1. Lack of legal authority to introduce 'Pay and Park' on the public streets of Bombay is the burden of the song sung by the petitioners. The petitioners are the resdients in the vicinity of khodaded Circle, Dadar T.T. , bombay , for the past over 30 years . It is their case in short that they have been parking their vehicles in the Khodadad Circle for a number of years. The said, area , being essentially a residential area, had not much of parking spece during night time except the said Khodadad Circle. The respondents , the Municipal Corporation and the Muinicipal Commissioner, had in the past sought to introduce scheme of Pay and Park for cars. However the same was abandoned after representations against the said scheme were made and awrit petition challenging the same was filed. However , in the beginning of the year 1988, the respondents sought to re-introduce the said scheme. Under this scheme , the Khodadad Circle as also various other portion of the public streets were earmarked for Pay and Park Scheme. Small huts were put up in the areas cordoned for the Pay and Park Boards containings the rules and Regulations for the said Pay and Park Scheme were displayed, Under the rules the working time for the Pay and Park was fixed between 8.00 a.m. and 10.00 p.m. Fees fixed for the parking were as follows:
1. Upto 1 hour Re. 1.00
2. From 1 hour to 2 hours Rs. 2.00
3. From 2 hours to 4 hours Rs. 5.00
4. From 4 hours to 8 hours Rs. 10.00
5. More than 8 hours Rs.15.00
No parking was allowed after 10.00 p.m. and vehicles parked after 12.00 midnight were threatened to be towed away to the nearest municipal dumping yard which could be released only after paying towing charges of R.600/-Vehicles required to be parked in the parking areas at the owners risk and the Municipal Corporation was not responsible for theft of damage, etc, of the vehicles when parked or being towed away to the municipal dumping yard.
2. One Shri M.R.Pai had made a representation dt. The 25th of jan.1988 to the Municipal Corporation against the introduction of this scheme and the Additional Municipal Commissioner addressed his communication dt, 4th April 1988 justifying the scheme. The said communication is annexed at Exhibit 'C' to the petition. It may be relevant to reproduce the material portion of the said communication, which is an follows:
' The Municipal Corporation has contemplated reintroduction of the Pay and Park Scheme with a view to control indiscriminate parking reduce traffic congestion and misuse of municipal roads.
You will appreciate that fact that in the absence of any systematic provision of parking space, congestion due to parked vehicles adversely affects the mobility on arterial roads in the city. In order to restrict vehicular traffic some measure of pricing needs to be introduced and operationally one of the most significant and operationally one of the most significant and successful measures is to charge a fee parking in congested areas. It may be mentioned that the high Level committee set up by the Planning commission in April 1978 to formulate a national transport policy for our country had reviewed the issue of regulation and control of urban traffic and have in their report recommended charging of fees report recommended charging of fees for parking in congested city centers.
Considering the role and importance of the Central Business District of Mumbai where at present 86% of the passenger movement is carried by public transport. The introduction of Pay and Park' Scheme as one of the tools of auto traffic restraint assumes very high priority.
It is not correct to presume that the problems related to traffic are being resolved only by the Traffic Police Department. The implementation of improvement schemes is essentially on eof the responsibilities of the Municipal Corporation. The Traffic Department of the Municipal corporation has a team of well experienced, highly qualified traffic engineers who periodically review the vehicular and pedestrian traffic problems and evolve traffic management schemes with a view to easing the traffic congestion. The Pay and Park Scheme, being one such traffic management scheme , the implementation is not illegal and will invariably lie within the responsibility of the Municipal Corporation.
In fiscal matters, it is not permissible to give powers to the authorities to impose a tax or fees by implication. There has to be a specific legislation authorising the levying of either tax or fees. Such a provision being absent in the present enactment, it will have to be held that the action on the part of the respondents in enforcing the impugned Pay and Park Scheme is unlawful and without the authority of law.
It may also mentioned that the Pay and Park ' scheme is not being implemented with a view to generating revenue. The revenue generated from the scheme is proposed to be utilised for sustaining the scheme. Every effort is being made to ensure that there will not be and room for misappropriation. It is also proposed to introduce punching machine sophisticated parking meters, which will enable the Municipal Corporation to operate the scheme in a smooth and efficient manner.
