Order 1

Order Details: Notice of Motion
Pdf Text: 1 N.M. No.874 of 2018
CNR: MHCC010030092018
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
NOTICE OF MOTION NO.874 OF 2018
IN
L.C.SUIT NO.756 OF 2018
Dindayal Jamunaprasad .. Plaintiff
V/s.
1 Municipal Corporation of
Greater Mumbai & Anr. .. Defendants
Appearance:
Adv. K. M Singh for plaintiff.
Adv. Pradeep M. Patil for defendant /MCGM.
CORAM : HER HONOUR ADHOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.05).
DATE : 03/05/2023.
ORDER
1 Plaintiff has taken out this Notice of Motion for temporary
injunction thereby restraining the defendants from taking action
pursuant to the impugned notice bearing No.ACA/36295/Lic
dt.12/2/2018 issued by defendant No.2 till final disposal of the suit.
2 It is pleaded that the plaintiff is running business of selling
Parched grams and peanut stall at the junction Soorji Vallabhdas Road,
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Jamdar Bapu Laxman Chawk, Sport Road, Mumbai. He is holding
Sq.Pitch/TMP/Stall licence bearing No.795303095 issued in the year
1999 and running business from the above address without interruption
for his livelihood. In a surprise way, the defendants issued impugned
notice on dt.12/2/2018 for vacating and shifting said stall immediately
due to the beautification of heritage building of Custom sanctioned by
defendant No.2 under defendant's notification. Said notice is illegal,
unjustified and unwarranted as the plaintiff is regularly paying license
fee without any delay and his structure do not cause any obstruction to
public. The impugned notice is illegal and if the same is acted upon, it
may cause great harm and prejudice to the plaintiff as his family is
totally dependent upon the income from said stall.
3 The plaintiff submitted that it is settled position of law
that the stalls cannot be allowed to be shifted to other places under
whatever circumstances in non hawking zone. The proposed place of
shifting is commercially not viable place. Plaintiff is not ready to accept
the same. Hence, the plaintiff prayed for grant of temporary injunction
against the illegal and arbitrary impugned notice of defendant No.2.
4 The defendants have filed reply contending that the
Superintendent of Custom(P) requested the officer of defendants by
letter dt.27/09/2017 to shift the license hawkers on the footpath of
New Custom House to other places so that the beautification of
foothpath around New Custom House can be carried out. The officer of
defendants put the proposal of shifting the licensed hawkers to Wilson
Road and the same has been approved by the Municipal Commissioner.
The new place of shifting is not more than 100 mtrs from the original
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site of plaintiff's pitch. There will be no loss to the plaintiff, if his stall
has been shifted to that place. New Custom House is a heritage building
and therefore, the beautification proposal has been sanctioned by the
competent authority. Above all, it is stated that as per special
conditions for squatter, if it is required for repairs, construction or other
municipal purposes, the licensee shall vacate the allotted area within 24
hours. The defendants have not cancelled the license given to the
plaintiff. They propose the shifting of the same. Hence, neither prima
facie case nor balance of convenience lies in favour of plaintiff. Hence,
defendants prayed for dismissal of notice of motion.
5 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 is
dismissed.
REASONS
AS TO POINT NOS.1 TO 3.
6 All these points are interlinked with each other, hence, for
the sake of convenience and to avoid repetition of certain points, all are
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discussed simultaneously.
7 Heard Adv. for plaintiff and Adv. for defendant Corporation
at length. Perused the Notice of Motion, affidavit in support of Notice
of Motion, plaint and the documents annexed to the plaint, compilation
of documents of plaintiff, his rejoinder, reply of defendant Corporation
and the documents filed by them. I have also gone through the ratio of
authority cited by Adv. for plaintiff in the case of Maharashtra Ekta
Hawkers Union v/s. Municipal Corporation Greater Mumbai in Civil
Appeal No.41564157 of 2002 to Civil Appeal No.41754176 of
2002 in which the guidelines regarding license and shifting of street
vendors as well as the scheme for hawkers, squatters and vendors have
been drafted.
8 Plaintiff has produced the copy of his hawkers license,
receipt of license, registration certificate, photographs of suit stall and
the impugned order dt.12/2/2018 directing him to shift the stall to SS
Tolani(Wilson Road).
9 The defendants have produced the copy of sanction papers
of Municipal Commissioner.
10 During course of arguments, the Adv. for plaintiff made
submission that Town Vending Committee is not formed and hawkers
zone are yet not formulated by the Corporation in compliance of the
orders of Hon'ble Apex Court. The shifting and relocation is to be done
only after following due process of law and said due process of law is
not followed by the defendants. Therefore, the notice action is bad in
law.
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11 It is pertinent to note that defendants have produced all
relevant documents showing sanction of competent authority i.e.
Municipal Commissioner for shifting of plaintiff's squatter's stall from
the present spot to the proposed place at Wilson Road. The sanction
document dt.7/12/2017 shows that said stall alongwith other stalls in
the vicinity were proposed to be shifted for the purpose of beautification
of the Custom Office area which has been considered as heritage
building. It transpires from the sanction papers that the shifting of stall
has been considered for the public project and scheme of beautification
of heritage building. It is not the case that the license of plaintiff is
cancelled. The defendants by way of said sanction only proposed the
shifting of stall that too within the distance of 100 mtrs. The plaintiff
has not placed any document on record to show that the proposed place
of his hawking activity is at the distance more than 100 mtrs from his
locality and in said locality, his business activity will get suffered. The
question regarding irreparable loss is not satisfactorily explained by the
plaintiff. Per contra, all the documents produced by the defendants
shows that the defendants have followed due process of law and also
made compliance of the guidelines given by Hon'ble Apex Court in the
cited supra. Nothing contrary has been established by the plaintiff
calling for interference in the notice action proposed by the defendants.
12 Hence, considering the aforesaid discussion, I have arrived
at the conclusion that plaintiff miserably failed to establish existence of
prima facie case in his favour. There is nothing on record to suggest
that the defendants are trying to remove his stall from the place of
business without following due process of law. In said circumstances,
even the balance of convenience does not lie in favour of plaintiff.
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Therefore, the question of irreparable loss in case of compliance of
demolition of notice action does not arise. Hence, I have answered point
No.1 to 3 in the negative as 'No'.
AS TO POINT NO.4:
13 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.874 of 2018 is dismissed
3 Notice of Motion is disposed off.
Date:03/05/2023.
(A.H.KASHIKAR)
ADHOC Judge, City Civil Court,
Dictated on :03/05/2023. Gr.Mumbai.
Typed on :03/05/2023.
Signed on :03/05/2023.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
04/05/2023 03.50 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
03/05/2023.
JUDGMENT/ORDER signed by P.O.on 03/05/2023.
JUDGMENT/ORDER uploaded on 04/05/2023.
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