Shree Mulund Stall Holders And ... vs Municipal Corporation Of Greater ...
2022 Latest Caselaw 2360 Bom

                                AO-217 & 216-2021 aw IA-3217 & 3216-2020.doc
                                Reserved On-02.03.2022 & Pronounced On - 09.03.2022




            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CIVIL APPELLATE JURISDICTION

                 Appeal from Order No. 217 / 2021

                            Alongwith

               Interim Application No. 3217 / 2020
                                in
                 Appeal from Order No. 217 / 2021

                            Alongwith

                 Appeal from Order No. 216 / 2021

                            Alongwith

               Interim Application No. 3216 / 2020
                                in
                 Appeal from Order No. 216 / 2021

Shree Mulund Stall Holders and Owners
Welfare Association (Registered)      ..                     Appellant
                  Versus.
Municipal Corporation of Greater Mumbai
Thr. Its Ward Office "T" Ward.        ..                     Respondent


                        ****

Mr. G.V. Murti a/w Y.K. Tiwari i/by Pradeep L Dubey, Advocate for the Appellant.

Mr. Dharmesh Vyas a/w Mr. Ravindra Sirsikar, Advocate for Respondent/MCGM.

                               ****



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AO-217 & 216-2021 aw IA-3217 & 3216-2020.doc Reserved On-02.03.2022 & Pronounced On - 09.03.2022

CORAM : SANDEEP K. SHINDE J.

                           RESERVED ON         : 2nd MARCH,2022.
                           PRONOUNCED ON : 9th MARCH,2022.

Oral Judgment : -

1. It is settled law that if a project undertaken

by the local body is beneficial for larger public,

inconvenience to small number of people is to be

accepted. Thus, proposition of law is that

individual interest or for that matter smaller

public interest must yield to the larger public

interest. Therefore, inconvenience to some, should

be bypassed for a larger interest or cause of the

society.

. Here is the case, where retail vendors, who were

permitted to install small stalls along the road,

abutting Railway Station, in Suburbs of Mumbai, have

declined to shift their stalls, at alternate

locations, offered by the local Authority. As also

they are not willing to accept compensation offered

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by the local body - in lieu of their stalls. Reason

being, the alternate sites offered were not

'suitable'. Facts of the case, are like this.

Appellant is a registered Association of stall-

holders. Its' members claim that Standing Committee

of the Corporation vide Resolution dated 17th August,

1983 authorized them, to install stalls of a

specified size along S.V.P. Road, abutting Mulund

Railway Station, between west side of Railway

Station Gate up to Police Chowki. Indisputably

stalls abutting the Railway Station had caused the

situation like, water-logging in past in rainy

season. Thus, to prevent water logging in Railway

Station, Respondents decided to construct storm

water drain, to cause the water run-out. As also

since the suit stalls are constructed along a road,

having large volume of vehicular traffic,

Corporation decided to shift stall-holders, to

alternate sites to widen the width of the road. It

all, necessitated the Corporation to issue notices

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on, 17th August, 2017, to the members of the

Appellant-Association, under Section 485 and 485A of

the Mumbai Municipal Corporation Act. These notices

were challenged in suit no. 2438/2017. Whereupon,

the learned Judge, City Civil Court, on 6th November,

2017 passed the following order.

"Notice under Section 485 and 485(A) of the MMC Act.

Both these sections provides for how service of

notice is to be effected and the power of

Commissioner to call for information as to the

Ownership of the premises. As such it appears that

the plaintiff in the suit is challenging the said

notice, when infact the concerned authority has not

yet considered the documents and has not come to any

conclusion. The concerned Officer present before

the Court submitted that the further course of

action would be considering the documents, preparing

inventories, passing orders and draft annextures

will be prepared and will be communicated to the

concerned. May that it be, it appears that the plff has filed the suit at premature stage. Hence the N/

m as well as suit can be disposed of on certain

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conditions. The plaintiff shall submit all the

relevant documents within a week. The concerned

authorities after considering the same and following

the procedure will intimate the plaintiff in writing

the said order. It is also submitted by the

concerned Officer that plaintiff will be given

hearing after publication of Annexure II. If the

final order/ speaking order is adverse to the

plaintiff then no coercive action will be taken for

period of one week. This N/m is disposed of

accordingly. N/m be registered for statistical

purpose."

2. Thus, the learned Court, directed the members of

Association to submit all relevant document to

Municipal Authority for its' consideration. Pursuant

to that, Corporation held some members of Appellant-

Association eligible for raising stall at alternate

places. Let me note, that the members of Association

have their stalls on S.V.P. Road, Mulund (West).

There is yet another association of stall owners,

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namely 'J.S.D. Stall Owner Association', whose

members were occupying the stalls along a J.S. Road,

near Railway Station, Mulund (West). Members of the

said association were also issued notices by the

Corporation. Whereafter, J.S.D. Stall Owner

Association, had filed the Writ Petition Lodging No.

