Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M No.1590/20 (LCS No.1011/20)
MHCC010048692020
IN THE CITY CIVIL COURT FOR GREATER BOMBAY AT MUMBAI
NOTICE OF MOTION No.1590 OF 2020
IN
LONG CAUSE SUIT No.1011/2020
Mr. Shaikh Khalil Mohiddin
(Through C. A. Mr Faiyaz Khalil Shaikh) … Plaintiff
Versus
The Municipal Corporation of
Greater Mumbai. ... Defendant
Appearance :
Mr. Asit Singh, Advocate for plaintiff.
Mr. Om Suryavanshi, Advocate for defendant.
CORAM : S. H. SALUNKHE,
ADHOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 06/04/2023.
O R D E R
. This is suit for mandatory injunction directing defendant/
Corporation to transfer licence in respect of suit stall No.1140, near
Sagar Communication, Opp. Deonar Slaughter House, Tata Nagar,
Govandi, Mumbai and for perpetual injunction restraining defendant/
Corporation from disturbing, interfering and stopping plaintiff's shop
situated at above said address and the plaintiff has taken out this Notice
of Motion for temporary injunction restraining the defendant/
Corporation from obstructing business of the plaintiff.
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2] Briefly stated the plaintiff's case is that the Corporation has
issued licence to one Mr. Unni Krishnan. The plaintiff has produced on
record letter to that effect and payment receipt of licence fees. It is
further stated that Mr. Unni Krishnan has assigned all the rights in
respect of licence in favour of the plaintiff on 11/8/1986. The plaintiff
applied the Corporation for transfer of licence on 26/8/1986. The
plaintiff is carrying on business at suit structure since 1986. However, in
December 2019 the officer of the Corporation visited suit stall and
directed to renew the licence. It is further stated that accordingly, on
12/12/2019 the plaintiff made application alongwith demand draft of
Rs.10,000/. The Corporation has accepted the demand draft, however
but not transferred licence inspite of policy of the Corporation.
3] It is further stated that the plaintiff is a street vendor as per
the provisions of The Street Vendors (Protection Of Livelihood And
Regulation Of Street Vending) Act, 2014. The plaintiff is a protected
vendor under the said Act. Therefore, the plaintiff filed suit and taken
out Notice of Motion.
4] The defendant/Corporation opposed Notice of Motion by
filing replycumWritten. At the outset, it is stated that suit is not
maintainable for want of statutory notice under Section 527 of the
M.M.C. Act. Notice is administrative or executive act or order and same
is not open to challenge in a Court of law. The plaint discloses no cause
of action.
5] It is further stated that the Corporation has issued licence
to Mr. Unnikrishnana by letter dated 18/9/1982 on certain terms and
conditions. However, he has not paid licence fees upto 1/1/1983.
Therefore, squatter licence has not been issued to Mr. Unnikrishnan.
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Therefore, the plaintiff is not entitled for relief claimed and temporary
injunction. Mr. Unnikrishanan is not fulfilled the conditions mentioned
in the licence. As such, there is no question of transfer of licence. On
these grounds, the defendant/Corporation prayed for dismissal of
Notice of Motion.
6] Perused Notice of Motion, affidavit in support thereto,
reply, rejoinder affidavit and Record and Proceeding. Heard both sides.
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 plaintiff has made out prima
facie case ? . . . Yes.
2) Whether balance of convenience lies
in favour of plaintiff ? . . . Yes.
3) Whether plaintiff would suffer
irreparable loss if temporary
injunction is refused ? . . . Yes.
4) What order ? . . . Notice of Motion is
allowed.
:: R E A S O N S ::
AS TO POINTS No. 1 TO 3 :
8] Learned advocate for the plaintiff submitted that one Mr.
Unnikrishnan had made application to the Corporation for issuing
squatter licence. Accordingly, by letter dated 18/9/1982 the
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Corporation granted squatter licence on the conditions mentioned in the
application. Mr. Unnikrishnan deposited fees of Rs.120/ for the period
1/10/1982 to 31/12/1982 with security deposit of Rs.120/. It is
further submitted that the said Mr. Unnikrishnan has transferred
squatter licence to the plaintiff. It is further submitted that there is
policy of the Corporation to transfer licence issued under Section 313 of
The Mumbai Municipal Corporation Act (in short 'the M.M.C. Act'). The
plaintiff has approached the Corporation for transfer of licence,
however the Corporation has not transferred licence. Learned advocate
for the plaintiff relied on the circular dated 29/3/2008 issued by the
M.C.G.M. in respect of transfer of licence.
9] On the other hand, learned advocate for the Corporation
submitted that squatter licence has not been issued to Mr. Unni
Krishnan and, therefore, there is no question of its transfer to the
plaintiff which is granted in the name of Mr. Unni Krishnan. It is further
submitted that the licence has been issued as per the provisions of
Section 394 of the M.M.C. Act and, therefore, the circular dated
29/3/2008 is not applicable to the present case.
