Dismissed

Zubeda Rajmohammad Qureshi v. the Municipal Corpn. of Gr. Bombay and 4 Ors.

Bombay HC3 Mar 2009WP/343/2008

Case brief

AI extract

What is this about?

The High Court held that it was improper to exercise writ jurisdiction to examine the correctness of a license rejection order since the matter was already pending as a First Appeal. The Court also noted exercising such jurisdiction would encourage abuse of process.

What did the court decide?

Petition dismissed with costs of Rs. 5,000 to be paid to the respondent within two weeks.

Zubeda Rajmohammad Qureshi Vs the Municipal Corpn. of… — Service and Employment | Bombay HC (2009)

¶1

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶3

ORDINARY ORIGINAL CIVIL JURISDICTION

¶4

 WRIT PETITION NO. 343 OF 2008

¶5

 Zubeda Rajmohammad Qureshi,
 aged about 70 years,
 Occupation Business, having
 her address at Gala Nos. 13
 and 14, Non-Veg. Section,
 Borivali Municipal Market,
 S.V. Road, Borivali (West),
 Mumbai - 400 092. .. Petitioner.
 vs.
 1) The Municipal Corporation of
 Greater Bombay, having its
 office at Mahapalika Bhavan,
 Mahapalika Marg, C.S.T.
 Mumbai - 40 001.

¶6

 2) Assistant Municipal Commissioner,
 (Market), Gr. Mumbai Corporation, B.M.C.
 Office, Croffered Market, M.J. Fule
 Market, Opposite Police Commissioner’s
 Office, Mumbai.

¶7

 3) Deputy Municipal Commissioner,
 (Special) Eastern Suburban) Municipal
 Corporation of Gr. Mumbai M.C.G.M.
 Offices, Opposite C.S.T. Mumbai -
 400 001.
 4) Dy. Municipal Commissioner, R.K.
 Patkar Marg, B.M.C. Offices 2nd flor,
 Near Bhabha Hospital Building, Bandra
 (W), Mumbai - 50.
 5) Assistant Superintendent of
 Market, IV, Municipal Corporation
 of Gr. Mumbai, R.K.
 Patkar Marg, B.M.C. Offices 2nd flor,
 Near Bhabha Hospital Building, Bandra

¶8

¶9

 (W), Mumbai - 50. .. Respondents.

¶10

 Mr. G.N. Salunke for the Petitioner.
 Mrs.S.M. Modale for Respondents.

¶11

CORAM: J.N. PATEL, &
 Smt.V.K.TAHILRAMANI, JJ.

¶12

DATE: 3RD MARCH, 2009

¶13

 ORAL JUDGMENT(Per J.N. Patel, J.)

¶14

 . Heard the learned counsel for the parties.

¶15

 2. The petitioner has filed this petition under

¶16

 Articles 226 and 227 of the Constitution of India

¶17

 impugning the decision of the Market Department of the
 respondent MCGM in rejecting his application dated
 21.3.2007 made through Shri G.N. Salunke, Advocate,
 High Court to the Assistant Municipal Commissioner

¶18

 (Market) MCGM.

¶19

 3. It is the case of the petitioner that the
 petitioner initially filed a suit in the City Civil
 Court, Greater Mumbai which came to be dismissed by the
 City Civil Court on 13.12.2006 (Long Cause Suit No.

¶20

¶21

 5427 of 2005). The suit was filed on the basis of the

¶22

 cause of action that the petitioner original plaintiff
 was not allowed to change her business / trade from
 storage and sell of ice to Fowl cutting and selling it
 from Gala no. 13. Being aggrieved by the said
 decision the petitioner has preferred a First Appeal in
 this Court before the learned Single Judge which is
 registered as First Appeal No.418 of 2007. On
 21.2.2007 the learned Single Judge admitted the appeal.
 The Respondents waived service. On admission of the
 appeal, the learned Single Judge refused to grant any
 interim relief in favour of the appellant by his order
 dated 21.2.2007. In the concluding paragraph of the
 order dated 21.2.2007, the learned Single Judge
 observed that the rejection of the application for
 grant of interim relief will not preclude the appellant
 from making an application to the first respondent for
 grant of fresh licence/permission to carry on the
 business in question.

