Full Judgment Text
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CASE NO.:
Appeal (civil) 8994 of 1994
PETITIONER:
A.L. Ranjane
RESPONDENT:
Ravindra Ishwardas Sethna & Ors.
DATE OF JUDGMENT: 22/11/2002
BENCH:
S.N. VARIAVA & ARUN KUMAR.
JUDGMENT:
JUDGMENT
WITH
CIVIL APPEAL NO.4423 OF 1995
ARUN KUMAR, J.
These appeals are directed against a judgment and decree
passed by the High Court in Letters Patent Appeals No.110 of
1993, 111 of 1993 and 112 of 1993. So far as the legal aspect of
the case is concerned it relates to interpretation of Section 313 of
the Bombay Municipal Corporation Act (hereinafter referred to as
the ’Act’). Rest of the matter relates to findings of fact arrived at by
the High Court which do not call for interference in these Civil
Appeals.
Briefly, the facts are that the appellant is running a tea-stall for
which he has put up a structure on the street at the junction of
Kalbadevi Road and Jambulwadi Lane. Respondent No.1 is the
owner of the building on that corner. The tea stall set up by the
appellant on the street abuts the building owned by Respondent
No.1. Respondent No.1 filed a suit for declaration, mandatory
injunction and permanent injunction with the following prayers:
"(a) For a Declaration that the suit structure put up by
the 3rd defendant is an unauthorized structure and also
an encroachment on the plaintiff’s rights and property.
(b) For a Mandatory Order and Injunction that the
defendants do forthwith remove the suit structure along
with the paraphernalia, including illegal electric and
water connections and the things and articles inside and
around the suit structure, including those that are
affixed, annexed and attached to the said property.
(c) For a permanent Injunction restraining the
defendant Nos.1 & 2 from allowing the suit structures to
continue to remain in the vicinity of the Plaintiffs said
properties.
(d) For a permanent Injunction restraining the
defendant Nos. 1 and 2 from permitting or sanctioning
and allowing any Shed or Stall structure to be put up
and to remain in the vicinity of the plaintiffs said
properties."
The Municipal Corporation of Greater Bombay and its
Commissioner were impleaded as Defendant Nos.1 & 2 while
Defendant No.3 in the suit is appellant herein who is running the
disputed tea stall. It has come in evidence of the appellant himself
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that the size of the structure is about 10 ft. x 9 ft. having a height of
10 ft. It has a pucca flooring of paved tiles. It has rolling shutters
on two sides. It has tin roof. On the side of the roof of the structure
is installed a water storage tank. The structure has water and
electricity connections. It has provision for drainage. The four sides
of the structure are embedded in the concrete flooring on the road.
It is also admitted that customers enjoy the facilities provided by the
tea stall while standing/sitting on the road. Washing of the utensils
takes place on the road. The workers of the tea stall bathe and
wash their clothes on the road itself in front of the house of
Respondent No.1. The objected structure occupies about one-third
of the width of Jambulwadi lane. Rain water falling on the roof of the
structure splashes on the wall of the building of Respondent No.1
which damages the wall as well as the paint on the wall of the
building. Respondent No.1 is also aggrieved by the fact that he
cannot repair his building from the side where the structure in
question exists because no scaffolding can be put there. Besides
this Respondent No.1-plaintiff alleged that the stall is a health and
fire hazard because kerosene pressure stove is being used in the
stall for making tea and coffee.
After framing issues and recording evidence of the parties the
trial Court vide judgment dated 30th August, 1988, decreed the suit
of the plaintiff-respondent No.1. In an appeal filed against the said
judgment, the matter was remanded back to the trial Court. The
trial court again passed a decree in favour of the plaintiff on 9th
September, 1991. Two appeals were filed against the decree
passed by the trial Court one by the present appellant i.e. the
owner of the tea stall while the other was filed by the Municipal
Corporation of Greater Bombay and the Commissioner of the
Corporation. A learned Single Judge of the High Court vide
judgment dated 23rd/26th April, 1993 accepted the appeals and
dismissed the suit. Respondent-plaintiff filed Letters Patent Appeals
against the decision of the learned Single Judge. These appeals
were allowed by the Division Bench of the High Court resulting in
the suit of Respondent-plaintiff being decreed. The present
appeals arise from the judgment dated 10.10.1994 of the Division
Bench of the High Court.
The learned Counsel for the appellant argued that the
structure in question was duly authorized by the city Corporation,
and therefore, the plaintiff could not object to the existence of the
structure and the business being carried on therein by the appellant.
In this connection it is to be noted that the appellant was initially
allowed to put up a sugarcane crusher on the street as a "tolerated
structure". The appellant thereafter sought permission for a tea stall
in place of the sugarcane crusher in November, 1981. The
sugarcane crusher occupied space of 1mtr. x 1 mtr. The Ward
Officer put up a note to the Superintendent of Licences stating that
the appellant was allowed a "tolerated" sugarcane crusher and had
asked for permission to put up electric power motor which request
was not permissible, therefore, the appellant wanted to convert the
sugarcane juice stall into a tea stall. The Ward Officer thereafter put
up a note supporting the case of the appellant . The Superintendent
of Licences submitted his remarks to the Municipal Commissioner
stating that permission for tea stall for an area of 1mtr. x 1 mtr. be
considered as a special case and not to be treated as precedent for
any other case in view of the "tolerated" sugarcane crusher allowed
to the appellant. On 10th December, 1981, the Municipal
commissioner passed an order that a tea stall licence may be given
as a very special case and not to be treated as a precedent. Thus
what was permitted was a tea stall of the size of 1 mtr. x 1 mtr. which
was of the same size as the "tolerated" sugarcane crusher. It
appears that the Ward Officer kept on twisting facts in favour of the
appellant. In a further note he recommended that the appellant be
allowed an area of 2 mtrs.x 3 mtrs. for a tea stall. It was reported by
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the Ward Officer that the stall would be put up on a footpath and it
would be at the dead end of the lane. Both these statements were
untrue in as much as neither the stall was on the footpath nor it was
at the dead end of the lane. The structure is at the junction of
Jambulwadi road with Kalbadevi lane whereas the dead end of the
Jambulwadi road is at some distance. There is no footpath at the
Jambulwadi lane. Proceeding on the basis of this mis-
representation, the Municipal Commissioner sanctioned the request
contained in the note of the Ward Officer vide letter dated 17.2.1982.
