Amarendra Nath Varma, J. - (1.) THIS group of petitions is directed against the levy of tahbazari by the respondent Municipal Board of Ujhani, district Bhudan on the operators of buses, trucks, tempos, etc. for stopping at a public place or a public road or the roadside patri within the limits of the said municipality for the purpose of doing the business of picking up or setting down passengers or loading or unloading of goods under the bye -laws framed by the Municipal Board on 1 -4 -1986 (hereinafter referred to as the 'impugned bye -laws'). As the issues raised are identical the petitions are being disposed of by a common judgment. These are the essential facts. The petitioners are operators of buses and claim to hold permits for various routes in the course of which they pass through the limits of the respondent Municipal Board. The case set up by the petitioners is very simple. As operators they simply pass and repass through the limits of the municipality without stopping and occupying any land or street vesting in the respondent Board. The allegation is on account of corridor restrictions they cannot halt within the Board's limits. The others allege that no doubt they stop to pick up or set down passengers but they do so only on the public road or roadside patri which vests in the Government and not in the Municipal Board. They further assert that they do not enter the town nor occupy or use any public place or street vesting in the respondent Board. Consequently the latter cannot levy and collect any tahbazari from them for such use.
(2.) THE Municipal Board emphatically denies the allegations made in the petitions and asserts that the petitioners do stop, use and occupy and do business over the bus adda (parking place) maintained by the Board. It is only when the petitioners use and occupy public land or street vesting in it and do business thereon that the Board charges tahbazari. Such a levy, it is contended, is perfectly valid and permissible under the U.P. Municipalities Act and impugned bye -laws. The clear stand taken by the Board is that fee is chargeable only if the operators stop and use public land or public road or roadside patri for the purpose of their business, namely, picking passengers or setting them down or loading or unloading goods carried by them. Shri A.K. Sharma, learned counsel for the Municipal Board was very can did about it and submitted that the respondent Municipal Board is not, and indeed cannot charge any fee from the operators merely because they happen to be passing or passing through a public road. He further submitted that it is neither realising nor does it claim to realise tahbazari for use and occupation of any public read not vesting in, or the management of which may have been entrusted to the Municipal Board. Having set out the pleas and stand taken by the parties, we take up the issue regarding the validity of the bye -laws first. The bye -laws, as mentioned above, provide for levy of tahbazari for the use and occupation of public road or public land or roadside patri for the purpose of or in connection with the business of these operators of setting down passengers or loading or unloading goods. Such a levy is clearly referable to Section 293 of the U.P. Municipalities Act which provides: 293. Fees for use otherwise than under a lease of municipal property - - (1) The board may charge fees to be fixed by bye -law or by public auction or by agreement, for the 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 or 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 of licence or permission or may be recovered in the manner provided by Chapter VI.
(3.) IN the present case, the fee (Tahbazari) has been fixed under the impugned bye -laws. Section 298 of the Act vests bye -laws making on the Board. In particular, Section 298(b) applies which reads: permitting, prohibiting or regulating the use or occupation of any or all public streets or places by itinerant vendors or by any person for the sale of articles, or for the exercise of any calling or for the setting up any booth or stall, and providing for the levy of fees for such use or occupation.;