Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N.M.No.1791 of 2018
CNR: MHCC01-005845-2018
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
NOTICE OF MOTION NO.1791 OF 2018
IN
L.C.SUIT NO.909 OF 2018
1. Sharif Ahmed J.M. Shaikh & Ors. .. Plaintiffs
V/s.
1 Municipal Corporation of Greater
Mumbai & Ors. .. Defendants
Appearance:-
Adv. Manmohan Rao for plaintiffs.
Adv. Vaishali Mane along with Adv. Pradip Patil for MCGM.
CORAM : HIS HONOUR ADDL. SESSIONS JUDGE
SHRI. R. M. MISHRA
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.05).
DATE : 04/12/2023.
ORDER
This Notice of Motion is taken out by the plaintiffs for
temporary injunction restraining the defendants from evicting,
relocating, and/or dispossessing, and/or prohibiting/disturbing, levying
fines, arresting and prosecuting them for interfering and intimidating
them from carrying on and plying the trade as existing Street Vendors
from street vending at north side footpath of Globe Chamber, outside
133 Central Cottage Industries on Walchand Hirachand Marg, Mumbai
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and from prohibiting the Town Vending Committee from taking any
decisions or implementing decisions as well as for for appointment of
Court Commissioner to verify whether the plaintiffs are coming within
150 mtrs of railway stations and are posing as threat/obstruction to
railway commuters.
2 The plaintiffs have come with a case that they are existing
street vendors in hawking zone of ‘A’ Ward carrying their respective
businesses on the footpath prior to 01/05/2014. After The Street
Vendors (Protection of Livelihood and Regulation of Street Vending)
Act, 2014 come into force, there has been total non implementation of
the said Act because of which there has been flagrant violation of the
orders of the High Court whereby the rights of the plaintiffs are
seriously affected. After this Act came into force, it is only the Town
Vending Committee who has full power in respect of street vending and
the defendants do not have any power to take any action in view of
Section 33 of the Act. The defendants are issuing various illegal
instructions, notifications, collecting illegal fines, evicting street vendors
in most arbitrary, callous and inhuman manner and even filing criminal
cases by disregarding various orders of the Hon’ble High Court. The
defendants failed to implement The Street Vendors (Protection of
Livelihood and Regulation of Street Vending) Act, 2014.
3 It is further contented that the place of vending of the
business is more than 150 mtrs away from the CSMT Railway Station.
However, defendants are harassing the plaintiffs by blocking the place
of vending and threatening to lift the articles even at night by their
vehicles. The Urban Development Department has sought only 50 mtrs
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area from the BMC for non-hawking zone. The plaintiffs are having
their business prior to 01/05/2014. They are automatically become the
voters of the election of Town Vending Committee. However, there is
fragrant violation of the directions of the Hon’ble Supreme Court and
the Hon’ble High Court and the plaintiffs are prevented from doing their
urgent work as vendors. The plaintiffs have come across notice
dt.30/01/2018 for temporary relocation whereby the defendants are
threatening to evict the plaintiffs. The defendants have given go-by to
the provisions of said Act and they have selected members and
representatives by lottery system and constituted the entire Town
Vending Committee. Said procedure is totally illegal. The plaintiffs
cannot be evicted unless the Town Vending Committee is constituted as
per the provisions of said Act. The plaintiffs had filed Writ Petition (L)
No.398 of 2018 in which the Hon’ble High Court directed the plaintiffs
to approach to the Civil Court and also kept all the contentions open.
The plaintiffs therefore, filed this suit and prayed for the interim reliefs.
