Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N.M.No.905 of 2018
CNR:MHCC01-003102-2018
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
NOTICE OF MOTION NO. 905 OF 2018
IN
L.C.SUIT NO. 228 OF 2018
Irfan Kamil Shah Quershi .. Plaintiff
V/s.
Municipal Corporation of
Greater Mumbai .. Defendant
Appearance:-
Adv. Neha Pandey h/f Adv. Ashok Saraogi for plaintiff.
Adv. G. V. Jawale for MCGM.
CORAM : HIS HONOUR ADDL. SESSIONS JUDGE
SHRI. R. M. MISHRA
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.05).
DATE : 10/10/2024.
ORDER
By this Notice of Motion, the plaintiff has prayed for
directing the defendant to accept the licence fees in respect of licence
No.12432 on such terms as this Court may deem fit and proper, pending
the hearing and decision of the suit.
2 In the light of respective submissions, I have gone through
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the respective pleadings and copies of documents on record. Claiming
himself in the occupation and possession of the suit premises, the
plaintiff has come with a case that the suit premises has been described
in the rough sketch attached with the plaint alongwith photographs of
the suit premises. Originally one Mrs. Fatima Umar Kapadia was issued
the licence for conducting business from the said stall situated at Grant
Road, Cross Lane, M.S. Ali Road, Mumbai. At the relevant point of time,
Mrs. Fatima Umar Kapadia was assisted by the plaintiff for conducting
the said business. Thereafter on 08/05/2006, Mrs. Fatima Umar
Kapadia transferred all her rights in the suit premises including licence
in favour of the plaintiff by executing sale deed in favour of the plaintiff.
She had also sworn affidavit dt. 08/05/2005 transferring of her rights
in the suit premises in favour of the plaintiff.
3 In the year 2006 itself, the plaintiff made an application to
the defendant for transferring the licence of the said stall in his name by
letter dt. 06/06/2006. Identical letter was also issued by Mrs. Fatima
Umar Kapadia for transferring the said licence of the suit premises in
the name of the plaintiff. The office of the defendant directed the
plaintiff to file the affidavit in respect thereof. Accordingly, the plaintiff
filed affidavit dt. 08/05/2006 in the office of the defendant. The
plaintiff also produced copy of ADHAAR Card pertaining to his identity.
Since 2006, the plaintiff has been regularly taking follow-up of the said
matter. As per the policy of the defendant, such licence is transferable.
However, the defendant has failed and neglected to consider the said
application. The plaintiff is carrying on his business in the suit premises
and he is also making payment of rent regularly to the defendant. Mrs.
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Fatima Umar Kapadia expired somewhere in the 2016 leaving behind
the plaintiff as the only legal representative though he is not related to
her. The defendant has stopped collecting the rent of the suit premises
from the plaintiff and also failed to consider the transfer of licence of
the suit premises in the name of the plaintiff. The plaintiff, therefore,
filed this Notice of Motion in terms of prayer clause (a).
4 The defendant/MCGM resisted the Notice of Motion mainly
on the ground that the defendant had allotted Pitch Licence No.
795376713 (12432) to Smt. Fatima Umar Kapadia for the sale of
Hosiery Readymade clothes to carry out the buisness at Grant Road,
Cross Lane on an area of 2.00m x 1.00 m. As per the condition of the
licence, the licensee should personally conduct the business and should
not allow the third person to carry out the business. Moreover, the
licensee should not sale any other commodity except as mentioned in
the licence and should not encroach upon the road and should carry out
the business within the area allotted to him. However, on routine
inspection, the officer of the defendant visited the suit site on
19/07/2017 and found some other person other than licensee carrying
the business on the said stall. At that time, licence was not produced
and it was found that some other business was being carried and some
excess area found to be used by putting wooden plank for keeping cut
fruit and juice by erecting plastic Tarpaulin shed. No any receipt about
payment of licence fees was produced. On inquiry, it came to know from
the neighboring stall owners that the licensee Mrs. Fatima Umar
Kapadia is expired. Hence, the defendant directed the plaintiff to close
the said business and to remove the stall immediately. The concerned
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officer prepared inspection report and duly served to the person who
was present there and running the business of cut fruits and juices.
