Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2019 Supreme(SC) 179

SUPREME COURT OF INDIA
Abhay Manohar Sapre, Dinesh Maheshwari, JJ.
Municipal Corporation Of Greater Mumbai And Others – Appellant(s)
Versus
Rafiqunnisa M. Khalifa(Deceased) Through His Legal Heir Mr. Mohd.Muqueen Qureshi And Another – Respondent(s)
Civil Appeal Nos. 1727-1732 of 2019 (Arising Out of S.L.P.(C) Nos. 24971-24976 of 2018)
Decided on : 18-02-2019

Advocates Appeared:
For the Appellant:Ms. Asha Gopalan Nair, Advocate and Ms. Nivedita Nair, Advocate
for the Respondent:Mr. Sunil Fernandes, Advocate, Ms. Nupur Kumar, Advocate, Ms.Anju Thomas, Advocate, Mr. Darpan Sachdeva, Advocate, Mr.Nishant R. Katneshwarkar, Advocate, Ms. Deepa Kulkarni, Advocate and Mr.Anoop Kandari, Advocate

IMPORTANT POINT
Writ of mandamus under Article 226 of Constitution is issued when there is a right and correspondingly there is a legal duty to perform.

Headnote:Mumbai Municipal Corporation Act, 1888 – Section 314 – Constitution of India – Article 226 – Removal of stalls/structures – High Court struck down action taken by Municipal Corporation – Grant of health license has nothing to do with erection of stall/structure and its removal – In order to exercise power under Section 314 of the Act, 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 strength of health license on street, or open channel, drain, well or tank, no action to remove such stall/structure can be taken against such person – Action under Section 314 can be attacked successfully only by showing that person had erected his stall/structure with permission of Commissioner granted under Section 312(1) of Act – Such is not the case here – High Court was not justified in striking down action of appellant (Commissioner) taken under Section 314 of Act for removal of their stalls/structures – High Court was also not justified in issuing mandamus directing appellant-Municipal Corporation to provide to each respondent some suitable land either in same area or in adjacent area – Writ of mandamus under Article 226 of 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 obligation to provide any alternate land to respondents – Impugned order set aside. (Paras 26 to 30)
       Facts of Case:
       Writ petitioners sought relief of mandamus on identical allegations against appellants contending that officials of Municipal Corporation illegally removed their stalls/structures without any prior notice to any of them. Writ petitioners alleged that action on part of Municipal Corporation and their officials (appellants herein) while undertaking removal of writ petitioners' food/pan stalls situated at Bandra Station Road was wholly arbitrary, illegal and against relevant provisions of Mumbai Municipal Corporation Act, 1888
       Findings of Court:
       High Court was not justified in striking down action of appellant (Commissioner) taken under Section 314 of Act for removal of their stalls/structures. High Court was also not justified in issuing a mandamus directing appellant-Municipal Corporation to provide to each respondent some suitable land either in same area or in adjacent area.
       Result : Appeal allowed.

JUDGMENT

Abhay Manohar Sapre, J.

Leave granted.

2. These appeals are directed against the final judgment and order dated 12.06.2018 of the High Court of Judicature at Bombay in Writ Petition(c)Nos. 2639, 2184, 2642, 2641, 2644 and 2746 of 2016 whereby the High Court allowed the writ petitions filed by the respondents herein.

3. A few facts need mention hereinbelow to appreciate the short controversy involved in these appeals.

4. Respondent No. 1 in all the appeals (total 6) were the writ petitioners and the appellants (1 to 6) herein were the respondents in the six writ petitions out of which these appeals arise.

5. The six respondents individually filed six separate writ petitions against the Municipal Corporation of Greater Mumbai (appellant No. 1 herein) and their officials including the Collector (Respondent Nos. 2 to 6) and sought common reliefs in their individual writ petitions against the appellants on identical, factual and legal pleadings/grounds.

6. According to six writ petitioners (respondent No. 1 in all the appeals), one was running his restaurant in a stall under the name "Yadgar Restaurant" at Bandra Station Road. The other writ petitioner was running a "Pan Shop" in a stall in front of Yadgar Restaurant. The third writ petitioner was running a food stall under the name "Lucky Kabab Corner" at Bandra Station Road. The fourth writ petitioner was running a food stall under the name "Danish Kabab Corner" at Bandra Station Road. The fifth writ petitioner was running a food stall under the name "Gulsik-Kabab and sweetmeat shop" at Bandra Station Road and sixth writ petitioner was running a food stall under the name "A-1 Seak Kabab" at Bandra Station Road.

7. All the six writ petitioners sought the relief of mandamus on the identical allegations against the appellants inter alia contending that the officials ofthe Municipal Corporation illegally removed their stalls/structures on 26.05.2016 without any prior notice to any of them. The writ petitioners alleged that the action on the part of the Municipal Corporation and their officials (appellants herein) while undertaking the removal of the writ petitioners' food/pan stalls situated at Bandra Station Road was wholly arbitrary, illegal and against the relevant provisions of the Mumbai Municipal Corporation Act, 1888 (hereinafter referred to as "The Act").

8. It was alleged that each writ petitioner was holding the health license issued by the Municipal Corporation (appellant No.1 herein) for running their respective stalls on the site in question and, therefore, the appellant No. 1-Municipal Corporation was not justified and nor had any right under the Act to initiate any action for the removal of their stalls much less without any prior notice.

9. 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. It was equally in breach of Article 14 of the Constitution.

10. The writ petitioners, on the aforementioned allegations, claimed the reliefs that the appellant No. 1-Municipal Corporation be directed to put the writ petitioners in possession of the site in question or in the alternative to provide them with any other suitable site in the city where they could start their business afresh and further direct the appellants to pay to each writ petitioner a reasonable compensation for the loss of their business and the inconvenience caused to them on account of impugned removal done by appellant No.1-Municipal Corporation on 26.05.2018.

11. The appellants opposed the writ petitions by filing reply in some of the writ petitions. The appellants inter alia contended that they were compelled to take the action under Section 314 of the Act because these stalls/structures were found erected on the public sewer. It was contended that since these stalls/structures were causing hindrance in cleaning the public sewer lines and were found to have been erected without any sanc

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2019 Supreme(SC) 179

IMPORTANT POINTWrit of mandamus under Article 226 of Constitution is issued when there is a right and correspondingly there is a legal duty to perform.

IMPORTANT POINT
Writ of mandamus under Article 226 of Constitution is issued when there is a right and correspondingly there is a legal duty to perform.