MUNICIPAL CORPORATION OF GREATER MUMBAI & ORS.versusRAFIQUNNISA M. KHALIFA (DECEASED) THROUGH HIS LEGAL HEIR MR. MOHD. MUQUEEN QURESHI & ANR.

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


 A                    MUNICIPAL CORPORATION OF
                        GREATER MUMBAI & ORS.
                                       v.
                  RAFIQUNNISA M. KHALIFA (DECEASED)
                        THROUGH HIS LEGAL HEIR
 B                MR. MOHD. MUQUEEN QURESHI & ANR.
                     (Civil Appeal Nos. 1727-1732 of 2019)
                           FEBRUARY 18, 2019
                   [ABHAY MANOHAR SAPRE AND
                     DINESH MAHESHWARI, JJ.]
 C
             Mumbai Municipal Corporation Act, 1888:
              s. 312 and 314(1) – Removal of stalls/structures by the
       appellant-Municipal Corporation – Challenged by the respondents
       by filing writ petition – High Court allowed the petition setting aside
       the order of the appellant-Corporation and issued Writ of Mandamus
 D
       directing the Corporation to provide each respondent suitable land
       in the same or adjacent area – On appeal, held: s. 312 prohibits
       erection of any structure without permission of the Corporation upon
       any street, open channel, drain, well or tank in any street which
       causes obstruction or encroachment etc.– s. 314(1) empowers
 E     removal of any structure in contravention of the provision in s. 312(1)
       after coming into force of Extension of Limits Act, 1950 and Further
       Extension of Limits Act, 1956 – In the present case, removal of the
       structures 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 issued
 F     where there is a right and a corresponding duty – In the present
       case there was neither a right (contractual or legal) nor any
       provision casting an obligation to provide any alternate land, hence
       High Court was not justified in issuing Writ of Mandamus –
       Constitution of India – Art. 226 – Writs – Writ of Mandamus –
 G     Bombay Municipal (Extension of Limits) Act, 1950 – Bombay
       Municipal [Further Extension of Limits and Schedule BBA
       (Amendment)] Act, 1956.
             Allowing the appeals, the Court
             HELD: 1. Section 312 of the Mumbai Municipal Corporation
 H     Act, 1888 prohibits erecting of any structure or fixture of any
                                      1036
   MUNICIPAL CORPORATION OF GREATER MUMBAI v.                           1037
                    RAFIQUNNISA M. KHALIFA

nature such as - wall, fence, rail, post, step, booth upon any street   A
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
                                                                        B
Commissioner granted under Sections 310 and 317 of the Act.
[Para 18][1044-B-C]
      2. Section 314(1) 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 sub-         C
Section (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.
In order to exercise the power under Section 314 (1), two               D
conditions must be present. First, the disputed wall, 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 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         E
after 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 the
site in question clearly show that the stalls/structures of the
respondents were found erected on the sewer line/chamber; these         F
structures/stalls were not erected by the respondents with the
permission of the Commissioner as required under Section 312
(1) of the Act; no sanctioned map was filed by the respondents to
prove that the structures were legal; and the stalls/structures
were causing obstruction to public at large and were causing            G
encroachment on the street (Bandra Station Road), which is very
narrow. Therefore, the appellant (Commissioner) was justified in
invoking the powers under Section 314 of the Act against the
respondents 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        H
1038                SUPREME COURT REPORTS                   [2019] 3 S.C.R.


 A the respondents though a circular was issued on 05.10.2015
   requesting the respondents to remove their stalls/structures from
   the site in question. [Paras 22 and 23][1045-B-D]
              4. Grant of health license has nothing to do with erection of
       stall/structure and its removal. In order to exercise the power
 B     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. [Para 26][1045-G]
 C
         5. 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. The
   High Court was also not justified in issuing a mandamus directing
   the appellant-Municipal Corporation to provide to each
 D respondent some suitable land either in the same area or in
   adjacent area. [Para 27][1046-B]
              6. 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 the present case, neither there was any
 E     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. [Para 28][1046-C]
             7. There is also no scheme/policy made in this behalf by the
       appellants or the State, which could be enforced by the
 F     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.
       [Para 29][1046-D]
 G           CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1727-
       1732 of 2019.
             From the Judgment and Order dated 12.06.2018 of the High Court
       of Judicature at Bombay in Writ Petition Nos. 2639, 2184, 2642, 2641,
       2644 and 2746 of 2016.
 H
    MUNICIPAL CORPORATION OF GREATER MUMBAI v.                                 1039
                      RAFIQUNNISA M. KHALIFA

