Supri Advert.& Entertainment Pvt.Ltd vs Anahita Pandole & Ors

the two appeals and the connected applications,

they were taken up for hearing together.

2. The respondent herein, Dr. Anahita Pandole,

filed Writ Petition no.1132 of 2002 before the

Bombay High Court for relief mainly against the

Municipal Corporation of Brihan Mumbai and its

authorities in granting licences for mobile

hoardings, purportedly in violation of the

provisions of Sections 308, 328 and 328A of the

Mumbai Municipal Corporation Act, 1888, Section

116 of the Motor Vehicles Act, 1988 and the

provisions of the Maharashtra (Urban Areas)

Preservation of Trees Act 1975. The writ

petition appears to have been filed on account

of the writ petitioner's concern regarding the

destruction of flora and fauna and the

environment of Mumbai, the damage to heritage

buildings in the city and also the prejudice

purportedly caused to the safety of pedestrians

and motorists in Mumbai. By the writ petition, 3

the respondent no.1 sought the intervention of

the High Court to put a check on hoardings,

which according to the respondent no.1, had

proliferated alarmingly in the city of Mumbai.

3. In the writ petition, the respondent no.1

herein challenged the permission granted to

various advertising agencies for display of

hoardings in breach of the guidelines framed by

the Municipal Corporation of Brihan Mumbai

under Sections 328 and 328A of the Mumbai

Municipal Corporation Act, 1888, hereinafter

referred to as "the 1888 Act", and the

provisions of the other enactments mentioned

hereinabove. In fact, the writ petitioner also

challenged the provisions of the guidelines

which had been framed on the ground that they

were contrary to the provisions of the

aforesaid enactments.

4. The case made out in the writ petition is that

Section 328 of the 1888 Act, inter alia, 4

prohibits any person, without the written

permission of the Municipal Commissioner, to

erect, fix or retain any sky-sign, which

includes hoardings. Section 328 further

provides that no permission under the Section

is to be granted or renewed, for any period

exceeding two years from the date of each such

permission or renewal. Sub-section (3) of

Section 328 provides that the Municipal

Commissioner may by written notice require the

removal of any sky-sign which is erected, fixed

or retained in contravention of the provisions

of Section 328 or after the permission for such

erection, fixing or retention thereof shall

have expired or become void. In addition,

Section 328 A of the Act provides that no

person shall, without the written permission of

the Municipal Commissioner, erect, exhibit, fix

or retain any advertisement upon any land,

building, wall, hoarding or structure. Certain

types of advertisements exempted from the 5

aforesaid restriction, are also included in the

Section.

5. In the writ petition it was alleged that

permission to display mobile hoardings had been

granted to different applicants which has not

only caused environmental problems but had also

resulted in serious damage to heritage

buildings of the city, besides causing traffic

hazards, even on the arterial roads of the city

and disrupting the smooth flow of traffic. It

may be pointed out at this stage that neither

of the appellants herein had been made parties

to the writ petition, but on their application

they had been allowed to intervene in the

proceedings.

6. The writ petition, however, focuses more on the

alleged violation of the provisions of the

Maharashtra (Urban Areas) Preservation of Trees

Act, 1975, and reference to the provisions of

the Mumbai Municipal Corporation Act and the

Motor Vehicles Act, 1988, have been made to

buttress such contention.

6

7. The allegations made in the Writ Petition were

denied on behalf of the Mumbai Municipal

Corporation. It was contended that the

permission granted to the appellant in these

appeals was in complete conformity with the

provisions of the different enactments referred

to in the writ petition and it was significant

that apart from the complaint of the writ

petitioner no other complaint had been received

from any of the inhabitants of Mumbai, either

with regard to environmental problems, traffic

hazards or obstruction to the smooth flow of

traffic on account of grant of such permission.

