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 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 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 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 – 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 Act, 1888 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. [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 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. In order to exercise the power under Section 314 (1), two 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 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 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 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 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 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]
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 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 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]
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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