Pandit Ramprasad Purohit and others vs State of M.P. and others

S.K. Seth, J.—This intra-Court appeal arises out of a common order dated 15-1-2008, whereby four writ petitions were dismissed by the

learned Single Judge. The appellants had preferred W.P. No. 2463/2000, therefore, we may notice the relevant facts from the said writ petition for

the disposal of this appeal.

Appellants carry on business of public transport service and for that purpose, they hold several stage carriage permits for plying public service

vehicles. Details of those permits were set out in Annexure P/1 annexed with the writ petition. The said writ petition was filed challenging the

Resolution No. 10 dated 9-2-2000 passed by Nagar Panchayat, Khujner, District Rajgarth (Biaora) for imposition of bus-stand fee on the public

service vehicles and stage carriage coming and going from Nagar Panchayat, Khujner at the rate mentioned therein. Said imposition of fee was

made effective from 1-4-2000. They challenged the levy of bus-stand fee on the ground that there was no provision of levy of such fee under the

M. P. Municipalities Act, 1961 (hereinafter referred to as ""the Act"" for short) on the ground that the Nagar Panchayat, Khujner has no power or

authority to set up a bus-stand or charge any fee in respect thereof, therefore, the imposition of fee in terms of Resolution No. 10 dated 9-2-2000

is illegal and unauthorised.

A reply was filed by the Nagar Panchayat, Khujner and it was stated that Nagar Panchayat, Khujner under the provisions of the Act had power

to establish a bus-stand and in order to maintain the bus-stand by providing cleanliness, sheds for passengers, urinals, etc. Nagar Panchayat,

Khujner had validly imposed the said fee on the vehicles using the said bus-stand within the limits of Nagar Panchayat, Khujner. Thus, Nagar

Panchayat, Khujner justified the Resolution No. 10 dated 9-2-2000. Nagar Panchayat, Khujner had also taken a stand that the levy of such fee

was justifiable u/s 349 of the Act and had placed reliance on a decision rendered in W.P. No. 321/1996, Bus Operators Association, Tikamgarh

and others vs. State of M.P. and others.

Learned Single Judge after hearing the rival submissions has upheld the levy while dismissing the writ petitions. Learned Single Judge placed

reliance on a decision of Supreme Court in the matter of Municipal Board, Hapur etc. Vs. Jassa Singh and others, . Being aggrieved by the order

of learned Single Judge, as stated hereinabove, this writ appeal has been preferred.

We have heard Shri Chaphekar, learned senior counsel appearing for the appellants and Shri Mukati, learned counsel appearing for the

contesting respondents at length. Perused the record.

According to Shri Chaphekar, the controversy involved in the matter stands concluded by a decision of the Supreme Court in the matter of

Municipal Council, Bhopal Vs. Sindhi Sahiti Multipurpose Transport Co-op. Society Ltd. and Another, . In that case, their Lordships dealt with

the provisions of section 349(ii) and 358(7)(m) of the Act vis-a-vis sections 68 and 76 of the Motor Vehicles Act, 1940. While dealing with

section 349(ii) of the Act, it was observed as under:-

The section itself does not enable the Municipal Council to require that permission should be obtained for any purpose. It deals with levy of fees

for permissions which are required to be taken for various purposes under other sections of the Act. Section 187(3) which deals with permission

to erect, alter, add to or reconstruct buildings, and section 194 which deals with permission to the owners or occupiers of buildings in public street

to put up verandahs, balconies or rooms, to project from any upper storey thereof are instances in point. The permission mentioned in section 194

is one of the matters for which fees can be prescribed u/s 349(ii). Section 223(4) deals with allowing any temporary occupation or erection in any

public street on occasions of festivals and ceremonies, or allowing the occupation of, or temporary erection of structures for any other purpose.

Fees can be prescribed u/s 349(ii) in respect of these matters. The words above mentioned in that section deal with permission granted to

individuals to temporarily occupy municipal land. It would be doing violence to that section to hold that it deals with the provision of a bus-stand. In

the context of that section it is difficult to hold that when people are compelled to use a bus stand constructed by the Municipal Council it is a

permission for temporary occupation of land belonging to the Council."" (emphasis is added)

While dealing with section 358(7)(m), it was observed as under:-

As regards clause (m) of sub-section (7) ''""the regulating and prohibiting the stationing of carts........ on any ground under the control of the Council

or the using of such ground as halting place of vehicles"" cannot be said to relate to the provision of a Municipal bus stand. The power to regulate or

prohibit the use of municipal land as halting place of vehicles cannot be used to compel people to use such land as halting places. Such a power

must be specifically given.

It was further observed in Para 5 as under:

While section 358(7)(m) may enable the Municipal Council to regulate or prohibit the use of any ground under its control it does not enable it to

compel anybody to use it as halting place etc. much less to prescribe that no place other than the one provided by the Municipal Council shall be

used for setting down and taking up of passengers. That can be done only under a provision like the one contained in section 68(2) (r) and (s) of

the Motor Vehicles Act.

