Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no.333-18 in St no.1401-2018
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.333 OF 2018
IN
STAMP NO.1401 OF 2018
M/S. Ganesh Paper Mart & Anr. ]..Plaintiffs
Versus
The Brihan Mumbai Electric Supply Transport
undertaking & Ors. ]... Defendants
Coram : M.S. Deshpande, Judge
(Court Room no. 05)
Date : 25th January, 2018.
Mr.Vaishnawa, advocate for plaintiff.
Ms. Sarang, advocate for defendant no.1 and 2.
Ms. Patil, advocate for defendant no.3 /BMC.
ORDER
1. In a suit for declaration and permanent injunction the
plaintiffs have taken out the notice of motion for restraining the
defendants from installing an electric A.D.P. box adjacent to the suit
shops and further for directions to the defendants to relocate or install
the same at the edge of the footpath or at any other suitable place.
2. In short, it is the case of the plaintiffs that at the ground
floor of Hirachand Fulchand Trust building, Perin Nariman Street, Fort,
in shop nos.1 and 2 respectively, they do the business of papers.
According to them, the defendants are bent upon to install A.D.P. Box
adjacent to both the shops on the footpath, above the drainage line.
The plaintiffs apprehend that installing such ADP Box would be
hazardous to them and there is possibility of incident of fire by short
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circuit or spark which will cause irreparable loss and damage to the
plaintiffs.
3. The defendant nos.1 and 2 have filed affidavit in reply and
thereby opposed the motion by contending that the defendants supplies
electricity in Mumbai. According to them, the plaintiffs cannot object
them to install ADP box adjacent to suit shop as they do not have any
right, title and interest in the public footpaths. It is also contended that
the said spot has been selected after inspection and it will not create
any obstruction to pedestrians. It is also stated that the ADP Box has
been made in mild steel material. The high quality cables will be used.
The defendants want to fix ADP Box to lay cable and for low voltage
network strengthening at Perin Nariman Street. The defendants are
taking sufficient precaution for the public safety. Lastly, it is stated that
the ADP Box has already been installed and only underground cables
are to be connected. Thus, the defendants have prayed for dismissal of
the Motion.
4. By filing affidavit in rejoinder, the plaintiffs have denied
the contentions raised by the defendants. According to them, ADP Box
may be installed at the edge of footpath or dead wall of Parsi Agyari
located near the suit building. According to them, by installing the ADP
Box the width of the footpath is narrated down and it will cause
inconvenience to pedestrians.
5. Heard the Learned Advocates. Learned Advocate for the
plaintiff has relied on the photographs and submits that the ADP Box
can be shifted at alternate suitable place and the plaintiffs are ready to
bear the expenses. According to him, the installation of ADP Box would
put the suit shops in danger as drainage line passes below the same and
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there is possibility of sparking etc. He has submitted that though the
process was going on last 2/3 years since 2015, the work was started
without giving any notice to the plaintiffs. He further submits that a
foot distance from the building wall has been left by the defendants
while installing the said ADP Box.
6. On the other hand, the Learned Advocate for the
defendants made submissions in consonance with contentions raised by
the defendants. According to her, the suit itself is not maintainable. She
has relied on the letter dated 1.12.2015, by which the defendant no.3
directed the defendant no.1 for shifting ADP Boxes obstructing
pedestrian movement at various locations in 'A' ward by adopting
“pedestrians first policy” and providing encroachment free footpath. In
the said letter, it is also directed to shift the ADP Box and align them
towards compound walls. It is observed in the said letter that some
ADP Boxes caused obstruction to the movement of the pedestrians as
they situated either between footpaths or along curb line. She has also
relied on certain photographs showing installation of the ADP Box. near
suit shops. Lastly, she has submitted that the defendant no.1 and 2 are
solely responsible for taking safety of the public at large and therefore,
they are using best material for installation of such ADP Box and
choosing the location thereof. According to her, the ADP Box has been
fixed where the old supply life of the plaintiff is found and the same box
has been fixed for the purpose of supplying additional load to the
building where the suit shops are located.
7. In reply, the Learned Advocate for the plaintiffs submits
that no loss would be caused to the defendants, if the ADP Box is shifted
on the edge of the footpath.
