MUNICIPAL CORPORATION OF GREATER MUMBAI & ORS. versus RAFIQUNNISA M. KHALIFA (DECEASED) THROUGH HIS LEGAL HEIR MR. MOHD. MUQUEEN QURESHI & ANR. on 18 February 2019

1036 SUPREME COURT REPORTS [2019] 3 S.C.R.[2019] 3 S.C.R. 1036

AMUNICIPAL CORPORATION OFGREATER MUMBAI & ORS.

v.

RAFIQUNNISA M. KHALIFA (DECEASED)THROUGH HIS LEGAL HEIRBMR. MOHD. MUQUEEN QURESHI & ANR.

(Civil Appeal Nos. 1727-1732 of 2019)

FEBRUARY 18, 2019

[ABHAY MANOHAR SAPRE ANDDINESH MAHESHWARI, JJ.]

CMumbai Municipal Corporation Act, 1888:

s. 312 and 314(1) – Removal of stalls/structures by theappellant-Municipal Corporation – Challenged by the respondentsby filing writ petition – High Court allowed the petition setting asidethe order of the appellant-Corporation and issued Writ of MandamusDdirecting the Corporation to provide each respondent suitable landin the same or adjacent area – On appeal, held: s. 312 prohibitserection of any structure without permission of the Corporation uponany street, open channel, drain, well or tank in any street whichcauses obstruction or encroachment etc.– s. 314(1) empowersEremoval of any structure in contravention of the provision in s. 312(1)after coming into force of Extension of Limits Act, 1950 and FurtherExtension of Limits Act, 1956 – In the present case, removal of thestructures erected by the respondents was on invoking power u/s.314, as the structure were in contravention of the provisions in s.312 – A writ of mandamus u/Art. 226 of the Constitution is issuedFwhere there is a right and a corresponding duty – In the presentcase there was neither a right (contractual or legal) nor anyprovision casting an obligation to provide any alternate land, henceHigh Court was not justified in issuing Writ of Mandamus –Constitution of India – Art. 226 – Writs – Writ of Mandamus –GBombay Municipal (Extension of Limits) Act, 1950 – BombayMunicipal [Further Extension of Limits and Schedule BBA(Amendment)] Act, 1956.

Allowing the appeals, the Court

HELD: 1. Section 312 of the Mumbai Municipal CorporationHAct, 1888 prohibits erecting of any structure or fixture of any

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nature such as - wall, fence, rail, post, step, booth upon any streetor over any open channel, drain, well or tank in any street whichcauses obstruction or encroachment or projection or to occupyportion of such street, channel, drain, well or tank as the casemay be. Only those structures/fixtures are saved from Section312 of the Act which are erected with the permission of theCommissioner granted under Sections 310 and 317 of the Act.[Para 18][1044-B-C]

2. Section 314(1) confers power on the Commissioner toremove any wall, fence, rail, post, step, booth or other structureor fixture which is found erected or set up on any street, openchannel, drain, well or tank contrary to the provisions of sub-Section (1) of Section 312 of the Act after coming into force theprovisions of Bombay Municipal (Extension of Limits) Act, 1950or in the extended suburbs after coming into force FurtherExtension of Limits and Schedule BBA (Amendment) Act, 1956.In order to exercise the power under Section 314 (1), twoconditions must be present. First, the disputed wall, fence, rail,post, step, booth or any other type of structure or fixture, as thecase may be, is erected or set up on any public street or openchannel or drain or well or tank; and Second, any such structureor fixture, as the case may be, is erected or set up in the city orsuburbs contrary to the provisions of Section 312(1) of the Actafter coming into force the two Acts specified in sub-section (1).[Para 19][1044-D-F]