It is anticipated that the scheme will go a long way in ameliorating the traffic congestion within the Central Business District of Mumbai'.
3. It is the grievance of the petitioners that the said scheme had bought about extreme hardship to them. They have contended that they have no adequate alternate parking space which was cordoned off for the Pay and Park Scheme was kept vacant during night time and they were required to go long distances to find some parking space in some far off lane or the other. This action on the part of the Municipal corporation could not be sustained on the ground that it was towards regulating the public streets or the vehicular traffic. The threat of towing away the vehicles traffic. The threat of towing away the vehicle and the charges of Rs. 600/- for relating the towed away vehicles was wholly unjustified and could not be supported by any provision of law. According to them , the Municipal Corporation has no power or regulate such parking spaces and has no authority to recover the parking charges . The parking charges were either a tax or a fee. The same could not be supported by either of the two heads. There was no specific authority to levy the tax and no services were rendered as the Corporation did not even take upon itself the responsibility for theft or damage while the vechicless were parked in the parking area. The action on the part of the cooperation was a colorable exercise of power which could not be supported by any provision of the Bombay Municipal Corporation Act .
4. Mr. Andhyarujina, the learned counsel appearing in support of the petitions, contented that the function of regulating the traffic is not the function of the Municipal Corporation but is the function of the police. He relied upon Chapter IV of the Bombay police Act , 1951. Section 33(1)(b) empowers the Commissioner of Police to make regulations for regulating traffic of all kinds in streets and public places, and the use of streets and public places riffing , driving, cycling , walking or leading or accompanying cattle , so as to prevent danger distraction or inconvenience to the public Section. 33(1)(c)empowers him to make regulations for regulating the conditions under which vehicles may remain standing in streets and public places , and the use of cattle. According to shri Andhyarujina, similar provisions are conspicuously absent in the Bombay Municipal Corporation Act . Placing reliance on the Saghir Ahmad v. State of U.P. reported in : [1955]1SCR707 , he contended that the public street are meant for amongst other things passage of vehicular traffic implicit in he said user is the user of the public streets for the purpose of parking . If has been observed in the aforesaid decision as follows(at p. 733):
'It is not disputed that the Bulandshiahr Delhi route is a part of the Grand Trunk Road which is public highway. According to English law, which has been applied all along in India, a highway has its origin, apart from statute, in dedication, either express or passage over it to the public and the acceptance of that right by the public. In the large majority of cases this dedication is presumed from land and uninterrupted user of a way by the public, and the presumption is such cases is so strong as to dispense with all enquiry into the actual intention of the owner of the sail and it is not even material to enquire who the owner was. The fact that the members of the public have a right of passing and repassing over a highway does not mean however that all highways could be legitimately used as foot passages only be legitimately used as foot passages only and that any other user is possible only with the permission or sufferance of the State. It is from the nature of the user that the extent of the right of passage has to be inferred and the settled principles is that the right extends to all forms of traffic which have been usual and accustomed and also to all which are reasonably similar and incidental thereto. The law has thus been stated in Halsbury's Laws of England.
'Where a highway originates in an inferred dedication, it is a question of fact what kind of traffic it was so dedicated for, having regard to the character of the way and the nature of the user prior to the date at which they infer dedication; and a right of passage once acquired will extend to more modern forms of traffic reasonably similar to those for which the highway was originally dedicated, so long as they do not impose a bustantially greater burden on the owner of the soil'.
It has been further observed as follows:
'The true position then is, that all public streets and roads vest in the State, but that the State holds them as trustees on behalf of the public. The members of the public are entitled as beneficiaries to use them as a matter of right and this right is limited only by the similar rights possessed by every other citizen to use the pathways. The State as and extend of the user as may be requisite for protecting the rights of the public generally; .............but subject to such limitations the right of a citizen to carry on business in transport vehicles on public pathways cannot be denied to him on the ground that the State owns the highways.'
We are in entire agreement with the statement of law made in these passages. Within the limits imposed by State regulations any member of the public can ply motor vehicles on a public road. To that extent he can also carry on the business of transporting passengers with the aid of the vehicles. It is to this carrying on the trade or business that the guarantee in Art. 19(I)(g) 9s attracted and a citizen can legitimately complain if any legislation takes away or curtails that right any more than is permissible under Cl. (6) of that article.'
