Final Order 2

Order Details: Notice of Motion
Pdf Text: 1 N/M. No.1792/18 (L.C.S. No.1179/18))
MHCC010058442018
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION No.1792 OF 2018
IN
LONG CAUSE SUIT No.1179/2018
Chandrashekhar Mayekar
& 4 Ors. … Plaintiffs
- Versus -
Municipal Corporation of
Greater Mumbai & 2 Ors. ... Defendants
Appearance :-
Mr. Manmohan Rao, Advocate for plaintiffs.
Mr. Om Suryavanshi, Advocate for defendants.
CORAM : S. H. SALUNKHE,
AD-HOC JUDGE CITY CIVIL COURT,
COURT ROOM NO.4.
DATED : 06/01/2024.
O R D E R
. This is suit for declaration that the plaintiffs are existing
hawkers under The Street Vendors (Protection of Livelihood and
Regulation of Street Vending) Act, 2014 (in short The Street Vendors
Act), for declaration that the plaintiffs are voters for election of Town
Vending Committee (in short T. V. C.), for declaration that the procedure
adopted by the defendant B. M. C. to select T. V. C. is illegal and bad-in-
law and for injunction restraining defendant B. M. C. or anybody
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through it from evicting/relocating or dispossessing and/or prohibiting
the plaintiffs from carrying trade as street vendors and they have taken
out present Notice of Motion for temporary injunction under Order-
XXXIX Rule-1 of The Code of Civil Procedure (in short the C. P. C.)
restraining defendant B. M. C. from evicting/relocating or dispossessing
and/or prohibiting the plaintiffs from carrying trade as street vendors.
2] In brief facts of the plaintiffs' case are as under :-
The plaintiffs are existing street vendors and carrying on
business of ready made garments in hawking zone of M/West ward on
the footpath since prior to 1/5/2014. Defendant B. M. C. is not properly
implementing Street Vendors Act. Defendant No.2 is the Chairman of
the alleged T. V. C. and defendant No.3 is Assistant Commissioner of
M/West ward where the plaintiffs are carrying out trade.
3] The plaintiffs are having various documents i.e. receipts of
payment of penalty made to B. M. C. towards encroachment on public
place prior to 1/5/2014. The footpath upon which the plaintiffs are
carrying on street vending business is more than 10 feet. The plaintiffs
are carrying on business as street vendors since prior to cut off date of
1/5/2014 and they are protected as existing vendors under Section 3 of
The Street Vendors Act. However, defendant No.3 is illegally taking
action, levying fine and prohibiting the plaintiffs from carrying on trade.
It is further contended that in spite of coming into force The Street
Vendors Act in the State of Maharashtra and the notification dated
1/12/2015, wherein, time has been provided for formation of T. V. C.,
the Corporation has not implemented the said Act. It is further stated
that after coming into force the Street Vendors Act only the T. V. C. is
having power in respect of street vending and the regulations thereof
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and defendants No.1 and 3 have no powers to take action against the
plaintiffs in view of the Section 33 of The Street Vendors Act. The
provisions of the Street Vendors Act are having overriding effect on any
other law. Therefore, defendants No.1 and 3 cannot take action against
the plaintiffs, who are existing street vendors. However, defendants
No.1 and 3 have violated the orders of the Hon'ble Apex Court and
Hon'ble High Court and the provisions of The Street Vendors Act and
took illegal actions by imposing fine and threatening to evict the
plaintiffs. Therefore, the plaintiffs have constrained to file suit and
taken out present Notice of Motion.
4] The defendant/B. M. C. resisted Notice of Motion by filing
reply dated 17/7/2018. At the outset, it is stated that the suit is not
maintainable for want of statutory notice under Section 527 of The Mumbai
Municipal Corporation Act (in short the M. M. C. Act). The plaint
discloses no cause of action against defendant, therefore, suit is not
maintainable. The defendant B. M. C. has issued notices under Section
314 of the M. M. C. Act dated 23/5/2017 to the owner/occupier/user for
illegal encroachment upon footpath admeasuring 1.5 meters X 3 meters at
Maharshi Dayanand Saraswati Marg, near Ambedkar Garden. At the time of
inspection, it was observed that total 5 shops are abutting to the road and
obstructing free way of pedestrian to traffic. Therefore, defendant directed to
remove affected portion which is causing obstruction to free way of traffic.
