Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 1161 to 1172/2020 in St.No. 2968/2020 1 Combine Order.
and 3014 to 3024/2020.
MHCC010032522020
Presented on : 16-03-2020
Registered on : 16-03-2020
Decided on : 19-03-2020
Duration : 0 years, 0 months, 3 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1161 OF 2020
(CNR NO. MHCC01-003252-2020)
IN
STAMP NO. 2968 OF 2020
Nanda Mahadev Pahurkar ...Plaintiff
AND
NOTICE OF MOTION NO. 1171 OF 2020
(CNR NO. MHCC01-003263-2020)
IN
STAMP NO. 3014 OF 2020
Digambar Krishna Madhav ...Plaintiff
AND
NOTICE OF MOTION NO. 1169 OF 2020
(CNR NO. MHCC01-003261-2020)
IN
STAMP NO. 3015 OF 2020
Nandini Laxman Muley ...Plaintiff
AND
NOTICE OF MOTION NO. 1162 OF 2020
(CNR NO. MHCC01-003253-2020)
IN
-- 1 of 13 --
N/m No. 1161 to 1172/2020 in St.No. 2968/2020 2 Combine Order.
and 3014 to 3024/2020.
STAMP NO. 3016 OF 2020
Prabhavati Prabhakar Sakharkar ...Plaintiff
AND
NOTICE OF MOTION NO. 1168 OF 2020
(CNR NO. MHCC01-003260-2020)
IN
STAMP NO. 3017 OF 2020
Suryakant Atmaram Londhe ...Plaintiff
AND
NOTICE OF MOTION NO. 1172 OF 2020
(CNR NO. MHCC01-003264-2020)
IN
STAMP NO. 3018 OF 2020
Kavita Tukaram Ghadigaonkar ...Plaintiff
AND
NOTICE OF MOTION NO. 1163 OF 2020
(CNR NO. MHCC01-003254-2020)
IN
STAMP NO. 3019 OF 2020
Shashikant Sakharam Ambre ...Plaintiff
AND
NOTICE OF MOTION NO. 1167 OF 2020
(CNR NO. MHCC01-003259-2020)
IN
STAMP NO. 3020 OF 2020
Sharda Pandurang Sanas ...Plaintiff
-- 2 of 13 --
N/m No. 1161 to 1172/2020 in St.No. 2968/2020 3 Combine Order.
and 3014 to 3024/2020.
AND
NOTICE OF MOTION NO. 1166 OF 2020
(CNR NO. MHCC01-003258-2020)
IN
STAMP NO. 3021 OF 2020
Shailesh Shivaji Jadhav ...Plaintiff
AND
NOTICE OF MOTION NO. 1164 OF 2020
(CNR NO. MHCC01-003255-2020)
IN
STAMP NO. 3022 OF 2020
Deepika Deepak Salunkhe ...Plaintiff
AND
NOTICE OF MOTION NO. 1165 OF 2020
(CNR NO. MHCC01-003257-2020)
IN
STAMP NO. 3023 OF 2020
Pawankumar R. Uppal ...Plaintiff
AND
NOTICE OF MOTION NO. 1170 OF 2020
(CNR NO. MHCC01-003262-2020)
IN
STAMP NO. 3024 OF 2020
Sunil Subhash Nimbalkar ...Plaintiff
Versus
The Municipal Corporation of Greater Bombay ...Defendants
-- 3 of 13 --
N/m No. 1161 to 1172/2020 in St.No. 2968/2020 4 Combine Order.
and 3014 to 3024/2020.
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.11).
DATE : 19th MARCH, 2020.
Ms. Rani Gawali, Advocate for Plaintiffs in all matters.
Mrs. Chavan, Advocate for Defendants / MCGM in all matters.
COMBINE ORDER
This is a combine order passed in Notice of Motion
No.1161 to 1171/2020. All notice structures are situated opposite to
Building No.81 and 82, Janata Market, Kannamwar Nagar No.2,
Vikhroli (East). All structures are adjacent to the both side of main gate
of Asmita College. Impugned notices in these cases are issued on
04/02/2020 and 10/02/2020 under Section 314 of MMC Act. Hence to
avoid repetition, all notice of motions are disposed off by common
order.
2. For convenience and brevity, required details of all notice of
motions are narrated in following table.
TABLE
Case No. Parties Other Details
Stamp No.2968/2020.
N/m No.1161/2020.
- “Shrinivas Pan Shop”,
- In front of
Bldg.No.85,
Kannamwar Nagar.
- 2 sq.mtr. - area.
- Nanda Pahurkar.
