Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 4048-19 in Suit No.2710-19
CNR NO.MHCC0101113619
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO. 4048 OF 2019
IN
L.C. SUIT NO. 2710 OF 2019
Dashrath Shrirang Mane …...Plaintiff
Versus
The Municipal Corporation of Gr. Mumbai ..... Defendant
Coram : Sanjay N. Yadav, Judge
(Court Room No. 05)
Date : 20th November, 2019.
Appearance:
Ld. Adv. Mr. Sushil Shukla for 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 demolishing, relocating, shifting the
suit structure pursuant to the Order dated 18.12.2018 and the Notice
dated 19.09.2019.
2. Heard Learned Advocate for the plaintiff and Learned Advocate
for the defendant corporation.
3. The clause 2 after para, order dated 18.12.2018 relates to the
plaintiff Dashrath Shrirang Mane.
The findings are as follows:
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2 NM 4048-19 in Suit No.2710-19
''His license has been renewed regularly and is now valid up to
31.10.2019. It is true that although he is not within the private
premises of the rear side building, but he is in front of the building
which is outside the set back portion handed over by the developer to
the M.C.G.M. The present situation is such that he is located in the
middle of the road. Javji Dadaji Road is prone to heavy traffic and is
also a busy bus route.''
''But more importantly, the said cobbler's stall is within 100 meter
distance from Bhatia Hospital. As such, he falls within the no hawking
zone as per no hawking zone criteria. The said redeveloped building is a
high rise building and even though not very directly, but certainly
indirectly, the continuation of the cobbler stall, as in the current
position, is a high risk hazard at time of emergency. These two factors
i.e. risk hazard and 100 meters nonhawking zone criteria, necessitate
shifting of cobbler's stall.''
4. The Learned Advocate for the plaintiff argued that the action
initiated by the defendant is with malafide intentions of the developer.
The stall of the plaintiff is at the place since last 75 years.
The plaintiff had not specifically countered the two finding of the
defendant i.e. risk hazard and 100 meters nonhawking zone criteria,
necessitate shifting of cobbler's stall. The permission dated 13.10.1998
shows that the defendant has right to shift the stall without assigning
any reason. The defendant corporation is not intending to evict the
plaintiff. They have only proposed to shift. It is not in dispute that the
plaintiff is armed with valid permission of the stall, is the rightful owner
and has license. He is regularly depositing the requisite fees. The
plaintiff would not be put to irreparable loss, if the stall is shifted to
some other place. The balance of convenience does not lies in favour of
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3 NM 4048-19 in Suit No.2710-19
the plaintiff. The notice of motion therefore cannot be entertained.
The plaintiff has failed to make out the primafacie case in his
favour. The balance of convenience does not lies in favour of the
plaintiff. The plaintiff would not be put to irreparable loss, if the
temporary injunction is refused.
In the result, following order is passed.
ORDER
The Notice of Motion No. 4048/2019 is dismissed.
(Sanjay N. Yadav)
Judge,
Date : 20.11.2019 City Civil Court, Mumbai.
Dictated on : 20.11.2019
Transcribed on : 23.11.2019
Signed by HHJ on : 29.11.2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 29.11.2019 at 11.25 a.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
20.11.2019
JUDGMENT/ORDER signed by
P.O. on
29.11.2019
JUDGMENT/ORDER uploaded
on
29.11.2019
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