1. All the four writ petitions arises out of identical issue, i.e., whether the respondent Municipalities (Virudhunagar, Srivilliputhur and Rajapalayam respectively) were entitled to insist upon licence to be held by a person privately running cycle stand in terms of the Tamil Nadu District Municipalities Act?
2.The first two writ petitions were filed in respect of Virudhunagar municipality. In W.P.(MD)No.8375 of 2007, the petitioner seeks for a direction to the respondent Virudhunagar Municipality to issue license to the petitioner to run a cycle stand. The first writ petition was admitted on 7.7.2008.
3.In the second writ petition (W.P.(MD)No.2625 of 2008), the prayer was to set aside the order dated 24.12.2007, wherein the municipality considered the application of the petitioner dated 23.2.2001 and other similarly placed persons and passed a Resolution No.592 on 31.10.2007. As per the said resolution, the municipality insisted that for the purpose of getting licence for having a vehicle stand for two wheelers and four wheelers, applicants must produce appropriate documents including building plan and area occupied by them. Thereafter the concern Revenue Inspector and Township Inspector on the basis of documents submitted will inspect the places and submit a report to the Commissioner. The Commissioner will thereafter grant licence for a period of one year. The license fee was fixed on the basis of Rs.2/- per sq.ft occupied by the parking lot. They must deposit 50% of the amount in single installment by cash / bank draft and receipts must be obtained by them. After a period of one year license, in case of renewal they may apply within 30 days before the expiry of one year lease and abide by the conditions. After getting the licence fee, if any of the condition was violated, appropriate action will be initiated. Though the impugned letter was sent to three persons, it is the petitioner who had come to this court challenging the resolution. In this writ petition, notice was initially ordered. Subsequently it was admitted on 18.8.2008. In both writ petitions, no interim orders were granted by this court.
4.In W.P.(MD)No.12052 of 2008, the petitioner was the Pennington Committee represented by its Secretary, which is a registered society and claimed to be in existence for more than 130 years. The petitioner society made an application on 30.11.1999 asking the Srivilliputhur Municipality to reconsider their stand in not allowing the private parking stand run by the society. Reference was made to the municipal resolution No.2212, dated 25.10.1999. The petitioner society had stated that it is a service institution and not a commercial body. They have about 170 shops in both sides of Rajaji Road and persons who are coming to deal with those shops are parking their vehicles. At the time of writing the letter, around 600 cycles were coming to stand per day. Because vehicles were parked abutting the road, it was creating hindrance to the traffic and public. Therefore, they sought permission to run a private parking place. They also sent a further reminder letter on 17.05.2001 and informed that the committee was owning land in T.S.No.453B, Door No.43-A in Sathur Road. In that place, they wanted to run a temporary parking lot.
5.In the meanwhile, it transpires that the municipality made a public announcement on 15.12.2008 stating that one Kamatchi, a private contractor of the municipal parking stand which was leased out to her, moved this court with W.P.(MD)No.10692 of 2008 stating that the municipality was allowing unlicensed private operators creating loss for the licensee of the corporation parking lot. Therefore, she wanted action to be initiated. In the light of the directions issued by this court, the private operators were informed that action will be initiated in terms of Section 270E(1) of the Tamil Nadu District Municipalities Act, 1920 against persons who were running private parking stands without license by the Municipality. They were asked to close down their private vehicle parking stands, failing which it will be sealed by the municipality. It was at this stage, the committee which is a registered society filed the writ petition. In that writ petition, when it came up on 6.1.2009, an interim stay was granted till 20.1.2009. Subsequently, the stay was extended on further four occasions. Thereafter, there was no extension of stay beyond June, 2009.
6.In W.P.(MD)No.4179 of 2009, the petitioner challenged an order dated 6.5.2009 passed by the Commissioner of Rajapalayam Municipality informing the petitioner and one Radhakrishnan, who were operating private vehicle stands that they cannot continue the private vehicle stands without licence from the municipality. Such running of vehicle stands was prohibited under Section 270E of the Tamil Nadu District Municipalities Act. The Commissioner was informed by the Revenue Officer that the vehicle stand run by the petitioner was closer to the municipal vehicle stand. The license for the municipal vehicle stand was given to one Amirtharaj. The petitioner was also informed that if he did not close down the vehicle stand, proper legal action will be initiated. That writ petition when it came up for hearing, notice was taken by the Standing counsel and no interim order was granted.
