In the High Court of Karnataka at Bangalore
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1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 17 TH DAY OF APRIL 2013 BEFORE THE HON’BLE MR. JUSTICE A S BOPANNA WRIT PETITION NO.27692/2012 (LB-RES) c/w WRIT PETITION NO.24486/2012 (LB-RES) BETWEEN: SRI K RAJAVERMA BALLAL S/O.LATE PANDYARAJA BALLAL, AGED ABOUT 62 YEARS, BALLAL MOTOR SERVICE, KANKANADI, MANGALORE. ... PETITIONER IN W.P.NO.27692/2012 SRI K JAGADISHA SHETTY S/O.SRI MAHALINGA SHETTY, AGED ABOUT 53 YEARS, “SARVANI NILAYA” NEAR BANTARA SANGHA JEPPINAMOGARU, MANGALORE DAKSHINA KANNADA . ... PETITIONER IN W.P.NO.24486/2012 (BY SRI B R SUNDARARAJA GUPTA, ADV.) AND: 1. THE JOINT COMMISSIONER MANGALORE CITY CORPORATION, MANGALORE, DAKSHINA KANNADA-575 003. 2. THE REVENUE OFFICER MANGALORE CITY CORPORATION, MANGALORE, DAKSHINA KANNADA-575 003. 3. THE PRESIDENT COMMITTEE FOR TAX FINANCE, MANGALOE CITY CORPORATION, MANGALORE, DAKSHINA KANNADA-575 003. 2 4. THE MANGALOR CITY CORPORATION MANGALORE, DAKSHINA KANNADA-575 003. BY ITS COMMISIONER 5. THE PRINCIPAL SECRETARY TO GOVERNMENT REVENUE DEPARTMENT, VIDHANA SOUDHA, BANGALORE-560001. … RESPONDENTS (COMMON) (BY SRI VISHWAJITH SHETTY, ADV. FOR R1-4 SRI RAMACHANDRA R NAIK, HCGP FOR R5) W.P.No.27692/2012 IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO: QUASH THE ORDER PASSED BY THE JOINT COMMISSIONER AND REVENUE OFFICER OF CITY MUNICIPAL CORPORATION, MANGALORE DTD.23.2.12 VIDE ANNEX-B BY ISSUE OF A WRIT OF CERTIORARI. W.P.No.24486/2012 IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO: QUASH THE ORDER PASSED BY THE JOINT COMMISSIONER AND REVENUE OFFICER OF CITY MUNICIPAL CORPORATION, MANGALORE BEARING NO.A9.CR.50/11-12 AND C3.CHA AND AA STHA TAVANU NO.428:11-12 DTD.23.02.2012 VIDE ANNEX-B BY ISSUE OF A WRIT OF CERTIORARI OR ANY APPROPRIATE WRIT, ORDER OR DIRECTION. THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING : O R D E R The petitioners herein are before this Court assailing the order passed by the Joint Commissioner and Revenue Officer of the City Municipal Corporation, Mangalore dated 23.02.2012 which is impugned at Annexure-B in both these petitions. 3 2. The petitioners are Stage Carriage Operators operating private bus services in Dakshina Kannada District and also in neighbouring districts. The respondents - Mangalore City Corporation which is endowed with the duty of maintaining and regulating its properties has provided a place to enable such Stage Carriage Busses to operate and also to stop and book passengers. In that regard, though a bus stand was available at Hampanakatta in Mangalore, due to the congestion in the area, the bus stand has been shifted to Nehru Maidan where a portion of the ground has been provided for parking place. In the said spot, since the basic infrastructure and the facility such as certain rooms and the toilets are to be provided, the respondents- Corporation has resolved to impose a fee on the users of the bus stand which was initially fixed at Rs.10/- in the year 1997 which has now by the impugned order been enhanced to Rs.25/-. The petitioners claiming to be aggrieved by the same are before this Court. 4 3. The Respondents - City Corporation has filed the objection statement justifying their action. In fact in the objection statement, it is the very said aspects relating to providing of the facilities which has been stated and it is indicated that such facility has been provided in view of the provision contemplated under Section 348 of the Karnataka Municipal Corporation Act. It is clarified that the fee which has been charged is on a daily basis. The petitioners not having questioned the original decision for imposing the tax cannot at this juncture question only the enhancement of the fee. It is therefore contended that the prayer made in the petition is liable to be rejected. 4. Learned counsel for the petitioners in addition to the contentions which have been put forth in the petition would also contend that the respondents did not have the authority to impose such fee inasmuch as the provision is available under the Motor Vehicles Act and it is the State Government which is required to notify such fee in consultation with the local authority. Since the same has not been done by the State 5 Government, in the instant case, the respondents cannot impose the fee. Learned counsel has also sought to rely on the decisions of the Hon'ble Supreme Court in the case of T.B.Ibrahim vs. Regional Transport authority, Tanjore (AIR 1953 SC 79) and Municipal Board, Pushkar vs. State Transport Authority (1963(2) SCR 373). 5. In the light of the rival contentions, though the learned counsel for the petitioners has sought to rely on the decision of the Hon'ble Supreme Court and has also referred to the provisions of the Motor Vehicles Act to contend that the respondents did not have the authority to impose such fee for parking of busses, I am of the opinion that considering that the petitioners have not assailed the very decision of imposing such fee at the first instance, the correctness of such decision in any event need not be gone into in the instant petitions. 6. Having arrived at the said conclusion, the only other aspect which requires to be noticed is as to whether the impugned order dated 23.02.2012 calls for 6 interference. In this regard, as rightly pointed out by the learned counsel for the respondents, the respondents have provided the bus parking facilities as contemplated under Section 348 of the Karnataka Municipal Corporations Act. The fee which is being presently charged is on quid pro quo basis for having provided the facilities in the bus stand and a place for parking. Further it is also optional for the stage carriage permit operators to enter into the bus stand. The fee is being collected only in respect of the buses which enter into the bus stand and utilising such facilities. 7. Learned counsel for the petitioners would however submit that the fee being charged at Rs.25/- per entry would be exorbitant inasmuch as the buses which are operating within the city would have to enter the bus stand several times a day. It is in that context the petitioners are aggrieved. Having noticed the said contention, it is clear from the objection statement filed on behalf of the respondents that the fee charged is per day. This is also evident from the document at 7 Annexure-R.1. The said document is a part of the tender notification. The terms of the tender notification would indicate that the collection of Rs.25/- for parking is per day and does not indicate that it is per entry into the bus stand. Therefore the grievance of the petitioners in that regard also cannot be accepted inasmuch as the notification itself is clear that the fee payable is per day irrespective of the number of entry. That apart since the present decision is only to enhance the fee which had earlier been fixed, I am of the opinion that the challenge made to the same in the instant petitions is not sustainable. Hence with the above clarifications, the petitions stand disposed of. Sd/- JUDGE akc/bms .