4 The defendants resisted the Notice of Motion on the ground
that defendants are having every right and authority under the said Act
to take necessary action and the Court cannot interfere and restrain the
administrative decisions and its implementation unless and until the
same are ultra vires to any provisions of law. There is absolutely no
reasoning given by the plaintiffs for seeking orders prohibiting the Town
Vending Committee from taking decisions or implementing their
decisions. The action against the plaintiffs is clear that they are coming
within 150 mtrs from the Railway Station and posing threats/
obstructions to Railway commuters. The defendants are issuing the
receipts showing acts committed in contravention of provisions of law
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and the plaintiffs have no right to complain against the lawful action
taken by the defendants. There is no averment or contention of the
plaintiff’s that other hawkers are allowed to carry on their business and
the only plaintiffs are restrained in the said area. Any order restraining
the defendants will affect larger interest of the public at large. Rest of
the averments are denied in toto. It is thus, contended that the Notice
of Motion is liable to be dismissed with costs.
5 Considering the rival submissions, following points arise for
my determination. My findings are recorded thereon with reasons
enumerated therein, as under.
Sr.
No.
POINTS FINDINGS.
1 Whether the plaintiffs have made
out a prima facie case? Partly proved
2
Whether balance of convenience
lies in favour of the plaintiffs?
Partly proved
3
Whether the plaintiffs will suffer
irreparable loss, if interim relief is
not granted, as prayed for?
Partly proved
4 What Order ? As per final order
REASONS
AS TO POINTS NO.1 TO 3.
6 The learned advocate for the plaintiffs submitted that
enforcement date as 01/05/2014 of this Act is very important.
Preamble of the Act is to protect the right of Urgent Street Vendors.
Relying on the provisions of Section 3 of the Act, he submitted that till
this day, there is no survey on the part of the defendants. It is
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submitted that this Act overrides the MMC Act. In support of his
submissions, learned advocate for the plaintiff placed reliance on-
“1) Maharashtra Ekta Hawkers Union and Anr. V/s.
Municipal Corporation, Greater Mumbai and Ors., Civil
Appeal Nos.4156-4157 of 2002 dt.09/09/2013, (SC),
2) Shri Vile Parle Kelvani Mandal and Ors. V/s. Municipal
Corporation of Greter Mumbai and Ors., W.P. No.224 of
2011 dt.23/10/2015,
3) Azad Hawkers Union & Ors. Union of India & Ors., W.P.
No.652 of 2017 dt.01/11/2017,
4) Azad Hawkers Union – applicants, in the matter between
Azad Hawkers Union and Ors. V/s. Union of India through
Ministry of HSG and Urban Poverty Alleviation & Ors,
Notice of Motion (L) No.700 of 2017 in W.P. No.652 of
2017, dt.03/11/2017.
7 On the other hand, learned advocate for the defendants
submitted that said area does not come within hawking zone. The
permission of Town Vending Committee is still pending.
8 Having regard to the respective submissions, I have
carefully gone through the copies of documents on record. I have also
carefully considered the ration laid down in the case laws cited supra.
As submitted by the learned advocate for the plaintiff, the Hon’ble
Bombay High Court in Shri Vile Parle Kelvani Mandal supra specifically
held that
“all existing street vendors as on 1st May 2014 who are
covered under the definition of clause(1) of Section 2 of the Street
Vendors Act are entitled to protection against eviction and relocation as
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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 (1) of Section 2 shall be
evicted or relocated by the Mumbai Municipal Corporation till the
survey as specified under Sub-Section (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 Sub-Section (1) of Section 4 by
the Town Vending Committee. This protection is applicable to those
Street Vendors who were carrying on business as on 1st May 2014.”
9 Moreover, in a copy of order dt.03/11/2017 in Notice of
Motion (L) No.700 of 2017 in Writ Petition No.652 of 2017, the Hon’ble
High Court held that
“2]
We do not find that any case is made out for stay of
our order. Our order is very clear. The order refers to the
Judgment and Order delivered by coordinate Division
Bench of this Court in the case of Vile Parle Kelvani
Mandal and Ors. V/s. Municipal Corporation of Greater
Mumbai and Others. In the said Judgment, Division Bench
has held that such of the hawkers who were conducting
their hawking business as on 01/05/2014 are entitled to
protection.