     Shyam Divan, Atul Chitale, Sr. Advs., Ms. Asha Gopalan Nair,              A
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 the                B
Respondents.
      The Judgment of the Court was delivered by
      ABHAY MANOHAR SAPRE, J.
      1. Leave granted.                                                        C
       2. These appeals are directed against the final judgment and order
dated 12.06.2018 of the High Court of Judicature at Bombay in Writ
Petition(c) 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          D
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   E
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.
       6. According to six writ petitioners (respondent No. 1 in all the       F
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          G
stall 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 writ
petitioner was running a food stall under the name “A-1 Seak Kabab” at
Bandra Station Road.
                                                                               H
1040                 SUPREME COURT REPORTS                     [2019] 3 S.C.R.


 A            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 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
 B
       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
 C     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.1-Municipal Corporation was not justified and nor had any
       right under the Act to initiate any action for the removal of their stalls
       much less without any prior notice.
 D            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
 E     the reliefs that the appellant No.1-Municipal 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
 F     their business and the inconvenience caused to them on account of
       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
 G     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
 H
    MUNICIPAL CORPORATION OF GREATER MUMBAI v.                                1041
    RAFIQUNNISA M. KHALIFA [ABHAY MANOHAR SAPRE, J.]

congestion on Bandra Station Road. It was lastly contended that before        A
taking the action, the health licenses granted to the writ petitioners were
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        B
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              C
             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           D
             carrying on in the demolished structures;
      (iii) The Allotment shall be made to the Petitioners as
            expeditiously as possible and in any event, within a
            period of two months from the date on which this
            judgment and order is uploaded;                                   E
      (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              F
             period of two months from the date on which this
             judgment and order is uploaded, it will be open to the
             Petitioners to re-construct their structures/stalls at
             the places where the same were situated;
      (vi) However, the re-construction shall be made by using                G
           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 re
           construction;
                                                                              H
1042                 SUPREME COURT REPORTS                     [2019] 3 S.C.R.


 A           (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
                   re-constructed stalls in accordance with law;
 B
             (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
 C                  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.”
 D
              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
 E     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. Sunil Fernandes and Ms. Deepa M.
       Kulkarni, learned counsel for the respondents.
 F            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:
 G           “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
 H
MUNICIPAL CORPORATION OF GREATER MUMBAI v.                         1043
RAFIQUNNISA M. KHALIFA [ABHAY MANOHAR SAPRE, J.]

 fixture in or upon any street or upon or over any open            A
 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      B
 any erection or thing to which clause(c) of section 322
 applies.
 “314. Power to remove without notice anything erected,
 deposited or hawked in contravention of Section 312, 313
 or 313A.                                                          C
 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          D
 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      E
 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           F
 contravention of sub-section(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
                                                                   G
 article is placed or kept for the purpose of sale.
 (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
                                                                   H
1044                 SUPREME COURT REPORTS                        [2019] 3 S.C.R.


 A                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.”


 B            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
 C     which are erected with the permission of the Commissioner granted
       under Sections 310 and 317 of the Act. In other words, 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.
 D            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 sub-Section (1) of Section 312 of the Act after coming into
 E     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
 F     wall, 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 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 sub-section (1).
 G
              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
 H
    MUNICIPAL CORPORATION OF GREATER MUMBAI v.                                  1045
    RAFIQUNNISA M. KHALIFA [ABHAY MANOHAR SAPRE, J.]

allowed to be taken on record being relevant and material for deciding          A
the issue involved in these appeals. The respondents, however, did not
dispute 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     B
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            C
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 invoking the powers under Section 314 of the Act against the
respondents on 26.05.2018 for removal of their stalls/structures. Since         D
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   E
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            F
selling 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,           G
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
                                                                                H
1046                  SUPREME COURT REPORTS                     [2019] 3 S.C.R.


 A     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.
              27. In our opinion, the High Court was, therefore, not justified in
       striking down the action of the appellant (Commissioner) taken under
 B     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
 C     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.
 D            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.
 E
             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.

 F     Kalpana K. Tripathy                                          Appeals allowed.




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