Interim Order 1

Order Details: Notice of Motion
Pdf Text: Draft NM....2018 : 1 : SU.No.175/2018
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
DRAFT NOTICE OF MOTION....2018.
IN
L.C. SUIT NO. 175 OF 2018
Massive Restaurants Pvt.Ltd... .. Plaintiff.
Versus.
1. Designated Officer2
Asst.Engineer (B&F)
Municipal Corporation of
Greater Mumbai,
G/Sourt Ward Ward & Ors... .. Defendants.
Ld. Advocate Mr. P.D.Gandhy for the Plaintiff.
Ld. Advocate Mr.Vikrant Parshurami for the Defendant/BMC.
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 22nd JANUARY, 2018.
(Court Room No.06)
O R D E R
1. This notice of motion has taken out by plaintiff for grant of
temporary injunction and thereby restraining the defendants its
servants, agents, representative or any other persons on behalf of it
from taking any action pursuant to the letter bearing No.
ACGS/851/SR/BF dated 04/01/2018.
2. According to the plaintiff, defendant No.1 is a Municipal
Corporation of Greater Mumbai. Defendant No.2 is Designated
Officer2 of defendant No.1. Plaintiff is carrying on business in the
name and style of Farzi Cafe, serving multicuisine, by virtue of a
Conducting Agreement dated 17/10/2015 from Unit Nos.1 & 2,
Kamala Ground Floor, D Wing, Kamala Mills, Senapati Bapat Marg,
Lower Parel, Mumbai. Plaintiff runs restaurant in the suit premises.
According to the plaintiff, plaintiff has obtained license from
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appropriate authorities. Plaintiff has abided the rules and regulations.
However, on 29/12/2017 there was unfortunate incident of fire in the
Kamala Mill Compound. Due to this, defendant Municipal Corporation
has taken high handed illegal action against people. Plaintiff has not
violated any rules and regulation. On 04/01/2018
defendant/Corporation gave notice to plaintiff and directed plaintiff to
remove the irregularities if any and restore structure as per latest
approved plan issued by Competent Authority within 15 days,
otherwise irregularities will be demolished. Thus, notice is illegal,
vague and without having legal base. Therefore, if the defendant
succeed, irreparable loss will be caused to the plaintiff. Accordingly,
prayed to grant temporary injunction.
3. Notice is served on defendant.
4. I have heard Mr. P.D.Gandhy advocate for plaintiff and
Mr.Vikrant Parshurami for defendant/Corporation.
5. Mr. P.D.Gandhy advocate for plaintiff has submitted that the
notice is illegal. There are no irregularities at the hands of plaintiff.
Plaintiff has abided rules and regulations. He has invited my attention
towards documents on record. Plaintiff has obtained the licenses from
the various authorities. He further submitted that the defendant has
not given any opportunity to the plaintiff to submit his contentions.
Though the incident of Kamala Mill Compound is unfortunate. It
cannot be said that all the people have committed irregularities. Thus,
he prayed to grant interim protection.
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6 In support of his contention he relied on following citations :
(1) Uma Nath Pandey and Ors. V/s. State of U.P. and
Anr.
Cri. Appeal No.471 of 2009 (Arising out of SLP
(Cri.) No. 6382 of 2007) decided on 16/03/2009
reported in MANU/SC/0401/2009.
(2) Sopan Maruti Thopte and another etc. etc.
V/s.
Pune Municipal Corporation and another
and
Shaikh Abdul Aziz and others.
V/s.
Bombay Municipal Corporation and others.
Writ Petns. Nos. 4765 to 4767 of 1995 and
A.O.No. 477 of 1994 reported in
MANU/MH/0053/1996.
(3) Muni SuvratSwami Jain S.M.P...
V/s.
Arun Nathuram Gaikwad & Ors. SLP (civil) 9049
of 2006 Supreme Court of India decided on
11/10/2006.
(4) Ramesh Hargovinddas Divecha
V/s.
The Municipal Corporation of Gr. Bombay & Ors.
In the High Court of Judicature at Bombay
Ordinary Original Civil Jurisdiction Writ Petition
No. 715 of 1999 dated 12th July, 1999.
(5) Abdul Razzaq Sunesra
V/s.
Municipal Corporation of Gr. Mumbai
In the High Court of Judicature at Bombay
Ordinary Original Civil Jurisdiction Writ Petition
(L) No. 1709 of 2013 dated 17th July, 2013.
(6) Suresh Estates Pvt. Ltd. and ors.
V/s.
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Municipal Corporation of Greater Mumbai and
Ors. Appeal No. 5948 of 2007 (Arising out of SLP
(C) No.14578 of 2007) decided on 14/12/2007
reported in MANU/SC/0232/2008.
(7) Salim Babu Khan & Others.
V/s.
The Bombay Municipal Corporation
In the High Court of Judicature at Bombay
Ordinary Original Civil Jurisdiction Writ Petition
(L) No. 1830 of 2008 with Chamber Summons
No. 265 of 2008 decided on 30th September,
2008.
