A.N. Varma, J. - (1.) In these petitions the petitioners are challenging the right of the Respondent Municipal Board to realise tahbazari from the petitioner-operators allegedly on the ground that they are occupying and using public land vested in or entrusted in the management of the Respondent Board. Their contention is that the Respondent Board has not framed any bye-laws which may authorise it to levy and collect tahbazari for such use as on 25-8-1982. When the stay matter came up for hearing, the learned single Judge of this Court directed the learned Counsel for the Respondent Board to obtain necessary instructions particularly as to whether any bye-law has been framed to enable the Respondent Municipal Board to charge tahbazari. Despite this order the alleged bye-laws were not produced before the Court. Whereupon the learned single Judge of this Court passed an order making the interim order dated 8-4-1982 absolute. Under the interim orders the Respondent Municipal Board was restrained from realising any parking fee from the petitioners for plying their buses through the limits of the Respondent Board.
(2.) To-day again the learned Counsel for the Respondent Board has not been able to produce the alleged bye-law. Under the circumstances we are entitled to assume that there are no bye-laws authorising levy of impugned tahbazari. Section 293 of the U. P. Municipalities Act read with Section 298-E. clause (2)-II (b) authorises imposition of levy tahbazari. Section 293 provides as under:- "293. Fees for use, otherwise than under a lease, of municipal property.-(1) The board may charge fees to be fixed by bye-laws or by public auction or by agreement, for 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, licence or permission or may be recovered in the manner provided by Chapter VI." Section 298 (2)-H (b) : "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'. If these two provisions are read together it is clear that the Municipal Board can levy and collect tahbazari or a fee for use or occupation of public street or public place vested in or entrusted to the management of the Board only if there are some bye-laws or agreement to that effect. In the present case from a perusal of the counter-affidavit it seems that the stand taken by the Board is that the levy is supported by some bye-laws. As mentioned above, none has been produced. Under the circumstances we have no option but to dispose of the petitions with a direction that the Respondent Municipal Board shall not levy and collect from the petitioner operators tahbazari for use and occupation of a public street or public place vested in or entrusted in the management of the Municipal Board unless under the authority of express bye-laws, to that effect or agreement. As noticed above, the Respondent Board is claiming the right to realise tahbazari only on the basis some bye-laws.
(3.) We accordingly dispose of these petitions with a direction that the Respondent Municipal Board shall not levy and realise from the operators of the petitioners tahbazari except under the express authority of bye-laws framed in that behalf or agreement reached for that purpose between the Board and the persons intending to use an immovable property such as public street or place. No order as to costs. Petition allowed.;