Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.2341-2021 ORDER 1
MHCC010076792021
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.2341 OF 2021
IN
SUIT STAMP NO.6066 OF 2021
Ganesh S/o. Paneer Devendra Mohd.
Ahsan Safat Khan
… Plaintiffs
Vs.
MCGM and Ors. … Defendants
Appearances:
Ld.Adv.Mr.B.P.Shukla for plaintiff.
Ld.Adv.Mr.S.R.Singh for Defendant no.2.
Ld.Adv.Mr.Khatib for Defendant no.3.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. C.V. PATIL
(C.R.NO.09)
DATE : 14th October 2021
ORDER
1. This Notice of Motion is filed by plaintiff with request that during
the pendency of suit the Court may temporarily restrain defendant no.2,
his servants, agents etc. from running the illegal and unauthorised
bakery business in the suit premises situated at Kamla Raman Nagar,
Bainganwadi, Ghatkopar Mankhurd Link Road, Govandi, Mumbai. In
the same Notice of Motion the plaintiff has requested to appoint Court
Commissioner to visit the suit premises, to inspect the same and submit
the report before the Court.
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NM No.2341-2021 ORDER 2
2. The plaintiff submitted that he is in peaceful occupation and
possession of the structure situated at Ghatkopar Mankhurd Link Road,
Kamla Raman Nagar, Baingawadi, Govandi, Mumbai. The defendant
no.2 is occupier of the adjoining structure (with adjoining wall). He is
carrying illegal bakery business in the name of ‘Darbar Bakery’.
Defendant no.2 is carrying on business without permission from the
appropriate authorities and he is thereby causing nuisance to the
neighbours. As per the statement of plaintiff the adjoining structure
with adjucent wall of defendant no.2 is subject matter of the present
suit.
3. The defendant no.3 is State of Maharashtra, defendant no.1 is
Municipal Corporation, they are avoiding to take action against
defendant no.2 inspite of several complaints made by plaintiff to them.
The suit premises is old one and same is authorised and tolerated
structure. The plaintiff is having various documents to show that he is
in possession, occupation and in use of the suit property. The concerned
authorities have issued number of documents in the name of plaintiff
from which it can be said that he is in occupation of the property.
Defendant no.2 is occupying neighboring structure. In that premises he
is running unauthorised bakery(factory) for preparation of bakery
items. The said factory is in the residential area which is totally illegal
and unauthorised. Because of that act of defendant no.2 it produces
heavy noise in the night time. Ultimately, it will cause nuisance, to the
inhabitants. The defendant no.2 is using LPG Gas Cylinder for cooking
bakery items. The wall between the premises is common therefore, it
became hot to bear. Plaintiff has asked to defendant no.2 about illegal
business but the defendant no.2 threatened him that plaintiff should
keep mum otherwise he has to face dire consequences. Defendant no.2
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NM No.2341-2021 ORDER 3
have also constructed mezzanine floor illegally over the existing ground
floor. He used the same for storage purpose. He has also extended the
front portion of the premises for Counter purpose. Because of the act of
defendant no.2 some unpleasant event may take place, such kind of
incident already taken place in Cheeta Camp. Because of that 5 persons
have lost their lives and 40 persons seriously injured. The plaintiff
approached to defendant no.1 and 3 but there was no use. He is also
addressed to health department, fire brigade department of MMC, but
no one has taken action only FIR is registered against defendant no.2.
There is very nuisance in the area it will also heat the wall and creates
noise in the night time. If any unpleasant incident happened then
defendant no.1 will be responsible for the same. In spite of several
attempts the defendant no.1 has not taken action against defendant
no.2. Therefore, this Notice of Motion is filed to restrain defendant no.2
to continue with his illegal act as well as to appoint Court
Commissioner for inspection of the suit premises.
4. The defendant no.2 has filed reply and strongly opposed the
Notice of Motion. He has raised number of legal grounds and submitted
that the suit is not tenable in this Court. It is his submission that
plaintiff has not given notice to MMC under Section 527 which is
statutory binding. He has also not given notice under Section 80(2) of
CPC. Therefore, suit is not tenable. In support of submission the
defendant no.2 has also placed reliance on some citations.
5. He further submitted that the suit is barred under Section 42 of
the Slum Act. Under that Section Civil Court has no jurisdiction to
entertain such kind of reliefs. However, there are several judgments of
Hon’ble Bombay High Court as well as Hon’ble Apex Court that no
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NM No.2341-2021 ORDER 4
direction can be given to the MMC by the Court for intending any action
against any citizen which are to be decided and adjudicated by the
Municipal Commissioners order. The plaintiff has not approached the
Court with clean hands. He has filed false and fabricated documents on
record. The plaintiff has filed suit falsely and taken time of the Court.
Therefore, there are number of citations that such kind of persons must
be punished. In support of his say he has filed some citations that any
scrupulous person be punished who has taken time of the Court by
filing false and fabricated suit. But the question of legality whether the
suit is maintainable, whether this Court has jurisdiction, whether the
suit is barred for one of the statutory notice, whether the suit is false
one, all these points can be considered by Court on merit. Now the
question before the Court is whether Court can grant injunction against
defendant no.2, which is asked by plaintiff.
6. Defendant no.2 further submitted that there is no urgency or
apprehension in the mind of plaintiff. However, defendant no.2 has
taken necessary permission from fire fighting department and other
departments for running bakery in the suit premises. Defendant no.2
has also challenged the fact that plaintiff is not residing in the suit
structure. His residential address is of different place. There is no cause
of action, ultimately he requested compensatory cost from plaintiff and
lastly submit to dismiss the Notice of Motion. The defendant no.1 and 3
have to filed reply to Notice of Motion.