However, the plaintiffs suppressed this fact and without challenging the said
notices filed this suit. The plaintiffs have not replied said notices and,
therefore, Assistant Engineer, M/West, Maintenance Department directed to
remove unauthorized construction/shops. The plaintiffs failed to prove
authorization of notice structure and by following due process passed order
and demolished unauthorized construction. Therefore, suit as well as Notice
of Motion became infructuous and hence same is liable to be dismissed.
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5] It is further stated that suit for mandatory injunction for
direction to appoint Court Commissioner and or the other reliefs claimed in
the plaint are not maintainable. The Corporation is acting as per the
provisions of law for the public at large and the plaintiffs have filed this suit
without any cause of action and misusing the process of law, public money.
The defendant B. M. C. has filed additional affidavit dated 4/11/2023
stating that the Maharshi Dayanand Saraswati Marg has been declared as
non-hawking zone by T. V. C. and the plaintiffs are not having hawkers licence
and the defendants do not permit construction of any structure under the
hawkers policy. On these grounds, defendant B. M. C. prayed for dismissal of
Notice of Motion.
6] The plaintiff No.4 Abdul Rahim Ansari filed rejoinder
affidavit.
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 plaintiffs have made out
prima facie case ? . . . No.
2) Whether balance of convenience lies
in favour of plaintiffs ? . . . No.
3) Whether plaintiffs would suffer
irreparable loss if temporary
injunction is refused ? . . . No.
4) What order ? . . . Notice of Motion is
dismissed.
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- :: R E A S O N S ::-
AS TO POINTS No.1 TO 3 :-
8] The plaintiffs have relied upon photocopy of affidavit, copy
of application made under the Street Vendors Act, receipts of fine
amount, letter of Assistant Law Officer of the B. M. C. dated
21/11/2017, letter by the State Government, Urban Development
Department dated 9/10/2017, copy of notice under Section 314 of the
M. M. C. Act, list of eligible vendors prepared by the B. M. C. etc.
9] Defendant B.M.C. produced on record letter issued by
Assistant Engineer, Maintenance M/West dated 14/3/2023,
photographs, letter by the Senior Inspector, Encroachment dated
12/8/2022, copy of letter dated 6/4/2018, copy of minutes of the
meeting of the T. V. C., Zone-V and additional affidavit dated 29/9/2023
and 4/11/2023, list of existing vendors etc.
10] Learned advocate for the plaintiffs filed written arguments.
Learned advocate for the plaintiffs submitted that the plaintiffs are the
street vendors and they are carrying on trade as street vendors since
prior to the cut off date of 1/5/2014 and as per the provisions of
Section 3 of The Street Vendors Act they are existing street vendors and
are protected and as such they cannot be evicted or relocated till the
survey of street vendors is conducted as per Section 3 (1) of The Street
Vendors Act and certificate of vending is issued by the T. V. C. He
submitted that till date the defendant B. M. C. has not carried out
survey and issued certificate of vending and election of the T. V. C. has
not been conducted as per the provisions of Section 22 of The Street
Vendors Act. He further submitted that defendant B. M. C. has
nominated representatives of street vendors in violation of the
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provisions of The Street Vendors Act. As such, there is violation of the
provisions of The Street Vendors Act. He further submitted that as per
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) the existing street
vendors as on 1/5/2014 are entitled for protection against eviction and
relocation till the survey as specified under sub-section (1) of Section 3
of The Street Vendors Act are carried out and certificate of vending is
issued to street vendors. In his submission, till the date defendant B. M.
C. has not conducted election of T. V. C. and not carried out survey as
provided under Section 3 of The Street Vendors Act. However, the
Corporation is illegally taking action by imposing penalty and
obstructing the plaintiffs from carrying out their trade. Therefore, the
plaintiffs are entitled for the relief of temporary injunction as prayed.