8. On consideration of the submissions made on

behalf of the respective parties and the

documents produced on their behalf and the

Policy Guidelines on Grant of Permission for

Display of Advertisements and Similar Devices,

2007, the Bombay High Court dismissed Notices

of Motion Nos.155/2008, 156/2008 and 171/2008,

with the following directions:

7

"1. In view of the relevant statutory provisions, settled principles of law and for the reasons aforerecorded, we direct that `the mobile hoarding vehicles shall not be parked on the main roads of Mumbai or even the carriage ways and would not obstruct free flow of traffic in any manner whatsoever at main roads and carriage ways of Mumbai'. Resultantly, we see no reason to vacate the interim orders dated 13th March 2008 and 3rd April 2008. On the contrary, the above orders are made absolute.

2. We direct the State Government and the Corporation to make appropriate regulations in exercise of their respective statutory powers and in consultation with the appropriate bodies in relation to advertisement hoardings. It need to be examined by these authorities whether such mobile hoarding vehicles can at all be granted such permissions and/or licences in light of this judgment and the law in force.

3. We further direct the concerned Police authorities and the competent authorities in the Corporation and the registering authorities to take action against such vehicles, and after giving them proper opportunity, in accordance with law and in light of the provisions of the Motor Vehicles Act, 1988, particularly in relation to design, manufacturing, construction, equipping and alteration of vehicles 8

and consequential impact thereupon upon registration of such vehicles.

4. We also issue further directions to the Chief Secretary of the State of Maharashtra to examine all these cases and fix responsibility in all the concerned Department and Public Authorities, if the officers are found to be erring. Further the State should, in consultation with other Authorities, including Municipal Corporation and Police, should frame proper policy in regard to various facets examined by the court in this judgment.

5. All concerned authorities shall ensure compliance of this order in spirit and substance.

6. Notices of Motion Nos.155 of 2008, 156 of 2008 and 171 of 2008 are accordingly dismissed. In the circumstances, we do not propose to award any costs."

9. It is against the said decision of the

Bombay High Court that the present appeals have

been filed.

10. Appearing for the appellant, Mr. Aspi

Chinoy, learned senior counsel, submitted that

the initial contract granted to the appellant

under Section 328-A (4) of 1988 Act was in 9

January, 2003, and, thereafter, a fresh contract

was granted in favour of the appellant on

21.5.2007 for a period of 2 years for a licence

fee of Rs.10 crores. In this regard, Mr. Chinoy

referred to an affidavit filed by the then Joint

Commissioner Police, ATS, holding additional

charge of Joint Commissioner of Police (Traffic),

affirmed on 15.4.2008, wherein it has been

mentioned that the Traffic Control Branch,

Mumbai, had been granting "no objection

certificates" since 2003 to Mobile Hoarding

Vehicles. It has also been stated that 61 such

licences for Mobile Hoarding Vehicles had been

granted by the Municipal Corporation of Greater

Mumbai and that advertisers were permitted to

park such Mobile Hoarding Vehicles at 89

locations on public roads. In addition, "no

objection certificates" had also been granted by

the Traffic Control Branch, Mumbai, to 11 Mobile

Hoarding Vehicles which have been permitted to

park at places other than public roads, i.e. 2

inside the BEST Bus Depot, Juhu Tara Road, Haveli 10

Hotel, inside Juhu Car parking-I, and at Andheri

Sahar Road inside the premises of New Airport

Colony, Vile Parle and the land belonging to

Maharashtra Maritime Board at Mahim Causeway. In

Sub-paragraph (c) of paragraph 1 of the affidavit

it has been further mentioned that on receipt of

the applications for issue of "no objection

certificate" the officers of the Traffic Control

Branch, who were in charge of the local traffic

division, visited the spots in respect of which

requests had been received and they studied the

traffic conditions on those particular spots.

Only if it was found that the proposed parking

locations did not create any traffic problems

then only such locations were approved.