Further on 27.4.1982 it is recorded that the Municipal Commissioner
has directed the Ward Officer to remove water and electricity
connections in the tea stall. It was also ordered that the stall has
been allowed temporarily as a removable structure and it cannot be
allowed to be permanently embedded on the road. If there was
permanent embedding, the same was directed to be removed. The
appellant continued to pursue the matter regarding water and
electiricity connections.
The fact of the matter is that the size of the tea stall is
2.5 mtrs. x 3.28 mtrs and it is located at the entrance of the
Jambulwadi lane. The stall is about 2 ft. away from the building of
the respondent -plaintiff. The water tank which supplies water to the
stall is supported on iron angles. The High Court noticed that in
addition to the place occupied by the stall, considerable space
outside the stall would always be occupied by people coming to
drink tea as also by other articles which are generally dumped
outside such tea stalls on the road. Thus it is obvious that the tea
stall is a nuisance on the road besides causing hindrance in the free
flow of traffic on the road. It is a source of nuisance for the plaintiff-
respondent No.1 so far his right to enjoy his property is concerned.
Coming to the legal aspect regarding interpretation of Article
313 of the Bombay Municipal Corporation Act we would like to first
quote the relevant portion:
"313.(1) 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 wall in any street (or in ay public
place) any stall, chair, bench, box, ladder, bale or
other thing so as to form an obstruction thereto or
encroachment thereon;
(b) project, at a height of less than twelve foot from the
surface of the street, any board, or shelf, beyond the
line of the plinth of any building, over any street, or
over any open channel, drain, well or tank in any
street;
(c) attach to, or suspend from, any wall or portion of a
building abutting on a street, at a less height than
aforesaid, anything whatever."
A bare perusal of the provision contained in clause (a) of sub-
section (1) of Section 313 of the Act shows that the Commissioner
can grant permission for placing or depositing on any street etc. etc.
any stall, chair, bench, box, ladder, bale. This provision nowhere
authorises the Commissioner to grant permission with respect to a
stall/structure of the type described hereinbefore set up by the
appellant. The structure for which permission can be granted by the
Commissioner has to be similar to items mentioned in the clause.
Permission has to be for something which can be read as ejusdem
generis with the items mentioned in clause (a). The items
mentioned in clause (a) indicate that they are of a temporary nature
and are easily removable as and when required. The structure in
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the present case is of a size which even if not permanently
embedded on road, cannot be said to be akin to items mentioned in
clause (a). In the present case the structure is embedded on the
road. Its four poles are embedded in the concrete paving on the
road. Moreover, the structure has water and electricity connections
and permanent water tank meant to store water and ensure
permanent supply of water to the stall, is installed on the side of the
structure. It has shutters which enable locking of the stall whenever
required. No permission can be granted by the Commissioner for
setting up such a structure under Section 313 of the Act. Section
313 totally bars any stall or structure of the type put up by the
appellant. So permission, if any, granted by the Commissioner is
violative of the statute and is, therefore, illegal.
We also agree with the High Court that permission of the
Commissioner for the tea stall in the present case was obtained by
mis-representation of vital facts. The same is vitiated. It is of no
avail. The High Court further found in its impugned judgment that
the appellant’s right to repair and maintain his building, particularly
the portion where the stall in question abuts, has been seriously
affected. The kerosene pressure stove being used for preparation of
tea and coffee in the stall has been found to be a fire hazard. The
structure was also found to be causing nuisance for the occupants of
the building as well as it was a hindrance in the free flow of traffic
and movement of pedestrians. According to the High Court not only
the structure was not permissible under the provision of Section 313
of the Act but also it has prejudicially affected the rights of the
appellant qua enjoyment of his property. We fully agree with the
findings of the High Court in this respect.
The learned counsel for the appellant meekly argued that the
suit of Plaintiff-Respondent No.1 was barred by limitation prescribed
under Section 527 (1) (b) of the Act. This Section contains a
provision regarding notice to be served on the Corporation before
filing of such a suit against it and it also prescribes a limitation period
for a suit being filed against the Corporation. The issue of limitation
raised by the learned counsel for the appellant can be diposed of
simply on the basis of the fact that the question of limitation, if at all
could be raised by the Municipal Corporation of Greater Bombay and
its Commissioner i.e. Defendants No.1 and 2 in the suit. So far as
the prayer regarding mandatory injunction against Defendant No.3
i.e. the appellant regarding removal of the structure in question, the
bar of limitation does not get attracted. The mandatory injunction
granted under the decree passed by the High Court regarding
removal of the structure provides complete relief to the
plaintiff/respondent No.1. Therefore, we find no substance in the
contention that the suit is barred by limitation in view of the provision
contained in Section 527 of the Act. The result is that these appeals
fail and they are dismissed.
The learned Counsel for the appellant made a request that the
tea stall was being run by the appellant for a long time and it was the
only source of livelihood for the family of the appellant. Therefore, he
prayed that some time be granted to the appellant to enable him to
find some other place to run his business. In view of this request,
the appellant is granted time to remove the structure in question by
or before 31st January, 2003 subject to his filing the usual
undertaking in this behalf within three weeks.