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2013
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.2995 OF 2011
IN
S.C. SUIT NO.2713 OF 2011
1] Dilip Sumanlal Shah, )
aged 71 years,Sr.Citizen, )
Occupation : Business )
2] Mrs.Meena Dilip Shah, )
aged 68, Sr.Citizen, )
Occupation : Housewife, )
Both Indian Inhabitants, )
Residing at E/10, Venus )
Apartments, R.G. Thadani )
Marg,Worli,Mumbai 400018. )... Plaintiffs
Versus
1] Mrs.Padma Thakore, )
Aged : not known, )
Occupation : not known. )
2] Jigisha Thakore, )
Aged : not known, )
Occupation : not known. )
Residing at E/14, Venus )
Cooperative Housing )
Society Ltd., Worli )
Seaface, R.G. Thadani )
Marg,Worli,Mumbai 400018. )
3] Venus Cooperative )
Housing Society Ltd., a )
Cooperative Housing )
Society incorporated )
under the provisions of )
Maharashtra Cooperative )
Housing Societies Act, )
1960 and having its )
NM2995/11 in 2713/11 2 Dt : 27.09.2013
registered office at R.G. )
Thadani Marg, Worli )
Seaface (South), )
Mumbai – 400 018. )... Defendants
Adv.Mr.Kalpesh Joshi for the plaintiffs.
Adv.Ms.Vaishali Ugale for the defendants.
CORAM : HIS HONOUR JUDGE
SHRI M.T.GAIKWAD (C.R.NO.30)
DATE : 27.09.2013
ORAL ORDER
interim injunction restraining defendant Nos.1 and 2,
their family members, servants, agents from creating
building by feeding the birds with water and grains
thereto.
NM2995/11 in 2713/11 3 Dt : 27.09.2013
made against them. According to the defendant No.2,
Secretary of the All India Animal Welfare Association
situated at Mahalaxmi Dhobi Ghat and she is also the
Director of All India Radio and also freedom fighter
and the plaintiff No.2 has been a regular supplier of
medical and surgical equipments to her NGO named All
India Animal Welfare Association.
NM2995/11 in 2713/11 4 Dt : 27.09.2013
members of the defendant No.3 of which they are also
the members and which virtually a dispute false under
section 91 of the Maharashtra Cooperative Societies
Act, 1960, the jurisdiction of the court to try and
entertain the suit is therefore, ousted.
tray to shoo off the birds when they come for eating.
According to the defendants, plaintiff No.1 is aware
of the charitable activities of defendant No.2 and in
For over 10 years, there had been no complaint from
creatures of the sky and to feed them at a height is
the most sensible method. According to them, if the
birds are fed at the ground level, there is always a
caught by some other animals such as cats, dogs, etc.
According to the defendant No.2, she feeds the birds
their kitchen window in morning around 9.00 a.m. and
there are other members of the society building who
Block F and Shri Bhatia residing in Flat No.37, Block
G of the defendant No.3 – society's building are two
defendants however submit that they have not created
any nuisance or problem or committed any illegal act
by feeding the birds. The allegations made in that
dismiss the notice of motion.
affidavit in reply filed by the defendant No.2 dated
and notice of motion. According to the plaintiffs,
the defendants filed their written statement with an
ulterior motive to delay and defeat their claims. In
so far as jurisdiction point is concerned, according
to the plaintiffs, section 91 of the Maharashtra Co
operative Society Act, 1960 no doubt deals with any
officers, conduct of general meetings, management or
differences, but the defendants did not pay any heed
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to their efforts and go on feeding birds from their
windows. The birds are causing hygienic problems and
that may cause any severe disease to them and thus,
prayed to allow the notice of motion.
determination with my findings thereon as under :
R E A S O N S
As to point Nos.1 & 2 together :
said building, which is formed by the flat purchasers
in the said building. It is also not in dispute that
their balcony window for feeding grains and water to
the birds initially. The plaintiffs have their window
In the light of these admitted facts to buttress the
contention, the plaintiffs affirmed in the affidavit
filed alongwith notice of motion as well as rejoinder
15.03.2012.
plaintiffs submits vehemently that the plaintiffs and
building i.e. EBlock in the building known as “Venus
their flat being Flat No.E/10 and the defendants have
their flat being Flat No.E/14 situated above the flat
of plaintiffs. The next submission of the Ld.Adv.Mr.
The number of birds like pigeons, gathered there to
nuisance to the plaintiffs early in the morning. The
plaintiffs therefore, have to close the window. If
the window is closed then it causes obstructions to
society informing this fact for redressal of dispute
my attention to the photographs (Exhibit 1A annexed
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the photographs show the situation of the flat of the
birds like pigeons eat and drink water. Some birds
are seating on the balcony of the plaintiff's window.
