Delhi High Court
Central Service Station And Ors. vs Ndmc on 27 November, 2006
Equivalent citations: 136(2007)DLT336
Author: S. Ravindra Bhat
Bench: S. Ravindra Bhat
JUDGMENT S. Ravindra Bhat, J.
1. The petitioners, in these proceedings have sought directions to quash the decision of the respondents, particularly, the New Delhi Municipal Council (hereafter referred to as "NDMC"), to implement the new traffic circulation plan for Connaught Place made effective from 25.07.06.
2. The petitioners are authorized dealers of petroleum companies, namely, Hindustan Petroleum, Bharat Petroleum Corporation Ltd. and Indian Oil Corporation. They are engaged in the business of selling petroleum products, from the outlets in Connaught Place. It is claimed that the respondents in consultation with each other formulated a traffic circulation plan implemented from 25.07.06. The petitioners aver that the Connaught Place area houses one of the finest shopping complexes, which was planned decades ago. The petitioners have been functioning in the area for over five decades, contributing to the business, catering to the needs of residents, offices and vehicle owners generally in the vicinity as well as those visiting the area. Connaught Place is approached by seven radial roads. It is claimed that as per the decision of the respondents, three radial roads, namely, road No. 3 (Punchkuin Road), No. 5 (Minto Road) and No. 7 (Barakhamba Road) are to be permanently closed; two roads, viz. Janpath and Radial No. 4 (State Entry Road) are permitted only for the purpose of entry of traffic whereas the other two Radial Road Nos. 2 and 6 (Baba Kharak Singh Marg and a road in front of Nirulas outlet respectively) are permitted for purposes of exit.
3. It is alleged that reports had been published in the press from time to time about intention of the respondents to revamp the traffic circulation plan in the Connaught Place area; it was also informed in the course of such publications that petroleum outlets would be re-located elsewhere. It is claimed that the petitioners, by a letter dated 15.06.05 requested the NDMC to notify where they would be located since the matter was of great importance and any delay would adversely affect their livelihood. The NDMC, in its letter dated 15.07.05 stated that final proposal for re-location of the existing petrol pumps was yet to be finalized and that the petitioners would be informed appropriately. The petitioners requested for grant of hearing or opportunity in regard to the proposed plans on 04.08.05. However, the NDMC maintained silence and did not disclose any plans which led to further letters being written. The State Level Coordinator (Oil Industry) Delhi requested for a meeting of the NDMC with Oil Industry officials as the outlets located in Connaught Place area were likely to be affected seriously by the proposed traffic plan. This communication dated 14.10.05 had mentioned the long existence of such outlets and also had drawn to the attention of the NDMC that availability of fuel stations was a key element or requirement for those visiting the Connaught Place area. It was stated in the letter that the retail outlets located in the surrounding areas were very few and that closure of the existing outlets would be of great inconvenience to the customers.
4. On 23.02.06, the NDMC intimated to the first petitioner that the Master Plan for re-development of Connaught Place was being prepared after due study by consultants and that a final picture would emerge only after consultation with stakeholders and approval of the plan by the Delhi Urban Arts Commission and other statutory bodies. It is claimed by the petitioners that they were lulled into inaction on the basis of the representations of NDMC; upon becoming aware of newspaper reports that the respondents had finalized a new traffic circulation plan, they addressed another detailed representation on 17.07.06. It is claimed that the decision to implement the new traffic circulation plan is violative of Articles 19(1)(g) of the Constitution of India and is, therefore, unreasonable. It is also alleged that the decision is arbitrary, in its impact upon the petitioners.
5. On 25.07.06, this Court had recorded the statement of first respondent that the petitioners would be granted a hearing. Pursuant to the said directions, apparently a meeting did take place and the petitioners filed an additional affidavit on 21.08.06 alleging that the meeting was a mere formality; that the respondents had no intention of reconsidering the traffic plan which had already been made effective. The petitioners allege that the traffic plan has affected their sales; sales had dropped to 40 % of the previous levels. It is also claimed that many of petitioners' customers, on account of inconvenience caused by the traffic plan which does not permit free movement to and from the outlets, expressed their intention to discontinue their visits.