7.In view of the fact that in all these four writ petitions, similar legal contentions were raised, they were grouped together and a common order is passed.
8.The contentions raised by the petitioners were that Section 270E defines a Cart Stand and it did not cover either two wheelers or a cycle stand. They are running the stands for number of years and it cannot be stopped all of a sudden without valid reason and without justification. It was further stated that the site belonged to the petitioners and they can carry on whatever trade they want. The actions of the municipalities are violative of Article 19(1)(g) of the Constitution of India. It was also urged that there was no necessity to seek for any licence from the municipality.
9.Since the petitioners relied upon Section 270E of the Tamil Nadu District Municipalities Act, it is necessary to extract the said provision. Section 270-E(1) reads as follows:
270-E.Licence for private cart-stand.-(1)No person shall open a new private cart-stand or continue to keep open a private cart-stand unless he obtains from the council a licence to do so.
10.A perusal of the said legal provision will clearly show that licence is must even for running a private cart stand within the municipal limit. However, the counsel for petitioners referred to Section 270-B referring to public cart stand and more particularly to the explanation appended to the said section. It is necessary to refer to the said provision in its entirety and it reads as follows:
270-B.Provision of public cart-stands, etc.-(1)The municipal council may construct or provide [and maintain] public landing places, halting places and cart-stands and may levy fees for the use of the same. [(1-A) The council may-
(a)place the collection of any such fees under the management of such persons as may appear to it proper; or
(b)farm out the collection of any such fees for any period not exceeding three years at a time and on such terms and conditions as it may think fit. (1-B)Any agreement entered into by a municipal council, farming out the collection of such fees for a period, not exceeding three years, commencing on or after the 1st April, 1941, shall be valid, notwithstanding that such agreement was entered into before the commencement of the Madras District Municipalities and Local Boards (Amendment) Act, 1941.] (2)A statement in English and a vernacular language of the district of the fees fixed by the council for the use of such place shall be put up in a conspicuous part thereof.
Explanation.-A cart-stand shall, for the purposes of this Act, includes stand for carriages [including motor vehicles within the meaning of the India Motor Vehicles Act, 1914 and animals.]
(Emphasis added)
11.Relying upon the explanation, the counsels for petitioners also referred to the definition of the term cart found under Section 3(6) of the Tamil Nadu District Municipalities Act. Hence, it will be necessary to refer not only Section 3(6), but also Section 3(5) defining the term carriage . Sections 3(5) and 3(6) reads as follows:
(5)'Carriage.'-- 'Carriage' means any wheeled vehicle with spring or other appliances acting as springs and includes any kind of bicycle, tricycle, rickshaw and palanquin, but does not include any motor vehicle within the meaning of the India Motor Vehicles Act, 1914.]
[(6)'Cart' - 'Cart' includes any wheeled vehicle which is not a carriage but does not include any motor vehicle within the meaning of the India Motor Vehicles Act, 1914.]
(Emphasis added)
12.The counsel for the municipality also drew the attention of this court and submitted that the explanation found under Section 270B will only strengthen and justify the requirement of licence for private cart stands. The term cart- stand will also include a stand for carriages which includes motor vehicles within the meaning of the Indian Motor Vehicles Act, 1914 and animals. It must be noted that a cart-stand includes the stand for carriages and the term carriages has been defined to include all kinds of vehicles including bicycle, but does not include motor vehicles within the meaning of the Indian Motor Vehicles Act, in this case, it is unnecessary to go into the larger question as to whether motor vehicles can be brought under the term cart-stand . In fact, the explanation states that for the purpose of this Act, it includes even a cart-stand including motor vehicles. But the definition excludes from the term carriages , motor vehicles. To that extent, the definition under Section 3(5) cannot apply exclude motor vehicle stand in the light of the licence provisions regarding cart-stand in the municipal area. But nevertheless the term cart is an inclusive definition where all wheeled vehicles which are not carriages, but excluding motor vehicles cannot take away the municipal authority's power in terms of explanation to Section 270B. In fact Section 270-C clearly stipulates that if the municipal council has provided a public landing place, halting place or cart-stand, the municipality is empowered to prohibit the use for the same purpose by any person. Therefore the right of private cart stand operators depends upon the decision of a municipality and no fundamental right to carry on trade can be pleaded by private operators.
