Vs. Ravindra Ishwardas Sethna & Ors  Insc 486 (22 November 2002)
Variava & Arun Kumar. Arun Kumar, J.
APPEAL NO.4423 OF 1995
appeals are directed against a judgment and decree passed by the High Court in
Letters Patent Appeals No.110 of 1993, 111 of 1993 and 112 of 1993. So far as
the legal aspect of the case is concerned it relates to interpretation of
Section 313 of the Bombay Municipal Corporation Act (hereinafter referred to as
the 'Act'). Rest of the matter relates to findings of fact arrived at by the
High Court which do not call for interference in these Civil Appeals.
the facts are that the appellant is running a tea-stall for which he has put up
a structure on the street at the junction of Kalbadevi Road and Jambulwadi
Lane. Respondent No.1
is the owner of the building on that corner. The tea stall set up by the
appellant on the street abuts the building owned by Respondent No.1. Respondent
No.1 filed a suit for declaration, mandatory injunction and permanent
injunction with the following prayers:
For a Declaration that the suit structure put up by the 3rd defendant is an
unauthorized structure and also an encroachment on the plaintiff's rights and
For a Mandatory Order and Injunction that the defendants do forthwith remove
the suit structure along with the paraphernalia, including illegal electric and
water connections and the things and articles inside and around the suit
structure, including those that are affixed, annexed and attached to the said
For a permanent Injunction restraining the defendant Nos.1 & 2 from
allowing the suit structures to continue to remain in the vicinity of the
Plaintiffs said properties.
For a permanent Injunction restraining the defendant Nos. 1 and 2 from
permitting or sanctioning and allowing any Shed or Stall structure to be put up
and to remain in the vicinity of the plaintiffs said properties."
Municipal Corporation of Greater Bombay and its Commissioner were impleaded as
Defendant Nos.1 & 2 while Defendant No.3 in the suit is appellant herein
who is running the disputed tea stall. It has come in evidence of the appellant
himself that the size of the structure is about 10 ft. x 9 ft. having a height
of 10 ft. It has a pucca flooring of paved tiles. It has rolling shutters on
two sides. It has tin roof. On the side of the roof of the structure is
installed a water storage tank. The structure has water and electricity
connections. It has provision for drainage. The four sides of the structure are
embedded in the concrete flooring on the road.
also admitted that customers enjoy the facilities provided by the tea stall
while standing/sitting on the road. Washing of the utensils takes place on the
road. The workers of the tea stall bathe and wash their clothes on the road
itself in front of the house of Respondent No.1. The objected structure
occupies about one-third of the width of Jambulwadi lane. Rain water falling on
the roof of the structure splashes on the wall of the building of Respondent
No.1 which damages the wall as well as the paint on the wall of the building.
Respondent No.1 is also aggrieved by the fact that he cannot repair his
building from the side where the structure in question exists because no
scaffolding can be put there. Besides this Respondent No.1-plaintiff alleged
that the stall is a health and fire hazard because kerosene pressure stove is
being used in the stall for making tea and coffee.
framing issues and recording evidence of the parties the trial Court vide
judgment dated 30th
August, 1988, decreed
the suit of the plaintiff-respondent No.1. In an appeal filed against the said
judgment, the matter was remanded back to the trial Court. The trial court
again passed a decree in favour of the plaintiff on 9th September, 1991. Two appeals were filed against the decree passed by
the trial Court one by the present appellant i.e. the owner of the tea stall
while the other was filed by the Municipal Corporation of Greater Bombay and
the Commissioner of the Corporation. A learned Single Judge of the High Court
vide judgment dated 23rd/26th April, 1993 accepted the appeals and dismissed
the suit. Respondent-plaintiff filed Letters Patent Appeals against the
decision of the learned Single Judge. These appeals were allowed by the
Division Bench of the High Court resulting in the suit of Respondent-plaintiff
being decreed. The present appeals arise from the judgment dated 10.10.1994 of
the Division Bench of the High Court.
learned Counsel for the appellant argued that the structure in question was
duly authorized by the city Corporation, and therefore, the plaintiff could not
object to the existence of the structure and the business being carried on
therein by the appellant.
this connection it is to be noted that the appellant was initially allowed to
put up a sugarcane crusher on the street as a "tolerated structure".
The appellant thereafter sought permission for a tea stall in place of the
sugarcane crusher in November, 1981. The sugarcane crusher occupied space of
1mtr. x 1 mtr. The Ward Officer put up a note to the Superintendent of Licences
stating that the appellant was allowed a "tolerated" sugarcane
crusher and had asked for permission to put up electric power motor which
request was not permissible, therefore, the appellant wanted to convert the
sugarcane juice stall into a tea stall. The Ward Officer thereafter put up a
note supporting the case of the appellant . The Superintendent of Licences
submitted his remarks to the Municipal Commissioner stating that permission for
tea stall for an area of 1mtr. x 1 mtr. be considered as a special case and not
to be treated as precedent for any other case in view of the
"tolerated" sugarcane crusher allowed to the appellant. On 10th December, 1981, the Municipal commissioner passed
an order that a tea stall licence may be given as a very special case and not
to be treated as a precedent. Thus what was permitted was a tea stall of the
size of 1 mtr. x 1 mtr. which was of the same size as the "tolerated"
sugarcane crusher. It appears that the Ward Officer kept on twisting facts in favour
of the appellant. In a further note he recommended that the appellant be
allowed an area of 2 mtrs.x 3 mtrs. for a tea stall. It was reported by the
Ward Officer that the stall would be put up on a footpath and it would be at
the dead end of the lane. Both these statements were untrue in as much as
neither the stall was on the footpath nor it was at the dead end of the lane.