Furthermore, periodical checking is carried out

by the Traffic Control Branch officers to ensure

that the Mobile Hoarding Vehicles are not parked

on any location other than the approved locations

for which the no objection had been issued. 11

11. Mr. Chinoy also referred to an affidavit

filed by the then Joint Commissioner of Police,

Traffic, Mumbai, which was affirmed on 21.4.08 on

the basis of directions given by the High Court

regarding details of the Mobile Hoarding Vehicles

and the places where they were located. While

answering the queries formulated by the High

Court, it was also stated that while granting "no

objection certificates" to the concerned

agencies, the Traffic Control Branch had studied

the flow of traffic at every particular location.

In respect of 14 locations permission had earlier

been granted to park Mobile Hoarding Vehicles

near Heritage precincts. However, once the same

was brought to the notice of the traffic police,

the mobile hoarding advertisers were directed not

to park the Mobile Hoarding Vehicles near

Heritage precincts. It has been further indicated

that though the Municipal Corporation had given

permission for displaying hoardings on Municipal

roads, advertising agencies were not allowed to

park their vehicles arbitrarily. It was 12

categorically mentioned that generally in the

morning hours, south bound traffic is very heavy,

and, therefore, Mobile Hoarding Vehicles are

allowed to be parked on the north-bound carriage

way and in the evening when the north-bound

traffic is very heavy, the Mobile Hoarding

Vehicles are allowed to be parked on the south-

bound carriage way. Due care is taken to ensure

that the Mobile Hoarding Vans are not parked near

signals, turns, bottlenecks or any other place

which may cause traffic problems hampering the

smooth flow of traffic.

12. In addition to the above, it has also been

stated that even when permission is granted for

Mobile Hoarding Vehicles to be parked at a

particular spot, at times when it is found that

parking at such spots causes a disruption in the

flow of traffic, officers of the traffic police

at times request the vehicles to be removed. Even

when situations arise like heavy traffic,

diversions, natural calamities, law and order,

VVIP visits etc., these vehicles are asked to be 13

removed even from the marked spots to ensure

smooth flow of traffic.

13 Mr. Chinoy submitted that the appellant

company had always acted upon the contract

executed in their favour and it has entered into

third party agreements for display of

advertisement and mobile vans. Consequently,

neither the traffic police nor the Municipal

Council of Greater Mumbai had any authority to

determine such contract. Mr. Chinoy submitted

that the appellant company had at no point of

time violated any of the terms of the contract

and till 17.3.2008 no objections had been raised

from any quarter objecting to the parking of the

mobile vans at the spots identified by the

traffic police. He submitted that at no point of

time had any of the Mobile Hoarding vans been

directly responsible for any incident of traffic

congestion and the alleged obstruction of the

flow of traffic was never an issue till the

respondent No.1 took up cudgels allegedly on

behalf of the general public of Mumbai. Mr. 14

Chinoy urged that in the counter affidavit filed

on behalf of the respondent, no objection had

been taken regarding the statements made in the

affidavits of the appellant hereinabove referred

to. In addition to the above, Mr. Chinoy, in

reference to the prayers made in the writ

petition filed by the respondent No.1, urged that

no where is there any mention of Mobile Hoarding

Vans nor has any relief been prayed for in

respect thereof.

14. Mr. Chinoy contended that instead of

focusing on the main issue regarding grant of

licence for display of hoarding on mobile vans

the High Court involved itself with other issues

such as types of vehicles which could be used for

the purpose of displaying Mobile hoardings. The

High Court also took up another issue inter-

connected with the first issue involving the

alteration of vehicles/vans which were altered

after registration to make them compatible for

the purpose of carrying Mobile Hoardings. The

High Court held that the same had been done in 15

contravention of the provisions of the Motor

Vehicles Act, 1988 and the licenced granted to

such vehicles for display of mobile hoardings

were liable to be cancelled.

