A.N.Varma, J. - (1.) AFFIDAVITS having been exchanged between the parties, the petition is being disposed of finally with the consent of learned counsel for the parties.
(2.) THE petitioners who hold stage carriage permits have questioned the power of the respondent Town Areas to realize Tahbazari from them. THEy state that their stage carriage permits related to Babarpur Sahail via Dibiapur, Dinwamau. THE portion from Babarpur to Dibiapur is a notified route. Accordingly the petitioners are barred from picking up or setting down passengers between Babarpur and Dibiapur. It is stated that in the course of their journey the petitioner's vehicles pass through the town Atsur which falls between Babarpur and Dibiapur. But in view of the corridor restrictions they cannot pick up or set down passengers at Atsur. THEir terminus is at Babarpur and the allegation is that Babarpur has not constructed any parking place within that Town Area. So far as Atsur is concerned the petitioner's case is that they merely pass through that Town Area and, in any case, the Atsur Town Area not having provided any parking place nor do they use any public land belonging to the Town Area of Atsur, the said Town Area could not levy and collect Tahbazari from the petitioners. Like-wise, the Babarpur Town Area has imposed Tahbazari with effect from March 15, 1989 and have started realizing Rs. 5/- per vehicle from the petitioners even though it has not provided any parking place. On these allegations, the petitioners contend that inasmuch as the petitioners' vehicles are merely passing and re-passing on the main road or the roadside patri belonging to the State Goverement or stop to pick up and set down passengers, the respondent Town Areas have no authority to realize Tahbazari from them. The allegations made in the petition have been controverted in the counter affidavit which has been filed on behalf of the Babarpur Town Area (the first respondent). The stand taken by the Babarpur Town Area in its counter affidavit is that it is levying and collecting Tahbazari from the petitioners under a bye-law framed by it under Section 14 (2) (b) of the Town Area Act, 1914. Tahbazari has been imposed for the occupation of public land or public road within the limits of Town Area Such an impost is specifically permissible under clause (b) of sub-section (2) of Section 14. It is asserted in the counter affidavit that the impost is being levied and collected from Stage Carriages only when they occupy public road or public land for parking facilities for picking up and setting down passengers, selling tickets to them, i.e., parking and picking. It is further asserted that the petitioners occupy public road and public land for these purposes. They even stop within the Town Area overnight and recommence their business according to the time table. It is only when the Stage Carriages occupy public road or public land within the limits of the Town Area for the purposes of picking, parking and halting overnight that Tahbazari is realized from them. The further case of this Town Area is that it has to make arrangements for lighting at public roads and public land within its limit where buses are parked for the purposes mentioned above. It also provides water facility free of charge at the bus stand known as 'private bus stand'. The Town Area has also to keep the bus stand neat and clean and has to spend considerable amounts for the same. In addition, it has constructed a Pulliya (culvert) in the year 1986 for the facility of the vehicles entering into the Town Area. The private bus stand adjoins the Pulliya and is situate on a public land. The petitioners are also using the road side patri away from the metalled part of the public road for the aforesaid purposes. All brick work, kharanja, etc. away from the metalled part of the road where the petitioners are parking their vehicles, are maintained by the Town Area. The impost is hence clearly valid.
(3.) RELYING on various decisions, Sri L. P. Naithani, learned counsel for the petitioners, submitted that the Town Areas have no power to levy Tahbazari on the vehicles of the petitioners because they have a right to pass and re-pass and even stop to pick up and set down passengers on the public road which belongs to the State Government. Such a right it is urged has been recognized by the Supreme Court as well as this Court in numerous decisions. In order to appreciate the submissions advavced by the learned counsel for the parties, it will be convenient to have a look at the relevant provisions on which the respondent Town Area of Babarpur is relying in support of its claim to levy the impost. Section 14 (2) (b) of the Town Area Act, 1914, provides ; "The Committee may also impose the following taxes and fee : (a) ........................ (b) Tahbazari leviable for the use of public land or public roads." ;