10] The plaintiff has produced on record the office copy of the
application for transfer of licence which bears acknowledgment of the
Corporation. The plaintiff has produced on record Demand Draft of
Rs.10,000/ drawn in favour of The License Inspector Hawkers. The
plaintiff has also produced on record photocopy of the General Power of
Attorney. The plaintiff has also produced on record photocopy of
squatter licence bearing No.1140. The plaintiff has also produced on
record affidavit executed by Mr. Unni Krishnan. Learned advocate for
the plaintiff submitted that the plaintiff is doing business under the
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name and style of Faiyaz Enterprises on the basis of affidavit of transfer
of squatter licence since 1986. The plaintiff has produced on record
photographs in support of his contention that he is running business. On
the other hand, the Corporation filed photographs dated 26/10/2020 to
show that notice structure is not in existence and the plaintiff is not
doing business. The plaintiff produced on record photographs as per the
directions of the Court vide order dated 26/10/2020. These
photographs are dated 7/2/2020, 18/10/2020 and 26/10/2020. On the
other hand, the photographs relied by the Corporation does not bear
date and timing.
11] It is contention of the plaintiff that he is doing business in
the name and style Faiyaz Enterprises. Learned advocate for the
plaintiff submitted that he is protected as per The Street Vendors
(Protection Of Livelihood And Regulation Of Street Vending) Act, 2014.
The plaintiff is a street vendor and doing business sine 1986. In order to
show that the plaintiff is doing business at Kena Market the plaintiff
produced photocopy of the notice issued by the Corporation on
19/9/1986, alleging that the plaintiff has carried out unauthorized
construction.
12] Learned advocate for the plaintiff relied on 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
and Ors. (Writ Petition No.224 Of 2011) in which the Hon'ble
Bombay High Court held as below :
“(i) We hold that with effect from 1st May, 2014 the directions issued
by the Apex Court from time to time in Civil Appeal Nos.41564157 of
2002 (Maharashtra Ekta Hawkers Union and others vs. Municipal
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Corporation of Greater Mumbai and others) shall cease to apply and all
existing street vendors as on 1st May, 2014 who are covered by the
definition of clause (l) of Section 2 of the Street Vendors Act are entitled
to protection against eviction and relocation as provided under Sub
section (3) of Section 3 thereof. No Street Vendors who were carrying on
business as on 1st May, 2014 and who are covered by the definition of
Street Vendor under clause (l) of Section 2 shall be evicted and relocated
by the Mumbai Municipal Corporation till the survey as specified under
SubSection (1) of Section 3 of the Street Vendors Act is carried out and
the certificates of vending are issued to all Street Vendors in accordance
with Subsection (1) of Section 4 by the Town Vending Committee. This
protection is applicable only to those Street Vendors who were carrying
on business as on 1st May 2014.”
13] In the above cited judgment it is held that all the existing
street vendors as on 1/5/2014 who are covered by the definition of
vendor are entitled for protection till survey as specified under Sub
section (1) of Section 3 of The Street Vendors Act and certificates of
vending are issued as per Subsection (1) of Section 4 of The Street
Vendors Act. As per subsection (l) of Section 2 of The Street Vendors
Act 'street vendor' means a person engaged in vending of articles,
goods, wares, food items on footpath, pavement, public park or any
other public place or private area or a person offering services to
general public or by moving from place to place and includes hawker,
peddler, squatter and all other synonymous terms. In the case on hand,
the plaintiff has prima facie shown that he is doing business in a
temporary stall i.e. squatter since 1986 i.e. prior to 1/5/2014. Learned
advocate for the Corporation submitted that survey is not done as
specified in Section 3 of The Street Vendors Act.
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14] In such circumstances, the plaintiff is entitled for interim
protection as per the provisions of The Street Vendors Act and in view
of the observations of the Hon'ble Bombay High Court in Shri Vile Parle
Kelvani Mandal and Ors. Versus Municipal Corporation of Greater
Mumbai and Ors. (supra) till decision of suit or till survey as specified in
subsection (1) of Section 3 of The Street Vendors Act which is earlier.
Thus, I hold that the plaintiff has made out prima facie case for grant of
relief of injunction. Balance of convenience tilts in his favour.
Resultantly, I pass following order :
O R D E R
1] Notice of Motion No.1590/2020 is allowed.
2] Defendant/Corporation or its officer, employer or servant, agent
or any person acting on its behalf is hereby restrained temporarily
from disturbing, interfering and stopping the business till decision
of suit or till carrying out survey as specified in subsection (1) of
Section 3 of The Street Vendors (Protection Of Livelihood And
Regulation Of Street Vending) Act, 2014 whichever is earlier.
Date : 06/04/2023. ( S. H. SALUNKHE )
Adhoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
24/04/2023 03:55 p.m. V. V. Kulkarni
NAME OF STENOGRAPHERUPLOAD DATE TIME
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Name of the Judge (With Court
Room No.)
H. H. Judge Shri. S. H. Salunkhe,
Court Room No. 4.
Date of Pronouncement of ORDER 06/04/2023
ORDER Typed on 21/04/2023
ORDER signed by P.O. on 24/04/2023
ORDER uploaded on 24/04/2023
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