6. The petitioners also claim that the formulation and implementation of the new traffic plan is contrary to the New Delhi Municipal Council Act, particularly, Sections 202, 203 and 207 which prescribe procedural safeguards. It is claimed that these provisions were not observed. Besides, it is stated that the decision to change the traffic plan was taken in an unfair manner without consulting the parties likely to be affected and that such policy is unreasonable and arbitrary, as it has virtually extinguished the right of the petitioners to carry on trade and commercial activity of their choice.
7. The NDMC in its counter affidavit, avers that a hearing was conducted pursuant to the order of the Court on 08.08.06 in the Chamber of the Secretary, NDMC in which the representatives of the police, the consultant, namely, RITES and the petitioners were present. The details of the traffic circulation plan, which came into effect from 25.07.06, were explained. As per NDMC, seven alternative proposals were worked out with the consultants. After considering all the pros and cons of each proposal, the final proposal was implemented. The principal aim of the new traffic plan is to reduce non-destined traffic in the inner circle. As per the study of the consultants, nearly 60 per cent of the traffic in Connaught Place was non-destined in nature. It is claimed that the plan has resulted in a smooth and rapid movement of traffic. The NDMC claims that its consultants had disclosed in the meeting that three Radial roads had not in fact been closed; only the entry and exit on the outer circle to the three Radials were stopped. Reliance has been placed upon the circulation plan. The NDMC has relied upon the data collected by the Deputy Commissioner of Police and refuted the allegation that the traffic plan has increased congestion. It is claimed that as a consequence of the plan, the total parking area available has in fact increased. The demand of the petitioners that three Radials, namely, Panchkuian Road, Minto Road and Barakhamba Road should be opened for a right turn to the outer circle, was considered but rejected as it would lead to conflict with the traffic movement in the outer circle.
8. NDMC avers that the revised plan was implemented on the basis of a scientific study carried out by RITES to de-congest the inner circle and avoid the non-destined traffic entering into the inner circle. The exit/entry only from Radial Road Nos. 3, 5 and 7 is closed to outer circle whereas there is no change in circulation of traffic in the inner, middle and outer circles. It is claimed that the Radial Roads have not been permanently closed but only exit from such roads to outer circle stopped, on a trial basis. A part of those Radials were converted into parking. The area in front of the petroleum pumps has been left out for circulation of vehicles. The NDMC has relied upon certain sketches and photographs.
9. It is further averred that the overall re-development plan for Connaught Place is being prepared and the question of re-location of the petroleum pumps, if required would be ascertained only after its approval by various agencies including the Delhi Urban Arts Commission. In reply to the additional affidavit, the NDMC has disputed that any provision of law has been breached. It is claimed that the entire exercise is on a trial basis; the vehicles can use Radials for parking, for circulation and for going to the petrol pumps. It is also stated that prior sanction of the Council in such cases is not required.
10. The NDMC has averred that the traffic circulation plan has been implemented in public interest, after its careful consideration by all the authorities including the Delhi Traffic Police for more than a year, and several consultations with the RITES in order to make Connaught Place a prime heritage area of Delhi, more accessible to the public and for better movement of traffic. The allegations about inconvenience to the public, it is claimed, are not based on any scientific study.
11. Mr. Peeyoosh Kalra submitted that as per provisions of Section 202 of the Act, all streets vest in the Council, i.e NDMC. Counsel submitted that whenever the NDMC proposes closure of the whole or part of a public street, it is duty bound to grant reasonable opportunity to the persons likely to be affected by such action. Admittedly, this was not done and, therefore, the traffic plan, to the extent it closes part of the public street where petrol pumps are located, is illegal. Learned Counsel also relied upon Section 207 of the Act and submitted that wherever the Chairperson of the NDMC wished to prescribe or regulate vehicular traffic in public streets or any portion, action had to be preceded by sanction of the council. Indisputably, no sanction had been obtained. Therefore, the action was unlawful.