3] We, in our Judgment, have also considered that the
Respondent – Corporation has conducted survey after
01/05/2014. We have further recorded that out of
1,28,443 applications which were issued, 99,435
applications were found to be acceptable and expected
eligible applicants were found to be 2908. If the
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Judgment is read in the correct perspective, it will be clear
to all the parties that insofar as the area falling under
MCGM is concerned, such of the applicants who are found
to be eligible or expected to be eligible in the survey
conducted by the MCGM, they are entitled to protection of
the said Act.
4] With this clarification, Notice of Motion is rejected.”
10 The learned advocate for the plaintiffs also emphasized on
the findings recorded by the Hon’ble bombay High Court in Shri Vile
Parle Kelvani Mandal supra in which it is held that specific directions
have been given to the Principal Secretary of Urban Development
Department of the Statement Government towards formulation of the
scheme for Street Vendors under Sub-section (1) of Section 38 of the
Street Vendors Act as well as framing the Rules and for constitution of
Town Vending Committees in each local authority.
11 In this context, the plaintiffs have come with a case that the
defendants have given a go-by to the provisions of said Act and the
directions issued by the Hon’ble Bombay High Court and the defendants
have selected the members under Section 22 (b) by lottery system. The
plaintiffs have also contended that the defendants have selected the
representatives of the Street Vendors by the lottery system and the
constituted the entire Town Vending Committee. Therefore, having
regard to the directions given by the Hon’ble Bombay High Court and in
the light of provisions of the said Act, I have carefully considered the
copies of documents on record. The plaintiffs have also filed a copy of
list of eligible hawkers in ‘A’ ward prepared by the BMC. In this list,
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names of the plaintiffs No.1 to 4 are mentioned at Sr.No.140, 708, 713
and 731. In the background of this list of eligible hawkers in the ‘A’
ward, copies of letters, affidavit and receipts can also be taken into
consideration to find out that the plaintiffs No.1 to 4 who have been
considered as eligible hawkers are carrying on their business of hawking
since prior to 01/05/2014. Though the plaintiff No.5 is also relying on
the similar documents, in the absence of his name in the list of eligible
hawkers, he cannot be considered as a protected hawker as on
01/05/2014. Having regard to the list of eligible hawkers in which the
names of the plaintiffs No.1 to 4 are appearing who are claiming to be
the protected hawkers as on 01/05/2014, in my view view, till decision
the suit on merits, they are entitled to the relief to the extent of
temporary protection from evicting, relocating and/or dispossessing
from carrying on their business as existing street vendor from street
vending at north side footpath of Globe Chamber, outside 133 Central
Cottage Industries on Walchand Hirachand Marg, Mumbai. Therefore,
in view of these reasons, points No.1 to 3 are answered as partly
proved.
AS TO POINT NO.4.
12 In view of aforesaid findings on the points No.1 to 3,
following order is passed.
ORDER
1 Notice of Motion No.1791 of 2018 is partly allowed to the
extent of plaintiff No.1 to 4 only.
2 Defendants are hereby temporary restrained from evicting,
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relocating, and/or dispossessing the plaintiff No.1 to 4 from carrying on
their business as existing street vendor from street vending at north side
footpath of Globe Chamber, outside 133 Central Cottage Industries on
Walchand Hirachand Marg, Mumbai till decision of the suit.
3 Notice of Motion No.1791 of 2018 to the extent of plaintiff
No.5 is dismissed.
4 Costs in cause.
5 Notice of Motion stands disposed off accordingly.
Date:04/12/2023. (R. M. Mishra )
Dictated on :04/12/2023. Judge, City Civil Court,
Typed on :05/12/2023. Gr.Mumbai.
Signed on :06/12/2023.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
06/12/2023. 03.57 p.m. (Santosh B. Sawant )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
No.)
HHJ Shri. R. M. Mishra
(C.R.No.05)
Date of Pronouncement of
JUDGMENT/ORDER
04/12/2023.
JUDGMENT/ORDER signed by P.O.on 06/12/2023.
JUDGMENT/ORDER uploaded on 06/12/2023.
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