3. The counter affidavit, map and the photographs of thesite in question clearly show that the stalls/structures of therespondents were found erected on the sewer line/chamber; thesestructures/stalls were not erected by the respondents with thepermission of the Commissioner as required under Section 312(1) of the Act; no sanctioned map was filed by the respondents toprove that the structures were legal; and the stalls/structureswere causing obstruction to public at large and were causingencroachment on the street (Bandra Station Road), which is verynarrow. Therefore, the appellant (Commissioner) was justified ininvoking the powers under Section 314 of the Act against therespondents for removal of their stalls/structures. Since theaction to remove the stalls/structures was taken under Section314 of the Act, it was not necessary to give any prior notice to ABC

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Athe respondents though a circular was issued on 05.10.2015requesting the respondents to remove their stalls/structures fromthe site in question. [Paras 22 and 23][1045-B-D]

4. Grant of health license has nothing to do with erection ofstall/structure and its removal. In order to exercise the powerBunder Section 314 of the Act, the conditions specified thereinneed to be satisfied. Section 314 nowhere says that if a person iscarrying on any activity in such stall/structure on the strength ofhealth license on the street, or open channel, drain, well or tank,no action to remove such stall/structure can be taken againstsuch person. [Para 26][1045-G]C

5. The High Court was, therefore, not justified in strikingdown the action of the appellant (Commissioner) taken underSection 314 of the Act for removal of their stalls/structures. TheHigh Court was also not justified in issuing a mandamus directingthe appellant-Municipal Corporation to provide to eachDrespondent some suitable land either in the same area or inadjacent area. [Para 27][1046-B]

6. A writ of mandamus under Article 226 of the Constitutionis issued, when there is a right and correspondingly there is alegal duty to perform. In the present case, neither there was anyEright (contractual or legal) in writ petitioners’ favour and nor thereis any provision in the Act which casts an obligation to provideany alternate land to the respondents. [Para 28][1046-C]

7. There is also no scheme/policy made in this behalf by theappellants or the State, which could be enforced by theFrespondents. Moreover, once this Court holds that the actiontaken under Section 314 of the Act against the respondents islegal and proper, there is no occasion to issue any mandamusmuch less the mandamus of the nature issued by the High Court.[Para 29][1046-D]

GCIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1727-1732 of 2019.

From the Judgment and Order dated 12.06.2018 of the High Courtof Judicature at Bombay in Writ Petition Nos. 2639, 2184, 2642, 2641,2644 and 2746 of 2016.

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MUNICIPAL CORPORATION OF GREATER MUMBAI v.RAFIQUNNISA M. KHALIFA

Shyam Divan, Atul Chitale, Sr. Advs., Ms. Asha Gopalan Nair,Ms. Preeti Purandare, Ms. Nivedita Nair, Ms. Shivangi Khanna,Gurjyot Sethi, Advs. for the Appellants.

Sunil Fernandes, Omkar Khanvilkar, Ms. Nupur Kumar,Ms. Anju Thomas, Ms. Miloni Sanghvi, Ms. Deepa M.Kulkarni,Nishant Ramakantrao Katneshwarkar, Anoop Kandari, Advs. for theRespondents.

The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J.

1. Leave granted.

2. These appeals are directed against the final judgment and orderdated 12.06.2018 of the High Court of Judicature at Bombay in WritPetition(c) Nos.2639, 2184, 2642, 2641, 2644 and 2746 of 2016 wherebythe High Court allowed the writ petitions filed by the respondents herein.

3. A few facts need mention hereinbelow to appreciate the shortcontroversy involved in these appeals.

4. Respondent No.1 in all the appeals (total 6) were the writpetitioners and the appellants (1 to 6) herein were the respondents in thesix writ petitions out of which these appeals arise.

5. The six respondents individually filed six separate writ petitionsagainst the Municipal Corporation of Greater Mumbai (appellant No.1herein) and their officials including the Collector (Respondent Nos.2 to6) and sought common reliefs in their individual writ petitions against theappellants on identical, factual and legal pleadings/grounds.