7. Per contra : Mr. Parshurami advocate for defendant has
submitted that the notice is given as per the direction of Municipal
Commissioner. The massive fire broke at two restaurants/pubs namely
"1 Above" and "Mojo Bistro" and due to this, 14 people lost their lives
and 50 persons seriously injured. Due to this, for the public safety and
precaution, such type of notices are issued to the people in the vicinity
to restore the plan of their premises as per the latest sanctioned plan of
Corporation. He further submitted that the Hon'ble High Court in Julio
Rebeiro V/s. State of Maharashtra and others Public Interest
Litigation (L) No. 4 of 2018 directed the Municipal Corporation to
take necessary steps against the restaurants, pubs, establishments etc.
having illegal extension. Thus, he prayed to refuse the relief.
8. On 29/12/2017, massive fire broke out "1 Above" and "Mojo
Bistro" in Kamala Mill Compound. In the said incident, people lost
their lives and many people severely injured. Public interest Litigation
(L) No. 4/18 Julio Rebeiro V/s. State of Maharashtra and others has
been filed before the Hon'ble High Court. Hon'be High Court in para
13 gave direction to the Municipal Corporation as under :
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13. The Municipal Corporation shall also
have to conduct an exercise to find out as to
whether the restaurant owners and operators
of pub/bar do possess requisite licences for
conducting business and if it is noticed that
operations are being carried out without
proper licencs, it would be a statutory
responsibility of the Municipal Corporation to
close down such
establishments/restaurants/pubs etc. We
expect the respondents the State of
Maharashtra as well as the Municipal
Corporation to file comprehensive reply
covering the aspects which we have
enumerated above. It shall also be obligatory
to verify whether existing operators of
restaurants/pubs/ bars have raised illegal
extension, if any such infractions is noticed,
appropriate action shall be taken."
9. It is to be noted that plaintiff runs restaurant in the suit premises.
From the perusal of documents it appears that plaintiff has obtained
licenses from the concerned departments. In view of the incident, the
defendant has given impugned notice to the people in the vicinity. By
way of this notice, defendant directed the plaintiff to remove the
irregularities if any and restore the structure as per latest approved
plan issued by Competent Authority i.e. Executive Engineer City or any
other authority within 15 days from the receipt of this letter and failing
which, the same will be demolished by the defendant.
10. Here, it is to be noted that defendant has only asked to remove
the irregularities "if any". Therefore, it is expected that the structure
must be as per the approved plan issued by Competent Authority. It
appears that the said notice is issued for the public safety and in view
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of the incident in Kamala Mill Compound, the said notice is not either
U/sec.351 or 354 of MMC Act.
11. The notice is not issued alone to the plaintiff. The notice is issued
to the people in the vicinity to remove irregularities. The notice is not
U/sec.351, 354 of the MMC Act. Plaintiff has given reply to the
defendants and denied the contentions in the notice. In Ramesh
Hargovinddas Divecha V/s. The Municipal Corporation of Greater
Bombay & ors. Hon'ble Hon'ble High Court held that the plan
sanctioned must be available with Municipal Corporation of Greater
Mumbai. In Muni Suvrat Swami Jain S.M.P. V/s. Arun Nathuram
Gaikwad & Ors. Hon'ble Supreme Court held that issuance of show
cause notices U/sec.351 of MMC Act is necessary for demolish of
unauthorized structure. In Sopan Maruti Thopte and another etc.
etc. V/s. Pune Municipal Corporation Hon'ble High Court ruled that
in every case where a notice U/sec.351 of BMC Act/ U/sec.260 of
B.P.M.C.Act is issued to a party 15 days' time shall be given for
submitting the reply. In Uma Nath Pandey and Ors. V/s. State of
U.P. and Anr. Hon'ble Supreme Court held that :
(6) Natural justice is another name for
commonsense justice. Rules of natural justice
are not codified canons. But they are
principles ingrained into the conscience of
man. Natural justice is the administration of
justice in a commonsense liberal way. Justice
is based substantially on natural ideals and
human values. The administration of justice is
to be freed from the narrow and restricted
considerations which are usually associated
with a formulated law involving linguistic
technicalities and grammatical niceties. It is
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the substance of justice which has to
determine its form.
(7) The expressions "natural justice" and
"legal justice" do not present a watertight
classification. It is the substance of justice
which is to be secured by both, and whenever
legal justice fails to achieve this solemn
purpose, natural justice is called in aid of
legal justice. Natural justice relieves legal
justice from unnecessary technicality,
grammatical pedantry or logical prevarication.
It supplies the omissions of a formulated law.
As Lord Buckmaster said, no form or
procedure should ever by permitted to exclude
the presentation of a litigants' defence.
12. However, as discussed in supra, the said notice is issued for the
public safety and to remove the irregularities in the structure.
According to plaintiff, there is no irregularities and therefore, if ad
interimrelief is refused, then no prejudice will be caused to the
plaintiff. Hence, in such a circumstances, I find that plaintiff is not
entitled for adinterimrelief. Hence, the order :
O r d e r
1. Adinteriminjunction is refused.
2. Leave is granted to register the Notice of
Motion.
(G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 22.01.2018
Typed on : 22.01.2018
Signed by HHJ. : 22.01.2018
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
24.01.2018 /3.30 p.m. Mr. S.D.Nalawade
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
(H.G.)
Name of the Judge (with
Court Room No.)
Shri. G.B.Gurao
(CR.No.06)
Date of Pronouncement of
JUDGEMENT/ORDER
22.01.2018
JUDGEMENT/ORDER signed
by P.O. on
22.01.2018
JUDGEMENT/ORDER
uploaded on
24.01.2018
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