IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition (PIL) No. 26 of 2009 Neeraj Parihar .……… Petitioner Versus State of Uttarakhand & Others .………. Respondents Present: Mr. Sharad Sharma, Senior Advocate with Ms. Indu Sharma, Advocate for the petitioner. Mr. P.C. Bisht, Advocate for the respondent nos. 1 to 4. Mr. D.S. Patni, Advocate for respondent no. 5. Date of decision: 16-02-2010 JUDGMENT Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Sudhanshu Dhulia, J. J.S. KHEHAR, C. J. (Oral) The city of Nainital has a lake called Naini Lake. On the north side of the lake there are two roads described as the Upper Mall Road and the Lower Mall Road. The Upper and the Lower Mall Roads are connected with one and another throughout. They in fact run along one another. The most affluent commercial area in the city adjoins the Upper Mall Road. The District Magistrate, Nainital (respondent no. 3), passed an order restraining vehicular traffic over the Upper Mall Road during the entire year between 6.00 p.m. to 8.00 p.m. Additionally, during the summer season, when the city is overflowing with tourists vehicular traffic remains barred between 6.00 p.m. and 9.00 p.m. This restraint order has been in operation for a number of years. In implementing the aforesaid restraint order, rickshaws are also not permitted to ply over the upper mall. It is this restraint for plying rickshaws on the Upper Mall Road, that irks the petitioner. The instant writ petition has been filed to annul the restraint order in so far as it affects the plying of rickshaws on the Upper Mall Road. It is the contention of the petitioner, that the instant restraint order for rickshaws violates their right under the bye-laws for regulation of traffic in the Nainital Municipality issued under section 298 List I-H (B) and (m), E (B) & 298 List II H (p). 2 The aforesaid bye-laws were issued on 14.02.1917. The bye-laws, relevant to the present controversy, is bye-law-8. The same is being extracted hereunder for facility of reference: “8. During the season between the 1st April and the 15th of November- (1) No person shall take along the Upper North Mall. (a) any beast of burden, whether laden or not other than a camel, at any time. (b) any cart, hand cart or camel, whether laden or not excepting rickshaws whether carrying passengers or not between 12 noon and 8 p.m. (2) No laden coolie shall use the Upper North Mall. (3) (i) No person shall lead any horse, pony or dog for exercise along the Upper North Mall except between the hours of dawn and 9 a.m. (ii) No syce, except when accompanying his employer, shall at any time lead or ride a pony along the Upper North Mall. (4) No person shall carry timber or beams along any public road within the Municipality except between sunrise and 10 a.m. (5) No hawker or pedlar or any person whatsoever shall sit on the Upper North Mall or its continuation as far as the Church or at the back of the Volunteer Club for the purpose of sale of goods. On the other roads a hawker or pedlar or any other person shall not sit for the purpose of sale of goods except at such places as may from time to time be fixed by the municipal board on this behalf. Provided that any person excluded by this bye-law from the Upper North Mall may use it so far as is necessary to reach the opening on the lower road which is nearest the point on or above the Mall to or from which he is going.” In so far as the enforceability of bye-law-8 under the provisions of the Constitution of India is concerned, learned counsel for the petitioner has placed emphatic reliance on Articles 13 and 366(10) of the Constitution of India. It is therefore submitted, that in spite of the fact that the bye-laws under reference were issued in 1917, they had the force of law. Learned counsel for the respondents do not oppose the enforceability of the bye- laws at the present juncture, despite the fact, that they were promulgated as far back as 1917. Referring to bye-law-8, extracted hereinabove, it is the submission of the learned counsel for the petitioner, that other vehicular traffic can be restrained during defined hours of the day, but not rickshaws. In this 3 behalf, the attention of the Court has been invited to bye-law-8 (b). It is asserted, that under no bye-law, whatsoever, rickshaws can be restrained from plying on the Upper Mall Road. Accordingly, it is contended, that the order passed by the District Magistrate, Nainital (respondent no. 3), restraining plying of rickshaws on the Upper Mall Road during the period referred to hereinabove, is in clear violation of bye-law-8, extracted hereinabove. The second contention, advanced by the learned counsel for the petitioner, is based on section 298 (1) of the Uttar Pradesh Municipalities Act, 1916. Section 298 (1) of the Uttar Pradesh Municipalities Act, 1916 is also being reproduced hereunder: “298. Power of Municipality to make bye-laws.