15 Mr. Chinoy submitted that the High Court had

also erroneously relied on newspaper reports and

photographs which were produced by the writ

petitioner to bolster her case regarding

obstruction and impediment of traffic allegedly

caused by such Mobile Hoarding Vehicles.

16 Mr. Chinoy submitted that it is on the basis

of such newspaper reports that certain

presumptions had been drawn by the High Court

relating to parking places allotted by the

traffic police for parking of the Mobile Hoarding

Vans. In this regard, reference was made to

Section 117 of the Motor Vehicles Act, 1988,

which, inter alia, provides that the State

Government may, in consultation with the local

authority having jurisdiction in the area

concerned, determine places at which motor

vehicles may stand either indefinitely or for a 16

specific period of time. It was urged that the

Mobile Hoarding Vehicles were either parked on

the spots allotted by the Municipal Corporation

in consultation with the traffic police or in

parking zones which, in any event, were meant for

parking of vehicles.

17. Mr. Chinoy submitted that the writ petition

filed by the respondent No.1 and the reliefs

sought for therein were entirely misconceived

and without any foundation. He submitted that the

High Court had erred in dismissing the Notice of

Motion No.155 of 2008 filed on behalf of the

appellant herein in the writ petition filed by

the respondent No.1 giving a blanket direction

that no Mobile Hoarding Vehicle should be parked

in the main roads and carriageways.

18. Appearing for the appellant, Imaan

Publicity, in Special Leave Petition (C)No.14822

of 2008, Syed Tanvir Shah learned advocate, while

adopting Mr. Chinoy's submissions, added a few

facts which were peculiar to the said case. 17

19. He firstly mentioned that the licence which

had been granted by the Public Works Department

on 28.11.2005 was for parking mobile hoarding

vans on the Eastern Express Highway, which did

not in any way cause any blockage which could

have a cascading affect on traffic within the

city of Mumbai. In the permission so granted, it

was also indicated that the appellant would also

have to obtain necessary permission from the

Traffic Police and the Brihan Mumbai Electric

Supply and Transport Undertaking (hereinafter

referred to as "the BEST Undertaking") and the

Greater Bombay Municipal Corporation and it was

stipulated that if any one of the three

authorities chose not to grant permission, the

permission granted by the Public Works Department

would be cancelled.

20. Mr. Shah submitted that, thereafter, the

appellant also obtained "no objection

certificate" from the BEST Undertaking which

granted such "no objection certificate" for 10

mobile hoarding vans on the Eastern Express 18

Highway on 14.3.2006. This was followed by

permission granted on 18.4.2006 by the office of

the Joint Commissioner of Police (Traffic) in

respect of such 10 mobile hoarding vans on the

Eastern Express Highway. The permission granted

by the said three authorities was supported by

the permission granted by the Municipal

Corporation of Greater Mumbai on 23.6.2006 for a

period of 5 years up to the year 2011. As many as

32 conditions were included by the said

Corporation in its letter granting permission for

parking/plying 10 Mobile Hoarding Vans or

vehicles/lorries on the Eastern Express Highway.

Mr. Shah urged that when all the concerned

authorities who were required to give "no

objection certificates" for permission to the

appellants to display advertisements on Mobile

Hoarding Vans had given such certificates, it was

quite erroneous on the part of the High Court in

giving the directions impugned in the appeal

relying on newspaper reports and photographs

produced by the writ petitioner in support of her 19

case of alleged obstruction and impediment of

traffic said to have been caused by some of the

mobile hoarding vehicles. Reference was made by

Mr. Shah to the decision of this Court in Ramarao

vs. All India Backward Class Bank Employees

Welfare Association, (2004) 2 SCC 76), for the

proposition that though the High Court is

entitled to take into consideration subsequent

events, the same can only be a relevant factor

for the purpose of moulding the reliefs, but

while moulding such reliefs the High Court could

not have considered grant of a relief where no

factual foundation existed or was laid in the

pleadings of the parties, which has been

explained in paragraph 25 of the judgment.

