2008 Supreme(Bom) 676

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SWATANTER KUMAR, C.J. & V.M. KANADE, J.
Dr. Anahita Pandole — Petitioner
Vs.
State of Maharashtra — Respondent
NOTICE OF MOTION NO.155 OF 2008
IN WRIT PETITION NO.1132 OF 2002
NOTICE OF MOTION NO.156 OF 2008
IN WRIT PETITION NO.1132 OF 2002
NOTICE OF MOTION NO.171 OF 2008
IN WRIT PETITION NO.1132 OF 2002
Decided on : 5 th May, 2008

Headnote:Bombay Municipal Corporation Act, 1888 - Section 328-"Mobile Hoarding Vehicles"-Registration of-Permission to park and drive such vehicle on roads-Adversely effecting heritage precincts, flow of traffic, public safety and heritage aesthetics of Mumbai-Grant of permission by authorities not a proper exercise of power-Permission granted liable to be set aside.-The preference of adherence to law, regulation and public safety over commercial advertising is an internationally accepted norm. Public safety and proper regulation of traffic is the essence of Motor Vehicles Act, Central and State Rules thereunder. It will not serve the ends of law and public interest if these laws are rendered nugatory by the Corporation and other authorities in exercise of their powers which in any case are limited in scope and that too are exercised without proper application of mind. Violations of different provisions of the Act and the Rules framed thereunder relates to construction equipments and maintenance of motor vehicle, fixation of lights, height and dimensions of the vehicle and dangerous projections. It does not end there. The very designing and construction of these mobile hoarding vehicles is without any proper approval and certification from the concerned authorities in the State and/or Central Government as the case may be. Registration and permission to park and drive such vehicles on the road apparently has an adverse effect on the heritage precincts, flow of traffic, public safety and heritage aestheties of Mumbai. Vehicles of impermissible height carrying 12 to 14 flood lights again in an impermissible manner are bound to reflect in the eyes of the drivers of other vehicles. Besides distracting others, they are capable of dazzling eyes of the drivers of the fast vehicular traffic. We have no reason to discard the contention raised and which is sufficiently demonstrated by the affidavit and documents annexed thereto that these mobile hoarding vehicles besides violating laws as aforeferred are also obstructing the free flow of traffic and causing public inconvenience on the busy roads of Mumbai. It is strange that permissions have been granted in relation to parking on roads and carriage ways even near and in heritage precincts like Marine Drive and Fort areas, etc. Normally these are the heavy traffic roads and the authorities have granted permission to the Applicants, who in turn claim a legal right to block the traffic for hours on these roads of Mumbai. To add to all this is the unjustifiable conduct of the Applicants that they have obtained the registration certification from the authorities by misrepresentation of facts. If the vehicles in the present status were produced before the authorities for inspection, then it remains to be examined as to why correct particulars of the vehicle were not mentioned in the certificate, manufacturer certificate as well as on the registration certificate in regard to user and specifications. If only the chassis were produced for inspection and were registered in accordance with law, then how thereafter the vehicles have been altered, constructed and equipped to the present mobile hoarding vehicles without approval of the competent authority particularly when they are in violation of the statutory provisions as referred above. The photographs on record and affidavit filed clearly show and it is a matter of common public knowledge that these ’mobile hoarding vehicles’ adversely affect the look of the area concerned, contravene the laws, are unsafe and infringes canons of public safety, protection of heritage precincts and even the environmental laws. It is a matter of public knowledge that there is heavy traffic on the roads of Mumbai, particularly in the area where permissions have been granted. It takes considerable time to reach from one point to another by vehicular traffic. The permissions granted by the authorities to deal with vehicles to be parked on the busiest roads of Mumbai for hours is certainly not a proper exercise of power. This itself is a question which are unspecified vehicles and which are offending practically all provisions of the Motor Vehicles Act and the Rules framed thereunder, would fall within the Municipal Corporation’s domain to grant permissions or contracts in exercise of its powers under Section 328-A of the Act.

       Bombay Municipal Corporation Act, 1888 - Sections 328, 328-A and 313 Motor Vehicles Act, 1988, Sections 2 (28), 52 and 206-Bombay Police Act, 1951, Section 28-Code of Civil Procedure, 1908, Order XLI, Rules 1 and 2-A Public Interest Litigation was filed against the order of Commissioner issuing licence for movement of mobile Advertising vehicle in the city endangering the heritage even while the Court has issued interim order and matter was sub-judice.-It was held that vehicle which is to be used on the road has to be in conformity with the requirements of the Motor Vehicles Act. No person has a right to alter a motor vehicle that to the particulars contained in the certificate of registration and at variance with those originally specified by manufacturer. Even in the cases of retrofitment and other matter for such conversion of kits, the Central Government in required to prescribe specifications and conditions for approval under Section 52 of the Act.

