Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.17271732 OF 2019
(Arising out of S.L.P.(C) Nos.2497124976 of 2018)
Municipal Corporation of
Greater Mumbai & Ors. ….Appellant(s)
VERSUS
Rafiqunnisa M. Khalifa(Deceased)
Through His Legal Heir
Mr. Mohd.Muqueen Qureshi & Anr. ….Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. Leave granted.
2. These appeals are directed against the final
judgment and order dated 12.06.2018 of the High
Signature Not Verified
Digitally signed by
ASHOK RAJ SINGH
Date: 2019.02.18
17:12:37 IST
Reason:
Court of Judicature at Bombay in Writ Petition(c)
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Nos.2639, 2184, 2642, 2641, 2644 and 2746 of
2016 whereby the High Court allowed the writ
petitions filed by the respondents herein.
3. A f ew facts need mention hereinbelow to
appreciate the short controversy involved in these
appeals.
4. Respondent No.1 in all the appeals (total 6)
were the writ petitioners and the appellants (1 to 6)
herein were the respondents in the six writ petitions
out of which these appeals arise.
5. The six respondents individually filed six
separate writ petitions against the Municipal
Corporation of Greater Mumbai (appellant No.1
herein) and their officials including the Collector
(Respondent Nos.2 to 6) and sought common reliefs
in their individual writ petitions against the
appellants on identical, factual and legal
pleadings/grounds.
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6. According to six writ petitioners (respondent
No. 1 in all the appeals), one was running his
restaurant in a stall under the name “Yadgar
Restaurant” at Bandra Station Road. The other writ
petitioner was running a "Pan Shop" in a stall in
front of Yadgar Restaurant. The third writ petitioner
was running a food stall under the name "Lucky
Kabab Corner" at Bandra Station Road. The fourth
writ petitioner was running a food stall under the
name "Danish Kabab Corner" at Bandra Station
Road. The fifth writ petitioner was running a food
stall under the name "GulsikKabab and sweetmeat
shop" at Bandra Station Road and sixth writ
petitioner was running a food stall under the name
"A1 Seak Kabab" at Bandra Station Road.
7. All the six writ petitioners sought the relief of
mandamus on the identical allegations against the
appellants inter alia contending that the officials of
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the Municipal Corporation illegally removed their
stalls/structures on 26.05.2016 without any prior
notice to any of them. The writ petitioners alleged
that the action on the part of the Municipal
Corporation and their officials (appellants herein)
while undertaking the removal of the writ
petitioners' food/pan stalls situated at Bandra
Station Road was wholly arbitrary, illegal and
against the relevant provisions of the Mumbai
Municipal Corporation Act, 1888 (hereinafter
referred to as "The Act").
8. It was alleged that each writ petitioner was
holding the health license issued by the Municipal
Corporation (appellant No.1 herein) for running
their respective stalls on the site in question and,
therefore, the appellant No.1Municipal Corporation
was not justified and nor had any right under the
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Act to initiate any action for the removal of their
stalls much less without any prior notice.
9. It was alleged that the action to remove the
structures/stalls was not in conformity with any
provision of the Act inasmuch as it also violated the
principle of natural justice. It was equally in breach
of Article 14 of the Constitution.
10. The writ petitioners, on the aforementioned
allegations, claimed the reliefs that the appellant
No.1Municipal Corporation be directed to put the
writ petitioners in possession of the site in question
or in the alternative to provide them with any other
suitable site in the city where they could start their
business afresh and further direct the appellants to
pay to each writ petitioner a reasonable
compensation for the loss of their business and the
inconvenience caused to them on account of
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impugned removal done by appellant No.1
Municipal Corporation on 26.05.2018.
11. The appellants opposed the writ petitions by
filing reply in some of the writ petitions. The
appellants inter alia contended that they were
compelled to take the action under Section 314 of
the Act because these stalls/structures were found
erected on the public sewer. It was contended that
since these stalls/structures were causing
hindrance in cleaning the public sewer lines and
were found to have been erected without any
sanctioned plan, they had to be removed in public
interest. It was also contended that these
stalls/structures were also causing traffic
congestion on Bandra Station Road. It was lastly
contended that before taking the action, the health
licenses granted to the writ petitioners were
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cancelled and a circular was issued on 05.10.2015
for removal of these unauthorized stalls/structures.
