Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no 1659-18 L.C.SUIT no. 1141-2018
CNR MHCC010054622018
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO.1659 OF 2018
IN
L.C. SUIT NO.1141 OF 2018
1. Azad Hind Gold Smith Welfare ]
Association & 45 Ors. ]..Plaintiffs.
Versus
The Municipal Corporation of Gr. Mumbai ]... Defendant
Coram : M.S. Deshpande, Judge
(Court Room no. 05)
Date : 26th April, 2018.
Mr. V.K. Gupta, advocate for plaintiffs.
Mr. K.N. Tawakuli with advocate Mr. Dhumale for defendant.
ORDER
1. The plaintiffs claiming themselves to be the members of
plaintiff no.1 association have taken out this notice of motion seeking
adinterim relief of injunction for restraining the defendant Corporation
and its officers from demolishing air flow plastic pipes and seizing their
instruments, articles from their premises and from obstructing their
business activity. However, they have not specifically described the suit
premises, held by each plaintiff.
2. According to the plaintiffs, they are doing small scale
business of gold smithy in an around Zaveri bazar, Bhuleshwar area.
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The said business is a domestic work and it is not a trade and therefore,
license under Section 394 of the Mumbai Municipal Corporation Act
(for short, “M.M.C. Act”) is not required.
3. Heard, respective advocates. Perused the copies of
documents placed on record.
4. The learned advocate for the plaintiffs submitted that the
business of gold smith is not included in schedule 'M' , para IV of the
M.M.C. Act. The Pollution Control Board also categorized the business
of gold smith as “green” i.e. non polluting business. According to him,
earlier in 2001, the defendant issued notices under Section 394 of
M.M.C. Act, which resulted into institution of various suits. An ad
interim protection was granted by holding that business of gold smith
did not require license. In similar circumstances, when the matter was
taken before the Hon'ble High Court it was directed to give personal
hearing to the Petitioners and pass reasonable orders. The defendant is
continuously harassing the plaintiffs and other gold smiths and rounds
of litigations are continued.
5. He further submitted that the defendant, without issuing
any notices, continued its wrongful acts, trespassing at the work places,
seizures of articles, instruments, demolition of air flow pipes etc., which
resulted in spreading the air in the premises, as the fans are not
sufficient to exhaust the air . The same are causing problem in smooth
functioning of their businesses. Therefore, the plaintiff no.1 issued
notice to defendant. According to him, exhaust pipes cannot be equited
with chimney. They are only erected to avoid suffocation in the
premises. He submitted that the officers of the defendant are acting at
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the behest of certain interested persons. Therefore, W.P. no.608 of
2018 was filed, in which the Hon'ble High Court (Coram:A.S. Oka &
Riyaz I. Chagla, JJ.) permitted to withdraw the petition with liberty to
file a civil Suit. It was also directed that all the contentions on merits
are kept open. Consequently, the present suit has been filed.
6. In reply, the learned advocate for the defendant submitted
that the matter in dispute is not concerned with Section 394 or schedule
'M' of the M.M.C. Act. It is also not concerned with the business of gold
smith. According to him, it relates to the unauthorized chimneys raised
in that area, which are health hazard as acid is being used. He further
raised objection about the status of plaintiff no.1 and its locus standi to
file the suit. Requisite permission under Order I Rule 8 of C.P.C. is not
obtained. Such association has no right to file suit. The defendant has
neither issued any notice nor demolished any structure. Thus, the suit
being pre mature, he has prayed for rejection of adinterim relief.
7. It is necessary to look into copies of documents. The copy
of letter dated 4.11.2004 issued by the Maharashtra Pollution Control
Board, prima facie shows that the work of gold smithy is an activity
categorized by the board as “green” i.e. non polluting category.
However, the said letter further shows that in furtherance of the
complaints received pertaining to air pollution problem in Zaveri bazar
and Bhuleshwar area, the said office monitor the ambient air quality at
different places at different time to assess the pollution problem and the
report would be communicated. However, the plaintiffs have not
produced any such report for the reasons best known to them.
