K.J. IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1850 OF 2005 WRIT PETITION NO.1850 OF 2005 WRIT PETITION NO.1850 OF 2005 Banda Navbharat Shikshan Prasarak ) Mandal & Ors. )..Petitioners Vs. The Municipal Corporation of ) Brihanmumbai & Ors. )..Respondents ---- Mr.D.A.Nalawade i/by P.G.Sawant for the petitioners. Mr.K.K.Singhvi, Sr.Advocate for the respondents. ---- Coram : D.K.Deshmukh & Coram : D.K.Deshmukh & Coram : D.K.Deshmukh & R.S.Mohite,JJ R.S.Mohite,JJ R.S.Mohite,JJ Date : 8.4.2009. PC 1. The dispute in this petition relates to demand of ground rent made by the Corporation against the petitioners. The ground rent is demanded by the Corporation under the terms of the lease deed executed by the Corporation for granting lease of the land to the predecessor in title of the petitioner. The dispute raised in the petition thus arises out of a contract entered into between the parties. Disputed questions of fact arise therefrom a writ petition under article 226 of the Constitution is not an appropriate remedy. The petitioner also claims a direction to the Corporation to issue comencement certificate for the third floor and for occupation certificate for both : 2 : the second and the third floor. Admittedly the petitioner has constructed the third floor without obtaining the commencement certificate and has occupied both the second and third floor without first obtaining occupation certificate. Under the provisions of the Corporation Act nobody can occupy a building without first obtaining an occupation certificate. The petitioner has thus constructed a part of the building and occupied it in total breach of the mandatory provisions of the relevant law. The Supreme Court has repeatedly said that a person who approaches the High Court by a petition under Article 226 of the Constitution must to do so with clean hands. A petitioner who has himself committs breach of the mandatory requirement of law can not be helped by the High Court in its extra ordinary jurisdiction under the Constitution. The Supreme Court has considered the approach that is to be adopted by the High Court while exercising its jurisdiction under Article 226 of the Constitution of India in its judgment in the case "M.P.Mittal Vs. State of Haryana and others, AIR 1984 Supreme Court 1888." The following observations from that judgment, in our opinion, are relevant. They read as under :- "The appeal arises out of a writ petition, and it is well settled that when a petitioner invokes the jurisdiction of the : 3 : High Court under Article 226 of the Constitution, it is open to the High Court to consider whether, in the exercise of its undoubted discretionary jurisdiction, it should decline relief to such petitioner if the grant of relief would defeat the interests of justice. The Court always has power to refuse relief whether the petitioner seeks to invoke its writ jurisdiction in order to secure a dishonest advantage or perpetuate an unjust gain. This is a case where the High Court was fully justified in refusing relief. On that ground alone, the appeal must fail." . What is further pertinent to be noted is that the petitioner is a public trust and claims to run a school in the building. It has occupied the building illegaly for running classes. Safety of the building is examined by the planning authority in the process of granting occupation certificate. By occupying the building without there being a occupation certificate the petitioner has avoided scrutiny of the building from that point of view. It is apparent that the trustees of the petitioners have no regard for safety of the children who are taught in the building. The petition therefore, : 4 : cannot be entertained. It is rejected. 2. At the request of the learned Counsel for the petitioners, it is directed that the interim order that is presently operating shall continue to operate for a further period of four weeks from today. (D.K.Deshmukh,J) (D.K.Deshmukh,J) (D.K.Deshmukh,J) (R.S.Mohite,J) (R.S.Mohite,J) (R.S.Mohite,J)