12. By impugned order, the High Court allowed
the writ petitions. It was held that the appellant
(Municipal Corporation) was not able to prove that
the case in question falls under Section 314 of the
Act. The High Court, therefore, struck down the
action taken by the Municipal Corporation and
issued 9 directions in the nature of mandamus
against the appellants. These 9 directions read as
under:
(i) We direct the Mumbai Municipal
Corporation to allot to the Petitioners
stalls/shops of the same size which
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were demolished on 26 May, 2016 in
the same locality or in nearby locality;
(ii) The locality shall be such that the
petitioners are in a position to carry on
the same business which they were
carrying on in the demolished
structures;
(iii) The Allotment shall be made to the
Petitioners as expeditiously as possible
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and in any event, within a period of two
months from the date on which this
judgment and order is uploaded;
(iv) The Petitioners will be liable to pay the
fee/charges, if any, which were payable
in respect of the demolished structures;
(v) On the failure of the Municipal
Corporation to erect/allot the
stalls/shops as directed above within
the period of two months from the date
on which this judgment and order is
uploaded, it will be open to the
Petitioners to reconstruct their
structures/stalls at the places where
the same were situated;
(vi) However, the reconstruction shall be
made by using the same construction
material and that also with advance
notice at least of 48 hours to the
Designated Officer of the concerned
Ward who or his nominee shall be
entitled to remain present at the time
of reconstruction;
(vii) We make it clear that in respect of re
constructed shops, the Petitioners will
not be entitled to claim any equity. If
the original stalls which were
demolished were illegal, it will be
always open for the Municipal
Corporation to initiate an action of
demolition of the reconstructed stalls
in accordance with law;
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(viii) As far as the prayer for compensation is
concerned, it will be always open for
the Petitioners to make appropriate
representation to the Municipal
Corporation along with all the
particulars and documents. If such
representations are made, the
Municipal Corporation shall decide the
same within a period of three months
from the date of filing of the
representations;
(ix) The Petitions are made absolute in the
above terms with no order as to costs.”
13. The Municipal Corporation felt aggrieved by
the impugned order and has filed the present
appeals by way of special leave in this Court.
14. So, the short question, which arises for
consideration in these appeals, is whether the High
Court was justified in allowing the respondents’ writ
petitions and issuing 9 directions quoted above.
15. Heard Mr. Shyam Divan and Mr. Atul Chitale,
learned senior counsel for the appellants and Mr.
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Sunil Fernandes and Ms. Deepa M. Kulkarni,
learned counsel for the respondents.
16. Having heard the learned counsel for the
parties and on perusal of the record of the case, we
are inclined to allow the appeals, set aside the
impugned order and dismiss the writ petitions.
17. Sections 312 and 314 of the Act, which are
relevant for disposal of these appeals, read as
under:
“312. Prohibition of structures or fixtures
which cause obstruction in streets.
(1) No person shall, except with the
permission of the Commissioner under
section 310 or 317, erect or set up any wall,
fence, rail, post, step, booth or other
structure or fixture in or upon any street or
upon or over any open channel, drain, well or
tank in any street so as to form an
obstruction to, or an encroachment upon, or
a projection over, or to occupy, any portion
of such street, channel, drain, well or tank.
(2) Nothing in this section shall be
deemed to apply to any erection or thing to
which clause(c) of section 322 applies.
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“314. Power to remove without notice
anything erected, deposited or hawked in
contravention of Section 312, 313 or 313A.
The Commissioner may, without notice,
cause to be removed
(a) any wall, fence, rail, post, step, booth
or other structure or fixture which shall be
erected or set up in or upon any street, or
upon or over any open channel, drain, well or
tank contrary to the provisions of sub
section(1) of section 312, after the same
comes into force in the city or in the
suburbs, after the date of the coming into
force of the Bombay Municipal (Extension of
Limits) Act, 1950 or in the extended suburbs
after the date of the coming into force of the
Bombay Municipal Further Extension of
Limits and Schedule BBA (Amendment) Act,
1956;
(b) any stall, chair, 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 subsection(1) of section
313;
(c) any article whatsoever hawked or exposed
for sale in any public place or in any public
street in contravention of the provisions of
Section 313A and any vehicle, package, box,
board, shelf or any other thing in or on which
such article is placed or kept for the purpose
of sale.
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(d) any person, unauthorisedly occupying or
wrongfully in possession of any public land
from such land together with all the things
and material unauthorisedly placed,
projected or deposited on such land by such
person
Provided that, the Commissioner shall,
while executing such removal, allow such
person to take away his personal belongings
and household articles, such as cooking
vessels, bed and beddings of the family, etc.”
18. Section 312 of the Act prohibits erecting of any
structure or fixture of any nature such as wall,
fence, rail, post, step, booth upon any street or over
any open channel, drain, well or tank in any street
which causes obstruction or encroachment or
projection or to occupy portion of such street,
channel, drain, well or tank as the case may be.
Only those structures/fixtures are saved from
Section 312 of the Act which are erected with the
permission of the Commissioner granted under
Sections 310 and 317 of the Act. In other words,
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Section 312 has no application to those
structures/fixtures which are erected by the person
with the permission of the Commissioner under
Sections 310 and 317 of the Act.
