Full Judgment Text
‘ REPORTABLE ’
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6745 OF 2009
Mahanagar Telephone Nigam Ltd. (EAST-I) Appellant(s)
VERSUS
The Assistant Commissioner
Bihanmumbai Mahanagarpalika and Ors. Respondent(s)
J U D G M E N T
K. M. JOSEPH, J.
(1) The appellant challenges the judgment of the Division
Bench of the High Court dismissing Writ Petition No. 791 of
2008 filed by it. The relief sought by the appellant is as
follows:
“a) that this Hon’ble court may issue writ of
certiorari or any other order, or direction writ, in
the nature of writ of certiorari under Article 226
of the Constitution of India, for quashing and
setting aside the said impugned Notices dated
27.9.2006 and 01.03.2008 issued by the Respondents
under Section 299 and 488 of the Mumbai Municipal
Corporation Act, 1888.”
Signature Not Verified
Digitally signed by
Nidhi Ahuja
Date: 2022.05.13
18:30:18 IST
Reason:
(2) Having regard to the nature of the order passed viz.,
essentially its length, we deem it apposite to refer to it:
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“Heard.
2. The road line was fixed by the Municipal
Corporation long back in the year 1988 by following
the procedure under section 297 of the Bombay
Municipal Corporation Act. Therefore, now the
respondents have taken action under section 299 of
the Bombay Municipal Corporation Act, for taking
possession of the land.
3. The learned counsel for the petitioner states
that the petitioner has already surrendered a
portion of its land. However, the submission of the
learned counsel for the Municipal Corporation, that
it was for road widening. Now the land is being
taken for curvature of VN Purav Marg and RC Marg.
4. We find that the Bombay Municipal Corporation
has taken the right action. No interference is
called for therein.
5. The writ petition is rejected.”
(3) We have heard Ms. Pinky Anand, learned senior
advocate, and also Ms. Rashmi Malhotra learned counsel,
appearing on behalf of the appellant, as also, Mr. Atul Y.
Chitale, learned senior counsel on behalf of the respondent.
(4) Before we refer to the submissions of the parties, we
may set out the facts as are necessary.
(5) The predecessor in interest of the appellant viz.,
Bombay Telephones, received notice dated 14.03.1986 calling
upon it to hand over the open set back land at Chembur
Telephone Exchange Building for road widening purposes.
There is a reference to detailed correspondence for some
time and finally 387.5 square meters of area came to be
surrendered. Nearly a decade thereafter, the appellant was
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served with notice dated 27.09.2006 under Section 299 of the
Bombay Municipal Corporation Act, 1888 (hereinafter referred
to as ‘Act’ for brevity). The said notice was for fresh
proceedings for taking possession of land, admeasuring
308.37 square meters forming part of plot bearing CTS 1666
of Village Chembur, under Section 299 of the Act. The
appellant replied by notice dated 17.11.2006. We may set
out the terms of the notice:
“This has reference to the meeting held with you and
our ED, (CGM (D), MTNL – Mumbai alongwith other
senior Officers of MTNL, Mumbai on 16.11.2006 in
Chembur on the subject mentioned above. In the
above matter, it is mentioned that we have received
your Notice dated 27.9.2006 issued under section 299
of the Mumbai Municipal Corporation Act 1888, You
are also aware that the said notice is replied to,
by our Deputy General Manager (Chambur) vide his
letter dated 4.11.2006 by General Manager (East-I)
vide his letter dated 20-10-2006. You are also
aware that Executive Director of MTNL, vide his
letter dated 30.10.2006 (copy enclosed) has
requested Municipal Commissioner of MMC to re-
examine the issue of your Notice dated 27.9.2006.
You will appreciate that as per the provisions
of clause 2 of the section 299 of the said Act.
The said clause 2 of section 299 of MMC Act,
1888 reads as follows:
“Provided that when the land or building, is
vested in the (Government) possession shall not
be taken as aforesaid without the previous
Sanction of the Government concerned and when,
the land or building is vested in any corporation
constituted by Royal Charter or by an act of
Parliament, (of the United Kingdom), or (by an
Indian law) possession shall not be taken as
aforesaid without the previous sanction of (the
State) Government”.