671/2020, questioning legality of notices and

alleging that Corporation was only targeting its'

members but guarding the stalls of Appellant-

Association, although both, were similarly situated.

It is noteable that, Counsel appearing for the

Corporation in the said Writ Petition, informed the

Division Bench that Corporation shall demolish all

stalls on N.S. Road and S.V.P. Road simultaneously.

As to alternate stalls offered to the members of

J.S.D. Stall Owners Association is concerned,

Association had agreed to accept the stalls at

alternate place. The Paragraph No. 3, 4 and 5 of

the order dated 28th February, 2020 in WP. Lodging

No. 671/2020 reads as under;

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"3. As far as the issue pertaining to providing alternate stalls to the members of the Petitioner Association is concerned, the Petitioner Association on behalf of 30/31 stall holders has agreed to accept the stalls at Shankar Gopal Joshi Marg, Mulund, West, Mumbai. The 30/31 stall holders through the Association undertake to vacate their respective stalls by 03.00 p.m. on 29th February, 2020.

4. The Corporation shall start the demolition work on 29th February, 2020 at 03.00 pm.

5. The concerned Deputy Commissioner of Police shall provide necessary protection to the Demolition Squad of the Corporation."

3. Here members of the Appellant-Association have

been held eligible for raising their stalls at

alternate locations. Vide notices dated 29th

February, 2020 purportedly issued under Section 314

of the MMC Act, Corporation offered alternate place

at six different locations to the Appellants'

members and were directed to opt their choice and

shift stalls within 24 hours. Vide notice, they

were requested to contact the Assistant Engineer,

Maintenance, in case of any difficulty. Ideally,

they ought have accepted the offer. However notices

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were challenged in the L.C. Suit Stamp No. 2927/2020

in Bombay City Civil Court, Bombay. Contending,

that, since they have been permitted to install

stalls by the Standing Committee, they were not

unauthorized occupants and therefore Corporation

cannot evit or ask them to shift. Pending suit,

Plaintiff-Association sought stay to execution and

implementation of notice dated 29th February, 2020,

which the trail Court declined vide order dated 5 th

March, 2020. That order is under challenged in

these appeals, under Order-43, Rule-1(r) read with

Section 104 of the Civil Procedure Code.

4. Proceeding before this Court/Orders :

(i) On 12th March, 2020, the following order was

passed by this Court.

"Learned counsel for the Appellant-Association

states that the stall owners shall report to the

Assistant Commissioner "T" Ward at 5.00 p.m. in his office when an amicable resolution could be

discussed.

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2. The learned counsel for the Corporation states

that the Assistant Commissioner would make every

possible effort and endeavour to resolve the issue

by offering alternate suitable pitch to the members

of the Appellant.

3. List the Appeal on 17 March, 2020 under the

caption 'for Settlement'.

4. The ad-interim relief already in operation to

continue till then. It is made clear that this

interim order is restricted to the stall owners who

are parties to this Appeal from Order."

. The underlined part of the order, indicates at

one time stall holders were inclined to accept the

offer. Nevertheless to afford more time, the order

dated 12th March, 2020 was continued from time to

time. Be it noted that till 14th January, 2022,

members of the Appellant-Association did not

exercise the choice. Therefore, this Court on 14 th

January, 2022, directed the Appellants to exercise

the option within three weeks.

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(ii) On 10th February, 2022, Counsel for the

Corporation informed the Court, that members of the

Appellant-Association did not exercise the option.

In that view of the matter, Corporation was called

upon to place on record its' policy decision

relating to rehabilitation of projected affected

persons. Accordingly, Mr. Vyas, learned Counsel for

the Corporation, has placed on record a policy

circular of the Corporation, allowing monetary

compensation to the commercial project affected

persons.

5. Mr. Vyas, learned Counsel for the Corporation,

submitted that since eligible members of Appellant-

Association, were not willing to accept the

alternate place offered by the Corporation, as per

the policy, the members of the Association shall be

paid monetary compensation. The statement is

accepted as an undertaking to this Court. Next

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submission of Corporation, is that even assuming,

but without admitting, that resolution of Standing

Committee, has created some rights in favour of

stall-holders, but even then they cannot impede or

hold-up the projects undertaken by the Corporation

in the interest of citizens and particularly when,

Corporation was/is willing to offer alternate sites

or monetary Compensation. Mr. Vyas therefore

submits order impugned calls for no interference.

6. Mr. Murti, learned Counsel appearing for the

Appellants, contended that the Corporation could not

have issued the notice under Section 314 of the MMC

Act, reason being the members of Appellant-

Association are occupying the suit stalls under the

authority of Standing Committee. His next submission

is that, the decision of Corporation to offer

monetary compensation, in terms of its' policy,

cannot be applied to the facts of this case. He

submitted that there is no material/documents on

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record to even suggest that Corporation has

prescribed the road-line in terms of Section 297 of

the MMC Act. Mr. Murti vehemently, submitted the

members of the Appellant-Association being

authorized occupants, they cannot be evicted,

without following the procedure prescribed for the

acquisition under the MMC Act. Mr. Murti further

submitted that the learned trial Court failed to

appreciate the character of possession of the stall

holders and the relevant provision of the MMC Act.

