Hon'ble Sanjay Kumar Pachori,J.
Heard Shri Yogesh Kumar Saxena, learned counsel for the petitioners, learned Standing Counsel for the State respondents and Shri Alok Mishra, learned counsel for the respondent.
Petitioners, who claim to be duly elected and recognized Tempo Union at Kanpur Nagar for different routs, are before this Court with the prayer to command the respondent no.4 and 5 to provide facilities as per decision of this Court and G.O. dated 18.07.1998. Further prayer has been made to command the respondents to finalize the matter in pursuance of letter dated 02.03.2016 passed by the District Magistrate, Kanpur Nagar.
Brief facts giving rise to the present writ petition are that the Kanpur Municipal Corporation (in brevit the 'KMC'), within its municipal area, for the convenience of the public, has allowed plying of taxi, buses, tempo, auto rickshaws as well as cycle rickshaws. The Tempo and Auto rickshaws Association had challenged the bye laws of the Corporation empowering it for realization of user charges from them in Writ C no.19014/2012 (Tempo Taxi Sewa Samiti and another vs. State of U.P. and others). The claim has been set up that the KMC does not provide any facility to charge user fee as such the bye laws promulgated through notification dated 29.3.2006 and Gazette publication dated 22.7.2006 is against the G.O. dated 18.7.1998 and violative of Section 54 Clause (42) of the U.P. Municipal Corporation Act, 1959 (in short the Act) and is arbitrary and, therefore, the same be quashed. The Division Bench of this Court had framed two issues for consideration to the effect that (I) whether the Municipal Corporation was within its capacity to frame its bye laws? (II) whether the action of the respondents-corporation in issuing the advertisement for calling for tender from the agents so appointed for realizing user charge from the tempos, taxis plying within the limits of Kanpur is illegal and arbitrary and the same is contrary to Government Order dated 18.7.1998. Finally, both the issues have been answered and the writ petitions stands dismissed vide order dated 19.12.2012 with following observations:-
"That apart, if places are identified and specified for halting of these tempos for the purposes of taking up and setting down passengers it would mean more footfalls on that spot and the Corporation being a civic body will also be under obligation to maintain cleanliness and hygiene at such places which would require deployment of man power which in turn would incur expenditure and, therefore, that also will fall under the category of services rendered.
So far as G.O. dated 18.7.1998 prohibiting parking fee for vehicle parked at places other than the specified parking area is concerned, the same cannot be said to have been violated by framing of the aforesaid bye laws as specified area has been earmarked for specified parking for a period of time and parking fee is, accordingly, charged.
From the document filed by the petitioner himself being information given to it under the RTI Act (Annexure-7 to the writ petition) also indicates that at certain places facilities are provided and at certain places it is in the process of being provided. We have to also consider that by the advertisement dated 24.3.2012 the tenders that have been invited are only for the purpose of realization of Rs. 5/- per tempo per day as the user charge is not in the nature of parking fee but as discussed above, providing facility of identification of places for setting down and taking up passengers on specific route at specific places and the maintenance will fall within the category of service rendered and the same cannot be said to be in any manner in violation of G.O. dated 18.7.1998 (Annexure-6 to the writ petition).
In the aforesaid G.O. dated 18.7.1998 so heavily relied upon by the petitioners, it is provided that the District Magistrate would be the authority competent to see whether at the relevant parking places the aforesaid facilities have been provided or not and in case any dispute arises with regard to the same, he will consider and pass appropriate order. Therefore, if the petitioners have any grievance with regard to the specified parking places and such facilities have not yet been provided and parking fee is being charged, they can always approach the District Magistrate, who would consider their demand and pass appropriate orders in accordance with the G.O. dated 18.7.1998.
In the present case, user charge has been fixed at Rs. 5/- per day as per vehicle which, we are of the considered view, is neither arbitrary nor vexatious. Consequently, the Municipal Corporation inviting tenders for collection of user charge from such vehicles cannot be faulted on this ground, the same in accordance with law. Thus, the question No.II is answered in the negative, against the petitioner.
However, we cannot shut our eyes to the fact of remarkable increase of population for which the authorities have not been able to cater and meet the growing demand of stricter, regulation of traffic. They are under obligation to maintain safety and security on the streets and provide all possible facility to the commuters.
In view of the foregoing discussion, the petitioners are not entitled for the reliefs as claimed in the writ petition. The writ petition is dismissed subject to observations as made above and liberty as provided for. The parties shall bear their own cost."
