1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.871 OF 2007 Mr.Mohammed Atiq Shaikh, Sole Proprietor of Creative Enterprises, having his address at Bandookwala Chawl, 7A, Ground Floor, Room No.11, Badlu Rangari Street, Byculla (West), Mumbai - 400 008 ...Petitioner. Versus 1. Municipal Corporation of Greater Bombay, a statutory Corporation, constituted under the provisions of Bombay Municipal Corporation Act, 1888 having its Head Office at Mahapalika Bldg., Mahapalika Marg, Fort, Mumbai - 400 001. 2. Municipal Commissioner, having his Office at Mahapalika Building, Mahapalika Marg, Fort, Mumbai - 400 001. 3. Additional Municipal Commi- ssioner (Western Suburbs) having his Office at Municipal Corporation of Greater Bombay, Mahapalika Building, Mahapalika Marg, Fort, Mumbai - 400 001. 4. The Director (E.S. & P.), having his Office at Municipal Corporation of Greater Bombay, Mahapalika Building, Mahapalika Marg, Fort, Mumbai - 400 001. 5. Deputy Municipal Commissioner, (Zone I), (Wards A,B,C,D, & E) having his office at E Ward, 2 Municipal Office Building, 10, Shaikh Hafizuddin Marg, Byculla, Mumbai - 400 008. 6. Deputy Municipal Commissioner, (Zone II), (Wards F/S, F/N, G/S and G/N) having his Office at F/South Ward, Municipal Office Building, Junction of Dr.B.R. Ambedkar Road and Jagannath Bhatankar Marg, Parel, Mumbai - 400 012. 7. Deputy Municipal Commissioner, (Zone III), (Wards H/E, H/W, K/E and K/W) having his Office at Municipal office Building, Paliram Road, Off. S.V. Road, Opp. Andheri Station, Andheri (West), Mumbai - 58 8. Deputy Municipal Commissioner, (Zone IV) (Wards P/S, P/N, R/S and R/N, R/C) having his office at R/South Ward, Municipal Office building, Mahatma Gandhi Cross Road No.2, Near Sardar Patel Swimming Pool, Kandivli (West), Mumbai - 400 067. 9. Deputy Municipal Commissioner (Zone V) (Wards L, M/E & M/W) having his office at M/West Ward, Municipal Office Bldg., Sharadbhau Acharya Marg, Near Natraj Cinema, Chembur, Mumbai - 400 071. 10. Deputy Municipal Commissioner, (Zone VI) (Wards N/S and T), having his office at N Ward, Municipal Office Building (Annex), Jawahar Road, Ghatkopar (E), Mumbai - 77 11. Assistant Municipal Commissioner, having his office at ’A’ Ward, Municipal Office Building, 134-E, Shahid Bhagatsing Road, Near Reserve Bank of India, Fort, Mumbai 400 001. 12. Assistant Muncipal Commissioner, having his office at ‘B’ Ward, Municipal Office Building, 3 121, Ramchandra Bhatt Marg, J.J. Hospital, Mumbai - 9. 13. Assistant Municipal Commissioner, having his Office at ‘C’ Ward, Municipal Office Building, 76, Shrikant Palekar marg, Chandanwadi, Near Electric Crematorium, Mumbai 400 002. 14. Assistant Municipal Commissioner, having his office at ‘D’ Ward, Municipal Office Building, Jobanputra Compound, Nana Chowk, Mumbai - 400 007. 15. Assistant Municipal Commissioner, having his office at ‘E’ Ward, Municipal Office Building, 10, Shaikh Hafizuddin Marg, Byculla, Mumbai - 400 008. 16. Assistant Municipal Commissioner, having his office at F/South Ward, Municipal Office Building, Junction of Dr.B.R. Ambedkar Road & Jagannath Bhatankar Marg, Parel, Mumbai - 400 012. 17. Assistant Municipal Commissioner, having his office at F/North Ward, Municipal Office Building, Plot No.96, Bhau Daji Marg, Matunga, Mumbai - 400 019. 18. Assistant Municipal Commissioner, having his office at G/South Ward, Municipal Office Building, N.M. Joshi Marg, Elphinstone, Mumbai - 400 013. 19. Assistant Municipal Commissioner, having his office at G/North Ward, Municipal Office Building, Harishchandra Yelve Marg, Behind Plaza Cinema, Dadar, Mumbai - 400 028. 20. Assistant Municipal Commissioner, having his office at H/East Ward, Municipal Office Building, Plot No.137, T.P.S. - V, Prabhat Colony, Santacruz (E), Mumbai - 400 051. 4 21. Assistant Municipal Commissioner, having his office at H/West Ward, Municipal Office Building, St. Martins Road, Behind Bandra Police Station, Bandra (W), Mumbai - 400 050. 22. Assistant Municipal Commissioner, having his office at K/East Ward, Municipal Office Building, Azad Road, Gundavali, Andheri (E), Mumbai 400 069. 