21. Mr. Shah urged that the impugned judgment of

the High Court was based more on conjecture than

actual facts and was, therefore, liable to be set

aside.

22. Learned counsel for the Mumbai Municipal

Corporation, Mr. Pallav Shisodia, submitted that

the High Court had failed to appreciate the fact 20

that granting of licences by the Municipal

Corporation was part of its legitimate commercial

activity on which fetters could not be imposed

except on grounds of public interest and

disruption of normal life within the area of its

jurisdiction. He submitted that the Municipal

area of Greater Mumbai was divided into 3 zones,

namely:

i) City zone which extends up to Mahim;

ii) Eastern zone which extends from Sion to Mulund; and

iii) East-Western zone which extends from Mahim to Gaisal.

He submitted that in each zone permission has been

given for 10 vehicles to be used as Mobile

Hoarding Vans for the purpose of display of

advertisements. He submitted that the guidelines

which had been issued in the year 2000 had

subsequently been superseded by the guidelines

published in 2008 wherein several other criteria

were included for the purpose of grant of

permission for display of sky-signs and 21

advertisements under Sections 328 and 328-A of the

1888 Act. Mr. Shisodia submitted that all the

said restrictions have been included in the

conditions for grant of permit either by the

Bombay Municipal Corporation or the Traffic

Police. He urged that the High Court had taken

note of the said conditions and the powers of the

Corporation flowing from the provisions of

Sections 328 and 328-A of the Act and had

elaborately discussed the same. While holding

that the guidelines had been framed by the

Commissioner only for the purpose of exercising

the discretion vested in him under Section 328-A,

the High Court also held that the same do not and

cannot have the force of law per se and are

nothing but guidelines prepared for exercise of

administrative power by the authorities concerned.

23. One of the points raised by the respondent

No.1 was with regard to the height of the

hoardings which were erected on the chassis of the

Mobile Vans by means of a hydraulic system, which 22

was not permitted under the Motor Vehicles Rules.

Replying to the same, Mr. Shisodia submitted that

the said condition would relate to the fabrication

of the display vehicles which was in the domain of

the Motor Vehicles Department, and in the absence

of the views of the Motor Vehicles authorities and

also having regard to the fact that permission for

parking the said vehicles had been given by the

Traffic Department, the same could not be a reason

not to grant permission to the appellants to use

Mobile Hoarding Vans for the display of

advertisements.

24. Mr. Shisodia concluded his submissions on the

note that the directions ultimately given in the

impugned judgment were completely beyond the scope

of the writ petition and the prayers made therein.

He submitted that the High Court had exceeded its

jurisdiction under Article 226 of the Constitution

in giving the directions complained of without

there being any factual foundation for the same.

25. No counter affidavit has been filed on behalf

of the State of Maharashtra. However, Mr. Kaushik, 23

learned counsel appearing for the State, relied

upon the affidavit affirmed by the Joint

Commissioner of Police (Traffic), Mumbai, whereby

grant of licence to the appellant and others for

parking Mobile Hoarding Vans for display of

advertisements had been sought to be justified.

Mr. Kaushik also referred to paragraph 10 of the

impugned judgment wherein it had been stated that

the State Government had issued permits for the

vans which were found road-worthy and it had no

serious objection to the continuation of these

vehicles on the road. He objected to the finding

of the High Court in paragraph 10 of the judgment

that the State had not been able to come out with

a clear and definite stand on the matter in issue.

According to Mr. Kaushik, the stand of the State

Government was quite clear that it had no

objection to the grant of permission by the

concerned authorities to the Mobile Hoarding Vans

subject to the condition that the flow of traffic

was not impaired by the parking of such vehicles,

though, of course, it had been submitted on behalf 24

of the Corporation that in certain eventualities

if there was any interference with free flow of

traffic for any particular reason, where a Mobile

Hoarding Van was parked, the same had been

directed to be removed to another location to

enable the Traffic Police to clear the traffic

jam.