Please note that MTNL, is a Central Government
established under the provisions of Section 4 of the
Indian Telegraph Act, 1885. Considering the status
of MTNL, being Central Government Corporation
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established under the law, you are not entitled to
take the possession of the land or building vested
in the Government without the previous sanction of
the Government concerned i.e. Central Government,
Ministry of Telecommunications.
It is further mentioned that the Chembur
Telephone Exchange is serving more than 50,000
telephone connections and also that the set back
land as required by already surrendered in the year
1995 as agreed with the BMC and accordingly the
compound wall was shifted and re-constructed with
minimum utility space for entry of the operational
vehicles and security measures.
In view of the above and as discussed in the
aforesaid meeting held at the site in Chembur, you
are requested to ….. the whole issue and reconsider
the issue of surrender of any further set back land
by MTNL as the spread land had already been
surrendered by MTNL in the year 1995.”
It is followed up by another communication dated
15.01.2008. We may again refer to the same:
“Asstt Commissioner M/West, BMC vide letter under
reference has given notice for demolishing the
boundary wall of Chembur Telephone Exchange latest
by 15.01.2008 on failure of which as intimated by
him, the same will be demolished by BMC on its own.
In this connection, your attention is drawn to the
following points
1) You will appreciate that the said installation
under consideration is very important part of MTNL
Mumbai network for telecommunication. In fact,
Chembur Telephone Exchange has been identified as
“vital installation” by Government of India and
hence very important from national security point of
view. Activities here are monitored by security
agencies from time to time.
2. MTNL is a Central Government Corporation
established under the provisions of Section 4 of the
Indian Telegraph Act, 1885 and possession of the
land and building or part thereof belonging to MTNL
cannot be taken without prior sanction of the
Government concerned i.e. Central Government.
3) It may be noted that Chembur Telephone Exchange
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is serving about 40,000 customers and any disorder
will affect badly the service to these esteemed
customers.
4) Too much proximity of the exchange equipments
near the main road will subject these to continuous
vibration/mechanical shock due to continuous
movement of heavy vehicles on the road and will lead
to their malfunctioning.
5) This being a technical building minimum vacant
space in the campus is required for loading and
unloading of equipments. Also, at such impotent
technical installations we require to keep
sufficient vacant space for movement of fire brigade
in case of fire hazards.
6) The set back land as agreed by BMC was
surrendered by MTNL in 1995 and accordingly the
compound wall was constructed. At present there is
shortage of utility space available in the said
exchange campus. Any further reduction will
adversely affect the working of the exchange as
mentioned above.
In view of the above, you are requested to withdraw
the claim for the said land and hence the notice
under reference.”
It is thereafter that the notice dated 01.03.2008 was
issued, calling upon the appellant to surrender the land as
demanded in the notice dated 27.09.2006. It is this notice
which is impugned along with the notice dated 01.03.2008.
(6) We have noticed all the facts and we have also
referred to the impugned judgment.
(7) Ms. Pinky Anand, learned senior advocate for the
appellant, makes the following submissions. Firstly, it is
contended that there was no compensation given by the
respondents in respect of the earlier surrender effected by
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the appellant of 387.5 square meters. Secondly, it is
contended that having regard to Section 299 of the Act, the
impugned notices are unsustainable. According to the
appellant, this is for the reason that in terms of Section
299(2), sanction has not been obtained from the Central
Government before issuing the notice. It is further
contended that there is a breach of Section 297 of the Act
as the procedure contemplated under Section 297(1)(b) viz.,
issuance of a public notice for fixation of the road line
was not carried out. Lastly, it is pointed out that the
representation, or the objections of the appellant, was not
considered.
We must also notice that the learned senior counsel
would point out that there are important installations on
the land in question which are vital for the effective
functioning of the appellant-Corporation which caters to as
many as 4000 subscribers.
(8) Per contra, Shri Atul Y. Chitale, learned senior
counsel for the respondents, would submit that the issue
relating to the payment of compensation for the earlier
surrender does not form the subject matter of the present
writ petition. It is further submitted that under Section
301 of the Act, there is a procedure for the payment of
compensation. It entails the filing of an application and
the processing of the same and payment of compensation in
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terms thereof. As far as the violation of Section 299 for
the absence of a sanction under Section 299(2) is concerned,
it is pointed out that the appellant is not a statutory
corporation. In regard to the third submission viz., that
the fixation of the regular line of the street is violative
of Section 297, the High Court by the impugned judgment has
found that the line was fixed in the year 1988 after
following the procedure.