12. Learned Counsel submitted that besides violation of mandatory provisions of law, the traffic plan is also not legal and justified because at all material times, the petitioners were engaged in correspondence with the NDMC, expressing their concern about the adverse impact upon them in the event of a new traffic plan. The NDMC intentionally did not take into consideration their legitimate concerns; resultantly, they have been arbitrarily deprived of business opportunities and the sale of petroleum products have fallen to dismally low levels. It was submitted that every State action has to be preceded by fair procedures, if the impact is likely to tell adversely upon a citizen or a third party. Being fully aware of this and also being fully aware of the various letters, the NDMC refrained from involving the petitioners in the process of framing the new traffic plan.
13. Learned Counsel sought to place reliance on photographs and sketches to say that the traffic plan has indeed adversely impacted on the petitioners. It is submitted that the claim of the NDMC that only a part of the road has been closed and that consumers are free to visit the petrol pumps for re-fueling, is not supported by facts. Counsel submitted that one complete side of the road is blocked and entry is permitted only for parking. In these circumstances, the number of consumers visiting the petrol pumps is extremely limited; they have to face considerable hardship. Besides, there is not sufficient road space. All these have gravely depleted the business of the petitioners. Learned Counsel relied upon a decision of Madras High Court in The State of Madras represented by the Commissioner of Police Madras v. Murray and Co. by its Sole Proprietor, S. Rajan and Ors. AIR 1965 Mad 301 to say that even if a part of the public street is to be shut down or vehicular movement is to be prohibited, the procedure prescribed has to be necessarily followed. Admittedly, this was not done and, therefore, the traffic plan is illegal and void.
14. Mr. V.P. Singh, learned senior counsel for NDMC submitted that the traffic plan was conceived in public interest. It has been essentially implemented on a trail basis and depending on its success, further modifications will be made and in the event of final shape being given to it, the NDMC would necessarily follow the provisions of the Act. It is claimed that the entire process of a evolving the traffic plan went through several phases of consultations and study of data which took about a year. Seven alternative plans were made which finally culminated in one plan implemented on a trial basis for six months from July, 2006.
15. Learned Counsel submitted that the provisions of Section 203 and 207 are not attracted because the NDMC has not proposed to permanently shut down part of, or an entire public street. The requirement of issuing notice to the concerned residents or parties and also seeking sanction would arise when the closure or regulation/ prohibition is of a permanent nature. In this case, the traffic plan is only a provisional one introduced on a trial basis. Without undertaking such an exercise, the NDMC and the other agencies would have been responsible for adding to the traffic woes, if permanent plans had been made effective. Based on the experience gained and the data collected, modifications or fine tuning would be done and in the event of any part of a public street being required to be closed or vehicular movement prohibited, permanently, the provisions of law would be duly followed.
16. Learned Counsel relied upon the judgment of the Supreme Court in M.C. Mehta v. Union of India 1997 (8) SCC 70 to state that regulation of traffic by the local agencies is of prime importance in the overall development of a city. He also relied upon an order of the Supreme Court in the same proceeding, issued on 22.09.06. Learned senior counsel urged that the impugned action is a pure policy measure formulated on exercise of discretion. It has taken into consideration all relevant factors and the Court should be slow and circumspect in scrutinizing it, in proceedings under Article 226.
17. It would be necessary to extract the relevant provisions of the New Delhi Municipal Council Act, 1994, concerning the issue. They are as follows:
202. Vesting of public streets in the Council--(1) All streets within New Delhi which are or at any time become public streets and the pavements, stones and other materials thereof shall vest in the Council.
Provided that no public street which immediately before the commencement of this Act vested in the Union shall, unless the Central Government with the consent of the Council so directs, vest in the Council by virtue of this sub-section.
(2) All public streets vesting in the Council shall be under the control of the Chairperson and shall be maintained, controlled and regulated by him in accordance with the bye-laws made in this behalf.
203. Functions of Chairperson in respect of public streets--(1) The Chairperson shall, from time to time, cause all public streets vested in the Council to be levelled, metalled or paved, channelled, altered or repaired, and may widen, extend or otherwise improve and such street or cause the soil thereof to be raised, lowered or altered or may place and keep in repair fences and posts for the safety of foot passengers.
