Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N.M.No.737 of 2020
CNR:MHCC01-001979-2020
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
NOTICE OF MOTION NO.737 OF 2020
IN
L.C.SUIT ST. NO.866 OF 2020
Smt. Ratanben Punjabhai Manwara .. Plaintiff
V/s.
1. The Municipal Corporation for
Gr. Bombay & Anr. .. Defendants
Appearance:
Adv. Mali for plaintiff.
Adv. Mr. Diwate for MCGM/defendant.
CORAM : HER HONOUR ADHOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR.
BOMBAY
(C.R. NO.05).
DATE : 03.08.2022.
ORDER
1 This Notice of Motion is taken out by the plaintiff for
grant of temporary injunction against the defendant Corporation.
2 The Notice of Motion is replied and strongly opposed
by the defendant No.1 and 2 in the common reply.
-- 1 of 9 --
2 N.M.No.737 of 2020
3 Plaintiff has submitted in the Notice of Motion that she
is carrying out the business of Cutlery under Licence No.1148 in
Squatters Stall admeasuring 2.745 mtrs x 0.915 mtr situated at St.
George Street near CST Railway Station, Fort, Mumbai. She has
filed this suit for declaration and injunction and for setting aside
the order of cancellation of license dt.7/12/2019 seeking
directions for the defendants for renewal of license after accepting
the license fees and restraining them from transferring or
alienating or assigning said license to third party.
4 It is said that old License No.386(new License
No.1148) was issued in the name of her husband Punjabhai
Manwara in the year 1980 by the License Department of 'A' Ward
U/s.313, 313A and 313B of MMC Act. After his death, the
license was transferred in her name on dt.13/3/2002. She
continued the business of cutlery but unable to attend said
business due to illness. Hence, she requested her brother in law
Rajubhai Manwara to look after the business and pay the license
fees in respect of disputed stall. He paid the license fees in
September 2008.
5 Later on, the plaintiff frequently visited her native
place to perform family arrangements and was unable to attend
the business personally. Meantime, on dt.1/8/2019, the original
license as well as other documents were stolen while her daughter
was travelling from Churchgate in Virar Train. After getting
-- 2 of 9 --
3 N.M.No.737 of 2020
certificate regarding loss of original documents, she contacted with
the defendant No.2 for issuance of duplicate copy of lost license.
However, thereafter only she was served with the notice
dt.7/12/2019 regarding cancellation of license and the defendants
directed her to remove the stall within two days.
6 The plaintiff made submission that she is ready to pay
the license renewal fee but the defendant No.2 has arbitrarily
cancelled her license. There is reasonable apprehension that her
license may be transferred to third party and the stall of plaintiff
may get demolished by the defendants. Hence, she has tendered
this Notice of Motion seeking directions against the Corporation
directing them to accept license fee from for renewal of license and
restraining them from transferring the suit stall in the name of
third party.
7 The defendants in their reply has specifically
contended said license was cancelled by their department for non
payment of license fees from September 2008. Further, the
Corporation had issued notice bearing No.AC/A/OD/409/LIC/
dt.7/12/2019 to the plaintiff informing her about the cancellation
of license bearing No.1148 from September 2008. Thereafter, they
have arranged the demolition programme on 13/12/2019 and
demolished the stall of the plaintiff. The photographs of the same
are also taken. It is further contended that since the license is
cancelled and stall is demolished, the present suit became
-- 3 of 9 --
4 N.M.No.737 of 2020
infructuous. The plaintiff miserably failed to establish existence of
prima facie case in her favour and therefore, Notice of Motion is
liable to be dismissed with costs.
8 From the facts and circumstances of the case, and
material placed on record, following points arose for my
determination and I have given my findings thereon with reasons
as below.
Sr.
No.
POINTS FINDINGS.
1 Whether prima facie case lies in
favour of plaintiff ? No.
2
Whether balance of convenience
lies in favour of plaintiff ? No.
3
Whether plaintiff will suffer
irreparable loss, if Notice of
Motion is not allowed ?
No.
4 What Order ? Notice of Motion
stands dismissed.
REASONS
AS TO POINT NOS.1 TO 3.
9 All these points are interlinked with each other, hence,
for the sake of convenience and to avoid repetition of certain
points, all are discussed simultaneously.
10 In order to establish the existence of prima facie case,
the plaintiff has produced certain documents on record, such as:
-- 4 of 9 --
5 N.M.No.737 of 2020
11 Photographs showing the existence of suit stall, copy of
death certificate issued by Municipal Corporation, Ahmadabad,
State of Gujarat, copy of License, copy of complaint
dt.02/08/2019, copy of certificate issued by the station house of
Borivali Railway Police Station, copy of notice dt.7/12/2019, copy
of reply dt.28/01/2020, copy of application for issuance of
duplicate license and copy of the letter dt.15/01/2020.
