Case: MUNICIPAL CORPORATION OF GREATER MUMBAI Vs. RAFIQUNNISA M. KHALIFA (DECEASED) THROUGH HIS LEGAL HEIR MR. MOHD MUQUEEN QURESHI

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, 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 sub¬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. 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, 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). 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 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 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 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. 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. 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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, 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.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 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 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, 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).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 the veracity of these documents and, therefore, these documents remained indisputable.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.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 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.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.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.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.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.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.