13.In the present case, in all writ petitions, the municipalities have prohibited the use of public place or using of public street as cart-stands. Therefore, if any person wants to run a private cart-stand, he has to obtain a licence. Therefore, without the permission of the municipal council, no person was authorised to run a private vehicle stand.
14.However, Mr.Kadarkarai, the learned counsel for one of the petitioner referred to a judgment of this court in Anamallais Bus Transport (Private) Ltd. Vs. Commissioner, Dharapuram Municipality, Dharapuram reported in AIR 1957 Madras 781 in support of his contention. But, that case was filed by a motor transport operator. In that context, the court in paragraphs 11 to 21, 23,26, 27 and 34 had observed as follows:
11.The expression 'cart stand' has not been defined by the Act. The explanation to S.270-B, which I have extracted above, in effect merely includes motor vehicles among carts'. The marginal note to S.270-B refers to public cart stands, while S.270-E applies to private cart stands. The distinction between 'public' and 'private' is obviously based on the ownership of the cart stand, and that will not by itself decide the question, what is a cart stand. Equally obviously, the expression 'cart stand' should be given the same meaning for purposes of both S.270-B and S.270-E. It is not, however, my attempt to embark on an exhaustive definition of a 'cart stand', which could be of universal application. My limited problem is to decide whether the petitioner's premises constituted a cart stand. If it does, t here should be no difficulty in holding that it is a private cart stand, as distinct from a public cart stand for which provision has been made by the Act in S.270-B.
12.Every place where vehicles of any specified description are parked, that is, stand for a time, whatever be the duration, may not be a cart stand. Something more than mere standing of vehicle is necessary to make the place a cart stand. Otherwise every garage where a motor vehicle is kept standing by its owner when not in use will be a cart stand, a place where the vehicle stands. That the vehicle is used for hire may not make any difference. It was not contended that every garage where the owner of the garage parked his own buses or taxis was a cart stand, because and merely because the owner let his vehicles stand in his own premises.
13.Section 270B applies to a public cart stand, a cart stand owned and maintained by a Municipality. It should be clear that such a cart stand is for the use of the members of the public that own or are in charge of vehicles which they desire to park there for a time. Whether the person in charge of the vehicle voluntarily uses the cart stand, or whether he is completed by any enforceable rule or regulation to use that stand may not make any difference - see United Motors (Coimbatore) Ltd. v. Palghat Municipal Council, 1942-2 Mad LJ 472 : (AIR 1943 Mad 122). (A1).
A place owned by a Municipality where it keeps its own vehicles and which is not available for use by any member of the public for letting his vehicle stand there, cannot be a cart stand within the scope of S.270-B. Section 270- B(1) no doubt authorises the Municipality to levy fees for the use of the cart stand. That is only permissive. If no fees are prescribed by the Municipality, there will be none to pay. Nonetheless, the place can be a public cart stand maintained by the Municipality under S.270-B. So the payment or non-payment of fees for the sue of the place, though a relevant factor, may not be determining factor in deciding whether the place is a cart stand. In the case of a public cart stand, at any rate, it seems clear that it is the availability of the place for use by members of the public, who own or are in charge of the vehicles, for keeping their vehicles for a time - the duration of stay is immaterial - to let their vehicles stand there, that makes the place a cart stand. Exclusive use of the place by its owner, the Municipality for keeping its own vehicles there should suffice to establish that place is not a cart stand within the meaning of S.270-B.
14.In my opinion, the test should be the same in deciding whether a given place is a private cart stand within the scope of S.270-E. As I said, the real difference between a public and private cart stand lies in the ownership of the cart stand. It has still to be established that a given place is a cart stand. Exclusive use of the place by its owner for his own vehicles would be inconsistent with the concept of a cart stand, whether the place is owned by the Municipality or is privately owned. Both in the case of a public cart stand and a private cart stand what makes it a cart stand is the willingness of the owner of the place to let the vehicles of others besides himself to use the place, to let the vehicles of others to stand there, whether on payment of fees or for other consideration.