Their Lordships compared section 358 with section 270-B and 270-C of Madras Municipalities Act, 1920. These two sections authorise the

Municipal Council under the Madras Municipalities Act, 1920 to construct or provide and maintain public landing places, halting places and levy of

fee for the use of the same. Their Lordships observe that even though those sections dealt with use of landing places, halting places and cart-stands

but they did not provide for places for setting down or taking up of passengers. A word of caution was sounded by their Lordships to keep in

mind the distinction between halting places and places where passengers may be set down and taken up. It was held that power to compel persons

in-charge of motor buses to stop only at certain places for the purpose of taking up or setting down of passengers is a matter which relates to

motor traffic and there is a specific provision in section 68(2)(r) and (s) of the Motor Vehicles Act, 1940. Supreme Court relied on earlier decision

in the matter of T.B. Ibrahim Vs. Regional Transport Authority, Tanjore, and Municipal Board, Pushkar Vs. State Transport Authority, Rajasthan

and Others, to explain the meaning of expression ""duly notified stand"" or ""bus-stand"" and according to those earlier decisions, the bus-stand meant

a place where bus service commenced or terminated. u/s 68(2)(r) and (s) corresponds to section 96(xxi) and (xxii) of the Motor Vehicles Act,

1988 and section 76 of the old Act corresponds to section 117 of the Motor Vehicles Act, 1988. Thus, it is clear from the decision of the

Supreme Court that a Nagar Panchayat has no authority under the provisions of the Act to establish a bus-stand. That authority still vests with the

State Government or any other authority duly authorised on that behalf by the State Government to set up a bus-stand within the area of Nagar

Panchayat. Thus, so far as M. P. Municipalities Act, 1961 vis-a-vis Motor Vehicles Act, 1988 is concerned, the field is covered by the decision in

the matter of Municipal Council, Bhopal (supra). It may further be noted that Bye-laws made by Nagar Panchayat, Khurai under the provisions of

the Act were successfully challenged by Bus operators of Khurai before the Division Bench at Gwalior in Writ Appeal. Said decision is reported in

Mahesh Kumar Singhal and Others Vs. State of M.P. and Others, . In said judgment a mere reference was made to present impugned Order,

which is reported in Pandit Ramprasad Purohit and Others Vs. State of Madhya Pradesh and Others,

Learned Single Judge has placed reliance on the decision in Municipal Board, Hapur (supra) wherein provisions of the U. P. Municipalities Act

and Bye-laws farmed there-under was considered. A careful reading of the said judgment would reveal that the State Government had issued

directions to all municipal bodies to take steps to establish bus-stand within their municipal limits. In compliance of the said directions of the State

Government, the Municipalities had set up bus-stand at a considerable expenditure and the fee was levied for the use of bus-stand at varied rates

by the owners of motor vehicles.

So far as the Municipal Board, Hapur (supra) is concerned, earlier it was charging payment of fee @ Rs. 0.50 per day, but later on, it was

increased to Rs. 0.75 per day, which was challenged in the High Court. The High Court allowed the writ petition and quashed the demand. Thus,

the matter travelled to the Supreme Court. It was in this context, their Lordships had allowed the appeal. It is also pertinent to point out that there

were bye-laws in force and providing for levy of such fee. In the present case, no such bye-laws have been produced either before the learned

Single Judge or before this Court in writ appeal.

It was urged by Shri Mukati that section 358(7)(m) was amended and the local body was authorised to impose fees for regulating or stationing

of carts or the use of any ground as halting place for vehicles, hence the levy was justified. We are not impressed by the submissions. Section

358(7)(m) was amended by the Madhya Pradesh Municipalities (Amendment) Act, 1973. No date of commencement of amending Act was given,

therefore, as per provisions of section 3 of M. P. General Clauses Act, 1957, the aforesaid Amendment Act of 1973 came into on June 21, 1973

because on that date assent of the President to said Amendment Act was first published in the Official Gazette of the State [See 1973 M.P.L.T.

Part IX page 194]. We have pointed out this only to show that amendment had already come into force before the judgment was delivered in

Bhopal Municipalities case (supra) but it seems that change in law was not brought to the notice of their Lordships. However, that would not cut

any ice in view of the categorical finding that a Municipality under the Act had no authority or power to establish a ''Bus-stand''. Even after the

73rd Amendment in the Constitution of India, no amendment has been made in Act by the Legislature to confer power or invest the local body

under the Act to establish ''Bus-stand and levy fee for the use of bus stand''. Even assuming for the sake of argument amended section 358(7)(m)

does authorize imposition impugned fee, there is no material on record to show that the Nagar Panchayat, Khujner has in fact framed bye-laws u/s

358(7)(m) of the Act. Hence this contention fails.

