1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CIVIL JURISDICTION APPEAL FROM ORDER NO. 116 OF 2010 WITH CIVIL APPLICATION NO.178 OF 2010 Dudhnath Prajapati ...Appellant. v. The M.C.G.M. ...Respondents. Mr.Archit Jayakar i/by M/s.Khaitan & Jayakar, adv. For the Appellant. Smt. K.K.Soran, adv. For the Respondent/BMC. CORAM : J.H. BHATIA, J. DATED : MARCH 29, 2010 P.C. 1 Heard the learned counsel for the parties. Appellant/plaintiff used to run a small pan stall within the compound of Jyoti Sadan with the permission of the society of that building. The Assistant Engineer (Building) A Ward of the Municipal Corporation issued a notice dated 6.10.2004 under Section 381(ii) and (iv) of the Bombay Municipal Act and required plaintiff as well as secretary of the society to remove, discontinue or abate nuisance because of the pan stall. Plaintiff filed suit no.4880/2004 challenging the said notice and also took out Notice of Motion No.4378/04. The said notice of motion came to be rejected by the impugned order dated 20th July, 2009 by the learned Judge of the City 2 Civil Court, Mumbai. Admittedly, the Municipal Corporation had not filed any reply to the said notice of motion. Provisions of Section 381 provides for the procedure laid down for the purpose of removal of the nuisance. Nuisance itself is defined in Clause 1 of Sub-section (1) which reads as follows: “381. Filling in of pools, etc., which are a nuisance:-(1) (i) For the purposes of this section, a nuisance shall include- (a) any pool, ditch, tank, well, pond, quarry- hole, drain, water course or any collection of water; or (b) any cistern or other receptacle for water or any article or thing capable of collecting rain water during the monsoon season whether within or outside a building; or (c) any land on which water accumulates or is likely to accumulate; or (d) any premises or any part of any premises occupied, or unoccupied, or under construction, reconstruction or demolition; which in the opinion of the Commissioner is, or is likely to become a breeding place of mosquitoes or which is, in any other respect, a nuisance as defined in clause (3) of section 3. 2 When it is brought to the notice of the Commissioner of the Municipal Corporation that the nuisance, as defined above, is in existence and it needs to be removed, further action can be taken as per the procedure laid down in the remaining part of Section 381. On perusal 3 of the definition of nuisance, it becomes clear that when there is accumulation of water because of any pool, ditch, tank, well, pond, quarry-hole, drain, water course or any collection of water , etc. which in the opinion of the commissioner is or is likely to become breeding place of mosquitoes, it amounts to nuisance. Prima-facie, there is nothing to show that because of the existence of the pan stall within the compound of Jyoti Sadan building, any breeding place for mosquitoes was created. The learned counsel for the Municipal Corporation contended that action was taken on the request of the police inspector that because of the pan stall, traffic problem is created because many vehicles stopped there to purchase pan. If traffic problem is created, action could be taken under some other provisions of law but certainly it would not attract provisions of Section 381 of the Municipal Corporation Act. As noted earlier the Municipal Corporation had not filed any reply to the notice of motion justifying the said notice under Section 381. Taking into consideration the definition of nuisance under Section 381(1) , it is clear that notice was wrongly issued under that provision. 3 Therefore, for the aforesaid reasons, appeal is allowed. Implementation of the impugned notice is hereby stayed. However, the Municipal Corporation shall be at liberty to take appropriate action under 4 the appropriate provisions of law if any traffic problem is created due to the existence of the said pan stall or if existence of pan stall violates any other rules or provisions of law. 4 As the appeal itself is finally disposed off, civil application does not survive and stands disposed off accordingly. (J.H. BHATIA,J.)