D.K. Seth, J.
1. The petitioner, holding permit to operate stage carriage on Meerut-Baghpat-Chaprauli route, had taken alongwith other operators of the Union, a plot measuring 9,750 sq. ft. on lease in the year 1940 and converted the same into a bus stand whereon Pucca construction there for has been made With necessary facilities after obtaining sanction from the Municipal Board, Meerut. The bus stand is located at a central place convenient for the passengers. The bus stand has a frontage of 108 feet and is situated about 50 feet away from the main road. However, the petitioner parks only two vehicles at the bus stand at a time. Because it is centrally located, even the late arrival of the bus at 9.00 p.m. facilitates the passengers. The City Magistrate in the year 1971 under the orders of the District Magistrate directed the shifting of the bus stand to some other place. The said order was challenged in Writ Petition No. 694 of 1971 which was allowed on 19th August, 1974. Thereafter again on 6th January, 1983, the District Magistrate issued a fresh note directing the shifting of the bus stand to Transport Nagar. He had further directed that the bus traveling from Meerut to Baghpat and Meerut to Baraut would pick-up and set down passengers only from Transport Nagar. The said order is Annexure '6' to the writ petition. It is this order which has been sought to be impugned in the present writ petition.
2. Mr. L.P. Naithani appearing for the petitioner contends that in view of Section 68(2)(r)(s) of the Motor Vehicles Act, 1939, hereinafter referred to as' the Act', the State Government may delegate some of the powers to the District Magistrate, but in the present case, there has been no such delegation either upon the District Magistrate or upon the City Magistrate. Further more identical order passed in 1971 having been quashed in Writ Petition No. 694 of 1971 relying on the Judgment of the Supreme Court in the case of Bhopal Municipal Council v. Co-operative Society Limited , self same order cannot be passed. Thirdly, the power under Section 76 of the Act can be exercised by the District Magistrate. But Section 76 deals with the power of fixing halting places and not of bus stand. According to Mr. Naithani, on these grounds, the writ petition should be allowed.
3. The learned Standing Counsel, in reply, contends that Section 68(2)(r) and (s) empowers the State Government to make rules for the purpose of carrying into effect the provision of the said Chapter. Sub-section (2) Clauses (r) and (s) provides that rules can be framed with regard to the stands and facilities that may be made available therein. Accordingly Rule 93 has been framed by the State of U.P. in exercise of the power conferred under Section 68 of the U.P. Motor Vehicles Rules, 1940, hereinafter referred to as the Rules'. Rule 93 so framed empowers the District Magistrate to take action for bus stands. Therefore, the decision given by the Supreme Court cannot be attracted. According to him, parking and halting place, as contemplated in Section 76 and bus stand, as indicated in Section 68(2)(r) and(s) has the same meaning. The said position in law has not been noticed in the said judgment of the Hon'ble Supreme Court. Therefore, the present case is distinguishable. He further submits that by reason of the amendment of the Act by which the Act has been thoroughly overhauled and replaced, the ratio decided in those cases are no more applicable and it has to be decided on the basis of the provisions as contained in the new Act and the Rules applicable there under.
4. Section 68 of the Act empowers the State Government to make Rules for the purposes of carrying into effect the provisions of Chapter IV. Sub-section (2) enumerates without prejudice to the generality of the power for making rules with respect to matters mentioned in Clauses (a) to (v). Clauses (r) and (s) provide:
(r) prohibiting the picking up or setting down of passengers by stage or contract carriages at specified places or in specified areas or at places other than duly notified stands or halting places and requiring the driver of a stage carriage to stop and remain stationary for a reasonable time when so required by a passenger desiring to board or alight from the vehicle at a notified halting place;
(s) the requirements which shall be complied within the construction or use of any duly notified stand or halting place, including the provisions of adequate equipment and facilities for the convenience of all users thereof, the fees, if any, which may be charged for the use of such facilities the records which shall be maintained at such stands or places, the staff to be employed thereat, and the duties and conduct of such staff, and generally for maintaining such stands and places in a serviceable and clean condition.
5. Section 76 deals with parking places and halting stations which lays down:
76. Parkingplaces and halting stations-The State Government or any authority authorised 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 fora 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 passengers.
