SSK/ 1 WP/ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1383 OF 2010 Lillian Pais & Ors. ....Petitioners Versus State of Maharashtra & Ors. ...Respondents Ms. Pooja V. Thorat, Advocate for the petitioners. Mr. D. A. Nalawde, GP for Respondent Nos. 1, 3 & 4. Mr. K. K. Singhvi, Sr. Counsel for BMC. Mr. Parag Pradhan, Advocate for applicants/proposed respondents in Chamber Summons No. 292 of 2010. Mr. Desmond D’Souza, party in person/proposed respondent no.1 in Chamber Summons No.296 of 2010. Mr. M. V. Limaye, Advocate for applicants/proposed respondents in draft Chamber Summons of 2010. CORAM : SMT. RANJANA DESAI & R. V. MORE, JJ. DATED : 28TH SEPTEMBER, 2010. P.C.: The petitioners are residing in the vicinity of Mount Mary Church, Mount Mary Road, Bandra (West), Mumbai – 400 050. In this petition filed under Article 226 of the Constitution of India, the basic grievance of the petitioners is about the inconvenience caused to them during a Fair which is popularly known as Bandra Fair which is held near the Mount Mary Church in Bandra every year in the month of September. According to the petitioners, the 2nd respondent – Mumbai Municipal Corporation SSK/ 2 WP/ (Corporation for short) permits unauthorized hawkers to hawk on the roads surrounding the Bandra Church. The unauthorized hawkers cause great nuisance to the residents of the area. The residents of the area are put to great inconvenience inasmuch as it becomes difficult for them to ply their cars. During the relevant period when the Bandra Fair is held, buses cannot ply on the roads. Even, school buses face difficulties. It is feared that it would be difficult for ambulances or fire brigades to reach their destinations, if need be, on account of the menace created by the unauthorized hawkers. It is suggested in the petition that the Corporation is illegally auctioning the stalls and the police are party to the illegalities. 2. This petition was moved before us just about two days prior to the Fair. On 1st September, 2010, Mr. Singhvi, learned senior counsel, made a statement that 165 hawkers are authorized pitch holders. After recording his statement that Corporation will permit only 165 hawkers to erect their stalls, we adjourned the petition to 27th September, 2010. A notice of motion has been taken out by learned counsel for the petitioners making a grievance that the statement made by Mr. Singhvi in our Court was breached and more than 165 hawkers were allowed to hawk on the streets. We find that in the affidavit in support of the notice of motion, certain serious allegations are made that about 100 persons approached the house of petitioner no.1 and threatened her. It is suggested SSK/ 3 WP/ that this was done to force her to withdraw the petition. Allegations are also made about the conduct of the police and initiation of contempt action is sought against the police and the Corporation. Affidavit in reply has been filed by Mr. Kshirsagar, Assistant Commissioner, “H/West Ward” of the Corporation. We have granted intervention applications of hawkers/stallholders and another section of residents. 3. This petition involves a sensitive issue. While, we are concerned about inconvenience caused to the residents of the area, we also have to take note of the sentiments of some of the interveners who claim that for several years they have been hawking on these streets. According to them, that is their source of livelihood and this hawking has also a religious significance. There is another section of residents who appear to be supporting these hawkers. We must make it clear that at this stage we are not expressing any final opinion on any of the claims made by the parties and also on the allegations made by the petitioners in the affidavit in support of the notice of motion. In a matter of this type, where religious sentiments are involved and also citizens’ right to lead peaceful life free of inconvenience and nuisance is involved, the Court has to try to balance rival interests. We cannot issue an order in this petition directing that the Fair should not be held. As to which hawkers should be permitted to hawk on SSK/ 4 WP/ the streets is a matter which falls in the domain of the Corporation. As to what security measures should be taken is a concern of the Commissioner of Police, Mumbai and his staff. 4. We appreciate the anxiety expressed by the petitioners. We feel that the petitioners and the interveners should make a representation to the Corporation setting out their case. After hearing them, the Corporation will have to work out some strategy, whereby in future, the Fair is held without causing inconvenience to the residents. Counsel for the parties have stated that their clients would address their representation to the Corporation. Counsel for the Corporation submitted that the said representations would be considered in their proper perspective and with the help of all concerned, some strategy will be worked out. 5. So far as this petition is concerned, it has worked itself out because the Fair of 2010 is over. We shall deal with the prayers so that the petition can be disposed of. Prayer (a) seeks setting-aside of notifications issued till 2009 by the 2nd respondent. No details of the said notifications have been given and order is sought that we should direct not to hold the Bandra Fair. We cannot pass such order. This prayer, therefore, cannot be granted. SSK/ 5 WP/ Prayer (b) seeks a direction from this Court to the 2nd respondent not to issue any circular or notification and/or any order to hold any activity in regard to the Bandra Fair. This is too wide