Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO. 518 OF 2019
(CNR NO. MHCC010013542019)
IN
L.C. STAMP NO. 1313 OF 2019
Tarique Fazal Haque Shaikh .. Plaintiff
Versus
Brihan Mumbai Municipal Corporation & Anr. .. Defendants.
CORAM : HIS HONOUR JUDGE
SHRI K.P.NANDEDKAR
(C.R.NO.11)
DATE : 15 th MARCH 2019
Mr. Sagar Batoria, ld. adv. for plaintiff.
Ms. Hajare, ld. adv. for defendant /BMC.
O R D E R
1. This N/m is taken out by plaintiff for temporary injunction
restraining defendants, their servants, agents and employees from
executing Notice bearing No. ACL/42527/Lic dated 23.01.2019.
Plaintiff has also prayed for temporary injunction restraining
defendants, their servants, agents and employees from causing any
seizure of machine or carry away articles and machines of plaintiff. In
support of Nm plaintiff has filed his affidavit contending that plaintiff is
doing the business of machinery repair, primary packing and
manufacturing of handles and plaintiff is not coming under the criteria
and meaning of section 394(1)(a)(ii) Licence. Therefore such licence
under sec. 394 is not required. According to plaintiff said fact can be
seen from Sec. 394 and its schedule. Plaintiff is carrying business of
repairing machinery, primary packing and manufacturing of handles
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and as such there is no any health hazard nor said business creates
nuisance, noise pollution. Plaintiff has also obtained licence required
for said business and therefore according to plaintiff disputed notice
dated 23.01.2019 is bad in law because by said notice defendant no. 2
has called upon plaintiff in respect of seizure of plaintiff's machine and
articles after 7 days from receipt of said order. Lastly it is contended
that if injunction will not be granted great harm, loss and prejudice will
be caused which will not be compensated in terms of money.
2. Defendants Officer Mr. Rahul Marekar has filed his affidavit
of reply contending that plaintiff has filed present suit on 23.01.2019
challenging disputed notice issued by Assistant Commissioner L Ward in
respect of suit premises i.e. gala no. 9, Abdul Rashid Compound,
Khairani Road, Sakinaka, near Masjid, Kurla West, Mumbai72. Notice
under sec. 394 of BMC Act is issued in regard to carrying on trade of
metal cutting and treating metal at notice premises without obtaining
proper licence from the licencing authority. Said trade of metal cutting
is dangerous to human life and it is dangerous to the health of persons
residing in the vicinity. Further said business is creating nuisance and
noise pollution within the meaning of sec. 394(1)(a)(ii) of BMC Act.
3. It is mentioned in the affidavit of Mr. R.R. Marekar Sub
Engineer inspected suit site on 25.06.2018 and found that plaintiff was
running factory for manufacturing metal parts without obtaining
permits under sec. 394 of BMC Act. Therefore case No.
4206942/SS/2018 was filed against plaintiff in Metropolitan Magistrate
Court, situated at Shinde wadi Dadar. In said case plaintiff was
convicted and he has paid fine of Rs. 50,000/ in the court on
05.10.2018. Even after paying the fine amount of Rs. 50,000/ plaintiff
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continued said business without licence. Hence again offence was
registered and chargesheet was filed against plaintiff. It was registered
as Case No. 4208552/SS/2018 and 4200290/SS/2019.
4. It is mentioned in affidavit of BMC Officer that at the time
of usual round of joint inspection by factory department and licence
department on 04.10.2018and 18.12.2018 BMC OfficerS Mr. Marekar,
Smt. P.P. Surve (licence Inspector), Mr. U.R. Sarvade (Licence
Inspector), it was found that plaintiff was carrying on trade of metal
cutting and treating metal at notice premises without obtaining proper
license from licensing authority. Said metal cutting and metal treating
was being done by plaintiff with the help of 3 hand press machines, one
welding machine, one grinder machine and 8 press power machines
operated on electric power. Said business was going on with the help of
2 workers.
