Final Order 2

Order Details: Notice of Motion
Pdf Text: 1 N/M. No.1070/20 (L.C.S. No.544/20)
MHCC010030612020
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION No.1070 OF 2020
IN
LONG CAUSE SUIT No.544/2020
Vinodkumar s/o. Ratanchand Surana
& 3 Ors. … Plaintiffs
- Versus -
Municipal Corporation of
Greater Mumbai & 2 Ors. ... Defendants
Appearance :-
Mr. Manmohan Rao, Advocate for plaintiffs.
Mr. Om Suryavanshi, Advocate for defendants.
CORAM : S. H. SALUNKHE,
AD-HOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 06/01/2024.
O R D E R
. This is suit for declaration that the plaintiffs are existing
hawkers under The Street Vendors (Protection of Livelihood and
Regulation of Street Vending) Act, 2014 (in short The Street Vendors
Act), for declaration that the plaintiffs are voters for election of Town
Vending Committee (in short T. V. C.), for declaration that the procedure
adopted by the defendant B. M. C. to select T. V. C. is illegal and bad-in-
law and for injunction restraining defendant B. M. C. or anybody
through it from evicting/relocating or dispossessing and/or prohibiting
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the plaintiffs from carrying trade as street vendors and they have taken
out present Notice of Motion for temporary injunction under Order-
XXXIX Rule-1 of The Code of Civil Procedure (in short the C. P. C.)
restraining defendant B. M. C. from evicting/relocating or dispossessing
and/or prohibiting the plaintiffs from carrying trade as street vendors.
2] In brief facts of the plaintiffs' case are as under :-
The plaintiffs are existing street vendors and carrying on
business of ready made clothes and leather goods etc. on footpath in
M/West ward on since prior to 1/5/2014. Defendant B. M. C. is not
properly implementing Street Vendors Act. Defendant No.2 is the
Chairman of the alleged T. V. C. and defendant No.3 is Assistant
Commissioner of M/West ward where the plaintiffs are carrying out
trade.
3] The plaintiffs are having various documents i.e. receipts of
payment of penalty made to B. M. C. towards encroachment on public
place prior to 1/5/2014. The footpath upon which the plaintiffs are
carrying on street vending business is more than 10 feet. The plaintiffs
are carrying on business as street vendors since prior to cut off date of
1/5/2014 and they are protected as existing vendors under Section 3 of
The Street Vendors Act. However, defendant No.3 is illegally taking
action, levying fine and prohibiting the plaintiffs from carrying on trade.
It is further contended that in spite of coming into force The Street
Vendors Act in the State of Maharashtra and the notification dated
1/12/2015, wherein, time has been provided for formation of T. V. C.,
the Corporation has not implemented the said Act. It is further stated
that after coming into force the Street Vendors Act only the T. V. C. is
having power in respect of street vending and the regulations thereof
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and defendants No.1 and 3 have no powers to take action against the
plaintiffs in view of the Section 33 of The Street Vendors Act. The
provisions of the Street Vendors Act are having overriding effect on any
other law. Therefore, defendants No.1 and 3 cannot take action against
the plaintiffs, who are existing street vendors. However, defendants
No.1 and 3 have violated the orders of the Hon'ble Apex Court and
Hon'ble High Court and the provisions of The Street Vendors Act and
took illegal actions by imposing fine and threatening to evict the
plaintiffs. Therefore, the plaintiffs have constrained to file suit and
taken out present Notice of Motion.
4] The defendant/B. M. C. resisted Notice of Motion by filing
reply. At the outset, it is stated that the suit is not maintainable for want
of statutory notice under Section 527 of The Mumbai Municipal
Corporation Act (in short the M. M. C. Act). The plaint discloses no
cause of action against defendant, therefore, suit is not maintainable.