- (1) A Municipality by a special resolution may, and where required by the State Government shall, make, bye-laws applicable to the whole or any part of the municipal area, consistent with this Act and with any rule, for the purpose of promoting or maintaining the health, safety and convenience of the inhabitants of the municipal area and for the furtherance of municipal administration under this Act.” A perusal of the aforesaid provision reveals, that the bye-laws framed by a Municipality can be altered only through a resolution of the Municipality. Alternatively, the State Government may require a Municipality to alter its bye-laws, in such a situation, it is mandatory for the Municipality to amend its existing bye-laws in terms of the requirement of the State Government. It is therefore contended, that since no resolution has been passed by the Municipality, in so far as the town of Nainital is concerned, and since the State Government has not expressed its requirement to the Municipal Board, Nainital (respondent no. 5), it was not open to the authorities, more particularly respondent no. 3 i.e. District Magistrate, Nainital, to pass the restraint order referred to above. We have considered the two submissions advanced on behalf of the petitioner. The aforesaid two submissions pertain to activities at the hands of the Municipal Board, Nainital (respondent no. 5). The scope and ambit of power in terms of the bye-laws referred to by learned counsel for the petitioner, as also under section 298 (1) of the Uttar Pradesh Municipalities Act, 1916, reflect and expound the power vested with respondent no. 5, i.e. 4 the Municipal Board, Nainital, to pass an appropriate order in respect of the area falling within its jurisdiction. Had respondent no. 5 passed any order, restraining the plying of rickshaws the same was liable to be examined in the background of the parameters of the bye-laws, relied upon by the learned counsel for the petitioner, as also under section 298 (1) of the Uttar Pradesh Municipalities Act, 1916. That, however, is not the case in so far as the present controversy is concerned. Admittedly, the restraint order for plying of vehicles, including rickshaws on the Upper Mall Road has been issued by the District Magistrate, Nainital. Thus, we are satisfied, that there is no merit, whatsoever, in the two submissions advanced by the learned counsel for the petitioner, as has been noticed hereinabove. The District Magistrate, Nainital has the jurisdiction to administrate the territory falling under his control, keeping in mind the best interest of all concerned. Not only now, for many years, hithertofore a similar restraint order has been in force in respect of plying of vehicular traffic on the Upper Mall Road. Since the Upper and the Lower Mall Roads are located in the same city where the seat of this Court exists, and since Nainital is a small city, we can take judicial notice of the factual position of the ground realities. The prime shopping area of the city of Nainital is located on the Upper Mall Road, it is a matter of common knowledge, that the entire tourists influx, as also of the residents of the area, is on the Upper Mall Road for two reasons, firstly, because of the commercial activity at the said spot, and secondly, because the beauty of the lake adjoins the Upper Mall Road. Even those not interested in shopping are found taking a stroll on the Mall Roads at all times of the day. The rush of pedestrians is all the peak during the period for which the restraint order has been passed. During this time people are found rubbing shoulders with one another on the Upper Mall Road. It is, undoubtedly, in the proper administration of the Upper Mall Road, that the instant order has been passed by the District Magistrate, Nainital. The said order is obviously in public interest. But, then one can not lose sight of the fact, that vehicular traffic is permitted on the Lower Mall Road, as also from other roads leading to the two ends where the Upper Mall Road begins, as also where it ends. Since the Upper Mall Road and the Lower Mall Road are connected throughout their 5 lengths, and in fact, run parallel to one another, it is difficult to understand, the basis for the petitioner to have approached this Court for the relief in question. The averments made in paragraphs 5, 6 and 30 of the counter affidavit, filed on behalf of respondent no. 3, need a special mention. It has inter alia been pointed out therein, that the instant restraint order had been made, so as to avoid accidents on the Upper Mall Road, since tourists walk on the upper mall during the evening time. It is also pointed out in the counter affidavit, that the tourists from all over the country visit the spot throughout the year, and that there is rush on the Upper Mall Road at all times during the evening, more so during the summer season. For the reasons recorded hereinabove, we find no merit in this petition and the same is, accordingly, dismissed. (Sudhanshu Dhulia, J.) (J.S. Khehar, C. J.) 16.02.2010 16.02.2010 Amit