Learned advocate for the plaintiffs relied upon judgment of the Hon'ble
Apex Court in the matter of Maharashtra Ekta Hawkers Union and
another Versus Municipal Corporation, Greater Mumbai and others
[Civil Appeal Nos.4156-4157 of 2002] to submit that all the existing
street vendors operating across the country are entitled to carry on
trade as per the policy of 2009 till the appropriate legislation is enacted
by the Parliament. He further relied on the judgment of the Hon'ble
High Court in the matter of Azad Hawkers Union and 4 others Versus
Union of India and 3 Others (Writ Petition No.652 Of 2017) to submit
that the Corporation has not held election of T. V. C. as per the
provisions of The Street Vendors Act and carried out survey. Advocate
for the plaintiff further relied upon judgment of the Hon'ble High Court
in the case of Motilal Mahadev Sharma and others v. Municipal
Corporation of Greater Bombay (First Appeal No.970 Of 1998) to
submit that when the plaintiff wants to seek immediate relief from the
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Court in the form of injunction, it is not necessary for him to issue
statutory notice or wait till the statutory notice is served and the period
prescribed under Section 527 of the M. M. C. Act is over. He further
relied on the judgment of the Hon'ble Apex Court in the matter of
Secretary Hailakandi Bar Association, Hailakandi Versus State of Assam
And Anr. [WP (Cr) 209 Of 1993] and judgment of the Hon'ble
Allahabad High Court in the matter of State of U. P. through Collector
Agra and Another Versus Ramesh Chandra Gupta and Others (Second
Appeal Defective No.126 Of 2005) and Virendra Kumar Versus Union of
India and others (Writ C No.33700 Of 2021). He also relied judgment of
the Hon'ble Apex Court in the case of Kailash Mangal Versus Ramesh
Chand (D) Th. Legal Representative (Criminal Appeal No.240 Of 2015)
to submit that the person who files false affidavit in judicial proceeding
renders himself liable for contempt of Court.
11] On the other hand, learned advocate for defendant B. M. C.
submitted that the present suit is nothing but an abuse of process of
law. The plaintiffs without challenging notice under Section 314 of the
M. M. C. Act filed this suit for declaration and sought blanket
injunction. It is submitted that the Hon'ble Bombay High Court in Azad
Hawkers Union and 4 others Versus Union of India and 3 Others (supra)
held that the survey conducted by defendant B. M. C. should be
considered as first survey as contemplated under sub-section (1) of
Section 3 of the said Act and also held that in pursuance of the
directions of the Hon'ble Apex Court in Maharashtra Ekta Hawkers
Union and another Versus Municipal Corporation, Greater Mumbai And
others (supra) the B. M. C. has constituted T. V. C. In his submission, the
Hon'ble Bombay High Court held that the first survey carried out by the
B. M. C. be considered as a first survey and approved the establishment
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of T. V. C. as per the policy of 2009. He further submitted that T. V. C.
has been established as per the policy of 2009 and meetings of T. V. C.
has been held and as per the survey conducted by list of eligible vendors
has been prepared by the B. M. C. Learned advocate for the B. M. C.
submitted that only the plaintiffs No.1 and 2 are held eligible for
vending certificate as per the survey carried out by existing T. V. C. and
other plaintiffs are not eligible for vending certificate. However, the
plaintiffs have constructed structure admeasuring 1.5 X 3 meters and
thereby obstructing the free way of pedestrians traffic on footpath of
M.D.S. Marg near Ambedkar Garden, Chembur. He submitted that
under the garb of existing hawkers the plaintiffs cannot erect structures.
He submitted that the Hon'ble Apex Court in Maharashtra Ekta Hawkers
Union and another Versus Municipal Corporation, Greater Mumbai and
others (supra) case passed directions and held that street vendor can do
business in area of 1 X 1 meters on one side of the footpath in such a
manner that vehicular and pedestrians traffic is not obstructed and
access to shops and residents is not blocked. However, in the case on
hand, the plaintiffs are carrying on trade by constructing structure
admeasuring 1.5 meters X 3 meters in violation of the directions of the
Hon'ble Apex Court and, therefore, the Corporation has issued notice
under Section 314 of the M. M. C. Act. He submitted that the
Corporation has followed due process of law. However, the plaintiffs
under the garb of protection of The Street Vendors Act violating the
guidelines of the Hon'ble Apex Court. He further submitted that the
Hon'ble High Court has held that survey carried out by the M. C. G. M.
is to be treated as first survey under Section 3 and also approved
establishment of the T. V. C. and, therefore, the plaintiffs are not entitled
for the relief of declaration that the procedure adopted defendant B. M.
C. to select T. V. C. is illegal. So also the plaintiffs No.3 to 5 are not
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eligible for vending certificate. It is further submitted that the plaintiffs
have remedy if they find that though their names was entitled to be
included in the register voters list and if it was not included they could
raise an objection as per Rule-15 of The Street Vendors Rules. In his
submission the plaintiffs have prayed for blanket injunction and
defendant B. M. C. cannot be restrained from taking action for violation
of the rules and regulations. Learned advocate for the B. M. C. relied
upon the judgment of Azad Hawkers and 4 others Versus Union of India
and 3 Others (supra) to submit that the plaintiffs cannot trade in
violation of the guidelines of the Hon'ble Apex Court in the judgment of
Maharashtra Ekta Hawkers Union and another Versus Municipal
Corporation, Greater Mumbai and others (supra).
