Interim Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no.1448-18 in L.C.Suit no.949-2018
CNR MHCC01-004552-2018
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.1448 OF 2018
IN
STAMP NO.949 OF 2018
Mr. Mustaq Chandsaheb Shikalkar ]..Plaintiff
Versus
The Municipal Corporation of ]
Greater Mumbai. ]... Defendant
Coram : M.S. Deshpande, Judge
(Court Room no. 05)
Date : 17th April, 2018.
Mr. L.K. Tripathi, advocate for plaintiff.
Mr. Dhumale, advocate for defendant.
ORDER
1. The plaintiff has taken out this notice of motion seeking ad
interim relief for restraining the defendant Corporation from
obstructing or taking any coercive action without following due process
of law.
2. The plaintiff is a hawker and holding license for doing
business at suit stall (1 meter x 1 meter) at Bara Imam Road, Nal Bazar,
Mumbai. According to the plaintiff, he is protected under Section 3 (3)
of the Street Vendors (Protection of Livelihood and Regulation of Street
Vending) Act, 2014 (for short, “the said Act”) He cannot be evicted till
survey as contemplated under the said Act is done.
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2 NM no.1448-18 in L.C.Suit no.949-2018
3. The learned advocate for the plaintiff submitted that
instead of repeated requests made by the plaintiff, the defendant is not
accepting the license fees from 5.6.2017. Therefore, the plaintiff
apprehends that the defendant may take coercive action, as the officers
of the defendant are threatening him. According to him, the plaintiff
has paid license fee up to 31.7.2014. Thereafter, the defendant refused
to accept the license fees.
4. The learned advocate for the defendant submitted
compilation of documents and further argued that the plaintiff has paid
license fee up to 31.7.2014. He has not paid the license fees thereafter.
Therefore, as per circular dated 20.1.2009 the license of all the hawkers
who have not renewed the license for the period of more than two years
are canceled by order dated 29.11.2017. The license of the plaintiff is
canceled by obtaining the sanction of the competent authority and he
was informed by letter dated 29.1.2018. Thus, due process of law has
been adopted.
5. Prima facie it is undisputed that the plaintiff was holding a
hawker's license and that he has deposited license fees till 31.7.2014
and thereafter, his license was canceled on the strength of circular
dated 20.1.2009 and it was accordingly informed to him on 29.1.2018.
The plaintiff has filed copies of applications dated 5.6.2017, 25.7.2017
11.1.2018, 15.1.2018, 18.1.2018 and 15.2.2018 requesting the
defendant to accept the license fees etc.
6. On the other hand, it appears prima facie from circular
no.AA/18 for the year 20082009 dated 20.1.2009, that the licenses
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3 NM no.1448-18 in L.C.Suit no.949-2018
which are canceled on the ground of non payment of license fees or the
licenses for which renewal fees are not paid may be revalidated upon
payment of some penalty etc. Relying on that circular by Order dated
29.11.2017 the Assistant Commissioner 'C' ward granted permission to
cancel the licenses of 24 hawkers including the plaintiff.
7. The said Act provides for survey of street vendors and their
protection from eviction and issuance of certificate of vending. In view
of proviso to section 4 the plaintiff would be a street vendor. Moreover,
in view of Section 33 of the said Act, it shall have an overriding effect
notwithstanding anything inconsistent therein contained in any other
law for the time being in force or in any instrument having effect by
virtue of any law other than this Act. Under such circumstances prima
facie the aforesaid circular cannot be implemented after coming into
force the said Act. The work of survey of street vendors, vending and
non vending zones by the Town Vending Committee is in process.
8. Under such circumstance, if the defendant is not prevented
from taking any coercive action against the plaintiff, he will suffer an
irreparable loss. Therefore, intervention of this Court at ad interim
stage is necessary. Thus, the following order is passed:
ORDER
Adinterim relief in terms of prayer clause (a) is granted.
Sd/
(M.S. Deshpande)
AdHoc Judge,
Dated : 17.04.2018 City Civil Court, Mumbai.
Dictated on : 17/04/2018.
Transcribed on : 25/04/2018.
Signed by HHJ on : 04/05/2018.
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4 NM no.1448-18 in L.C.Suit no.949-2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 04.05.2018 At 03.10 p.m.
NAME OF STENOGRAPHER : Mrs. V. U. Pawar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.05
Date of Pronouncement of
JUDGMENT/ORDER
17/04/2018
JUDGMENT/ORDER signed by
P.O. on
04.05..2018
JUDGMENT/ORDER uploaded
on
04.05.2018
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