MAHANAGAR TELEPHONE NIGAM LTD. (EAST-I)versusTHE ASSISTANT COMMISSIONER BIHANMUMBAI MAHANAGARPALIKA AND ORS.

                          [2022] 16 S.C.R. 1045                          1045


      MAHANAGAR TELEPHONE NIGAM LTD. (EAST-I)                            A
                                  v.
     THE ASSISTANT COMMISSIONER BIHANMUMBAI
            MAHANAGARPALIKA AND ORS.
                   (Civil Appeal No. 6745 of 2009)                       B
                          APRIL 28, 2022
        [K.M. JOSEPH AND HRISHIKESH ROY, JJ.]
       Municipalities – Bombay Municipal Corporation Act, 1888 –
ss. 297, 299 and 301 – Powers of the municipal body to maintain
                                                                         C
regular street line – Road line was fixed by the Municipal
Corporation long back in the year 1988 by following procedure u/
s.297 – Subsequently, Respondents served Notice dated 27.09.2006
upon appellant u/s.299 for taking possession of land – Another
notice served on 01.03.2008 calling upon the appellant to surrender
land as demanded in the previous notice – Appellant approached           D
High Court for quashing and setting aside the said two notices
dated 27.09.2006 and 01.03.2008 – High Court rejected the writ
petition – Appellant raised various contentions before Supreme
Court, firstly, no compensation was awarded in respect of earlier
surrender of land when land was handed for fixation of road line
                                                                         E
in 1988; secondly, impugned notices were unsustainable in terms
of s.299(2) as sanction was not obtained from Central Government
before issuing notice; thirdly, procedure contemplated u/s.297(1),viz.
issuance of public notice for fixation of road line was not carried
out; and lastly, representation / objections of the appellant were
not considered – Held: Not much material to show that appellant          F
had been pursuing the issue relating to non-payment of
compensation for the earlier surrender of land – Appellant cannot
now introduce said aspect for purpose of impugning the notices in
question – Sanction u/s.299 is required only against taking
possession of the land and building vested in a corporation
                                                                         G
constituted by law – Appellant was incorporated as a public limited
company and registered under the Companies Act, 1956 – This
cannot make it a corporation established by the law – So far as
procedure contemplated u/s.297 is concerned, the High Court

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                                1045
1046            SUPREME COURT REPORTS                       [2022] 16 S.C.R.


 A     apparently was seized of the said aspect as it found that regular
       line was fixed in the year 1988 by following the procedure –
       Appellant did surrender land 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 s.297 – Also, the appellant does not
       have a case that after the fixation of the regular line in the year
 B
       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 – Though appellant contended that there
       were vital installations and any interference with the same would
       prejudice the rights of many subscribers, besides interrupting the
 C     operations of the appellant, however, the issue raised relates to
       powers of the municipal body to maintain the regular street line
       which, in turn, is put in place to secure the highest public interest –
       This was thus an action on the part of the respondents which cannot
       be interfered with lightly – Public interest.
 D           Dismissing the appeal, the Court
             HELD : 1.1 As regards the question regarding the payment
       of compensation in regard to earlier surrender of land, the
       appellant cannot introduce the said aspect for the purpose of
       impugning the notices in question. However, in case, the appellant
 E     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 of the
       Bombay Municipal Corporation Act, 1888, 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
 F     in this regard. [Paras 9, 15][1053-F; 1059-E-F]
             1.2. A perusal of Section 299 of the Bombay Municipal
       Corporation Act would show that what the provison provides can
       be stated as follows: If the land which is what is referred to in sub
       section (1) is not vested in the corporation and it is falls within
 G     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

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MAHANAGAR TELEPHONE NIGAM LTD. (EAST-I) v. ASSTT. COMMNR.               1047
          BIHANMUMBAI MAHANAGARPALIKA


the government is necessary. It is not the appellant’s case that        A
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. 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
                                                                        B
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        C
under section 299(1) without the previous sanction of the State
Government. However, 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 a corporation which is constituted by an Indian law. There is a
                                                                        D
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,
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. [Para 11][1055-B-G]
       1.3. In the fixation of the regular line of the street within    E
the meaning of Section 297 there was a prescription of the mandate
in Section 297 (1)(b) to give public notice and a hearing. The
impugned 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. Also, the            F
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. Further, 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          G
line and the same forms the basis for the impugned notices in the
present case [Para 12][1057-C-D; 1058-B]


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1048            SUPREME COURT REPORTS                          [2022] 16 S.C.R.


 A            1.4. 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 in question 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
 B
       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 cannot be interfered with lightly. [Para 13][1058-D-E]
              1.5. The appellant would point out that there is a structure
       within the meaning of Section 299(1) and it should be an obstacle
 C     for the impugned order to be passed. 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
 D     part of Section 299. Therefore, the embargo is against invoking
       Section 299 in the situation where the land is occupied by a
       building. [Para 14][1058-G-H]
             CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6745
       of 2009.
 E           From the final Order dated 25.06.2008 of the High Court of
       Judicature at Bombay in Writ Petition No.791 of 2008.
             Ms. Pinky Anand, Sr. Adv., Ms. Rashmi Malhotra, Advs. for the
       Appellant.