Shri Mukati placing reliance on Bhopal Municipality case (supra) and submitted, persons using the property of the Nagar Panchayat, Khujner,

for picking and setting up passengers, they are liable to pay bus-stand fee. No doubt their Lordships, while dealing with the four points made by

Shri M. C. Chagla appearing for the Municipal Council Bhopal, did observe that when a person parks his bus in the municipal bus stand, he was;

using municipal land and that was with permission of the Municipality, such person may be liable to pay some amount i.e. if the Municipality

charges a certain rate only people who would pay at that if they resort to such place. This was not authorized under the provisions of the Act but

under the general law of ownership. In the present case, although Shn Mukati during the course of his submissions argued that levy was not

compulsory but on plain reading of the Resolution No. 10 dated 9-2-2000, levy is compulsory on the vehicles using existing Bus-Stand. Hence,

we are unable to accept the contention of Shri Mukati that the levy of bus-stand is voluntary and could be imposed and collected by the Nagar

Panchayat, Khujner from the vehicles resorting to the existing ''Bus-stand'' for commencement or termination of journey or for using as halting

place for picking up or setting down passenger during the course of journey. Thus, we do not find that the resolution is sustainable in law. In view

of the foregoing discussion, we allow the appeal and set aside the judgment of the learned Single Judge and quashed the Resolution No. 10, dated

February 9, 2000 passed by Nagar Panchayat, Khujner.

The matter does not end here. When the writ petitions were pending there was an interim order passed by the learned Single Judge on 21-1-

2002. Taking that order into consideration, on 12-5-2009 the Division Bench passed the following order in this writ appeal:-

Parties are heard on I.A. No. 2530/2008, an application for seeking interim relief.

After hearing learned counsel for the parties and taking into consideration the order dated 21-1-2002 passed by learned Single Judge of this Court

in W. P. No. 2463/2000, we hereby direct that the petitioners will continue to pay the impugned fee imposed and the respondents No. 2 and 3

shall maintain regular account. In the event of the petition being allowed the respondents No. 2 and 3 shall refund the recovered amount to the

petitioners in accordance with the direction as issued by this Court.

At the conclusion of hearing in view of the said interim Order, a prayer was made for the refund of the amount collected by the Nagar

Panchayat, Khujner. Now comes into play the conflict between doctrine of ""unjust enrichment"" and doctrine of ""retention"". We think, by directing

refund of amount to the appellants, doctrine of unjust enrichment would be applicable against them, notwithstanding the Order dated 12-5-2009.

We are passing this order keeping in view the peculiar situation as in either event it was passenger who had lost a huge amount. It would be

travesty of justice if the appellant become eligible to appropriate such a huge amount for their own benefit. In Mafatlal Industries Ltd. and Others

Vs. Union of India (UOI) and Others, doctrine of ""unjust enrichment"" was resorted to, observing : (SCC p. 633, para 108)

(iii) A claim for refund, whether made under the provisions of the Act as contemplated in Proposition (i) above or in a suit or writ petition in

the situations contemplated by Proposition (ii) above, can succeed only if the plaintiff-petitioner alleges and establishes that he has not passed on

the burden of duty to another person/other persons. His refund claim shall be allowed/decreed only when he establishes that he has not passed on

the burden of the duty or to the extent he has not so passed on, as the case may be. Whether the claim for restitution is treated as a constitutional

imperative or as a statutory requirement, it is neither an absolute right nor an unconditional obligation but is subject to the above requirement, as

explained in the body of the judgment. Where the burden of the duty has been passed on, the claimant cannot say that he has suffered any real loss

or prejudice. The real loss or prejudice is suffered in such a case by the person who has ultimately borne the burden and it is only that person who

can legitimately claim its refund. But where such person does not come forward or where it is not possible to refund the amount to him for one or

the other reason, it is just and appropriate that that amount is retained by the State i.e. by the people. There is no immorality or impropriety

involved in such a proposition.

The doctrine of unjust enrichment is a just and salutary doctrine. No person can seek to collect the duty from both ends. In other words, he cannot

collect the duty from his purchaser at one end and also collect the same duty from the State on the ground that it has been collected from him

contrary to law. The power of the Court is not meant to be exercised for unjustly enriching a person. The doctrine of unjust enrichment is,

however, inapplicable to the State. State represents the people of the country. No one can speak of the people being unjustly enriched.

In the case in hand, appellants have neither alleged nor established that they have not passed on burden of bus-stand fee to any other person or

persons. The restitution is not an absolute right or unconditional obligation, but is subject to certain requirements as pointed out in the case of

Mafatlal Industries Ltd. (supra). The real loss or prejudice is suffered in such a case is by the passengers who have ultimately borne the burden and

it is only they who can legitimately claim the refund. In the present case, no one has come forward to claim refund, therefore, it is just and

appropriate that the amount is retained by the respondent i.e. Nagar Panchayat, Khujner which is the elected body of residents of the area and as

observed by the Supreme Court, there is no immorality or impropriety involved in such a preposition.

In view of the foregoing discussion, we are not inclined to direct refund of the Bus-stand fee imposed and collected by the Nagar Panchayat,

Khujner.

In the result, appeal is allowed without any order as to costs or refund. Order accordingly.