Provided that no widening, extension or other improvement of a public street, the aggregate cost of which will exceed one lakh rupees, shall be undertaken by the Chairperson except with previous sanction of the Council.
(2) With the previous sanction of the Council, the Chairperson may permanently close the whole or any part of a public street.
Provided that before according such sanction the Council shall by notice, published in the manner specified by bye-laws give reasonable opportunity to the residents likely to be affected by such closure to make suggestions or objections with respect to such closure and shall consider all such suggestions or objections which may be made within one month from the date of publication of the said notice.
xxx xxx xxx
207. Power to prohibit or regulate use of public streets for certain kind of traffic--(1) The chairperson may --
(a) prohibit or regulate vehicular traffic in any public street or any portion thereof so as to prevent danger, obstruction or inconvenience to the public or to ensure decongestion or smooth flow or quietness in any locality;
(b) prohibit or regulate in respect of all public streets, or any particular public street, the transit or any vehicle of such form, construction weight or size or laden with such heavy or un-widely objects as may be likely to cause injury to the road-ways or any construction thereon, except under such conditions as to time, mode of traction or locomotion, use of appliances for the protection of roadways, number of lights and assistants and other general precautions and upon the payment of such charges as may be specified by the Chairperson generally or specially in each case; and
(c) prohibit or regulate access to premises from any particular public street carrying high speed vehicular traffic.
Provided that the Chairperson shall not take action without sanction of the Council in cases under Clauses (a) and (c).
(2) Notices of such prohibition as are imposed under Sub-section (1) shall be posted in conspicuous places at or near both ends of public streets or portions thereof to which they relate, unless such prohibition applies generally to all public streets.
18. A combined reading of the above provisions indicates the following:
(1) All public streets (so defined under the Act) vest in the NDMC (2) The NDMC has a duty to maintain the streets (3) The Chairperson of NDMC can cause closure of a part or whole of a public street; in such an event, prior sanction of the Council has to be obtained;
(4) The council is also, in addition, under an obligation to issue public notice of the proposal, and grant hearing to the persons likely to be affected, so that their objections and suggestions are duly considered;
(5) The Chairperson can also prohibit the use of any street as a transit; in such an event, prior sanction of the Council has to be secured.
19. The first limb of the petitioners' submission hinges on the submission regarding violation of Sections 202(2) and 207. Indisputably, no public notice under either provision was issued; nor is it the case of NDMC that the council's permission was secured prior to the impugned action. Its defense is that the restrictions imposed are not permanent, and are only for the time being, for six months. In the event, the NDMC wants to close the streets, or exercise its powers under Section 207, it would do so strictly as per the provisions of the Act.
20. The concerned provisions of the Act are contained in the Chapter dealing with Streets. They correspond with provisions of Section 169 of the Punnjab Municipal Act, 1911, which were applicable before 1994, and are also in pari maateria with Sections 299 and 303 of the Delhi Municipal Corporation Act, 1957. Broadly stated the legislative intention in the enactment of such provisions is to enable effective policies regulating public streets and their implementation. In metropolises like Delhi with their endemic traffic problems, municipal authorities have to necessarily conceive and formulate multipronged solutions to ease congestion on the roads. Section 203 and 207 are meant to effectuate that purpose. Parliament of course also visulalised situations where interests, both residential and commercial could be affected with exercise of the such power to close public street, or prohibit use of parts of such streets. Therefore, procedural safeguards such as previous sanctions by the council and reasonable opportunity of hearing, and consideration of the objections and suggestions by individuals were mandated. The necessity of evolving such proceedural safeguards is not open to debate; the question is whether those provisions have been breached, as the petitioner complians.
21. The stated position of the NDMC is that the traffic plan is an experimental one and a product of careful and prolonged deliberations with technical consultants. It was submitted that if the traffic plan is finalised, in its present and modified version (as is to schedule to be the case in the next couple of months ) the procedural requirements of Section 203(2) and 207 would be complied with.