5. Shri Andhyarjjin further submitted that in certain Municipal enactment a specific provision is made enabling the Municipal Authorities to deal with the vehicular traffic. Such provisions are conspicuously absent in the Bombay Municipal Corporation Act . He made a reference to the Bombay Municipal Boroughs Act . 1925, and pointed out that S.61(I) (z) provides for controlling unwiedly traffic in the following terms:
'61. (I) A municipality, may from time to time, with the previous sanction of the Provincial Government make, alter or rescind by-laws not inconsistent with this Act -
(z) prohibiting vehicular traffic in any particular street, so as to prevent danger, obstruction or inconvenience, to the public by fixing up posts at both ends of such street or portion of such street, prohibiting the transit of any vehicles of such from, construction, weight or size or laden with such heavy or unwiedly objects as may be deemed likely to cause injury to the roadways or to any construction thereon, or risk or obstruction to other vehicles or to pedestrians along or over the street, except under such conditions as to time, mode of traction, or locomotion, use of appliances for protection of the roadways number of light and assistants, and other general precautions as may be prescribed either generally in such bye-laws or in special licenses to be granted in each case upon such terms as to time of application and payment of fees thereof as may be prescribed in such bye-laws:
Provided that no such bye-law relating only to any particular street or portion of a street shall be deemed to be in force, unless and until notices of such prohibitions shall have been posted up by the municipality in conspicuous places at or near both ends of such street or portion of a street.'
Similarly, the Bombay Provincial Municipal Corporation Act , 1949, by S. 458 (3) provided that the Corporation may from time to time make bye-laws, not inconsistent with this Act and the rules, with respect to the following matter, namely:-
(3) regulating the maintenance, supervision and use of public and private cart-stands and the levy of fees for the use of them as belong to the Corporation.
The authority which is contemplated for the recovery or levy of fee which is provided in the aforesaid Act , Shri Andhyarujina points out, is conspicuously absent from the Bombay Municipal Corporation Act . he also made a reference to S.70 of the Bombay District Municipal Act , 1901, which deals with the power to charge fees. Section 70 provides as follows:
'70. Municipality may charge fees for certain licenses - (I) when any license is granted by the Municipality under this Act , or when permission is given by them for making any temporary erection or for putting up any projection, or for the temporary occupation of any public street or other land vested in the Municipality, the Municipality may charge a fee for such license or permission.
(2) Market and other fees. - The Municipality may also charge such fees as may be fixed by bye-laws under Cl. (a) of sub-sec. (I) of S.48 for the use of any such places mentioned in that sub-Section, as belong to the Municipality.'
The aforesaid provision which enables the Municipality to charge gee, Shri Andhyarujina points out, is absent from the Bombay Municipal Corporation Act .
6. Shri Andhyaraujina places reliance on the Halsbur's Statutes of England. Third Edn. Vol 20, at page 450. Section 9 of the London Government Act , 1963, provides as under:
'9. General duty of Greater London Council with respect to road traffic and abolition of London Traffic Area and Traffic Advisory Committee.
(1)................................................................................................................
(2) It shall be the duty of the Greater London Council so to exercise the functions conferred on them by or by virtue of Ss. 14 to 19 of this Act as, so far as practicable having due regard to -
..................................................................................................................................to secure the expeditious, convenient and safe movement of vehicular and other traffic (including foot passengers) and the provisions of suitable and adequate parking facilities on and off the highway................'
The provisions to the aforesaid effect, Shri Andhyarujina submits, it absent from the Bombay Municipal Corporation Act . he placed reliance on the decision in the case of J. Ramamoorthy and Brothers v. Corpn. Of Madras, reported in (1985) I MLJ 158, wherein it was observed as under:
'On the question whether the Corporation of Madras can levy charges for parking of vehicles in the parking lots and that too, at the rates now prescribed by the Corporation for parking of four wheelers, three wheelers and two wheelers.