6. Clause(r) specifies that rules may be made prohibiting the picking up or setting down of passengers by stage or contract carriages at specified places or specified areas or places other than duly notified stands or halting places. While Clause (s) provides that rules can be made for compliance with the requirements in the construction or use of any duly notified stand or halting place, including the provision of adequate equipment and facilities etc. Therefore, these two provisions empower the Government to make rules relating to prohibition of picking up or setting down passengers except at notified stands while Clause (s) empowers the State Government to make rules for compliance with the requirements for maintaining such facilities in the stands. The said rules are subject only for those purposes. Section 68 empowers the Government to frame rules generally for all purposes relevant to Chapter IV.
7. Section 76, on the other hand, empowers the Government to determine places at which vehicles may stand indefinitely or for specified period of time or for a time longer than is necessary for taking up and setting down passengers. The said Section isalso titled as "Parking places and halting stations". "Now a parking place or halting station is a place where the vehicles are required to halt or vehicles may be parked. This is synonymous with a bus stand. 'Bus Stand' was never defined in the Act. There is no other provision in the Act which empowers creation of bus stand. Clauses (r) and (s) do not deal with creation of bus stand. Clauses (r) deals with the prohibition ofuserofany other place than the bus stand while Clause (s) deals with the manner in which a stand is to be maintained. Therefore, these two clauses do not deal with the creation of a bus stand. On the other hand, Section 76 provides for creation of bus stand by the State Government or by any authority authorised by the State Government for the purpose to determine place of bus stand in consultation with the local authority of the area concerned. The expression bus stand' means a place where bus stands. It may also include bus stations. A place where bus stands for picking up or setting down passengers isalso a bus stand but may be called a "Bus Stop" in local usage. But still then it is a bus stand. The places where the buses may stand for an indefinite period or for specified period of time or for a time longer than is necessary for picking up and setting down passengers is also a bus stand even though it might be called a bus station. Therefore, Section 76 deals with the determination of place when bus stand is to be erected and such determination may be made either by the Government or any authority authorised in that behalf by the Government in consultation with the local authority having jurisdiction in the area. Rule 93 lays down as follows:
93. Stands and halting places-(a) District Magistrates are authorised by the State Government to take action under Section 76 of the Act and may, in consultation with the local authority having jurisdiction in the areas concerned, by the creation of traffic signs or notices.
(i) specify places within the limit of any Municipality, notified Area, Town Area or Cantonment or within such other limits as he may define where alone public service vehicle or any specified class or classes of public service vehicles and/or goods vehicles may stand indefinitely or for such period as may be specified or public service vehicles may stop for a longer time than is necessary for the takjng up and setting down of passengers; or
(iii) conditionally or unconditionally prohibit the use of any specified place, or any place of a specified nature or class as a stand or halting place:
Provided that no place which is privately owned shall be specified as a stand or halting place without the previous consent in writing of the owner thereof.
(b) When a place has been specified by traffic signs or notices, as being a stand or halting place for the purpose of this rule, then, notwithstanding that the land is in possession of any person, the place shall, subject to the provisions of these rules, be deemed to be a public place within the meaning of the Act and the District Magistrate may enter into an agreement with, or grant a licence to any person for the provision or maintenance of such place including the provision or maintenance of the buildings or works necessary thereto, subject to the termination of the agreement of licence forthwith upon the breach of any condition thereof and may otherwise make rules or give directions for the conduct of such place including rules or directions.
(i) prescribing the fees to be paid by the owners of public service vehicles using the place and providing for the receipt and disposal of such fees;
(ii) specifying the public service vehicles or the class or classes of public service vehicle which shall use the place or which shall not use the place;
(iii) appointing a person to be the manager of the place and specifying the powers and duties of the manager;
(iv) requiring the owner of the land, or the local authority, as the case may be, to erect such shelters, lavatories and latrines and to execute such other works as may be specified in the rules or in the direction and to maintain the same in a serviceable, clean and sanitary condition;
(v) prohibiting the use of such place by specified persons or by other than specified persons.
(c) Nothing in Sub-rule (b) shall require any person owning the land, which has been appointed as a stand or halting place, to undertake any work or to incur expenditure in connection therewith without his consent and in the event of any such person declining to carry out such work or to incur such expenditure or failing to comply with any rule or direction made or given to him under this rule, the Competent Authority may prohibit the use of such a place for the purposes of this rule.
8. By reason of Rule 93, it is clear that the District Magistrate is the authority authorised by the State Government for taking action under Section 76, namely to determine a place of stands and halting places. The said rule is titled "Stands and halting places". This rule prescribes that the District Magistrate in consultation with the local authority may specify places where vehicles may stop for a time longer than is necessary for picking up and for setting down passengers or indefinitely or forsuch period as may be specified within the limits of the Municipality, Notified Area, Town Area or Cantonment or within such other limits as he may define. Rule 93 is an authorisation because the authority has been conferred by the Rule itself. Therefore, Section 76 read with Rule 93 deals with the creation of bus stand. By virtue of Rule 93, the District Magistrates authorised by the State Government for this purpose. The meaning of Section 76 read with Rule 93 is clear and unambiguous.
9. In the case of Jagdish Prasad Birla and Anr. v. Municipal Board, Atrauli ,Aligarh and Anr., S.O.C. No. 105-1979 A.VV.C. 63,whiledealingwith Section 76 and Section 68(2)(r) and (s) of the Act read with Rule 93 of the rules, it has been laid down:
The District Magistrate could not fix a bus-stand, in exercise of his powers conferred under Rule 93 of the aforesaid rules, nor, could he direct by such an order, the owners or person in-charge of the motor-vehicles to pay a particular fee for use of the bus-stand. Rule 93 itself refers to Section 76 of the Motor Vehicles Act. The power to fix a bus-stand vests in the State Government and rules can be framed in that regard. Similarly power to prohibit the use of any place other than those specified, for picking up or setting down passengers, also vests in the State Government under Section 68(2)(r) and (s) of the Motor Vehicles Act and rules can be made in that regard.
It is true that it was open to the Board to charge fee for use of the bus stand owned and constructed by it; but then this could be done by the Board by framing a bye law, in accordance with law, in that regard; and, only by making it clear that there is no compulsion for any person in-charge of the Motor Vehicle to use the Municipal bus-stand.
10. In the case of Hari Om Gupta v. District Magistrate, Mathura and Anr. , while dealing with Sections 68(2)(r),
76,91(2)(c) of the Act read with Rule 93 of the rules, it was held:
In the instant case, reliance is placed by the learned Counsel for the Town Area Committee of Baldev on Rule 93 of the U.P. Motor Vehicles Rules, 1940 which authorises the District Magistrate to specify places within the limits of any municipality, notified area, town area or cantonment or within such other limits as he may define where alone public service vehicles or any specified class or classes of public service vehicles and/or goods vehicles may stand indefinitely or for such period as may stop for a longer time than is necessary for the taking up and setting down of passengers. We do not think that the Town Area Committee can derive any assistance from this rule. It only authorises the District Magistrate to exercise the powers under Section 76 of the Act which is confined to the question of determination of parking places and halting places which are not the same as bus stands which can only be notified by the Regional Transport Authority as held by this Court in T.B. Ibrahim's case (supra). It is not disputed that in the instant case, no order has been passed by the Regional Transport Authority, Mathura to determine the area in question as a bus stand the District Magistrate cannot be equated with the Regional Transport Authority constituted under the Act. The High Court was, therefore, in error in upholding the impugned order passed by the District Magistrate.
11. The provision of Section 68(2)(r)(s) and Section 76 of the 1939 Act has been repeated as it is in Section 96(2)(xxi) and (xxii) and Section 117 respectively in the Motor Vehicles Act, 1988. So far as the State of U.P. is concerned, no rules have been framed under the 1988 Act and the 1940 Rules are still holding the field. There has not been, therefore, any change in the law as was obtained when the judgment in the case of Hari Om Gupta (supra) had laid down the above proposition. Therefore, the said judgment is binding under Article 141 of the Constitution of India. As such, no other view could have any room except that as has been expressed in the said case of Hari Om Gupta (supra). In that view of the matter, we are unable to accept the contention as has been sought to be urged by the learned Standing Counsel. Following the decision in thecase of Hari Om Gupta (supra), we, therefore, hereby setaside the impugned order passed by the District Magistrate.
12. The writ petition, therefore, thus stands allowed.