6. According to six writ petitioners (respondent No. 1 in all theappeals), one was running his restaurant in a stall under the name “YadgarRestaurant” at Bandra Station Road. The other writ petitioner was runninga “Pan Shop” in a stall in front of Yadgar Restaurant. The third writpetitioner was running a food stall under the name “Lucky Kabab Corner”at Bandra Station Road. The fourth writ petitioner was running a foodstall under the name “Danish Kabab Corner” at Bandra Station Road.The fifth writ petitioner was running a food stall under the name “Gulsik-Kabab and sweetmeat shop” at Bandra Station Road and sixth writpetitioner was running a food stall under the name “A-1 Seak Kabab” atBandra Station Road.

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A7. All the six writ petitioners sought the relief of mandamus onthe identical allegations against the appellants inter alia contending thatthe officials of the Municipal Corporation illegally removed their stalls/structures on 26.05.2016 without any prior notice to any of them. Thewrit petitioners alleged that the action on the part of the MunicipalCorporation and their officials (appellants herein) while undertaking theBremoval of the writ petitioners’ food/pan stalls situated at Bandra StationRoad was wholly arbitrary, illegal and against the relevant provisions ofthe Mumbai Municipal Corporation Act, 1888 (hereinafter referred to as“The Act”).

8. It was alleged that each writ petitioner was holding the healthClicense issued by the Municipal Corporation (appellant No.1 herein) forrunning their respective stalls on the site in question and, therefore, theappellant No.1-Municipal Corporation was not justified and nor had anyright under the Act to initiate any action for the removal of their stallsmuch less without any prior notice.

D9. It was alleged that the action to remove the structures/stallswas not in conformity with any provision of the Act inasmuch as it alsoviolated the principle of natural justice. It was equally in breach ofArticle 14 of the Constitution.

10. The writ petitioners, on the aforementioned allegations, claimedEthe reliefs that the appellant No.1-Municipal Corporation be directed toput the writ petitioners in possession of the site in question or in thealternative to provide them with any other suitable site in the city wherethey could start their business afresh and further direct the appellants topay to each writ petitioner a reasonable compensation for the loss oftheir business and the inconvenience caused to them on account ofFimpugned removal done by appellant No.1-Municipal Corporation on26.05.2018.

11. The appellants opposed the writ petitions by filing reply insome of the writ petitions. The appellants inter alia contended that theyGwere compelled to take the action under Section 314 of the Act becausethese stalls/structures were found erected on the public sewer. It wascontended that since these stalls/structures were causing hindrance incleaning the public sewer lines and were found to have been erectedwithout any sanctioned plan, they had to be removed in public interest. Itwas also contended that these stalls/structures were also causing traffic H

MUNICIPAL CORPORATION OF GREATER MUMBAI v.RAFIQUNNISA M. KHALIFA [ABHAY MANOHAR SAPRE, J.]

congestion on Bandra Station Road. It was lastly contended that beforetaking the action, the health licenses granted to the writ petitioners werecancelled and a circular was issued on 05.10.2015 for removal of theseunauthorized stalls/structures.

12. By impugned order, the High Court allowed the writ petitions.It was held that the appellant (Municipal Corporation) was not able toprove that the case in question falls under Section 314 of the Act. TheHigh Court, therefore, struck down the action taken by the MunicipalCorporation and issued 9 directions in the nature of mandamus againstthe appellants. These 9 directions read as under:

(i) We direct the Mumbai Municipal Corporation to allotto the Petitioners stalls/shops of the same size whichwere demolished on 26[th] May, 2016 in the same localityor in nearby locality;

(ii) The locality shall be such that the petitioners are in aposition to carry on the same business which they werecarrying on in the demolished structures;

(iii) The Allotment shall be made to the Petitioners asexpeditiously as possible and in any event, within aperiod of two months from the date on which thisjudgment and order is uploaded;

(iv) The Petitioners will be liable to pay the fee/charges,if any, which were payable in respect of the demolishedstructures;

(v) On the failure of the Municipal Corporation to erectallot the stalls/shops as directed above within theperiod of two months from the date on which thisjudgment and order is uploaded, it will be open to thePetitioners to re-construct their structures/stalls atthe places where the same were situated;