- Original owner –
Ashok Sawant.
(Ashok Masala Mart).
- Transferred on
16/02/2004).
Stamp No.3014/2020.
N/m No.1171/2020.
- Digambar Madhav.
- “Mahesh Tailors”.
- 2 Sq.mtr. - area.
- Photo-pass in 2000.
- Licence for squatter.
Stamp No.3015/2020.
N/m No.1169/2020.
- Nandini Mule.
- “Mule Pan Bidi &
- Licence for squatter.
-- 4 of 13 --
N/m No. 1161 to 1172/2020 in St.No. 2968/2020 5 Combine Order.
and 3014 to 3024/2020.
Gen. Stores”.
Stamp No.3016/2020.
N/m No.1162/2020.
- Prabhadevi
Sakharkar.
- “Imperial
Communication”.
- Xerox centre.
- Hawkers licence for
squatter stall dated
13/08/1997.
Stamp No.3017/2020.
N/m No.1168/2020.
- Suryakant Londhe.
- “Kulswamini Paper
Mart”.
- 05/04/2011 –
purchased from Malan
Sakat.
- Hawker and squatters
licence no.59. (i/f –
Malan Sakat) for
Rs.4,01,000/-,
- Not registered.
Stamp No.3018/2020.
N/m No.1172/2020.
- Kavita Tukaram
Ghadigaonkar.
- “Vighnaharta Dosa
Centre”.
- Tenanted to Kartiki
Waigaonkar on Rent of
Rs.3,000/-.
- licence for vada-pav
centre in name of
Kavita.
Stamp No.3019/2020.
N/m No.1163/2020.
- Shashikant Ambre.
- “Patil Misal Corner”.
- L/L agreement dated
11/11/2019 with Mr.
Patil.
- Rent Rs.6,000/- p.m.,
- no copy of licence
attached with plaint.
Stamp No.3020/2020.
N/m No.1167/2020.
- Sharda Sanas.
- “Manisha Xerox”.
- Hawker licence dated
24/01/1983.
- Rent Rs.7,000/- to
tenant Mr. Jairam
Chandat.
Stamp No.3021/2020.
N/m No.1166/2020.
- Shailesh Jadhav.
- “Laxmi Collection”.
- Hawkers licence.
Stamp No.3022/2020.
N/m No.1164/2020.
- Dipika Salunke.
- 2 sq. mtr. - area.
- business – not
mentioned.
- Photo-pass
application.
- no copy of licence.
Stamp No.3023/2020. - Pawankumar Uppal. - Purchased from
-- 5 of 13 --
N/m No. 1161 to 1172/2020 in St.No. 2968/2020 6 Combine Order.
and 3014 to 3024/2020.
N/m No.1165/2020. - “Godown” - business.
- Rs.2,50,000/- not
regd. Sale Deed.
Coinbox PCO holder
Mr. Vinod Patil – on
30/04/2000.
- Licence in name of
“Jaywant Gen. Stores”.
Stamp No.3024/2020.
N/m No.1170/2020.
- Sunil Nimbalkar.
- “Radhika Enterprise”.
- Purchased for
Rs.2,60,000/- un-regd.
- Originally allotted to
Mr. Prabhakar Chavan.
- Sale Deed – un-regd.
Dated 11/12/2009.
3. Ld. Advocate Rani Gawali for plaintiff urged that there are
pitch card and application for photo-pass are annexed alongwith plaint.
Plaintiffs are running their shops since 1983. There are hawkers licence
with all of them. It is requested to peruse photographs that none
structure is on footpath or drainage line. There is no time provided by
the MCGM to submit the documents. The possession of plaintiffs over
notice structure do not create any hurdle to traffic nor they create
hindrance in road widening.
4. Ld. Advocate Gawali added that the plot of Krishna
Housing Society is handed over for development. The developer of said
project has insisted the MCGM for issuance of notice to the plaintiffs. It
is the only source of livelihood to the plaintiffs. It is claimed for interim
injunction against the defendants to restrain from taking steps in view
of notice under Section 314 of MMC Act. It is also claimed that MCGM
may be directed to provide alternate accommodation to the plaintiffs /
shopkeepers.
5. Ld. Advocate Chavan for MCGM requested to note the
directions in W.P.No. 652/2017, wherein, no hawkers are permitted in
-- 6 of 13 --
N/m No. 1161 to 1172/2020 in St.No. 2968/2020 7 Combine Order.
and 3014 to 3024/2020.
close vicinity of school and college. It is requested to peruse licence of
hawkers given to the plaintiffs. However, plaintiffs have emroaded on
footpath. Some of the plaintiffs are on drainage line, which is running
below the notice structure. It is admitted that hawkers licence are there
with plaintiffs. However, it does not mean permission was granted by
the MCGM to occupy the premises with intent to grab footpath or
drainage line.