 F            Atul Y. Chitale, Ms. Tanvi Kakar, Mrs. Suchitra Atul Chitale, Advs.
       for the Respondents.
             The Judgment of the Court was delivered by
             K. M. JOSEPH, J.
              1. The appellant challenges the judgment of the Division Bench
 G     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
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MAHANAGAR TELEPHONE NIGAM LTD. (EAST-I) v. ASSTT. COMMNR.                     1049
    BIHANMUMBAI MAHANAGARPALIKA [K. M. JOSEPH, J.]


             quashing and setting aside the said impugned Notices dated       A
             27.9.2006 and 01.03.2008 issued by the Respondents under
             Section 299 and 488 of the Mumbai Municipal Corporation
             Act, 1888.”
       2. Having regard to the nature of the order passed viz., essentially
its length, we deem it apposite to refer to it:                               B
             “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           C
             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           D
             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.   E
             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
                                                                              F
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          G
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
served with notice dated 27.09.2006 under Section 299 of the Bombay
                                                                              H
1050            SUPREME COURT REPORTS                         [2022] 16 S.C.R.


 A     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:
 B
                    “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
 C                  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
 D                  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
 E                  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
 F                        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
 G                        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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MAHANAGAR TELEPHONE NIGAM LTD. (EAST-I) v. ASSTT. COMMNR.                   1051
    BIHANMUMBAI MAHANAGARPALIKA [K. M. JOSEPH, J.]


           established under the law, you are not entitled to take the      A
           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         B
           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.
                                                                            C
                       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.”                                                      D

    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          E
           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          F
           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.                          G
           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

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1052            SUPREME COURT REPORTS                          [2022] 16 S.C.R.


 A                  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 is
                    serving about 40,000 customers and any disorder will affect
 B                  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.
 C                  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.
 D                  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
 E                  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
 F     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.
 G           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 the appellant of 387.5 square meters. Secondly, it

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MAHANAGAR TELEPHONE NIGAM LTD. (EAST-I) v. ASSTT. COMMNR.                         1053
    BIHANMUMBAI MAHANAGARPALIKA [K. M. JOSEPH, J.]


is contended that having regard to Section 299 of the Act, the impugned           A
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
                                                                                  B
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        C
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          D
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 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.   E
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           F
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             G
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
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1054            SUPREME COURT REPORTS                         [2022] 16 S.C.R.


 A     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.
                   (1) If any land not vesting in the corporation, whether open
 B                 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
 C                 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
 D                 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
 E                 land lying within the regular line of a public street, and not
                   occupied by a building constructed before the 25th 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-
 F                 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.
 G
                   (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,
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MAHANAGAR TELEPHONE NIGAM LTD. (EAST-I) v. ASSTT. COMMNR.                         1055
    BIHANMUMBAI MAHANAGARPALIKA [K. M. JOSEPH, J.]


              [of the United Kingdom] or [by an Indian Law], possession           A
              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 section (1) is not        B
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           C
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        D
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               E
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 a corporation which is constituted by
an Indian law. There is a world of difference between a corporate body            F
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                G
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
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1056            SUPREME COURT REPORTS                          [2022] 16 S.C.R.


 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: —
 B                 (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
 C                 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
 D                 (Amendment)] Act, 1956] shall be deemed to be a line
                   prescribed by the Commissioner under this clause.]
                   (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
 E                 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
 F                 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
 G                 (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
 H                 ‘the regular line of the street’.
MAHANAGAR TELEPHONE NIGAM LTD. (EAST-I) v. ASSTT. COMMNR.                         1057
    BIHANMUMBAI MAHANAGARPALIKA [K. M. JOSEPH, J.]


              (3) No person shall construct any portion of any building           A
              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       B
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         C
impugned 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                D
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        E
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          F
              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      G
              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
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1058             SUPREME COURT REPORTS                             [2022] 16 S.C.R.


 A                   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.”
              However, the appellant does not have a case that after the fixation
 B     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
 C     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
 D     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
 E     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 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
 F     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
 G     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
 H     building. This is subject to the proviso which we have adverted to. It is
MAHANAGAR TELEPHONE NIGAM LTD. (EAST-I) v. ASSTT. COMMNR.                          1059
    BIHANMUMBAI MAHANAGARPALIKA [K. M. JOSEPH, J.]


not the case of the appellant that the land with which we are concerned            A
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 such
                                                                                   B
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         C
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        D
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           E
              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             F
              and taken to its logical conclusion in this regard.
       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.                                                      G

Bibhuti Bhushan Bose and Amarendra Kumar                       Appeal dismissed.
(Assisted by : Pooja Mishra, LCRA)



                                                                                   H