1 IN IN IN THE HIGH COURT OF JUDICATURE OF BOMBAY THE HIGH COURT OF JUDICATURE OF BOMBAY THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2275 OF 2008 Edmund Sequeira. ..Petitioner V/s. Brihanmumbai Municipal Corpn. & Ors. ..Respondents. Mr.Chetan Akerkar for petitioner. Mr.K.K.Singhvi, Sr.Advocate with N.A.Shaikh for respondent. Mr.Yadav i/b. Aditya Chitale for applicant in C.S.No.325 of 2008. CORAM: CORAM: CORAM: A.M.KHANWILKAR,J A.M.KHANWILKAR,J A.M.KHANWILKAR,J DATE DATE DATE : OCTOBER 14, 2008. : OCTOBER 14, 2008. : OCTOBER 14, 2008. P.C. P.C. P.C. : : : 1. Heard Counsel for the parties 2. By this Petition, Notice-cum-Order issued by the Assistant Engineer (Main) H/W in exercise of authority under Section 314 of the Mumbai Municipal Corporation Act, 1999 is assailed. The basis on which that action was taken by the authority is on the assertion that the Petitioner was indulging in permanent parking of private vehicle on the existing storm water drain. The Corporation authority was of the view that permanent parking of private vehicle on existing storm water drain was causing obstruction and resulting in nuisance and uncleanliness to the 2 pedestrian and also to clear storm water drain/road operation, on account of which several complaints were received from the residents of Somnath Lane. 3. Counsel appearing for the Petitioner fairly accepts that act of parking of private vehicle on the public street cannot be asserted as a fundamental right. Counsel for the petitioner is unable to point out any statutory provision, which would permit the Petitioner to "permanently" park private vehicle on existing storm water drain. Thus understood, grievance of the Petitioner is not amenable to jurisdiction under article 226 of the Constitution of India. In any case, the Petitioner cannot be permitted to contend that the Petitioner has right to permanently park her private vehicle on a public street or on existing storm water drain. Counsel for the Petitioner however, relies on the decision of our High Court to contend that the proposed action of the Corporation is without authority of law. According to the Petitioner, it is not open to the Corporation to take recourse to section 314 of the Act to remedy the mischief alleged in the impugned notice-cum- order. Reliance is placed on the decision reported in Noshir Shapurji Dhabhar & Ors. V/s. Municipal Noshir Shapurji Dhabhar & Ors. V/s. Municipal Noshir Shapurji Dhabhar & Ors. V/s. Municipal Corpn. Corpn. Corpn. of Greater Bombay & Anr. reported in 1989 of Greater Bombay & Anr. reported in 1989 of Greater Bombay & Anr. reported in 1989 (2) BCR 221, BCR 221, BCR 221, in particular, observations in 3 paragraph-8 thereof. In the said decision, it is observed that there is no authority given to the municipal Corporation to regulate the traffic or to charge fee for purpose of parking of vehicle on public street. This observations is obviously in the context of challenge to the power of Corporation to regulate traffic or to charge fee for purpose of parking vehicle. In the present case, the proposed action against the Petitioner’s vehicle is not in the nature of regulating traffic or to charge fee for the purpose of parking vehicle, but it is to regulate the public street and existing storm water drain, which is under complete control of the Corporation, as can be discerned from purport of section 220 of the Act. That provision stipulates that all streets within the suburban other material thereof shall waste in corporation and under the control of commissioner. Thus understood, the action, which is impugned in this Petition, is in the nature of regulating existing storm water drain. No more and no less. 4. Counsel for the Petitioner would however, rely on another decision of our High Court in the case of Municipal Corporation of Gr.Bombay v/s. Municipal Corporation of Gr.Bombay v/s. Municipal Corporation of Gr.Bombay v/s. Noshir Noshir Noshir reported in 1991 (1) BCR 53. reported in 1991 (1) BCR 53. reported in 1991 (1) BCR 53. Emphasis was placed on the dictum in paragraph-17 and in particular 19 of this Judgment to contend that 4 expression "any other thing" does not encompass the vehicle which is parked in public street. Indeed, the Division Bench of our High Court has taken the view that expression "any other thing" does not cover any vehicle which was parked in public street. At the same time, in paragraph-19, Court went on to observe that right to use the public street includes a right to stop in public street "for a reasonable period" - provided the same do not cause any obstruction or did not violate traffic rules. It is further observed that section 313 deals with the cases of obstruction or encroachment caused by stall, chair, bench, box, ladder, bale, board or shelf or any other thing. Parking a vehicle in a parking zone or area obviously could not constitute obstruction or trespass in the manner in which placing or deposit of a stall, chair, bench, box, ladder, bale, etc. would do. Those observations will have to be understood in the context of challenge to the power of corporation to regulate traffic or to charge fee for the purpose of parking of vehicles as aforesaid. Whereas, the impugned action resorted to by the authority is to regulate public street and existing storm water drain in the area, where the Petitioner has allegedly permanently parked her vehicle thereby causing obstruction and nuisance to the nearby residence and pedestrian as also affecting proper maintenance of 5 the public street and cleaning of the storm water drain. Viewed thus no fault can be found with the Notice-cum-order issued by the Assistant Engineer(Main), H/W dated 19th August, 2008 and 18th September, 2008. 5. To get over this position, Counsel for the Petitioner would contend that the Petitioner is parking the vehicle in such a manner that no obstruction is caused to the pedestrian or residents of the building. That obviously is a disputed question of fact, which cannot be examined in the writ jurisdiction. Accordingly, this Petition is devoid of merits. Hence dismissed. 6. In view of the order passed in Writ Petition, no further orders are required in Chamber Summons. The same is disposed of accordingly, (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)