A.L. RANJANE versus RAVINDRA ISHWARDAS SETHNA AND ORS.

Citation: [2002] SUPP. 4 S.C.R. 325 · Decided: 22-11-2002 · Supreme Court of India · Bench: S.N. VARIAVA · Disposal: Dismissed

Judgment (excerpt)

A.L. RANJANE 
A 
v. 
RA VIND RA ISHW ARD AS SETHNA AND ORS. 
NOVEMBER 22, 2002 
B 
[S.N. VARlA VA AND ARUN KUMAR, JJ. ] 
Municipalities: 
Bombay Municipal Corporation Act, 1888--Section 313-/nterpretation C 
of-Section bars putting up a structure or stall on street which is not similar 
Jo items mentioned in Section 313(/)(a) viz. any stall, chair, bench, box, table, 
ladder, bale-On facts, structure put up is tea stall embedded on road, having 
water and electricity connection with permanent water tank ,and shutters 
enabling locking of stall, which is not akin to items mentioned in clause (a)-
Thus no permission could be granted by Commissioner for such structure- D 
Hence High Court's holding that tea stall set up not permissible under the 
section, calls for no interference. 
Appellant set up a tea stall on the street abutting the building owned 
by respondent No. I. Respondent No 1 filed a suit for removal of structure. 
Trial Court decreed the suit. Even on appeal after the remand of the E 
matter to trial court suit was decreed in favour of respondent No.I. 
Appellant and the Corporation then filed appeals against the decree. Single 
Judge of High Court allowing the appeals dismissed the suit. However, 
Division Bench of High Court allowed the letter patent appeals filed by 
respondent No 1 and decreed the suit. Hence the present appeal. 
Appellant contended that the structure in question was duly 
authorized by the City Corporation, and, therefore, respondent No 1 could 
not object to the existence of the structure and the business being carried 
on by appellant; and also that the suit of respondent No.I was barred by 
limitation. 
Dismissing the appeals, the Court 
HELD I.I. Under Section 313(l)(a) of the Bombay Municipal 
Corporation Act, 1888 the Commissioner can grant permission for placing 
or depositing on any street etc. etc. any stall, chair, bench, box, ladder, bale. 
325 
F 
G 
H 
326 
SUPREME COURT REPORTS [2002] SUPP. 4 S.C.R. 
A The structure has to be similar to items mentioned in the clause. Permission 
has to be for something which can be read as ejusdem generis with the items 
mentioned in clause (a). The items mentioned in clause (a) indicate that they 
are ofa temporary nature and are easily removable as and when required. 
In the instant case the structure of the tea stall is of a size which even if not 
permanently embedded on road, cannot be said to be akin to items 
B mentioned in clause (a). The structure is embedded on the road; its four 
poles are embedded in the concrete paving on the road; it has water and 
electricity connections and permanent water tank meant to store water and 
ensure permanent supply of water to the stall which is installed on the side 
of the structure and also has shutters which enable locking of stall. No 
C permission can be granted by the Commissioner for setting up such a 
structure under Section 313 of the Act. Section 313 totally bars any stall or 
structure of the type put up by the appellant. Therefore permission, if any, 
granted by Commissioner is violative of the statute and, is, therefore, illegal. 
[330-H; 331-A-D] 
D 
1.2. High Court rightly held that permission of the Commissioner 
for the tea stall was obtained by mis-representation of vital facts. High 
Court further rightly found that the appellant's right to repair and 
maintain hi.s building, particularly the portion where the tea stall abuts, 
has been seriously affected: the kerosene pressure stove being used for 
E preparation of tea and coffee in the stall was a fire hazard. Structure was 
causing nuisance for the occupants of the building as well as it was a 
hindrance in the free flow of traffic and movement of pedestrian and also 
that not only the structure was not permissible under the provision of 
Section 313 of the Act but it has also prejudicially affected the rights of 
respondent No I qua enjoyment of his property. [331-D-FJ 
F 
2. There is no substance in the contention that the suit is barred by 
limitation in view of the provision in Section 51.7 of the Act. Section 527 
contains a provision regarding notice to be served on the Corporation 
before tiling of such a suit against it and it also prescribes a limitation 
period for a suit being filed against the Corporation. The issue of limitation 
G can be disposed of simply on the basis of the fact that the Corporation 
and its Commissioner in the suit could raise the question of limitation, if 
at all. The bar of limitatio

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