Judgment:
J.G. Chitre, J.
1. Mrs. Mondale for the petitioners. Respondent has been served but she is absent and none present for her. The petitioner ishereby assailing the correctness, propriety, and legality of the judgment and order passed by the Judge Small Causes Court, Bombay, in Municipal Petition No. 168/1987 whereby the learned Judge allowed the appeal filed by the respondent in context with the provisions of Section 394(5) of Bombay Municipal Corporation Act 1988 (hereinafter referred to as, B.M.C. Act for convenience.)
2. The respondent Mrs. Jani had contended before the learned Judge in the said appeal that she had taken over the business which was carried on by M/s C. S. Pocha and Sons in respect of a godown which was situated at Palekar Road, near Jagannath Shankarsheth Road, Girgaum. However, the petitioner B.M.C. refused to renew the said licence when she had applied for that. She contended that the said business was carried on by M/s C. S. Pocha from 1964 till 1973 and therefore, she was entitled for renewal of the said licence. The petitioner by written statement dated 15-7-1987 opposed the said prayer by contending that the respondent Mrs. Jani was carrying on the said business of warehousing in the said premises prior to 1977. It was contended that the premises in which the said business was carried on was dilapidated and was situated in heavily crowded area, which was a residential zone. It was contended that for warehousing business, vehicles and carts would come and that would cause serious prejudice to the traffic and the persons residing in the said locality.
3. Respondent Mrs. Jani examined two witnesses, one, her power of attorney holder and second, Shri Mahadik, an employee of B.M.C. B.M.C. examined one Joshi, its employee. The learned Judge after appreciating the evidence on record concluded that respondent Mrs. Jani had proved that she had taken over the business of M/s C. S. Pocha and Company which was carrying on the business of the godown in the said premises since 1964 till 1972-73 and therefore, Mrs. Jani was entitled to get the said licence renewed. He also held that the petitioner did not give sufficient reasons while rejecting her prayer, for renewal of the said licence. The learned Judge also concluded that the evidence of Shri Jani, the power of attorney holder of Mrs. Jani, had gone unchallenged.
4. After carefully examining the evidence on record and the reasons given by the learned Judge in his judgment, this Court comes to the conclusion that the conclusions which have been drawn by the learned Judge are contrary to the evidence on record. The letter by which the refusal was conveyed to Mrs. Jani was indicating the reasons as to why the said permission was refused. Therefore, it cannot be proper, correct and legal to say that the said letter was void of any reasons. The point that the said premises situated in thickly populated locality was also indicated by the petitioner for refusal of the permission.
5. It is not correct and legal to say that the evidence of Shri Jani, the holder of power of attorney of Mrs. Jani, had gone unchallenged. The said witness was cross-examined by the petitioners advocate and sufficient grounds for justifying the stand taken by the petitioner were brought on record. The learned Judge lost sight of those grounds and had erroneously recorded his finding that the said evidence had gone unchallenged.
6. Though sufficient opportunity was available to said Shri Jani he did not produce any documentary evidence to show that the business of M/s C. S. Pocha and Company was taken over by Mrs. Jani. The presumption would go against him as indicated by Section 114 of the Indian Evidence Act. It will have to be concluded that if all those documents were produced, those documents would have gone against respondent Mrs. Jani.
7. It has been brought sufficiently on record that premises where Mrs. Jani wanted to have business of warehousing was situated in thickly populated area. It is for the Bombay Municipal Corporation to take a decision whether a person should be permitted to carry on the business of trading in warehousing in the said thickly populated locality because permitting a person to carry on such business would be causing serious prejudice to the smooth flow of traffic and that would cause serious prejudice to the safety of traffickers on the roads in the said locality.
8. Section 394 of the B.M.C. Act provides that 'except under and in accordance with the terms and conditions of the licence granted by Commissioner, no person would' etc. etc. Therefore, it was necessary for Mrs. Jani to obtain the licence granted by the Commissioner prior to starting the said trading or business of warehousing in the said premises. But her contention itself shows that she was carrying on the said trade and business till it was noticed by Shri Ramchandra Joshi who visited the said premises on 31-3-1986 and drew his report in respect of the said visit to the said premises, furthermore it is important to note that Shri Jani, power of attorney holder of Mrs. Jani, was present at the time of said inspection. The evidence was brought on record to show that the said godown was filled in with cloth bales and packed boxes and was situated in thickly populated Girgaum road and was near bus stop. It is pertinent to note at this juncture that the application for renewal which was submitted by Mrs. Jani was dated 12-8-1986. Therefore, when she started the said business without a licence granted by the Commissioner of Bombay Municipal Corporation she was not having a right to get the said licence renewed as a matter of right.
9. Keeping in view environmental, hygienic hazardous eventuality and possibility of rats spreading epidemic diseases, the corporation should not allow the business of godowns in thickly residential localities within corporation limits. In the present case corporation has done the same. Where it is wrong on this point?
10. The learned Judge committed gross error of ignoring all these important aspects of the matter and therefore, landed in error passing the said judgment and order which has been assailed by this petition. This Court while exercising the jurisdiction of superintendence in context with the provisions of Article 227 of Constitution of India cannot permit such illegal judgment and order to remain in existence. Therefore, by granting a writ of certiorari in favour of the petitioners, the said judgment and order stands quashed. Petition stands allowed with costs and rule is made absolute.