12] In the light of submissions made by learned advocates for
the parties now it is to be seen whether the plaintiffs have made out
prima facie case for grant of temporary injunction. Before going to the
merits of the case it is important to note here that the plaintiffs are
seeking injunction that they may be declared as existing hawkers and
voters for election of T. V. C. It is their contention that as per the
judgment of the Hon'ble Apex Court in the case of Maharashtra Ekta
Hawkers Union and another Versus Municipal Corporation, Greater
Mumbai and others (supra) the Hon'ble Apex Court laid down
guidelines and policy for street vendors and said policy was in force till
the enactment of The Street Vendors Act, 2014. The plaintiffs are
carrying on trade as hawkers in M/West ward since prior to the cut off
date of 1/5/2014 and, therefore, in view of the provisions of sub-clause
(3) of Section 3 of The Street Vendors Act they are existing street
vendors and protected till the first survey of the Street Vendors by T.V.C.,
which is to be elected as per the provisions of Section 22 of The Street
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Vendors Act. It is further contention of the plaintiffs that defendant
B.M.C. has not conducted election of representatives of street vendors
as per the rules framed by the State Government and in violation of the
provisions of law defendant B. M. C. established T. V. C. Therefore, the
T. V. C. established by the B. M. C. be declared as illegal and void.
13] The Hon'ble Bombay High Court in the matter of Azad
Hawkers Union and 4 others Versus Union of India and 3 others (Writ
Petition No.652 Of 2017) held that first survey of all the street vendors
who existed on 1/5/2014 as provided in sub-section (1) of Section 3 of
the said Act shall be conducted by T. V. Cs. which are constituted as per
the policy of 2009 as directed by the Hon'ble Apex Court in 2013 in
Maharashtra Ekta Hawkers Union and another Versus Municipal
Corporation, Greater Mumbai And others (supra)'s judgment. Further
the Hon'ble High Court held that the survey carried out by the B. M. C.
after 1/5/2014 be considered as first survey as per sub-section (3) of
Section (3) of the said Act. Thus, defendant B. M. C. has conducted first
survey of the street vendors after 1/5/2014 through the T. V. Cs.
constituted as per the policy of 2009 and prepared a list of eligible
street vendors. The Hon'ble High Court in Azad Hawkers Union and 4
others Versus Union of India and 3 others (supra) held that said survey
be considered as first survey under Section 3 of The Street Vendors Act.
Hence I find no substance in the submissions of learned advocate for the
plaintiffs that defendant B. M. C. has not carried out survey of street
vendors. Defendant B. M. C. filed affidavits dated 29/9/2023 and
4/11/2023 and stated that the plaintiffs No.1 Chandrashekar Mayekar
and No.2 Kishor P. Amlani are found eligible as per norms prescribed by
the B. M. C. and to do hawking in 1 meter X 1 meter area. Thus, it
appears that the defendant B. M. C. has carried out first survey through
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T. V. C. as per the policy of 2009 and as per the said survey the plaintiffs
No.1 and 2 are found eligible for issuance of vending certificate. The
plaintiffs whose names are not found in the list of register voters of
town vending committee have remedy under Rule-15 of The Street
Vendors Rules.
14] It is contention of defendant B. M. C. that the plaintiffs are
carrying on business/trade on a footpath in structure having area as
mentioned in letter dated 14/3/2023 and notice under Section 314 of
the M. M. C. Act. It appears that the plaintiffs are carrying on trade/
business by erecting structures on footpath having area more than 1
meter X 1 meter in violation of the guidelines of the Hon'ble Apex Court
in Maharashtra Ekta Hawkers Union and another Versus Municipal
Corporation, Greater Mumbai and others (supra)'s judgment. The
photographs produced by the Corporation show that the plaintiffs are
carrying on business by erecting structures having area more than 1
meter X 1 meter. The plaintiffs No.1 and 2 who are found eligible for
vending certificate and their names are listed in the list of eligible
vendors are entitled to carry out trade/business as per the restrictions
and guidelines laid down by the Hon'ble Apex Court and Hon'ble High
Court. However, they cannot carry on hawking or trading in violations
of the restrictions and conditions imposed by the Hon'ble High Court.
