A.N. Varma, J. - (1.) THIS petition is directly covered by a decision of this Court in writ petition No. 718 of 1989, Smt. Kusum and others v. Town Area Babarpur and another : 1990 (16) A.L.R. 787, decided on 7 -5 -1990. Before we consider the submission made by learned counsel for the parties on merits, we may mention that by a separate order passed by this Court on 24th May, 1990, the petitioners had been directed to delete the names of the first and fourth respondents from the array of the parties as they were both located within the jurisdiction of the Lucknow Bench of this Court and the cause of action in respect thereof had also arisen within the jurisdiction of the said Bench. The petitioners have in compliance of this Court's order, deleted the names of the first and fourth respondents. This petition thus stands dismissed as against the said respondents. The controversy survives only with respect to the remaining respondents 2, 3, 5 and 6 which are either Town Areas or Municipal Boards of various districts. The petitioners came to this Court with the assertion that in the course of its business the buses of U.P. State Road Transport Corporation pass through the local limits of the respondent Town Areas/Municipal Boards. They also stop in the course of its business within the local limits of these authorities for the purpose of setting down or picking up passengers, but they do so on the road or road side belonging to the State Government and not to these local bodies. The local bodies have hence no authority to levy and collect teh -bazari from the petitioners merely because they happen to pass through the roads running through the local limits of these respondents. The petitioners have on this ground challenged the by -laws framed by these local bodies for the levy of teh -bazari for the use and occupation of public places or streets vesting or entrusted to the managements of the said bodies.
(2.) THE respondents have filed counter affidavits in which they assert that the bye -laws under which they are levying and collecting teh -bazari from the petitioners are perfectly valid as they authorise levy of a fee called teh -bazari on these transporters for the use and occupation of the bus stands and other public places belonging to or entrusted to the managements of the local bodies for the purpose of doing business thereon, namely, setting down and picking up passengers, etc. The question whether these local bodies can levy teh -bazari in respect of such use and occupation of the land vesting in them, came up for consideration before a Bench of this Court in the case of Smt. Kusum (supra). On an exhaustive consideration of the relevant provisions and the authorities on the subject, this Court upheld the power of the Town Area to levy and collect tahe bazari in respect of public roads or public streets or any other public place belonging to the local bodies or entrusted to its managements if the transporters use these places for doing business. The Bench also examined the true nature of the fee called tahe bazari and came to the conclusion that in substance the levy is nothing but a change for the use and occupation of a property belonging to the local bodies. The same view was expressed in the case of Om Prakash v. Municipal Board, 1987 (13) A.L.R. 732. It was said that the Municipal Board can levy a fee on the operators of the buses for parking their buses on the road belonging to the former like any other owner. Again in Municipal Council Bhopal v. Sindhi Sahiti Multi Purpose Transport Co -operative Society Ltd. & another : A.I.R. 1973 S.C. 2420, the Supreme Court held that if the municipality provides for a bus -stand without compelling anybody to use it, the fee can be charged on the bus operators using it. It was also observed that nobody has a fundamental right to use a land belonging to another without the persons paying for it if necessary.
(3.) THE power of the respondent local bodies, therefore, to levy teh -bazari on this transporters including the petitioners, for use and occupation of the land belonging to them or entrusted to their management cannot be disputed. In the counter affidavit, the respondents have categorically asserted that the buses of the petitioners do stop on the road side patri vesting in them for setting down and picking up passengers, regularly consequently the petitioners would be clearly covered by the dictum of this Court and of the Supreme Court in the cases cited above. The contention of the petitioners that they have a right to stop and set down passengers or pick them up within the limits of the local bodies on the road side patri vesting in these bodies without paying teh -bazari cannot be accepted.;