Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 2297-19 in Suit No. 2323-19
CNR NO.MHCC0100636319
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 2297 OF 2019
IN
L.C. SUIT NO. 2323 OF 2019
Mr. Mehmood Ilyas Khan & Ors. …....Plaintiffs
V/s.
The Municipal Corporation of Greater Mumbai ..... Defendant
Coram : Sanjay N. Yadav, Judge
(Court Room no. 05)
Date : 13th September, 2019
Appearance:
Ld. Adv. Mr. Abdul Rab Shaikh for the plaintiff.
Ld. Adv. Mr. Pradeep Patil for defendant/MCGM.
ORDER
1. The plaintiff by this notice of motion seeks injunction restraining
the defendant corporation from acting upon the notice dated
06.05.2019.
2. The plaintiffs in the Notice of Motion have prayed for injunction
as follows.:
''that pending the hearing and final disposal of this suit the
defendants by themselves, their servants and agents be restrained
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2 NM 2297-19 in Suit No. 2323-19
permanently by an order and injunction of this Hon'ble Court from
acting upon the notices dated 06.05.2019 issued by the Asst.
Commissioner DWard to the Plaintiffs;
bearing no. :SAD/OD/56/SR/DATE: 04.05.2019;
bearing no. :SAD/OD/53/SR/DATE: 04.05.2019;
bearing no. :SAD/OD/52/SR/DATE: 04.05.2019; and
bearing no. :SAD/OD/55/SR/DATE: 04.05.2019, in respect of the suit
premises being Squater Stalls No. 5,6,7 and 8 having license No.
795301858; No. 795308523; No. 795308493; and No. 795308807, on
Bellasis Road, Near Byculla Post Office, Mumbai Central Opp. S.T.
Depot. Mumbai08, admeasuring about (1.5 x 1) Sq. mtrs;''
3. Heard Learned Advocate for the plaintiff and Learned Advocate
for the defendant corporation.
4. It is contended by the plaintiff that the action of the defendant
corporation is high handed. It is contended that the plaintiffs stall are
in existence since long. In order to beautifying the road the plaintiffs
are directed to shift their stall on the same road but opposite to the
church, school and other company, in order to open entrance for
Showrooms at Mt. Kailash Apartment Society. It is contended that the
action is not legal and therefore the plaintiff deserves to be protected by
order of temporary injunction.
5. The defendant corporation had filed the say to the notice of
motion. It is contended that at present this stalls cause nuisance to the
pedestrians as they encroaches the footpath, their clients occupy the
footpath for to get their work done which causes disturbance to the easy
flow of pedestrian. The pedestrian are found to walk on road instead of
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footpath which is very busy road in the city. It is further contended that
out of 21 licensed hawkers, only 10 stalls are relocated. It is also
contended that the special condition in the license is that the licensee
shall vacate the allotted area within 24 hours, if, it is required for public
purpose.
Admittedly, the present suit is filed by four plaintiffs who are
issued notice to shift their stall. They have compositely challenge the
orders issued in fact every individual has independent and cause of
action.
6. The ground for shifting is the stalls are causing obstruction to the
pedestrian and easy flow of the pedestrian can not maintained. The
pedestrian expect a open road to walk. So also for beautifying the area
alternate premises is provided to the plaintiff. It needs to be mentioned
that the stalls are causing obstruction to the pedestrian and therefore
the notice of shifting their stall was issued to the plaintiffs. The
plaintiffs do not seems to have replied the notice to the corporation and
had not shown that their stalls are not obstructing to the pedestrian's.
It is also needs to be mentioned that the plaintiffs are provided
alternate premises in lieu of their earlier premises. The interest at large
is pitted against the interest of the few individual. The interest of public
at large would prevail. The stalls are obstructing to the pedestrian
moving on the footpath. The pedestrian are put to inconvenience. The
plaintiff also are provided alternate accommodation. The plaintiffs are
not entitled to claim the temporary injunction by the present notice of
motion. The balance of convenience lies in favour of the defendant
corporation. The plaintiffs are provided with alternate premises. The
plaintiffs would not be put to irreparable loss, if the temporary
injunction is refused.
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The plaintiffs has failed to make out the primafacie case in his
favour. The balance of convenience does not lies in favour of the
plaintiff.
In the result, following order is passed.
ORDER
The Notice of Motion No. 2297/2019 is dismissed.
(Sanjay N. Yadav)
Judge,
Date : 13.09.2019 City Civil Court, Mumbai.
Dictated on : 13.09.2019
Transcribed on : 16.09.2019
Signed by HHJ on : 21.09.2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 23.09.2019 at 4.10 p.m.
NAME OF STENOGRAPHER : Mrs. K.S.Bhosale
Name of the Judge (With Court
Room no.)
HHJ Shri. Sanjay N. Yadav
C.R. no. 05
Date of Pronouncement of
JUDGMENT/ORDER
13.09.2019
JUDGMENT/ORDER signed by
P.O. on
21.09.2019
JUDGMENT/ORDER uploaded
on
23.09.2019
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