Municipalities – Bombay Municipal Corporation Act, 1888 – ss. 297, 299 and 301 – Powers of the municipal body to maintain 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 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 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 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 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 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 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 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.
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 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 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 the regular line and there is no building thereon, then possession can be taken as provided in sub section (1) without the previous sanction of the Government. Under the proviso, if the land or building is vested in the government then previous sanction of the government is necessary. It is not the appellant’s case that there is a building. Also, the case of the appellant is that the land vests in the appellant. Appellant is a separate body and capable of owning the property. The second limb of the proviso deals with the situation where the land or building is vested in any corporation constituted by Royal Charter or by an Act of Parliament of the United Kingdom. That certainly is not the case of the appellant. However, possibly the case of the appellant can be that the appellant is a corporation constituted by an Indian law. If this is the case, where in other words, the appellant is a corporation constituted by an Indian law, which no doubt takes in a law made by Parliament, then indeed possession cannot be taken under section 299(1) without the previous sanction of the State Government. 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 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 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 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 line and the same forms the basis for the impugned notices in the present case [Para 12][1057-C-D; 1058-B]
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 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 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 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]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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