Summary
The Court upheld removal without prior notice of unauthorised stalls obstructing a public sewer and street. Undisputed site material established that the structures lacked the Commissioner’s permission and encroached on the narrow road. Health licences to sell food did not authorise the structures or prevent their removal. The Court also set aside directions for alternative premises because no enforceable right, statutory duty or applicable rehabilitation policy supported them.
Issues
- Whether the statutory conditions permitted removal of the stalls without prior notice.
- Whether health licences or any enforceable duty entitled the stallholders to protection or alternative premises.
Provisions considered
- Sections 312 and 314(a), Mumbai Municipal Corporation Act, 1888Applied the prohibition on unauthorised obstructive structures and the Commissioner’s power to remove them without notice. (¶¶ 17, 18, 19, 20, 21, 22, 23, 24, 26)
- Article 226, Constitution of IndiaRejected mandamus for alternative land in the absence of an enforceable right and corresponding legal duty. (¶¶ 27, 28, 29)
Held
- The relevant removal power required a structure on the specified public places, erected contrary to Section 312 within the statutory temporal framework. Structures authorised by the Commissioner under the specified provisions stood on a different footing. (¶¶ 17, 18, 19, 20)
- The undisputed map, photographs and affidavit showed stalls over the sewer line or chamber, no requisite permission or sanctioned plan, and public obstruction and street encroachment. Removal under Section 314 was justified and did not require prior notice. (¶¶ 21, 22, 23, 24)
- A health licence for conducting the food business did not grant permission to erect the stall or exempt it from the removal provisions. (¶¶ 25, 26)
- Mandamus requires a right and corresponding legal duty. No contractual or statutory entitlement, obligation under the Act, or applicable policy required alternative land, and the lawful removal supplied no basis for the High Court’s directions. (¶¶ 27, 28, 29)
Result
Municipal Corporation’s appeals allowed; High Court directions set aside and the stallholders’ writ petitions dismissed.