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8. Considering the rival submissions made by the respective
advocates and the copies of documents placed on record, the following
points are decided for the reasons stated below:
SR.
NOS.
POINTS FINDINGS
1 Whether the plaintiffs have made out a prima
facie case?
In the negative.
2 Whether the points of balance of
convenience, hardship and irreparable loss lie
in favour of the plaintiff?
In the negative.
3 Whether the plaintiffs are entitled to the
reliefs of interim injunction as prayed for?
In the negative.
REASONS
As to point nos.1 to 3.
9. Prima facie it is undisputed that the plaintiffs are doing
their respective business of paper at the shop nos.1 and 2 on the ground
floor of the said building. As depicted in the photographs filed by both
the parties that there is a portion of wall between two shops. It is also
prima facie undisputed that the width of the footpath located in front of
both the shops is about 5 to 6 feet. It is also undisputed that the
defendants have already installed the ADP Box at the place available
between both the shops on the footpath leaving a distance of about 1
and ½ feet and the cable are yet to be joined.
10. Prima facie from the photographs filed by both the parties,
it does not appear that by the foundation of the ADP Box there is any
obstruction to the drainage line. Though, it appears from the
photographs of the fascia of the said building, some pipe line is
descending from upper floors, there is nothing on record to show prima
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facie it joins the underground drainage. Moreover, considering the
location of the ADP Box has installed by the defendants, it appears that
it is fixed at an open space on the footpath between shop nos.1 and 2
adjacent to wall. Therefore, prima facie it would not obstruct the
ingress and egress of the respective plaintiffs or movement of the goods
or customers from their respective shops.
11. So far as the apprehension expressed by the plaintiffs about
the sparking or short circuit etc. is concerned, the plaintiffs are also
having electricity connection inside their shops and they are using the
same. Therefore, it appears prima facie that the plaintiffs are striking
the ground in the fear of snake, and that too, when it is not there. The
defendants are solely responsible for safe and secured supply of
electricity through the said ADP Box.
12. So far as the submission made by the Learned Advocate for
the plaintiff for shifting the ADP Box at the edge of footpath is
concerned, it would be an obstacle for the public at large and also for
the vehicles and more particularly for the plaintiffs, who may be
required to park vehicles for unloading the goods and shift in their
respective shops.
13. So far as the submissions for fixing the ADP Box at the
place near Parsi Agyari is concerned, the plaintiffs cannot dictate the
manner to public authorities to employ their policies, only on the
apprehension that the ADP Box would prove hazardous or an obstacle
to their movements. It is submitted by the plaintiffs that the place where
the ADP Box has been installed is not proper as it is technically wrong.
However, it is not prima facie supported by any material. Thus, some
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engineering (electric) would be involved in installing ADP Box, and
accordingly the said place would have been selected by the defendants.
Under such circumstances, the plaintiffs have failed to make out a prima
facie case. Balance of convenience and hardship are not lying in their
favour. Therefore, the plaintiffs are not entitled to the reliefs of interim
injunction as prayed for. Learned Advocate for the plaintiffs prays for
stay of the order. However, the Learned Advocate for the defendants
submits that keeping the ditch open would be dangerous to the public
at large. The motion is dismissed after hearing both the parties on
merits. By granting stay for facilitating the plaintiffs to challenge the
order would amount to obstruction in supply of public utility services,
and that too, when the plaintiffs themselves are beneficiary thereof.
Therefore, this is not a proper case to grant stay as prayed for by the
plaintiff. Thus, by answering the point nos.1 to 3 accordingly, the
following order is passed:
ORDER
1. Notice of Motion no.333 of 2018 is dismissed with costs.
Sd/
(M.S. Deshpande)
Judge,
City Civil Court, Mumbai.
Dictated on : 25/01/2018.
Transcribed on : 29/01/2018
Signed by HHJ on : 01/02/2018
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 02.02.2018 At 11.50 p.m.
NAME OF STENOGRAPHER : Mrs. V. U. Pawar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.05
Date of Pronouncement of
JUDGMENT/ORDER
25.01.2018
JUDGMENT/ORDER signed by
P.O. on
01.02..2018
JUDGMENT/ORDER uploaded
on
02.02.2018
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