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8. In W.P. no.2678 of 2001, by order dated 25.10.2002 the
defendant was directed to give personal hearing and pass reasonable
orders. Similarly, in W.P. (L) no.1495 of 2003, by order dated
17.6.2003 adinterim protection was granted against such harassment.
9. By order dated 11.2.2004 passed in W.P. no.2872 of 2003
and other sister Writ Petitions, it was recorded that the defendant
withdrew the notices issued to such gold smiths without prejudice to
the rights of the Corporation to take appropriate action in accordance
with law.
10. It appears that thereafter in August, 2004 the notices under
Section 394(3) of M.M.C. Act were issued which resulted into filing of
W.P. no.2496 of 2004. By order dated 30.9.2004 it was held that the
notice did not show on what basis the Commissioner came to
conclusion that keeping of such articles in the premises etc. is
dangerous to the life or public safety. It was further held that issuing
such notices would amount to imposing restrictions on trade or
business. Ultimately, in paragraph no.12 it was directed that it will be
opened to the respondents if so advised, and in terms of what was
aforesaid in the judgment, on issuing proper notices and complying
with the necessary requirements of hearing to pass appropriate orders
according to law which they may be entitled to.
11. Copies of certain judgments passed by learned
Metropolitan Magistrates show that the prosecutions of such gold smith
were resulted into acquittals.
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12. On perusal of the plaint it prima facie appears that the suit
is filed by an association of the persons and it is signed by the plaintiffs
and verified by one of the plaintiffs. However, registration certificate
nothing has not been placed on record. Therefore, prima facie there is
a question about the status of the plaintiffs and whether it is a
registered society or not.
13. The cause of action as shown in paragraph nos.18 and 22
of the plaint is that the officers of the defendant without issuing notice
are threatening and therefore, the plaintiffs apprehend that the air flow
pipes will be removed and their articles will be seized. The plaintiffs
have issued a notice dated 17.7.2017 to the defendant to refrain itself
from taking any action.
14. The nature of the suit is a suit for injunction simplicitor for
restraining the defendant from demolishing air flow pipes etc and
seizing articles and causing obstruction of their business, etc.
15. Considering the aforesaid features of the plaint, these are
mere apprehensions expressed by the plaintiffs. The plaintiffs have not
specified any cause of action. No dates or specific incidents are
specified to show an overt action on the part of defendant or its officers.
The plaintiffs have omitted to claim the real and as such efficacious
relief which may be available to them for the purpose of seeking
consequential relief of injunction.
16. Though there is history of such actions, earlier the plaintiffs
and such other gold smiths are protected by the Court by passing
various orders as narrated above. There is no prima facie material
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worth to show that the plaintiffs have been threatened by any force
being used by the defendant. The decision given in W.P. no.2496 of
2004 dated 30.9.2004 by the Hon'ble High Court governs the actions of
the defendant.
17. While arguing the matter certain photographs were
tendered across the bar. If the structures of air flow pipes as depicted in
the photographs are unauthorized and raised without permission and
there is any pollution due to use of acidic material, the defendant
Corporation may take action which is permissible under the law.
Whether the plaintiffs refine the gold or silver or any other metal or
only makes ornaments would be the matter of fact to be proved on
leading evidence. However, merely on bare apprehension, intervention
of this Court at adinterim stage is not warranted. Therefore, the
following order is passed:
ORDER
1. Adinterim relief is rejected.
2. An ordinary copy of this order duly authenticated by the
Sheristedar of this Court be supplied to the respective parties.
3. Defendant to file reply to notice of motion on or before next date.
Sd/-
(M.S. Deshpande)
Ad hoc Judge,
City Civil Court, Mumbai.
Directly typed on : 26/04/2018.
Checked by HHJ on : 26/04/2018.
Signed by HHJ on : 26/04/2018.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIG
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 27.04.2018 At 03.00 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
26.04.2018
JUDGMENT/ORDER signed by P.O. on 26.04.2018
JUDGMENT/ORDER uploaded on 27.04.2018
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