12 In order to combat the Notice of Motion and
substantiate the contentions raised in the reply the defendant has
produced the proposal of dt.5/12/2019 for cancellation of license
No.1148, the copy of license alongwith details dt.25/11/2019, the
circular of years 2008, 2009, the notice dt.7/12/2019 and the
photographs of demolition dt.7/12/2019, 13/12/2019 and
18/1/2020.
13 It is pertinent to note that the plaintiff has challenged
the act of defendant Corporation cancelling her license bearing
No.1148. the Corporation has come up with the case that said
license has been cancelled for non payment of license fee since
from the year 2008. It is the vital aspect visible from the record
the suit has been filed in the year 2020 for renewal of license and
setting aside the order for cancellation of license dt.7/12/2019.
No doubt, the order for cancellation of license has been passed
just prior to filing of the suit. But at the same time, the plaintiff
has not disputed this fact that the license fee has not been paid
-- 5 of 9 --
6 N.M.No.737 of 2020
since from September 2008. It is for the plaintiff to prove the
circumstances under which she could not pay the license fee and
the perversery or arbitrariness in the notice action taken out by the
defendant.
14 As said above, the plaintiff has produced the
photographs of disputed stall, the copy of license and the
complaint moved by her daughter to police station for loss of bag.
However, on perusal of these documents, it is not satisfactorily
come on record as to why the license fee remained unpaid for the
long period of 12 years. The plaintiff herself has averred in the
suit plaint that due to her illness and frequent visits to her native
place, she could not personally attend the business run in the suit
stall. It means that though she was the licensed stall holder, she
did not care to look after the business personally. The rules and
regulations for grant of licence mandatorily requires the licensed
holder to run the business personally and he cannot appoint or ask
any person as a care taker to run the business. Even said fact has
not been brought to the notice of Corporation that the stall was
being run by her brother in law. Above all, the plaintiff herself
made submission in the plaint and Notice of Motion that she is not
aware whether the care taker named Rajubhai Manwara paid the
license fees since 2008 or not. It is very surprising that since from
the year 2008, till the year 2019, she kept mum and did not care
whether license fees has been paid or not and whether the
business is being run on the stall or not. This conduct of plaintiff
-- 6 of 9 --
7 N.M.No.737 of 2020
makes it clear that she has not come with clean hands before the
Court.
15 Above all, the record shows that the plaintiff miserably
failed to justify the reason of non attending the business
personally. The record shows that the license has been cancelled
by the Corporation for non payment of license fees. It is not the
provision of law that the Corporation is required to issue a demand
for payment of license fees. Per contra, once license is granted, it
is for the license holder to pay the license fee regularly as per the
stipulations made in the license. Here, it reveals that the plaintiff
miserably failed to justify her act of non payment of license fees for
a long period of 12 years. Now she cannot claim equity from the
defendant where she herself was slept over her own right and
duty. Above all, the Corporation's advocate has pointed out that
there is no provision for allowing any third person or relative to
conduct the business activity from the stall allotted to the license
holder. The plaintiff herself has averred that the suit stall has not
personally run by her. Above all, the defendants have pointed out
that the suit stall has been demolished by them after issuance of
notice U/s.314 of the MMC Act.
16 Hence, in such circumstances, I hold that the plaintiff
miserably failed to establish existence of prima facie case in her
favour. The record shows that balance of convenience does not lie
in her favour. Above all, it transpires from the record that since
-- 7 of 9 --
8 N.M.No.737 of 2020
from the year 2008, or even prior to that, the plaintiff stopped
conducting business from the suit stall and gave business to third
party. It shows that she is not getting earning from the suit stall.
In such circumstances, even if the injunction is not granted, the
plaintiff would not suffer any irreparable loss. Hence, considering
the aforesaid discussion, I hold that the plaintiff miserably failed to
establish the essential ingredients required for grant of temporary
injunction. Hence, I have answered point No.1 to 3 in the negative
as 'No'.
AS TO POINT NO.4.
17 In view of negative findings as to point Nos.1 to 3, I
hold that the Notice of Motion is liable to be dismissed. Hence,
following order is passed.
ORDER
1 Notice of Motion No.737 of 2020 is dismissed.
2 Notice of Motion is disposed off.
Date:03/08/2022.
(A.H.KASHIKAR)
ADHOC Judge, City Civil Court,
Gr.Mumbai.
Dictated on :03/08/2022.
Typed on :03/08/2022.
Signed on :04/08/2022.
-- 8 of 9 --
9 N.M.No.737 of 2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
06/08/2022 6.00 p.m. (Santosh B. Sawant )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
No.)
HHJ Smt. A.H. Kashikar
(C.R.No.05)
Date of Pronouncement of
JUDGMENT/ORDER
03/08/2022.
JUDGMENT/ORDER signed by
P.O.on
04/08/2022.
JUDGMENT/ORDER uploaded on 06/08/2022.
-- 9 of 9 --