Thus, the act of bird feeding done by the defendants
is not only causing nuisance to the plaintiffs, but
also to the other members of the society (Defendant
defendants made similar complaints to the society in
respect of nuisance caused by the act of bird feeding
done by the defendants. According to Adv.Mr.Kalpesh
birds started falling on the channels of the sliding
exactly below the balcony of defendant No.1. Besides
virtually to the members of the society.
they become the members of the society (defendant No.
act. The defendants installed the metal tray out of
their window balcony. In fact, no nuisance is being
Ugale, the suit is filed out of personal enmity and
false complaints since 2009. According to Ld.Adv.Ms.
infection and skin disease due to feeding of birds,
fundamental duties on every citizens of India whereas
Thus, no case has been made out by the plaintiffs to
grant interlocutory injunction.
plaintiffs' case, the plaintiffs filed alongwith list
page 15. The copies of photographs Exhibits “A1”,
“A2” and “A3”. Exhibit “B” (Page 19) is a letter
society to the defendant No.2. Exhibit “D” is again a
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letter to the Secretary of the society by the office
staff. Exhibit “E” is a letter of the defendants to
the society (defendant No.3). Exhibit “F” is a letter
defendants dated 08.01.2010. Exhibit “H” is a letter
Station. Exhibit “J” is a letter by the defendants to
the society. Exhibit “K” is a legal notice sent by
the Advocate for the plaintiffs to the defendants.
(Page 16). The photographs showing situation of their
Exhibit “3” is a letter dated 29.12.2009 sent by the
defendants to the society (defendant No.3). Exhibit
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notice by the society regarding special general body
meeting to be held on 10.04.2010. Exhibit “6” is a
complaint by the defendants as against the plaintiffs
secretary of the defendant No.3Society.
12. Thus, the annexures of documents sought to be
relied by both the plaintiffs and defendants will be
interlocutory stage. There is no dispute to the fact
that the plaintiffs are occupants of flat No.E/10 and
defendants are the occupants of flat No.E/14 situated
above the flat of the plaintiffs. Article “A” is a
copy of the photographs which shows the situation of
different flats. Exhibit A2 shows the filth thrown
fact to the notice of the defendants by letter dated
12.12.2009 (Exhibit “B”) and to the society, whereby
the society by their letter dated 24.12.2009 (Exhibit
defendants that nuisance caused to the plaintiffs and
other members of the defendant No.3. Not only that,
Exhibit “D” is a complaint made by the security staff
of the society to the defendant No.3 informing about
nuisance caused due to the pigeon filth, food grains
noted that in a letter wrote by the defendant No.2 on
spills or the container falls down and this happens
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when the bowls are empty. Utmost care will be taken
birds come in a pack and because of the flapping of
their wings a part of the feed falls out of the tray
and some water is also spilled over. But according
trivial but a compassionate deed. The defendant No.
nuisance for the society and requested her to avoid
Commissioner of Police (Exhibit “H”) and to the Sr.
Police Inspector, Worli Police Station (Exhibit “I”).
have been made by the plaintiffs and security staff
of the society to the secretary of the society or to
defendants pointing out that the feeding of the birds
the plaintiffs. The society has also taken cognizance
they creates hindrance in the daytoday life of the
the filth dropping by the birds.
record by the plaintiffs and defendants together with
member of the managing committee thereof and hygiene
defendants like to perform their duties as an animal
then it would be better in her interest to seek some
water which in no case would cause nuisance either to
yard of the society building. The photographs sought
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group of pigeons drinking water and eating grains on
balcony. Thus, according to me, it is not only cause
nuisance, but also create the hygienic problems like
residing nearby.
which would show the arrangement of metal tray made
spilling the water, feeding grains, filth and insects
come out of their feathers.
Ld.Adv.Mr. Kalpesh Joshi has rightly pointed out the
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Secretary of the society has brought this fact to the
notice and made earnest appeal that nuisance which is
health of the members of the society.
16. I would also like to mention further that on
No.3society convened special general body meeting on
Secretary Mr.P.L. Shetty, Item No.5 on the agenda of
the subject notice is issued to discuss the problem
members from their window's/balconies and to pass an
appropriate resolution depending upon consensus.
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Constitution of India and Article 19 thereof, I have
already observed in my earlier discussion that if the
wants to perform her duties as a social worker, she
would find such a suitable place nearby the society's
building, where she can put the tray, feed the grains
to the birds to avoid causing nuisance to the members
of the society and for a public at large residing in
the vicinity.
that the act of the defendants feeding the birds by
the window balcony of their flat, caused nuisance to
plaintiffs unnecessarily for no fault of them, due to
the spilling of water, feeding the grains and leaving
if the defendants are not prevented from doing such
an act, the nuisance would continue to cause to the
(defendant No.3) and virtually to the public at large
and their hygiene may come into danger. This act of
restrained by grant of interlocutory injunction. The
required to be granted by laying down the equitable
circumstances is justified and has to be granted as
prayed for and balance of convenience also tilts in
favour of the plaintiffs. I answer point No.1 in the
plaintiffs.
As to point No.3 :
feeding the birds by the defendants in the metal tray
installed by them over the balcony of the plaintiffs,
following order :
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ORDER
1.Notice of Motion No.2995 of 2011 is
hereby allowed and made absolute in
terms of prayer clauses (a).
2.Costs in main cause.
Dictated on : 27.09.2013
Oral order transcribed on : 30.09.2013
Oral order signed on :
Copy sent to C.C. :