Interim Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 3435/19 in SU 2480/19
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
NOTICE OF MOTION NO. 3435 of 2019
IN
L.C.SUIT NO. 2480 OF 2019
(CNR No. MHCC010093662019)
Rajaram Ramharak Gupta & Ors. )...Plaintiffs.
Versus
The Municipal Corporation of Greater Mumbai )...Defendant.
Appearance:
Adv. Mr. Yuwraj D.Patil for plaintiffs.
Adv. Mr. Kumavat for defendants/MMC.
CORAM: HIS HONOUR JUDGE
SHRI. R.V.KOKARE
DATE : 07th OCTOBER, 2019.
(C.R.No.06)
O R D E R
This is Notice of Motion taken out by the plaintiffs for temporarily
restraining to the defendant/Corporation from executing and enforcing
the impugned order bearing numbers SAAJID/OD/298/SR dated
30.08.19, SAAJID/OD/299/SR dated 30.08.19, SAAJID/OD/300/SR
dated 30.08.2019 & SAAJID/OD/301/SR dated 30.08.2019.
2. This Notice of Motion resisted on behalf of the
defendant/Corporation by filing its reply. Read the present Notice of
Motion and reply of the defendant/corporation. Heard both the learned
counsel on behalf of both the sides at length on the Notice of Motion.
Perused the record.
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3. The plaintiffs have submitted that the subject matter of the suit
premises are bearing shop Nos.1 to 4, situated at Opposite Paragon
Textile Mill, Pandurang Budhakar Marg, Near Gopal Nagar, Worli,
Mumbai400 018 (hereinafter referred to as the "suit premises"). The
plaintiffs are legally pitch holders of the suit premises which are duly
alloted by the defendant/Corporation in favour of all the plaintiffs and
their forefathers, by following due procedure of law as prescribed in
Mumbai Municipal Corporation Act, 1888. The suit premises were
allotted to plaintiffs and their forefathers prior to 1970. The forefathers
of the plaintiffs started business of selling vegetable and also regularly
paying the tax and rent to the defendant/Corporation. The
defendant/Corporation issued proper licenses in favour of all the
plaintiffs. The plaintiffs are regularly paying the taxes to the
defendant/Corporation. There was no any kind of nuisance or
disturbance on part of the plaintiffs or their shops to any public or
residence of said place and there was also no any complaint by any of
the people and also no notice given by the defendant/Corporation to
the plaintiffs.
4. On 14.08.2018, surprisingly the officers of the
defendant/Corporation came to the suit premises and given notice
without mentioning the names of the plaintiffs on their shop premises
intimating that the plaintiffs constructed unauthorized market shed,
hence action under section 314 of the BMC Act, 1888 will be initiated
upon the plaintiffs suit premises. The copy of the notice bearing No.
AEMGS/200/SR dated 14.08.2018. After receipt of the said notice, the
plaintiffs replied the notice dated 14.08.2018 through their Advocate by
letter dated 23.08.2018 and the plaintiffs and one another have filed
the suit before this Court bearing Suit No.1767 of 2019 seeking relief to
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set aside the notice dated 14.08.2018. The said suit was disposed off by
this Court due to the officers of defendant/Corporation made statement
before the Court that "defendant/Corporation has no objection if the
plaintiffs carry their business within the area 1 mtr. X 1 mtr. as per
allotment". Therefore, the said suit was disposed off on 15.02.2019.
5. On 30.08.2019, officers of the defendant/Corporation visited on
suit site and handed over the letters dated 30.08.2019 and directed to
the plaintiffs to shift the suit business from suit site to other place which
is very long from the suit site. The plaintiffs state that near to the
business of the plaintiffs there is public toilet block which is in exist
since long as the plaintiffs business and the same is completely
adjoining to the plaintiffs business. There are various structures on said
road the defendant/Corporation not given notice or taken any action
upon those structures and only to harass these plaintiffs, giving notices
one by one. In the development plan 2034, the defendant/Corporation
is seen it will get clear that the Pandurang Budhakar Marg, Worli,
Mumbai is not shown under road widening or any development on said
road.
6. The learned counsel on behalf of the plaintiffs argued that the
defendant/Corporation not acting in good faith when issued the
impugned order dated 30.08.2019. The said order is only to oblige the
builder who wants to remove suit premises. Impugned order has the
effect of throwing the plaintiffs on streets without being heard in the
matter and therefore, principles of natural justice are violated. The
defendant/Corporation was not following single direction which are
laid down by the Hon'ble Supreme Court in Maharashtra Ekta
Hawkers Union and Another Vs. Municipal Corporation, Greater
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Mumbai. The plaintiffs have made out prima facie case and balance of
convenience is also lies in favour of the plaintiffs. If the temporary
injunction is not granted in favour of the plaintiffs then the plaintiffs
will suffer irreparable loss which will not compensated in terms of the
money. On these grounds, the learned Advocate of the plaintiffs
submitted that the present Notice of Motion of the plaintiffs may kindly
be allowed.