6. It is added by ld. Advocate Chavan for MCGM that some
licences are transferred by one person to another without intimation to
the MCGM. It is requested to peruse photographs submitted by MCGM,
to clarify the position that how the notice structures are creating hurdle
in widening the road. MCGM has to complete the road at the earliest.
It is claimed to dismiss the motion.
7. Ld. Advocate Gawali replied that Asmita College came to be
started in the year 2005. However, plaintiffs are running their business
since 1983. For some period all shops were temporarily shifted and the
project for drainage line was completed.
REASONS FOR ORDER
8. As described in detail in each and every petition and
narrated in aforesaid table, it is crystal clear that there are hawkers
licence and licence issued for squatter. The meaning of said licence is
not to create permanent structure or to move from one place to another
place as a running shop on road. On perusal of record, plaintiffs have
submitted permission of shop and establishment licence or food licence.
It does not mean authority granted to the plaintiff to occupy the
-- 7 of 13 --
N/m No. 1161 to 1172/2020 in St.No. 2968/2020 8 Combine Order.
and 3014 to 3024/2020.
premises perpetually.
9. On perusal of entire documents, there are applications
submitted for photo-pass and licence. However, in no case photo-pass
came to be issued by the competent authority. Even if it is so, plaintiffs
may claim for alternate accommodation as per prevailing policy of the
MCGM.
10. In Notice of Motion No. 1172/2020 plaintiff Kavita
Ghadigaonkar has handed over the notice structure to Kartiki
Naigaonkar on rent of Rs.3,000/- p.m. In Notice of Motion No.
1163/2020 plaintiff Mr. Shashikant Amre has obtained the premises on
rent of Rs.6,000/- from Mr. Patil. In Notice of Motion No. 1167/2020
plaintiff is earning rent of Rs.7,000/- from Mr. Jairam Chandat.
11. In Notice of Motion No. 1165/2020 plaintiff Pawankumar
Uppal purchased the notice structure by unregistered Sale Deed for
Rs.2,50,000/- from Coin Box PCO Holder Mr. Vinod Patil. In Notice of
Motion No. 1170/2020 Mr. Nimbalkar has purchased notice structure
for Rs.2,60,000/- on unregistered Sale Deed from Mr. Chavan.
12. In Notice of Motion No. 1161/2020 owner is Mr. Ashok
Sawant who has handed over pan-shop to the plaintiff. In Notice of
Motion No. 1160/2020 plaintiff Mr. Londhe has purchased notice
structure from Malan Sakat for consideration of Rs.4,01,000/-. All
documents of transfer are not registered.
13. It is pertinent to note that there is no consent of MCGM
came to be obtained nor there is any tri-party agreement. Plaintiffs are
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N/m No. 1161 to 1172/2020 in St.No. 2968/2020 9 Combine Order.
and 3014 to 3024/2020.
failed to transfer the names of licencee from previous licencee of the
plaintiffs. The object behind providing hawkers/squatter licence during
1985 is to provide livelihood, which do not authorize to emroad at the
given place and to create permanent structure. In Notice of Motion No.
1164/2020 no copy of licence is annexed nor owner of business is
mentioned. In Notice of Motion No. 1165/2020 initially licence was for
PCO holder wherein presently plaintiff Pawankumar is running a
godown. It clearly indicate plaintiffs have bye-passed the object of
providing hawkers licence. On the contrary, original licence holder are
earning Rs.3 to 7 Thousand per month from transferring the licence
from one person to other. It is amazing to note that some hawkers
licence has sold the notice structure and earned the amount upto
Rs.4,00,000/-. The material question is whether they were authorized
to sell the licence. The main question is, whether licence holder had
any authority to sell the notice structure which is owned by MCGM.
14. Section 312 of MMC Act prohibits erecting of any structure
or fixture of any nature such as – wall, fence, rail, post, step, booth
upon any street or over any open channel, drain, well or tank in any
street which causes obstruction or encroachment or projection or to
occupy portion of such street, channel, drain, well or tank as the case
may be. Only those structures/fixtures are saved from Section 312 of
the Act which are erected with the permission of the Commissioner
granted under Sections 310 and 317 of the Act. In other words, Section
312 has no application to those structures/fixtures which are erected by
the person with the permission of the Commissioner under Sections 310
and 317 of the Act.