26. Replying to the submissions made on behalf of

the appellant, the State of Maharashtra and the

Bombay Municipal Corporation, Mr. Arvind Kumar,

appearing for the respondent No.1 (the writ

petitioner before the High Court), submitted that

the problem posed in the writ petition before the

High Court was not of recent origin and had also

fallen for consideration in other matters, such as

the case of M.C. Mehta vs. Union of India, (1997)

8 SCC 770, regarding some of the provisions of the

Motor Vehicles Act, 1988, and their relevance in

the management of control of traffic in the

National Capital Region and the National Capital

Territory of Delhi. It was submitted that the

questions raised involved public safety and, 25

therefore, came within the ambit of Article 21 of

the Constitution. It was also held that the Motor

Vehicles Act provides sufficient powers to the

Transport and Police authorities to effectively

deal with the problem and the same had to be

construed so as to keep individual or a class

interest subordinate to the larger public

interest. In fact, certain directions were also

given by this Court to the police and all other

authorities entrusted with the administration and

enforcement of the Motor Vehicles Act and control

and regulation of traffic, in exercise of the

powers vested in this Court under Article 32 read

with Article 142 of the Constitution.

27. The said directions were given mainly with the

intention of ensuring public safety and to ensure

that the vehicles used on the roads did not impair

public safety.

28. Mr. Arvind Kumar submitted that after the

aforesaid decision of this Court in M.C. Mehta's

case (supra), certain other writ petitions on the

same issues were also taken up for consideration 26

along with several Interlocutory Applications

filed in the disposed of writ petition, being Writ

Petition (Civil) No.13029 of 1985. I.A.No.12,

which was filed in the said writ petition, was

made by the Delhi Outdoor Advertising Association

praying for clarification/modification of the

Order dated 20.11.1997 in so far as it related to

the direction given therein for the removal of all

hoardings which are on roadsides and which are

alleged to be a disturbance to safe traffic

movement. Mr. Arvind Kumar pointed out that this

Court rejected the said prayer upon observing that

the order dated 20.11.1997 was quite clear and had

been correctly understood by the authorities and

all concerned. This Court observed that the order

directed that every hoarding, other than traffic

signs and road-signs on road sides have to be

removed irrespective of its kind; every hoarding

irrespective of whether it is on the road side or

not, which is hazardous and a disturbance to safe

traffic movement so as to adversely affect free

and safe flow of traffic, is required to be 27

identified by the authorities and promptly

removed. It was also observed that obviously the

hazardous hoarding which is a disturbance to safe

traffic movement has to be a hoarding visible to

the traffic on the road.

29. Mr. Arvind Kumar then pointed out that the

Certificate of Registration of one of the Mobile

Hoarding Vans for which permission had been

granted to the appellant for display of hoardings

clearly indicated that the vehicle in question was

a Medium Goods Vehicle which had been referred to

as a Display Vehicle. Furthermore, in the Goods

Carriage Permit the usage of the vehicle was shown

to be for carrying general goods. Mr. Arvind

Kumar urged that the vehicle in question had been

altered to meet the requirements for raising

hoardings on the vehicle in violation of the Motor

Vehicles Act and the Motor Vehicles Rules. In

addition to the above, Mr. Arvind Kumar also

pointed out from the pictures annexed to the

affidavit filed on behalf of the respondent No.1

that the hoardings on the mobile vans had been 28

raised and placed in such a manner when parked

that a portion of the hoarding was jutting out on

the main carriageway which in itself was a traffic

hazard. He also pointed out that Mobile Hoarding

Vans were also parked at will even in "No Parking"

Zones.

30. Mr. Arvind Kumar urged that in addition to the

above, the raised hoardings were raised above the

height permitted for carrying goods on transport

vehicles and created distraction for motorists

which could lead to serious consequences as far as

the pedestrian public was concerned.