The Hon'ble High Court in its order dated 24/3/2017 directed the
M.C.G.M. to frame policy guidelines, for intervening period i.e. till
implementation of The Street Vendors Act. The M. C. G. M. has carried
out survey of hawkers from 18/7/2014 to 13/8/2014. The plaintiffs are
carrying on street vending activities in hawking zone but they have not
filled form as required by the policy of the M. C. G. M. The plaintiffs are
not eligible as per the policy of the M. C. G. M. The plaintiffs are not
authorized hawkers and they are illegally carrying on street vending
activities contrary to the provisions of the M. M. C. Act and the
guidelines of the Hon'ble Apex Court and Hon'ble High Court.
Defendant B. M. C. has framed the policy as regards to removal of
hawkers in the intervening period till implementation of The Street
Vendors Act. The State Government has framed rules as per Section 36
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of The State Vendors Act on 3/8/2016 and formulated the scheme on
9/1/2017. Several Public Interest Litigations have been filed before the
Hon'ble High Court claiming protection under the Street Vendors Act,
stating that no street vendor shall be evicted till the certificate of
vending is issued by T. V. C. The Hon'ble High Court in its order dated
24/3/2017 directed the M. C. G. M. to frame policy as regards to
removal of hawkers in the intervening period i.e. till the provisions of
the Act, Scheme and Rules are implemented by the Authorities,
mentioned in the said Act. The Corporation has carried out survey of
hawkers during 18/7/2014 to 13/8/2014 and the Hon'ble High Court
in Writ Petition No.224 Of 2011 and Public Interest Litigation No.36 Of
2010 clarified that protection will be applicable to street vendors, who
are carrying on business as on 1/5/2014. In the backdrop of above
referred facts and order passed by the Hon'ble High Court dated
24/3/2017 and the directions of the Hon'ble Apex Court and Hon'ble
High Court shall be enforce till implementation of the provisions of The
Street Vendors Act.
5] The Corporation has carried out survey in M/West ward
and received 2,775 applications and out of which 364 hawkers were
held eligible. As per the guidelines of the M. C. G. M. there are 32
hawking zone in M/West ward but the plaintiffs are carrying on street
vending activities in non-hawking zone in contravention of the
guidelines of the Hon'ble High Court. The plaintiffs are doing street
vending activities in non-hawking zone declared by the M. C. G. M. and
not complying the conditions as per the guidelines framed by it.
6] The Hon'ble High Court in Writ Petition No.652 Of 2017
directed to take action against hawkers carrying on hawking activities
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within area of 150 meters from railway station. The plaintiffs are
carrying on street vending activities on footpath of N. J. Acharya Marg
near Chembur railway station. The plaintiffs are not authorized hawkers
and they are illegally doing the business in non-hawkers zone contrary
to the provisions of the M. M. C. Act and the guidelines of the Hon'ble
Apex Court and Hon'ble High Court. On these grounds, defendant
B.M.C. prayed for dismissal of Notice of Motion.
7] Points for determination alongwith findings thereon for the
reasons are as under :-
Sr.
No.
P O I N T S F I N D I N G S
1) Whether plaintiffs have made out
prima facie case ? . . . No.
2) Whether balance of convenience lies
in favour of plaintiffs ? . . . No.
3) Whether plaintiffs would suffer
irreparable loss if temporary
injunction is refused ? . . . No.
4) What order ? . . . Notice of Motion is
dismissed.
- :: R E A S O N S ::-
AS TO POINTS No.1 TO 3 :-
8] The plaintiffs have relied upon affidavits, letter of Assistant
Law Officer of the B. M. C. dated 21/11/2017, circular dated
9/10/2017 issued by The Urban Development Department, letter dated
6/2/2018 and order conducting lottery etc.
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9] Defendant B. M. C. produced on record copies minutes of
meetings, letter dated 11/1/2018, inspection report, photographs etc.
10] Learned advocate for the plaintiffs filed written arguments.