7. Heard learned advocate of plaintiff and defendant No.2 at length.
Considering pleadings from both the sides following points arise for my
consideration to which I have given reasons before them :
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NM No.2341-2021 ORDER 5
Sr.
No.
Points Findings
1 Does plaintiff prove prima facie case? Partly affirmative
In whose favour balance of convenience
lies ?
Depend on observation
3 To whom irreparable loss would cause if
injunction is granted or rejected ?
Depend on observation
4 What order ? NM is partly made
absolute
REASONS
For Points No. 1 to 3
8. In the Notice of Motion it is the submission of plaintiff that
defendant no.2 is running bakery illegally. The suit structure is
adjoining to the residential premises of plaintiff. Because of the act of
defendant no.2 common wall may damage, however, the act of
defendant no.2 to run business at odd hours create heavy noise.
Ultimately, that will causes nuisance to the residents in that area. It is
strong submission that defendant no.2 is running business without
permission from the competent authority. Plaintiff has also requested
that defendant has extended his portion in the building. Ultimately, he
has committed encroachment. But the question of encroachment can be
decided after factual circumstances on record. Therefore, the plaintiff
has requested to appoint Court Commissioner. Now, much emphasis is
given from the side of plaintiff about said illegal act of defendant that
he is running bakery business in the suit property. Plaintiff has produced
relevant documents that is Aadhar Card, Ration Card etc. He has also
annexed paper cutting to show that because of bakery business one
untoward incident had happened and number of persons lost their lives.
On the other hand, defendant no.2 has produced some documents
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NM No.2341-2021 ORDER 6
alongwith reply that is license issued by the corporation as well as
registration Certificate, intimation receipt. From these documents it
appears that the defendant no.2 have registered his business.
Accordingly, concerned authorities had issued license to him for running
business. Here for the sake of moment, it is necessary to take into
consideration while giving permission to bakery business concerned
authority might have put terms and conditions. Therefore, if there is
violation of terms and conditions then the said authority competent to
take action. Therefore, the plaintiff has remedy to approach to that
authority but here plaintiff has directly asked to stop the
unauthorised/illegal business of defendant no.2 over the suit property.
Regarding license the defendant no.2 has produced one citation that is
Seema Vishal Thadani (M/s.Seema Wines) Vs. The Municipal
Commissioner, Mumbai & Anr. 2006(6) All MR 686. In that citation the
Hon’ble Bombay High Court held that Where liquor or toddy is sold in
sealed bottles for being carried outside and not for consumption on the
premises, the license under S.394 of the MMC Act is not required.
9. The defendant no.2 submitted that he is also making only bakery
items to carry out sale. Therefore, as the citation of the Hon’ble High
Court, there is no need to take license for running bakery business. The
defendant has taken license from the Drugs department. He has
registered his business from concerned authority.
10. The plaintiff himself stated that he has approached to various
authorities with request to take action against illegal act of defendant
no.2. But that authority has not taken any action against defendant
no.2. Here State of Maharashtra and Municipal Corporation Bombay is
party in the suit. In the local jurisdiction of Mumbai the BMC is dealing
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NM No.2341-2021 ORDER 7
with such illegal activity that is the alternate remedy to plaintiff.
Plaintiff has applied to Municipal Corporation then he has to wait till
the decision of Corporation. He has lodged FIR under relevant Section
of IPC for running business illegally which is dangerous to others. In
such circumstances, inspite of asking relief from Civil Courts the
plaintiff has to approach before appropriate authorities. However,
learned advocate of defendant relied upon one citation to show that
Court cannot give direction to Municipal Corporation regarding decision
in administrative Section. Certainly this question before the Court is
about jurisdiction of Municipal Corporation and if the Court gives
direction, ultimately it will create obstacle in the administration of
justice in that department. Municipal Corporation is competent
Authority to deal with such kind of issues and to decide and to take
appropriate action. Therefore, regarding prayer clause (a) plaintiff is
not entitled to claim that relief. In respect of prayer clause (b) the
plaintiff has asked relief of appointment of Commissioner the same is
also strongly opposed. The plaintiff has made allegation of
encroachment at the hands of defendant no.2 that can be considered
after factual circumstances on record. Considering allegations on record
in my opinion, if court commissioner is appointed, he will inspect suit
property, ultimately factual circumstances will come on record and it
will help to decide question on merit. Consequently, plaintiff is entitled
for prayer clause (b). Accordingly, Notice of Motion is made partly
absolute in terms of prayer clause (b) and following order is passed:
ORDER
1. Notice of Motion No.2341 of 2021 is made partly
absolute in terms of prayer clause (b).
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NM No.2341-2021 ORDER 8
2. Registrar to appoint any proper person to act as
Court Commissioner to inspect the suit property and
submit the report accordingly.
3. Plaintiff shall bear Court Commissioner’s charges of
Rs.3000/-, to be paid to him directly.
4. Notice of Motion No.2341 of 2021 stands disposed
of accordingly.
(C.V. PATIL)
Ad-hoc Judge,
Date : 14/10/2021 City Civil Court, Gr. Bombay
Dictated on : 14/10/2021,
Transcribed on : 20/10/2021,
HHJ signed on : 23/10/2021
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
23/10/2021 12.55p.m. Mrs.Jyoti Mane
Name of the Judge (With Court Room No.) HHJ Smt. C.V.Patil (CR 09)
Date of Pronouncement of JUDGEMENT
/ORDER
14/10/2021
JUDGEMENT /ORDER signed by P.O. on 23/10/2021
JUDGEMENT /ORDER uploaded on 23/10/2021
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