The same issue again fell for consideration before the Division Bench of this Court in Writ C no.25656/2019, wherein, the petitioners were aggrieved by a notice of KMC dated 10.07.2019 inviting bid for the collection of user charges from tempo owners. The same was disposed of vide order dated 05.08.2019 asking the District Magistrate, Kanpur Nagar to pass an appropriate order independently and in accordance with law. For ready reference, the order dated 05.08.2019 is extracted as under:-
"Our attention has been drawn to a communication sent by the District Magistrate dated 2.3.2016 to Municipal Commissioner referring to an order of the Division Bench passed in Writ Petition No. 3445 of 2013. The District Magistrate has directed the Municipal Corporation to comply the directions issued by this Court and after providing necessary transaction they may collect user charges. It is also recorded in the said communication that the Municipal Corporation shall give wide publicity regarding the facility for parking. The Municipal Corporation has invited the bids to collect the user charges which is contrary to the law laid down by the Division Bench.
Learned counsel for the petitioner has confined his relief only to the prayer that representation moved by the petitioner to ventilate its grievance before the District Magistrate on 19.7.2019, which is on the record, may be directed to be considered.
We have heard learned counsel for the petitioner, learned Standing Counsel and Sri Alok Mishra, learned counsel appearing for respondent nos. 4 & 5. With their consent the writ petition is being disposed of at this stage in terms of the Rules of the Court.
Having due regard to the facts of the case, we are of the view that the ends of justice requires that a direction be issued upon the respondent no. 3 to consider the cause of the petitioner and pass appropriate order in accordance with law expeditiously, preferably within two months from the date of communication of this order. The contract, if any, shall abide by the order to be passed by the District Magistrate.
Needless to say that this Court has not expressed its opinion on the merits of the case, the District Magistrate shall pass the order independently and in accordance with law.
The writ petition is accordingly disposed of.
No order as to costs."
It appears that meanwhile on 23.12.2019 the respondents have accepted the bid of M/s Shiv Enterprises, Kanpur for realisation of user charges and accordingly work permit was also accorded. The same was again subjected to challenge in Writ C no.277 of 2020 (Kanpur Tempo Auto Malik Evam Chalak Jan Kalyan Samiti vs. State of U.P. and others). This Court vide order dated 18.1.2020 has intervened in the matter and stayed the effect and operation of order impugned dated 23.12.2019 In this backdrop, Shri Yogesh Kumar Saxena, learned counsel for the petitioner contended that so far as the Writ Petition no.277/2020, the same has rendered as infructuous as the said contract was only for the financial year 2019-20. He submits that till now the basic facilities for parking has not been provided by Municipal Corporation. Even though the Nagar Nigam is not realising the user charges but on the spot the muscle men are realising the same. The bye laws has been approved by this Court and by communication dated 02.03.2016, the District Magistrate, Kanpur Nagar has asked the Municipal Commissioner referring to an order of the Division Bench passed in Writ Petition no.3445/213 to comply with the directions issued therein and after providing necessary transaction collect the user charges. In spite of the above, the petitioners are deprived from the basic facilities and at no point of time any user charges have been collected resulting in irreparable loss and injury to them.
Per contra, learned counsel who represents the Nagar Nigam states that in the present matter as per the observation made by this Court in order dated 19.10.2012, the Competent Authority is District Magistrate and as such, direction may be issued to the District Magistrate, Kanpur Nagar to look into the grievance of the petitioner and pass appropriate order.
In the present matter, admittedly in spite of the order passed by this Court dated 19.10.2012, this Court has clearly observed that the user charges as has been fixed at the relevant point of time by inviting tenders vide advertisement dated 24.3.2012 was neither arbitrary nor in violation of G.O. dated 18.7.1998. It emerges from the record that since passing of the order dated 19.10.2012 till now the Nagar Nigam has failed to realise the user charges, even the basic facilities have also not been provided to the petitioners.
In the facts and circumstances of the case, we are of the considered opinion that to resolve the issue in hand, the Secretary, Local Bodies, Government of U.P. at Lucknow may look into the matter and pass appropriate order within two months from the date of production of copy of this order but certainly after taking necessary comments from the Municipal Commissioner, Kanpur Nagar, Kanpur and District Magistrate, Kanpur Nagar, Kanpur.
With these observations, the Writ Petition stands disposed of.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the petitioner alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 13.1.2021 A. Pandey