23. Assistant Municipal Commissioner, having his office at K/West Ward, Municipal Office Building, Paliram Road, Off S.V. Road, Opp. Andheri Station, Andheri West, Mumbai - 400 058. 24. Assistant Municipal Commissioner, having his office at L Ward, Municipal Office Building, Laxmanrao Yadav Market Bldg., S.G. Barve Marg, Kurla (W), Mumbai - 400 070. 25. Assistant Municipal Commissioner, having his office at M/East Ward, Municipal Office Building, Sharadbhau Acharya Marg, Near Natraj Cinema, Chembur, Mumbai - 400 071. 26. Assistant Municipal Commissioner, having his office at M/West Ward, Municipal Office Building, Sharadbhau Acharya Marg, Near Natraj Cinema, Chembur, Mumbai - 400 071. 27. Assistant Municipal Commissioner, having his office at N Ward, Municipal Office Building, (Annex), Jawahar Road, Ghatkopar (E), Mumbai 77. 28. Assistant Municipal Commissioner, having his office at P/South Ward, Municipal School Building, Mithanagar, Goregaon (West), Mumbai - 400 062. 29. Assistant Municipal Commissioner, having his office at P/North Ward, 5 Municipal Office Building, Liberty Garden, Mamlatdar Wadi Marg, Malad (W), Mumbai 64. 30. Assistant Municipal Commissioner, having his office at R/South Ward, Municipal Office Building, Mahatma Gandhi Cross Raod No.2, Near Sardar Patel Swimming Pool, Kandivali (West), Mumbai - 400 067. 31. Assistant Municipal Commissioner, having his office at R/Central Ward, Municipal Market Building, Near Railway Station, S.V. Road, Borivali (West), Mumbai - 400 092. 32. Assistant Municipal Commissioner, having his office at R/North Ward, Municipal Office Building, Below Sangeetkar Sudhir Phadke Flyover Bridge, Jaywant Sawant Marg, Dahisar (W), Mumbai 68. 33. Assistant Municipal Commissioner, having his office at S Ward, Municipal Office Building, Near Mangatram Petrol Pump, L.B.S. Marg, Bhandup (W), Mumbai - 400 078. 34. Assistant Municipal Commissioner, having his office at T Ward, Municipal Office Building, Lata Devi Dayal Marg, Mulund (W), Mumbai - 400 080. 35. Deputy Chief Engineer (Traffic) having his office at 1st floor, opp. Geeta Cinema, Dr.E. Moses Road, Worli, Mumbai - 400 018. 36. Joint Commissioner of Police (Traffic), having his office at 87, Sir Pochkhanwala Road, Traffic Police Headquarters, Worli, Mumbai - 400 025. ......Respondents. Mr.J.P. Sen with Mr.H.N. Thakore i/by Thakore Jariwala Associates for the petitioner. Mr.D.A. Nalawade, G.P. for the State. 6 Mr.K.K. Singhvi, senior advocate with Ms.Aruna Savla for B.M.C. CORAM : SWATANTER KUMAR, C.J. & CORAM : SWATANTER KUMAR, C.J. & CORAM : SWATANTER KUMAR, C.J. & J.P. DEVADHAR, J. J.P. DEVADHAR, J. J.P. DEVADHAR, J. JUDGMENT RESERVED ON : 24th March, 2008 JUDGMENT RESERVED ON : 24th March, 2008 JUDGMENT RESERVED ON : 24th March, 2008 JUDGMENT PRONOUNCED ON : 10TH APRIL, 2008 JUDGMENT PRONOUNCED ON : 10TH APRIL, 2008 JUDGMENT PRONOUNCED ON : 10TH APRIL, 2008 ORAL JUDGMENT (Per J.P. Devadhar, J.) 1. The Petitioner carrying on business as a Pay and Park contractor in the City of Mumbai has filed the present writ petition to challenge the action of the Municipal Corporation in awarding the Pay and Park sites to the contractors without inviting tenders as required under the Municipal Circular dated 19-8-2002. Accordingly, the petitioner seeks immediate implementation of the said circular dated 19/8/2002. 2. Under Section 326A of the Mumbai Municipal Corporation Act, 1888 (‘MMC Act’ for short) the Corporation is entitled to earmark parking or halting places for vehicles on any part of the public street or public place, so that the vehicles are parked at the earmarked places on payment of charges as may be prescribed. 3. With a view to streamline the vehicular movement, the Corporation introduced a scheme vide 7 circular dated 19-8-2002 for identifying the locations, where the vehicles can be parked and probable locations for implementing the Pay and Park schemes. The circular provides that initially the Assistant Commissioner to implement the scheme by allotting the Pay and Park locations either to the nearby Pay and Park agencies through spot quotations for a period of six months or by appointing security guards. It also sets out the procedure for inviting the quotations and castes an obligation upon the Assistant Commissioner to ensure uniform implementation of the tariff. Once the site is successfully established at least for three months, then the tenders are to be invited for a period of 24 months by publishing notices in the newspaper through the tender process and then the contract for operating the Pay and Park sites are to be awarded to the highest tenderer. 