15.The further use to which a person in charge of a vehicle puts that vehicle when it stands in the place in question may not be a factor that determines the issue, whether the place is a cart stand. The vehicle may be stationed there to load or unload. Or it may have been loaded or unloaded elsewhere, and the vehicle is kept at the place for a time before the owner of the vehicle sets out on his journey. It is not the use of the vehicle but the use of the place that should finally determine whether or not a place is a cart stand. The place can be a cart stand only if the vehicles of others besides the owner of the place can use that place for keeping their vehicles when stationary, whatever be the duration of the period during which the vehicles stand at the place.
16.The purpose of a cart stand is to let vehicles of others than the owner of the cart stand, stand there. The place must be 'open', I.e., accessible to others who are in charge of the vehicles as owners or otherwise. It is not access given to members of the public for any purpose that makes the place a cart stand. In the case of the petitioner's premises, merely because he allowed members of the travelling public to come to the place where the buses stood and buy tickets at the booking office or even from conductor, that would not amount to keeping open a cart stand within the meaning of S.270-E. The expression 'open' in the context of S.270-E could mean 'open to the use of others for keeping their vehicles'.......
I have already pointed out that it was the use of the place for allowing the vehicles to stand that is the determining factor, and not further use of the vehicle when it stands there. Suppose the petitioner allowed others to use his place for their vehicles, but the passengers were denied facilities to board those buses or to alight therefrom, the place would still be a cart stand, and the denial of access to the travelling public would not really be a determining factor. The further use to which the vehicle is put by its owner will however be an item of evidence to consider whether the owner of the vehicle used the place.
18.The number of vehicles allowed to stand at a given place is not the determining factor either. Whether it is five, ten or fifty, the position would be the same. What is decisive is, whether all these vehicles belong to the owner of the place, or whether one or more of them belongs to another. Similarly, whether the vehicle which uses the place is a bus, a lorry or a taxi would make no difference to the principle to apply. They are all 'carts' within the scope of the explanation to S.270-B. I am considering only the cases of motor vehicles available for hire; though I have recorded earlier that may not by itself make any real difference to the principle to apply to determine whether a given place is a cart stand.
19.Let me take some illustrative examples. A person who owns, say five taxis, keeps them on his premises in garages or sheds. Keeping the vehicles there when they are stationary will not make the premises a cart stand. If he allowed members of the public, who want to hire these taxis, to enter his premises to engage these taxis, that again would not make the premises a private cart stand. If in addition, he allowed the person who hires a taxi to..........into the taxi while it still stands on the premises would it make the place, which was not otherwise a cart stand, a cart stand for purposes of S.270-E?
20.Let me take the example of a lorry owner....... As in the case of taxis, neither the fact that the lorries are garaged in the owner's premises nor the fact that these lorries could be hired at those premises would make the premises a cart stand. If these lorries are loaded or unloaded at the premises, whether to suit the convenience of the owner of the lorry or that of the hirer, would that be sufficient to make these premises a private cart stand within the meaning of S.270-E?
21.In my opinion, in neither of the hypothetical cases, I have mentioned above would the further use of the vehicle, when it stands on the premises of the person who owned both the place and vehicles, have any real bearing on that question, whether these premises constitute a private cart stand within the meaning of S.270-E. I fail to see how the position of the owner of a bus could be different. The further use of the bus when it is stationary, that is, when it stands, does not affect the determination of the question, is the place where the vehicle is allowed to stand by its owner a cart stand. ........
23......I have already pointed out that the expression keep open must be construed in the context in which it is used. Kept open for whom is the question. No doubt, the petitioner kept open his premises for the use of travelling public. That, however, is not the keeping open that S.270-E(1) would appear to provide for. I have pointed out that a private cart stand is kept open only if it is kept open to others in charge of vehicles besides the owner of the place, to keep their vehicles thereto let their vehicles stand there. ......
26.As I understand this passage in its context, these considerations listed by the learned Judges applied to the vehicles of others who resorted to the premises in question. They were relevant considerations in deciding whether others in charge of the vehicles used those premises.