Learned advocate for the plaintiffs submitted that the plaintiffs are the
street vendors and they are carrying on trade as street vendors since
prior to the cut off date of 1/5/2014 and as per the provisions of
Section 3 of The Street Vendors Act they are existing street vendors and
are protected and as such they cannot be evicted or relocated till the
survey of street vendors as per Section 3 (1) of The Street Vendors Act is
conducted and certificate of vending is issued by the T. V. C. He
submitted that till date the defendant B. M. C. has not carried out
survey and issued certificate of vending and election of the T. V. C. has
not been conducted as per the provisions of Section 22 of The Street
Vendors Act.
11] He further submitted that defendant B. M. C. has
nominated representatives of street vendors in violation of the
provisions of The Street Vendors Act. As such, there is violation of the
provisions of The Street Vendors Act and as per the judgment of the
Hon'ble Bombay High Court in the case of Shri Vile Parle Kelvani
Mandal and Ors. Versus Municipal Corporation of Greater Mumbai
(Writ Petition No.224 Of 2011) the existing street vendors as on
1/5/2014 are entitled for protection against eviction and relocation till
the survey as specified under sub-section (1) of Section 3 of The Street
Vendors Act are carried out and certificate of vending is issued to street
vendors. In his submission, till date defendant B. M. C. has not
conducted election of T. V. C. and not carried out survey as provided
under Section 3 of The Street Vendors Act. However, the Corporation is
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illegally taking action by imposing penalty and obstructing the plaintiffs
from carrying out their trade. Therefore, the plaintiffs are entitled for
the relief of temporary injunction as prayed.
12] Learned advocate for the plaintiffs relied upon judgment of
the Hon'ble Apex Court in the matter of Maharashtra Ekta Hawkers
Union and another Versus Municipal Corporation, Greater Mumbai and
others (Civil Appeal Nos.4156-4157 Of 2002) to submit that all the
existing street vendors operating across the country are entitled to carry
on trade as per the policy of 2009 till the appropriate legislation is
enacted by the Parliament. He further relied on the judgment of the
Hon'ble High Court in the matter of Azad Hawkers Union and 4 others
Versus Union of India and 3 others (Writ Petition No.652 Of 2017) to
submit that the Corporation has not elected T. V. C. and carried out
survey. Advocate for the plaintiff further relied upon judgment of the
Hon'ble High Court in the case of Motilal Mahadev Sharma and others v.
Municipal Corporation of Greater Bombay (First Appeal No.970 Of
1998) to submit that when the plaintiff wants to seek immediate relief
from the Court in the form of injunction, it is not necessary for him to
issue statutory notice or wait till the statutory notice is served and the
period prescribed under Section 527 of the M. M. C. Act is over. He
further relied on the judgment of the Hon'ble Apex Court in the matter
of Secretary Hailakandi Bar Association, Hailakandi Versus State of
Assam And Anr. [WP (Cri.) 209 Of 1993] and judgment of the Hon'ble
Allahabad High Court in the matter of State of U. P. through Collector
Agra and Another Versus Ramesh Chandra Gupta and Others (Second
Appeal Defective No.126 Of 2005) and Virendra Kumar Versus Union of
India and others (Writ C No.33700 Of 2021). He also relied judgment of
the Hon'ble Apex Court in the case of Kailash Mangal Versus (Criminal
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Appeal No.240 Of 2015) to submit that the person who files false
affidavit in judicial proceeding renders himself liable for contempt of
Court.
13] On the other hand, learned advocate for defendant B. M. C.
submitted that the present suit is nothing but an abuse of process of
law. It is submitted that the Hon'ble Bombay High Court in Azad
Hawkers Union Versus Union of India (Writ Petition No.652 Of 2017)
held that the survey conducted by defendant B. M. C. should be
considered as first survey as contemplated under sub-section (1) of
Section 3 of the said Act and also held that in pursuance of the
directions of the Hon'ble Apex Court in Maharashtra Ekta Hawkers
Union and another Versus Municipal Corporation, Greater Mumbai and
others (supra) the B. M. C. has constituted T. V. C. In his submission, the
Hon'ble Bombay High Court held that the first survey carried out the
B.M.C. is treated as a first survey and approved the establishment of
T.V.C. as per the policy of 2009. He further submitted that T. V. C. has
been established as per the policy of 2009 and meetings of T. V. C. has
been held and as per the survey list of eligible vendors has been
prepared by the B. M. C. Learned advocate for the B. M. C. submitted
that the plaintiffs are not licenced hawkers however, they are carrying
on street vending activities in non-hawking zone. He submitted that
under the garb of existing hawkers the plaintiffs cannot carry out street
vending activities in non-hawkers zone in contravention of the
guidelines and restrictions of the Hon'ble Apex Court and Hon'ble High
Court.
