Municipal Corporation of Greater Mumbai vs Rafiqunnisa M. Khalifa (Deceased) Through His Legal Heir Mr. Mohd Muqueen Qureshi

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)

JUDGMENT

Abhay Manohar Sapre, J.

1. Leave granted.

2. These appeals are directed against the final

Signature Not Verified judgment and order dated 12.06.2018 of the High Digitally signed by ASHOK RAJ SINGH Date: 2019.02.18 17:12:37 IST Reason: Court of Judicature at Bombay in Writ Petition(c)

1 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 few 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

3 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

4 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

5 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

6 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 were demolished on 26th 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

7 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.

9 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.

10 “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,

12 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,

13 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

14 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

15 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

16 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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