1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 12 OF 2009 WITH CIVIL APPLICATION NO. 38 OF 2009 Farukkhan Samsherkhan Pathan & ors........Appellants versus Nashik Muniipal Corporation........ Respondents. Mr. S.K. Shinde i/b Sagar Kasar adv. for the Appellants Mr. M.L.Patil adv. for the respondents CORAM: A. P. DESHPANDE, J. DATED : 6th MARCH, 2009. P.C.: 1. The present appellants who are 68 in number are carrying on business and deals in scrap material (bhangar). The respondent Nashik Municipal Corporation issued a notice to the appellants, bringing it to their notice (1) that they are carrying on the business in scrap material unauthorisedly meaning thereby without a licence, and (2) that the activity carried on by the appellants is causing nuisance, pollusion/annoyace to the nearby residents and hence called upon the appellants to stop the business activity. The notices are dated 27/28th January 1995. Aggreived by the notices, all the appellants instituted a suit for declaration that the notices served on them are illegal. A futher prayer is made with a view to restrain the Corporation 2 from demolishing the sheds. At this stage it would be relevant to note that the notices did not threaten the demolision of the structure. The trial court on consideration of the evdience and material on record, reached a finding that licence is needed to carry on the business of scrap and the appellants had not obtained the said licence from the Corporation. Though it was not so prayed in the suit, the trial court permitted the appellants to obtain the licence from the Corporation, and thus decreed the suit and granted injunction as prayed for. Aggrieved by the judgment and decree passed by the trial court the Corporatin carried the first appeal before the District judge. The Distict Judge being of the view that the business was being carried on unauthorisedly and without licence from the Corporation, allowed the appeal filed by the Corporation and set aside the judgment and decree passed by the Court below. Both the courts have found that the Corporation has failed to establish its case as voiced in the impugned notice that the business carried on by the appellants causes nuisance or annoyace to the neighbours residing nearby. Aggreived by the appellate court's judgment and decree the present second appeal has been filed by the appellants. 2. The question that is raised in the appeal is as to whether the notices impugned in the suit were issued under sections 376 and 376-A of the Corporatioon Act or are those notices only referable to section 376-A of the Act. The 3 submission is that the appellants/plaintiffs understood the impugned notices as having been issued only under sction 376-A and in the absence of specific mention of section 376 in the notice, the appellants were denied an opportunity to effectively contest the notice as one having issued under section 376. Reading of the notice clearly reveals that the notices are in two parts. The first part makes a mention of the unauthorised carrying on scrap business at the given site whereas the later part of the notice relates to nuisance and annoyance caused to the neighbours on account of carrying on the unauthorised business of scrap at the given site. Both the courts below have construed the notice as one issued under section 376 so also 376-A. Concurring with the finding recorded by the courts below, I am also of the view that the notice has been issued not only under section 376-A but also under section 376. No fault can be found with the notice issued by the Corporation calling upon the apellants to close down the unauthorised business of scrap material. The impugned judgment also reveals that all through out the appellants have tried to contend that no licence is required for carrying on the business which the appellants are carring on. It is not their case that they have obtained the licence. In the present appeal it is not the submission made by the learned counsel for the appellant that no licence is required to carry on the buisness of scrap material. However the submission is that licence is rquired only for certain type of scrap when it 4 exceeds the given quantity. That contention has to be rejected and cannot be considered, for the first time in Second Appeal. 3. Perused the impugned judgment. The same does not call for any interference, as no substantial question of law emerges for consideration. In the result the appeal is dismissed. 4. In view of the dismissal of the appeal, civil application doesnot survive and the same is also dismissed. 5. At this stage the learned counsel for the appellant seeks stay of this order for a period of eight weeks. The ad- interim relief operating in this appeal to continue for a period of four weeks from today. (A. P. DESHPANDE, J.)