31. Mr. Arvind Kumar submitted that after

meticulously considering all the materials on

record and the submissions made on behalf of the

parties, the High Court had rightly dismissed the

writ petition with the directions given in the

impugned judgment keeping in mind the general

public interest as against the commercial interest

of a few. It was submitted that the impugned

judgment of the High Court was just and equitable

and no interference was called for therewith. 29

32 We have carefully considered the submissions

made on behalf of the respective parties, having

particular regard to the issues that have been

raised, which undoubtedly concerned the public

interest and safety of motorists and pedestrians

and seek to ensure free and smooth flow of traffic

in the city of Mumbai. We have also considered the

writ petitioner's concern with regard to the

damage to the flora and fauna and the environment

of Mumbai, together with the damage to heritage

buildings in the city. However, all the actions

taken by the respondents in permitting erection of

hoardings, either fixed or otherwise, appear to

have been taken within the confines of the Mumbai

Municipal Corporation Act, 1888. While generally

considering the complaint made by the respondent

No.1 in her writ petition, the Bombay High Court

has tangentially taken up another issue involving

the eligibility under the Motor Vehicles Act and

Rules of Mobile Hoarding Vans to operate on the

roads in their modified form. One of the issues

raised by the respondent No.1 is that the vehicles 30

which were used as Mobile Hoarding Vans had

originally been registered as "goods carrying

vehicles" or "display vehicles". It was urged that

after their modification the Mobile Hoarding

Vehicles underwent a complete transformation

which necessitated the grant of fresh

Certificates of Registration from the Motor

Vehicles authorities.

33. Though the said issue has been given a good

deal of thought by the High Court, the authority

to decide such a question would be authorities

under the Motor Vehicles Act and not the Court.

Secondly, the authorities who are entitled in law

to grant licence for displaying such

advertisements, such as the Mumbai Municipal

Corporation and the traffic police, have assented

to the grant of such licences upon holding that

they do not constitute a traffic hazard nor did

they disrupt the smooth flow of traffic on the

roads on which they are permitted to be parked.

The respondent No.1 has not been able to provide 31

any data on the frequency of the obstruction of

smooth flow of traffic along the roads on which

the Mobile Hoarding Vans had been allowed to be

parked. All that has been pointed out by the

respondent No.1 is that the height and width of

the displayed hoardings tend to distract

motorists and obstruct vehicular traffic of a

certain height.

34. On the other hand, the affidavits filed on

behalf of the Mumbai Municipal Corporation and the

Mumbai Traffic Police clearly indicate that they

have no objection to the grant of licences to

Mobile Hoarding Vans and that those already

granted had been so granted after a proper study

had been made of the traffic conditions and the

flow of traffic at the spots where the Mobile

Hoarding Vans were ultimately permitted to be

parked for displaying their hoardings. It is also

significant that except for the respondent No.1 no

other citizen of the city of Mumbai has joined the

litigation to support the stand taken by the

respondent No.1/writ petitioner. Care has been 32

taken by the Municipal authorities, as well as the

traffic police, to ensure that the cone of vision

of the person driving a vehicle was not obstructed

by such Mobile Hoardings. As indicated

hereinabove, the objection taken by the respondent

No.1 with regard to the damage being caused to the

heritage buildings in the city had been taken note

of by the concerned authorities and such hoardings

and advertisements have been directed to be

removed, either from the buildings themselves or

from in front of them. In this connection we may

also add that though the destruction to the flora

and fauna of Mumbai city was not treated as the

principal issue before us, it would certainly be

in the interest of the public to see that such

greenery within the city is not destroyed or

interfered with. It is well accepted that trees

provide an ecological respite against the amount

of pollution generated in a commercial city like

Mumbai on account of the sheer number of vehicles

that travel on the roads and the volume of people

moving in and out of Mumbai city in connection 33

with their work. It would definitely be in the

interest of the residents as well as the mobile

population of Mumbai if the green cover available

in Mumbai is not only preserved but also

increased. In this regard we are in agreement with

the concern shown by the writ

petitioner/respondent No.1 herein.