(vi) However, the re-construction shall be made by usingthe same construction material and that also withadvance notice at least of 48 hours to the DesignatedOfficer of the concerned Ward who or his nomineeshall be entitled to remain present at the time of reconstruction; A

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A(vii) We make it clear that in respect of re-constructedshops, the Petitioners will not be entitled to claim anyequity. If the original stalls which were demolishedwere illegal, it will be always open for the MunicipalCorporation to initiate an action of demolition of there-constructed stalls in accordance with law; B

(viii) As far as the prayer for compensation is concerned, itwill be always open for the Petitioners to makeappropriate representation to the MunicipalCorporation along with all the particulars anddocuments. If such representations are made, theCMunicipal Corporation shall decide the same within aperiod of three months from the date of filing of therepresentations;

(ix) The Petitions are made absolute in the above termswith no order as to costs.”D

13. The Municipal Corporation felt aggrieved by the impugnedorder and has filed the present appeals by way of special leave in thisCourt.

14. So, the short question, which arises for consideration in theseEappeals, is whether the High Court was justified in allowing therespondents’ writ petitions and issuing 9 directions quoted above.

15. Heard Mr. Shyam Divan and Mr. Atul Chitale, learned seniorcounsel for the appellants and Mr. Sunil Fernandes and Ms. Deepa M.Kulkarni, learned counsel for the respondents.

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16. Having heard the learned counsel for the parties and on perusalof the record of the case, we are inclined to allow the appeals, set asidethe impugned order and dismiss the writ petitions.

17. Sections 312 and 314 of the Act, which are relevant for disposalof these appeals, read as under:G

“312. Prohibition of structures or fixtures which causeobstruction in streets.

(1) No person shall, except with the permission of theCommissioner under section 310 or 317, erect or set upany wall, fence, rail, post, step, booth or other structure or H

fixture in or upon any street or upon or over any openchannel, drain, well or tank in any street so as to form anobstruction to, or an encroachment upon, or a projectionover, or to occupy, any portion of such street, channel, drain,well or tank.

(2) Nothing in this section shall be deemed to apply toany erection or thing to which clause(c) of section 322applies.

“314. Power to remove without notice anything erected,deposited or hawked in contravention of Section 312, 313or 313A.

The Commissioner may, without notice, cause to beremoved- (a) any wall, fence, rail, post, step, booth or other structureor fixture which shall be erected or set up in or upon anystreet, or upon or over any open channel, drain, well ortank contrary to the provisions of sub-section(1) of section312, after the same comes into force in the city or in thesuburbs, after the date of the coming into force of theBombay Municipal (Extension of Limits) Act, 1950 or inthe extended suburbs after the date of the coming into forceof the Bombay Municipal Further Extension of Limits andSchedule 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 incontravention of sub-section(1) of section 313;

(c) any article whatsoever hawked or exposed for sale inany public place or in any public street in contravention ofthe provisions of Section 313A and any vehicle, package,box, board, shelf or any other thing in or on which sucharticle is placed or kept for the purpose of sale.

(d) any person, unauthorisedly occupying or wrongfully inpossession of any public land from such land together withall the things and material unauthorisedly placed, projectedor deposited on such land by such person A

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A Provided that, the Commissioner shall, while executingsuch removal, allow such person to take away his personalbelongings and household articles, such as cooking vessels,bed and beddings of the family, etc.”

B18. Section 312 of the Act prohibits erecting of any structure orfixture of any nature such as - wall, fence, rail, post, step, booth uponany street or over any open channel, drain, well or tank in any streetwhich causes obstruction or encroachment or projection or to occupyportion of such street, channel, drain, well or tank as the case may be.Only those structures/fixtures are saved from Section 312 of the ActCwhich are erected with the permission of the Commissioner grantedunder Sections 310 and 317 of the Act. In other words, Section 312 hasno application to those structures/fixtures which are erected by the personwith the permission of the Commissioner under Sections 310 and 317 ofthe Act.D

19. Section 314(1) with which we are concerned in this caseconfers power on the Commissioner to remove any wall, fence, rail,post, step, booth or other structure or fixture which is found erected orset up on any street, open channel, drain, well or tank contrary to theprovisions of sub-Section (1) of Section 312 of the Act after coming intoEforce the provisions of Bombay Municipal (Extension of limits) Act, 1950or in the extended suburbs after coming into force Further Extension ofLimits and Schedule BBA (Amendment) Act, 1956.

