, the person appointed to collect such fee may seize and detain such portion of the appurtenances or load of such vehicle or animal as will, in his opinion, suffice to defray the amount due; in the absence of any such, appurtenances or load or in the event of this value being insufficient to defray the amount due, he may seize and detain the vehicle or animal.
10. Sub-section 270-D (2) provides that all property seized under sub-section 270-D (1) shall be sent within twenty four hours to the executive authority and shall be dealt with thereafter by him. The learned Subordinate Judge in his judgment has set out what was Section 112 of the District Municipalities Act. This is in much the same terms as Section 2'70-D. But a point which the learned Subordinate Judge does not seem to have noted is that this section with other sections was omitted by Sen. I to the Madras Motor Vehicles Taxation Act (III of 1931). It is clear, however, that the phrase 'the person appointed to collect' is not used in a very technical sense. It must mean no more than the person who is put in charge of the cart or the bus stand, since only such a person could carry out the clear purpose of the provisions of the section, namely, the detention of a vehicle or animal or their appurtenances to defray the amount due. The only question therefore is whether Mandody was not the person appointed to collect or his authorised agent. Mr. Rajah Aiyar has referred to Karuppanna Pillai v. Haughtan : AIR1936Mad547 . We are at a loss to see how this decision helps the appellant's case. It is not directly in point, but so far as it has any relevance to the question now in issue the decision was by implication that it was for the person to whom a municipality had sold the right to collect certain fees and not the Chairman of the Municipality to take the necessary steps to collect these fees, whether by litigation or otherwise. But whether it was for the Municipality or for the contractor to appoint the person to collect the fees, there seems to us no doubt in this case that Mandody's seizure of the bus was in accordance with law. In his letter, dated 2nd March, 1937, Ex. XXXV, to the Sub-Inspector of Police, Palghat Town, the Commissioner refers to Mr. Migael as 'The Municipal Contractor appointed to collect the fee'; and in his letter of the same date to Mr. Migael it is stated that 'The contractor is directed to seize, detain, etc., any one of the buses belonging to the United. Motors Service which use the stand''. The learned Subordinate Judge was of opinion that even if the contractor could be regarded as the person appointed to collect the fees there was nothing to show that Mandodi was his authorised agent. In our opinion it would be more correct to say that there never has been any question but that Mandodi was the contractor's authorised agent. If authority from the Council was necessary the correspondence' shows that the contractor was the person appointed to collect and, the seizure by his authorised agent was legal. If on the other hand the Council was divested of all powers relating to the collection of the fees by virtue of the sale of the right to collect them, then the contractor could either collect them himself or appoint a person to do so. On this hypothesis also the seizure was in accordance with law. On the assumption that the Council had no power to direct the seizure, the fact that, wrongly or unnecessarily, they directed the person who had the power to make the seizure to make it will not render the seizure invalid. We have no doubt for these reasons that the distraint and sale of the bus was in accordance with law.
11. The appeal, therefore, fails and is dismissed with costs.
12. The defendant council has filed a memorandum of objections against the finding of the lower Court that the attachment was not in accordance with law, and against the order of the lower Court that the parties should bear their own costs. The first objection has been dealt with in the judgment on the appeal. With regard to the question of costs, the learned Subordinate Judge departed from the usual rule that costs should follow the event on the ground, in his own words, that 'Both sides appear to have acted with great indiscretion, the plaintiff in not paying the dues under protest and the defendant in not filing suits'. We do not agree that the defendants acted indiscreetly in recovering the dues in the manner provided by Section 270-D of the Act instead of by filing a suit. On the contrary it was clearly the duty of the defendant to utilise the cheap and expeditious method of recovery provided by the Act.
13. The objection is, therefore, allowed and the defendant Council will be given its costs of the suit and the Memorandum of Objections.