(9) As regards the question regarding the payment of
compensation in regard to the surrender of 387.5 square
meters in the year 1995-1996, we have noticed the relief
which has been sought in the writ petition. We do not think
that the appellant can introduce the said aspect for the
purpose of impugning the notices in question. If the
appellant has grievance in regard to the non-payment of
compensation, and we must notice that there is not much
material to show that the appellant has been pursuing the
same, we cannot allow the notices , if they are otherwise
found legal, to be impugned.
(10) Regarding the second contention viz., violation of
Section 299, that is with regard to whether there was no
sanction from the Central Government, it becomes necessary
to refer to Section 299. Section 299 of the Act reads as
follows:
299. Acquisition of open land or of land occupied by
platforms, etc. within the regular line of a street.
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(1) If any land not vesting in the corporation,
whether open or enclosed, lies within the regular line
of a public street, and is not occupied by a building,
or if a platform, verandah, step or some other
structure external to a building abutting on a public
street, or a portion of a platform, verandah, step or
other such structure, is within the regular line of
such street, the Commissioner may, after giving to the
owner of the land or building not less than seven
clear days written notice of his intention so to do,
take possession on behalf of the corporation of the
said land with its enclosing wall, hedge or fence, if
any, or of the said platform, verandah, step or other
such structure as aforesaid, or of the portion of the
said platform, verandah, step or other such structure
aforesaid which is within the regular line of the
street, and, if necessary, clear the same and the land
so acquired shall thenceforward be deemed a part of
the public street.
Explanation. - For the purposes of acquisition of
open land lying within the regular line of a public
street, and not occupied by a building constructed
th
before the 25 March, 1991 and occupied without
obtaining the permission to occupy the building from
the Commissioner under section 353A, ‘owner’ of the
said land or building means a co-operative housing
society or a federation of co-operative housing
societies registered under the Maharashtra Co-
operative Societies Act, 1960 or any condominium or a
company incorporated under the Companies Act, 1956
with limited liability or an association of person or
any ad hoc body formed by the occupants of the
building.
(2) Provided that, when the land or building is vested
in [the Government possession shall not be taken as
aforesaid without the previous sanction of the
Government concerned and, when the land or building is
vested] in any corporation constituted by Royal
Charter or by an Act of Parliament, [of the United
Kingdom] or [by an Indian Law], possession shall not
be taken as aforesaid without the previous sanction of
[the State Government].
(11) A perusal of Section 299 would show that what the
provison provides can be stated as follows:
If the land which is what is referred to in sub
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section (1) is not vested in the corporation and it is falls
within the regular line and there is no building thereon,
then possession can be taken as provided in sub section (1)
without the previous sanction of the Government. Under the
proviso, if the land or building is vested in the government
then previous sanction of the government is necessary. It is
not the appellant’s case that there is a building. Also,
the case of the appellant is that the land vests in the
appellant. Appellant is a separate body and capable of
owning the property. In fact, the learned senior counsel for
the respondent would point out that the appellant is
regarded as the owner in the property card. The second limb
of the proviso deals with the situation where the land or
building is vested in any corporation constituted by Royal
Charter or by an Act of Parliament of the United Kingdom.
That certainly is not the case of the appellant. However,
possibly the case of the appellant can be that the appellant
is a corporation constituted by an Indian law. If this is
the case, where in other words, the appellant is a
corporation constituted by an Indian law, which no doubt
takes in a law made by Parliament, then indeed possession
cannot be taken under section 299(1) without the previous
sanction of the State Government. We are afraid that the
appellant cannot be permitted to take shelter of this limb
as well. This is for the reason that the embargo is only
against taking possession of the land and building vested in
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a corporation which is constituted by an Indian law. There
is a world of difference between a corporate body owing its
birth to a law and a body corporate which is created under
the law. In fact, we notice from the statements in the
special leave petition made by the appellant that the
appellant was incorporated as a public limited company and
registered under the Companies Act 1956. This cannot make it
a corporation which is established by the law. This
distinction is far too well known to require any reiteration
with reference to case law.