20. In other words, in order to exercise the power under Section314 (1) of the Act, two conditions must be present. First, the disputedFwall, fence, 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 openchannel or drain or well or tank; and Second, any such structure orfixture, as the case may be, is erected or set up in the city or suburbscontrary to the provisions of Section 312(1) of the Act after coming intoforce the two Acts specified in sub-section (1).G

21. Coming now to the facts of the case, it is apposite to mentionhere that the appellants filed certain additional documents in these appealssuch as map and the photographs of the site in question in support oftheir case. These documents were not filed before the High Court as isclear from the perusal of the impugned order. These documents were H

allowed to be taken on record being relevant and material for decidingthe issue involved in these appeals. The respondents, however, did notdispute the veracity of these documents and, therefore, these documentsremained indisputable.

22. Perusal of the counter affidavit, map and the photographs ofthe site in question clearly show that, first, the stalls/structures of therespondents were found erected on the sewer line/chamber; Second,these structures/stalls were not erected by the respondents with thepermission of the Commissioner as required under Section 312 (1) ofthe Act; Third, no sanctioned map was filed by the respondents to provethat the structures were legal; and fourth, the stalls/structures werecausing obstruction to public at large and were causing encroachmenton 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) wasjustified in invoking the powers under Section 314 of the Act against therespondents on 26.05.2018 for removal of their stalls/structures. Sincethe action to remove the stalls/structures was taken under Section 314of the Act, it was not necessary to give any prior notice to the respondentsthough a circular was issued on 05.10.2015 requesting the respondentsto remove their stalls/structures from the site in question.

24. We are, therefore, unable to find any illegality or arbitrarinessor unreasonableness in the action taken by the Commissioner underSection 314 of the Act, which resulted in removal of the respondents’stalls/structures.

25. Learned counsel for the respondents, however, argued thatsince the respondents were granted health licenses under the Act forselling their foodstuff in these stalls/structures, their removal from thesite in question was illegal.

26. We find no merit in this submission. In our opinion, grant ofhealth license has nothing to do with erection of stall/structure and itsremoval. In order to exercise the power under Section 314 of the Act,the conditions specified therein need to be satisfied. Section 314 nowheresays that if a person is carrying on any activity in such stall/structure onthe strength of health license on the street, or open channel, drain, wellor tank, no action to remove such stall/structure can be taken againstsuch person. The action under Section 314 can be attacked successfully A

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Aonly by showing that the person had erected his stall/structure with thepermission of the Commissioner granted under Section 312(1) of theAct. Such is, however, not the case here.

27. In our opinion, the High Court was, therefore, not justified instriking down the action of the appellant (Commissioner) taken underBSection 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 directingthe appellant-Municipal Corporation to provide to each respondent somesuitable land either in the same area or in adjacent area.

28. It is a settled principle of law that a writ of mandamus underCArticle 226 of the Constitution is issued, when there is a right andcorrespondingly there is a legal duty to perform. In this case, neitherthere was any right (contractual or legal) in writ petitioners’ favour andnor there is any provision in the Act which casts an obligation to provideany alternate land to the respondents.

D29. We also do not find any scheme/policy made in this behalf bythe appellants or the State, which could be enforced by the respondents.Moreover, once this Court holds that the action taken under Section 314of the Act against the respondents is legal and proper, there is no occasionto issue any mandamus much less the mandamus of the nature issued bythe High Court.

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30. In view of the foregoing discussion, the appeals succeed andare accordingly allowed. The impugned order is set aside. As aconsequence, the writ petitions out of which these appeals arise aredismissed.

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Kalpana K. Tripathy

Appeals allowed.

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