Mr. Haji M. C. Ahamed Chalakkal Moidunny v. Municipal Corporation Of Greater Mumbai

osk 19-ao-90-2018.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 90 OF 2018 WITH CIVIL APPLICATION NO. 123 OF 2018 Haji M.C. Ahamed Chalakkal Moidunny ...

Appellant V/s.

Municipal Corporation of Greater Mumbai ...

Respondent • Ms.Shruti Tulpule a/w. Ms.Shivani S. Samel for the Appellant. • Mr.J.Reis, Senior Advocate a/w. Mrs.Madhuri More for the Respondent-Corporation.

CORAM : DR.SHALINI PHANSALKAR-JOSHI, J.

DATE : 24th SEPTEMBER, 2018.

P.C. :

1] Heard learned counsel for the Appellant and learned counsel for the Respondent.

2] This Appeal takes an exception to the order dated 11/08/2017 passed by the City Civil Court at Dindoshi, Goregaon, Mumbai, thereby refusing the ad-interim relief in Notice of Motion in L.C. Suit (St.) No.6870 of 2017.

3] The said Notice of Motion was taken out by the Appellant in view of the notice dated 05/09/2014 issued by the Respondent 1/3

osk 19-ao-90-2018.odt calling upon the Appellant to demolish the said structure, as it is coming in the way of the construction of the storm water drain. 4] It was his contention that he is having the proper license from the Municipal Corporation to conduct the business in the said stall and if the order of ad-interim relief was not granted, he would suffer an irreparable loss. However, when it was pointed out by learned counsel for the Respondent-Corporation to the 'Circular' issued under Section 314 of the Mumbai Municipal Corporation Act, 1888 (MMC Act) indicating that only stalls in respect of which license under Section 313 of the MMC Act are issued are protected, learned counsel for the Appellant has fairly admitted that the Appellant has no such license. In view thereof, the trial Court refused the ad-interim relief.

5] In the Appeal from such order, when admittedly the Appellant is not having any license under Section 313 of the MMC Act, no interference is warranted in the impugned order passed by the trial Court; especially when the Affidavit filed on behalf of the RespondentCorporation shows that at present only the stall of the Appellant is standing and it is coming in the construction of the storm water drain and its proper connectivity is not done at particular location. 2/3

osk 19-ao-90-2018.odt 6] In view thereof, as the stall is apparently unauthorized, the construction thereof is also coming in the way of public cause, the trial Court has rightly refused the ad-interim relief. In Appeal from such order, no interference is warranted, the Appeal therefore stands dismissed.

7] At this stage, the request is made by learned counsel for the Appellant to extend the order of ad-interim relief granted by this Court. Learned counsel for the Respondent-Corporation strongly resists the same.

8] In view of this Court also, for the reasons stated here-inabove, no such ad-interim relief can be extended; hence this request is also rejected.

9] In view of dismissal of the Appeal, nothing survives in the Civil Application, hence stands disposed off. [DR.SHALINI PHANSALKAR-JOSHI, J.] 3/3