7. The learned Advocate on behalf of the defendant/Corporation has
submitted that it was incumbent on the plaintiffs to give a statutory
notice to the defendant Corporation before filing a suit against them as
required under the provisions of section 527 of Bombay Municipal
Corporation Act. The plaintiffs have failed and neglected to give any
such notice to the defendant and therefore, the suit and Notice of
Motion of the plaintiffs are liable to be dismissed.
8. The learned counsel on behalf of the defendant/Corporation has
further submitted that the previous suit of the plaintiffs bearing
No.1767 of 2019 was disposed off by this Court dated 15.02.2019. After
disposal of the said suit, the Assistant Engineer(Maintenance), GSouth
Ward send office note to the Sr. License Inspector vide Note
No.ACGS/AE(M)/GS/2419/SR dated 05.03.2019. By the said letter, it
was informed that as per directions of Hon'ble Municipal Commissioner
dated 09.12.2015 to widen the various roads. As per directions of
Hon'ble Municipal Commissioner, the sanction of DMC (ZoneII) on
08.02.2015 gave his sanction in respect of widening of Pandurang
Budhakar Marg and thereafter, on 26.07.2018, the present
DMC(ZoneII) also sanctioned to widen the Pandurang Budhakar Marg.
At present, the road line of Pandurang Budhakar Marg is 80 feet and 97
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structures including one Public Toilet and one Vegetable Market Shed is
affecting in the road widening from N.M. Joshi Marg to Mahindra
Building. The suit premises are also affecting in the said road widening,
hence these defendants was issued notices under section 314 of MMC
Act, 1888. Now, at present, considering the traffic issue of Pandurang
Budhakar Marg, the issue was discussed in the meeting and discussed to
shift the suit premises. After that the joint inspection was carried out
with Sr. License Inspector on 06.02.2019. As per meeting with Hon'ble
Additional Municipal Commissioner (City), it was decided that, as per
the direction of Town Vending Committee the Pandurang Budhakar
Marg is not a Hawkers Zone and hence, it needs to remove all the
pitches from Pandurang Budhakar Marg and to shift the said pitches at
Sayani Road near Electric Pole no.SY3, where there is big space as
Footpath is having more width and after shifting the said pitches the
footpath will be free for pedestrians and smooth functioning. Hawkers
Zone List produced by the defendant/Corporation shows that the Sayani
Marg is Hawkers Zone and the present suit premises situated on
Pandurang Budhakar Marg is not a Hawkers Zone.
9. The learned counsel on behalf of the defendant/Corporation
further submitted that after approval of Hon'ble DMC (ZoneII) and
Hon'ble AMC (City), the Assistant Commissioner passed orders bearing
No.ACGS/OD/298/Lic. dated 30.08.2019 to Rajaram R. Gupta (plaintiff
No.1), ACGS/OD/299/Lic. dated 30.08.2019 to Sikhari Sonkar
(plaintiff No.2), ACGS/OD/300/Lic. dated 30.08.2019 to Umashankar
Gupta (plaintiff No.4) and ACGS/OD/301/Lic. dated 30.08.2019 to
Dalsingar Gupta (plaintiff No.3). After following due process of law,
these defendants sanctioned and approved to shift the plaintiffs as they
are affected in road widening. These defendants are following the
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guidelines of Hon'ble High Court and Hon'ble Supreme Court which are
given in Hawkers case, hence the plaintiffs have no right to obstruct
these defendants and road widening.
10. The learned counsel of the defendant/Corporation lastly
submitted that the plaintiffs have failed to make out any prima facie
case for the grant of an injunction or any relief against the defendants
and to obstruct the public project as the widening of road is for the
public at large and same is service to citizen of Mumbai, which is not
business of these defendants. On the contrary, huge amount needs to
spend for road widening work. The plaintiffs have failed to prove prima
facie case. Balance of convenience also does not lies in favour of the
plaintiffs. The plaintiffs will not suffer any irreparable loss if this Notice
of Motion is rejected, but if this Notice of Motion is granted then the
defendant/Corporation will suffer irreparable loss than the plaintiffs.
On these grounds, learned counsel on behalf of the
defendant/Corporation submitted that the present Notice of Motion of
the plaintiff may deserves to be rejected.
