1 lod1567-11.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION LOD.NO.1567 OF 2011 Silver Arc Properties Pvt.Ltd. & Anr. .. Petitioners Versus Municipal Corporation of Greater Mumbai and Ors. .. Respondents Mr.J.Reis, Senior Advocate with Ms.N.V.Sanglikar for petitioners Mr.A.Y.Sakhare, Senior Advocate with Ms.T.Puranik for respondents CORAM : S.C.DHARMADHIKARI, J. 26th September 2011. P.C.: 1] By this petition under Article 226 of the Constitution of India, the petitioner challenges an order passed by the Assistant Municipal Commissioner, A Ward rejecting petitioners' representation. 2] By the order under challenge, which is at Annexure “B” page 31 of the paperbook, the Assistant Municipal Commissioner has informed the petitioner that the request of the petitioner for grant of alternate accommodation made by an application dated 2 lod1567-11.doc 15th February 2010 has been considered at a meeting and the claim is rejected. The rejection is on the ground that attornment in favour of the petitioner has been revoked by the Municipal Commissioner on 30th December 2008. 3] Mr.Reis, learned Senior Counsel appearing for petitioner submits that paras 19 and 20 of this petition have been dealt with in the affidavit filed in reply. The persons who are similarly situated like petitioner and located on the same plot have been rehoused and given alternate accommodation. If that is the case, then, why the petitioners' request for alternate accommodation is denied is not clear at all. Further the reason given is not correct because the Corporation was aware that the said attornment was not revoked but the person Mohamed Shafi Rahim Khan had a specific understanding with the Corporation and he was classified by the Corporation as tenant. He was permitted to assign his interest in favour of the party to whom he transfers the premises. Such assignments have been noted as attornment in the Municipal records and the petitioner's name clearly appears in the same. In such circumstances, this is a 3 lod1567-11.doc case of clear discrimination and the order passed by the Assistant Municipal Commissioner smacks of discrimination and malafides. 4] On the other hand Mr.Sakhare learned Senior Counsel appearing for Corporation invites my attention to the order and also the facts emerging from the record and particularly the Award which has been made to acquire the subject immoveable property. It is stated that one Mohamed Shafi was running motor garage on the plot bearing C.S.Nos.337, 358 and 359. Notice was given to him but he did not file any claim. Once the award was made and the possession of the land was taken it vested in the municipal Corporation. Upon vesting, for some time, it was noticed that the Corporation could not utilise the same for the purpose for which acquisition was done. Therefore, at the request of the persons like Mohamed Shafi, they were permitted to occupy the property on leave and licence basis. It was clarified that no interest is created in their favour and the land is a public property. Undertakings were given by said Mohamed Shafi to vacate the property as and when called upon by the 4 lod1567-11.doc Corporation. Petitioner's name is noted as transferee from the said Mohamed Shafi. If his right was limited and that too of a licensee, then, the petitioner cannot claim on that basis any right to alternate land. In these circumstances, the policy that is relied upon is not applicable and, therefore, the decision cannot be faulted. It is stated that even the petitioner has executed similar undertakings to vacate the premises. 5] After having perused the petition and the annexures thereto so also the affidavits, to my mind it is apparent that the plot of land comprises of three survey numbers viz., 337, 358 and 359. These plots were reserved as Recreation ground. As far as the petitioners are concerned, it is apparent that the property was acquired on or about 16th May 1974. After the award was made possession of the land was taken and it vested in the Corporation. As per the award, the structure occupied by Mohamed Shafi was declared unauthorised and no compensation was paid. The said Mohamed Shafi did not file any claim and action under section 105 B of MMC Act was taken against him in the year 1983, which was challenged by him in 5 lod1567-11.doc Misc.Appeal in which also no relief was granted. He approached the Corporation by written representation making request to attorn him as licensee of the Corporation. As notice was issued and action was initiated against Mohamed Shafi, then, Ward Officer, suggested that it is difficult to develop the plot as it was sandwitched between multi-storeyed buildings and as the remaining land under reservation was also encumbered with multi-storeyed building hence instead of evicting the occupants they be allowed to continue their occupancy by attorning them as Municipal Tenants on temporary basis with undertaking that they will vacate the premises without claiming alternate accommodation. That suggestion was approved by Municipal Commissioner and, therefore, the relation between the occupiers such as Mohamed Shafi and the Corporation could not be said to be anything beyond a municipal licensee and licensor. As is well settled, upon the property being vested in the Corporation and the Corporation becoming owner thereof, unless and until the Corporation recognises any right in the property in favour of the predecessor in title of the petitioner, the petitioners cannot be placed on a better footing. There may be an agreement between 6 lod1567-11.doc the petitioners to become licensee of the Corporation but their case cannot be put on higher pedestal than that of the Mohamed Shafi. 6] In fact these are persons who were obstructing implementation of and putting up of recreation ground. That recreation ground came up only because of directions issued by this Court in a public interest litigation, on which these encroachments have been removed and the land was made free for putting up recreation ground. The petitioners filed civil suit in which also they did not succeed and they filed an appeal challenging the order is suit and during the course of disposal of the appeal, liberty was given to the petitioners to make representation, that the subject representation has been made and the same was considered by the Corporation. 7] I see nothing in the orders passed by this Court or in the policy which mandates grant of such alternate accommodation. Merely because in some cases or in case of some of the occupants of very same property or land the Corporation has 7 lod1567-11.doc given alternate accommodation to the occupants by itself and without anything more does not given any right in favour of the petitioner. The petitioner cannot, on the basis of the same documents, which have been executed by their predecessor in title, claim alternate land. The stand taken by the Corporation that the petitioners cannot be project affected persons, is thus not vitiated by any error apparent or perversity, calling for any interference. The petition is devoid of any merits and is dismissed accordingly. No costs. (S.C.DHARMADHIKARI, J)