4. According to the petitioner, the above circular is not being implemented in totality and even today there are several sites which continue to be run without inviting tenders. The petitioner contends that the modus-operandi operated by the Assistant Municipal Commissioner in different words is to run the scheme at the ward level only, without inviting tenders, thereby depriving the contractors like the petitioner to bid for the same. It is 8 contended that the tenders have not been invited with a view to favour certain people. It is contended that by not inviting tenders, monopoly is created in favour of few to the exclusion of others who are similarly situated, which is impermissible in law. It is submitted that the failure on the part of the Corporation in not providing level playing field for all the contractors who are similarly situated is violative of fundamental rights of the petitioner. 5. The petitioner further contends that at some places the Corporation has permitted exclusive use of the streets of Mumbai for parking the vehicles of the member and/or employees and/or group of any particular section of people which is illegal and not permissible in law. Accordingly, it is prayed that the Corporation be directed to comply with the conditions set out in the circular dated 19-8-2002 by inviting tenders in respect of all the Pay and Park sites. 6. On behalf of the Corporation, however, it is contended that the tenders have been floated for running the Pay and Park sites in accordance with the provisions of Section 326 A of the MMC Act and as per the circular dated 19-8-2002. It is contended that the circular does not require the 9 Corporation to include all the sites in the tender notice for running the Pay and Park schemes. According to the respondents, there are total 108 pay and park sites available, out of which 94 sites have been included in the tender issued on 10-5-2007 and remaining 14 sites have not been included in the said tender, because the contract in respect of said sites are not yet over. On behalf of the Corporation, it is submitted that as soon as the contract period in respect of these sites are over, steps would be taken to invite the tenders in respect of the said sites also. 7. Having heard the counsel on both sides and in the light of the stand taken by the Corporation, we do not consider it necessary to pass any directions in the present case. The main grievance of the petitioner is regarding implementation of the circular dated 19-8-2002 and the Corporation in its reply filed from time to time has clearly stated that effective steps are being taken for implementing the Pay and Park scheme in accordance with the circular dated 19-8-2002. 8. The grievance that public places should not be allowed to be exclusively used by members of private organisations has already been considered by this Court in Writ Petition No.1439 of 1998 and 10 negatived in view of the fact that the license fee charges in respect of said the location is higher than the license fees offered by the tenderers. Moreover, the said organisation / trust / unions are liable to pay 10% yearly increase in the license fees. In respect of the other locations, we have no reason to disbelieve the statement of the Corporation that the circular dated 19/8/2002 has been substantially complied with and that the Corporation shall implement the said circular in letter and spirit. We make it clear that the Corporation shall adopt uniform method in the matter of inviting tenders for the pay and park sites under the circular dated 19/8/2002. 9. For all the aforesaid reasons, we see no merit in the present petition and the same is hereby dismissed, however, with no order as to costs. CHIEF JUSTICE J.P. DEVADHAR, J.