Held: under S.285 (I) of the Madras City Municipal Corporation Act (Tamil Nadu Act IV of 1919), the Commissioner of a Corporation can construct or provide public landing places, halting places, cart-stands, cattle-stands and cow-houses and may charge and levy such fees for the use of the same as the Standing Committee may fix. The explanation to the sub-Section states that a cart stand shall, for the purpose of the Act , include a stand for carriages including motor vehicles within the meaning of the Motor Vehicles Act , 1939, and animals. Thus, it is open to the corporation to construct or provide halting places for parking of four wheelers, three wheelers and two wheelers and also levy such fees for the use of the same as the Standing Committee may fix. In fact, it is even open to the Commissioner, under sub-sec. (3) of S. 285 to farm out the collection of such fees for any period not exceeding three years at a time, on such terms and conditions as he may think fit. Under the City Municipal Corporation Act , all public streets pavements and appurtenances vest in the Corporation. Therefore the Corporation creates a parking lot and vehicles therein on payment of certain charges. The amount collected is not exclusively by way of fee for quid pro quo services rendered by the Corporation, but also be way of return for the user of its property. The collection of parking fee is by way of return for a vehicle owner making use of the parking lot and not for anything else. The Corporation is not in the position of an insurer when it collects a parking fee of Rs. 1/- per hour for allowing a four wheeler or three wheeler or 50 paise per hour for a two wheeler to be parked in the parking lot. The Corporation is, therefore , under no legal obligation to guarantee the safety of the vehicle left in the parking lot merely because of its collection of charges for parking.'
It was further observed:
'Coming now, to the legal aspect of the petitioner's contention. I have already pointed out that under the statute the Corporation has got the requisite power to provide halting places or parking places for motor vehicles .....................the Standing Committee has been empowered to prescribe the scale of fees, that may be collected for landing places, halting places, cart stand etc.'
since a similar provision to the one contained in the relevant Madras Enactment was absent in the present statute, the Corporation was not authorised to charge fee for providing spaces for parking of vehicles. There was no legislative provision for the recovery of such charges. The respondents have not specified whether the parking charges are a fee or a tax. Placing reliance on the case of State of Madhya Pradesh v. Bharat Singh. AIR 1967 SC 1170, he submitted that all executive action which operates to the prejudice of any person must have the authority of law to support it. We have adopted under the Constitution not the continental system but the British system. Every Act done by the Government or by its officers must, if it is to operate to the prejudice of any person, be supported by some legislative authority. Shri Andhyarujina finally submitted that in any event the Municipal Authorities have no right to tow away the vehicles or charge Rs. 600/- for releasing the towed away vehicles.
7. In order to appreciate the submissions of Shri Andhyarujina, it may be convenient to peruse some of the relevant provisions of the Bombay Municipal Corporation Act 1888 . Section 3(q) defines a vehicle as under:
'vehicle' includes a carriage, cart van, dray, truck, handcart and wheeled conveyance of any description capable of being used on the streets of the city.'
Section 3(w) defines 'street' as under:
' 'street' includes any highway and any causeway, bridge, viaduct arch, road, lane, footway, square, Court alley or passage, whether a thoroughfare or not, over which the public have a right of passage or access of have passed and had access uninterruptedly for a period of twenty years; and, when there is a footway as well as carriage way in any street, the aid term includes, both.'
Section 3(x) defines ' public street' as under:
' ' public street' means any street heretofore levelled, paved, metalled, channelled, sewered or reparired by the corporation and any street which becomes a public street under any of the provisions of this Act ; or which vests in the corporation as a public street.'
Chapter III deals with the duties and powers of the Municipal Authorities. Section 61, which deals with the obligatory and discretionary duties of the Corporation, provides-
'61. It shall be incumbent on the Corporation to make adequate provision, by any means or measures which it is lawfully competent to them to use or to take, for each of the following matters namely:-
..................................................................................................
(m) the construction, maintenance, alteration and improvement of public streets bridges, culverts, causeways and the like;
.................................................................................
(t) the improvement of Greater Bombay.'
Section 63(k) provides as follows:
'63. The corporation may, in their discretion, provide from time to time, either wholly or party, for all or any of the following matters, namely:-
.................................................................................
(k) any measure not herein before specifically named, likely to herein before specifically named, likely to promote public safety, health, convenience or instrection'.
Chapter XI deals with Regulation, Construction, Maintenance and Improvement of Public Streets. Section 289 (I) provides-
'289. (I) All streets within Greater Bombay being or which at any time become public streets, and the pavements, Stones and other materials thereof shall vest in the corporation and the under the control of the Commissioner:
Provided that no public street which on the day immediately preceding the date of the coming into force of the Bombay Municipal (Extention of Limits) Act , 1950, or the say immediately preceding the date of the coming into force of the Bombay Municipal Further Extension of Limits and Schedule BBA (Amendment) Act , 1956, vested in Government shall, unless the State Government so directs, vest in the corporation by virtue of this sub-Section.'