The names of the other plaintiffs are not find place in the list of eligible
vendors or survey carried out by T. V. C. If they are having grievance
that their names are not in the list of registered voters. They have
remedy under Rule-15 of The Street Vendors Act by filing representation
to the Commissioner or Chief Officer and the plaintiffs can raise an
objection, which authority under the rules would bound to consider it.
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15] The Corporation issued notices to the plaintiffs under
Section 314 of the M. M. C. Act, alleging that they have erected
structures on footpath in violation of the guidelines and restrictions of
the Hon'ble Apex Court. The plaintiffs have not challenged notices
under Section 314 of the M. M. C. Act. They are seeking declaration and
praying for a blanket injunction restraining defendant B. M. C. from
removing or evicting the plaintiffs. The plaintiffs are not entitled for
blanket injunction as prayed. On the contrary, it appears that they have
erected structures beyond the area of 1 meter X 1 meter. So also the
plaintiffs No.3 to 5 are not eligible vendors as per the survey list
prepared by the B. M. C. It is not case of the plaintiffs that they are
carrying on trade/business in area of 1 meter X 1 meter as per the
guidelines of the Hon'ble Apex Court and in spite of that the
Corporation is taking action against them. The Corporation has issued
notices under Section 314 of the M. M. C. Act to the structures erected
by them without any permission. The plaintiffs have not produced
documents showing permission to erect structure on a footpath. As per
the Section 314 of the M. M. C. Act the Commissioner may remove or
pull down structure or fixtures which shall be erected upon street,
channel, drain, well etc. without permission of the Corporation. The
plaintiffs cannot erect structures having area more than 1 meters X 1
meters on a footpath and carry out business/trade and obstruct
pedestrians traffic. Thus, in peculiar facts of the case, the plaintiffs have
not made out
prima facie case for granting blanket temporary
injunction as prayed.
16] The plaintiffs have not established that they are carrying on
street vending activities in accordance with the restrictions and
guidelines of the Hon'ble Apex Court in the judgment of Maharashtra
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Ekta Hawkers Union and another Versus Municipal Corporation, Greater
Mumbai and others (supra) a street vendor may carry street vending
activities as per the guidelines and restrictions. However, in absence of
any material on record to show that the plaintiffs are carrying on
business as per the guidelines, they are not entitled for injunction as
prayed. On the contrary, it appears that the structures of the plaintiffs
are situated on the M. D. S. Road which is declared as non-hawkers
zone by T. V. C. which is established as per the policy of 2009 in Ekta's
judgment.
17] I have carefully read the judgment of the Hon'ble Apex
Court in the case of Maharashtra Ekta Hawkers Union and another
Versus Municipal Corporation, Greater Mumbai and others [Civil Appeal
Nos.4156-4157 of 2002], Shri Vile Parle Kelvani Mandal and Ors. Versus
Municipal Corporation of Greater Mumbai and Ors. (Writ Petition
No.224 Of 2011), Azad Hawkers Union and 4 others Versus Union of
India and 3 others (Writ Petition No. 652 Of 2017). However, these
judgments are not helpful to the plaintiffs. In the case on hand, the
plaintiffs have not established that they are doing trade within area of 1
meter X 1 meter as per the guidelines and restrictions of the Hon'ble
Apex Court and the Hon'ble High Court in above referred judgments.
18] The plaintiffs are seeking relief of temporary injunction
imposing penalty or prosecuting them. However, as per Section 41 (d)
of The Specific Relief Act injunction restraining the B. M. C. from
instituting or prosecuting the proceeding in Criminal Court cannot be
granted Therefore, I hold that no case made out for grant of injunction
as prayed. Balance of convenience does not tilt in favour of plaintiffs.
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Accordingly, I answer points No.1 to 3 in the negative and in answer to
point No.4 pass following order :-
O R D E R
Notice of Motion is dismissed.
Date : 06/01/2024. ( S. H. SALUNKHE )
Ad-hoc Judge City Civil Court,
Court Room No.4, Gr. Mumbai.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
19/01/2024 11:20 a.m. V. V. Kulkarni
NAME OF STENOGRAPHERUPLOAD DATE TIME
Name of the Judge (With Court
Room No.)
H. H. Judge Shri. S. H. Salunkhe,
Court Room No. 4.
Date of Pronouncement of ORDER 06/01/2024
ORDER Typed on 16/01 and 17/01/2024
ORDER signed by P. O. on 18/01/2024
ORDER uploaded on 19/01/2024
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