Judgment

Ruma Pal, J.—Leave granted.

2. The appellant is the owner of Plot No. 2M/748 situated at M.L. Dhanukar Marg, Mumbai. On the plot, there is a bungalow, an out-house, cooling towers, a pump room, servants, quarters and a watchman’s room. The first appellant has let out the bungalow and the outhouse to the appellant No.2 for use as a guest house. On 16th November, 1999 a notice was issued to the appellants under Section 299 of the Mumbai Municipal Corporation Act, 1888, (hereinafter referred to as “the Act”) to the effect that the Corporation would take possession of “certain land not occupied by a building” forming part of the premises within the regular line of public street as prescribed by the Commissioner, under Section 299 of the Act..... together with its enclosing wall, hedge, or fence, if any, and any platform, verandah, step or other structure, which may be found upon the said land”. Notice was also given that if necessary the authority issuing the notice namely, the Deputy Municipal Commissioner (Zone-I), Greater Bombay, would “proceed to clear the building”.

3 Section 299 in so far as it is relevant is extracted verbatim below :-

“299. Acquisition of open land or of land occupied by platforms, etc., within the regular line of a street.

(1) If any land not vesting in the corporation, whether open or enclosed, lies within the regular line of a public street, and is not occupied by a building, or if a platform, verandah, step or some other structure external to a building abutting on a public street, or a portion of a platform, verandah, step or other such structure, is within the regular line of such street, the Commissioner may, after giving to the owner of the land or building not less than seven clear days’ written notice of his intention so to do, take possession on behalf of the corporation of the said land with its enclosing wall, hedge or fence, if any, or of the said platform, verandah, step or other such structure as aforesaid, or of the portion of the said platform, verandah, step or other such structure aforesaid which is within the regular line of the street, and, if necessary, clear the same and the land so acquired shall thenceforward be deemed a part of the public street”.

4. The question is whether the land in the appellant’s premises which is sought to be affected by the notice is “not occupied by any building” or occupied by “some other structure external to a building”? In terms of the Section, if the land is occupied by a building it is outside the scope of Section 299; but if there are only structures external to a building, action may be taken under Section 299 by the respondent to take possession of the land and demolish the structure. The notice was challenged by the appellants under Article 226 of the Constitution contending that the former was true in its case.

5. By an order dated 2nd May, 2001, the High Court directed the Prothonotary and Senior Master of the High Court to appoint an Officer of the Court to visit the property and verify whether the proposed acquisition affected any of the structures of the appellant. Pursuant to the order, the Commissioner was appointed. The Commissioner visited the premises upon notice to the parties and submitted a report. According to the report, the proposed acquisition affected the following permanent existing structures in the premises to the extent indicated:

1. Servants Room in two a) 13-6" x 9-6" 128.25 parts (Gr. Floor structure) b) 12-6"x20-6" 256.25

2. Security Cabin (Gr. Floor Structure) 6-6x6-6" 42.25

3. Pump Room with Compressor 9-0"x6-0" 54.00 (Gr. Floor Structure)

4. Under ground RCC tank with Cylinder shape pre-cast tank on Top 14’-6"x11-6" 166.75

5. A.C. Plant 12-6x10-6" 1