Submission is that the suit structures/stalls have

been protected and since the appeal is preferred

against the order, refusing the ad-interim relief,

let the relief be continued and the trial Court be

directed to decide the motion on its' own merits.

7. In consideration of rival submissions, it can be

said, that assuming that raising of these stalls

along the S.V.P. Road near Mulund Railway Station,

was authorized by order/permission granted in

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pursuant to resolution of Standing Committee, yet,

fact cannot be overlooked that stalls had caused and

cause the water logging in rainy season at Railway

Station; as well obstructing movement of vehicular

in traffic. Therefore the Corporation as its

statutory obligation, has resolved to construct the

storm water drain to prevent a water logging and

widen the width of S.V.P. Road to ease vehicular

traffic. Therefore, the projects undertaken by the

Corporation are in the public interest and in

discharge of its statutory duties. Thus, what

Appellants are seeking is an order to injunct the

Corporation from discharging their staturoty

obligations. Moreso, the stall holders have been

offered the alternate sites for installing the

stalls at six different locations. Also it is

evident from the orders passed by this Court from

time to time, that the eligible members of

Appellant, have not exercised the option for over

period of two years and therefore it is to be

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inferred and held that they are not interested in

alternate sites. Be that as it may, resolution of

the Standing Committee dated 22nd June, 1983 and a

letter addressed to Appellants on 27th June, 2002 by

the Assistant Commissioner 'T' Ward, on the face of

it simply grants license to install the existing

stalls. Neither it is a grant, nor creates

proprietary rights in favour of the allottees. The

facts emerging from the resolution of the Standing

Committee and consequential communication are thus;

"The Standing Committee vide their resolution

no. 2722 dated 28th November, 1979 desired that the

existing licensees along S.V.P. Road, Mulund (West)

be first shifted to the plots earmarked for the

markets. However, Councilors were of view that

stalls at S.V.P. Road, near Mulund Railway Station

may not be shifted to new markets at plot no.36 and

5-A. They desired that instead of shifting the

stalls, the Administration may allow them to

continue at S.V.P. Road, near Mulund Railway

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Station, provided each stall holder reduces the size

of the stall ½ of the present size, from the front

so as to widen the road." The efforts over a decade

by the Administration to shift stalls to the new

markets were not successful as a stall-owners and

other interested parties have instituted protracted

litigations. The stall-holders were not willing to

shift to the new markets; but ready to reduce the

size of the stall to ½ of their present size, if

they were allowed to remain on the existing site

i.e. on S.V.P. Road. Whereafter it appears the

stall-holders were permitted to reconstruct the

existing stalls of a particular size upon certain

terms and conditions."

. Therefore, neither the resolution of the

Standing Committee, nor the letter dated 27th June,

2002 creates any interest in favour of the stall-

holders. Therefore, a character of possession of

the stall-holders is that of 'licensees' and nothing

more. Thus, taking into consideration, the facts of

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the case, it is evident that even in past,

Corporations' efforts to shift stall-holders to the

new markets at plot no. 36 and 5-A, were

successfully stalled by the members of the

Appellant-Society. Now it is need of the time to

shift the stalls, inasmuch as the stalls were/are

causing hindrance in constructing the storm water

drain, which would cause water run out and prevent a

water logging in the Railway Station. For the

reasons aforestated, in my view the Appellants have

neither made out a prima-facie case, nor the balance

of convenience tilts in their favour, nor they would

suffer irreparable loss if shifted to new site

offered by the Corporation. If at all they do not

wish to shift to the new sites, Corporation is

ready and willing to compensate to them in

accordance with law and policy in place. In that

view of the matter, the order impugned requires no

interference. Appeals are dismissed.

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8. Appeals and all Applications therein, are

disposed of.

(SANDEEP K. SHINDE, J.)

9. When order was pronounced at 10:30 am., nobody

was present on behalf of the Appellant. At 01:30

pm., Counsel for the Appellant requested to continue

the protection, that was granted by the trial Court

vide order dated 5th March, 2020 for a period of two

weeks.

10. In consideration of the facts of the case, ad-

interim protection is extended for three weeks from

today.

                                                      (SANDEEP K. SHINDE, J.)
                                 Digitally signed
                                 by MOHAMMAD
                      MOHAMMAD   NAJEEB
                      NAJEEB     MOHAMMAD
                      MOHAMMAD   QAYYUM
                      QAYYUM     Date:
 Najeeb..                        2022.03.09
                                 17:46:37 +0530