(12) As regards the third point, viz., that in the fixation
of the regular line of the street within the meaning of
Section 297 there was a prescription of the mandate in
Section 297 (1)(b) to give public notice and a hearing, we
may advert to Section 297:
297. Prescribing the regular line of a street.
(1) The Commissioner may: —
(a) prescribe a line on each side of any public
street:
[Provided that in the case of any public street in
the suburbs the regular line of a public street
operative under any street operative under any law
in force in any part of the suburbs on the day
immediately preceding the date of coming into force
of the Bombay Municipal (Extension of Limits) Act,
1950, [and in the case of any public street in the
extended suburbs the regular line of a public street
operative under any part of the extended suburbs on
the day immediately preceding the date of the coming
into force of the Bombay Municipal [Further
Extension of Limits and Schedule BBA (Amendment)]
Act, 1956] shall be deemed to be a line prescribed
by the Commissioner under this clause.]
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(b) from time to time, but subject in each case to
his receiving the authority of the corporation in
that behalf, prescribe a fresh line in substitution
for any line so prescribed, or for any part thereof
provided that such authority shall not be accorded—
(i) unless, at least one month before the meeting of
the corporation at which the matter is decided,
public notice of the proposal has been given by the
Commissioner by advertisement in local newspapers as
well as in the [Official Gazette], and special
notice thereof, signed by the Commissioner, has also
been put up in the street or part of the street for
which such fresh line is proposed to be prescribed,
and
(ii) until the corporation have considered all
objections to the said proposal made in writing and
delivered at the office of the municipal secretary
not less than three clear days before the day of
such meeting.
(2) The line for the time being prescribed shall be
called ‘the regular line of the street’.
(3) No person shall construct any portion of any
building within the regular line of the street
except with the written permission of the
Commissioner, who shall, in every case in which he
gives such permission, at the same time report his
reasons in writing to the [Standing Committee].
It is no doubt true that the law commands that a
public notice is to be given before the regular line of
street is fixed. In fact, it is of greatest importance that
the requirement in this regard be followed. This is for the
reason that it brings about serious consequences for persons
who would be affected in future by the fixation of the
regular line of a street. In fact, invocation of the power
under Section 299 is based on the existence of a regular
line in a street. However, we must notice that the impugned
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judgment reflects that the High Court apparently was seized
of the said aspect as it has found that the regular line was
fixed in the year 1988 by following the procedure. We must
at this point also bear in mind the fact that the appellant
did surrender land consisting of 387.5 square meters based
on the earlier demand and there was no case at that stage
that the regular line was fixed without conforming to the
mandate of Section 297. It is true that there is a ground
taken in the writ petition and even in the special leave
petition that Section 297 was not as such followed. The
counter affidavit filed by the respondent in the High Court
is not placed before us. No doubt, in the counter affidavit
filed in this Court, there is no reference to this aspect.
In the counter affidavit filed before this Court by the
respondent, it has been, inter alia , stated as follows:
4. I state that the open set back land of other
property owners also taken over under Section 299 of
the Mumbai Municipal Corporation Act, 1888 and the
land owners are entitled for compensation in terms of
F.S.I. or T.D.R. as per the policy circular of these
Respondents. I therefore, state and submit that as
the adjoining setback land is already handed over and
developed by these respondents, and only the road at
petitioners’ property could not be developed as the
petitioner objected to the same. Hence these
Respondents could not complete the work of road
widening and the said road could not be put for
public use at large. I therefore, state and submit
that in the interest of public at large the
petitioner be directed to handover the open set back
to the respondent to enable the respondents to
complete the project at the earliest. I therefore
submit that the Special Leave Petition is devoid of
any merits and the same be dismissed in the interest
of public at large.”
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However, the appellant does not have a case that after
the fixation of the regular line in the year 1988 as found
by the High Court, there was a variation or change in the
regular line and the same forms the basis for the impugned
notices in the present case and we would therefore think
that we cannot permit the appellant to succeed on the said
point.
