1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION PUBLIC INTEREST LITIGATION (L) NO.82 OF 2007 1. Marine Drive (GHEF) Residents’ Welfare Association, an Association registered under the provisions of Societies Registration Act, 1869, repre- senting Societies/builders located on the G,H,S and F Roads of Marine Drive having its office at 96, Marine Drive, 4/15, "H" Cross Road, Mumbai - 2 2. Chandresh Shah, of Mumbai, Indian Inhabitant, President of the Petitioner No.1, residing at 96, Marine Drive, 4/15, "H" Cross Road, Mumbai - 400 002. ....Petitioners. Versus 1. State of Maharashtra, acting through the Joint Commissioner of Police (Traffic) having his office at Traffic Police Head Quarters, 87, Sir, Pochkhanwala Road, Worli, Mumbai - 400 025. 2. Municipal Corporation of Greater Mumbai, having its Head Office at Mahapalika Marg, Fort, Mumbai - 400 001. 3. Municipal Commissioner, having his office at Municipal Corpo- ration of Greater Mumbai, Municipal Head Quarters, Mahapalika Marg, Mumbai - 1. 4. Assistant Municipal Commissioner, "C", Ward having his office at 6, "C", Ward, 76, Shrikant Palekar Marg, Chandanwadi, Mumbai - 400 002. 5. The Superintendent of Gardens and Tree Office, having his office at Municipal Corporation’ of Greater Mumbai, Veer Jija- 2 mata Bhosale Udyan, Dr.Ambedkar Road, Byculla, Mumbai - 400 027....Respondents. Mr.Pradeep Madhyan i/by Mr.K.K. Tiwari for the petitioners. Mr.K.K. Singhvi, senior counsel with Ms.S., Ajithkumar for B.M.C. Mr.N.P. Pandit, AGP for State. Mr.Ashwin Ankhad i/by A. Ankhad & Associates for the intervenor. 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 : 13th March, 2008 JUDGMENT RESERVED ON : 13th March, 2008 JUDGMENT RESERVED ON : 13th 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. In this public interest litigation, the grievance of the petitioners is that the authorities under the Mumbai Municipal Corporation Act, 1888 have been granting permission to hold various exhibition on the public footpath abutting the marine drive illegally and without authority of law. The petitioners inter alia seek a writ or order directing the Municipal Authorities to frame the guidelines / policy in the matter of granting permission for private user and exploitation / including holding of exhibition-cum-sale / fair / event on the public footpath. The petitioners have also challenged the order dated 6-11-2006 passed by the Assistant Municipal Commissioner, "C" Ward, 3 wherein permission was granted to hold Plant exhibition-cum-sale on the service passage of the eastern carriageway on Netaji Subhash Road in "C" ward, subject to the conditions set out therein. 2. The Petitioner No.1 is an Association registered under the Societies Registration Act, 1860 and is an Association of Societies / Buildings located in G,H,E,F Roads at Marine Drive, Mumbai. 3. In the year 2000, the Municipal Authorities had granted permission to hold exhibition-cum-sale of plants on the footpath near marine drive which according to the petitioners was without the authority of law. Therefore, the petitioners had objected to holding such exhibition-cum-sale on the footpath meant for pedestrians by making representation inter alia on the ground that considerable inconvenience was caused to the residents of the locality and also the general public. In the year 2003, the petitioners were informed by the Municipal Authorities that they have imposed a ban in holding such exhibitions and that no permission would be granted in future. In fact, no exhibitions were held during the year 2003-2004. 4. However, in the month of November, 2005 once again the exhibitions were held on the public 4 footpath on the basis of the permission granted by the Municipal Authorities. Challenging the action of the Corporation, the petitioners had filed a writ petition bearing No.161 of 2006. On 21-12-2006 the said writ petition was dismissed as withdrawn. On 20-6-2007, petitioners took out Notice of Motion for restoration of the said writ petition. However, this Court declined to restore the writ petition but granted liberty to the petitioners to make representation to the Corporation. Accordingly, the petitioners made a representation on 18-7-2007. As there was no response, the petitioners filed the present petition on 30-10-2007. During the pendency of the writ petition, the Municipal Authorities by the impugned order dated 6-11-2007 held that the Corporation is empowered to grant permission to hold exhibitions on the public footpath subject to the conditions set out therein. The petition has been amended to challenge the said order dated 6-11-2007. 5. Mr.Madhyan, learned counsel appearing on behalf of the Corporation submitted that the Municipal Authorities had no power / authority to grant permission to hold exhibition-cum-sale on public roads / footpaths / passages / carriageways, more particularly on roads which are declared as non hawking zones. He submitted that by granting permission to hold exhibition, the Municipal 5 Authorities have acted beyond the power vested in them under the provisions of law. 6. The learned counsel for the petitioner further submitted that there are no guidelines or rules framed by the Corporation in the matter of granting permission to hold exhibitions on the foot path. In spite of the above, the permission granted by the Corporation to hold exhibition clearly shows arbitrariness and non application of mind on the part of the Municipal Authorities. Relying upon the judgment of the Apex Court in the case of Municipal Corporation of Delhi V/s. Gurnam Kaur reported in 1989 (1) S.C.C. 101, the learned counsel for the petitioner submitted that holding of exhibition on public footpath which creates congestion and causes inconvenience to the general public cannot be permitted. Accordingly, the learned counsel for the petitioner submitted that the Municipal Authorities be directed to frame the guidelines and till then not to grant permission to hold any exhibition-cum- sale / fair / events on public footpath / streets / passage / carriageways. 