Sub-sec. (3) of S. 289 provides-
'With the sanction of the corporation the Commissioner may permamently close the whole or any part of a public street; Provided that such sanction of the corporation shall not be given unless, one month at least before the meeting at which the matter is decided a notice signed by the Commissioner has been put up in the street or part of a street which it is proposed to close, informing the residents of the said proposal, if any, made in writing at any time before the day of the sad meeting have been received and considered by the corporation.'
Section 296 provides as under:
'296. (I) The Commissioner may, subject to the provisions of Ss. 90, 91 and 92 - (a) acquire any land required for the purpose of opening, widening, extending or otherwise improving any public street or of making any new public street and the buildings, if any, standing upon such land:
(b) acquire in addition to the said land and the buildings. If any, standing thereupon, all such land with the buildings, if any, standing thereupon, as it shall seem expedient for the corporation to acquire outside of the regular line, or of the intended regular line, of such street;
(c) lease, sell or otherwise dispose of any land or building purchased under cl. (b).
(2) any conveyance of land or of a building under Cl. (c) may comprise such conditions as the Commissioner thinks fit, as to the removal of the existing buildings, the description of new building to be erected, the period within which such new building shall be completed and other such matter.'
Section 313 (I) (a) provides:
'313. (I) No person shall, except with the written permission of the Commissioner;-
(a) place or deposit upon any street or upon any open channel, drain or well in any street or in any public place any stall, chair, bench, box, ladder, bale or other thing so as to form an obstruction thereto or eneroachment thereon.'
Section 314 (b) provides-
'314. The Commissioner may, without notice, cause to be removed-
....................................................................
(b) any stall, chari, bench, box, ladder, bale, board or shelf, or any other thing whatever placed, deposited, projected, attached, or suspended in upon from or to any place in contravention of sub-sec. (I) of S.313.'
Section 490 provides-
'490. (I) The expenses incurred by the Commissioner in effecting any removal under S.314 or sub-sec. (3) of S. 322 or, in the event of a written notice issued under sub-sec. (I) of S.315 or S.354 or 380 not being complied with, under S.489, shall be recoverable by sale of the materials, removed, and if the proceeds of such sale do not suffice, the balance shall be paid by the owner of the said materials.
................................................................
(4) Notwithstanding anything contaied in this Act , when the removal of anything is effected under S.314, the Commissioner may direct that the owner thereof shall, in addition to the expenses incurred in effecting the removal of the thing, pay be way of penalty such sum not exceeding one thoughand rupees as the Commissioner may specify, and such sum if not paid, shall be recoverable In the same manner in which the expenses incurred in effecting the removal of the thing are recoverable.'
8. If one has regard to the aforesaid relevant provisions contained in the Bombay Municipal corporation Act , in my view, there is no authority given to the 'Municipal Corporation either to regular the traffic or to charge a fee for the purpose of parking of vehicles. The said function ahs been specifically given to the police under the Bombay Police Act and the said function has been advisedly kept out of the purview of the Municipal Corporation. Use of public streets in modern times is for the vehicular traffic. Regulation of vehicular traffic is the necessary ingredient of the use of the vehicles on public street. The function of regulating the traffic and the parking of vehicles is that of the Police and not of the Municipal Corporation. Unless there is a specific provision which authorises the Municipal Authorities to collect the parking charges, such a charge will have to be characterised as unauthorised. In the case or Commr. Hindu Religious Endowments, Madras v. Sri Lakhmindra Thirtha Swamiar, : [1954]1SCR1005 , it has been held as follows (at p. 295):
'A neat definition of what 'tax' means has been given by Latham, C.J. of the High Court of Australia in - 'Mathes v. Chicory Marketing Board', 60 CLR 263 26 AT P. 276 (M):
'A tax' , according to the learned Chief Justice, 'is a compulsory exaction of money by public authority for public purposes enforeceable by law and is not payment 'for service rendered'.
