MUNICIPAL CORPORATION OF GREATER MUMBAI & ORS. versus RAFIQUNNISA M. KHALIFA (DECEASED) THROUGH HIS LEGAL HEIR MR. MOHD. MUQUEEN QURESHI & ANR.

Citation: [2019] 3 S.C.R. 1036 · Decided: 18-02-2019 · Supreme Court of India · Bench: ABHAY MANOHAR SAPRE · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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1036                    SUPREME COURT REPORTS            [2019] 3 S.C.R.
MUNICIPAL CORPORATION OF
GREATER MUMBAI & ORS.
v.
RAFIQUNNISA M. KHALIFA (DECEASED)
THROUGH HIS LEGAL HEIR
MR. MOHD. MUQUEEN QURESHI & ANR.
(Civil Appeal Nos. 1727-1732 of  2019)
FEBRUARY 18, 2019
[ABHAY MANOHAR SAPRE AND
DINESH MAHESHWARI, JJ.]
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
[2019] 3 S.C.R. 1036
1036
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1037
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 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 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
MUNICIPAL CORPORATION OF GREATER MUMBAI v.
RAFIQUNNISA M. KHALIFA
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