22. A strict and literal interpretation of Section 203(2) and 207 lends support to the petitioners' contentions. However the Court cannot be completely obivilous of realities. Thus, for instance if the NDMC has to issue notice and seek sanction every time it proposes to restrict traffic upon stretches of public street even for limited periods either on experimental basis or to cater to peculiar exigencies, a literal interpretation would mean that in every such instance, the council's prior approval would be necessary and hearing of objections would have to undertaken. This procedure would not only be cumbersome but unduly inhibit municipal Administration. Therefore the court, in such eventualities has to try to ensure that the basic object of the provisions are achieved without sacrificing any of the its essential, procedural elements.
23. It has been long recognised that where the language of the statute in its ordinary meaning leads to contradiction with the apparent purposes of the enactment or to some inconvenience, hardship and injustice, presumably not intended, an interpretation may placed by the Court which modifies the meaning of the words or even the structure of the sentence, to bring out the essential purpose. (Ref R. Rudraiah v. State of Karnataka JT 1998 (1) SC43, pp 443 444, AIR 1998 SC 1070, p.1075; Molar Mal v. Kay Iron Works (P) Ltd. AIR 2002 SC 1334 pp. 1340, 1341 : (2002) 3 SCC 533.]
24. On an application of the above principles of the construction, the logical method of resolving the need to provide the safe guards with the objective of the ensuring effective regulation, and the requirement of previous sanction by the council and the granting of opportunity to persons likely to be affected by the restriction/ prohibition of the public street, in my opinion, should be that such such preconditions have to be followed when the council proposes a permanent closure or restriction. Modern day planning imperatives are such that municipal authorities cannot be expected to rule out innovation, which may include trial or experimental plans. If at the end of trial or temporary periods therefore, the NDMC forms the opinion that part of a public street or an entire public street should be closed to traffic or restrictions contemplated under Section 207 have to be put in place, the procedural requirements would have to be fulfillled at that stage.
25. The second issue is the whether the petitioners are justified in lamenting that the traffic plan is arbitrary and has affected the commercial interests so as to deprive them of the right to carry on trade or business, under Article 19(1)(g) of the Constitution of India. As far as the question of the traffic plan being arbitrary is concerned, although during the course of hearing effort was made to highlight the grave inequity and hardships that are likely to and have indeed ensued on application of the traffic plan, which were, with equal vehemence, refuted by the NDMC, I am of the opinion that judicial review proceedings are inadequate to adjudge the efficacy of such policies. The Court under Article 226 can enquire into the legality, procedural regularity in formulation of an executive policy or decision and can also examine issues as to fairness of the manner of arriving at such decisions, if they impact upon an individual or groups of individuals. But the nature of judicial review can not admit a deeper enquiry into the soundness of policies or the prudence of preferring one choice or alternative over another. In the decision reported as Council Civil Service v. Minister for the Civil Service (1985) A.C.374 the Court of Appeal held as follows :
... the reasons for the decision maker taking one course rather than another do not normally involve questions to which, if disputed, the judicial process is adopted to provide the right answer, by which I mean that the kind of evidence that is admissible under judicial procedures and the way in which it has to be adduced tend to exclude from the attention of the court competing policy considerations which, if the executive discretion is to be wisely exercised, need to be weighed against one another, a balancing exercise which judges by their upbringing and experience are ill-qualified to perform.
26. The above discussion leads me to conclude, therefore that the court cannot examine the merits of the traffic plan; it is ill-equipped to do so, lacking the technical expertise and the complete facts which are intrinsic to formulation of policies.
27. As regards the complaint that the impugned measures violate the rights of the petitioners, the fact that the measure is temporary, and the circumstance that the traffic plan does not stop their business, leads me to conclude that the drop in profits - temporarily- by itself does not constitute an unreasonable restriction on the right to carry on business, for the court to conclude unreasonableness; the impact has to be graver, the facts, pleaded and proved with greater specificity.
28. In view of the above conclusions, I find no merit in the contentions raised. Yet in view of the statements made behalf of the NDMC, a direction is issued to the respondent to finalise the traffic circulation plan by taking into consideration all material facts including the experience gathered since 25.07.2006 and to follow the procedure, prescribed by Sections 203(2) and 207, if any public street or part of it is proposed to be closed permanently, as expeditiously as possible and within three months from today .
29. The writ petition is dismissed subject to the directions contained in the preceding paragraph.