Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N.M. No.2146 of 2018
CNR:MHCC010069662018
IN THE BOMBAY CITY CIVIL C0URT AT BOMBAY
NOTICE OF MOTION NO.2146 OF 2018
IN
L.C.SUIT NO.2253 0F 2015
Sachin M. Madhwani .. Plaintiff
V/s.
1. The Municipal Corporation of
Greater Mumbai & Anr. .. Defendants
Appearance:
Adv. Labde for plaintiff.
Adv. Mr. Diwate for MCGM/ defendant.
CORAM : HER HONOUR ADHOC JUDGE
SMT. A.H. KASHIKAR
CITY CIVIL COURT, GR.
BOMBAY
(C.R. NO.05).
DATE : 19.09.2022
ORDER
1 This Notice of Motion is taken out by the plaintiff for
grant of temporary injunction restraining the defendants and any
other person claiming through or under them from taking any
action pursuant to notice U/s.394(4) of MMC Act bearing
No.ACA/017407/MOH dt.31/08/2015 in respect of premises
known as Shriji Sagar, Kakad House, 11 New Marine Lines,
Mumbai:400 020 including threatened action of seizure of articles
etc., pending hearing and final disposal of the suit.
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2 The plaintiff has made submission that he alongwith
Mansukhlal V. Madhwani and Urmila Mansukhlal Madhwani
are/were members of a Society known as Kakad House CHS Ltd
and they have two shops and two garages bearing No.4 and 5 and
1A and 1B respectively in said society. Plaintiff is in possession of
said premises since from the year 2006. He is carrying on business
of restaurant in the name and style of 'Shreeji Sagar Restaurant'
from the suit premises. For carrying on said business, plaintiff is in
possession of licence U/s.394 of MMC Act, Police Licence, Shops
and Establishment Certificate etc. He is renewing said licences
and permissions periodically. However, defendants issued notice
U/s.55 of MRTP Act in the year 2003 against the predecessor of
the plaintiff who filed suit bearing L.C. Suit No.2593 of 2003,
wherein decree was passed in his favour holding that Section 55
would no apply to the premises. Subsequently, defendants issued
notice U/s.351 of MMC Act against the suit premises on
dt.15/3/2010 against which the plaintiff filed suit bearing L.C.
Suit No.1754 of 2012 wherein Court granted the order of status
quo and said suit is pending and sub judice before the Court. Now
the plaintiff is in receipt of notice U/s.394(4) of MMC Act
dt.31/08/2015 which has been issued by the defendants for
compliance with the requisitions under notice U/s.351 of MMC
Act, failing which the defendants will seize and carry away the
articles/machinery used in connection with the said process which
found to be dangerous to the life and likely to create nuisance.
Said notice has been issued without application of mind.
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Threatened action of seizure of articles is unwarranted as the
subject matter is pending in suit bearing L.C.Suit No. 1754 of
2012. Principles of natural justice are not followed and therefore,
notice is nullity. In such circumstances, if notice is executed, same
will cause irreparable loss to the plaintiff. Court had issued the
order of status quo in the earlier suit and the same shows existence
of prima facie case in plaintiff's favour. Hence, plaintiff prayed for
grant of temporary injunction accordingly.
3 Defendants have replied the notice of motion by filing
reply/written statement below Ex.6. It is specifically contended
that the suit is bad for non issuance of statutory notice U/s.527 of
MMC Act. On factual matrix, it has been contended that
Mansukhlal Madhwani was issued health licence U/s.394 of MMC
Act for two rooms eating house(snack bar) on dt.21/12/2011
under No.761447059 which is valid from dt.1/1/2012 to
31/12/2012 and said licence was issued in the name of Mr. Anil
Kakkad for the area of 20.04 sq. mtrs only. Later on, Asst.
Engineer, B & F, 'A' Ward issued notice to Mansukhlal Madhwani
for unauthorised covering of open space on north side of building
with fibre and G.I. Sheet and also for unauthorised amalgamation
of two garages and for unauthorised change of user of same into
restaurant. It has been observed that after issuance of licence
No..761447059, the original licence area 20.04 was extended to
148.857 sq. mtrs area. Added area is in fact area covering
unauthorised area of open space and two garages for which the
notice U/s.351 of MMC Act had been issued. In said matter, suit
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was filed before the Court. Thereafter, inquiry was being initiated
against the then Medical Officer of Health Department and in turn,
they issued notice to Mr. Sachin Madhwani for conducing trade of
two rooms eating house unauthorisedly covering open space in the
licence area. In said notice, plaintiff has not produced any
document to prove authorisation of notice structure and not
discontinued user of said premises in order to prevent
danger/nuisance to general public. Plaintiff filed L.C.Suit No.