       The State Government is required to notify and determine the places at which motor vehicle may stand either indefinitely or for a specified period but in consultation with the local authorities in terms of Section 117 of the Act. The preference of adherence to law, regulations and public safety over commercial advertising is an internationally accepted norm. Public safety and proper regulation of traffic is the essence of Motor Vehicles Act, Central and State Rules thereunder. It will not serve the ends of law and public interest if these laws are rendered nugatory by the Corporation and other authorities in exercise of their powers.

       The intent of the Legislature is very dear from all the above referred provisions relating to design, manufacture, construction, equipping the vehicle, its registration, certification and it being a road worthy vehicle. Once it comes on the road, it is expected to adhere to all traffic regulations and environmental laws. Merely because the Corporation is generating some revenue for itself and that the applicant have spent considerable amounts in providing the vehicular infrastructure for advertising purpose per se is no ground to diminish the value of adherence to law and public necessity. Larger public interest must prevail over private interest and there are no equitable factors or circumstances which could tilt the balance in favour of the applicant and the Corporation.

       That the mobile hoarding vehicles shall not be parked on the main roads of Mumbai or even the carriage ways and would not obstruct free flow of traffic in any manner whatsoever at main roads and carriage ways of Mumbai. Resultantly, we see no reason to vacate the interim orders dated 13th March, 2008 and 3rd April, 2008. On the contrary, the above order are made absolute. The State Government and the Corporation to make appropriate regulations in exercise of their respective statutory powers and in consultation with the appropriate bodies in relation to advertisement hoardings. It need to be examined by these authorities whether such mobile hoarding vehicles can at all be granted such permission and/or licences in light of this judgment and the law in force. The concerned Police authorities and the Competent Authorities in the Corporation and the registering authorities to take action against such vehicles, and after giving them proper opportunity, in accordance with law and in light of the provisions of Motor Vehicles Act, 1988, particularly in relation to design, manufacturing, construction, equipping and alteration of vehicles and consequential impact thereupon upon registration of such vehicles. Court issued further directions to the Chief Secretary of the State of Maharashtra to examine all these cases and fix responsibility in all the concerned Department and Public Authorities, if the officers are found to be erring. Further the State should, in consultation with other Authorities, including Municipal Corporation and Police, should frame proper policy in regard to various facts examined by the Court in this judgment. All concerned authorities shall ensure compliance of this order in spirit and substance.

       Bombay Municipal Corporation Act, 1888 - Section 328-A-"Mobile Hoarding Vehicles"-Permission to drive and park such vehicles on roads in Mumbai-Guidelines framed by Commissioner for his own convenience under Section 328-A of Act-Cannot have any force of law per se.-Another very important aspect of the matter is source of power with the Corporation and other authorities. Except Section 328-A of the Mumbai Municipal Corporation Act, no other provision was referred to or brought to the notice of this Court which has even remote concern on the matter in issue in the present case. Of course, reference was made to the provisions of Sections 313 and 314 of the Mumbai Municipal Corporation Act, wherein the Corporation has power to remove without notice anything erected, deposited or hawked in contravention to the provisions of Sections 312 to 313-A. Those provisions have no bearing on the power of the Corporation to issue such permission/licences. It was a commonly stated case of all the parties before the Court that there is no other provision except under Section 328-A empowering the Corporation in this regard. Furthermore, in exercise of powers under proviso to Section 328-A the Corporation has not framed any regulation or rules. The so called policies are a mere guidelines framed by the Commissioner for exercising the alleged discretion vested in him under Section 328-A of the Act. These guidelines which have been framed by the Commissioner for his own convenience do not and cannot have any force of law per se.

       Bombay Municipal Corporation Act, 1888 - Section 328-A-Power of Corporation under-Exercise of-Limitations imposed by law cannot be transgressed by Corporation in exercise of its power under Section 328-A of Act-Corporation cannot infringe it in complete disregard to laws in force and cause public inconvenience and hurt environment-Powers of Corporation under Section 328-A of Act not all omnibus.-Powers of the Corporation under Section 328-A are not all omnibus. The Corporation cannot transgress limitation imposed by law in exercise of its powers under Section 328-A and infringe it in complete disregard to the laws in force and cause public inconvenience and hurt environment. Even otherwise, it is a settled principle of administrative law that exercise of powers stemming from the legislation has to be exercised carefully, upon due application of mind and in consonance with the provisions of the relevant laws in force. The Corporation is an appropriate authority or a body which is expected to improve public facilities and develop a city or a town to the best of its means but certainly within the prescribed limitations of law.