14] He further submitted that the Hon'ble Apex Court in
Maharashtra Ekta Hawkers Union and another Versus Municipal
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Corporation, Greater Mumbai and others's (supra) case passed
directions and held that street vendor can do business in area of 1 X 1
meters on one side of the footpath in such a manner that vehicular and
pedestrians traffic is not obstructed and access to shops and residents is
not blocked. However, the plaintiffs under the garb of protection of The
Street Vendors Act violating the guidelines of the Hon'ble Apex Court. In
his submission the plaintiffs have prayed for blanket injunction and
defendant B. M. C. cannot be restrained from taking action for violation
of the rules and regulations. Learned advocate for the B. M. C. relied
upon the judgment of Azad Hawkers Union Versus Union of India
(supra) to submit that the plaintiffs cannot carry out street vending
activities on non-hawking zone in violation of the guidelines of the
Hon'ble Apex Court in Ekta's judgment.
15] In the light of submissions made by learned advocates for
the parties now it is to be seen whether the plaintiffs have made out
prima facie case for grant of temporary injunction. Before going to the
merits of the case it is important to note here that the plaintiffs are
seeking injunction that they may be declared as existing hawkers and
voters of T. V. C. It is their contention that as per the judgment of the
Hon'ble Apex Court in the case of Maharashtra Ekta Hawkers Union and
another Versus Municipal Corporation, Greater Mumbai and others
(supra) the Hon'ble Apex Court laid down guidelines and policy for
street vendors and said policy was in force till the enactment of The
Street Vendors Act, 2014. It is case of the plaintiffs that they are
carrying on trade as hawkers in M/West ward since prior to the cut off
date of 1/5/2014 and, therefore, in view of the provisions of sub-clause
(3) of Section 3 of The Street Vendors Act they are existing street
vendors and protected till the first survey of the Street Vendors by T.V.C.
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which is to be elected as per the provisions of Section 22 of The Street
Vendors Act. It is further contention of the plaintiffs that defendant B.
M. C. has not conducted election of representatives of street vendors as
per the rules framed by the State Government and in violation of the
provisions of law defendant B. M. C. established T. V. C. Therefore, the
T. V. C. established by the B. M. C. be declared as illegal and void.
16] The Hon'ble Bombay High Court in the matter of Azad
Hawkers Union Vs. Union of India (Writ Petition No.652 Of 2017) held
that first survey of all the street vendors who existed on 1/5/2014 as
provided in sub-section (1) of Section 3 of the said Act shall be
conducted by T. V. Cs. which are constituted as per the policy of 2009 as
directed by the Hon'ble Apex Court in 2013 in Maharashtra Ekta
Hawkers Union and another Versus Municipal Corporation, Greater
Mumbai. Further the Hon'ble High Court held that the survey carried
out by the B. M. C. after 1/5/2014 be treated as first survey as per sub-
section (3) of Section (3) of the said Act and approved by the T. V. C.
constituted as per the policy of 2009. Thus, it appears that defendant
B.M.C. has conducted first survey of the street vendors after 1/5/2014
through the T. V. Cs. constituted as per the policy of 2009 and prepared
a list of eligible street vendors.
