1989 Supreme(Bom) 73
IN THE HIGH COURT OF BOMBAY
Ashok Agarwal. J.
Noshir Shapurji Dhabhar others.... Petitioners.
Versus
Municipal Corporation of Greater Bombay another..... Respondents.
Writ Petition No. 3782 of 1988, decided on 16/17-3-1989.
Advocates appeared :
T.R. Andhyarujina with I.M. Chagla, N.H. Seervai, R.R. Krishna-Murthy and Girish Gokhale, i/b Mulla Mulla Craigie Blunt and Caroe, for petitioners.
K.K. Singhavi with G.V. Murthy, for respondents.
Headnote:Sections 63 (k), 289, 296,313,314, 490-Vehicular traffic on public road -Bombay Municipal Corporation levying towing charges for parking of vehicles on road Scheme ultra vires provisions of Act-It is duty of police to regulate traffic.
There is no authority given to the Municipal Corporation either to regulate the traffic or to charge a fee for the purpose of parking of vehicles. The said function has been specifically given to the police under the Bombay Police Act, and the said function has been adversely kept out of the purview of the Municipal Corporation. Use of public streets in modern times is for the vehicular traffic. Regulation of vehicular traffic is the necessary ingredient of the use of the vehicles on public street. The function of regulating the traffic and the parking of vehicles is that of the Police and not of the Municipal Corporation. Unless there is a specific provision which authorises the Municipal Authorities to collect the parking charges, such a charge will have to be characterised as unauthorised.
The term vehicle has been specifically defined under Section 3 (q).
If the vehicles were intended to be covered under Section 313, nothing would
have prevented the Legislature to specifically provide for the same When a vehicle is parked on a public street, the same cannot be equated with pleading or depositing of other things on the streets, Hence, the Municipal Commissioner cannot be said to have been authorised by Section 324 (b) to two away such parked vehicles. For the same reason Section 490 cannot be construed as authorising the Municipal Commissioner to recover the towing charges.
1. Upto 1 hour Rs. 1.00
2. From 1 hour to 2 hours Rs. 2.00
3. From 2 hours to 4 hours Rs. 5.00
4. From 4 hours to 8 hours Rs. 10.00
5. More than 8 hours Rs. 15.00
No parking was allowed after 10.00 p.m. and vehicles parked after 12.00 midnight were threatened to be towed away to the nearest Municipal dumping yard which could be released only after paying towing charges of Rs. 600/-. Vehicles were required to be parked in the parking areas at the owner's risk and the Municipal Corporation was not responsible for theft or damage, etc., of the vehicles when parked or being towed away to the Municipal dumping yard.
2. One Shri M.R. Pai had made a representation dated the 25th of January, 1988 to the Municipal Corporation against the introduction of this scheme and the Additional Municipal Commissioner addressed his communication dated the 4th of April, 1988 justifying the scheme. The said communication is annexed at Exhibit 'C' to the Petition. It may be relevant to reproduce the material portion of the said communication, which is as follows:---
"The Municipal Corporation has contemplated reintroduction of the Pay and Park Scheme with a view to control indiscriminate parking, reduce traffic congestion and misuse of Municipal roads.
You will appreciate the fact that in the absence of any systematic provision of parking space, congestion due to parked vehicles adversely affects the mobility on arterial roads in the city. In order to restrict vehicular traffic, some measure of pricing needs to be introduced and operationally one of the most significant and successful measures is to charge a fee for parking in congested areas.
It may be mentioned that the High Level Committee set up by the Planning Commission in April 1978 to formulate a national transport policy for our country had reviewed the issue of regulation and control of Urban Traffic and have in their report recommended charging of fees for parking in congested city Centres.
Considering the role and importance of the Central Business District of Mumbai, where at present 86% of the passenger movement is carried by Public Transport, the introduction of "Pay and Park" Scheme as one of the tools of auto traffic restraint assumes very high priority.
It is not correct to presume that the problems related to traffic are being resolved only by the Traffic Police Department. The implementation of Improvement Schemes is essentially one of the responsibilities of the Municipal Corporation. The Traffic Department of the Municipal Corporation have a team of well experienced, highly qualified traffic engineers who period