27.When the case came up again before the High Court in ILR 22 Mad 455 (D), the learned Judges referred to the facts that had been established by the evidence on record:
......it is clear that some ten or fifteen carts from outside villages daily resort to the premises of the accused, laden with produce and goods of various kinds...... The carts do not bring produce for sale specially to the accused, but for sale to the general public, and the accused acts as a broker between the owners of the produce and the public. He allows the carts to stand on his premises until the sale and removal of the goods is completed and apparently until they are paid for. It seems to use that these show clearly that the place is used as a cart stand within the meaning of S.188 of Madras Act 4 of 1884. The accused allows the carts of the public to come to his premises and to stand there while their goods are being sold . Here again the learned Judges were dealing with vehicles of others and not with the vehicles of the owner of the place. These were factors which showed tht others in charge of vehicles used the premises, which use was the factor to be taken into account in deciding whether the place was a cart stand. If I may say so with respect, it is the last sentence in the passage that I have extracted above that laid down the principle to apply in deciding whether a given place was a cart stand:
The accused allows the carts of the public to come to his premises and to stand there while their goods are being sold. That was the determining factor, though the other circumstances referred to by the learned Judges were relevant, but in relation to the vehicles of persons other than the owner of the premises. They were relevant for determining the question, did they use the premises as a cart stand, and of course the question, did the accused allow the place to be used as a cart stand. .......
34.The use to which the owner of a vehicle puts that vehicle when it stands in the place of another may help in deciding whether the owner of that vehicle used the place as a cart stand. Still it is the use of the place that is the decisive factor. If the owner of the place uses that place only for his own vehicles to the exclusion of every one else, that excludes the possibility of treating that place as a private cart stand within the scope of S.270-E; the further use of the vehicle by its owner, even for purposes of his business, would not make that place a cart stand. It is not the use of the place by its owner for his vehicles that requires a licence, under S.270-E. The licence prescribed by that section is required only to keep open a private cart stand. (Emphasis added)
15.As noted, this decision far from helping the case of the petitioners only justifies the stand of the respondent municipalities. In the judgment, the term cart stand defined under the District Municipalities Act was not taken note of. The terms carriage and cart came to be defined by virtue of the amendment made to the Madras Motor Vehicles Taxation Act, 1931. The present definition of the term carriage includes bicycles. The explanation of the Motor Vehicles Act was included under Section 270B of the Act, because the Motor Vehicles Act provides for an elaborate procedure for keeping stand for the motor vehicles including the public transports plying through the municipal area. Therefore, it was in that context, the judgment of Anamallais Bus Transport (Private) Ltd.'s case (cited supra) was rendered. The emphasis was that if a private owner keep his vehicles alone to be parked in his own land, then it cannot be brought under Section 270-E. But the moment the cart stand was allowed to be utilized by others other than the owner, certainly provisions of the Act will be attracted.
16. Subsequent to the rulings of various High Courts in interpreting the Indian Motor Vehicles Act, vis-a vis, the Municipal Acts of various States, the Supreme Court also dealt with a similar issue vide judgment in Municipal Council v. Sindhi Sahiti Multipurpose Transport Coop. Society Ltd., reported in (1973) 2 SCC 478, wherein in paragraph 7, the Supreme Court had observed as follows: 7.Under Section 76 of the Motor Vehicles Act the State Government or any authority authorized in this behalf by the State Government may in consultation with the local authority having jurisdiction in the area concerned, determine places at which motor vehicles may stand either indefinitely or for a specified period of time, and may determine the places at which public service vehicles may stop for a longer time than is necessary for the taking up and setting down of passengers. Unlike Section 68 which conferspower on the State Government alone this section enables the State Government to authorize any authority to take action under it. As is clear from a reading of Section 76, it does not deal with a bus stand in the sense of a place for taking up and setting down of passengers, which is dealt with under Section 68(2)(r). 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.
17. In the writ petitions before this court, this court was not concerned with the question of any private transport operator running a public transport having a stand of their own being required to obtain a license. All the petitioners are only running or seeking to run private vehicle stands for cycles and other two wheelers. Certainly it requires licences in the light of the provisions of the Tamil Nadu District Municipalities Act, 1920. Hence there is no case made out by the petitioners.
18. In the light of the above, all the four writ petitions will stand dismissed. However, there will be no order as to costs. Consequently connected miscellaneous petitions stand closed.