Thereafter, Sr. Inspector, Licence, D Ward called detailed information
from the Head Clerk, Revenue Department, D Ward regarding the
aforesaid licence. Accordingly, by letter dt. 23/01/2011, Head Clerk,
Revenue Department, D Ward intimated that the licensee has paid
monthly rent upto March 2016 and thereafter, the rent is outstanding
till 2018. As per the policy of the defendant, licence is to be transferred
to the legal heirs of the licensee and not to other person or any other
way. The plaintiff is not a valid licence holder and the original licensee
is already expired. Rest of the averments are denied in toto. It is thus,
contended that the Notice of Motion deserves to be dismissed.
5 After careful consideration of the entire facts and
circumstances, it reveals that the plaintiff has relied on the copy of
notarized sale deed dt. 08/05/2006 alongwith copies of applications dt.
06/06/2006 made by the plaintiff and Mrs. Fatima Umar Kapadia for
transfer of the stall and licence in the name of the plaintiff. In fact, the
copy of sale deed relied upon by the plaintiff is not a registered
instrument and the same has been stated to be a notarized document. It
is pertinent to note that the present suit is filed by the plaintiff for
issuing appropriate directions to the defendant/MCGM to consider and
decide the application made by the plaintiff for transferring the suit
premises and licence No. 12432 in his favour and for permanent
injunction restraining the defendant from disturbing the business of the
plaintiff from the suit stall.
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6 So far as the transfer of the licence is concerned, the
learned advocate for the plaintiff has filed copy of Circular towards the
transfer of licence issued under Section 313(A) (B) of BMC Act in
favour of the legal heirs. As per directives issued in the above referred
Circular, hawker licence granted under Section 313(A) and 313(B) of
BMC Act 1888 can be transferred in the name of legal heirs only in case
of death or incapacitation and that too only to husband/wife/son/
daughter (married/unmarried/divorcee/widow)/father/mother of the
deceased licensee except HPCO Booth. Moreover, slight modification
has been added in this Circular while considering the provisions of
Section 313 for transferring the licences. As per this modification, it has
been added that in case of death or incapacitation of licensee, the
licence can be transferred in favour of husband/widow/son/daughter
(married/unmarried/divorcee/widow)/father/mother. It is further added
that in case of death or incapacitation of licensee who does not have
legal heir mentioned in aforesaid category, licence can be transferred to
the family of deceased son of licensee i.e. widow daughter in
law/grand-son/unmarried or widow grand-daughter of the licensee
subject to the submission of affidavit regarding not having any source of
income for their livelihood in their family.
7 Having regard to the rules set out in the Circular of the
MCGM, it is apparent that the licence towards the stall has been
permitted to be transferred to the legal heirs and close family members
of the deceased and incapacitated licensee. In this backdrop, if the facts
of the present case are taken into consideration, it reveals that the
plaintiff is not all related to Mrs. Fatima Umar Kapadia who was the
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original licensee and who is expired in the year 2016. Even assuming
that the suit stall would have been transferred by way of registered
deed of conveyance, then also unless and until it has been shown that
transferee is the legal heir and close family member as mentioned in the
aforesaid circular, such transfer is not valid under the law.
8 Therefore, having regard to the aforesaid facts and
circumstances, I am of the considered view that unless and until the
plaintiff succeeds in proving his lawful rights in and upon the suit stall,
the defendant/MCGM cannot be directed to accept the licence fee
towards the licence which was issued to the original licensee Mrs.
Fatima Umar Kapadia. In the result, following order is passed.
ORDER
1 The Notice of Motion No.905 of 2018 stands dismissed.
2. Costs in cause.
3 The Notice of Motion stands disposed off accordingly.
Date: 10/10/2024. (R. M. Mishra )
Dictated on :10/10/2024. Judge, City Civil Court,
Typed on :11/10/2024. Gr.Mumbai.
Signed on :11/10/2024.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
11/10/2024. 02.57 p.m. (Santosh B. Sawant )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
No.)
HHJ Shri. R. M. Mishra
(C.R.No.05)
Date of Pronouncement of
JUDGMENT/ORDER
10/10/2024.
JUDGMENT/ORDER signed by P.O.on 11/10/2024.
JUDGMENT/ORDER uploaded on 11/10/2024.
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