1754 of 2012 challenging said notice and Court granted status quo
till filing of reply. In said matter, Notice of Motion was rejected by
the Court and plaintiff filed A.O. Stamp No.313 of 2016 before the
Hon'ble High Court and the Court directed to the plaintiff to apply
for regularisation of notice work. Order was complied by the
plaintiff. Hence, A.O. got dismissed. Suit is also dismissed on
19/12/2015. So same is not pending before any Court.
4 It is specifically contended that notice structure has
been already demolished and removed by the concerned B & F
Department. But taking advantage of stay order in the present
suit, plaintiff is still running illegal activity of serving food in the
open space area which is dangers to the public health causing
nuisance to the public. Hence, notice action proposed by the
defendants is justified. Plaintiff miserably failed to establish prima
facie case and balance of convenience. Therefore, interim
injunction shall not be granted in favour of the plaintiff.
5 From the facts and circumstances of the case, and
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material placed on record, following points arose for my
determination and I have given my findings thereon with reasons
as below.
Sr.
No.
POINTS FINDINGS.
1 Whether prima facie case lies in
favour of plaintiff ?
No
2
Whether balance of convenience
lies in favour of plaintiff ? No
3
Whether plaintiff will suffer
irreparable loss, if Notice of
Motion is not allowed ?
No
4 What Order ? Notice of Motion is
dismissed.
REASONS
AS TO POINT NOS.1 TO 3.
6 All these points are interlinked with each other, hence,
for the sake of convenience and to avoid repetition of certain
points, all are discussed simultaneously.
7 Heard advocate for plaintiff and advocate for
defendants at length. Perused the affidavit sworn in support of
claim and contentions, also perused the documents produced by
the parties.
8 In this particular matter, the notice under challenge is
the notice U/s.394 of MMC Act pursuant to the licence and seizure
of the articles kept in the premises causing nuisance or hazard and
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danger for life. It is for the plaintiff to establish prima facie that
said notice is bad in law and according to the plaintiff, the
defendants are trying to take action without authorisation under
the garb of Section 394(4) of MMC Act though the pleadings of
defendants are in support of unauthorised encroachment over the
licenced premises. It is argued that this notice has nothing to do
with the structure and only it has to be considered whether the
articles kept in said premises are hazardous and committing
nuisance or not. Their articles are not of such nature. At present
juncture, alleged structure is not in existence. Defendants can
issue notice for revocation of licence already granted in favour of
the plaintiff and his father. However, without any justification,
they are trying to destroy his articles. Due process of law ought to
have been followed by the defendants. Remedy could be
U/s.475(A) of MMC Act regarding prosecution, but it cannot be in
the nature of seizure of articles belonging to the plaintiff. Hence,
advocate for the plaintiff prayed for grant of temporary injunction
in his favour.
9 Advocate for the plaintiff further added that initially in
the year 2003, defendants issued notice U/s.55 of MRTP Act to the
predecessor of the plaintiff regarding the notice structure for
which the licence has been issued. Said predecessor of the plaintiff
filed L.C.Suit No.2593 of 2003 and holding that Section 55 of
MRTP Act would not apply to the premises, the Court had decreed
the suit. However, again defendants issued notice U/s.351 of
MMC Act regarding same structure on dt.15/3/2010 and the
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plaintiff challenged said notice vide L.C. Suit No.1754 of 2012
wherein the Court has been pleased to pass the order of status quo
in support of notice structure on dt.6/7/2012 and the same is in
force even today. In said circumstances, when two orders in
favour of the plaintiff, the defendants cannot take such harsh
action against the plaintiff even though having notice that
structure alleged by them is authorised one. Furthermore, said
structure has nothing to do with the licence U/s.394 of MMC Act.
His articles are not of such a nature which are being hazardous or
causing nuisance to anyone. Hence, he prayed for grant of
temporary injunction.
10 In support of said submissions, plaintiff has produced
various documents on record listed in the suit plaint which
includes copy of Suit No.2593 of 2003 and order as well as copy of
Suit No.1754 of 2012 and statusquo order as well as copies of
licence granted by the defendants in the name of plaintiff's father
and himself from time to time. It is also stated that licence had
been transferred in his name after demise of his father and he
applied before the Health Officer for increase in the area of
premises for which licence has been issued and the same has been
allowed by the Health Officer. He produced those licences on
record. I have gone through the same. It reveals that until licence
for the period from 1/1/2015 to 31/12/2015, other licences were
for area i.e. dimensions or quantity of 20.04 M2. However, after
making application to the Medical Officer, Health Department, the
Medical Officer added the excess area in the dimensions making
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148.86 M2 and therefore, the licence from 1/1/2015 to
31/12/2015 onwards came to be extended for the area of 148.86
M2.
