ANAHITA PANDOTE Vs. STATE OF MAHARASTRA

JUDGEMENT

(1.) INDUSTRIAL growth and economic prosperity leads to development in various fields. Increase in influx of vehicular traffic is one of the essential consequences of such development. Easy communication and transport facility is essential ingredient for a developing city. The state and other development authorities utilise huge public funds for planned development including laying of roads to ensure more convenient accessibility to various parts of the city or town and to ensure free flow of traffic. Despite consorted efforts in this direction, it is a matter of public knowledge that traffic congestion has become a serious problem for Municipal administration. Generation of revenue by State/public authorities is again an essential feature of economic progress but such revenue generation normally should not be at the cost of environmental, social and human rights. Rudiments of socioeconomic development require that development should be in consonance with the existing laws and must save the interest of basic features of human rights. Development should neither become hazardous much less dangerous to the public and should not be disadvantageous to the public health. Mumbai Municipal Corporation Act, 1888 (hereinafter referred to as "act") had been subjected to innumerable amendments over a period of time primarily with the object to consolidate existing Municipal laws and to recast and explain its provisions in harmony with the requirements of so large and an important city of Mumbai. While declaring the initiation of responsibility for all executive actions resting with the commissioner who is required to carry out general provisions of the Act, it is unambiguously indicated that such implementation and enforcement shall be in accordance with the provisions of the Act and other relevant Laws in force. Emphasizing proper and fair exercise of power by the Corporation and its executive is not a new concept. The Supreme court has emphatically stated in the case of (Gulabchand Bapalal Modi Vs. Municipal Corporation of Ahmedabad City), 1971 DGLS 176 (soft) : 1971 (1) S. C. C. 823 that even in relation to imposition of tax, the Court while checking the action on the principle of excessive delegation requires that the action of the Corporation cannot be founded on arbitrary or unconstitutional exercise of power. It was held as under:

(2.) IN the case of (The Municipal Corporation of greater Bombay and another Vs. The advance Builders (India) Private Ltd. and others), 1971 DGLS 413 (soft) : 1971 (3) S. C. C. 381, the Supreme Court observed that since development and planning is primarily for the benefit of the public, the Corporation is under a statutory obligation to perform its duty in accordance with the provisions of the act. It has been long held that where a statute imposes a duty the performance or non-performance of which is not a matter of discretion, a mandamus may be granted ordering that to be done which the statute required to be done.

(3.) THE discretion to be exercised by certain authorities which is in exercise of statutory powers may not be an exclusive jurisdiction in application and particularly, keeping its impact on society in mind. Such discretion has to be exercised with greater care and in conformity with laws in existence. Legislatively vested power may work as an exclusive jurisdiction, thus, giving it complete precedence over other laws. It may be desirable for the authorities to exercise such discretion or power appropriately. Wherever there is no exclusive jurisdiction and it can affect enforcement of laws then such authority, power or jurisdiction would have to be exercised in conformity with other laws and it must ensure that the permission or licence granted in furtherance of such power do not offend other specific laws and even for that matter, public policy, public interest and environment. Powers, if any, vested in the municipal Corporation in relation to grant of permits or licences for mobile advertising vehicles parked in such areas where the Corporation does not enjoy strict exclusive jurisdiction has impact on and is bound to affect traffic laws, public interest and environment. For each of such fields, there are specific laws in terms of Motor Vehicles Act, 1988, Environment Protection Act, 1986 and constitutional protection available to the citizens of India under Article 21 of the Constitution of India having a claim to public interest and in any case, better environment. As back as in the year 1987, the Supreme court expressed the need for evolving legal jurisprudence to keep pace with the changing socioeconomic norms and created an innovative interpretation so as to meet the object of human rights jurisprudence. In the case of (M. C. Mehta and another Vs. Union of india and others), 1986 DGLS 573 (soft) : 1987 (1) S. C. C. 395, the Supreme Court has clearly stated the principle that in exercise of its constitutional powers and within the limitations of judicial activism, the Court, if necessary, should interprete and evolve new laws so as to protect the basic rule of law and truly apply the spirit of Article 21 with the aid of article 12 and the Court held as under: