9911796707
TMI Blog2019 (2) TMI 2112X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in public interest. It was also contended that these stalls/structures were also causing traffic congestion on Bandra Station Road. It was lastly contended that before taking the action, the health licenses granted to the writ Petitioners were cancelled and a circular was issued on 05.10.2015 for removal of these unauthorized stalls/structures. 12. By impugned order, the High Court allowed the writ petitions. It was held that the Appellant (Municipal Corporation) was not able to prove that the case in question falls Under Section 314 of the Act. The High Court, therefore, struck down the action taken by the Municipal Corporation and issued 9 directions in the nature of mandamus against the Appellants. These 9 directions read as under: (i) We direct the Mumbai Municipal Corporation to allot to the Petitioners stalls/shops of the same size which were demolished on 26th May, 2016 in the same locality or in nearby locality; (ii) The locality shall be such that the Petitioners are in a position to carry on the same business which they were carrying on in the demolished structures; (iii) The Allotment shall be made to the Petitioners as expeditiously as possible and in any event, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als, read as under: 312. Prohibition of structures or fixtures which cause obstruction in streets. (1) No person shall, except with the permission of the Commissioner Under Section 310 or 317, erect or set up any wall, fence, rail, post, step, booth or other structure or fixture in or upon any street or upon or over any open channel, drain, well or tank in any street so as to form an obstruction to, or an encroachment upon, or a projection over, or to occupy, any portion of such street, channel, drain, well or tank. (2) Nothing in this Section shall be deemed to apply to any erection or thing to which clause(c) of Section 322 applies. 314. Power to remove without notice anything erected, deposited or hawked in contravention of Section 312, 313 or 313A. The Commissioner may, without notice, cause to be removed- (a) any wall, fence, rail, post, step, booth or other structure or fixture which shall be erected or set up in or upon any street, or upon or over any open channel, drain, well or tank contrary to the provisions of Sub-section(1) of Section 312, after the same comes into force in the city or in the suburbs, after the date of the coming into force of the Bombay Mun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In other words, in order to exercise the power Under Section 314 (1) of the Act, 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). 21. Coming now to the facts of the case, it is apposite to mention here 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. 22. Perusal of the counter affidavit, map and the photograph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 28. 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. 29. We also do not find any scheme/policy made in this behalf by the Appellants or the State, which could be enforced by the Respondents. Moreover, once this Court holds that the action taken Under Section 314 of the Act against the Respondents is legal and proper, there is no occasion to issue any mandamus much less the mandamus of the nature issued by the High Court. 30. In view of the foregoing discussion, the appeals succeed ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