This definition brings out, in our opinion, the essential characteristics of a tax as distinguished from other forms of imposition which, in a general sense, are included within it. It is said that the essence of taxation is compulsion, that is to say, it is imposed under statutory power without the tax-payers' consent and the payment is enforced by law vide - 'Lower Mainland diary v. Crystal Dairy Ltd.1933 AC 168.
The second characteristic of tax is that it is an imposition made for public purpose without reference to any special benefit to be conferred on the payer of the tax. This is expressed by saying that the levy of tax is for the purpose of general revenue, which when collected forms part of the public revenues of the State. As the object of a tax is not to confer any special benefit upon any particular individual, there is as it is said no element of 'quid pro quo' between the tax-payer and the 'public authority, see. Findlay Shirras on 'Science of Public Finance'. Vol. 1. P. 203. Another feature of taxation is that at it is a part of the common burden, the quantum of imposition upon the tax-payer depends generally upon his capacity to pay.
Coming now to fees, a 'fee' is generally defined to be a charge for a special service rendered to individuals by some governmental agency. The amount of fee levied is supposed to be based on the expenses incurred by the Government in rendering the service, though in many cases the costs are arbitrarily assessed. Ordinarily, the fees are uniform and no account is taken of the varying abilities of different recipients to pay, vide Lutz on 'Public Finance' p. 215. These are undoubtedly some of the general characteristics, but as there may be various kinds of fees, it is not possible to formulate a definition that would be applicable to all cases.'
9. In fiscal matters, it is not permissible to give powers to the authorities to impose a tax or fees by implication. There has to be a specific legislation authorities the levying of either tax or fees. Such a provision being absent in the present enactment, it will have to be held that the action on the part of the respondents in enforcing the impugned Pay and Park Scheme is unlawful and without the authority of law.
10. Even on merits of the scheme, I do not find any wisdom in keeping the parking spaces vacant on a threat that the vehicles parked during the specific night hours will be towed away to the nearest Municipal dumping yard which could be released on payment of prohibitory amount of Rs. 600/-. Surely, this cannot be justified on the ground of regulating the traffic on the public streets. Though it is true that the public streets do vest in the Municipal Corporation, but such streets cannot be treated as a private property. Though they vest in the Municipal Corporation, they are meant for the public for their user as such. This is not to suggest that the public streets can be used as a storing ground of vehicles which are under repairs or in junk condition. This would not amount to parking of vehicles. In case of such a user, the Municipal Corporation would undoubtedly have the authority to have the same removed on the ground that the same obstructs the vehicular traffic on the public streets. However, since I find that there is no specified authority given to the Municipal Corporation under the present enactment to levy a fee, the impugned Pay and Park Scheme will have to be struck down.
11. Shri Singhavi, the learned counsel appearing on behalf of the Respondents, submitted that no person has a right to park and re-pass. The Municipal Authorities by providing for the Pay and Park have provided for a facility. Nobody is obliged to avail of the said facility. But if one chooses to avail of that facility, he is required to pay a fee. Since the public streets under Section 289 of the Bombay Municipal Corporation Act vest in the Corporation, no fault could be found with impugned levy. The said fee, an pointed out in the letter dated the 4th of April 1988, addressed by the Additional Municipal Commissioner to Shri M. R. Pai, is not intended to make a profit out of the scheme but only in order to meet the expenses involved in introducing the said scheme. According to Shri Singhavi, the aforesaid scheme can be supported by CI. (k) contained in S. 63, namely -
``any measure not here in before specifically named, likely to promote public safety, health, convenience or instruction.``
According to him, the Scheme is intended to promote public safety as the measure is intended to avoid accidents.
12. In my judgment, there is no merit in the aforesaid contentions of Shri Singhavi. As pointed out here in above, merely because the public streets vest in the Corporation, the same cannot be treated as an individual`s private property. The same vest in the Corporation for the benefit of its user by the citizens. An essential user of the streets is for passage of vehicular traffic. Parking is an incident of the user of the public streets, the same cannot be objected to by the Municipal Authorities in the manner they have sought to do ;by introducing the impugned Pay and Park Scheme. I am unable to subscribe to the submission of Shri Singhavi that this action can be supported under S. 63(k) on the ground that the inpugned scheme is calculated to enure the safety, health or convenience as provided in the said clause.