a prayer. No particulars are given. Such a wide prayer cannot be granted. Prayer (c) states that respondent no.2 should be directed to permit the Bandra Fair to be held as per the Supreme Court guidelines laid down in order dated 9th December, 2003. It is contended by the counsel for the petitioners that exhibit “G” to the petition contains the guidelines. But, Mr. Singhvi, learned Senior Counsel states that it does not pertain to any Fair. We do not want to go into this aspect, but if indeed there are any guidelines of the Supreme Court , we expect the Corporation to keep them in mind. Prayer (d) states that the Corporation should be directed not to allow any illegal or unauthorized hawkers to hawk on any of the roads surrounding the area of the Mount Mary Church. Obviously, illegal and unauthorized activities cannot be encouraged by the Corporation. So this is stating the obvious. The Corporation should permit hawking in accordance with law. SSK/ 6 WP/ Prayer (e) states that the Corporation should be directed to give an undertaking to remove illegal and unauthorized hawkers and/or their stalls and booths on any of the the roads surrounding the Mount Mary Church. This prayer does not survive because the Fair is over. However, as we have already expressed, in future, since we expect the Corporation not to give permission to unauthorized hawkers to hawk on the concerned streets, hopefully the question of removal of illegal hawkers would not arise. Prayer (f) seeks a direction to respondent no.3 i.e. Commissioner of Police, Western Region Office, West Control, Carter Road, Bandra (West) to scrupulously follow and maintain law and order situation during the Bandra Fair. We think that this is the duty of the 3rd respondent. We do not think we need to remind him of his duty. The police must maintain law and order. Prayer (g) states that Respondent No.4 i.e. Traffic Department should be directed to allow the residents to use their vehicles in the vicinity of Bandra Fair without restrictions. Having regard to the relevant rules and regulations and other relevant considerations, the Traffic Department should ensure that the residents are not inconvenienced and they are allowed to ply their vehicles. If certain reasonable restrictions are placed on the residents, the residents cannot make any grievance about them, because SSK/ 7 WP/ as we have already noted, we have to balance interests of both the residents as well as those who participate in the Bandra Fair. Reasonable restrictions cannot be objected to. Prayer (h) states that respondent no.5- Fire Brigade Department be directed to submit a report before the commencement of Bandra Fair regarding the proper working of fire hydrants and location of additional fire brigade vans in the vicinity of Bandra Fair. This is a good suggestion and we expect the Corporation to take into account this suggestion and co- ordinate with the Fire Brigade Department while deciding the representations made by the parties. There should be a proper arrangement in place to ensure that if there is a fire, there is an arrangement to ensure that fire engines are available to douse it. Prayer (i) states that the Corporation should be directed to continue the bus service to the area of Mount Mary Church during the Bandra Fair and further direction be issued that extra bus service be made available for smooth circulation of traffic. The Corporation while deciding the representations made by the parties should keep this aspect which pertains to the BEST in mind. The 6th respondent – Best should co- ordinate with the police department to ensure that the bus service is properly monitored during the relevant period. SSK/ 8 WP/ Prayer (j) seeks direction to respondent no.2 not to auction stalls on any new road other than those mentioned in the notification issued in the year 2009. Notification of 2009 must have definitely lapsed. So far as auction of stalls is concerned, that is entirely the concern of the Municipal Corporation and we expect the Corporation to hold auctions in accordance with law. Prayer (k) states that the Corporation may be directed to ensure that Bandra Fair is limited to 8 days and further direction be issued not to permit any commercial activity on the 9th day and initiate action against anyone who flouts this direction. Counsel for the petitioners states that the Fair is held by the Corporation. Mr. Singhvi, learned Senior Counsel states that the Fair is not held by the Corporation, the Corporation only renders assistance. Learned counsel appearing for one section of the residents states that the Fair is held by the Mount Mary Church. It is not necessary for us to give finding as to who holds the Fair, but whoever holds the Fair must ensure that it is held for as many days as it is limited to. Prayer (l) again refers to Fire Brigade which has already been dealt with. Thus, all the prayers have been taken care of. SSK/ 9 WP/ 6. Though 2010 Fair is over, we feel that if a detailed representation is addressed by all the petitioners and interveners, the same should be considered by the Deputy Commissioner in charge of Zone 3 of the Corporation after hearing the representatives of the petitioners and the representatives of the interveners. We hope and trust that the Deputy Commissioner will take into consideration the grievance of the residents, the case of the interveners and work out a proper strategy with the help of the Police Commissioner and the BEST. We hope this strategy continues to hold the field hereafter. The petition is disposed of, accordingly. (R. V. MORE, J.) (SMT. RANJANA DESAI, J.)