2019 (2) TMI 2112 - SC - Indian Laws

Municipal Commissioner wins appeal to remove illegal food stalls from station road under Section 314

Municipal Corporation of Greater Mumbai and Ors. Versus Rafiqunnisa M. Khalifa (Deceased) through his Legal Heir and Ors.

SC allowed appeal by Municipal Commissioner against HC order restraining removal of food/pan stalls from Bandra Station Road. Court found stalls were ... Legality of removal of the writ Petitioners' food/pan stalls situated at Bandra Station Road - 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 - Applicability of Sections 312 and 314 of the Mumbai Municipal Corporation Act, 1888 - HELD 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. 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. 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. The impugned order is set aside - Appeal allowed. Issues Involved:1. Legality of the removal of stalls/structures by the Municipal Corporation without prior notice.2. Applicability of Sections 312 and 314 of the Mumbai Municipal Corporation Act, 1888.3. Entitlement to compensation and alternative site allocation for the writ Petitioners.4. Issuance of mandamus by the High Court directing the Municipal Corporation to provide alternative sites and compensation.Issue-wise Detailed Analysis:1. Legality of the Removal of Stalls/Structures:The core issue was whether the Municipal Corporation's action to remove the stalls/structures without prior notice was justified. The writ Petitioners argued that the removal was arbitrary, illegal, and violated the principles of natural justice and Article 14 of the Constitution. They contended that they held health licenses for their stalls, which the Municipal Corporation disregarded. The High Court found the removal unjustified, as the Corporation failed to prove that the conditions under Section 314 of the Act were met, and thus issued directions for the reinstatement or compensation of the Petitioners.2. Applicability of Sections 312 and 314 of the Act:The Supreme Court analyzed Sections 312 and 314 of the Mumbai Municipal Corporation Act, 1888. Section 312 prohibits the erection of structures that obstruct public streets without permission from the Commissioner. Section 314 empowers the Commissioner to remove such structures without notice if they violate Section 312. The Court found that the stalls were erected without the necessary permissions and were causing obstructions, thus justifying the Corporation's action under Section 314. The Court emphasized that the health licenses did not equate to permission for erecting structures.3. Entitlement to Compensation and Alternative Site Allocation:The High Court had directed the Municipal Corporation to provide alternative sites and compensation to the Petitioners. However, the Supreme Court overturned this, stating that there was no legal right or duty obligating the Corporation to provide alternative sites or compensation. The Court noted the absence of any scheme or policy mandating such provisions.4. Issuance of Mandamus by the High Court:The High Court issued a mandamus directing the Municipal Corporation to allot alternative sites to the Petitioners and consider compensation claims. The Supreme Court found this issuance unjustified, as there was no legal basis or right entitling the Petitioners to such relief. The Court reiterated that a writ of mandamus is issued when there is a legal right and a corresponding duty, neither of which existed in this case.Conclusion:The Supreme Court allowed the appeals, set aside the High Court's order, and dismissed the writ petitions. The Court held that the Municipal Corporation's actions were lawful under Section 314 of the Act and that the High Court erred in issuing the mandamus for alternative site allocation and compensation. The judgment underscored the necessity of adhering to statutory provisions and the limits of judicial intervention in administrative decisions.