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N/m No. 1161 to 1172/2020 in St.No. 2968/2020 10 Combine Order.
and 3014 to 3024/2020.
15. As observed in MCGM V/s. Rafiqunnisa M. Khalifa (Civil
Appeal 1727/2019, decided on 18/02/2019), the Hon’ble Apex Court
observed that in order to exercise the power under Section 314(1) of
the MMC Act, two conditions must be present.
(a) First, the disputed wall, fence, rail, post, step, booth or any
other type of structure or fixture, as the case may be, is
erected or set up on any public street or open channel or
drain or well or tank; and
(b) Second, any such structure or fixture, as the case may be, is
erected or set up in the city or suburbs contrary to the
provisions of Section 312(1) of the Act after coming into
force the two Acts specified in sub-section (1).
16. On perusal of various photographs, affidavit of plaintiff,
counter affidavit of MCGM officer etc., it clearly show that plaintiffs
have erected on footpath and sewage line. Therefore, till completion of
sewage line they were shifted at some places, as submitted by ld.
Advocate for plaintiff. The notice structures / stalls were not erected
with permission of MCGM under Section 312(1) of the Act. All notice
structures are causing obstruction to public at large and causing
encroachment on the street.
17. Considering aforesaid discussion, there is no prima facie
case in favour of plaintiffs. However, following important points are
material to note :
(a) Plaintiffs were granted hawkers and squatter licence.
(b) There is no sanction plan nor any permission was granted
to erect the structure.
-- 10 of 13 --
N/m No. 1161 to 1172/2020 in St.No. 2968/2020 11 Combine Order.
and 3014 to 3024/2020.
(c) It is prerogative of the MCGM to clear structure on
drainage line and footpath.
(d) Right to livelihood does not authorize any person to block
access of pedestrian or to cover drainage line.
(e) Most of the plaintiffs has sold the premises or earning the
rent from transferring the premises to third person. There
is no intimation to MCGM nor there is a tri-party
agreement.
(f) In Para 26 the Hon’ble Apex Court in Rafiqunnisa Khalifa’s
case (supra), it is observed that grant of health licence or
hawkers licence has nothing to do with erection of
stall/structure and its removal. Section 314 nowhere says
that if a person is carrying on any activity in such
stall/structure on the strength of health license on the
street, or open channel, drain, well or tank, no action to
remove such stall/structure can be taken against such
person. The action under Section 314 can be attacked
successfully only by showing that the person had erected
his stall/structure with the permission of the Commissioner
granted under Section 312(1) of the Act. Such is, however,
not the case here.
18. It is settled principle of jurisprudence that whenever there
is a right, there is a corresponding legal duty to perform. In present
case, there is no contractual or legal right in favour of plaintiffs nor
there is any application to provide alternate accommodation. Most of
the plaintiffs have already jumped the provision of licence by
transferring it to third party and by execution of unregistered Sale
-- 11 of 13 --
N/m No. 1161 to 1172/2020 in St.No. 2968/2020 12 Combine Order.
and 3014 to 3024/2020.
Deed. In short, there is no balance of convenience lies in favour of
plaintiffs. Resultantly, it will cause no irreparable loss to the plaintiffs,
if motion stands dismissed. Hence the order :
- ORDER -
1. Notice of Motion No. 1161 to 1172/2020 stands dismissed.
2. Plaintiff to take steps to register the suit, positively within
two weeks.
3. Defendant/MCGM may submit W.S. at the earliest.
4. N/m No. 1161 to 1172/2020 are disposed off accordingly.
(Note : This is a common order, hence one copy of this
order be kept in Suit at Stamp No.2968/2020 i.e. N/M
No.1161/2020 and disposal of all notice of motions be
recorded in roznama of all other cases. It means no
separate order be typed and place in other 11 cases.)
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 19/03/2020. Mumbai.
1. Dictated on : 19/03/2020.
2. Transcribed on : 22/06/2020.
(Due to Lockdown)
3. Placed for correction on : 27/06/2020.
4. Correction carried on : 27/06/2020.
4. Signed on : 27/06/2020.
5. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
-- 12 of 13 --
N/m No. 1161 to 1172/2020 in St.No. 2968/2020 13 Combine Order.
and 3014 to 3024/2020.
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
27/06/2020. 1.51 p.m. Miss M.A.Kulkarni
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.11).
Date of Pronouncement of Judgment/Order 19/03/2020.
Judgment/Order signed by P.O. on 27/06/2020.
Judgment/Order uploaded on 27/06/2020.
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