The structure is at the junction of Jambulwadi road with Kalbadevi lane whereas
the dead end of the Jambulwadi road is at some distance. There is no footpath
at the Jambulwadi lane. Proceeding on the basis of this mis- representation,
the Municipal Commissioner sanctioned the request contained in the note of the
Ward Officer vide letter dated 17.2.1982.
on 27.4.1982 it is recorded that the Municipal Commissioner has directed the
Ward Officer to remove water and electricity connections in the tea stall. It
was also ordered that the stall has been allowed temporarily as a removable
structure and it cannot be allowed to be permanently embedded on the road. If
there was permanent embedding, the same was directed to be removed. The
appellant continued to pursue the matter regarding water and electiricity connections.
fact of the matter is that the size of the tea stall is 2.5 mtrs. x 3.28 mtrs
and it is located at the entrance of the Jambulwadi lane. The stall is about 2
ft. away from the building of the respondent -plaintiff. The water tank which
supplies water to the stall is supported on iron angles. The High Court noticed
that in addition to the place occupied by the stall, considerable space outside
the stall would always be occupied by people coming to drink tea as also by
other articles which are generally dumped outside such tea stalls on the road.
Thus it is obvious that the tea stall is a nuisance on the road besides causing
hindrance in the free flow of traffic on the road. It is a source of nuisance
for the plaintiff- respondent No.1 so far his right to enjoy his property is
to the legal aspect regarding interpretation of Article 313 of the Bombay
Municipal Corporation Act we would like to first quote the relevant portion:
No person shall, except with the written permission of the Commissioner
or deposit upon any street or upon any open channel, drain or wall in any
street (or in ay public place) any stall, chair, bench, box, ladder, bale or
other thing so as to form an obstruction thereto or encroachment thereon;
project, at a height of less than twelve foot from the surface of the street,
any board, or shelf, beyond the line of the plinth of any building, over any
street, or over any open channel, drain, well or tank in any street;
to, or suspend from, any wall or portion of a building abutting on a street, at
a less height than aforesaid, anything whatever."
perusal of the provision contained in clause (a) of sub- section (1) of Section
313 of the Act shows that the Commissioner can grant permission for placing or
depositing on any street etc. etc.any stall, chair, bench, box, ladder, bale.
This provision nowhere authorises the Commissioner to grant permission with
respect to a stall/structure of the type described hereinbefore set up by the
appellant. The structure for which permission can be granted by the
Commissioner has to be similar to items mentioned in the clause.
has to be for something which can be read as ejusdem generis with the items
mentioned in clause (a). The items mentioned in clause (a) indicate that they
are of a temporary nature and are easily removable as and when required. The
structure in the present case is of a size which even if not permanently
embedded on road, cannot be said to be akin to items mentioned in clause (a).
In the present case the structure is embedded on the road. Its four poles are
embedded in the concrete paving on the road. Moreover, the structure has water
and electricity connections and permanent water tank meant to store water and ensure
permanent supply of water to the stall, is installed on the side of the
structure. It has shutters which enable locking of the stall whenever required.
No permission can be granted by the Commissioner for setting up such a
structure under Section 313 of the Act. Section 313 totally bars any stall or
structure of the type put up by the appellant. So permission, if any, granted
by the Commissioner is violative of the statute and is, therefore, illegal.
also agree with the High Court that permission of the Commissioner for the tea
stall in the present case was obtained by mis-representation of vital facts.
The same is vitiated. It is of no avail. The High Court further found in its
impugned judgment that the appellant's right to repair and maintain his building,
particularly the portion where the stall in question abuts, has been seriously
affected. The kerosene pressure stove being used for preparation of tea and
coffee in the stall has been found to be a fire hazard. The structure was also
found to be causing nuisance for the occupants of the building as well as it
was a hindrance in the free flow of traffic and movement of pedestrians.
According to the High Court not only the structure was not permissible under
the provision of Section 313 of the Act but also it has prejudicially affected
the rights of the appellant qua enjoyment of his property. We fully agree with
the findings of the High Court in this respect.
learned counsel for the appellant meekly argued that the suit of
Plaintiff-Respondent No.1 was barred by limitation prescribed under Section 527
(1) (b) of the Act. This Section contains a provision regarding notice to be
served on the Corporation before filing of such a suit against it and it also
prescribes a limitation period for a suit being filed against the Corporation.
The issue of limitation raised by the learned counsel for the appellant can be diposed
of simply on the basis of the fact that the question of limitation, if at all
could be raised by the Municipal Corporation of Greater Bombay and its
Commissioner i.e. Defendants No.1 and 2 in the suit. So far as the prayer
regarding mandatory injunction against Defendant No.3 i.e. the appellant
regarding removal of the structure in question, the bar of limitation does not
get attracted. The mandatory injunction granted under the decree passed by the
High Court regarding removal of the structure provides complete relief to the
plaintiff/respondent No.1. Therefore, we find no substance in the contention
that the suit is barred by limitation in view of the provision contained in
Section 527 of the Act. The result is that these appeals fail and they are
learned Counsel for the appellant made a request that the tea stall was being
run by the appellant for a long time and it was the only source of livelihood
for the family of the appellant. Therefore, he prayed that some time be granted
to the appellant to enable him to find some other place to run his business. In
view of this request, the appellant is granted time to remove the structure in
question by or before 31st January, 2003 subject to his filing the usual
undertaking in this behalf within three weeks.