1 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.879 OF 1998 Anil K. Darade .. Petitioner -versus The Bombay Municipal Corporation of Greater Bombay .. Respondents Mr. V.T. Lulia, for the petitioner . Ms S.M.Modle, for respondent CORAM: D.K. DESHMUKH & R. G. KETKAR, JJ DATED: 6th August, 2009. P.C. 1. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for issue of writ of mandamus directing the respondent to transfer the licence in respect of Stall No.51 standing in the name 2 of his grand-mother Smt. Sonabai S Darade, situate at Opposite Novelty Cinema, South Footpath, Grant Road, Mumbai 400 007 (for short called as “suit stall”), in his favour. 2. The petitioner claims that licence bearing No. 3463 was issued in favour of his grand-mother Smt. Sonabai S Darade more than 40 years back, under sections 313, 313(A) and 313 (B) of the Mumbai Municipal Corporation Act, 1888. On April 30, 1995, said Sonabai expired. On June 13, 1995, the petitioner made an application to the Licence Department of respondent at ‘D’ Ward requesting them to transfer the aforesaid licence in his favour. It is his further case that on June 28, 1995, the petitioner’s father Kisan Savleram made an application to the Licence Department for transferring the said licence in his name. The request of the petitioner’s father was rejected by the respondent on the ground that he is holding another stall at Lokmanya Tilak Market, Grant Road, Mumbai 400 007. 3. It is the case of the petitioner that he made 3 another application on November 14, 1996 to the office of respondent at ‘D’ Ward requesting them to transfer the licence of the suit stall in his favour. While the petitioner was carrying on business in the suit stall on April 22, 1998, it is alleged that one Shri. Trivedi, Licence Inspector from the office of respondent ‘D’ Ward, illegally and forcibly removed the suit stall without giving any notice or intimation to the petitioner. 4. Respondent opposed the petition by filing affidavit of Shri. Babubhai Trivedi, working as Senior Inspector dated May 3, 1998. On June 17, 1998, after hearing counsel for the parties, this Court issued rule and made it returnable on August 3, 1998. Pending hearing and final disposal of the petition by way of interim relief, respondents were directed to permit the petitioner to carry on his business on the place from where he was carrying on business. That permission was subject to the outcome of this petition and was subject to further restriction that the petitioner would carry on business himself and would not permit anyone else to do business 4 in conformity with the rules. 5. In support of this petition, Mr.Lulia, learned counsel for the petitioner placed strong reliance upon the Transfer of Licence Rules, 1980 (for short called as “Rules”) and in particular, Rule 6 thereof. For better appreciation of the contention advanced on behalf of the petitioner, relevant portion of Rule 6 thereof is reproduced for ready reference. “6. In case of the death of licence holder, the transfer of stall licence may be permitted in the name of any one legal heir of the deceased licence holder on production of necessary documents, showing heirship of the applicant. The following heirs of the licence holder will be recognised for the purpose of transferring the stall – i) Son or Grand son (son’s son) ii) Either of the surviving spouse. Iii) Unmarried daughters.” 6. Perusal of Rule 6, hereinabove clearly indicates 5 that the transfer of stall licence is permissible in the name of any one legal heir of the deceased licence holder on production of necessary documents showing heirship of the applicant. Admittedly in the present case, the licence No.3463 stood in the name of petitioner’s grand- mother Sonabai. She died on April 30, l995. The petitioner’s father Kisan Savleram was alive and he died on December 30, 2003. Thus, when the petitioner made the application for transfer of licence on June 13, l995 and another application on November l4, l996, his father was very much alive. Consequently the petitioner can not claim to be heir and legal representative of his grand mother Sonabai during the life time of his father. 7. In the affidavit made on behalf of respondent, it is contended that the respondent found that the son of the deceased licencee, Kisan Savleram was already having municipal stall in municipal market at the Grant Road. It is further contended that purport of Rule 6 is that if the son of the deceased is not alive, then only the grand- son can claim the right of transfer. Since in the 6 instant case the son of deceased licencee Sonabai, was alive at the relevant time and was also holding municipal stall in his personal name, the petitioner can not claim direct legal heirship of his grand mother. 8. Considering the submissions made on behalf of the petitioner as also respondent, we find that the petition is wholly misconceived. In the first place, licence is privilege granted to individual person and that privilege can be transferred strictly in accordance with the statutory rules. In the instant case, Rule 6 of the Rules provides mechanism for transfer. Secondly, during life time of father, a son cannot claim to be heir and legal representative of grand-father/grand-mother. If that be so, the applications made by the petitioner for transferring licence in his favour on June 13, 1995 and November 14, 1996, were wholly misconceived. No fault can be found with the actions of respondent in not transferring the said licence in favour of the petitioner. In the result the petition fails. Rule is discharged with no order as to costs. 7 9. At the request of learned counsel for the petitioner, interim injunction granted by this Court on June 17, 1998, to continue for a period of six weeks from today. During this period, the conditions stipulated in the order dated June l7, 1998, shall be observed by the petitioner. In the event the petitioner, fails to obtain suitable orders from the Apex Court, he will dismantle the suit stall at his cost failing which respondent will be at liberty to dismantle the suit stall and recover the expenses from the petitioner. (D.K. DESHMUKH, J) (R.G. KETKAR, J)