- (1.)In this petition the petitioners have challenged enhancement of fees for keeping the vehicle within the limits of Nagar Panchayat, Mungaoli, district Guna. The tax is levied upon the buses carrying on the passengers, trucks carrying on the goods and tractors and trolleies.
(2.)Counsel for the petitioners submitted that the fee cannot be enhanced unless the bye-laws framed under section 357 of Madhya Pradesh Municipalities Act (hereinafter referred to as the 'Act') are amended. Learned counsel submitted that section 358 of the Act provides for framing of bye-laws. The bye-laws have been framed and have been published in Madhya Pradesh Gazette dated 12th January, 1980. The bye-laws are known as "Mungaoli Municipality Temporary Occupation of Streets and Public Places, Bye-laws, 1980 (hereinafter referred to as the 'Bye-laws'), Rule 4 of the bye-laws provides that no person shall use or occupy any public street or place or immoveable property vested in or under the control of the Council for the purpose of depositing building material or erecting, scaffolding thereon of selling or exposing for sales any goods or halting any cart, animal or vehicle or for any other like purpose without obtaining the permission of the Chief Municipal Officer ro any officer authorised by the council in this respect on payment of fees prescribed under the provisions of bye-laws (6), (7) and (8). Bye-laws no (6) provides that motor, truck, buses and tractors which are allowed to remain on stand so as to cause no obstruction in any public street or detained for a longer period than the scheduled one necessary for loading and unloading the goods or for taking up and getting down the passengers shall be subject to these bye-laws and permission shall be granted to them on payment of fees at the rate of Re.1.00 per day or Rs.30.00 per month.
(3.)Learned counsel for the petitioners submitted that unless the bye-laws are amended, the respondents have no right to recover fee in excess of fees fixed by the bye-laws. Learned counsel has, therefore, prayed that the notification of Nagar Panchayat, Mungaoli, Annexure P-1 deserves to be quashed, as Nagar Panchayat Mungaoli has no jurisdiction to enhance the rate of fee by passing a resolution. Learned counsel submitted that once the bye-laws are made, they can be amended under the provisions of section 21 of M.P. General Clauses Act. Section 21 of the M.P. General Clauses Act is reproduced below :-
"21. Power to make, to include, power to add, to amend, vary or rescind orders, etc.- Where, by any Madhya Pradesh Act, a Power to issue notification, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanctions and conditions, if any, to add to, amend, vary or rescind any notifications, orders, rules or bye-laws, so issued."
Learned counsel, therefore, submitted that the power to amend, which is included in power to make the order, is exercisable in the like manner and subject to the like sanctions and conditions as govern the making of the original order. Learned counsel submitted that unless the bye-laws are amended, enhancement of fee in excess of fee fixed by the bye-laws is contrary to law and no such fee can be recovered. Any taxation contrary to law cannot be recovered as envisaged under Article 265 of the Constitution of India.