19. Section 314(1) with which we are concerned in
this case confers power on the Commissioner to
remove any wall, fence, rail, post, step, booth or
other structure or fixture which is found erected or
set up on any street, open channel, drain, well or
tank contrary to the provisions of subSection (1) of
Section 312 of the Act after coming into force the
provisions of Bombay Municipal (Extension of
limits) Act, 1950 or in the extended suburbs after
coming into force Further Extension of Limits and
Schedule BBA (Amendment) Act, 1956.
20. In other words, in order to exercise the power
under Section 314 (1) of the Act, two conditions
must be present. First, the disputed wall, fence,
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rail, post, step, booth or any other type of structure
or fixture, as the case may be, is erected or set up
on any public street or open channel or drain or
well or tank; and Second, any such structure or
fixture, as the case may be, is erected or set up in
the city or suburbs contrary to the provisions of
Section 312(1) of the Act after coming into force the
two Acts specified in subsection (1).
21. Coming now to the facts of the case, it is
apposite to mention here that the appellants filed
certain additional documents in these appeals such
as map and the photographs of the site in question
in support of their case. These documents were not
filed before the High Court as is clear from the
perusal of the impugned order. These documents
were allowed to be taken on record being relevant
and material for deciding the issue involved in these
appeals. The respondents, however, did not dispute
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the veracity of these documents and, therefore,
these documents remained indisputable.
22. Perusal of the counter affidavit, map and the
photographs of the site in question clearly show
that, first, the stalls/structures of the respondents
were found erected on the sewer line/chamber;
Second, these structures/stalls were not erected by
the respondents with the permission of the
Commissioner as required under Section 312 (1) of
the Act; Third, no sanctioned map was filed by the
respondents to prove that the structures were legal;
and fourth, the stalls/structures were causing
obstruction to public at large and were causing
encroachment on the street (Bandra Station Road),
which is very narrow.
23. In the light of the aforementioned four factors
being present, we are of the considered opinion that
the appellant (Commissioner) was justified in
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invoking the powers under Section 314 of the Act
against the respondents on 26.05.2018 for removal
of their stalls/structures. Since the action to
remove the stalls/structures was taken under
Section 314 of the Act, it was not necessary to give
any prior notice to the respondents though a
circular was issued on 05.10.2015 requesting the
respondents to remove their stalls/structures from
the site in question.
24. We are, therefore, unable to find any illegality
or arbitrariness or unreasonableness in the action
taken by the Commissioner under Section 314 of
the Act, which resulted in removal of the
respondents’ stalls/structures.
25. Learned counsel for the respondents,
however, argued that since the respondents were
granted health licenses under the Act for selling
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their foodstuff in these stalls/structures, their
removal from the site in question was illegal.
26. We find no merit in this submission. In our
opinion, grant of health license has nothing to do
with erection of stall/structure and its removal. In
order to exercise the power under Section 314 of the
Act, the conditions specified therein need to be
satisfied. Section 314 nowhere says that if a person
is carrying on any activity in such stall/structure
on the strength of health license on the street, or
open channel, drain, well or tank, no action to
remove such stall/structure can be taken against
such person. The action under Section 314 can be
attacked successfully only by showing that the
person had erected his stall/structure with the
permission of the Commissioner granted under
Section 312(1) of the Act. Such is, however, not the
case here.
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27. In our opinion, the High Court was, therefore,
not justified in striking down the action of the
appellant (Commissioner) taken under Section 314
of the Act for removal of their stalls/structures on
26.05.2018. The High Court was also not justified
in issuing a mandamus directing the appellant
Municipal Corporation to provide to each
respondent some suitable land either in the same
area or in adjacent area.
28. It is a settled principle of law that a writ of
mandamus under Article 226 of the Constitution is
issued, when there is a right and correspondingly
there is a legal duty to perform. In this case, neither
there was any right (contractual or legal) in writ
petitioners’ favour and nor there is any provision in
the Act which casts an obligation to provide any
alternate land to the respondents.
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29. We also do not find any scheme/policy made
in this behalf by the appellants or the State, which
could be enforced by the respondents. Moreover,
once this Court holds that the action taken under
Section 314 of the Act against the respondents is
legal and proper, there is no occasion to issue any
mandamus much less the mandamus of the nature
issued by the High Court.
30. In view of the foregoing discussion, the appeals
succeed and are accordingly allowed. The impugned
order is set aside. As a consequence, the writ
petitions out of which these appeals arise are
dismissed.
………...................................J.
[ABHAY MANOHAR SAPRE]
....……..................................J.
[DINESH MAHESHWARI]
New Delhi;
February 18, 2019.
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