5. It is mentioned in affidavit that on 04.10.2018 plaintiff's
worker Mr. Bind was present at notice premises and at the time of
inspection dated 18.12.2018 plaintiffs worker Mr. Arvind Yadav was
present at notice premises. Hence inspection report was prepared by
above referred officers and it was issued to plaintiff, thereby plaintiff
was directed to produce valid licence under sec. 394 of BMC Act within
period of 7 days Further plaintiff was also intimated that if licence
conditions are not rectified, the legal action will be initiated against
plaintiff under sec. 394(4)of BMC Act. Said inspection report was
accepted by above referred workers on behalf of plaintiffs and those
workers gave their acknowledgment on the same by putting their
signatures. Inspite of issuing inspection report plaintiff continued to
carry on his business without licence under sec. 394 of BMC Act and
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permit under sec. 390 of BMC Act. Plaintiff has failed to produce such
licence and permit. Inspection report was put up before Assistant
Commissioner of L ward who has issued disputed notice to plaintiff.
Plaintiff was informed that on failure of compliance of said notice action
will be initiated against plaintiff in respect of suit premises. Said
notice was accepted by plaintiff on 23.01.2019 and plaintiff gave his
acknowledgment by putting his signature upon it. According to BMC
Officer plaintiff has failed to make out prima facie case. Balance of
convenience does not lie in favour of plaintiff and plaintiff will not
suffer any loss if NM is disposed of. Hence according to
defendant/BMC plaintiff is not entitled to relief of injunction.
6. Heard plaintiff's advocate Mr. Sagar Batoria and
defendant's advocate Mrs. Hajare at length. Plaintiff's advocate has
referred Sec. 394 of BMC Act and argued that Section 394 is applicable
to the articles mentioned in part I of schedule M being an article which
in the opinion of State Government is of so dangerous character that it
is expedient in the interest of public safety, having regard to the density
of population and relevant factors. Part I of schedule M provides for
the articles which shall not be kept without licence in or upon any
premises. He has argued that group I of part 1 of schedule M is related
to gun powder (blasting powder). While referring disputed notice it is
argued that said notice is issued under sec. 394 (1)(a)(ii). However it is
pointed out that Sec. 394(1)(a)(ii) is applicable to articles specified in
Part II of Schedule M, in excess of the quantity therein specified as the
maximum quantity. Plaintiff's advocate referred schedule M part II
which refers to Aqwanite, Aquarex, Aquaram, Gn1, Powerflow1,
Powerflow2, Powerflow3, Nobe lite, Pulverex, Aquadyne, Aquanal,
Godyne, Supergel MarinexG, AquandyeII 1975 etc. By referring
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above part of schedule M it is argued that section 394 (1) (a)(ii) is
applicable to the articles referred in group II part 1 of schedule M. Thus
according to plaintiff's advocate disputed notice is invalid because Sec.
394(1)(a)(ii) is not applicable to plaintiff's business. When plaintiff's
advocate was arguing for ad interim relief the Court has raised the
query that whether plaintiff is having valid licence as on today for
carrying on metal cutting for handle manufacturing. Thereupon,
plaintiff's advocate submitted that he will have instructions from
plaintiff. At the time of argument on 20.02.2019, plaintiff's advocate
argued that after issuing disputed notice plaintiff has filed application
for licence under sec. 394 of BMC Act. The roznma dated 20.02.2019
shows that I have carefully perused copy of application and I have
observed that it is mentioned by plaintiff in said application that
plaintiff has not obtained licence under sec. 394 of BMC Act. It was
argued by plaintiff's advocate that in suit premises only 2 workers of
plaintiff are working hence suit premises cannot be referred as factory
and licence under sec. 394 of BMC Act is not necessary.
7. Defendant's adv. argued that for running a business
referred in sec. 394 of BMC Act plaintiff has to take necessary
permission as mentioned in BMC Act. Defendant's advocate referred
page no. 38 of the plaint which is inspection report and argued that said
report shows that on 04.10.2018 suit premises was inspected.