¶23

 4. It is the case of the petitioner that pursuant
 to the liberty granted by the learned Single Judge to

¶24

¶25

 make an application to the first respondent for grant
 of fresh licence/permission to carry on business, the

¶26

 petitioner filed such an application which is annexed
 to the petition as Exhibit "J". The same came to be
 rejected on 3.7.2007 which is being challenged in this
 petition.

¶27

 5. Needless to say that the subject matter of
 entitlement of the petitioner who has been allotted two
 Galas No. 13 and 14 admeasuring 36 sq. ft. each in
 Borivli Municipal Market Non-veg. Section was reserved
 for supplying ice from the said two galas to various
 fish and mutton sellers in the said market. The
 petitioner moved the respondent after obtaining
 recommendation from local M.L.A., and Chairman of
 Market and Garden Committee for temporary permission
 for a period of six months on experimental basis for
 converting Gala No. 13 for Fowl and Fowl cutting and
 sale in the said gala and this was granted by the
 respondent for a period of six months. Thereafter the
 respondents took a decision not to extend the approval
 granted by them for converting the use of the said gala

¶28

¶29

 and the D.M.C. (Special) & Addl. M.C. (Eastern
 Suburbs) granted their approval for cancellation of
 temporary licence on 21.9.2005 and 19.11.2005

¶30

 respectively and the application made by the petitioner
 for further extension came to be rejected by letter
 dated 5.12.2005.

¶31

 6. In our view, as the matter is already pending
 in the First Appeal which is filed in this Court, it
 will not be proper for us to exercise our extraordinary
 jurisdiction of examining the correctness of the
 impugned order. We refrain from making any
 observations on merits for the reason that it may

¶32

 rather cause prejudice to the petitioner. Further,
 what we find is that the petitioner has taken advantage
 of the liberty granted by the learned Single Judge at
 the time of rejection of her application for grant of
 interim relief by observing that it does not preclude
 the petitioner from making a fresh application to the
 respondent. That does not necessarily mean that the
 respondents are bound to grant such permission and
 after the respondents have taken a decision in the

¶33

¶34

 matter the petitioner chooses to file this writ

¶35

 petition rather than pursuing her appeal. This, in a
 way, amounts to abuse of the process of the Court as
 the petitioner now wants the subject matter of the

¶36

 appeal to be adjudicated in exercise of writ
 jurisdiction of this Court which relief was even denied
 by the learned Single Judge at the time of admission of
 the appeal. Therefore, the petition is dismissed with
 costs which we quantify as Rs. 5,000/-. Costs to be
 paid to the respondent MCGB within two weeks.

¶37

(J.N. Patel, J.)

¶38

(Smt.V.K.Tahilramani, J.)

Zubeda Rajmohammad Qureshi v. the Municipal Corpn. of Gr. Bombay and 4 Ors.

Case brief

What is this about?

What did the court decide?

Zubeda Rajmohammad Qureshi v. the Municipal Corpn. of Gr. Bombay and 4 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Vimal H. Varhadi and 24 Ors. Vs the Chief Executive Officer, and 5 Ors.

Transport and Dock Workers Union and Anr. Vs Oil and Natural Gas Corpn. Ltd. and Ors.

Soleri Land Developers Pvt. Ltd. Vs the State of Maharashtra and Ors, and Parul Enterprises Rep. by C.D. Shah (H.U.F.)

Shaikh Shafi F. M. Dilliwale and Ors. Vs Dr. Krishna Lavekar and Ors.

Dr.Shirish G.Deshpande Vs Smt.Nathibai Damodar Thackersay Women'S University and Ors.

Shikshan Prasarak Mandal Vs University of Mumbai and Ors.