11. The plaintiffs have produced documentary evidence
alongwith list of documents at page no.24 of the plaint. The copies of
licence issued by the defendant Corporation in favour of the plaintiffs
are produced by the plaintiff colly. at Exh.A. The copies of some of the
receipts issued by the defendants to the plaintiffs produced colly. at
Exh.B. The copies of the letters dated 17/04/2002 issued by the
defendant Corporation in favour of the plaintiffs are colly. produced at
Exh.C. The photograph showing the staff of the defendant Corporation
erecting teen shed on suit premises produced by the plaintiff at Exh.D.
The copies of the New Licenses issued by the plaintiff colly. produced by
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the plaintiff at Exh.E. The copy of the notice bearing
No.AEMGS/200/SR/Dt.14/08/2018, produced by the plaintiff at Exh.F.
The copy of advocate reply dated 23/08/2018 to the notice issued by
the defendant dated 14/08/2018, is produced at Exh.G. The copy of
order/roznama dated 15/02/2019 in suit bearing Suit No.1767 of 2019,
produced at Exh.H. The copies of the photographs which shows the suit
premises and Public Toilet Block are at Exh.I. The copy of the
Development Plan prepared by the defendant Corporation produced by
the plaintiff at Exh.J. The plaintiffs have also produced documentary
evidence under list dated 07/09/2019 i.e. the copy of DP remarks 2034,
copy of the photograph of the suit premises, copy of the photographs of
alternate site.
12. The defendants Corporation has filed the documents under
list of documents i.e. Copy of Minutes of meeting dated 26/07/2018,
Copy of entire proposal with Approval and Sanction of Hon'ble M.C.
regarding removal of Bottleneck of Pandurang Budhkar Marg Junction
dated 18/01/2019, Copy of plan of Road widening project, Copy of
office letter dated 05/03/2019, Copy of list of Hawkers Zone and Copy
of proposal dated 06/06/2019 and Approval dated 13/08/2019.
13. On scrutiny of the pleading of both the parties and
documentary evidence produced on behalf of both the sides, it is not
disputed that the plaintiffs are doing the business of selling vegetables
since long at the suit premises situated at Opp. Paragon Textile Mill,
Pandurang Budhakar Marg, Near Gopal Nagar, Worli, Mumbai. It is not
disputed that the defendant Corporation allotted to the plaintiffs pitch
holders for doing their business of selling vegetables. It is not disputed
that the plaintiffs are not doing any noise and no one of the locality of
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the said premises made complaint against the plaintiffs in respect of the
suit premises. The real controversy between the plaintiffs and
defendants Corporation are that according to the defendants
Corporation, the suit premises caused obstruction for road widening of
Pandurang Budhakar Marg. According to the plaintiffs there is no any
affect to the suit premises by Road widening carried by the defendant
Corporation. The defendant Corporation has not started or there is no
plan of the defendant Corporation for road widening of Pandurang
Budhakar Marg. On scrutiny of the documents produced on behalf of
defendant Corporation, it appears that the defendant Corporation is
planned to road widening of the Pandurang Budhakar Marg and due to
said road widening there will be affect to the suit premises. Moreover,
the defendant Corporation has approved and allotted alternative place
for doing their business. As such, the defendant Corporation made
arrangement to the plaintiffs for their business of selling vegetable. The
alternative place allotted by the defendants Corporation to the plaintiff
at Sayani Road which is shown in the Hawkers Zone, the said document
produced by the defendants. The copy of list of Hawkers Zone at Sr. No.
2 under list of documents of the defendants. Therefore, for the purpose
of road widening of Pandurang Budhkar Marg, the defendants
Corporation issued legal notice dated 30/08/2018 which are
challenged by the plaintiffs under notice of motion.
14. From above my discussions, I come to the conclusion that
the plaintiff has no prima facie case, balance of convenience does not lie
infavour of the plaintiffs. The plaintiffs will not suffer any irreparable
loss if the notice of motion is to be rejected, but if the notice of motion
of the plaintiff is to be allowed, then the defendant Corporation will
suffer irreparable loss and its work for road widening will be stopped.
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Hence, I have proceed to pass following order.
ORDER
Plaintiffs notice of motion No.3435/19 is hereby dismissed.
Date : 07/10/2019 (R.V.Kokare)
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 07/10/2019
Transcribed on:07/10/2019
Signed by HHJ : 11/10/2019
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2480/19
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
14/10/2019 Mrs. V.V.Malgaonkar
Name of the Judge HHJ Shri R.V.Kokare(CR
No.06)
Date of Pronouncement of
Judgment/Order
07/10/2019
Judgment/order signed by P.O on 11/10/2019
Judgment/order uploaded on 14/10/2019
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