11 It is nowhere pointed out by the plaintiff as to how and
why he applied for said excess area. No documentary proof
showing authorised occupancy over the area has been produced by
the plaintiff. Undoubtedly, structure has nothing to do with the
licence U/s.394 of MMC Act directly. However, in the present
matter, it reveals that the plaintiff has not come with clean hands
and he without establishing his right to said extended area has
picked up the technical issue regarding non applicability of Section
941 of MMC Act in the present case. It has not been disclosed by
the plaintiff that L.C. Suit No.1754 of 2012 in which status quo
was granted has been dismissed by the Court and due to said
dismissal, the statusquo order is not in force. Advocate for the
defendants has further furnished various documents on record
regarding said proceedings enlightening the subsequent events. It
is specifically contended by the defendants that after issuance of
licence No.761447059, it has been observed that on
dt.21/04/2014, original licence area of 20.4 sq. mtrs was extended
to 148.857 sq. mtrs by the Medical Officer of Health Department
without following due process of law. In said additional area, no
approval from competent authority was taken and therefore, they
had initiated action against medical officer of Health Department.
12 Undoubtedly, it is different issue which cannot be
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collided with fact in issue in this matter. However, prima facie, it
reveals that the plaintiff could not satisfy authorisation regarding
said area and even after issuance of notice U/s.351 of MMC Act,
plaintiff did not produce authorisation documents with them. It is
also pointed that L.C. Suit No.1754 of 2012 challenging the notice
U/s.351 of MMC Act has been dismissed by the Court. The plaintiff
failed to apply for regularation of notice work. Said dismissal
order was passed on dt.19/12/2015 and appeal taken out by the
plaintiff bearing Stamp No.313/2016 has also been dismissed.
Therefore, unauthorised covering of compulsory open space on
north side of said building, part fiber sheet roof part wooden roof
and part G.I. Sheet supported over M.S. pipe section has been
demolished after the order of Hon'ble High Court dt.24/3/2017.
This fact has not been disclosed by the plaintiff while moving this
Notice of Motion. In fact, the plaintiff must come with clean hands
disclosing all relevant facts regarding disputed issue and when he
himself pleaded regarding the order of statusquo in the above
suit, he ought to have disclosed said point while pleading,
advancing the arguments and making submissions on the notice of
motion. This fact makes it clear that the plaintiff has not come
with clean hands and therefore, he is not entitled for equitable
relief.
13 Moreso, it is prima facie clear that the additional area
which made licence for 148.857 sq. meters does not remain in
possession of plaintiff. Still he continued serving food activity in
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the premises. It is crystal clear from the record that the notice
structure which was unauthorisedly erected by the plaintiff is not
in existences and in such circumstances, if the plaintiff is
continuing with the activity of serving food etc from that open
premises keeping all articles required for such activity, then
definitely these articles must have been causing nuisance to the
premises and the public in locality. Said activity may not be
hazardous requiring seizure but definitely it must be activity
causing nuisance and such nuisance causing activity on the
premises not in legalized possession of plaintiff cannot be allowed
to be continued taking recourse or undue advantage of grant of
licence in favour of plaintiff. Once structure has been demolished,
validity of said does not arise and on the basis of said licence not
revoked, the plaintiff cannot continue with said business over the
notice structure. In such circumstances, prima facie, it appears
that action on the part of defendants issuing notice U/s.394(4) of
MMC Act for removal and seizure of articles from disputed
structure cannot be said to be illegal or bad in law.
14 Hence, considering discussion made above, I have
arrived at the conclusion that the plaintiff miserably failed to
establish existence of prima facie case in his favour. Continuation
of food serving activity without proving authorisation of structure
causing nuisance to the public cannot show tilting of balance of
convenience in favour of plaintiff. Hence, I hold that proposed
seizure of plaintiff's articles will not cause irreparable loss to the
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plaintiff. Plaintiff miserably failed to establish these three essential
ingredients required for grant of temporary injunction in his
favour. Therefore, I have answered point Nos.1 to 3 in negative
as 'No'.
AS TO POINT NO.4:-
15 In view of negative findings as to point Nos.1 to 3, I
hold that the Notice of Motion is liable to be dismissed. Hence,
following order is passed.
ORDER
1 Notice of Motion No.2146 of 2018 is dismissed.
2 Notice of Motion is disposed off.
Date:19/09/2022.
(A.H.KASHIKAR)
ADHOC Judge, City Civil Court,
Gr.Mumbai.
Dictated on :19/09/2022.
Typed on :23/09/2022.
Signed on :23/09/2022.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
23/09/2022. 4.55 p.m. (Santosh B. Sawant )
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
No.)
HHJ Smt. A.H. Kashikar
(C.R.No.05)
Date of Pronouncement of
JUDGMENT/ORDER
19/09/2022.
JUDGMENT/ORDER signed by
P.O.on
23/09/2022.
JUDGMENT/ORDER uploaded on 23/09/2022.
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