According to defendant's advocate disputed notice was not issued all of
sudden. Plaintiff was directed by inspection report to produce licence
under sec. 394 of BMC Act to avoid legal action. Inspite of it plaintiff
failed to produce such licence. Another inspection report which is at
page no. 39 of the plaint is also referred by defendant's advocate. While
referring page no. 42 to 45 of plaint, it is argued on behalf of defendant
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that for not possessing valid licence under BMC Act complaints were
filed against plaintiff in 42nd MM Court, Shinde Wadi, Dadar, Mumbai
and it is argued that page no. 44 and 47 of the plaint show that plaintiff
was convicted in those cases and therefore plaintiff has paid fine of Rs.
50,000/ and cash bail deposit of Rs. 7000/ in said Court. It is argued
that inspite of imposing penalty by MM Court, plaintiff has not obtained
licence under sec. 390 and 394 of BMC Act.
8. I have given serious consideration to the arguments
advanced at bar. Admittedly plaintiff has pleaded guilty and therefore
he was convicted by MM Court for not possessing valid licence for metal
cutting business. Once plaintiff has admitted his guilt and when he has
admitted his criminal liability, I find that plaintiff cannot commit the
offence of running the metal cutting business by obtaining injunction
from this Court. In the pendency of this suit plaintiff has filed on line
application for licence under sec. 390 and 394 of BMC Act.
9. On careful perusal of clause (u) of part IV of schedule M of
BMC Act it becomes clear that for running a metal cutting business or
for running a business for treating metal by hammering, drilling,
pressing, filing, polishing, heating or any other process whatever or
assembling parts of metal and manufacturing articles of metal the
licence as provided by sec. 390 and 394 of BMC Act is necessary and for
application of clause (u) part IV of schedule M of BMC Act, sec. 394(1)
(e) (i) is applicable. It seems that plaintiff has admitted his guilt in
respect of not obtaining such licence and plaintiff is taking benefit of
the fact that disputed notice is issued by BMC under sec. 394(1)(a)(ii).
Actually the notice under sec. 394(1)(e)(i) was necessary to be issued
by BMC Officers but for such a typing mistake plaintiff cannot be
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protected by civil Court for committing the offence for which he has
already pleaded guilt and for which he had already paid the fine
amount. The online application filed by plaintiff for the licence under
sec. 394 of BMC Act is pending before BMC and said application is
submitted by plaintiff in the pendency of this suit and after pleading the
guilt before M.M. Court. Decision about said online application is
expected to be taken by BMC at the earliest. Hence even though this
Court cannot grant relief of injunction in favour of plaintiff I find that
for getting the licence, if plaintiff is entitled to it, BMC can be directed
to take decision about online application submitted by plaintiff till the
end of March 2019 and till then BMC can be directed to restrain itself
from executing disputed notice. Hence I proceed to pass following
order.
O R D E R
1. N/m No. 518/19 stands dismissed/ disposed off.
2. However BMC is directed that on or before 31.03.2019, BMC
should take decision about online application if any submitted by
plaintiff for obtaining licence under sec. 390 and 394 of BMC Act and
till then BMC should not enforce disputed notice. If BMC will be unable
to issue the licence under sec. 390 and 394 of BMC Act for legal
requirement of BMC Act, BMC can enforce disputed notice after
31.03.2019.
3. If licence under sec. 390 and 394 of BMC Act will be issued in
favour of plaintiff, BMC should inform the Court on next date so that
plaintiff can withdraw this suit.
(K.P.Nandedkar)
Judge,
City Civil Court,
15/03/2019 Gr.Bombay
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF Steno
19/03/2019 3.45p.m. Y.S. Patil(H.G.)
Name of the Judge HHJ Shri K.P.Nandedkar (CR No.11)
Date of Pronouncement of
Judgment/Order
15/03/2019
Judgment/order signed by P.O on 19/03/2019
Judgment/order uploaded on 19/03/2019
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