35. Care has also been taken where the flow of

traffic is high in a given direction to allow

parking of Mobile Hoarding Vans on the opposite

carriageway so that no distraction or obstruction

is caused to the cone of vision of the motorists

while proceeding with the flow of traffic. Care

has also been taken to ensure that Mobile Hoarding

Vans are not parked near signals, turns,

bottlenecks or any other place which may interrupt

the smooth flow of traffic. Inspite of the above,

in case of a traffic blockage at a spot where such

Mobile Hoarding Vans are parked, it has been

stated that they are asked to move to some other

location to clear such blockage.

34

36. Mr. Chinoy has referred to Section 117 of the

Motor Vehicles Act, which empowers the State

Government or any Authority authorized in this

regard by the State Government, in consultation

with the local authority having jurisdiction in

the area concerned, inter alia, to determine

places at which motor vehicles may stand either

indefinitely or for a specified period of time. In

the instant case, the State Government, in

consultation with the Mumbai Municipal

Corporation, appears to have invoked the

provisions of the said Section to indicate the

spots at which the Mobile Hoarding Vans could be

allowed to park and that too after a study of the

flow of traffic at such given spots. Similarly,

the Mumbai Municipal Corporation has also

exercised its jurisdiction under Sections 328 and

328-A of the Mumbai Municipal Corporation Act in

granting licences for the parking of Mobile

Hoarding Vans for the display of advertisements.

Since the authorities which have been empowered to

grant such licences and to specify spots for 35

parking, have exercised their authority, it would

not be safe for the Court to question the decision

taken by the said authorities on the basis of

allegations made by an individual, without having

anything more to rely upon, especially, in the

face of the affidavits affirmed both on behalf of

the Mumbai Municipal Corporation and the Mumbai

Traffic Police.

37. There is, however, one sphere which possibly

requires further inquiry and that is with regard

to the modification of the vehicles carrying the

mobile hoardings from their original form to make

them suitable for display of such hoardings.

Although, the same is not directly in issue in the

instant case, the said question has been gone into

by the High Court in some detail. However, as has

been rightly submitted by Mr. Shisodia appearing

for the Mumbai Municipal Corporation, the same is

within the domain of the Motor Vehicles

Authorities and not the concern of the Mumbai

Municipal Corporation or the Mumbai Traffic

Police. In respect of such grievance, the 36

respondent No.1 may take up the issue with the

authorities under the Motor Vehicles Act, 1988,

who are competent to deal with the same.

38. The High Court, in our view, in its anxiety to

ensure the free movement of traffic and the safety

of both motorists and pedestrians and to avert any

untoward incident, has proceeded to question the

decision taken by the competent authorities

without having proper material before it to do so.

Contrary to the authority vested in the State

Government and the local authority under the

provisions of Section 117 of the Motor Vehicles

Act, 1988 and Sections 328 and 328-A of the 1888

Act, the High Court has given directions which, in

our view, are beyond the scope of the writ

petition.

39. We, accordingly, allow the appeal and set

aside the judgment of the High Court impugned in

this appeal and the directions contained therein,

but we also make it clear that this will not

prevent the respondent No.1 from moving the

appropriate authorities regarding the modification 37

of vehicles as Mobile Hoarding Vans. We also make

it clear that we have not expressed any opinion as

far as the said issue is concerned and it will be

within the domain of the Motor Vehicles

authorities to take such decision in the matter as

appears to them to be fit and proper.

40. Having regard to the nature of the case the

parties shall bear their own costs in the appeal.

.......................................J. (ALTAMAS KABIR)

....................................J. (G.S. SINGHVI) New Delhi Dated: 02.09.2008