(13) Lastly, it is contended that there has been no
consideration of the objections of the appellant. It is
pointed out that the appellant had contended that there are
vital installations and any interference with the same would
prejudice the rights of many subscribers, besides
interrupting the operations of the appellant. We must in
this context bear in mind that the issue raised in this case
relates to the powers of the municipal body to maintain the
regular street line which, in turn, is put in place to
secure the highest public interest. The city with which we
are dealing with viz., Mumbai has been plagued with the
problem of traffic jams leading to serious inroads into
public interest under various heads. The common man is the
most adversely affected in particular, if there is no
respect paid to the regular line of the street. Therefore,
this is an action on the part of the respondent which we
cannot interfere with lightly. The area in question appears
to be a junction viz., Chembur junction which appears to be
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in particular congested. In fact, the respondent has a case
that to some extent they have been able to clear the road.
They have also a case that even in regard to the Indian
Navy, land has been taken over and they wish to have a
policy which will not discriminate on any basis.
(14) The argument which we must notice is that the
appellant would point out that there is a structure within
the meaning of Section 299(1) and it should be an obstacle
for the impugned order to be passed. We must point out that
this argument again may not succeed. What Section 299(1)
contemplates is a foundational test for taking over the land
which is - if the land, not vesting in the corporation,
whether open or enclosed, lies within the regular line of
public street and is not occupied by a building. This is
one part of Section 299. Therefore, the embargo is against
invoking Section 299 in the situation where the land is
occupied by a building. This is subject to the proviso which
we have adverted to. It is not the case of the appellant
that the land with which we are concerned is occupied by a
building. However, an attempt is made to contend that it is
the latter part of sub-section (1) which may be attracted.
This is for the reason that the latter limb of sub section
(1) declares that if a platform, verandah, step or some
other structure external to a building abutting on a public
street or a portion of a platform, verandah, step or other
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such structure is within the regular line of such street,
the Commissioner may take action in the manner provided
therein. The structures which are referred to in the
aforesaid second limb are structures over which the
corporation is clothed with power in fact to take action.
Therefore, we see no merit in the said argument as well.
(15) Having noticed that the appellant has not been able to
convince the Court to interfere with the matter, the
impugned judgment is sustained. We are undoubtedly troubled
by the fact that the appellant which is also a public body
has a complaint about compensation due to it for the
surrender of the earlier land not being disbursed. We would
think that the powers of this Court must be exercised in
this regard though it is true that there is no relief sought
as such in the writ petition. Accordingly, we pass the
following order:
(a) We dismiss the appeal and confirm the dismissal of
the writ petition filed by the appellant.
(b) However, we direct that in case, the appellant has
not been paid the compensation already due to it for the
earlier surrender of 387.5 square meters area and if the
appellant has already not made any application under
Section 301, if the appellant makes an application
within a period of one month from today, the said
application will be processed and taken to its logical
conclusion in this regard.
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The compensation will be processed in accordance
with law which shall be made available to the appellant
within a period of four months from the date of the
filing of the application.
No orders as to costs.
………………………………………………………………………., J.
[ K.M. JOSEPH ]
………………………………………………………………………., J.
[ HRISHIKESH ROY ]
New Delhi;
April 28, 2022.
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ITEM NO.102 COURT NO.10 SECTION IX
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No. 6745/2009
Mahanagar Telephone Nigam Ltd. (EAST-I) Appellant(s)
VERSUS
The Assistant Commissioner
Bihanmumbai Mahanagarpalika and Ors. Respondent(s)
[ list the appeal in the last week of April,2022 ]
Date : 28-04-2022 This appeal was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE K.M. JOSEPH
HON'BLE MR. JUSTICE HRISHIKESH ROY
For Appellant(s)
Ms. Pinky Anand, Sr. Adv.
Ms. Rashmi Malhotra, AOR
For Respondent(s)
Mr. Atul Y. Chitale, Sr. Adv.
Ms. Tanvi Kakar, Adv.
Mrs. Suchitra Atul Chitale, AOR
UPON hearing the counsel the Court made the following
O R D E R
The appeal is dismissed in terms of the signed
reportable judgment.
(NIDHI AHUJA) (RENU KAPOOR)
AR-cum-PS BRANCH OFFICER
[Signed reportable judgment is placed on the file.]
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