A. N. Varma, J. - (1.) BY means of this petition the petitioners have challenged the validity of a Notification dated 9-6-1976 issued by the Town Area Committee, Alapur, District Budaun imposing Tahbazari fee on various vehicles which were passing or re-passing through the streets within the limits of the Town Area.
(2.) THE controversy raised in this petition, in our opinion, stands concluded by series of decisions of this Court in which an identical issue came up for consideration and it was answered against the Town Area. The Bye-Laws have been issued under section 298 E (b) as well as Section 299 of the U. P. Municipalities Act read with Section 14 (2) (b) of the U. P. Town Area Act. Section 298 (2) provides :- " In particular, and without prejudice to the generality of the power conferred by sub-section (1), the board of a municipality, wherever situated, may in the exercise of the said power, make any bye law described in List I below, and the board of a municipality, wholly, or in part, situated in a hilly tract may further make, in the exercise of the said power, any bye-law described in List II below. " Clause (b) of List E of Section 298 provides :- " 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 of any booth or stall, and providing for the levy of fees for such use or occupation. " This provision came up for consideration in regard to a similar challenge made in writ petition No. 751 of 1969 decided on 14-5-1969, reported in 1970 ALJ 249 and it was observed at page 253 as follows :- " Section 298-E provides for the making of bye-laws for inter alia permitting, prohibiting or regulating the use or occupation of any or all public streets on 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 of any booth or stall, and providing for the levy of fees for such use or occupation, vide Clause (b). This is co-related to section 220 and provides the ambit of the operation of section 293. In view of these related provisions. Section 293 cannot be extended to authorise the Board to charge fee merely for the user of a public street by way of passing and repassing. In Sardar Jagdish Singh v. State of U. P., I held that the Town Area Committee had no authority to levy Tahebazari tax on vehicles merely for passing and repassing over public streets within Town Area limits. Under section 14 (b) of the Town Area Act a tax in the nature of Tahebazari could be levied. It was held that Tahebazari not having been defined in the Town Areas Act or the Municipalities Act, was a compendious term used for the kinds of taxes which could be levied under section 298-E (b) of the Municipalities Act. As we have seen above, Clause (b) of list- E of Section 298 is in terms similar to section 293. In the case of Sardar Jagdish Singh it was held that section 298-E (b does not authorise the levy of toll-stallage. According to the decision of the Supreme Court in Hardwar Municipality v. Raghubir Singh, there are many kinds of tolls and all must be token to be comprehended by the entry relating to tolls, It was held that the term toll-stallage meant the levy of tax or fee for user or occupation of public streets for purposes of trade or calling or for putting stalls and booths. In Jagdish Singh's case I held that on no conceivable construction of the term toll-stallage would the use of public places or roads for mere passing and repassing, be within its ambit "
(3.) WE are in entire agreement with the law stated in the aforesaid decision. In our opinion, the Tahebazari fee which is contemplated under section 298-E (b) is leviable only where the public street is used for the purposes mentioned therein, namely, by itinerant vendors or by any person for the sale of articles, or for the exercise of any calling or for the setting up of any both or stall, etc. The Town Area cannot levy this fee on the vehicles which are merely passing or repassing within its local limits over the streets even if the same are maintained by the Town Area. Such a levy was expressly struck down by this Court in the decision cited above. It may also be mentioned here that the decision in Sardar Jagdish Singh v. State of U. P., referred in the passage cited above was also affirmed in Special Appeal which was dismissed by this Court in October, 1976 (vide a judgment in Special Appeal No. 718 of 1967). Learned Counsel, however, submitted that the streets through which the petitioners are taking their vehicles are maintained by the Town Area and the Town Area was fully competent to impose the impugned fee on the ground that it was rendering services therefor.;