17] It is contention of defendant B.M.C. that the plaintiffs are
carrying on hawking activities on non-hawking zone. It is contention of
the Corporation that there are 32 hawking areas however, the plaintiffs
are carrying on street vending activities in a non-hawking zone. The
plaintiffs have prayed for temporary injunction restraining defendant
from evicting or relocating the plaintiffs. The relief of temporary
injunction is an equitable relief and cannot be granted merely on asking
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11 N/M. No.1070/20 (L.C.S. No.544/20)
by a party. As per Section 38 of The Specific Relief Act injunction may
be granted to the plaintiff to prevent breach of obligation of existing in
his favour. It is contention of the Corporation that the plaintiffs are not
licenced hawkers and they are carrying out street vending activities in
non-hawking zone. The plaintiffs have not pleaded how defendant
B.M.C. can be restrained or harassed them without following due
process of law. On the contrary, it appears that notice dated 24/1/2020
and 30/1/2020 the plaintiffs are directed to submit undertaking within
45 days. There is nothing on record that on the basis of above referred
notices the Corporation has threatened the plaintiffs or initiated action.
The plaintiffs further prayed that the Corporation be restrained from
levying fine or prosecuting the plaintiffs. However, as per Section 41 (d)
of The Specific Relief Act injunction cannot be granted restraining the
person from prosecuting any proceeding in the criminal matter.
18] The names of the plaintiffs are not listed in the list of
eligible vendors in survey carried out by the M. C. G. M. as per the
policy of 2009. Therefore, they cannot be said to be existing street
vendors and not entitled to carry out street vending activities. The
names of the plaintiffs are not find place in the list of eligible vendors
or survey carried out by T. V. C. If the plaintiffs are having grievance that
their names are not in the list of registered voters they have remedy
under Rule-15 of The Street Vendors Act by filing representation to the
Commissioner or Chief Officer and the plaintiffs can raise an objection,
which authority under the rules would bound to consider it. The
plaintiffs are praying for a blanket injunction restraining defendant
B.M.C. from removing or evicting them. The plaintiffs are not entitled
for blanket injunction as prayed. The plaintiffs are not eligible vendors
as per the survey list prepared by the B. M. C. The names of the
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plaintiffs are not in the list of eligible vendors. As such, they have
remedy as per Rule-15 of The Street Vendors Rules. Therefore, in the
circumstances they are not entitled for the protection under the Street
Vendors Act. Thus, in peculiar facts of the case, the plaintiffs have not
made out
prima facie case for granting blanket temporary injunction as
prayed.
19] I have carefully read the judgment of the Hon'ble Apex
Court in the case of Maharashtra Ekta Hawkers Union and another
Versus Municipal Corporation, Greater Mumbai And others [2014 1 SCC
490], Shri Vile Parle Kelvani Mandal and Ors. Versus Municipal
Corporation of Greater Mumbai and Ors. (Writ Petition No.224 Of
2011), Azad Hawkers Union and 4 others Versus Union of India and 3
others (Writ Petition No. 652 Of 2017). However, these judgments are
not helpful to the plaintiffs. In the case on hand, the plaintiffs have not
established that they are eligible for street vending licence or they have
applied for vending certificate as per the provisions of The Street
Vending Act. In the circumstances, the plaintiffs are not entitled for the
relief of temporary injunction as prayed.
20] Therefore, I hold that no case made out for grant of
injunction as prayed. Balance of convenience does not tilt in favour of
plaintiffs. Accordingly, I answer points No.1 to 3 in the negative and in
answer to point No.4 pass following order :-
O R D E R
Notice of Motion is dismissed.
Date : 06/01/2024. ( S. H. SALUNKHE )
Ad-hoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
19/01/2024 03:30 p.m. V. V. Kulkarni
NAME OF STENOGRAPHERUPLOAD DATE TIME
Name of the Judge (With Court
Room No.)
H. H. Judge Shri. S. H. Salunkhe,
Court Room No. 4.
Date of Pronouncement of ORDER 06/01/2024
ORDER Typed on 17/01/2024
ORDER signed by P. O. on 18/01/2024
ORDER uploaded on 19/01/2024
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