13. Shri Singhavi further relied upon the provisions of S. 313 of the B.M.C. Act and contended that the same contains a provision which prohibits a person, except with the written permission of the Commissioner, to place or deposit upon any street any stall, chair bench, box, ladder, bale or other thing.
According to Shri Singhavi, when a vehicle is parked on the street, it would amount to placing or depositing such other thing upon the street. On such thing being deposited, the Municipal Commissioner, under S. 314(b), has the power without notice to cause the thing to be removed. The action of the Municipal Authorities in towing away the vechiles so placed would thus be justified. Section 490 empowers the Municipal Commissioner to recover the expenses of/ removals by him under S. 314 and hence the recovery of towing charges is justified.
14. In my judgment, there is no merit in the aforesaid contentions. I am unable to subscribe to the contentions of Shri Singhavi that the vehicles can be included in the term ``other things`` as found in S. 313. The term ``vehicle`` has been specifically defined under S. 3(q). If the vehicles were intended to be covered under S. 313, nothing would have prevented the Legislature to specifically provide for the same. When a vehicle is parked on a public street, the same cannot be equated with placing or depositing of ``other things`` on the streets. Hence, the Municipal Commissioner cannot be said to have been authorised by S. 314(b) to tow away such parked vechiles. For the same reason S. 490 cannot be construed as authorising the Municipal Commissioner to recover the towing charges.
15. It may be relevant to note that S.314(c ) of the B.M.C. Act provides that the Commissioner may, without notice, cause to be removed any article whatsoever hawked or exposed for sale in any public place or in any public street in contravention of the provisions of S. 313A and any vehicle, package, bow, board, shelf or any other thing in or on which such article is placed or kept for the purpose of sale. If the Legislature has used the term `vehicle` in the aforesaid provisions, nothing prevented it to have included `vehicle` in S. 313(1)(a) of the B.M.C. Act .
16. For the foregoing reasons, I hold that the impugned parking scheme is ultra vires the provisions of the Bombay Municipal Corporation Act . The Respondents are thus restrained from implementing and/or acting in pursuance of the said impugned Pay and Park Scheme. Though the Petition relates to the Pay and Park Scheme introduced at Khodaded Circle, this order would enure throughout the City as the Scheme itself has been found to be without authority of law. This order shall be implemented forthwith.
17. Rule made absolute in the aforesaid terms. The Respondents shall pay the Petitioners` costs of this Petition.
18. On the 11th Jan. 1989, an interim order was passed in this Petition in terms of the Minutes of the order, which provided as under:
``1. Ad interim order dt. 21-12-1988 permitting private cars to be parked in Khodaded Circle within ``Park Scheme Area`` from 10 p.m. to 8. P.m. without payment of any charges confirmed subject to the following modification viz. That time during which parking be permitted modified from 10.00 p.m. to 8.00 a.m. to 10.30 p.m. to 7.00 a.m. from the date hereof.
2. From 12-1-1989 all persons parking vehicles in Khodaded Circle on payment of the prescribed charges and who retain receipts for such charges shall be entitled to reimbursement and the Respondents shall reimburse such charge upon production of the relevant receipts, in the event of the petition succeeding within time as this Hon`ble Court may determine.``
In view of the said order, the Respondent shall reimburse to such persons who have parked their vechicles in the Khodaded Circle from 12th Jan., 1989 on payment of the prescribed charges on their production of the receipts for such receipts within six months.
19. Shri Murthy, appearing on behalf of the Respondents has prayed for stay of my aforesaid order. Shri Seervai, appearing on behalf of the Petitioners, has strongly objected to the grant of stay.
20. In view of the fact that I have found that the impugned recovery of the Pay and Park charges by the Respondents lack the authority of law and in view of the fact that if the order for stay is granted, that would permit the Respondents to continue to recover the said charges which, it would not be possible to refund in the event of the appeal, which is likely to be filed, being dismissed. I find that the balance of convenience lies more in favour of the vehicle owners than in favour of the Respondents. If the stay is granted, it will not be possible to refund the amount so collected to the numerous vehicle owners. In the event of the stay being refused, it would only deprive the Municipal Authorities of some revenue which, event according to their communication dt. 4th April 1988, Exhibit `C`, is not intended to augment the revenue of the Respondents. In this view of the matter, the prayer for granting stay of my order is rejected.
21. Order accordingly.