7. Mr.Singhvi, learned senior counsel appearing on behalf of the Corporation, on the other hand submitted that the present writ petition is not maintainable in as much as various disputed 6 questions of facts are raised in the present writ petition, which cannot be decided without leading oral as well as documentary evidence. 8. Mr.Singhvi further submitted that the petitioners have been initiating proceedings year after year and all of them have been dismissed from time to time. In writ petition bearing P.I.L. (L) No.9 of 2006 filed by the petitioners, this Court on 18-1-2006 directed the Corporation to ensure that no nuisance of any kind whatsoever shall be caused to the pedestrians or vehicular traffic during the exhibition. By the said order, the Assistant Commissioner of Police (Traffic) Mumbai City was directed to ensure that 12 feet wide passage is kept free for pedestrians and vehicular traffic and that the pedestrians and the vehicular traffic are not inconvenienced from using the 12 feet wide passage. 9. Mr.Singhvi further submitted that under the Maharashtra (Urban Areas) Protection and Preservation of Trees Act, 1975 it is the duty of the Corporation to encourage exhibition of flower, vegetable, tree or plant shows (atleast once a year) and assist private and public institutions in organising such shows to create consciousness and importance of trees and vegetables to human welfare. 7 10. Mr.Singhvi further submitted that in the light of the complaints received from the petitioners in the year 2000, for some time the exhibitions were not held, however, in the year 2005, in the larger public interest, the Additional Municipal Commissioner (City) has granted permission to hold exhibitions subject to the organisers furnishing a plan by which the pedestrians will not have to face any inconvenience. Accordingly, exhibitions were held by keeping 12 feet wide footpath clear for the pedestrians. As far as the issue of hawking and non-hawking zones is concerned, Mr.Singhvi submitted that the matter is pending before the Apex Court and, therefore, no order can be passed in that respect by this Court. Accordingly, Mr.Singhvi submitted that in view of the fact that adequate measures have been taken by the Corporation to ensure that least inconvenience is caused to the general public, the present writ petition is liable to be dismissed. 11. On careful consideration of the rival submissions, we are of the opinion that, this is not a fit case for entertaining the present Public Interest Litigation. The main grievance of the petitioners have already been met by this Court, in Public Interest Litigation (L) No.9 of 2006 by ordering on 18-1-2006 that the Corporation has to 8 ensure that 12 feet wide passage is kept free for pedestrian and vehicular traffic. It is not the case of the petitioners that the respondents have violated the above directions given by this Court on 18/1/2006. 12. The argument of the petitioners that without framing the guidelines, the Corporation cannot grant permission to hold exhibition has no merit, because, it is for the Corporation to decide as to whether any guidelines are to be framed or not in the matter of holding exhibitions on the footpath. So long as the permission to hold exhibition are granted by the Corporation bonafide and do not inconvenience the general public or are not arbitrary or discriminatory, the permission to hold such exbibitions cannot be struck down on the ground that no guidelines have been framed. 13. The question of framing guidelines would arise only when it is found that the Corporation is taking inconsistent stand in the matter of granting permission to hold exhibitions on the footpath or the decision suffers from the vice of arbitrariness. The decision of the Apex Court in the case of Gurnam Kaur (supra) relied upon by the petitioner has no relevance to the facts of the present case. In that case, the question was whether the High Court could 9 issue a direction to the Corporation to construct a stall on the pavement; whereas in the present case, the question relates to granting permission to hold exhibitition without framing guidelines and that too on the service road. Thus, the aforesaid decision is distinguishable on facts. In the present case, the exhibitions are held occasionally on the service road and that too subject to the compliance of the conditions laid down by this Court in its order dated 18/1/2006. However, we make it clear that the Corporation shall ensure compliance of the aforesaid directions of this Court at all times. 14. In this view of the matter, we see no merit in the matter and the same is hereby dismissed with no order as to costs. CHIEF JUSTICE J.P. DEVADHAR, J.